author: Ilslet, J.

text:
    Samuel Stewart v. Alexander McDonald.
    Payment of a note may be proved by parol testimony, and its possession by another is only prima facie evidence of the indebtedness of the maker.
    APPEAL from, the Sixth District Court of New Orleans,

      'Howell, J. Boselius & Philips, for plaintiff. Fellows & Mills, for defendant and appellant.
   Ilslet, J.

This suit is brought on a note for two hundred and twenty dollars; two small items for materials furnished, thirty-one dollars; and three items for arrearages of rent, from December, 1860, to 1st December, 1861, two hundred and eleven dollars, and from the 1st December, 1861, to 1st of July, 1863, one hundred and fifty dollars; in all, three hundred and fifty-one dollars, the whole claim being for six hundred and seven dollars.

The answer and supplemental answer and exceptions are a general denial or plea of payment of the note for two hundred and twenty dollars, and a special denial of the other items of the account.

Judgment was rendered in the Court below in favor of the plaintiff for the sum of five hundred and eighty dollars; that is to say, for the amount of the note, two hundred and twenty dollars, the balance being for rent.

Having carefully examined the testimony adduced in the case, we think that it proves the correctness of the charge for rent up to the amount claimed, three hundred and fifty-one dollars; but we think the fact of the payment of the note is sufficiently shown by the witnesses, Drez and O’Hara. >

Under ordinary circumstances, it may be presumed that, if the defendant had paid his note, it would not have been in the plaintiff’s possession ; but this possession of it by the plaintiff is explained by the testimony of two witnesses; one of whom says: “I heard plaintiff say, when he was going out, everything is settled; and the plaintiff said, if he could find the note, he would give it to him; and, again, if he could find the $200 note, he would give it to him; and, if not there were witnesses enough to prove the payment.”

And the other witness testifies: “Plaintiff mentioned a note of $200 or $220 to defendant. I think defendant paid him the note at the time. Defendant said, you had better give me the note; and plaintiff said: I have it not with me, hut when I find it I will give it to you. They had a lot of money on the counter.”

This testimony evidently referred to the note sued on, which is the same that the witness Stewart refers to in his testimony. The agrégate items of thirty-one dollars are not proved.

The judgment of the District Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that judgment be, and it is hereby rendered, in favor of the plaintiff, Samuel Stewart, and against defendant, Alexander McDonald, for the sum of three hundred and fifty-six dollars; and that the costs of the lower Court be paid by the defendant and appellant, and those of this Court by the plaintiff and appellee.

HowEnn, J., recused.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Alfred Shaw v. Howell et al.
    The law regards the application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exception or merits.
    The act ot 1857 having provided that “ ail the criminal expenses incurred in the different parishes of this State, by arrests, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several Courts of this State,” the duties of the Auditor relative to accounts for such expenses thus certified, are ministerial and imperative, and he must issue his warrant on the Treasurer therefor. It would be otherwise, if the certificate of the Clerk and Judge should show upon its face thatitwas not drawn in accordance with the law, as, for instance, if it purported to beforfeesin civil suits.
    The 15th section of the Act of 1855, which gives the Sheriffs $100 per annum for their fees in criminal cases, did not intend this sum as their sole compensation. There are many services rendered by Sheriffs, which are not provided for in the fee bill.
    The party convicted in a criminal case must be condemned to pay the costs, and after a return of nulla bona, or after the Clerk and Judge are satisfied by sufficient evidence that the convict has no property, then the State becomes responsible for the costs.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumoni, J. WhiiaJcer, Fellows <& Mills, for plaintiff. Tkos. H. Hewes, for defendant and appellant.
   Jones, J.

The Sheriff of the Parish of Orleans sued out a writ of mandamus against the Comptroller and Treasurer of the city of New Orleans, to show cause why a warrant should not issue in his favor for a certain sum of money predicated upon a voucher approved by the Clerk and Judge of the First District Oourt of New Orleans, pursuant to statute in such case made and provided. The Comptroller and Treasurer, for cause, against the issuing of the mandamus, filed exceptions only to the form of the proceedings. These exceptions being overruled, the Comptroller and Treasurer ask further leave to answer, which was refused by the Court. From the judgment rendering the mandamus peremptory against the Comptroller and Treasurer, the City of New Orleans took this appeal. The exceptions filed by the Comptroller and Treasurer were properly overruled, and the Court did not err in the exercise of its sound'discretion, in Refusing defendants additional pleadings. The law regards tlie application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exception or merits. The splitting up of a defence should not be tolerated in practice.

We now propose to examine the ease on its merits.

This case, in all its aspects, presents the same state of facts to warrant the interposition of writ of mandamus, and under a similar statute as that decidíl by this Court, after a very elaborate and learned argument of counsel in the case of E. T. Parker, Sheriff, v. E. W. Robertson, Auditor, 14 An. p. 249. In the Parker case, the act passed by the Legislature in 1857, was authority which justified the State Auditor to issue the warrant in favor of the Sheriff. Under a subsequent statute the Legislature authorized the Comptroller and the Treasurer of the city of New Orleans, the one to issue and the other to pay a warrant in favor of the Sheriff, upon his producing his account for his fees and the like, as prescribed by law, certified and approved by the Clerk and Judge of the First District Court of the city of New Orleans. This having been done, the warrant should have issued for the amount of the account so certified and approved. The peremptory mandamus herein was properly issued. It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.


author: Labaove, J.

text:
    Laurent Millaudon v. Henry J. Ranney.
    The petitory action, or one by which, real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee.
    But if the farmer or lessee of a real estate be sued for that cause of action, he must declare to the plaintiff the name and the residence of his lessor, who shall be made a party to the suit, if he reside in the Slate, or is represented therein, and w'ho must defend itm the place of the tenant, who shall be discharged from the suit.
    The plaim-iff in an aclion of revendicaliou must make out his titile, otherwise the possessor, whoever he be, shall be discharged from the demand.
    APPEAL from the Sixth District Court of New Orleans,

      Houiell, J. G. Dufour, for plaintiff and appellant. Whitaker, Fellows <& Mills, for defendant.
   Labaove, J.

The first question presented is, wlietlier this action is a petitory or a possessory demand.

The plaintiff represents that he is the owner and proprietor of a certain square of ground situated in the town of Carrollton, in the parish of Jefferson, comprised within Canal Avenue, the Shell Road of the New Orleans Canal and Banking Company, and Dublin stoeet, known as lot No. 289, with, all the buildings and improvements thereon; aDdthatbe has always been in possession and enjoyment of the whole of said square, receiving rents from oue John Kellwick, for a portion of said square on which the buildings exist; that is, the corner of Canal Avenue and the said Shell Road, u„p to the 1st March, 1859. He prays that his title to the whole of the said square of ground, with all the buildings and improvements thereon, may be recognized, and your petitioner be put in possession thereof.

The defendant answered by a general denial, and further, that the said property is under the control and management of defendant by virtue of his contract with the Canal and Banking Company; and that he is authorized to collect rents; and that the property on which the rent is claimed is not within the bounds and limits of the square described by plaintiff; but, on the contrary, is located upon property subject to the said Canal and Banking Company, ,etc.

We are clearly of opinion that the allegations and prayer of the petition present all the ingredients of a petitory action, and that plaintiff was bound to make out his title to the property in dispute, and which he has failed to do. C. P. Arts. 43, 44. We have examined the evidence adduced in this case, and we concur fully with our learned brother of the District Court in the judgment by him. rendered; and for the reasons assigned by said Judge, the judgment must be affirmed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.

Howell, J., recused.


author: Hyman, C. J.

text:
    John B. Murison & Co. v. Andrew J. Butler et al.
    There can be no reason given wby the whole record of a suit should be introduced in evidence for the sole purpose of proving admissions in answers to interrogatories.
    Courts may, at the request of one of the parties, decree that the other party bring into Court the books, papers, and other documents, which are in his possession, and which are material in the cause, provided the party requesting their production declares, in writing and on oath, what are the facts he intends to establish by such books, papers, or other documents ; and, on the refusal of the party thus called upon to comply with the order of the Court, the facts stated and sworn to shall be considered as having been confessed, until satisfactory evidence be shown of the impossibility of producing such documents.
    The day fixed for the trial of a suit shall be the day ibat the Judge shall fix in his order for the production into Court of books, papers, or other documents bhas are in possession of parties to a suit.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. George S. Lacey, for plaintiffs.

    — John B. Murison & Co. and James E. Allen, on or about the 19fck day of August, 1S62, entered into an agreement for an adventure in cotton. Both parties were to advance, in equal proportions, the necessary funds, and to divide equally the profits acquired or losses sustained by the adventure.
    General Butler was then in command of the Department of the Gulf; and the better to secure the protection of the military authorities, his brother, Andrew J. Butler, through the instrumentality of Allen, was admitted an equal sharer in the enterprise.
    To carry on this adventure, John B. Murison & Co. purchased for the concern, schooner Gino, paying for the same $4,000, and, also, Yail’s,'bill of repairs of schooner, amounting to $308 50. They also made large advances.

      W. S. Brown was selected by J. B. Murison & Co., as master of the schooner; and, on the 19th day of August, 1862, he left New Orleans for Berwick’s Bay, where the vessel was lying, to take command. Captain Allen accompanied Brown. They reached Berwick’s Bay on the 21st of the same month. The Gino was then in the hands of Yail, at his shipyard, but, upon an order being presented, she was turned over to Captain Brown. At Berwick’s Bay she was laden with cotton, and, in the latter part of September, she left with one hundred and fifteen bales, arriving at the port of New Orleans on or about the 18th day of October.
    Cargo and vessel were sold at public auction, October 20th, bringing, as per account sales annexed to petition, $35,041 24.
    The entire proceeds of vessel and cargo were retained by defendant Butler, the purchaser, who refused to reimburse plaintiffs their advances, or to pay them their share of the profits.
    This action was thereupon brought for a liquidation and settlement of the aforesaid joint adventure, Butler and Allen both being made parties.
    The defendants filed their answer, simply denying the*facts and allegations> set forth in the petition, and, in this stage of the case, all interest on the part of Allen, disappeared.
    On the 2d day of December, A. D. 1862, a motion was made on the part of the plaintiffs, for the production, by Butler, of his commercial books ; this motion being accompanied with an affidavit, wherein it is averred, “that, in and by the said books, etc., plaintiffs expect to prove the interest of the several partners in the aforesaid adventure in cotton, and the amount of plaintiffs’ disbursements and profits, to the extent set forth in the petition. ”
    Upon this motion, an order was granted by the Court a quo requiring the defendant, A. J. Butler, to bring the books, etc., above referred to, into Court, on Friday, December 5th, 1862, at 10 o’clock, a. m. ; and, on the 4th of December, a certified copy of this order was served on Butler.
    On the 5th day of December, 1862, plaintiffs’ counsel suggested to the Court that the order granted as aforesaid, and made returnable at 10 o’clock, a. m., of that day, was not timely served ; and it was thereupon ordered that the rule be continued until Tuesday, December 9th, at 10 o’clock, A. M.
    Service of the original order and accompanying affidavit, and of the order of continuance, was made on Butler personally, December 5th, 1862.
    Butler refused or neglected to bring into Court, the books and documents asked for.
    Plaintiffs, in their affidavit, swore that they expected to prove, by the •commercial books of Butler, the amount of their disbursements and profits, to the extent set forth in their petition ($12,006 00).
    Code of Practice 140: “ Courts may also, at the request of one of the parties, decree that the other party bring into the Court, the books, papers, and other documents which are in his possession, * * "* * and, on the refusal of the party thus called upon, to comply with the order of the Court, the facts stated and sworn to shall be considered as 'having been confessed, unless satisfactory evidence be shown of the impossibility of producing such documents.”
    Articles 141 and 473, Code of Practice, do authorize the Court, to require the production of papers, in the hands of third persons, or of one of the parties, “ on the day fixed for the trialbut Articles 140 and 475 go further. Article 140 contains no limit; while Article 475 expressly permits the production of books and papers, during “ the course of the suit,” or, in other words, at any stage of the cause. A proper prosecution, or defence of a case, may sometimes require the inspection of books and papers, before the trial commences ; and the ends of justice would oftentimes be defeated by the contracted practice contended for by counsel for appellant.
    2. “That the application for production of books and papers should and must be made according to the Articles of the Code of Practice, by way of petition and citation.”
    No such rule can be found in or out of the Code of Practice.
    3. “ That ten days’ notice are required before the plaintiffs can force a trial of this rule.”
    Neither the Code of Practice, nor the rules of the Court, exact ten days’ notice of an order for the production of books and papers. No rule is necessary, the law authorizing, upon a proper affidavit, an ex parte order, peremptory in its character. All that a party called upon to produce can require, is a reasonable time to bring the documents into Court; and what constitutes a reasonable time, the Court must determine upon the circumstances of each particular case. Two days’ notice is sufficient. GodelY. McLanahan, 2 N. S.436.
    This Court has repeatedly held that a party is not bound to offer in evidence the entire record, but that he may restrict his testimony to that portion of the record relating to the matter being inquired into by the Court. This rule is too well settled now to be disturbed. Succession ■of Stafford, 2 An. 886 ; Price v. Emerson, 14 An. 141.

      Butler’s counsel also complains of the Court á quo, on account of the-charge to the jury, relative to interest. He says the Court charged the-jury, “that plaintiffs were entitled to recover interest-on the amount of' verdict, from the day of judicial demand.” Is not plaintiff, in all cases, entitled to a legal interest from judicial demand, when he claims it in his-petition, and upon the trial recovers a judgment for the principal sum ?
    “In contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on whatever sum shall be found by the judgment to have been due, at the time of the default.” C. C. 1932; Reid v. Duncan, 1 An. 267.
    At all events, the verdict of the jury cannot well be disturbed; because, Interest may have been improperly allowed for a small amount, when it appears from the evidence that the principal found by the jury is almost-one thousand dollars less than plaintiffs were entitled to recover. The Interest, under such circumstances, becomes a trifle, of which the law will take no notice.
    In defendant’s motion for a new trial, he has presented no less than-fourteen grounds for relief :
    1. “Contrary to law and evidence.” This is a mere matter of form, requiring no attention.
    2. “ That the verdict and judgment are not responsive to the issues. ”
    This action was brought for the liquidation of a certain adventure in cotton, and for the recovery of a moneyed judgment against Butler. Allen was made a party to protect his interest, if any he had. By the-verdict and judgment, the adventure was formally liquidated, and defendant Butler condemned to pay the plaintiffs $12,006 02, with five per cent, interest from judicial demand. We are at a loss to conceive how the finding of a jury, and the judgment of the Court a quo, could have been made more responsive to the issues presented and tried in this-cause.
    3. “There is no reference in the verdict and judgment to the liquidation of the alleged partnership.”
    Expressly, there is not, impliedly; there is. The verdict and judgment are always construed with reference to the pleadings ; and, in this case, the jury and the lower Court, must be regarded as having liquidated the partnership, by giving Allen that which he claimed, nothing ; and condemning Butler, in full settlement, to pay the plaintiff the amount allowed. 14 An. 704, 831.
    4. “ The name of Allen, one of the defendants, is not mentioned in the verdict or judgment.”
    Allen proved to be only a nominal party to the suit. Neither John B. Murison & Co. nor Butler prayed for judgment against Allen, nor did he seek relief from them. How, then, could his name have been mentioned, in the verdict or judgment ?

      5. “ The verdict is uncertain, and is not against A. J. Butler, or anyone of defendants.”
    As before argued, the verdict must be construed in reference to th© pleadings ; and, as no judgment was prayed for, except as against Butler, and the case was heard and determined solely upon the question of his liability to plaintiffs, it would be doing violence to the language of the verdict, to suppose that it had reference to any other person than defendant Butler. It is he, and he alone, who is condemned to pay plaintiffs $12,006 02, with interest, being the exact amount of judgment asked for against him in the petition.
    The judgment of the District Judge, before whom the case was tried, and who knew exactly the finding of the jury, puts this point at rest-That is certain which may be made certain.
    6. This ground of new trial is disposed of by our argument in answer to-the 5th.
    7. “No interest could be allowed in the verdict and judgment.”

      We refer your Honors to our views relative to bill of exceptions No. 2.
    8. “ Verdict informal, and not in accordance with the form required by Code of Practice.”
    Verdict on page 38 will speak for itself.
    9. “ The Court erred in permitting plaintiff to read to the jury the order taking the interrogatories propounded to Butler as confessed.”
    Defendant’s counsel evidently refers to the order taking as confessed,, the facts sworn to in the affidavit filed with the motion for the production, of books and papers. The attention of your Honors has been directed to this question, in our notice of bill of exceptions No. 1, and further argument on that point would be a work of supererogation.
    10. “That Allen could not be bound by the interrogatories taken pro confesso.”
    Allen is not before this court. He has abided by the judgment of the Court a qud, and Butler is without the right in law, to fight Allen’» battles. If Allen is satisfied, Butler should be, so far at least as this objection is concerned.
    11. “The Judge erred in his charge to the jury, as to the interest, which they must allow.”
    This is the third time counsel for ax>pellant has raised the question of interest. Once in his bill of exceptions ; twice in his motion for a new trial (7th and 11th). Vide our argument upon bül of exceptions No. 2.
    12. “ That said verdict does not set forth in favor of which plaintiff the verdict was rendered. ”
    The verdict finds in favor of plaintiff; there was but one plaintiff, viz-:. John B. Murison & Co.; therefore, the verdict was in their favor.
    13. “ That Butler could not, under any circumstances, be condemned to pay costs.”
    This Honorable Court, in Pratt v. McHatton et al., 11 A. 260, held that,, in cases like the present, parties to the suit must be condemned to pay costs, pro rata and in the same proportion as them interests in the partnership. The remittitur reduced Butler’s liability for costs to that ■extent.
    14. “ The Court erred in permitting plaintiffs to introduce a portion of .the record in suit of Butler v. John B. Murison & Co.”

    This point already noticed in our answer to bill of exceptions No. 2.
    The points raised in Butler’s bill of excejetions, and in his motion for ■new trial, are all technical, and should not be permitted to interfere with that equal-handed justice, bestowed in an eminent degree, by the verdict >of the jury, and the judgment of the lower Court.

      J. Ad Rozier, for defendants .and appellants.

    — The plaintiffs have prepared a full brief, on their part, and we are thus enabled to present the points which we wish to submit, in a succinct manner. In the motion for a new trial, the grounds relied on are set forth in full.
    1. The suit was tried by a jury. As a portion of the evidence, submitted -at the trial, was the affidavit of Tisdale, one of the plaintiffs. This was based on the fact that the Court had ordered the facts stated in said affidavit to be taken pro confessis, by reason of the non-production of the commercial books of defendant.
    This rule was taken previous to the fixing of the cause for trial. Article 473 C. P. applies here. The Court has a right to order books, papers and documents to be produced “on the day fixed for trial of the cause.”
    It is premature to ask for the production of books before the cause is 'fixed for trial. It is only at the trial that the questions of admissibility .-and effect of books and documents can be gone into. The Article 140 is to be continued, with reference to the Article 473.
    The continuance asked for should have been granted. There was a proffer to bring them into Court the next day. Had the Court exercised ..a sound discretion, it would have granted it, for many reasons. So short a delay could not injure • the plaintiffs, more especially as the cause was not fixed for trial, and it might be of serious detriment to the defendant. No mercy was shown. Less than a ten day’s notice had been given.
    The affidavit was defective; the Article 140 requires that the party demanding their production, should state the facts he intends to establish by the books.
    Tisdale states, in a general way, that he expects to proye by them the allegations contained in the petition and the disbursements. He should specially state the facts minutely, with date, particulars, etc. But to say that the books will show the amount of expenditures, receipts, etc., ■without setting forth any minutiae, is much too vague and indeterminate.
    Without this portion of the evidence submitted to the jury, the plain.•tiffs could not recover.
    2. The answers of Butler to interrogatories on facts and articles, made in •another suit, should have been rejected, for the reason that the whole record was not produced. The other suit was not between the same parties, for Allen was not a party to it. A mutilated record is inadmissible. JDesmakes v. Groves, 8 N. S. 392; Briggs v. Campbell, 19 La. 526, 3 An. 594; Greenleaf Evidence, || 511, 512.
    The authorities quoted do not apply. The answers of the defendant could not be fully understood, unless the whole proceedings were before the Court, including the evidence. They showed no reason to dispense with the rule. They do not allege that the record was voluminous, or was merely to prove an incidental point. These were not insolvent or mortuary proceedings, having no connection with the demand.
    3. The verdict is uncertain, and is not against A. J. Butler, or any of the defendants. Allen being a partner, it was necessary to make him a party to the suit. 10 An. 574, 12 An. 957.
    The amount due by each partner to the concern is a judgment in which the partners are respectively interested.
    4. There were three partners. The issues are not disposed of. There was no reference made to Allen.
    There must be a certainty in such matters.
   Hyman, C. J.

Defendant, Andrew J. Butler, is appellant from a judgment rendered in this suit against him.

He filed many bills of exception to the ruling of the lower Court; only two of which do we deem it necessary to notice.

In one of the bills, he objected to the introduction in evidence of the interrogatories on facts and articles propounded to him, and his answers thereto in a suit instituted by him against plaintiffs styled “ A. J. Butler v. J. B. Murison & Co,” on the ground, that a part of the record in that suit could not be received in evidence separate from the whole record.

The object in offering their interrogatories, and his answers thereto, was to prove his admissions of certain facts.

His statement, when taken as admissions, cannot be decided; but there can be no reason given why the whole record of the suit should be introduced in evidence for the sole purpose óf proving admissions in answers to interrogatories. 2 A. 887, Greenleaf on Evidence, vol. 1 g 512.

In the other bill, he objected to the order of the Court, requiring him to bring certain books and papers into Court on a day different from that fixed for the trial of the suit; and also to its decree, that the facts stated in the oath of the plaintiffs to obtain the order should be taken as confessed by him, defendant, because he had not brought the books and papers, on the day required by the order. ;/

Article 140 of the Code of Practice declares, thát “Courts may at the request of one of the parties decree that the other party bring into Court the books, papers, and other documents which are in his possession, and which are material in the cause, provided the party requesting their production declares in writing, and on oath, what are the facts he intends to establish by such books, papers, or other documents; and on the refusal of the party thus cahed upon to comply with the order of the Court, the facts stated and sworn to shall be considered as having been confessed, until satisfactory evidence be shown of the impossibility of producing such document.

Article 473 of same Code, directs that the day fixed for the trial of a suit shall be the day that the Judge shall fix in his order for the production into Court of books, papers, or other documents that are in possession of parties to a suit.

This Article is restrictive of the first named Article, and the Court was not vested with authority to order, as it did, defendant to produce the books and papers at the motion of plaintiffs on a day different from that which the Court had fixed for the trial of the suit; and, consequently, it had no right to decree that the facts stated in the affidavit of plaintiffs to obtain the order should be taken as confessed, on defendants non-compliance with the order.

W ere we to pronounce definitively on the case in the state in which it is, injustice might be done to the parties.

It is decreed that the judgment of the District Court be avoided and reversed, that plaintiffs pay the costs of appeal, and that the case be remanded for further proceedings according to law.

Howekd, J., recused.


author: Iesley, J.

text:
    Bennett & Lurges v. W. G. Robinson.
    Agreements, legally entered into, have tbe effect of laws on those who have formed them.
    They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith.
    PPEAL from the Sixth District Court of New Orleans,

      Howell, J. G. Roselius, for plaintiffs. G. Schmidt, for defendant and appellant.
   Iesley, J.

On the 24th October, 1860, the plaintiffs, Bennett & Lurges, made the following “proposition:”

“ Charles Pride, Esq. Sir : We propose to furnish the verandah and railing for W. G-. Robinson as per plan, the front gallery railing to be the same pattern as Mr. Felton’s, comer of Canal and Philippe streets, for the sum of fifteen hundred dollars, (say $1,500). Yoursrespectfully, Bennett & Lurges, per J. S. Rhody.”

On the 27th October, 1860, Walter G. Robinson, accepted this proposition in the following terms :

“ I accept the above proposition, the work to be done in the best manner, and the best-materials in such eases to be used; all under the supervision and to the satisfaction of Mr. Ohas, Pride. Signed, Walter G. Robinson.”

On the 29th April, 1863, the present suit was instituted on an account annexed to the plaintiffs’ petition, in which the item of fifteen hundred, dollars, as per contract, is charged, and also an additional charge is made of five hundred and fifty dollars, for extra work.

The whole amount for $2,050; two thousand and fifty dollars is credited with the sum of fifteen hundred dollars.

The extra work is charged as follows :

1862, January 28. Extra work on verandah: “Difference on the side verandah for ten extra pilasters and heavier cornices than specified and shown to us on the plan.............................$400

Alteration on the front balcony, round return instead

of square.......................................... 150-$550 00

The defendant pleaded the general issue, and specially denied that the work for which plaintiffs claim payment was extra work, and that he ever authorized the plaintiff to do such work.

From judgment rendered against defendant, he has appealed.It maybe weE to observe here that, although the item of fifteen hundred doEars, the contract price of the work is charged on the amount at the date of 30th September, 1861, and the extra work on the 28th January, 1862, there is no evidence in the record to show that any work was done ■on the verandah after the month of September, 1861.

AEen HiH, a witness, who testifies on the trial of the case, having examined the proposal for verandah, remarks : “I'cannot say the workmanship is any better than is called for by the proposition. It often happens when the contractors have not the pattern on hand, according to the style or contract, they adopt heavier patterns, as less expensive than making new ones to conform to the plans. He does not, however, know that such was the case in this particular instance.

BaumiEer, another witness, says : “I have never yet seen any one make a verandah exactly as it is drawn on the plan. The plan is never ■drawn to any form of raEing; the builders and contractors fiE in and select the patterns.

It would cost a little more to make the railing.pattern different from the one shown by the plan, if plaintiffs did not at the time have a pattern as the plan caEs for.”

There seems to be some doubt as to the plan which was adopted under the contract; the witness, TcheE, says “plan C was made fourteen days before the contract, but he cannot say if plaintiffs saw it or not. If they ■saw it, then the work is in conformity to that plan. By-the contract, a plan is referred to the front gallery railing to be the same pattern as Mr. Felton’s, corner of Canal and Phillippe streets.”

It was, we think, at least incumbent on the plaintiffs to shov? clearly the plan adopted by the contract, in order to determine how the work actually performed differed from it. The defendant was willing to pay fifteen hundred dollars for the verandah, and that price was accepted ; and the contract was the law made by the parties for their government. (C. C. 1895.)

If the defendant consented to a change, he might well do so; but, no such consent is shown; and he is not bound for any extra work, unless it was done at his request, and with his knowledge and consent.

The whole work was done in September, 1860, and this suit was brought in May, 1863.

In the meantime the plaintiffs had received fifteen hundred dollars, the original price of this verandah, without objection. The additional charge for extra work seems to have been an after-thought. We think the defendant is bound for no more than he agreed to pay, and has already paid.

The judgment of the lower Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided, annulled and reversed.

And it is further ordered, adjudged and decreed, that judgment be, and it is hereby rendered in favor of the defendant, and against the plaintiff, with costs in both Courts.

Howeed, J., recused.


author: Labauve, J.

text:
    Lisida Cure, Tutrix, v. Jean Porte et al.
    "Where a party goes to trial in the Court below, without a hearing on the exceptions, they aro considered as waived, and cannot be heard in this Court.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.
   Labauve, J.

This suit is brought by plaintiff, in her own name, as creditor of the deceased Jacques Gallay, and as natural tutrix of Ms minor children, the legitimate children also of said deceased, to set aside and annul, as simulated, a sale made by the said deceased, Gallay, to one Jean Porte, of a certain dairy, for $1,200 cash, and as containing a disgMsed donation to the concubine of the deceased.

The answer to defendants is, first, an exception to plaintiff’s right and interest to maintain the present suit, and a denial of all the allegations set forth in the petition.

. Without any further notice taken of the exceptions, either by the parties or the Court, the case was taken up for trial on the merits, when a mass of testimony was received; the Court, after hearing the evidence, gave judgment in favor of plaintiff as prayed for, and the defendants took this appeal.

The defendants insist on their exceptions in this Court. We are of opinion that, having gone in the trial of the case on the merits, without requiring a decision upon them in the Court below, the defendants waived and abandoned them. 1 N. S. 130; 4 La. 482; 11 La. 288.

The deceased, Jacques Gallay, had been married to the plaintiff; they had two children and were divorced. He afterwards kept, as his concubine, Henrietta Maldry, one of the defendants; this sale was made on the 20th December, 1859, to the defendant, Jean Porte, for twenty-one cows, two mares, twelve hogs, thirty chickens, one lot of hay, two carts, and one lot of harness, and the whole apparatus for selling milk, for $1,200 cash, and the deceased, Gallay, died next day, 21st December, 1859. The money was handed to the vendor, Gallay, at the time of the sale, and then taken by the defendant, Henrietta; an inventory has been made of lots belonging to the estate, appraised at $800, and three articles, appraised at $5 00, and no money was found. It appears that the things sold remained in the possession of the said Henrietta, whose sister was the wife of Jean Porte, the defendant and purchaser. Dr. Armand Mercier was called to visit the deceased, and, at his second visit, he saw the patient was very low, and getting worse and worse every moment. He then told to a man in the establishment that, if the sick man had any testamentary dispositions to make, he had better make them at once, inasmuch that, in a very short time, it would be too late.

Dr. Mercier further says: The first day I saw the sick man, I cannot say he was in extremis; quite the contrary. When I saw him after J. Cuvillier had executed the act above spoken of, the sick man was still mentis compos, although he died a few hours after.

The plaintiff alleges in her petition and contends that the pretended sale was nothing but a simulated and disguised donation, made to the deceased’s concubine, namely, Henrietta. The case involves none but questions of facts. The Court below, who heard the witnesses, was clearly of opinion that the sale was a simulation and a disguised donation, in favor of Henrietta, the deceased’s concubine.

We have examined the testimony, and we are not prepared to say that our learned brother erred. The surrounding circumstances are sufficiently strong to raise the presumption of a disguised donation to his concubine ; and, for the reasons given in his judgment, we are of opinion that he decided correctly.

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


author: InsDEY, J.

text:
    A. A. Williams v. J. G. Landry.
    Tlie only real deposit is that, where the depositary receives a thing to bo preserved in kind, without the power of using it, and on the condition that he is to restore the identical object.
    APPEAL from the Second District Court of New Orleans,

      Sowell, J. Geo. S. Lacey, for plaintiff and appellant. J. Ad Rozier, for Landry, tutor. Geo. L. Bright, for Camutz, syndic.
   InsDEY, J.

This is an action, depositó directa, instituted by the plaintiff, to recover from the legal tutor of the minor children of the late Amadéo Landry, certain bank and United States Treasury notes, described in his petition, which he avers were received from him by the said Amadéo Landry, on a special deposit, to be kept as such by the said Landry, and to be returned to your petitioner when called for.

Christopher Camutz, the syndic appointed by the creditors of the deceased, was made a party to the suit, and the answer of both defendants was a general denial.

The special deposit is clearly proved by the testimony of°C. Camutz, and by the receipts given by Landry to the plaintiff.

It is shown by the same witness that the notes, which do not appeal' to have been enclosed in a wrapper or labehed, were put into the tin box, or bank box, kept in the Citizens Bank; but, as he says, “ after some time they got mixed up with the money of the house of Brand & Landry, and when it got mixed up it was used as the money of A. Landry in paying out for the house.” He says “ that some of the money in the box is the same as that given by plaintiff Williams;” but he cannot say “ which of the bills sequestered are those deposited by the plaintiff,” because “we were receiving and paying out money from the same box.” He further says, that “Mr. A. Landry kept his own money in the same box;” and further, he says : “When we paid money out of the box, the money therein was used in common and indiscriminately.”

The depositor does not identify the thing reclaimed by him to be identically the same as that which he deposited. See Articles 2934, 3189 C. C. Longbottom’s Executors. Babcock, 9 La. R. 50; and we are, therefore, unable to disturb the judgment of the lower Court, which was one of non-suit.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be' affirmed, and that the costs of appeal be paid by the appellant.

Howeld, J., recused.


author: Howebb, J.

text:
    E. P. Dwight v. Bellocq, Noblom & Co.
    If a suit be instituted against an absentee who has no known agent in the State, or for the administration of whose property no curator has been appointed, the Judge, before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit.
    APPEAL from the Second District Court of New Orleans,

      Bermudez, J. Durant & Hornor, for plaintiff. Fellows & Mills, for defendants.
   Howebb, J.

This is an action to annul a judgment against plaintiff, on ■the grounds, that he was not brought into Court by his property or by personal citation ; that the appointment of a curator ad hoc in said suit was illegal and null, and that there was no sale of the property pledged to defendants by plaintiff. Judgment was rendered in the lower Court, dismissing plaintiff’s suit, and he has appealed.

The record of the proceedings, sought to be annulled, is in evidence before us; and, from an inspection of it, we find that plaintiffs therein, who are defendants here, instituted suit against the defendant (plaintiff 'herein) as an absentee, to enforce their right of pledge upon certain stock of the Good Intent Towboat Company, and had a curator ad hoc appointed to represent him, contradictorily, with whom the proceedings were conducted, and judgment was rendered for the amount of their claim, and the stock, pledged to them to secure it, ordered to be transferred to them, at its appraised value, under the provisions of Article 3132 C. C.

Erom a careful examination of the authorities hpon this subject, we have come to the conclusion that it was a case in which the appointment •.of a curator ad hoc was authorized, and, consequently, the suit maintainable, as Dwight, the defendant, was an absentee, and had property within the jurisdiction of the Court to be affected by the judgment to be rendered. See C. C. 57; C. P. 116; 2 A. 1010; 6 A. 220. There is nothing decided in the case of Dupuy v. Hunt, 2 A. 562, which does not support the validity of such a proceeding.

Whatever errors or irregularities may exist in the said suit of Bellocq, Noblom & Co. v. Dwight, can be corrected, and the rights of parties therein protected, when the case is properly before us on appeal, as we perceive that an appeal has been taken. Plaintiff in this action has shown no grounds to authorize a judgment annulling the judgment in said suit. C. P. 606.

Judgment affirmed, with costs.


text:
    Widow de St. Romes v. City of New Orleans.

      Held: That Article 2229 contemplates the formation and origin of the contract, not its execution. When the obligor fulfills his obligation in doing what he has bound himself to do, he does not contract nor agree, he complies with his obligation; contracting or agreeing is one thing, and the fulfilling of the obligation is another.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. C. lioselius <& Alf. Philips, for plaintiff and appellant. Thomas H.. Hewes, for defendant. .
   Labauve, J.

On the 31st of December, 1861, plaintiff brought this suit to recover from defendant, as the price of land, taken for the opening of a street, in 1856. The defendant pleaded payment. After hearing the evidence, the District Court sustained the plea of payment, proved, by one witness only, and gave judgment accordingly.

The plaintiff appealed.

It is contended in this Court, by appellant’s counsel, that the defendant has faffed to prove the payment by competent evidence, under the •rules contained in Articles 2229 and 2257, C. C. The first Article reads: “All agreements relative to personal property, and all contracts for the payment of money, when the value does not exceed $500, which are not reduced to writing, may be proved by any competent evidence; such contracts or agreements above $500 in value, must be proved by least by one credible witness, and other corroborating circumstances.” We are of opinion that this Article does not apply to this case, and that this law contemplates tne formation and origin of the contract or agreement, and not the execution of it. In this case, the contract had already been entered into when the land was transferred to the city for $800, whereby the city agreed to pay said sum. We believe that the execution of an agreement relative to personal property, and the payment of money under acontract, are not properly agreements or contracts, as contemplated by law; contracting and agreeing requires consent of both parties. When the obligor fulfills his obligation in doing what he has bound himself to do, he does not contract nor agree, he complies with his obligation; contracting or agreeing is one thing, and the fulfilling of the obligation is another. U La. 316.

Upon the whole, we are of opinion that our learned brother decided the case correctly; and, for the reasons assigned by him in his judgment, we are of opinion that the judgment appealed from should be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.

Howell, J., recused.


author: Howeel, J.

text:
    Mrs. A. E. Henderson, Wife of J. Vanwickle, v. R. M. Montgomery.
    Where an institution, like that of slavery, has been abolished since the decision in the lower Court, no judgment can be affirmed; nor can it be reversed. The appeal ex proprio motu must be dismissed.
    Damages as for a frivolous appeal are only awarded when the judgment is confirmed.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. O. W. Helme, for plaintiff. V. F. & J. B. Cotton, for defendant and appellant.
   Howeel, J.

This is an appeal from an order of seizure and sale, obtained in October, 1861, “ commanding the Sheriff of the Parish of Orleans to seize and sell, according to law, and for cash, the slaves ” described in the petition.

Counsel for appellee, in their brief, ask the affirmance of the judgment, as there is no error in the proceedings, and suggest that, if it cannot be affirmed because of the supervening abolition of slavery, this is a clear case for ahowing damages, for the reason that, but for the appeal, the slaves would have been sold, and the debt paid.

This is a reason that can have no weight. The appellee has filed no answer praying for damages; and if she had done so, we could not grant them, because damages are awarded only upon confirming the judgment (C. P. 907); and we cannot affirm the judgment, because there are no slaves in this country, to be sold under an order of any Court. We can not reverse the judgment, because, at its date, it was authorized by the law and evidence.

We consider that there is nothing now to sustain an appeal; that the judgment or order appealed from, being in conflict with the fundamental and paramount law of the land, is an absolute nullity; and that the parties must be left as,they were when it was struck with nullity. We can only, ex proprio motu, dismiss the appeal..

It is therefore ordered, that the appeal herein be dismissed at thecosts of the appellant.


author: Hownnii, ¿T.

text:
    G. Bridgeford & Co. v. J. Morgan Hall et al.
    Corporations must not only b.e authorized by the Legislature, but a name must be given to them; and it is in that name they must sue or be sued, and do all their legal acts, although a slight alteration in this name be not important.
    It is not necessary to record the charter of a corporation in the office of the Secretary of State.
    The Act of March 14th, 1855, organizing corporations, does not come in conflict with the Article 115 of. the Constitution of 1852, and is, therefore, constitutional. That law embraces but one object.
    The right to construct and to own boats necessarily includes the right to employ or navigate them.
    APPEAL from the Third District Court of New Orleans,

      Féllowes, J. P. H. Morgan and L. Madison Day, for defendants.

      Eggleston & Hart, for plaintiffs and appellants.

    — This question is settled by positive law. Acts 1855, p. 183, § 3. This section requires that the charter of incorporation shall contain, first, the name and title of the corporation. And the second section of the same Act declares: That said corporations (those which the first section authorizes to be created) shall have power and authority, first, to have and enjoy succession by their corporate name, etc.; second, to contract, sue, and be sued, in their corporate name; third, to make and use a corporate seal; fourth, to hold and convey, etc., under their corporate name, etc., etc.
    Is, then, the New Orleans and Bayou Sara Mail Company exempted from responsibility, or any of its members, as commercial partners, to third persons dealing with it, or them, by the production of a charter of incorporation, creating a company, of the cognomen of the New Orleans and Bayou Sara Company? Again: another reason in support of the proposition, we assert, may be derived from the text of the third section of the law already quoted, p. 183. It declares that every charter shall contain a description of the purposes for which it was established. Should not the name of the corporation indicate the objects and purposes of the corporation? Ought there not to be some similarity between the name and the objects of the charter, to denote and apprise the public of them? If such was not the design of the law, why does the fourth section of this Act require the registration and publication of the charter?
    To baptize an ideal being, by the name of a Mail Company conveys the meaning to a community, that the transportation of the mail was at least one of the objects of the company; but the name Bayou Sara Company announces no such object or purpose. A mail company, employed by the Government to carry the public mail, could command greater confidence than an ordinary commercial company, without such an employment; hence the necessity of having a fixed title. It must be sued, and contract, says the statute, by the name it takes in its charter. Section 3, C. C. 437.
    The reception of the charter in evidence will not aid the defendants. The allegata and probata do not correspond. The plea is that the New Orleans and Bayou Sara Mail Company, is a corporation duly chartered under the laws of the State ; the proof made is that the New Orleans and Bayou Sara Company is an incorporated institution. It is submitted that this is insufficient. The existence of the corporation alleged and named in the plea, is not proven by the reception in evidence of a charter of a corporation called by a different name and bearing another title. The omission of the word mail in one corporation could not be supplied by the Court any more than could that word be stricken from the name of the other corporation, in order to effect a conformity of titles. By no legal presumption can an identification be established. By no logical deduction from the facts disclosed on the record, can such an identity be shown. The corporation must stand or fall by the title the charter bestows upon it. It cannot be enlarged or diminished, added to, or curtañed in one word to suit the interest or convenience of the corporators. The name is a part of the corporation. C. C. 423, 437.
    Another requirement of the second section of the act of 1855, page 183, and the first Article of the pretended charter, have been omitted. The said section of the statute requires them to make and úse a corporate seal, and so does the Article 1 of the charter. Without the fulfilment of this requisite, the corporation could not be called into existence. It was essential to its creation, and not simply directory; it. was visceral and not formal. There is not one title of proof on the record, that any corporate seal was made, or used by the company, and therefore it was only an unincorporated commercial association. By the first Article of the act, the corporation was to go into operation as soon as the requisites of the law for organization should be fulfilled. This was a condition precedent to its corporate existence. Without the seal, the symbol of its life, it could do no act as a corporation, or invoke the privileges or exemptions of one. Spencer, Field & Go. v. Paul Gooh, et als., Opn. Book, No. 6519. Its rights, duties and obligations, as regards themselves and others, will be tested by the principles and rules of the commercial Codes, and not by those of corporate laws. The laws divest it of its lofty pretensions, which it asserts, and reduces it clown to its veritable nature, and that is a trading company, conveying property and persons for hire on its boats navigating the Mississippi river. Tide above case.
    It is nowhere admitted or proved that the company ever existed as a corporation. In the petitions of the plaintiffs, it is charged that the company is a commercial partnership, and this aUegation is not contradicted by the testimony in the transcript. After administering proof that the association existed, and conveyed persons and property for hire, the burden of proving a charter rested on the defendants. If they' omitted to adduce in evidence the charter, creative of a corporation of the identical appellation of the one alleged in their plea, valid in all its parts, essential to communicate to it legal vitality, they have faded in their proof. The name and seal should be shown, for the seal is requisite to its existence, and to authenticate its acts, as the great seal is requisite to the validity of a commission issued by Gov. Wells, to enable a Judge to execute the functions of his office.
    Another ground presents itself in favor of the pretensions of the plaintiffs. They all resided out of the State of Louisiana at the date of the obligations sued on, and contracted with the regularly constituted officers of the boat upon the faith of the company, which used its boats in navigating that portion of the Mississippi River lying between this city and Baypu Sara, and cannot be presumed to know of the corporative capacity of it. A man is presumed to know the law of his own State, and cannot plead ignorance thereof, but he is not presumed to know the law of s foreign State. There was nothing in the title of this company, or the word of the president, from which he could infer the existence of a corporation, or enunciative of such a fact. There is nothing in proof, from which it can be implied, that they were cognizant of the State law, authorizing the creation of corporations by notarial act. The law was a local one, made for the people of this State, having an infra-territorial operation, and by which a company was created for internal navigation and commerce. We then respectfully submit that the actions of the plaintiffs cannot be defeated, even should the corporate character of the adduced instrument be established, unless the plaintiffs are shown to have had positive knowledge of it. Presumptions, inferences, inductions will not do; and the Court will not be warranted in drawing them. If foreign laws are required to be proved as facts, before your Honors can notice them, how can it be required of men uninitiated in juridical science to know the laws of a State in which they never lived ? How can it be presumed that they had a knowledge that this association, the creature of a local statute, was clothed with the formalities requisite for its complete corporate organization, and had the charter published and recorded ? Would a citizen of Louisiana be presumed to know the local statute law of Kentucky or Indiana, which authorized the creation of corporations, and under which a company similar in character was formed ?
    Other objections exist to the corporate existence of this company. The act of 1848, p. 74, g16, requires a certified copy of the act to be presented to a District Judge, with a petition asking the same to be examined into by him, a copy of which must be served on the District Attorney, which, aif contrary to law, he must file his opposition, when the Court must'hear and determine on the same. This requisite was not complied with, but a simple certificate of the District Attorney approving the act. This can have no effect, for he had no authority under the statute of 1855, to give it. He is allowed to give such a certificate to charters creating scientific, literary, religious and charitable corporations only. Section 1, Rev. Stat. 1856.
    Should the Judge find the act legal, he is then to confirm it, but if not legal, he must amend it, and the notary must certify the amendments, etc.; provided thirty days’ notice be published in the papers, within which time any person can oppose it. A certified copy of the act must, within thirty days after the decree of the Judge, be filed in the office of the Secretary of State. All these steps must be taken before the act becomes a body corporate. See opinion of Supreme Court in Ms:, No. 6519. These provisions of the statutes of 1848, I take to be in force now. The statute o'f 1855 is not repugnant to, nor irreconcileable with them.
    Public policy demands that, when the State delegates its power to individuals to form corporations for certain purposes, through the agency of a notary, that it should reserve to its Courts and attorneys, the right of supervision and correction, in order to protect its citizens against its abuse; and this it has done by prescribing forms for their creation. It never intended to entrust a sovereign prerogative of such transcendant importance, to the unrestrained discretion of a petty notary, and a few avaricious men, who seek solely their own gain. Their object is self-aggrandizement, and not the public good. Hence the necessity of the protective safe-guards and the tutelary vigilance of some high officers of ■.the State, such as a Judge, and attorney, and tire deposit of a copy of the charter with the Secretary of State. In Rome, a corporation was illegal unless created ea vel Senatus consultó auctoritate vel Crnsar eoieret; a decree of the Senate or Constitution of the Emperor. Brown’s Civ. Law, 101, 2; Dig. 47; Lib. 22, 3; ib. 27, tit. 22. In Great Britain, a •charter can be granted by Parliament and the King, through a legislative act, approved by the latter in his legislative capacity, or it may emanate •directly from the King, in virtue of his regal prerogative, or it may be created by prescription, which presupposes a grant lost by the lapse of time. Ang. & Ames on Corp. pp. 52, 3.
    Before the enactment of a general corporation law in this State, the charter was the immediate act of the Legislature. Now the charter is passed before a notary, and must be accompanied and followed by certain specified formalities, without the observance of which, there can be no legal corporation. The substitution of a notary who draws up the •charter, to a committee of the Legislature, who formerly framed it, demands a more prudent exercise of the -power, and a more rigid observance of forms than was necessary for the Legislature to practice. Policy enacts a more punctilious enforcement of them on the part of the associates, in order to guard public interest and protect private individuals from the snares and frauds of men who associate their capital, skill and energies to drive individual enterprise out of competition, and to enjoy,a monopoly of profits. An elegant scholar and profound political philosopher has said, that associated wealth is the dynasty of modern republics. Such bodies cannot expect an indulgent interpretation on the part of Courts.
    Besides, these requisites are intended to protect the people against charters conflicting with the Constitution and the general provisions of the law. For the statute says, that the attorney shall examine the act, and if it be contrary to law, the Judge must amend it, etc. Corporate power, being in derogation of private right, must be strictly construed. Kent, pp. 298-9, ed. 1840.
    We further contend, that the law under which the defendants proceeded to organize this company, is in conflict with the Constitution of 1852, Article 115. The English title of the act (1855 p. 182) is : “An act for the organization of corporations for works of public improvement and utility.” The French title is: “Acte pour 1’ organisation cio corporations, pour l’execution de travaux d’amelioration et d’utilité publique. ” The word public follows utility, and qualifies it, but it is not thus in the English text. It there qualifies both improvement and utility, for it does not change its termination in English, to suit the plural or singular noun, as it does in French. Now the French word, publique, applies only to-utility, and cannot, without a grammatical solecism, be applied to the plural noun improvements. It thence results, that-the works of improvement authorized to be constructed or maintained are- private ones. It is for the execution of such works alone, and those of public utility. We conceive that both texts must have weight, and being made in parimateria should be construed together.
    There are, then, two objects expressed in this title, and the act is void. 5 An. Rep. 92, 94, 95 ; 11 ib. p. 439, 723; 12 ib. 593 ; 13 ib. 483.
    But it is urged that improvements and utility are synonyms, and at' all events, one may be rejected as a pleonasm. The Legislator has thought proper to employ both, and to connect both by the copulative et or and, which indicates that he intended to use them in different senses. He uses them as embracing a multitude, and not unity of objects, and the body of the act included a multiplicity of objects.
    If the lexicon is consulted, we find they differ. Webster, in his Dictionary, verbo improvement ; 2, melioration, which is the best translation of the French amelioration, and at 10 gives the various definitions of it; and of the word -utility, he gives an entirely different meaning. Houses, buildings, etc., do not fall under the definiton of works of utility.
    • In popular parlance they also differ. The common understanding of men is, that more than one object is meant, when one thing and another are spoken of. Two cannot' mean only one. We say, A and B are partners, C and D are brothers, clearly implying a duality of objects.
    But the title of the law is to organize corporations for the execution of works. The Civil Code defines a work, Article 852. We speak of a work of art or science, which is painting, statuary or a book, etc., but by what process of logic or magic, can constructing or maintaining boats, and navigating a stream, be converted into a work. The 3d article of the charter (Bee., p. 20) declares the object to be to maintain boats for the transportatation of persons and freight, for hire. The verb to maintain, is not a work, nor is the transportation of persons, a work, etc. It is only the use, employment and navigation of boats. The use and employment of a boat are different' from maintaining and keeping one. It suggests the idea of immobility or fixedness. At page 25, of Record, they may build or cause to be built, etc.
    To maintain, is the act of keeping; to use a boat, in a trade is an operation of navigation and commerce. And the last clause of the first section of the act forbids any corporation created under it from engaging in mercantile business.
    Again: No part of the act authorizes a corporation to take the name of a mail company, or to organize for the purpose of carrying the mail. The law is unconstitutional, because it embraces multifarious classes of subjeets and objects. Indeed, it is a complete congeries and jumble of provisions. The first section embraces nearly fifty objects for which companies may be incorporated; and from section five to ten, inclusive, various provisions 'are made, which include matters totally different. Is there an unity of objects in the provisions regulating the dissolution, modification, etc., the responsibility of stockholders, restrictions on plank roads, railroads, and the title ? 11 An. p. 722 ; 5 An. p. 95.
    Let us assume, however, for the sake of argument, that the law is constitutional, does it delegate the power asserted and exercised by the defendant ? We think it does not. Individuals are permitted to construct and maintain docks, steamships and other vehicles for the transportation of freight and passengers, and generally all works of public utility and advantage. Now, not to repeat the criticism to which we have already subjected the word “works,” we say that the transportation of passengers, or the business of running boats in trade, are distinct from the operation of keeping them, or building them. We also may affirm, that the employment of a boat in trade is not a work, but an operation of commerce.
    Again : A man may be authorized to maintain or keep boats suitable-for carrying freight, and not be authorized to carry freight. The true meaning of the clause seems to be this: that boats may be built and kept, adapted to, fit for, and suitable for the transportation of persons, etc. And this is the construction placed on the clause by the Legislature of 1861, p. 37. We refer the Court to both texts. And it was competent for the Legislature to interpret their own work. Corporations being the creatures of law, can exercise no powers not expressly conferred, or necessary to execute their express powers. Their powers are to be strictly construed. 2 Kent, p. 298.
    This pretended incorporated company, then, falls under a different name, and has none of the rights and privileges of one. C. C. 327. What, then, is the nature and liabilities, of the industrial combination, whose members are sued ? Indisputably a common commercial partnership. Story on Part., ?¿ 164. And the members are liable in solido. No stipulations, in their articles of partnership, limiting their responsibility, can bind their creditors. Story lo cit.; Bltmdett v. Winson, 3 Simmon’s. Rep., 600 ; Wcdburn v. Nigilby, 1 Mylne & Keen, 5176. See also Spencer, Field & Co. v Paul Cook el al., by our Supreme Court, No. 6519.
    No matter what name the manager of the association takes, whether president, director, administrator, chairman or syndic, the law remains the same. C. C. 2838-9; and Story, \ 164. The assumption of the name and powers of a corporation, was a usurpation on the part of the members, and they cannot invoke the protection and exemptions given to corporators against responsibility for their conduct and acts.
   Hownnii, ¿T.

The defendants are sought to be made liable as commercial partners oh certain drafts, drawn by an agent, on and accepted by the President of the New Orleans and Bayou Sara Mail Company.

The defence is that said company is a private corporation, duly incorporated under the laws of this State; and that defendants, having paid the full amount of their stock, are not liable.

Judgment was rendered in favor of defendants, and plaintiffs appealed.

The first point raised by plaintiffs is, that the charter introduced in evidence is that of the New Orleans and Bayou Sara Company, and not of the New Orleans and Bayou Sara Mail Company, as set out in the pleadings.

If there is any force in this objection, plaintiffs have not made out their case against the defendants; for the proof introduced by themselves is, that the company of which defendants are members is the New Orleans and Bayou Sara Company; that said company is the owner of the boats against which their claims exist, and that the parties and officers, with whom they contracted, are the officers and stockholders of the New Orleans and Bayou Sara Company. We think, however, that this variance in the name is, under the circumstances, unimportant. C. C. 423. There is no doubt about the identity of the company.

The next point raised is, that the provisions of the Act of 1848, as to the certificate of a District Judge, filing a copy of the charter in the office of the Secretary of State, etc., are not observed. This, we think, was not required, as this company was incorporated under the provisions of the Act of 1855, approved March 14th, which Act does not require such formalities. Its requirements seem to have been complied with.

Another point presented is, that said Act of 1855 is in violation of Article 115 of the Constitution of 1852, because two objects are expressed in the title. It is entitled “An Act for the organization of corporations for works of public improvement and utility.” This, in our opinion, is not in conflict with the Constitution. The object of the Act, as expressed in the title, is the organization of corporations of a particular class: those which promote works of public improvement and utility. The fait that those corporations may be organized for various purposes, within the prescribed class, does not change the constitutional character of the general law, which provides the mode in which they are to be organized, and fixes their powers and liabilities. The law embraces but one object, as contemplated by the Constitution.

It is further objected, that said Act does not authorize the establishment of a corporation, such as this, for the carrying of freight and passengers for hire on the Mississippi river. The clause under which this company was organized reads: “to construct and maintain docks, steamships and other vehicles for the transportation of freight and passengers; and generally all works of public utility and advantage. It is to be remarked that the debts, on which these suits are brought, were created in the construction and equipment of the steamboats owned by the company, and that there is no doubt that a company may, under the terms of the Act, be organized for the construction of steamboats. But the defendants contend, and We think with reason, that a company which is authorized to build and maintain steamboats for the transportation of freight and passengers, may also use their boats in that business; that the right to construct and to own boats necessarily includes the right to employ or navigate them, as that is the purpose for which they are built.

We conclude, then, that the defendants are stockholders in a regularly incorporated company, and having, as it is shown, paid up their stock, they cannot be made liable as commercial partners.

It is therefore ordered that the judgments appealed from in these con.solidated cases be affirmed, with costs.


author: Howell, 3.

text:
    Wilson, Executor, v. Mrs. Early et als.
    — On a Rehearing.
    Where ifc is attempted to prove an acknowledgment, made by the'representative of a deceased person, of a debt contracted by said deceased, the proof should be direct and unambiguous. Tho Oode of Practice has prescribed how such proof may be made, and those who do not adopt that mode should not complain if they are required to adduce proof of strict legal certainty.
    APPEAL from the Second District Court of New Orleans,

      Thomas, 3. Buchanan <& Gilmore, for plaintiff. Fellows & Mills, for defendants and appellants.
   Howell, 3.

On the rehearing granted in this case, we are asked to reconsider the point upon which onr former decision principally rested, to wit: that the acknowledgment of the debt, or creditor’s right, had not been made in writing, as required by the 985th Article C. P., and consequently, no interruption of prescription shown. The ease of the Succession of Dubreuil, 12 R. 511, quoted in our first opinion, we are now satisfied, does not establish the doctrine that an acknowledgment by an administrator can be made only in writing, it simply decided that an acknowledgment in such form is an interruption and not a suspension of prescription, as was urged.

It is contended by counsel for plaintiff, that Article 985 C.P. is not exclusive of other modes of acknowledgement by an administrator, and that Mrs. Sullivan, being not only administratrix, but widow in community, and entitled under the law to one-half the property of her husband’s succession, as owner, and to the other" half as usufructuary, her power to make an acknowledgment that will interrupt prescription is not limited by the rules governing administrators ordinarily.

We deem it unnecessary to settle either of these questions at this time, as we think the evidence in this case is insufficient to establish an interruption in any form. The relation of conversations between parties is held to be weak evidence, generally; but here, we have but one witness, who states in a confused and unsatisfactory manner, a conversation between the administratrix of an alleged debtor with his alleged creditor, who is now dead,* and gives only what, he says, was understood at the time. The expressions, as detailed by this witness, are wholly deficient in certainty as to time, nature of the debt, amount due or promise to pay. They do not show an unequivocal acknowledgment of the debt in question. No note was exhibited or described.

When it is attempted to prove an acknowledgment made by the representative of a deceased person, of a debt contracted by said deceased, the proof should be direct and unambiguous. The Code of Practice has prescribed how such proof may be made, and those who do not adopt that mode, should not complain if they are required to adduce proof of strict legal certainty.

The interruption of the prescription pleaded in this case, is not satisfactorily shown.

It is therefore ordered that the decree heretofore rendered by us in this case remain undisturbed.


author: Ilsbey, J.

text:
    Succession of Philbrick.
    Under Article 1057 of the Oode of Practice, the Judge is authorized to order the execution against an administrator, personally, who makes a vague and insufficient; answer to a rule, under Articles 1088, 1056, O. P., taken by creditors whose claims have been fixed by a final judgment upon the administrator’s account.
    APPEAL from the Second District Court of New Orleans,

      Reynolds■ acting J. R. K. Cutler, for plaintiff. Tkos. S. McGay, for defendant and appellant.
   Ilsbey, J.

The question involved in this case can be gathered from the reasons assigned by the Court below for the judgment rendered by it. The facts are correctly stated :

“Nelson having been credited with $843 23 on the account herein presented, on the 25th February, 1861, and now homologated as far as not opposed, takes this rule to coerce payment to him by the administrator of said amount.”

“ It is established that by agreement with Nelson entered, the administrator is to retain out of the said sum, the sum of $450, to meet the judgment to be rendered in the case bearing No. 16,652 of this Court docket, were said judgment adverse to Nelson.”

“It is also established that the administrator is to retain $143 23 to meet the proportion which Nelson would have to contribute, were the opposition o£ the heirs maintained.”

By agreement the administrator is to retain a small amount to meet Nelson’s contribution, were the other oppositions maintained, such contribution being, by consent, fixed at five dollars.

■The various amounts to be thus retained, forming the total sum of $598 23.

Nelson is, therefore, entitled to the difference, say, two hundred and forty-five dollars.

The rule is, therefore, made absolute (and in other respects dismissed), so far as to entitle W. H. Nelson to a writ of fi. fa. against W. G. Mullen, individually, for-the sum of two hundred and forty-five dollars, with costs of rule.

To the rule taken by Nelson, Mullen, the curator, filed an answer, setting up various grounds why the rule should not be made absolute, and the claim of the plaintiff in the rule Nelson reduced to eleven dollars and twenty-five cents ; but it is needless to refer to this defence, as it is not sustained by any evidence in the record.

In this Court Nelson has prayed for an amendment of the judgment, by allowing him and ordering' a writ of fieri facias to issue in his name against W. G-. Mullen for tb e sum of eight hundred and forty-three dollars and twenty-three cents, with legal interest from the 25th of Feb. 1861.

We cannot change the jirdgment of the Court below ; for, on the one hand, Mullen, the curator of the estate of Philbrick, is a mere stakeholder, and has shown no reason why his appeal should be maintained and the judgment reversed; and on the other hand, Nelson is bound by his agreement on record, as there is nothing to prove any change yet, to justify any interference of the Court.

The reservation of the amounts deducted from his claim of $843 23, protects him, should he eventually establish a solid claim to them ; but for the amount presently due to him, the Court did not err in awarding him an execution directly against the individual property of the curator. See Article, 993 and 1057, C. P., and see also the remedy against curator, Stevens v. Stevens, Admr., 13 A. p. 416.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, and that W. G. Mullen (curator of the succession of S. W. Philbrick) individually pay the costs of the present appeal.


author: Ilsley, J.

text:
    Mrs. M. Ryan v. E. W. Sewell.
    The law vests in the Judges of the District Courts great discretion in granting or refusing con* tinuances, and this Court will presume that that discretion, when exercised, is done so legally, and not arbitrarily.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, I. O. Redmond, for plaintiff. Durant & Hornor, for defendant and appellant.
   Ilsley, J.

It is conceded by the appellant in this case, that the only ground for the appeal taken by him is, that he was improperly refused a continuance, to procure the testimony of certain witnesses residing out of the State.

The law vests in the Judges of the District Courts great discretion in granting or refusing continuances, and this Court will presume that that discretion, when exercised, is done so legally, and not arbitrarily.

In this case, we have carefully examined all the progressive steps previous to the rendition of judgment, and we are constrained to say that the defendant has not used that diligence to procure his testimony, which he might have done, notwithstanding the troubled state of the country. He has not, we think, shown by his affidavit, what was necessary and legally required of him, to have the trial of the case postponed.

We see no error in the judgment of the lower Court.

It is therefore ordered, adjudged and decreed, that the judgment of the-Court below be affirmed, with costs, to be paid by the appellant.

Howell, J., recused.


author: Howell, J.

text:
    Citizens Bank v. J. Payne & D. Gilman.
    Where a note was given to a bank for a pre-existing debt; held, that the bank was a bona fideholder for a valuable consideration, but could recover no more than what the evidence showed that debt to be, not the face of the note.
    APPEAL from the District Court of the Parish of Jefferson,

      Gazabat, J. A. Pitot, Jr., for plaintiff. E. Hientand and W F. & J. B. Gallon, for defendants and appellants.
   Howell, J.

The facts of this case are these : The defendant, Gilman,, having' overdrawn his bank account, to the amount of one thousand dollr-u offered the note, in suit, for eleven hundred aud fifty dollars, at nine!.;/ (lays, made by J. Payne, his co-defendant, to his own order, and endorsed by him, to be discounted, and the proceeds to be applied to the pay.-u;nf of his said over-draft. The hank refused to discount the note; and, upon being informed of this fact, ho requested that the note be retained toy the bank, promising, in a few days, to pay the amount of his indebtedness. Just before the maturity of the note, he called for it, and was informed that it had been put in collection, to which he made no objection. The note was duly protested, suit instituted, aud judgment-rendered for one thousand dollars against the defendants in solido, from which they appealed.

Tho maker urges no defence in this Court, but Gilman, the original debtor to the bank, complains that it was bad faith in the bank to keep. and sue on the note, contending that the only remedy was a direct action to recover the original debt.

We think the facts show that the bank held the note as collateral security, and had the legal right to bring suit thereon against all the parties to it, but could recover, upon the evidence, only the amount for which it was held as security.

The bank was a bona fide holder for a valid consideration, as the note was taken as collateral security for a precedent debt. Story on Notes, ¡Í 195. The forbearance to collect the preexisting debts until the maturity of the note, was a sufficient consideration to bind the parties to the note in favor of the bank, as between the latter and the original debtor, Gilman, there was evidently an agreement that the note should be thus held.

Judgment affirmed, with costs.

Labauyeí, J., recused.


author: IiiSiass, J.

text:
    Juan Marcal v. Simon Melliet.
    Though the holder of paper, fairly negotiated, be entitled to recover and to shut out almost every equitable defence, yet, the rule applies only to the case of negotiable paper taken bona fide in the course of business, before it falls due.
    If taken after it is due and payable, the presumption is against the validity of the demand, and the purchaser takes it as a dishonored bill, at Ins peril, subject to every defence against it before it was negotiated.
    An endorsement extending the time for the payment of a note, made after its maturity, does not invest it with its original unrestricted negotiable quality.
    APPEAL from the Second District Court of New Orleans,
    Thomas, J. Field & ShaoJdeford, for plaintiff and appellant. Boselius & A. Philips, for defendant.
   IiiSiass, J.

This case was commenced by executory process, upon a mortgage note executed by the defendant, payable to his own order and endorsed by himself and one Pierre TuviHier, to whom the mortgage was made.

The hypothecated property was seized and advertised, but, previous to the day of sale, the defendant filed an opposition and obtained an injunction, under the 738th Article of the Code of Practice, on the allegation of payment.

The plaintiff then ruled him to show cause why the said injunction should not be dissolved, with damages, on the grounds: 1. That the allegations of the opposition, upon which-the injunction was obtained, were untrue. 2. That the plaintiff became the bona fide holder of the said note for value, before maturity, and that the defendant was endeavoring to perpetrate a fraud upon him.

Upon the trial of the rule, the injunction was perpetuated; and the plaintiff now prosecutes this appeal.

The note, with the endorsements on it, is in the following words :

“$1,500. New Orleans, July 15th, 1861. One year after date, I promise to pay to the order of myself, fifteen hundred dollars, value received, with interest, at the rate of eight per cent, per annum from maturity, until paid.

(Signed) Simon Melliet.

(Paraphed) Nevarietur ce 15 Juillet, 1861.

Octave de Armas, Notary-Public.

Endorsed, Simon Melliet,

Pierre Tuvillier.

The note bore this endorsement:

“A ma demande, le paiement du billet ci-contre est prorogé au quinze juillet, mil huit cent soixante-quatre, époque a laquelle je devrai deux ans d’intéréts a 8 pour cent, que je m’oblige á payer en méme temps que le capital.

Nouvelle-Orléans, le 24 juin 1863.

Sesión Milliet.

It will be observed that the note, upon its face, matured on the 15th July, 1862; and that the defendant, not having then paid it, by an endorsement made on it, on the 24th June, 1863, obtained a prolongation of the time, until the 15th July, 1864.

The grounds upon which the executory proceedings were enjoined, were that, on the 16th September, 1863, the plaintiff in injunction had paid to the holder and mortgagee, the said note, principal and interest, which was then delivered to him; that the said note was afterwards lost or stolen from him; and the said plaintiff in injunction avers that Marcal has no title whatever to the said note, and obtained the possession of i t surreptitiously, without paying for it any consideration.

There is not a particle of doubt that Melliet, the maker of the note, paid and took it up; and that it was subsequently stolen from him, and afterwards came into the possession of Marcal, the plaintiff, whose counsel submits to us, for solution, the following question:

“Does the endorsement, made and signed by the maker of the note, so extend the time of payment or maturity of the said note as to protect the plaintiff, a bona fide purchaser for value, within the extended time, from any equities that the defendant, Melliet, might have against it ?

Without stopping now to enquire into the fact, whether Marcal acquired the note bona fide, we deem the general rule, in regard to the transfer of bills and notes, to be this, that, “though the holder of paper, fairly negotiated, be entitled to recover and to shut out almost every equitable defence, yet, the rule applies only to the case of negotiable paper, taken bona fide, in the course of business, before it falls due.”

“If taken after.it is due and payable, the presumption is against the validity of the demand, and the purchaser takes it as a dishonored bill, at his peril, subject to every defence against it before it was negotiated.” Kent, vol. 3, p. 120, edition 1858.

Does the case presented fall within any required exception to this general rule ? We think not. Indeed, there is no precedent to be found wherein, by the means of such an endorsement,' matured paper was resuscitated for all legal purposes.

When the endorsement on the note sued on was made, long after its maturity, it was the mere restricted negotiable instrument; and the only effect of the endorsement was to arrest judicial proceedings for its collection, until the arrival of the second stipulated period, and to fix a new starting point for prescription. The endorsement did not revive the note so as to invest it with its original unrestricted negotiable quality; and the equitable defence of payment, which the maker of the note had against Tuvillier, he has against Marcal.

This is the deliberate opinion of the Court; but apart from this, we think that the stolen note was not fairly acquired by Marcal; for, when he was interrogated, as to the manner in which his title to it was derived, and in whose presence the transfer was made to Mm, he answered deliberately that he purchased the note from Tuvillier, but that nobody was present .at the time of the transaction; as “ Tuvillier would not do business when any one was present;” and yet, on the trial of the case, he produced a witness, who not only testified that he was present at the transaction, but narrates with great particularity everytMng that occurred thereat. Now, if, as the plaintiff, Marcal, declared, in the presence of these witnesses, no one was present when he purchased the note, then this witness was not present, for had he been, nothing would have been done.

This attempt to foist the testimony of this witness on the Court, in contradiction to Ms own previous assertion, destroys any presumption of ownership in the note, which would have resulted from Ms possession of it; as he claims no other title to it, than that derived from Tuvillier.

The judgment of the lower Court must be affirmed. It is therefore ordered, adjudged and decreed that the judgment of the lower Court be affirmed ; the costs of appeal to be paid by the appellant. 1 .

Hyman, C. J., recused.


text:
    J. H. Atwater & Co. v. Colton & Simonds.
    Where a party defendant denies that he was a member of the partnership which is snod, it is incumbent on the plaintiff to prove it.
    Courts may, at the request of one of the parties, decree that the other party bring into Court, the boohs, papers, and other documents which are in his possession, and which are material in the cause, provided the party requesting their production declares, in writing and on oath, what are the facts he intends to establish by such books, papers, or other documents; and, on the refusal of the party thus called upon to comply with the order of the Court, the facts stated and sworn to shall be considered as having been confessed, unless satisfactory evidence be shown of the impossibility of producing such documents.
    APPEAL from the Sixth District Court of New .Orleans,

      Howell, J. Durant & Hornor, for plaintiffs. B. Egan, for defendants and appellants.
   Ilslet, J.

This is an action instituted by the plaintiffs against the-defendants, C. Colton and J. Simonds, in solido, to recover from them the amount of a bill of goods, sold and delivered to the commercial firm of Colton & Baldwin, composed of the said defendants.

Judgment was rendered in the Court below against both defendants in solido, and Simonds has taken a suspensive appeal therefrom.

The defendant Simonds pleaded a general denial, and specially that he was never a member of the firm of Colton & Baldwin.

It was, therefore, incumbent on the plaintiffs to prove all the facts necessary to a recovery, to wit: that Simonds was a partner in the commercial firm of Colton & Baldwin, and also the correctness of the-account sued on.

We think there is sufficient evidence in the Record to prove that Simonds was a partner in the firm of Colton & Baldwin; which said firm was substituted, for Simonds’ convenience, for that of Colton & Simonds, the name of Baldwin, a workman in the establishment, without any pecuniary means, being used instead of that of Simonds, “who remained in the possession of the establishment and controlled it as before. ”

Baldwin subsequently disappeared, and afterwards Simpnds forcibly ejected Colton from the store, remaining himself in the possession of the premises.

To prove the correctness of the account, Simonds, on a proper legal showing of the plaintiffs, was ordered to produce his commercial books and papers in Court, which he failed to do, declaring that they were not in his possession, and that he was not a partner in the firm of Colton & Baldwin.

Simonds having failed to produce the books and papers, etc., the Court sustained the motion of the plaintiffs, that the facts stated and sworn to be considered as confessed, in accordance with Article 140, C. P., and we think correctly.

The declaration of Simonds, that he was not a partner, made in the manner stated, is not legal evidence of that fact.

It is unnecessary to examine the bills oí exception, as the evidence objected to is not necessary to sustain the judgment of the Court.

The proof in the present case differs from that in the suit of Bridgeford v. Simonds, Colton & Baldwin, No. 584, decided a short time since.

We think that, in this case, there is no error in the jadgment of the Court below.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be affirmed; the costs of appeal to be paid by the appellant.

HowEnn, J., recused.


text:
    Archibald Montgomery v. The Citizens Mutual Insurance Company.
    When a cause is called, the party who has not been able to procure the necessary evidence shall be' entitled to a continuance, on proving either that he has not sufficient time to get his proof, or has been prevented from doing so by some unforeseen cause.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant & Hornor, for plaintiff. L. Gastera, for defendant and appellant.
   Hyman, C. J.

Plaintiff sued defendant on a promissory note payable to the order of Martin Gordon, Jr.

Defendant denied that plaintiff was the owner of the note; alleged that Gordon was still owner thereof; that Gordon owed defendant for his note, and that, by agreement with him, the note that defendant held was to extinguish, by compensation to the extent of its amount, the note sued on by plaintiff.

Citation was served on the 3d of January, 1863, and on the 12th of said month defendant procured commissions to take the testimony of the witness Adolphe Schruber, in the Paarish of St. Martin and in the Parish of St. Landry. The commissions by order of the : Court were to be returned within thirty days after the opening of regular communications between New Orleans and those parishes.

On the 9th of March, 1863, the Court ordered "the case to be tried on the 30th of same month. On that last named day defendant asked for a continuance to obtain the testimony of said witness, averring, under oath of its president, that due diligence had been used by it; that it had, as soon as opportunity presented, forwarded the commissions, which had not been returned, and that it could not state when the commissions would be returned.

The record satisfies us that there was n© want of diligence on the part of defendant to procure the evidence of the witness, and that it had not time sufficient to get its proof.

Events over which defendant had no control had suspended intercourse between this city and the above named parishes; and defendant, at the time it applied for continuance, could not with certainty state when this intercourse would be restored, and consequently could not aver when the commisions would be returned with the evidence of the witness; yet it was apparent that intercourse would be restored within a few months.

With this condition of things plaintiff pressed the trial, shut out defendant’s evidence, and obtained his judgment.

Defendant ax>pealed.

A continuance and delay of the trial for a few months could have caused but little injury to either party; but irreparable injury might have been done to defendant by the trial which excluded the evidence on which it relied.

No neglect can be imptited to defendant in its efforts to procure the evidence. It had not, under the circumstances, sufficient time to get the evidence, and there was a moral certainty that in a short time the evidence could be obtained.

We are of oxúnion that a continuance should have been granted. See Code of Practice, Article 464; 8 An. 468.

The judgment of the District Court is reversed. The case is remanded. Plaintiff is to pay the costs of appeal.

Howell, J., recused.


text:
    Patrick Irwin, Executor, v. Michael Gernon.
    The plea of payment requires proof of the fact from the defendant. The onus prohandi lies upon him.
    APPEAL from the Sixth District Court of New Orleans,

      Howell. J. Bueliancm & Gilmore, for plaintiff. G. Roselius and Thomas H. Howard, for defendant and appellant.
   Jones, J.

Patrick Irwin, as testamentary executor of. the last will and testament of Richard Barret, deceased, instituted this suit, fpr five thousand and forty-seven dollars and fifty cents, against Michael Gernon, on account of various notes which he, Barret, had placed in said Gernon’s possession to collect for him, to which demand Gernon first plead a general denial, then a qualified suplemental answer, and finally, on the trial of the case, the plea of payment settlement. After a careful examination of the evidence and the pleadings, the lower Court rendered a judgment in favor of the plaintiff against the defendant for four thousand one hundred and ninety-five dollars and twenty-five cents, with legal interest, upon the grounds particularly enumerated in an elaborate written opinion. Defendant being dissatisfied with the judgment, applied for a new trial, which the Court refused for written reasons, and thereupon the defendant appealed. The defendant having plead payment, the burden of proof was upon him to sustain this plea. We have minutely examined the testimony on behalf of defendant, and are satisfied therefrom that defendant has not sustained his plea of payment to any greater amount than that allowed in the judgment of the lower Court. But the plaintiff, in his answer to the appeal, asked the Court to increase the amount of the judgment to the full amount claimed in his petition, less the sum of four hundred and fifty dollars, j>aid after the institution of this suit.

We think this prayer cannot be granted, as ample justice has been done the plaintiff by the judgment appealed from.

For these reasons, the judgment of the lower Court is affirmed, with costs.