author: Merrick, C. J. Spoefoed, J.,

text:
    Pontchartrain Railroad Company v. The New Orleans and Carrollton Bailroad Company and Lake Pontchartrain Railway Company.
    The Pontchartrain Railroad Company was incorporated in 1880, with the exclusive privilege of “ constructing and using a railroad, or railway, leading to and from the city of New Orleans, its faubourgs, and the incorporated limits thereof, to and from kalie Pontchartrain,” etc. In 1S88 the New Orleans and Carrollton Railroad Company was incorporated for the construction of a railroad from New Orleans to Carrollton. In 1840 the Jefferson and Lake Pontchartrain Railway Company was incorporated for the construction of a railroad from Carrollton to Lake Pontchartrain. The two last named companies entered into an arrangement by which “ through” trains were run from New Orleans to the Lake. The first named company (the plaintiffs) sued out an injunction against the defendants, and asked for damages, because of the alleged violation of the exclusive privilege granted to plaintiffs. By the Co'wri: A railroad from New Orleans direct to the terminus of the Jefferson and Lake Pontchartrain Railroad at the Lake would have been an infringement of the privileges granted to the plaintiffs by the act of incorporation. Does the connection of the two points, by means of the union of two roads by a circuitous route, change the character of the Act. Here we think a distinction must he taken. If the object of the two companies was, in good faith, to accommodate different lines of travel and trade, and not to engross the same travel and trade which would naturally pass over plaintiff’s road, it would doubtless be lawful, although occasionally a person might use first one road and then the other to arrive at the lake or city. For it is not so much the motives of the traveling public with which we have to do as it is the motives of the two companies. But if the union of the two roads was made for the purpose of transporting freight or passengers to and from the prohibited points, it is difficult to see on what ground the Act can be maintained. The Legislature could no more grant this power to two or more companies than it could grant the same to one.
    Neither of the Acts incorporating defendants is unconstitutional in itself, because their roads were not within the prohibited points. But the moment they, by their union, connect these points by railroad, their act becomes unconstitutional (so far as it concerns the direct travel between the two points) as much so as would have been a single Act of incorporation and railroad for the like • purpose.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Eustis and Goold & Stansbury, for plaintiffs. Benjamin, Bradford & Finney, for defendants and appellants.
   Merrick, C. J.

The Pontchartrain Railroad Company was incorporated by an Act of the Legislature, approved January 30th, 1830. It was, therefore, one of the earliest of the railroad experiments, which have since contributed so largely to develop the resources and increase (he wealth of the United States.

The fifth section of the Act is in these words, viz:

“Be it further enacted, that the said corporation is hereby invested with all the rights and powers necessary for the construction and repair of a railroad from the city of New Orleans to some suitable point on Lake Pontchartrain, or bayou or other stream leading to said lake, not exceeding ninety feet wide, .with as many sets of tracks as said company may deem proper; and they and their agents may enter upon, use and excavate any land which may be wanted for the site of said road, or the erection of warehouses or other works necessary or useful to said road, or for any other purpose necessary or useful in the construction or repair of said road or its works. And it is stipulated and agreed, that for and during twenty-five years from the passage of this Act the said corporation shall have the exclusive right and privilege of constructing and using a railroad or railway leading to and from the city of New Orleans, its faubourgs, and the incorporated limits thereof, tó and from the Lake Pontchartrain ; and during that period no other body corporate, or person or persons, shall make any similar road for the transportation of property between said city, its faubourgs, and the incorporated limits thereof, and said lake, or be invested with any similar privileges. And it shall and may be lawful for the said corporation to continue and extend the said railroad to any point within the said city of New Orleans, with the like rights and privileges ; provided always, that said railroad be so constructed and made as not to prevent the use of or travelling in the streets; and provided also, that the said railroad shall not pass through any of the streets of said city without the consent of the Mayor, Aldermen and inhabitants of the city of New Orleans being first had and obtained. And if the said railroad shall not be commenced in two years from the passage of this Act, and shall not be finished in five years therefrom, then this Act shall be null and void.”

The phraseology of this section is somewhat remarkable. The Legislature assumes at once the character of a contracting party as well as a lawgiver. It says: “ And it is stipulated and agreed (not enacted) that for and during the space of twenty-five years from the passage of this Act said corporation shall have the exclusive right and privilege of constructing and using a railroad or railway leading to and from the city of New Orleans, its faubourgs, and the incorporated limits thereof, to and from Lake Pontehartrain.”

In 1838 the New Orleans and Carrollton Railroad Company was incorporated with “all the powers necessary for the construction and repair of a railroad from some point in the suburb St. Mary, through Nayades street to its termination in Llvaudais, and from thence to a street named First street, on a plan made of the plantation formerly belonging to Barthelmy Maearty, and which plan is deposited in the office of Ch'eeribury R. Stringer, and thence through said street to the river Mississippi.” Hence it is seen that the termini of this road were one within the city, the other on the Mississippi river at Carrollton. No one pretends that this road in any manner interfered with the exclusive franchise previously granted to the plaintiff.

In 1840 the Legislature incorporated the Jefferson and Lake Pontehartrain Railway Company, with power to construct a railroad from Carrollton to some suitable point on Lake Pontehartrain, or bayou or other stream leading to the lake, with as many sets of tracks as might be deemed proper by the company.

It must be conceded that this second road connecting the Mississippi river and the town of Carrollton with the lake is no violation of the charter of the plaintiffs. It had its termination on the river, some miles above New Orleans, and the termination on the lake was, we suppose, about three miles from that of the plaintiffs’ road.

The Jefferson and Lake Pontehartrain Railway was not completed until the 14th day of April, 1853, when the company commenced running the cars. The stock of this company is principally owned by the New Orleans and Carrollton Railroad Company, and the road was built with money furnished by the latter. Indeed the several directors of the Jefferson and Lake Pontehartrain Railway Company are also directors of the New Orleans and Carrollton Railroad Company, and the principal officers of the two companies, viz: the President, Secretary and Chief Engineer, are the same; the other engineers and subordinate officers being different in the two companies, and the books of account and pay-rolls of the two companies are kept distinct.

We attach, however, no importance to the fact that the companies have the same officers and directors, and sustain the relationship which they do to each other. We shall treat them, for the purpose of this controversy, as two distinct bodies.

On the 29th day of March, 1853, the two companies entered into an arrangement, by which they contracted with each other for the privilege of running • “through” trains over both railroads, and regulating the amount to be paid by each company therefor.

On the 29th of June, 1853, the wharf at the lake-end of the Jefferson and Lake Pontehartrain Railroad having been completed, a tariff of charges for the transportation of passengers and freight to and from Tivoli Circle, in the city of New Orleans, and Lake Pontehartrain, was adopted for both companies and published. Notice was likewise given of the manner by which a connection was formed with the coast steamers, Creole and California, for the transportation of passengers across the lake and to and from the coast, and the public were informed that the boats would leave on the arrival of the trains one hour in advance of the usual hours of the Pontehartrain Railroad, from which point the same boat^would leave as heretofore.

present action was instituted on the 4th of June, 1853, to restrain the defendants from transporting passengers and property to and from the lake, and to recover five thousand dollars for each month until the termination of this suit.

The judgment of the lower court decreed the injunction prayed for, and awarded to the plaintiff $12,000 damages.

The defendants appealed.

The difficulty of the case lies in the fact that the New Orleans and Carrollton Railroad Company and the Jefferson and Lake Pontchartrain Railroad Company, as separately incorporated, have the right generally to transport freight and passengers to and from their respective termini, and such transportation cannot be considered an infringement of the franchises of the plaintiffs. And the question arises, if the New Orleans and Carrollton Railroad Company have the right to transport freight and passengers to and from Carrollton and New Orleans, and if the Jefferson and Lake Pontchartrain Railway Company have the like right to transport freight and passengers to and from Carrollton and the lake, why may not the two combine, and forward freight and passengers by one continuous line of railroad directly from the city to the lake, or from the lake to the city ?

The answer to this question decides the case.

Tivoli Circle is within the limits of New Orleans, as incorporated prior to 1830. A railroad from New Orleans direct to the termination of the Jefferson and Lake Pontchartrain Railroad on the lake would have been an infringement of the privileges granted to the plaintiff by the Act of incorporation, according to the decisions in the cases of Pontchartrain Railroad Company v. The Lafayette and Pontchartrain Railroad Company, 10 An.; Same v. Ranney, 15 L. R., 404. Does the connection of the two points by means of the union of two roads, by a circuitous route, change the character of the Act?

Here, we think, a distinction must be taken. If the object of the two companies was in good faith to accommodate different lines of travel and trade, and not to engross the same travel and trade which would naturally pass over plaintiffs’ road, the union of the roads would doubtless be lawful, although occasionally a person might use first one road and then the other to arrive at the lake or city. Eor it is not so much the motives of the traveling public with which we have to do as it is the motives of the two companies.

But if the union of the two roads was made for the purpose of transporting freight or passengers to and from the prohibited points, it is difficult to see on what ground the Act can be maintained. The Legislature could no more grant this power to two or more companies than it could grant the same to one. If the Legislature could not have chartered a company, with power to build a railroad from Tivoli Circle, in New Orleans, by way of Carrollton, to the present terminus of defendants’ road on the lake, for the purpose of transporting freight and passengers from those two points, it must follow that the two companies cannot lawfully unite for that purpose, for the privileges delegated cannot be greater than the right of the party delegating. If the Legislature had not the power to grant, the defendants cannot take the privileges claimed for them.

A careful examination of the second section of the Act of incorporation of the Pontchartrain Railroad Company, we think, can leave no reasonable doubt that the Legislature could not have granted this privilege claimed by defendants to one or more companies. The Legislature had not only expressly covenanted and agreed affirmatively that the Pontchartrain Railroad Company should have the exclusive right and privilege to construct and use a railroad to and from the city of New Orleans, its faubourgs, and the incorporated limits thereof, to and from the Lake Pontchartrain, for the period of twenty-five years, but also it assured the company that no other body corporate, person or persons, should make any similar road for the transportation of passengers or property to or from the city, its faubourgs, and the incorporated limits thereof, and said lake, or be invested with any similar privileges.

This language is free from all ambiguity, and placed it out of the power of the Legislature, during the twenty-five years, directly or indirectly to grant to any other company or persons the right of transporting persons and property from the city to the lake by railroad.

The reason why the two Acts of incorporation of the defendants are not unconstitutional in themselves is because neither of them had within its object the two prohibited points of termination. The moment they, by their union, connect those points by railroad their act becomes unconstitutional, as much so (so far as it concerns the direct travel between the two points) as would have been a single Act of incorporation and railroad for the like purpose.

It is no answer to this reasoning to say that the Pontchartrain Railroad Company could not have built their road over the same line. For, without stopping to inquire whether such a deviation from the direct line would or would not be within the spirit of plaintiffs’ charter, it is a sufficient reply to say that the Legislature could not do indirectly what it could' not do directly. It could not grant a similar franchise to another company by adding thereto some other pi'iviloge or imposing some further burden, which it had withheld from the Pontchartrain Railroad Company. Subterfuge and evasion do not become the character of a sovereign State, and it is not to be presumed for a moment that the Legislature intended to allow the union of the two railroads to the prejudice of the privileges conferred upon the Pontchartrain Railroad Company. This, we think, answers the principal objections of defendants.

But it is further objected that “the inhabitants of Jefferson have a right to go on the Carrollton road, and thence to the lake by railroad, because the charter of the Pontchartrain Railroad Company does not by its terms affect travel from Jefferson to the lake, but only from New Orleans to the lake. The court cannot, therefore, order a break without infringing on the right of the people of that parish.”

All this may be conceded. If the New Orleans and Carrollton Railroail Company should choose to establish their depot and run their cars from a point in the parish of Jefferson to the lake, for the purpose of accommodating in good faith the trade of that particular locality, and not the city of New Orleans, there would be no question of their right so to do. The fallacy of the argument consists in the attempt to couple that which is unlawful with that which is la wful, and while the defendants had the right to run a continuous train for the accommodation of the parish of Jefferson and the lake, it had not the like right between the city of New Orleans and the same point.

It is said “the true test of the question is whether the plaintiffs and defendants are serving the public for the same line of travel. If the line of travel ¡s entirely different, there is no interference, although passengers and freight may thereby obtain a choice of routes.” It is further said that “ when a person desires to go to the lake shore of the parish of Jefferson, the plaintiffs cannot carry him there, do not offer to do so, nor can they be compelled to do so by their charter. Their privileges and duties are co-extensive. They cannot prevent a traveler from going there on defendants’ line, at the same time that they refuse to take him there themselves.”

When the Legislature granted to the Pontehartrain Railroad Company its charter, it knew that its terminations would be a single point upon the lake and a like point in the city of New Orleans, and that when these points were once connected by the contemplated railroad, that the company would be unable to transport passengers to any other points upon the lake or in the city. With this knowledge, the Legislature provided that no other body corporate, or person or persons, should establish a similar road between the city and the lake. Whilst, therefore, the Pontehartrain Railroad Company is bound to carry freight and passengers from a single point in the city to a like point on the lake, it has the right to prevent any other company from carrying freight and passengers between other points on the lake and the city by the express provisions of its charter.

This view which we have taken of the case is supported by the decision in the case of The Boston and Lowell Railroad Corporation v. The Salem, and Lowell Railroad Company et al., decided by the Supreme Court of Massachusetts.

The next question to be considered is that of damages.

On the one side it is contended that there is no sufficient evidence in the record to justify the conclusion of the lower court; on the other it is said that the plaintiffs have notified the defendants that they will claim of them the sum of five thousand dollars damages per month, so long as they violate their rights ; that the violation of plaintiffs’ rights by the defendant is voluntary, and that so long as they choose to continue the wrong, they ought to pay the estimate the plaintiffs have put upon their own property. The reasoning of the plaintiffs may be applicable in cases of express contracts, but it does not apply to quasi offences or torts. The rule of damages is the amount of injury sustained by the plaintiffs according to the usual standard of estimation, and not according to the arbitrary estimate placed upon it by the plaintiffs. Yarborough v. Nettles, 7 An. 117.

Were this the only controversy between the parties, we might be disposed to suffer the liberal award of damages by the lower court to stand as a vindication of property. But as we are informed that other suits are pending for other portions of the time, and as this suit is not the only one for the so called vindication of property, we think that we ought to ascertain as nearly as practicable the real injury the plaintiffs have suffered by the wrongful acts of the defendants, particularly as the exclusive privilege granted the Pontehartrain Railroad Company seems to have expired by limitation on the 26th day of January, 18B5, and an estimate of damages in the several suits, from the commencement of the running of the cars until the expiration of the exclusive privilege, will make good to the plaintiffs all losses it has sustained. The twenty.five years of the charter having expired, there is no future to be protected. This suit covers the period from the commencement of the running of the cars, April 14th, 1853, to the rendition of judgment, July 1st, 1854.

An accurate estimate of the damages is impossible. It was in the power of the defendants alone to have furnished us with more satisfactory proof. The defendants, having invaded the rights of the plaintiffs, and failing to furnish us with any statement of the travel through 'between the city and the lake, must be content with the conclusions to which we are able to arrive from such evidence as has been produced.

We find that the profit of the Pontchartrain Railroad Company increased notwithstanding the violation of their franchise by the defendants. We find further that notwithstanding all of this alleged diverted travel and trade must have passed over the Jefferson and Pontchartrain Railroad, that the road did not pay expenses.

The .gross receipts of this last mentioned railroad for ten months were $17,888 45. We do not find that any tariff of charges through was adopted until 29 th of June, 1853, about one year previous to the judgment in this case. The first publication in the Picayune, in evidence, bears the same date. We will assume that the previous period was equal to one entire month afterwards. This would make the total gross receipts during thirteen full months $22,291 54. But the thickly-settled country above the city, the town of Carrollton, and some travel from the Mississippi river, were also accommodated. In the absence of any other data, we must divide the sum to ascertain the travel through from New Orleans. We have $11,145 77 gross receipts. But, as already said, we find the profits of the Pontchartrain Company did not fall off in the mean time; we conclude, therefore, that the novelty and convenience of the road induced many persons to travel upon it who would not have traversed the city to travel upon the Pontchartrain Railroad.

If we again divide the above sum by two, we have $5572 88, which we may suppose was diverted from the Pontchartrain R’ailroad Company. The Jefferson and Pontchartrain Railroad Company received only two-fifths of the proceeds of this trade and travel: the whole sum therefore received by the two companies was $13,982 20. But it must have cost the Pontchartrain Railroad Company something to transport the passengers and freight in addition to the cost of running their locomotive: we will suppose one-third. We have an approximate loss of $9,288 sustained by the plaintiffs. A judgment for nine thousand dollars, we think, will do justice as near as practicable between these parties.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended so as to read “ nine thousand dollars as damages,” instead of “ twelve thousand dollars as damages,'” and that the judgment so. amended be affirmed, the plaintiffs to pay the cost of the appeal.

Spoefoed, J.,

dissenting. I concur in the affirmance of the decree so far as it maintains the injunction, but I am unable to agree in the estimate of damages.

Under the circumstances, I do not think anything beyond the actual damages should be awarded. The plaintiffs should have produced more complete data to enable us to fix these damages with a reasonable degree of certainty.. In the absence of such data, I am unwilling to resort to conjecture, and therefore think the damages should be nominal.

Rehearing refused.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    William Pratt v. James A. McHatton et al.
    Action for the liquidation of partnership affairs.
    It is well settled that partnership books are evidence for and against the partners, in controversies arising among themselves, but only the books, and entries contained in them, at the time of the dissolution of the partnership. The entries made after this time by one of the partners, who has possession and care of the books, cannot bind the other partners, unless he has also had the books in his possession, examined the entries, and, when he had the means of ascertaining their correctness, made no objection, or in some similar manner acquiesced in or approved of the books.
    By the contract of partnership, two of the partners (defendants) were required to transact the outdoor business, and superintend the sales. Held : They could not be expected to attend at remote places, nor await the slow process of sales at the principal points where goods were in store ipr the purpose of being offered for sale; and they are entitled to a credit for commissions for sales actually paid by them in good faith.
    In order to hold one of the partners liable for losses on the sales of goods, it should be shown that he violated the obligations imposed upon him by the contract of partnership; and that the partners objected to his acts as soon as advised of them, or within a reasonable time after the entries in regard to such sales had been made upon the books of the firm. It is not enough to await the result of the sales to ascertain whether the same have been fortunate, or unfortunate, before objecting.
    Defendants, who assumed the collection of outstanding debts, assumed, as negoUorum gestores, the obligation of using due diligence.
    The appointment of a liquidator for the settlement of partnership affairs rests, in a great measure, in the sound discretion of the court.
    Accounts due a partnership in liquidation should not be sold, unless the trouble, expense and delay of collecting, will render them less productive to the firm than their immediate sale; or unless they are desperate, or of little value, and the delay in regard to their collection, prevents a final decree of partition within a reasonable time. These and like reasons, render a sale proper.
    Charges for interest made since the dissolution of the pai tnership, must be confined to such sums • as the respective partners had promised to bring into the partnership, or for funds withdrawn by them, and in the absence of any agreement in writing, the rate must be five per cent.
    The lessees of the penitentiary have no right to make any contract for the use, or hire of the negro convicts, except in the employments required by law, and any items for such services made by one of the partners, must be disallowed.
    A several judgment against one, in favor of the other individual partners, should not be rendered where there are available partnership assets by which the amounts received by the partners can he readily equalized
    Code 2244, 2245, 2994, 9829.
    APPEAL from the District Court, Sixth District, parish of East Baton Rouge, Robertson, J.

      Dunn, and J. M. & J. B. Elam, for plaintiff and appellant. Laoy, Avery, Davidson, and McHatton, for defendants.
   Merrick, C. J.

This suit is brought for the liquidation of a partnership, which continued from 1844, until October, 1849. The object of the partnership is explained in the original agreement, which is as follows, viz:

“This agreement, made and entered into this 22d day of June, 1844, between James A- McHatton, Wm. Pratt, Olías. 6. McHatton, and George W. Ward, all of the State of Kentucky, except George W. Ward, who is of the State of Louisiana, witnesseth,

That the said James A. McHatton and William Pratt have, by contract, dated the —— day of-, 1844, leased of the State of Louisiana, through the Governor thereof, the Penitentiary of said State, for the term of five years, commencing at the date of said contract, to which reference is had, and made part of the agreement.

Now, the lessess, MeEatton & Pratt, agree to form an equal partnership in said lease with O. G. MeEatton and G. W. Ward, the four to own one-fourth interest, such to be equally bound for all the requisitions of said lease, and for all the debts that may be contracted by said institution during the continuance of the lease, and to divide all profits equally. That the said parties are to furnish the sum of five thousand dollars as capital stock to carry on the business of the institution, or so much thereof as may be deemed necessary by a majority of them.

The said William Pratt and O. G. MeEatton, agree to reside permanently at Baton Rouge, and devote their whole time to the superintendence of the business of said penitentiary, without charges for their services.

The purchase of materials and supplies are to be made by James A. Me-Eatton and George W. Ward, and also all out of door business is to be transacted by them. They are also to make all settlements of the concern with the State or individuals. The said George W. Ward is to superintend the sales of all articles manufactured in the penitentiary, the sales to be made for cash, or with the guarantee of some responsible commission house, if on time, which superintendence he is to give free of charge. The articles to be manufactured to be divided by a majority of the partners; no piece goods to be cut, but all sales are to be made by the piece, or to make the clause more explicit, no retail sales are to be made. This agreement to take effect so soon as the aforesaid lease is signed by the Governor of the State of Louisiana, James A. MeEatton and William Pratt; this 22d day of June, 1844, in presence of the subscribing trustees.

(Signed,) Geobge W. Ward,

Jas. A. McHatton,

0. G. McHatton,

Wm. Pkatt.”

The defendants, James A. MeEatton, Charles G. MeEatton, and George W. Ward, in their answer, allege an indebtedness on the part of the plaintiff to the firm, and pray that they be considered plaintiffs in reconvention, and the debts due by the firm, be paid out of the assets; that the residue on hand, and the accounts, be sold at public auction, and that the defendants be paid a sum to render the amount received by them equal to that received by plaintiff; that proceeds of the sale be divided between the plaintiff and respondents; that plaintiff be condemned to pay the costs, and for general relief.

The defendants annex to their answer, a statement of the respective accounts of the parties with the firm, showing that the plaintiff had received $14,531 12; James MeEatton, $13,518 90; Charles G. MeEatton, 13,-419 87; George W. Ward, $13,593 90.

They also annex a list of the outstanding liabilities, and the accounts and claims due the firm, together with a balance sheet, showing the state of the affairs of the firm to the 21st day of May, 1852.

Auditors were appointed, who stated an account between the parties, taken from the books alone. The Judge of the District Court ordered the accounts due the firm to be sold, by a receiver, at public auction, to pay the debts and be distributed among the partners, and gave an individual judgment against Pratt, in favor of each of the defendants, viz: in favor of James A. MeEat-ton, for $300 21$; in favor of Charles G. MeEatton, for $220 27$; and in favor of George W. Ward, for $208 36J; and decreed the costs to be equally borne by all the parties.

The style of the firm was MeEatton, Pratt & Go. The amount of the business transacted was very large; counsel state over four millions of dollars.

After the dissolution of the firm by its limitation, the defendants alone became the lessees of the penitentiary, and conducted their business under the name and style of MeEatton, Ward & Go.

They received the assets and books of MeEatton, Pratt & Go, and made collections and disbursements on account of that firm. They appear to have made use of the books of the old firm for the purpose of making the entries in relation to that business. The balance sheet annexed to defendants’ answer, shows the receipt of $89,619 88, and the disbursement of the same, with the exception of a balance of $494 09.

The plaintiff and appellant has raised numerous objections to the proceedings and judgment of the lower court, and we will proceed to notice them as briefly as possible.

It is objected, that the Judge of the lower court erred in admitting in evidence against the plaintiff, the books of the firm, so far as it respects the entries made in them by MeEatton, Ward & Go., after the dissolution of the partnership of MeEatton, Pratt & Go.

The testimony shows, that after the dissolution, the entries were made in the books by MeEatton, Ward & Go., or by persons in their employ. It is not shown that a single entry was made by Pratt, or that he had any control over the entries, or even that he ever examined the books in reference to those entries made by defendants. A witness, Eubbs, the clerk of the State, says, however, that Pratt had access to the books as much as defendants, while he had them in possession, but that he, the witness, never had any of the receipts or vouchers in his possession. It was Eubbs1 duty to keep the books of the State, distinct from those of MeEatton, Ward & Go., and what control he had over the books of MeEatton, Pratt & Go., after the dissolution of the partnership, is not shown. It is well settled, that partnership books are evidence for and against the partners in controversies arising among themselves, but only the books and the entries contained in them at the time of the dissolution of partnership. The entries made after this time by one of the partners, who has possession and care of the books, cannot bind the other partner, unless he has also had the book in his possession, examined the entries, and, where he had the means of ascertaining their correctness, made no objection, or in some similar manner, acquiesced in or approved the books; otherwise, they must be held, as to these entries, the books of the individual partners who made them. Such books, the Civil Code expressly excludes from being used as evidence in their favor. C. C. 2244 and 2245.

We think, therefore, the District Judge erred in allowing the entries in these books, made after the dissolution of the partnership, to be used as evidence against the plaintiff, and in relieving the defendants from the necessity of producing the obligations taken up by them, which are the best evidence of the payment and extinguishment of the debts and of the disbursements for which they claim credit. The Auditor’s report, which is but a mere compilation from the entries in these books, and which was made without any examination of the vouchers, for the same reason conclude nothing, and must be disregarded. This view of the case will require it to be remanded, in order that the defendants may have an opportunity of offering legal testimony in support of their claims. Various questions are presented by the record, which we are requested by counsel to pass upon, in order that the case may be finally disposed of in the lower court, without another appeal. We do so, under the hope that it will enable the parties to close a controversy which probably has grown out of the multiplicity of the transactions involved, rather than any want of fidelity on the part of the partners.

The following points are made by plaintiff’s counsel, which we will endeavor to dispose of in the order presented, viz:

1. It is maintained by the plaintiff that the contract made by the parties, is a law unto themselves, and therefore James A. McHatton and George W.

Ward, had no authority to employ any persons either to buy or sell materials or goods, at the expense of the firm.

2. That George W. Ward had no authority to sell any goods otherwise than for cash, or if on credit, guaranteed, and that he is responsible for all losses that may accrue on account of any sales made otherwise than as stipulated in the contract.

3. That the defendants, having assumed the collections of the outstanding debts and disbursement of the same, were bound to use diligence, and if they have neglected to do so, by a resort to legal process, they are responsible to the plaintiff for any loss he may have sustained.

4. That the Judge a quo erred in ordering a liquidator to be appointed, and a sale at auction of the assets. That rights and credits are not to be sold, unless proved desperate; and then only for the benefit of those in fault.

5. That between the years 1844 and 1849, there was no law that authorized interest to be charged on open accounts or “ yearly balances,” and since the law has been changed, interest can only be charged at five per cent.

6. That convict negroes, being sentenced to hard labor, no action can be maintained by a lessee or other person to recover hire for the use of them. The private use or hire of convicts cannot become legally the subject of a contract either express or implied, and lessees were’bound, as officers of the State, to carry out the object of the law, and inflict punishment at hard labor, and will not be heard to the contrary.

I. Under the first point, it is urged, that items amounting to $10,510 95, charged as commissions paid to sundry persons for sales of manufactured articles, ought not to be charged to the firm, because George W. Ward, by the contract of copartnership, was bound to superintend the sales of the manufactured goods. In regard to this objection, we are of the opinion, that the items for commissions upon sales which were paid and entered on the books of the firm during the existence of the partnership, as a charge against the firm generally, must be held by the court to be binding upon the respective partners. It was the construction which the parties placed upon the contract themselves. See Story on Partnership, sec. 191.

By the contract of co-partnership it was made the duty of James A. McHat-ton and George W. Ward to transact the out-door business and superintend the sales. If they gave their personal attention to this, and attended to their duties faithfully, it was all that was required or could be expected. It was not in the power of George W. Ward to attend the sales of manufactured articles in remote places, nor await the slow process of sales at the principal points -where goods were in store for the purpose of being offered for sale. We see no objection, therefore, to the allowance of such charges for commission as were regularly entered upon the books during the partnership, unless such entries are shown to be made in error or fraud. If James A. MeJJatton or George W. Ward neglected the duties imposed upon them by their agreement, besides being alleged, the negligence and consequent damage ought to be proved by those making the complaint.

II. In order to hold George W. Ward liable for losses on the sales of mer • chandize, it should be shown that he violated the obligations imposed upon him by the contract of partnership, and that the parties objected to his acts as soon as advised of them, or within a reasonable time after the entries in regard to such sales had been made upon the books of the firm. It is not enough to await the result of the sales, and ascertain whether the same have been fortunate or unfortunate before objecting.

III. It is clear that the defendants have assumed as negotiorem gestores, in regard to the books and accounts, the obligation of using due diligence to collect the debts due to the firm. C. C. 2274.

IV. There is no error in appointing a liquidator or receiver. It is one of those matters which must be left in a great measure to the sound discretion of the court. Whether the accounts should be sold depends upon their character. They should not be sold unless it should be shown that the trouble and expense and delay of collecting would render them less productive to the firm than their immediate sale, or that they are desperate or of little value, and that the delay in regard to their collection will prevent a final decree of partition within a reasonable period. These and the like reasons may be sufficient to justify the sale of rights and credits, but as a general rule they should not be sold except upon cause shown.

V. Between the years 1844 and 1849 the law did not allow, as a general rule, interest upon accounts except after a party had been put in default. The exception was where one person stood in the relation of agent or mandatary for another, (0. 0. 2994,) or where a partner promised to bring into the partnership a sum of money, of had taken out the funds of the partnership. 0. 0. 2829. We think the entries regularly made on the books of the partnership during its continuance are prima faeie binding upon the partners, though the rate of interest should have been calculated at eight per cent, instead of five, as allowed by the Code. The entry so made in the books of the firm is presumed to have been made with the assent and approbation of all the partners, and it is as binding upon each partner as though made by himself. Jordan v. White, 4 N. S. 339.

The charges of interest, however, made since the dissolution of the partnership, must be confined to such sums as the respective partners had promised to bring into the concern, or funds withdrawn by them, and in absence of any other agreement in writing to the contrary, the rate must be five per cent.

VI. The partners had no right to make any contract for the use or hire of the negro convicts, except in the employments required by law. Any contract, either express or implied, for any other use, is against the public policy, and cannot be enforced, and all items for such services should be struck from the account. The appellees complain that there was error in the judgment of the lower court in decreeing the costs to be borne by the partners equally. 'The action of partition is one in which all are plaintiffs and all are defendants, and where the decree ordei's the distribution or division of anything between the partners, we think the costs may be decreed against all.

We will also remark that a several judgment against one, in favor of the other individual partners, should not be rendered where there are available partnership assets, by which the amounts received by the partners can be readily equalized.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court for a new trial, with instructions to the court not'to suffer the defendants to offer in evidence the entries made in the partnership books since the dissolution of the partnership, unless an authorization or ratification of the entries by the plaintiff be shown, and to reject the report of the auditors, and in other respects to proceed in conformity to the views herein expressed, and in conformity to law. And it is further ordered, that the appellees pay the costs of appeal.


author: Voorhies, J.

text:
    Jane C. Dunn and Husband v. Margaret E. Woodward et al.
    Where the husband joins the wife in the suit, and the petition alleges that the wife is herein authorized and assisted by her husband, it is a sufficient authorization for the wife to sue.
    A suit to set aside a conveyance from the husband to the wife, on the ground of fraud and simulation, is not a revocatory action, but in effect an action en deelctA'ation de simulaMon.
    Acknowledgments of the receipt of money by the husband from the wife are not evidence against third persons not parties to them, and the judgment rendered against the husband in favor of the wife can have no more effect against third persons than the acknowledgments themselves.
    The prescription established by Article 19S9 of the Code does not apply to simulated sales.
    APPEAL from the District Court, Seventh District, Parish of West Feliciana, Duffel, X, presiding.

      Brewer & Oollins, for plaintiffs. RoseUus and Ratliff, for defendants and appellants.
   Voorhies, J.

The object of this suit is to have a sale from Abisha Woodward to his wife, Margaret E. Woodward, declared to be simulated and fraudulent.

The facts pertinent to the matter in hand are in substance as follows. On the 15th of March, 1841, Abisha Woodward purchased certain slaves at the judicial sale of the succession of John M. Dunn, deceased, for the price of $7395, payable one-half on the 15th of March, 1842, and the other half on the 15th of March, 1843, with ten per cent, per annum interest thereon from maturity until paid; and to secure the payment thereof, besides the special mortgage, vendor’s privilege reserved on the property, Franklin Hardesty became the surety of the purchaser.

On the 4th of January, 1844, Franklin Ha/i'desty, as curator of John M. Dunn’s succession, sued out an order of seizure and sale against Abisha Wood-warrd, under which the property thus mortgaged was seized and advertised to be sold by .the Sheriff. An injunction sued out by Woodward, arresting the sale, was perpetuated in regard to some of the slaves seized, but dissolved as to the others specially mortgaged to the seizing creditor. The sale was effected by the Sheriff on the 6th of July, 1844. As the proceeds thereof proved to be insufficient to satisfy the amount of the deht, interest and costs, the plaintiff, as sole heir of John M. Dunn, whose succession she had accepted purely and simply, instituted an action against Abisha Woodward, as principal, and Fanhlin Ha/rdesty, as surety, for the recovery of the balance due on said debt, in which action Margaret B. Woodward was also joined as a defendant with her husband, for the purpose of setting aside an alleged fraudulent and simulated sale which her said husband had made to her to shelter all his property from the pursuit of his creditors.

Both Woodwmd and his wife excepted to the jurisdiction of the court, on the ground that they were domiciliated in another parish, in which they claimed the right of being sued. During the pendency of that issue, Abisha Woodward died and FmnJclin Hardesty was appointed administrator of his succession. The plaintiff filed a supplemental petition, setting- forth the fact, and praying that the suit should be.revived against Hardesty, as administrator. The latter filed an answer, waiving the plea to the jurisdiction 'of the court, and declaring that he could not deny the facts alleged in the plaintiffs’ petition, and further, that the cause should be transferred to the Probate Court of West Feliciana, where the succession of Abisha Woodwa/rd, deceased, was opened-The exception of Margaret B. Wood-ward was sustained. On the 30th of March, 1852, there was a judgment rendered in favor of the plaintiff against Abisha Woodward's succession for tire sum of $5010 wdth ten per cent, interest per annum on one-half thereof from the 15th of March, 1842, and on the other half from the 15th of March, 1843, subject to a credit of $2262 61f paid on the 6th of July, 1844. The present suit was instituted against the administrator of Woodward's succession and Margaret B. Woodward on the 'Tth of February, 1854.

The plaintiff, after setting forth the judgment thus obtained by her, and the origin of her claim, in her petition, alleges that Abisha Woodward, pretending to be indebted to his wife in the sum of $22,000 for her dotal and extra-dotal rights, conveyed to her in payment thereof, by notarial act dated the 12th of December, 1843, a certain tract of land and fifty-six slaves therein named; that said sale is a mere simulation, fraudulently contrived for the purpose of screening Woodward's property from the pursuit of his creditors; that in order to carry out effectually his scheme, his wife instituted a fictitious suit against him for a separation of property, in which she claimed as her paraphernal property, not included in the conveyance to her, land and slaves then in his possession, and through the connivance of the parties that a judgment was accordingly rendered in her favor; and that said pretended transfer, and all the proceedings thereon based, are null and void and of no effect against the plaintiff and the other creditors of Abisha Woodward, because the deceased was not indebted to her in any sum whatever, the said transfer, which embraced the whole of his property, being simulated and wholly without any consideration. The petition concludes with a prayer that the land and slaves be decreed to belong to the successsion of Abisha Woodward, deceased, and that said pretended act of transfer, dated the 12th of December, 1843, and said judgment of separation of property be decreed absolutely null and void and of no effect, and that so much of said property be sold as may be sufficient to pay said debt, interest and costs.

The general issue and the prescription of one, three, five and ten years in bar of the action are the only pleas set up by the defendant, Margaret E. Woodward. The other defendant, the administrator, admits the truth of the allegations set forth in the plaintiffs’ petition, and prays that the land and slaves be decreed to belong to the succession of Abisha Woodward, deceased, and as such delivered over to him to be administered upon according to law.

Upon these pleadings and the evidence the cause was submitted to a jury, who returned a verdict in favor of the plaintiff, declaring the sale from Abisha Woodward to his wife, Margaret E. Woodward, to be null and void. From a judgment rendered thereon, the defendant, after a fruitless attempt to obtain a new trial, has taken this appeal.

The appellants’ counsel, in his brief, relies on several points for the reversal of the judgment.

I. It is objected that the plaintiff, Jane G. Dunn, being a married woman, could not institute this suit without being authorized to do so, either by her husband or by the court; and as she was authorized by neither, the whole proceedings are null and void, for want of capacity of the plaintiff to stand in judgment. This is an absolute nullity, and avoids all the proceedings had in the case.

The petition begins as follows: “ The petition of Jane 0. Dunn, wife of James M. Gallent, of the State of Mississippi, herein aided, assisted and joined by her said husband,” and concludes thus: “ Wherefore, petitioners bring suit and pray that said Margaret E. Woodward, of said parish of West Feliciana, and Franklin Hardesty, as administrator of the succession of Abisha Woodward, deceased, be cited to answer this petition,” etc.

We think this is sufficient. In none of the authorities quoted, in which the objection prevailed, does it appear that the husband had joined the wife either in the petition or the answer. In the cases in which the wife alleged that she was authorized and assisted by her husband, in the absence of proof of such authority, it was held to be fatal. But here it is different: the husband havingjoined his wife, must be considered as one of the plaintiffs. In case of Lacour v. Delamarre, 2 An. 140, the court say: “We have held, that where the husband and wife appear in the same suit as plaintiffs or defendants, or the husband appears in court as authorizing his wife, the authority of the husband to the wife’s appearance necessarily follows.”

II. On the merits, it is objected that the judgment is erroneous, inasmuch as the property thus conveyed to the defendant is decreed to belong to the succession of her husband. The revocatory action being brought by an individual creditor, the contract can only be set aside in so far only as such creditor is concerned.

Were this a revocatory action, the proposition assumed would doubtless be correct. But is it so? We think not. The alleged transfer is attacked as a pretended and simulated agreement, devised for the purpose of screening the property of the deceased from the pursuit of his creditors. It is in effect an action en declaration de simulation. 1 An. 132, 262; 3 An. 627; 4 An. 36; 5 An. 400; see the case of Lucas v. D’Armond, ante 168.

Under the issue, it is clear that the appellant was bound to prove the genuineness of her claim against her husband for her dotal and extra-dotal rights, which constituted the alleged consideration of the transfer to her. The judgment of separation could have no more effect againt the creditors of the husband than the pretended agreement itself. 8 N. S. 460; 4 L. R. 420. In the absence of any such proof on her part, we take it to be clear, that the pretended conveyance to her must be regarded as a mere simulation.

III. The effect of the appellants’judgment against the deceased, which forms the subject of the third ground of objection, has already been considered. Our law views with jealousy all acknowledgments from the husband to the wife of the receipt of money. Such acknowledgments make no evidence against persons not parties to them, unless supported by other circumstances. The judgment rendered between them should not have more force than the confession of the husband in a public act, because that confession would authorize the court to render judgment against him at the suit of the wife. In the case of DeBlanc v. DeBlanc, 4 L. R. 421, it was held that the allegations of fraud and collusion placed the burden of proof on the plaintiff to show the truth and genuineness of the foundation on which she obtained the judgment against her husband.

IV. The prescription established by Article 1989 of the Civil Code does not apply to simulated sales. 4 An. 36; 3 An, 628.

It is, therefore, ordered and decreed, that the judgment of the court below be affirmed, with costs.

      Merrick, O. J., having been of counsel, took no part in this decision.


author: Lea, J.

text:
    A. Leland & Co. and Jno. Simmons & Co. v. A. Rose—Buckingham & Graham et al., Opponents.
    An insolvent cannot be subjected to more than one trial for fraud, under the Act of 1840, for the same fraudulent acts. One conviction, or acquittal, is conclusive upon all the creditors •svho were parties to the insolvent proceedings.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Selme, for plaintiffs and appellants. Sehmidt and T. J. Semmes, for defendant.
   Lea, J.

Proceedings for a forced surrender having been instituted against the defendant, under the provisions of the Act of 1840, by two judgment creditors, the defendant, under the order of the court, filed, on the 2d March, 1854, a schedule of his affairs, and what purported to be a surrender of his property to his creditors.

To this schedule and statement an opposition was filed on the 6th March, 1854, by the original plaintiffs, making- allegations of fraud, and praying that the charges of fraud might be inquired into, and that the defendant might be deprived of the benefit of the insolvent laws, etc.

On the 1st day of May, 1854, other creditors (the’appellants herein) intervened in the insolvent proceedings, and opposed the homologation thereof, for the reasons set forth in the opposition of the original complaining creditors, which grounds of opposition they adopt. They pray that the insolvent be declared guilty of fraud, that he be deprived of the benefit of the insolvent laws, and be otherwise dealt with as the law directs. The original plaintiffs were represented by Messrs. Smiley & Perrin as counsel, the intervenors by (?. W. Selme, Esq. On the 21st and 22d days of May, 1854, a trial was had before a jury, upon the charges of fraud then pending, the counsel for the original plaintiffs, together with the counsel for the intervenors, appearing “ for plaintiffs ” against the defendant. Upon these proceedings a verdict and judgment were rendered, which have become final by an affirmance upon an appeal taken by the original plaintiffs.

On the 25th May, 1855, the defendant filed a peremptory exception to further proceedings on the part of the intervenors, on the ground that he could not be tried twice upon the same charges of fraud, based upon the same alleged fraudulent acts, and on the further ground that, by the judgment before referred to, he had been deprived of the benefit of the insolvent laws, and that consequently no insolvent proceedings were pending to which an opposition could be made. The fifth section of the Act of 1840, under and by virtue of which the proceedings for a forced surrender in this case were commenced and have been conducted, provides that the proceedings to be had in such cases shall be conducted in conformity with the laws then in force relative to the voluntary surrender of property, which laws contemplate proceedings to be had against the insolvent in concurso.

It was never intended that the insolvent should be subjected to more than one trial for fraud, based upon the same alleged fraudulent acts. One acquittal or one conviction is, we think, conclusive upon all the creditors who were parties to the insolvent proceedings. In the case at bar the opponents were not only duly recognized as creditors on the schedule of the insolvent, but they joined in and adopted the charges of fraud filed b j leland & Go. and Simmons & Go., and their counsel was present and took part in the trial had upon these charges. We think that, under the state of facts which the case presents, the court was right in maintaining a peremptory exception to any further proceedings against the defendant on behalf of the appellants.

Judgment affirmed.


author: Spofpobd, J.

text:
    Anderson & Conn v. A. G. Folger, Master of Steamer Illinois Belle, and Owners.
    No protest is necessary where the drawer of the bill has no funds in the hands of the drawee, and made no provision for its payment, nor had any right to expect that a bill for the amount would be accepted.
    There is no law which makes an election day a d/ies non jtwi&ieus.

    Where the answer shows that the bill was drawn to release the boat from a seizure, it is too late to object that the captain of the steamboat was without authority to draw the bill.
    The fifth section of the Aot of 1855, “ relative to evidence,” does not empower the courts of this State to take judicial notice of the statutes of other States. It provides, “ that the published statutes and digests of other States, shall be received in the courts of this State as prima fade evidence of the statute laws of the States from which they purport to emanate.”
    A PPEAL from the Eifth District Court of New Orleans, Augustin, J.

      Larue & WldttaJcer, for plaintiffs. Mott & Fraser, for defendants and appellants.
   Spofpobd, J.

The defendants have appealed from a judgment rendered against them as the drawers of a protested bill of exchange, drawn at St. Louis, Missouri, upon a house in Memphis, Tennessee.

1. They complain that they had no notice of protest. None was necessary, as it is proved that they had not funds to meet the bill in the hands of the drawee, and made no provision for its payment, and it is not shown that they had any right to expect that a bill for such an amount would be accepted.

2. They complain that the cause was tried on an election day in the absence of their counsel. The cause was duly called for trial, and we have been referred to no law declaring an election day a dies non juridicus.

3. It is urged, that judgment was erroneously rendered against the owners of the steamer Illinois Belle, because no proof was administered to show that Captain Folger, who drew the bill for their account, was empowered so to do, or that the proceeds enured to the benefit of the boat. We regard this de-fence as inconsistent with the answer which was filed for all the defendants jointly, and which shows that the bill was drawn for the purpose of releasing the boat from a seizure.

4. Finally, it is contended, that damages were allowed at the rate of ton per cent, and interest at the rate of six per cent, without any legal proof that such damages and interest were due by the law of Missouri. The plaintiffs reply, by referring us to a certain edition of the revised statutes of Missouri, an extract from which, they say, was read to the court a qua. The record, certified to contain a transcript of all the documents filed and testimony adduced, does not show that this law was offered in evidence. We do not understand the fifth section of the Act of March 14th, 1858, “ relative to evidence” (Acts 1855, p. 209), as empowering the courts of this State to take judicial notice of the statutes of other States. The section referred to declares, “ that the published statutes and digests of other States, shall be received in the courts of this State as prima facie evidence of the statute laws of the States from which they purport to emanate.” The object of this law was to dispense with the necessity of procuring written exemplification of the statutes of our sister States.

In the absence of any minute in the record, showing that the statute of Missouri was offered in evidence, and of any agreement of counsel relative thereto, we do not feel at liberty to resort to a digest of the local laws of Missouri to determine the question of interest and damages.

We will rather presume their law to accord with our own, which, in analogous cases, allows five per cent, as damages, the interest to be computed upon the amount of the principal and damages from the date of protest.

It is therefore ordered, that the judgment of the District Court be reversed; and it is now ordered, adjudged and decreed, that the plaintiffs recover of the defendants in solido, the sum of twenty-three hundred and ten dollars, with five per cent, interest thereon, from the 22d of December, 1854, until paid, and the costs of suit in the District Court, with privilege upon the property attached. It is further ordered and decreed, that the costs of this appeal be paid by the plaintiffs and appellees.


author: Buchanan, J.

text:
    G. & S. H. Langstaff v. William Lees & Co.
    A plea of “ failure of consido ration.” in a suit on a promissory note, without specification of the consideration, or of the time, place or circumstance of its failure, is too vague to authorize the admission of proof upon it.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Wolfe & Singleton, for plaintiffs. J. Q. & A. Fellows, for defendants and appellants.
   Buchanan, J.

The plaintiffs are holders of two notes of defendants, made payable to their own order, and by themselves endorsed in blank, which were protested at maturity for non-payment.

The defendants, by their answer, admitted their signatures, and pleaded “ failure of consideration,” without any specification, either of the consideration of these notes, or of the time, place or circumstances of its failure.

We agree with the District Court, that this plea is too vague to authorize the admission of proof upon it. Pargoud v. Guise, 6 La. 77.

The appellees have asked for damages, as for a frivolous appeal. But we have doubts whether this is a case for the application of such a penalty. We must infer from the bill of exceptions, that some sort of evidence was offered by defendants, which was ruled out, solely by reason of the insufficiency of the plea.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Adeline W. Trimble v. Francis Brichta.
    The Sixth District Court of New Orleans has jurisdiction of a rule against a surety on an appeal bond, the principal in which is dead, and his succession under administration in the Second District Oourt.
    If the judgment debtor be dead, the creditor may proceed against the surety in the appeal bond, without previously issuing execution against the judgment debtor.

      k PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Stansbury, for plaintiff. A. Hennen, for appellant.
   Spofford, J.

The plaintiff had judgment against Francis Brichta, the original defendant, in the Sixth District Court of New Orleans.

Brichta took a suspensive appeal from that judgment to this court, and gave the present appellant, Osborne, as surety on his appeal bond.

Pending the appeal, Brichta died. His succession was opened in the Second District Court of New Orleans, and the curator was made a party to the suit pending on appeal in this court. Upon a final hearing, the judgment of the Sixth District Court was affirmed.

The plaintiff then took a rule in the Sixth District Court, on Osborne, surety on the suspensive appeal bond, to show cause why he should not be condemned to pay the plaintiff’s judgments against Brichta.

Osborne answered that Brichta was dead; that his succession was under administration in the Second District Court; and that the plaintiff was bound to wait until it should judicially appear by the result of the administration, that the judgment could not be satisfied out of that estate, before pursuing the surety.

The appeal bond, signed by the surety in the usual form, was offered in evidence.

The case was submitted upon the admission of parties, that the succession of Briahta was under administration in the Second District Court of New Orleans, and that there are no funds in the hands of the executor for the payment of the judgment herein.”

Upon a hearing, the rule was made absolute against the surety, and he has appealed.

The point is made here, that the Sixth District Court was wholly without jurisdiction to try the rule against the surety. The argument is founded upon the 3d section of the Act “ relative to successions,” approved March 15th, 1855, (Sess. Acts, p. 399,) which declares, “ that the court in which the succession was opened, shall have exclusive cognizance of all suits against sureties on bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators, and executors generally; and no such suit shall be instituted against the security, until the necessary steps have been taken to enforce payment against the principal.”

Without attempting, at this time, to construe the meaning of the above section further, it suffices to observe, that this was not a bond of appeal which the Second District Court was bound to receive, or -did receive or exact, from the appellant; the case then does not come within the operation of the law cited.

The other position taken by the appellant is, that the rule against the surety was premature, because the “ necessary steps” had not been taken to enforce payment against the principal.

The law upon this subject has not been changed by the Acts of 1855. The last clause in sec. 3d of the Act of March 15 th, 1855, hereinbefore cited, is but a reenactment, totidem verbis, of the latter part of sec. 6 of the Act of March ICth, 1842. Sess. Acts, p. 303. Notwithstanding that law, it was held, after mature consideration and a thorough review of the cases, in Alley v. Hawthorne, 1 An. 123, that “ if the creditor cannot take out his execution on the judgment, by reason of a change in the condition of the debtor’s estate, which prevents its being reached by that process, the law requires from him no act in order to secure his immediate recourse against the surety on an appeal bond.”

The doctrine of that case has been followed since, and applied to securities upon other bonds named in the Act of March 16, 1842, § 6. Wells v. Roach; Wogan v. Thompson; Bourgeat v. A. Lewis, 10 An.

There has been no change in our legislation, which destroys or impairs the force of the reasoning upon which the judgment in Alley v. Hawthorne was based.

It would have been an idle thing for the plaintiff to take out execution against the original defendant, Briahta, after his death. No step was therefore “ necessary” to be taken against the principal.

Judgment affirmed.


text:
    Brand & Adams v. R. A. Wilkinson and Robert Johnson, Sheriff.
    Damages against Sheriff for failure to return Ji. fa. within the legal delay.
    The alleged insolvency of defendant in execution, will not excuse the Sheriff from calling on plaintiff to point out property, as required by 0. P. 726, 727.
    APPEAL from the District Court, Second District, parish of Plaquemines, Rousseau, J.

      Re Ohoiseul, for plaintiffs. Penrose, for Johnson, appellant.
   Spofford, J.

The plaintiffs obtained a judgment in the Second Judicial District Court, for the parish of Plaquemines, against the defendant, Willcin-son, for $805 66 and interest, with privilege on a certain plantation and on some personal property sequestered in the suit. This judgment was signed on the 9th of January, 1855.

On the 23d of January, 1855, a fieri faeias issued upon this judgment, and was placed in the hands of the appellant, Robert Johnson, Sheriff of Plaque-mines. He made the following return, which, it will be observed, has no defí-nate date:

“ Received, parish of Plaquemines, January 24, 1855, and on the 25th of the same month and year, proceeded to the service of the same. I hereby certify that Robert A. Wilkinson, the within named defendant, hath no goods or chattels, lands or tenements, to my knowledge, within the parish, by which I could cause to be made the debt and costs within specified, or any part thereof, as by the within writ commanded ; that I applied to the defendant, who pointed out no property, and this writ expiring, the same is returned into court. Parish of Plaquemines, 3d, 1855. '

(Signed) Robert Johnson, Sheriff.”

On the 18th of June, 1855, the plaintiffs took a rule on the Sheriff to show cause why he should not pay the debt, on account of his default in failing to return the writ by the 2d of April, or within seventy days, according to the exigency thereof.

The defendant in the rule, has appealed from a judgment against him for the amount of the plaintiffs’ judgment against Wilkinson.

’1 h s being a summary proceeding by motion under the 17th section of a statute of 1826, which has been reenacted in the Act of March ' 15, 1855, sec. 2, (p. 478,) entitled “ an Act relative to Sheriff’s sales and writs offieri faeias,” we are precluded from inquiring into any other matters suggested by the motion, except the alleged failure of the Sheriff to return the writ within the legal delay. All the other grounds might be considered in an ordinary action of damages, but cannot be heard upon this summary proceeding, which is a statutable remedy merely.

We consider it proved, that the Sheriff did not return the writ in time. The evidence is as positive as the nature of the case admits, and it is a singular circumstance that the Sheriff, in making his return, omitted to name the month, and has made no effort to supply it.

His default being established, the onus was on the Sheriff to show a legal excuse. We find none in the record. His return does not show that he called upon the plaintiffs to point out property. The case is quite analogous to that of Gasquet v. Robins, 2 An. 410, where the Sheriff was held liable. There it was also held, that the alleged insolvency of the defendant, would not excuse the Sheriff from making the call upon the plaintiff to point out property as required by O. P. 726, 727. The object of the law is to enforce the observance of diligence by public officers. See, also, Webb v. Kemp, 2 An. 370; Magee v. Robins, 2 An. 411; Day v. Boyce, 8 An. 623; Lynch v. Leckie, 9 An. 508.

The case does not appear to be one in which the damages prayed for by the appellee should be allowed.

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


text:
    C. Schneider v. William Vercker.
    Where the principal, though present, is physically incapable, from, sickness, of making an affidavit for a provisional seizure, the affidavit may be made by an agent.
    It is not necessary that the agency be sworn to, it is sufficient to allege and prove it.
    APPEAL from the Sixth District Court of New Orleans, Reynolds, J., presiding.

      Michel, for plaintiff and appellant. Budd & Lambert, for defendant.
   Lea, J.

This case is presented upon an appeal from a judgment setting aside a writ of provisional seizure sued out by a lessor against his tenant.

The motion to set aside the writ was based upon the following grounds:

1st. That the affidavit was informal.

2d. That it was not made by the plaintiff, but by one styling himself an agent, which agency is not sworn to by the deponent.

8d. That there was no allegation of the absence of the plaintiff, who, in point of fact, was not absent.

’ 4th. That the affidavit is untrue, and that the debt was not due as alleged.

The writ was set aside by the District Judge, on the ground that the affidavit was made by the alleged agent, while the principal was within the jurisdiction of the court. It is shown conclusively, that at the time the affidavit was made and the writ sued out, the plaintiff was physically incapable, by reason of sickness, from making the affidavit himself. We think it was not contemplated by the law, that in case of sickness a creditor should be deprived of the benefit of conservatory writs, essential to the preservation of his rights. (See 14 La. Repts., page 92.) The authority of the agent is sufficiently proved to have been given verbally at the time the suit was instituted. The subsequent ratification in writing, did not vitiate what had been done. It was not necessary that the agency of the deponent should be sworn to; it is sufficient that it be alleged and established by other proof.

It is ordered, that the judgment appealed from be reversed; that the writ of provisional seizure be maintained, and that the rule taken to set the same aside be dismissed; and that the defendant and appellee pay the costs in both courts.


text:
    B. Antognini v. Charles R. Railey & Co.
    Injunction of sale by Sheriff, under defendants’ execution against J., of three billard tables claimed by plaintiff under a private writing, which, after reciting the sale to J. by plaintiff, of the billiard tables, says, “ it is further understood by the parties that those billiard tables will be the property of B. Antognini, until the payment of those notes” (the price). By the Court: This private writing had no date as to third persons — at least no date prior to that of its filing in this suit— and the plaintiff should have proved not only the signature of the document, but that it was made at the date which it bears. The defendants had acquired a lien upon these billiard tables, by their seizure before this suit was brought.
    The plaintiff, as vendor, had no right to enjoin the Sheriff’s sale. He had only the right to claim the price, in virtue of the privilege of vendor, by third opposition.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Magne, for plaintiff and appellant. H. & J. A. Gaither, for defendants.
   Buchanan, J.

The plaintiff sues for three billiard tables, seized by defendants, in execution of their judgment against one Judd, and in Judd's possession.

Plaintiff alleges that he sold those billiard tables to Judd, for the price of nine hundred and fifty dollars, in two notes, at ninety days and six months. Before the first of these notes fell due, the billiard tables were seized by the Sheriff, under defendants’ execution; and plaintiff claims the possession and ownership of them under a private writing filed with his petition, in which the sale of the billiard tables is recited, and it is further stipulated as follows : “ It is understood by the parties, that those billiard tables will be the property of B. Antognini, until final payment of those notes.”

Plaintiff enjoined the Sheriff’s sale upon this showing. The court below admitted this document in evidence, notwithstanding the opposition of the defendants, upon the simple evidence of the signature of Judd to the private writing filed with the petition.

We think the court erred. This private writing had no date as to third persons — at least, no date prior to that of its filing in this suit — and the plaintiff should have proved not only the signature of the document, but that it was made at the date which it bears. The defendants had acquired a lien upon, these billiard tables by their seizure before this suit was brought.

The plaintiff, as vendor, would have had no right to enjoin the Sheriff’s sale. He had only the right to claim the price, in virtue of the privilege of vendor, by third opposition. The suspensive condition-of the sale upon which plaintiff relies, is not made out hy sufficient evidence.

Judgment affirmed, with costs.


author:
Voordies, J.
     Lea, J.

text:
    Joseph Ran v. L. Latham et al.
    The maker, or endorser, in an action on a note, in the absence of any equity existing against the payee, cannot question the title of the holder.
    The equities which defendant is entitled to plead, are such as operate in his own favor, not those which belong to a party to whom he is liable. Lea, J.
    XJL PPEAL from the Fourth District of Now Orleans, Reynolds, J.

      Schmidt, for plaintiff. Michel, one of the defendants, in pro. per.

   Voordies, J.

The plaintiff, as endorsee, sued L. Latham and H. L. Marshall, as makers, and J. J. Michel, the payee, and T. P. McMillan, as endorsers of a promissory note.

Latham and Michel answered separately, the former by pleading that the plaintiff was not the bona fide owner and holder of the note declared upon ; and the latter, among other things, “ that said note, after maturity was, and is now, the property of Misha Groclcer, and that the same has been paid and extinguished by John P. McMillan, acting for his wife, in a settlement with Elisha Groclcer.” No plea was filed by either of the other defendants.

There was judgment in favor of the plaintiff against the defendants in solido, and Michel alone appealed.

We do not think there is any error in the judgment of the court below. The averment of the appellant discloses no equitable defence, not even against Groclcer, the alleged owner of the note. If the latter had any right to the note, as shown by his own testimony, it was that of pledge. The defence'is clearly inadmissible under the well settled principle, that the maker, or endorser, in an action on a note, in the absence of any equity against the payee, cannot question the title of the holder.

It is therefore ordered and decreed, that the judgment of the court below be affirmed, with costs.

Lea, J.

It is shown that the plaintiff' in this suit is acting as the mere agent of Orocker. The endorser might therefore set up any equitable defence to which he was entitled as against Groclcer, but it does not appear that Groc-lcer has been paid, though he holds securities which, until recently, have been the subject of a litigation between himself and McMillan. The defence, therefore, as against Orocker, is not made out. It is proper to remark, however, that even if payment by McMillan, who was the defendants’ endorsee and had therefore an interest in discharging the obligation, had been proved, it would not operate as a discharge of the defendant, until he had shown that he was an endorser for the accommodation of McMillan, which nothing in the, evidence establishes. The equities which a defendant is entitled to plead, are such as operate in his own favor, not those which belong to a party to whom he is himself liable.

I concur in the judgment which has been rendered, but prefer to place my assent on the above grounds.

      Spofford, J., took no part in this decision.


author: Vookhies, J.

text:
    A. T. Pickerell, Curator, &c., v. F. M. Fisk.
    A steamboat was purchased to be resold, and not to be engaged in the carrying trade. By the Court: Under the circumstances the parties were merely joint owners of the property, and not partners, or joint traders within the meaning of the law.
    A partnership is founded on the voluntary contract of the parties, as contradistinguished from the relations that may arise between them by the mere operation of law, independent of such contract.
    The surviving partner cannot alienate the partnership property. The power to alienate ceases with the dissolution of the partnership; the heirs of the deceased become joint owners of the common property, and the survivor can only dispose of his right in the thing sold.
    An action for the recovery of the value of property belonging to a succession for which the defendant has made himself liable, is not an action for damages resulting from an offence, or a quasi-offence, and the prescription of one year is inapplicable to it.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Wolfe & Singleton, for plaintiff. Bartlette & Collins, for defendant and appellant.
   Vookhies, J.

This is a suit brought by the curator of the succession of the late Haney St. John, to recover of the defendant one-half of the value of the steamer Eudora.

The plaintiff alleges that the defendant purchased the steamer jointly with St. John, through the agency of John T. Jeter, for the price of $2000, at a public sale made by the government of the United States, on the 9th of November, 1848, their title to which being consummated by Jeter's transfer to them on the 13th of the same month; that the deceased paid, as his portion of the price and expenses incident to the purchase, the sum of $1,031; that the defendant took possession of the steamer about the 12th January, 1849, and disposed of her for his own use and benefit, and has refused to account to tbesuc-cession for its interest therein ; that said steamer, purchased much below her real value, was worth $15,000, to one-half of which the succession is justly and legally entitled. He further alleges, that the defendant took possession of the steamer after the death of St. John, and previous to the appointment of the curator, and converted her to his own use, &c.

The defendant, among other things, pleaded that the steamer was bought on speculation by St. John, Jeter, another person, and himself, each for one-fourth : that afterwards the agreement was changed, whereby he acquired one-half, and Jeter and St. John, each, one-fourth of her; that he was to advance the purchase money, and the title was to be taken in the joint name of Si. John and himself; that the price, $2,000, was paid one-half by himself and the other by St. John, who obtained a loan for that purpose on his endorsement ; that lie became liable for and paid said loan; and that the steamer was to be fitted out and sent to New York to be resold, &c.

The evidence shows that St. John and Fish were the joint purchasers of the steamer for the price of $2,000, one-half of which was paid by each of theá; that after the death of St. John, and previous to the appointment of the curator, Fish took possession of the steamer, then lying at the port of New Orleans, and sent her off to New York, and that she was lost on her voyage thither. There is an admission in the record, that the vessel was purchased by the parties on speculation, to'be sent to New York for resale. But it is manifest they did not intend to engage her in the carrying trade.

Under the circumstances, we think the parties were merely joint owners of the property, and not partners or joint traders, within the meaning of the law. “ A community of property does not of itself create a partnership, however that property may be' acquired, whether by purchase, donation, accession, inheritance, or prescription.” C. C. 2777. A partnership is founded upon . the voluntary contract of the parties, as contradistinguished from the relations which may arise between them by the mere operation of law, independent of such contract. Partnership and community, says Pothier, are not the same thing. The first is founded upon the contract of the parties, which thus creates the community; the last may exist independent of any contract whatsoever. Pot. De Soeiété, p. 2. As an illustration, in the case of the part owners of a ship, who are treated as tenants in common thereof, each having a distinct although an undivided interest in the whole. They thus may properly be said to have an undivided interest in the ship ; and yet that interest does not make them partners. As Duranton says: La soeiété aussi produit une communauté; en un mot, toute soeiété est bien une communauté : mais toute communauté n’est point une soeiété. II faut pour cela la volonté des parties.” Dur. Droit Eran., vol. 17, § 320.

But even supposing that the purchase constituted a partnership between the parties, still in what respect could it materially alter the position of the defendant? The partnership was dissolved by the death of St. John, previous to the removal of the property. The doctrine as to the power of the surviving partner to alienate the property, movable or immovable, of the partnership, is clearly settled in the case of Simmons v. Parker, 4 N. S. 207, where it was expressly held, that such power ceased with the dissolution; that the heirs of the deceased became joint owners of the common property, and the survivor could only dispose of his right in the thing sold. See also the case of Shipman et al. v. Hickman et al., 9 R. R. 149. It is clear, therefore, that the defendant had no power to dispose of the vessel. Having done so, it was at his peril, and he is bound to account to the succession either for the property or its value.

The case of Jouanneau, curator, v. Shannon, 4 An. 330, relied on by defendant, does not appear to us to be analogous to the present. In that case, the vessel was engaged in the carrying trade, and Whipple, the one-fourth owner, had died ; it was held, that public policy and the interest of the surviving partner, required that she should not lie idle at the wharf, but be usefully employed. The peculiar circumstances presented in that case, illustrate very strongly the propriety of maintaining such a principle, even after the death of the part owner. The steamer, it appears, had been advertised to leave, on her usual voyage, on the day of Whipple's death. She was a regular packet, had been taking in cargo on the day of his death and the day previous, and was heavily laden. She was lost on her voyage. It was held, that Miller, the surviving partner, having a right to employ the boat usefully, was not bound to bear the burden of the whole loss in the absence of proof that it was occasioned by any misconduct or negligence on his part. But in the present case, it is essentially different; the vessel was not engaged in the carrying trade, but sent to New York for resale.

We are of opinion the prescription of one year, on which the defendant relies, is inapplicable to the present action. It is not an action to recover damages resulting from an offence or quasi-offence, but one for the recovery of the value of property of the succession for which the defendant has made himself liable.

The only question which remains to be determined is, whether the proof is sufficient to justify the amount awarded in favor of the plaintiff by the verdict of the jury. We think not. One-half of the value of the property in question, was the only amount which the succession could recover. The purchase money was $2,000. The weight of the testimony shows, that the steamer could not have been used at New Orleans at a profit. As the expenses of the repairs previous to the death of St. John, appear to have been defrayed by the defendant, it follows that the succession has no right to the additional value of the property resulting therefrom.

It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed; that the plaintiff recover of the defendant, the sum of one thousand dollars, with legal interest from the 26th of May, 1854, together with the costs of the District Court; and that the costs of this appeal be borne by the plaintiff and appellee.


author: Spoeford, J.

text:
    Succession of Christophe Pasquier—Jules Lapène, Curator.
    Executors, administrators, curators and syndics, are bound to keep a bank book in their official names, and deposit all mo»ies collected by them, as soon as received, in a chartered bank, ii there be one in the parish, although no chartered bank of the State pays interest on deposits.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Roselius and Lntour, for curator, appellant. Olark & Bayne, for appel-lees.
   Spoeford, J.

We are of opinion that if all the chartered banks of the State have ceased to pay interest on deposits, as asserted but not proved by the appellant, still it does not follow that executors, administrators, curators, and syndics, are thereby dispensed from the necessity of keeping a bank-book in their official names, and depositing all monies collected by them, as soon as received, in a chartered bank, if there be one in the parish.

The Act of March 13th, 1837, (Bui. & Cur. Dig., p. 2,) has been substantially reenacted on the 12th of March, 1855, (Session Acts, p. 78,) under the title of “ an Act to regulate and define the duties and powers of administrators, executors, curators and syndics.”

We are also of opinion that the claim in this rule for the twenty per cent, interest, and the dismissal from office of the curator, was not barred by the filing, or adjudged by the homologation of the provisional account, pending the rule.

The rule was treated by all parties as a separate and distinct claim, and was never cumulated with the proceedings upon the account. After the filing of the account, the rule was continued from time to time, as presenting an issue by itself. As that issue has never been abandoned by the plaintiff in the rule, nor sought to be cumulated with the issue upon his provisional account by the defendant in the rule, we do not think the latter can invoke the protection of the plea of res judicata.

Judgment affirmed.


text:
    Margaret E. Woodward v. Seymour H. Lurty, Sheriff, et al.

      A sufficient authorization for the wife to appear is shown, when she and her husband were duly cited: both filed their answer on the same day — were represented by the same counsel — and the wife, in her answer, expressly alleges that she was duly authorized to appear and defend the suit. Where a decree of court is rendered “ by reason of the consent of parties, plaintiff a/nd defen-dantit does not matter whether the consent was given in writing, or verbally, it will be presumed, until the contrary is made to appear, to have been given in such a way as to justify the decree.
    APPEAL from the District Court, Seventh District, Parish of West Feliciana.
    Roselius, for plaintiff and appellant. Muse, for defendants.
   Lea, J.

The facts connected with the litigation which is presented in this case are substantially as follows:

Abisha Woodward, the former tutor of the minor heirs of Eben Woodward, was condemned by two judgments of the Probate Court of East Feliciana to pay to his former wards, represented by Albert and Maria Poole (the defendants in the injunction) the sum of $14,202, with interest. After these judgments had been rendered, viz: on the 14th day of December, 1843, Woodward conveyed to his wife (the plaintiff in this suit) a number of slaves and a tract of land, for the alleged purpose of replacing her paraphernal claims.

On the first day of March, 1844, the defendants in this suit instituted a suit against Woodward and his wife, for the purpose of setting aside the conveyance above referred to, on the ground of fraud and simulation, and for the purpose of subjecting the property to the payment of their judgment against Woodward. On the 1st May, 1844, Mrs. Woodward sued her husband for a separation of property, claiming as her own the property which is the subject-matter of this litigation. In this suit Poole and wife intervened, opposing the claims of the wife against her husband for substantially the same reasons as were set forth in the revocatory action.

At this stage of the proceedings, on the 30th of April, 1845, a judgment recognizing the indebtedness of Woodward, as claimed in the revocatory action, was rendered with the following stipulations and reservations as respects Mrs. Woodward, as will appear from the extract:

“The plaintiffs claim a privilege and mortgage on all the immovables and slaves of the defendant, Abisha Woodward, to pay and satisfy said judgment. Neither party offering any evidence, the one in support of their allegations of fraud on account of which the act of sale from the defendant, Abisha Woodward, to his co-defendant, Mrs. Margaret Woodward, is sought to be annulled and set aside; nor the other, in support of their rights to have said sale confirmed; and by reason of the consent of parties, plaintiff and defendant.

“It is ordered and decreed, that the said judgment of the Probate Court against said Abisha Woodward be affirmed, and that it operate as a privilege and mortgage on all the immovables and slaves of said defendant until the full and final payment of said judgment, subject to the credits aforesaid. And by reason of the consent aforesaid, it is further decreed, that the land and negroes embraced in the act of sale, and adjudged to her in suit No. 3094, shall be subject to the payment of the aforesaid judgment; and by the consent aforesaid, it is further ordered and decreed, that the said judgment shall be payable in ten equal instal-ments: the first instalment thereof to fall due on the 1st day of April, A. D., 1846, the whole to bear interest at the rate of six per cent, per annum from the date of the rendition of this judgment; and by the consent aforesaid, it is further ordered and decreed, that in case the defendant shall fail to pay any of the said instalments, as the same shall fall due, then the plaintiff shall have the right to issue execution on said judgment only for the amount that may be due on said instalment or instalments at the time such execution shall issue.”

Upon-the judgment, of which the above is an extract, an execution was issued to enforce the payment of the fifth instalment, as provided by the judgment, by a seizure of the slaves sold by Woodward to his wife. For the purpose of resisting this seizure, the plaintiff in this suit has obtained an injunction, on the ground. that she is not bouud by the judgment rendered in the case of Poole v. Woodward and wife, for the reasons:

1st. That she was not legally made a party to said suit, not having been authorized to appear either by the court or her husband.

2d. That the debt for which execution has issued was due exclusively by her husband, and that she could not legally bind herself for his debts, if she had chosen so to do, which she denies.

3d. That she was without power to give her consent to the judgment in the suit of Poole v. Woodward and wife, and that she never did give her written assent thereto.

Our attention has also been directed to the fact that at the inception of this suit, Adelaide Woodward, who was then represented by her tutors, Maria R. Poole and husband, had, during the pendency of the action, intermarried with Preston Pond, Esq., and that said Pond was not made a party to the proceedings prior to the rendition of the judgment; for which reason it is urged that the cause should be remanded for a new trial. ,

We find no evidence in the record that Adelaide Woodward is married to Preston Pond, Esq., except the mere suggestion of plaintiff’s counsel. Assuming it to be true, the plaintiff should not have proceeded to the trial of the case without making Pond a party.

She complains with a bad grace of her own neglect to bring one of the parties properly into court, especially as this very party has not been cited, or other, wise made a party to the appeal. In the absence of proof to the contrary, we will act upon the presumption omnia rite acta with reference to the action of the District Court.

As respects the objection that Mrs. Woodward was never authorized to appear,, and defend her interests in the suit of Poole and wife v. Woodward and wife, we find that both she and her husband were duly cited, both filed, their answers on the same day, were represented by the same counsel,, and the- answer of Mrs, Woodward expressly alleges that she was duly authorized to, appear, and defend the suit. We think these facts, taken together,, constitute a sufficient authorization. See Stone, syndic, v. Tew et al., 9 R. 195,; also 10 La. 574.. The objection that the wife could not make herself responsible for hei; husband’s debts is without force as applicable to a case which is brought for the express purpose of attacking a sale from a husband to his wife on the ground of fraud and simulation, and for the purpose of subjecting the property thus fraudulently sold to the payment of his debts. It she had a right in such a litigation to defend herself, she had also a right to enter into such arrangements as her interests might require, provided they were contracted in good faith and for her own advantage.

If the alleged arrangement or consent, upon which the judgment was rendered, was intended as an evasion of the law, the plaintiff should have shown it. We find nothing in the record to justify such a conclusion. This brings us to the inquiry whether any such consent was given. The plaintiff says that “she was without capacity to give such a consent,” especially as she “was neither authorized by the court nor her husband, and that she never gave her written consent thereto.”

We have already determined that Mrs. Woodward was properly a party to the suit referred to, and was assisted therein by her husband. Whether she gave her written consent to the judgment which was rendered by the court is not material; it may have been given verbally and in open court. The decree itself embodies the statement that it was so rendered “ by reason of the consent of parties, plaintiff and defendant.” If this consent was in writing, a copy has not been furnished; but whether it was given in writing, or was given verbally, it must be presumed to have been such as to justify the action of the court until the contrary is made to appear. It is to be observed, also, that the judgment has not been appealed from.

It has been urged that in whatever aspect the case may be viewed, the plaintiff in execution should have resorted to the hypothecary action. We think the proceedings, the enforcement of which have been enjoined, have all the essential elements of this form of proceeding.

Lastly, the special damages allowed for counsel’s fees, in defending the injunction suit, are complained of as excessive. The amount allowed exceeds that claimed by the defendant’s themselves in their answer. We think it would have been safe in the estimate of the value of the service of counsel to have adopted as a maximum the amount fixed by themselves. In this respect the appellant is entitled to a change in the judgment in her favor.

It is therefore ordered, that the judgment appealed from be amended so as to read as follows: It is ordered, adjudged and decreed that the injunction herein granted be dissolved and set aside, and that the defendant recover of the plaintiff and her surety, D. S. Rhea, in solido, interest at the rate of eight per cent, per annum on the amount of the execution enjoined from the date of the injunction till the date of its dissolution, and twelve per cent, damages on the amount of the said execution, with $300 as special damages for counsel fees, with the costs of suit in the District Court; and it is further ordered, that the .costs of the appeal be paid by the appellees.

       Merrick, 0. J., declined sitting in this case. In the District Court Merrick (then) J., recused himself, having been of counsel, and the record does not show by what Judge the judgment was rendered.