text:
      W. D. Jones v. J. C. Jamison.
    When it is alleged in the petition, that the claim sued on has been reduced to a judgment in a foreign country, the plaintiff canuot establish it by parol evidence; the original cause of action being merged in the judgment, the suit must bo considered as brought upon it.
    APPEAL from the Sixth District Oourt of New Orleans, Howell, J.

      Michel c6 Koontz, for plaintiff aud appellant.

      Singleton & Clack, for intervenor. L. Cliaret, for defendant.
   Merrick, O. J.

This suit was commenced by attachment. Both plaintiff and defendant were residents of the Island of Jamaica, and have their domicil in Kingston, in that island.

The plaintiff alleges, that the defendant is indebted to him in the sum of §4,236 40 for money had and received of petitioner during the years 1853,1854 and 1855; that he has judgment against said /. C. Jamison, obtained in said Island of Jamaica, for the sum of ¿6850, making said sum of §4,236 40 ; and he further alleges there are sums of money due the defendant by certain parties in this city, whom he makes garnishees.

The plaintiff did not produce an exemplification of the record of judgment obtained in Jamaica, but relied solely on parol proof taken under a commission issued to the United States Consul residing in Kingston. The District Judge refused to admit the deposition iu evidence, on the ground that, the plaintiff having alleged the existence of a judgment in Jamaica, could not prove his demand by parol evidence, but must produce a copy of the judgment pleaded, it being the best evidence.

Judgment of nonsuit having been rendered, on plaintiff’s demand, and in favor of the intervenor, against the gai-nishee on the intervention, plaintiff appeals.

The appellant contends, among other things, that his suit is not brought upon the judgment obtained in the Island of Jamaica; that the indebtedness of the defendant is alleged separately and distinctly from the allegation of the existence of the judgment; hence, that averment may be regarded as surplusage.

The petition very clearly alleges, that plaintiff has obtained judgment in the Island of Jamaica, the domicil of these parties, plaintiff and defendant, for the debt sued upon. If, therefore, such judgment can have any influence upon this controversy, it cannot be regarded as surplusage; and this brings us to the consideration of the question, whether any effect must be given to such judgment by our courts. Under the jus gentium, it would seem that this judgment, rendered upon a cause of action arising at the domicil of the parties, and decided by their own tribunals, ought to be absolutely conclusive everywhere. See Nouveau Denisart, lo., Droit des Gens, p. 259. And this conclusive effect seems to have been given to foreign judgments by the Code of Practice as it stood up to 1840, for they were placed on the same footing as judgments of this or the sister States. Art. 746 O. P. is in these words : “ When a creditor has obtained against his debtor a judgment having the force of res judicata, in a tribunal different from that in which he seeks execution, whether the judgment was rendered in this State, or another State of this Union, or in a foreign country, he may on this ground proceed by executory process, and cause to be seized and sold the property of his debtor, without previous citation, in the same manner as on privilege or mortgage debts, contained in acts importing confession of judgment, except in the case mentioned in the following article.”

The excepted case was a judgment by default. It will be seen by the Article quoted, that the Legislature considered that foreign judgments might have the force of res judicata, for the order of seizure and sale was to issue only on such as had that effect, and were not rendered by default. These last were governed by Art. 747, which is as follows : If the judgment of which the creditor is in possession shall appear to have been rendered by default, or on attachment in other tribunals than this State, he cannot proceed by executory process under the pretext that the judgment has acquired the force of res judicata, but must adopt the ordinary mode," that is, must bring suit upon his judgment by citation and in the ordinary delays, even if the judgment bo res judicata.

Art. 753 declares what copies of judgments of foreign countries shall be considered authentic.

As the Code of Practice stood in 1846, there can be but little doubt that foreign judgments rendered by courts having jurisdiction between parties having-notice or duly cited, were conclusive, and might have been pleaded as the thing adjudged. The statute of 1846 does not seem to us to have lessened the conclusive character of foreign judgments, but to have refused the executory process only. It declares that “ so much of Articles 746 and 747 of the Code of Practice as authorizes a creditor having obtained judgment in another State of this Union, or in a foreign country, to proceed by executory process on said judgment, be, and the same is hereby repealed.” The ordinary remedy is still left the creditor; and the judgment of a sister State or foreig'n country, as a consequence, have no less force than before.

It must follow that the original cause of action was merged in the judgment, upon which last alone the suit under the pleadings ought to be considered as brought. The District Judge did not, therefore, err in refusing to hear parol proof of plaintiff’s demand.

Judgment affirmed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    J. P. Ducongé v. Samuel L. Forgay.
    The power to endorse hills of exchange and promissory notes, must be express «and special.
    An authorization to endorse other promissory notes, cannot be inferred from the fact, that the party whoso name was forged on them, did not publicly denouuco the forgery which first came to his knowledge ; this neglect on his part to denounce the crime to the public authorities, does not make him responsible for other forgeries of his name, which were then unknown to him, or give rise to an action for damages under Articles 2294 and 2295 C. C.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      T. W. Collens andL. Eyma, for plaintiff and appellant.

      B. S. Tappan, for defendant.
   Merrick, C. J.

The plaintiff’s counsel states his case as follows, viz :

“The petition alleges and the evidence shows, one Calder was For gay’s friendly acquaintance; that Calder forged For gay’s endorsement on a note for $1,000, which passed from Oott to Fergus Gardere ; that the forgery was discovered by Forgay and Gardere before the maturity of the note; that Forgay, rather than prosecute, or even expose Calder, prevailed, upon Gardere to retain the note ; promised that it would be paid, holding himself bound as if he had really endorsed it.

“ The note was paid by Calder in installments as follows; June 26th, 1846, $150 ; 29th June, 1846, $500 ; 11th July, $150 ; and 23d July, $200.

“ In the meantime Ducongé bought from Thomas Fellows a note for $750, drawn by Calder, and purporting to be endorsed by Forgay, dated 11th July, 1846, the very day Calder made one of his payments, on account, to Gardere; and was discounted by Ducongé 22d July, 1846, the day previous to the last payment made by Calder to Forgay.

It seems that other notes drawn and endorsed as the one in question, had been passed to other brokers.

“ Under the circumstances, we hold that agreeably to the commercial law and the universal doctrine, civil and common law jurists, the defendant, Forgay, is liable to us on the note discounted by us, just as much as he was to Gardere, by assuming the endorsement held by that gentleman. Indeed, our claims are more equitable, for we had no suspicion of any forgery, till Calder had absconded.

Forgay, by adopting the endorsement held by Gardere, sanctioned the act of Calder, who had written his (Forgay’s) signature ; and this, in law, must be taken as acknowledging Colder’s authority to sign for him, and to bind him (For-gay) by so doing.”

In this statement, the supposed promise of Forgay to pay the note of $1,000, is made to appear somewhat more explicit than the proof will justify, Wo take the case for the purpose of this decision, however, as stated.

The power to endorse bills of exchange and promissory notes, must be express and special. C. C. 2966.

It cannot, therefore, be inferred, that Forgatj had authorized Colder to endorse other promissory notes in his name, because he did not publicly denounce the forgery which first came to his knowledge.

Neither can this neglect on the part of For gay to denounce tho crime to the public authorities, make him responsible for other forgeries of his name which were then unknown to him.

It is the duty, it is true, of every citizen to make complaint of all crimes and offences committed by individuals to his injury or prejudice, and the injury and prejudice of others, within his knowledge. But this, in the eye of the law, is a duty to the State, and not to individuals. Hence, no private person has a. right to claim an indemnity for a breach of such duty, unless given by special statute.

The ancient English law, in regard to felonies committed within the hundred, which could only be relieved from the amercement by hue and cry, is an example of this kind of legislation.

Our statute in relation to injuries committed by mobs within municipal corporations, is another instance.

But aside from express legislation, we are not aware of any cases in which a civil action is given against a private person, because he has failed in his duty to tho State, in denouncing a crime which has come to his knowledge.

The plaintiff urges, in substance, that if For gay had made known to the public, that Calder had forged his endorsement on the note held by Gardére of $1,000, the plaintiff would have heard of it, and would not have bought the note for $750 from Fellows.

But For gay .may have supposed that the $1,000 note was the only one on which his name was forged. His neglect, therefore, to make complaint before a magistrate, could not be construed into a willingness to see others become victims to Colder’s forgeries, nor as an act giving rise to damages under Articles 2294 and 2295 of the Civil Code. See Hopkins v. Vanvickle, 2 An. 144.

Fellows being the party from whom plaintiff bought the note, the endorsement of which is alleged to be forged, could not be a witness for the plaintiff without a release.

Judgment affirmed.


author: Yooehies, J.

text:
    Charlotte Levy v. Mary Wise et als.
    Tho overruling of an exception before issue joined, is not res judicata on tho matters at issue ; in tho mean time tho court may reviso interlocutory decrees rendered in tho course of the proceedings.
    'Flic rule that the surety cannot plead matters personal to the principal obligor, cannot bo applied to a case where tho principal is alleged to be a slave, and consequently incapacitated from contracting, from motives of public policy.
    When in a contract of lease, it was acknowledged that the lessee was a freo woman of color, by the parties to the contract — Held: That the sureties arenotestopped,by such acknowledgment, from alleging and proving the fact that the lessee and principal obligor was a slave.
    APPEAL from the Third District Court of New Orleans, Buvigneaud, J.

      Collem & Woolridge, for plaintiff.

      J. M. Micou., for defendants and appellants.
   Yooehies, J.

The appellants ave the sureties of the defendant, Mary Wise, to whom certain premises were leased by the plaintiff. They urged, in the court below', as a ground of defence, that the principal debtor was a slave ; that the ordinances of the City Council prohibited contracts of lease entered into with slaves ; and that the contract of lease made between the plaintiff and the defendant, Mary Wise, is null and void, because in violation of law and in derogation of public order and public policy.

Evidence offered on trial by the sureties, to substantiate this defence, w'as overruled on several grounds, which must be noticed seriatim.

1st. “That the subject-matter had been passed upon and decided in the judgment rendered on the exception herein and was res judicata."

The record does not contain the evidence offered on the trial of the exception ; and we are left in the dark even as to the character of the proof adduced on that occasion. Be this as it may, the answer, filed subsequently, alleged the same grounds of defence as were set forth in the exception ; and, as they bore upon the merits of this controversy, came more appropriately in the answer on the merits. The overruling of an exception before issued joined, is not res judicata on the matters at issue; the court may, in the mean time, revise interlocutory decrees, rendered in the course of proceedings.

2dly. That the surety cannot plead matters personal to the principal obligor.”

The defence set up that the contract under consideration is null and void, because it contravenes public policy, is not a personal exception. If slaves were merely incapacitated from making a contract of lease, the case might be different; but there is no affinity between a prohibitory law, laying down rules of public policy, and one merely incapacitating a party for his own protection or interest.

3dly. “ That the defendants having contracted with the plaintiff by an act acknowledging the defendant, Mary Wise, to be a free woman of color, they are now estopped from denying the fact or proving the contrary.”

If it be true that it is against the policy of the law, that a slave should rent a house in the city of New Orleans, it is obvious that a contract of that kind is radically null and void; and that whatever devices were resorted to for the purpose of evading the law, may be met by parol evidence, adduced even in behalf of the contracting parties. The admission in the contract of lease, that Mary Wise was a free woman of color, does not debar her co-defendants from proving the contrary. See the case of Susan C. Weaver v. C. E. Alter, Opinion Book 31, p. 164.

In remanding this case for the purpose of allowing the appellants to prove their allegations with regard to the status of their co-defendant, and the prohibition by the city* ordinances, we must not be understood to decide that, admiting the alleged facts to be substantiated, the plaintiff would be cut off1 from all relief. Proper allegations and proof might perhaps be made on her behalf.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that this case be remanded for further proceedings according to law ; the plaintiff and appellee paying the costs of appeal.


author: Voorhies, J.

text:
    J. Maillot v. Math. Martin et als.
    A supplemental petition in an injunction suit, should only be allowed for the promotion of justice, and when allowed, an affidavit of the truth of the allegations of the petition, and of the causes that mako the amendment necessary, should alwajrs be required.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Race & Foster, for plaintiff.

      Gaither & McPheeters, for defendants and appellants.
   Voorhies, J.

The plaintiff, against whom execution had been issued on a judgment obtained by C. E. Alter, but paid with subrogation by the defendant, sued out an injunction, for reasons which are detailed in his petition.

The case was put at issue, and brought to trial; but, after some testimony bad been given, the case was continued, with leave to the plaintiff to file a supplemental petition.

The amended petition was subsequently presented and filed, notwithstanding the objections raised by the defendant to the legality of this proceeding. It was properly objected by him, that, inasmuch as the supplemental petition was not accompanied with an affidavit, the plaintiff was not entitled to this relief. It is true, that amendments are not reducible to any certain rule, and that each case is left more or less to the sound discretion of the court; but, in matters of injunction, conceding the propriety of the amendment for the furtherance of justice, it is necessary that an affidavit should be made of the truth of the allegations, and of the causes that make the amendment necessary. Calderwood v. Trent, 9 R. 227.

This case must, however, be remanded. Some evidence was takeu down before the cause was continued, with leave granted to the plaintiff to file a supplemental petition. Subsequently, the defendant moved to strike out the testimony, thus taken, of Captain Ham, whom he had not had the privilege of cross-questioning ; but the District Court refused to comply with this request. Practically, therefore, the defendant lost the advantage of a cross-examination, without any fault of his own. lie did not consent to the continuance of the cause, nor to the filing of the amended petition ; and the subsequent absence of the witness cannot, under these circumstances, deprive him of the right to subject his adversary’s witness to a cross-examination.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that this case be remanded for further proceedings in accordance with the views above expressed ; the appellee paying the costs of appeal.


author: Merrick, O. J.

text:
    F. Martin, Administrator, v. Lydia Wright Donovan.
    The law creates a legal presumption that a promissory note has been given for a valuable consideration, but this presumption may be rebutted, and the payee required to prove the consideration. When the existence of the consideration is expressly put at issue, and doubt or suspicion cast upon its reality, the burden of proving it is thrown upon the payee.
    APPEAL from the Sixth District of New Orleans, Howell, J.

      Durant & Hornor, for plaintiff and appellant.

      Bucld & LambeH, and Bonford, Singleton & Clack, for defendant.
   Merrick, O. J.

“ Petitioner, the administrator of Denis T. Donovan, sues the defendant, the latter’s widow, on two promissory notes, of which the following are copies :

“$2,750 CO. New Orleans, June 8th, 1857.
“ Twelve months after date, I promise to pay to the order of myself, two thousand seven hundred and fifty 60-100 dollars, value received.
“ Due 8-11 June, 1858.
“ Lydia Wright.
“ Endorsed : Lydia Wright.”
“$3,276 00. New Orleans, July 31st, 1857.
“ Eighteen months after date, I promise to pay to the order of myself, three thousand two hundred and seventy-six 00-100 dollars, value received
“ Lydia Weight.
“ Endorsed : Lydia Weight.”
“ There are no other endorsements.”
“ The defendant admitted her signature and endorsement of the notes, but pleaded want of consideration. She says the notes 1 were given and intended simply for the accommodation of her said deceased husband, and at his earnest solicitation and request; and that she never received any consideration whatever for said notes ; that she never had any business transactions whatever with the deceased, Denis T. Donovan, but that great intimacy and confidence existed between them; that she feels assured the said deceased never used the notes sued on, and that at the time of his decease, they were in the possession of respondent and the deceased, together with her marriage certificate, and were handed, with, all her own and the papers of deceased, to the notary, to be inventoried, she not knowing the effect of their being so inventoried.’ ”

The answer being accompanied with the requisite affidavit, the case was tried by a jury, who found a verdict in favor of the defendant, and plaintiff appeals.

The defendant and Denis T. Donovan, were married in January, 1858, six or seven months after the supposed date of the notes. The defendant, at the time of her marriage with Donovan, was the widow of one Wright, from whose succession she had acquired some real estate in New Orleans, which served for her support.

Donovan had previously been engaged in a partnership with H. H. Stanly, which was dissolved about July, 1857. It is shown, that Donovan was embarrassed and had overdrawn about $3,000 from the firm ; that he had mortgaged a slave to certain parties, and afterwards sold the same to their prejudice, for one-half its value ; that at the time the inventory was taken, these notes were found at the common dwelling', in a desk belonging to the deceased, but that ho had a bank-box in which other notes were found ; that he kept a bank checkbook, and that there were no entries therein at the date of these notes ; that there was no memorandum or entry in any book kept by the deceased, though he kept check-books, bank-books, accounts, statements of his affairs, memoradumbooks, &c., having any reference to these notes ; that the defendant, who is said by a witness to be a simple and kind hearted woman, is not accustomed to transact business, and that if she had had business affairs involving six thousand dollars, the witnesses would have known it. It is, moreover, shown that the notes, except the signature and endorsement, were in the hand-writing of Donovan.

The question to be considered is, did tlie Judge err in concluding that the facts which we have detailed, had the effect of shifting the burden of proof from the defendant to the plaintiff, to show that the notes were given for a valuable consideration ?

The testimony creates an extremely strong probability that Donovan had not the amount of these notes, six thousand dollars, to advance to the defendant, nor auy other considerable sum. He was embarrassed and in want of money himself. His bank-book shows no transaction corresponding with, the amount of the notes. The estate of the defendant does not appear to have been increased, and she was engaged in no business which required funds to the amount of the notes; and, it is shown, that her wants were supplied, and the repairs of her building's were paid for out of the revenues of her property.

Taking these circumstances into consideration, in connection with the fact that he was the suitor of the plaintiff sometime previous to the marriage, and that these notes, so considerable in amount, were never placed in bank as valuables, either before or after marriage, nor transferred or entered in any book, or otherwise treated as the property of the deceased, we cannot say that the jury erred in concluding that the defendant had adduced sufficient evidence to throw the burden upon the plaintiff to show that value had been given for the notes.

The law creates a presumption that a promissory note has been given for a valuable consideration, but this presumption may be rebutted, and the payee may be required to prove the consideration. See Clarke v. Christine, 4 Rob. 196; Wooster v. Harrison, tutor, 9 An. 234.

After the presumption had been rebutted by the negative proof of defendant, it became the duty of the plaintiff to show the consideration of the notes by affirmative proof.

Judgment affirmed.


author: Buchanan, J.

text:
    Jeremiah Collins et al. v. Anne O’Brien Pratt.
    The heirs at law cannot assert and prove simulation, in the contracts made by the person from whom they inherit.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      E. Bonford and R. W. Gurley, for plaintiffs and appellants.

      Durant Hornor and W. H. Paxton, for defendant.
   Buchanan, J.

The plaintiffs, heirs of Sargeant Pratt, deceased, institute this suit against defendant, widow of said Pratt, to have certain slaves and movable effects, which are in her possession, decreed to be the separate estate of Sargeant Pratt.

It appears that Sargeant was possessed of those slaves as owner, previously to his marriage with defendant, but conveyed them to his brother, Edwin H. Pratt, for a price in cash, by deeds duly recorded. Some years afterwards, and after the marriage of defendant and Sargeant Pratt, Edwin Pratt reconveyed the same slaves to his brother. The plaintiffs maintain that both those conveyances were simulations, and that the slaves, in truth, never ceased to be the property of Sargeant Pratt.

A bill of exceptions was reserved by the defendant to the admission of evidence, to prove the simulation of the conveyances of property in question.

The plaintiffs are heirs at law, but not forced heirs, of Sargeant Pratt.

It was, therefore, incompetent for them, to assert and prove the simulation of contracts made by Sargeant Pratt.

The evidence should have been rejected.

If the sales in question be considered as real, the slaves conveyed by them are property of the matrimonial community of defendant and her deceased husband.

Plaintiffs have failed in proving the movable effects mentioned in their petition, to have belonged to Sargeant Pratt before his marriage with defendant.

Judgment affirmed, with costs.


text:
    E. T. Parker v. City of New Orleans.
    The statutes of the State authorizing the municipal authorities, hy whom, the costs in criminal cases are paid, to regulate and fix the expenses in such cases, restrict them in respect to charges for the maintenance of prisoners.
    Under the Act of 1856, the city of New Orleans has no greater power given to it in this respect ; and the Sheriff of the parish of Orleans has the right, under the Acts of the Legislature, to charge thirty-seven and one-half cents for the daily maintenance of prisoners, and one dollar for turnkey’s fees for each prisoner.
    APPEAL from the Eourth District Court of New Orleans, Price, J.

      Randall Hunt, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Voorhies, J.

This case rests upon a naked question of law. Is the Sheriff of the parish of Orleans entitled, under the Acts of the Legislature, to charge 37$ cents for the daily maintenance of prisoners, and $1 for -turnkey’s fees for each prisoner.

The statute of 1855 (an Act in relation to the fee bill, p. 9,) allows to every Sheriff of the State 37$ cents a day for the maintenance of every prisoner confined in the prison of the parish of which he is Sheriff, except runaway slaves. Two other statutes of the same year, the one entitled “ an Act relative to criminal proceedings,” and the other, “ an Act to amend the 69th section of the Act relative to criminal proceedings,” throw the burden of paying- all criminal expenses upon the respective parishes, but leave them at liberty to fix and regulate the fees, salaries and expenses to be paid by them, excepting, however, those incurred for the maintenance of prisoners. Act 1855, p. 161, secs. 68, 69 ; Act 1850, p. 275.

The amended charter of the city of New Orleans, approved March 2011^ 1856, authorizes the Common Council to fix the compensation of the services of every officer of the city or of the State, whose services are by law tobe paid by the city of New Orleans. Acting under this grant of power, the City Council, by an ordinance approved July 11th, 1856, fixed at 20 cents a day the compensation for the maintenance of prisoners, and 25 cents the turnkey’s fee.

In the year following, the Legislature shifted the burden of paying the expenses incurred in criminal prosecutions, from the municipal to the State treasury ; and, after the lapse of two more years, again made it incumbent upon the respective parishes to pay those expenses. Sess. Acts, 1857, p. 187 ; 1859, p. 21.

The statutes of 1855, made a distinction between expenses incurred for the maintenance of prisoners, and all other expenses arising in criminal proceedings ; and, although the municipal authorities wore made liable for the payment of all, without reservation, yet their power to fix and regulate them, was not extended to those of the former class.

■ The Act of 1855, “ in relation to the fee bill,” applies to the city of New Orleans as well as to the State at large ; and so does the grant of power to the local authorities to fix and regulate the fees, salaries and expenses incident to criminal proceedings, the maintenance of prisoners excepted.

The Act of 1856, authorizing the Common Council to fix the compensation of the officers whose services are to be paid by the city, is not necessarily in conflict with the previous provisions of the Legislature, regulating the subject-matter in consideration, and does not consequently repeal them with regard to the city of New Orleans.

This position is fortified from the fact, that all the parishes of the State, although empowered to regulate and fix all criminal expenses in general, are restricted in this respect with regard to the maintenance of prisoners; and yet they, as well as the city, are bound alike for all criminal expenses, without exception. The Legislature evidently intended to reserve to itself all right of legisla-tion upon this important matter.

With regard to the turnkey’s fee of 5?1 for each and every prisoner, the statute of 1859 is explicit. Session Acts of 1859, p. 127.

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


author: Cole, J. Merkiok, C. J.

text:
    Joseph Tom v. Slave Ernest.
    The Articles of the Civil Code which give a privilege for expenses incurred for the preservation of the thing, apply only to movables.
    Privileges on immovables and slaves are treated of under a distinct head, and there is no privilege given as such, for expenses incurred for the preservation of a slave or immovable.
    APPEAL from the District Court of the Parish of Jefferson', Burthe, J.

      Charles Janin, for plaintiff and appellant.

      James D. Augustin, for defendant.
   Cole, J.

The petition represents that André Marchesseau left the city of New Orleans to go to California about the year 1849, and, before leaving this city, deposited in the hands of Marie Louise Duseau a child named Ernest, a mulatto boy and a slave for life, born about the 17th of February, 1848, from a slave named Mary, the property of Samvel J. Peters, Jr., a resident of New Orleans. That afterwards. Marie Louise Duseau entrusted and deposited the child Ernest in the hands of plaintiff, to be maintained and kept for Marchesseau.

That the expenses incurred by petitioner for the preservation of this slave amounted to $570 on the 5th of June 1857, when the said Peters took possession of the slave to keep him until he should be ton years of age. That the said Duseau died in May, 1857, and Marchesseau has never returned from California. That Marchesseau left no agent in Louisiana, and has not been heard of since about eight years, which induces petitioner to believe that the slave Ernest, whom he represented as his property, has since been abandoned by him. ’

That the nature of petitioner’s claim entitles him to a privilege upon this slave; the claim being the expenses incurred by the plaintiff for the preservation of the slave deposited in his hands as aforesaid. That he is entitled to proceedings in rem, that is, against the slave himself, which stands pledged for the debt, by virtue of the privilege attached to his claim. He prays for a writ of provisional seizure, against the slave, and for judgment in his favor for his claim and for the sale of the slave to satisfy his privilege.

The -writ of provisional seizure issued, but upon motion of the curator ad hoc of Marchesseau, it was set aside, and plaintiff appealed.

The District Court did not err. The 4th section of Art. 285 of the Code of Practice provides that provisional seizure may be ordered when the proceedings are in rem. that is to say, against the thing itself, which stands pledged for the debt, when the property is abandoned, or in cases 'where' the owner of the thing is unknown or absent.

A slave is not a thing, in the sense of the preceding 4th section of Art. 285 of the Code of Practice. This Article does not, therefore, authorize the present form of action, and there is no other statute that does.

J udgment affirmed, with costs of appeal.

Lard, J., took no part in this case.

Or a Re-hearing.

Merkiok, C. J.

Privileges being stricti juris cannot be extended by analogy from one thing to another.

The Articles of the Civil Code which give a privilege for expenses incurred for the preservation of the thing, apply only to movables. This privilege is classed under the head “ Of privileges on particular movables,” with those of the lessor, creditor of the thing pledged, depositor, vendor of movables, inn-keeper, and the privilege on ships and merchandize.

Privileges on immovables and slaves are treated of in the Civil Code under a distinct head, and we do not discover that any privilege is given as such for expenses incurred for the preservation of the slave or immovable. Doubtless, this is owing to the fact, that slaves are susceptible of being mortgaged. It might be subversive of the mortgagee’s right, if the party who had furnished a sick slave with medicine, or arrested the runaway, should have the right to provisionally seize and sell by a proceeding in rem, because the medicine or expense in arresting the slave might be deemed to be incurred for the preservation of the thing. By the former laws, when runaway slaves -were advertised and sold by the public authorities, the proceeding was in rem, but those laws are repealed.

Again, privileges ought to be recorded. The Code has provided for the registry of those privileges on immovables and slaves which it has recognized ; but this supposed privilege is not among them. We therefore think, that the fourth paragraph of Art. 285 of the Code of Practice refers to movables only, and not to slaves and immovables, which are also undoubtedly things in the eye of the law, but not the kind intended by Art. 285 C. P. See Civil Code, 3183, and the division of the Code preceding this Article and the following, viz, 3185, SIS'!, 3189, 3191, 3194, 3199, 3204, 3216, and 3228; 4 An. 144, Cox v. Meyer.

It is, therefore, ordered, adjudged and decreed by the court, that the decree heretofore pronounced by us remain undisturbed.


author: Vooriiies, J.

text:
    Heirs of S. W. Philbrick v. Isabella Spangler.
    The presumption arising from facts whicli toui.1 to establish the status of marriage is not conclusive, but subject to be rebutted by testimony negativing the fact of marriage.
    Tlio declarations of the parties, to tho effect that they had never been married, will, under certain circumstances, outweigh the presumption of marriage arising from tho fact of the parties having lived together as mail and wife, and having been publicly recognized as such.
    Where it is charged that the legatee was tho concubine of the testator, such a legacy being in contravention of public policy, tho legal heirs of tho testator will be permitted to prove an illicit connection between the deceased and the legatee.
    An olographic will written in pencil is valid.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      C. B. Singleton, for plaintiffs.

      Geo. S. Lacey, for defendant and intervenor, appellants.
   Vooriiies, J.

The deceased, Samuel W. Philbrick, left a will, in the olographic form. The instrument reads as follows :

“ Should I die during this sickness, Mr. George- S. Kaus/er will send to my father, Samuel Philbrick, Skowhegan, Maine, one thousand dollars, the balance of my property to be given Isabel Spangler, 1 call her my wife."
“ Lafayette, December 2d, 1852."
(Signed) “ Samuel W. Philbrioic.”

The validity of this will is attacked by the legal heirs of the testator on the grounds, 1st, that it was written in pencil; 2dly, that the testator was not in his right mind when the will was written ; 3dly, that it was made subject to a condition’ which did not happen ; and 4thly, that Isabella Spangler was the concubine of the deceased, and consequently, incapacitated from receiving over a tenth part of the movables of the estate. There is, besides the demand in nullity or reduction of the last will and testament of the deceased, a claim against Isabella Spangler for the sum of four thousand dollars, being the value of property alleged to have been diverted by her from the succession.

■ After the institution of this suit, Isabella Spangler, who, after the death of Samuel W. Philbrick, had married IV. II. Nelson, departed this life, leaving as her universal legatee the latter, who thereupon intervened in this case.

The evidence adduced on the trial proves, that Samuel W. Philbrick and Isabella Spangler lived together for a period of over ten years ; that they were considered in the community as' man and wife ; that he held her up publicly and constantly, during' all that time, as his wife; that they visited respectable families, and had their visits returned; that they sojourned, on two different occasions, in the testator’s family, in the State of Maine, and did so as husband and wife; and finally, several of the witnesses, who were more or less intimately acquainted with the parties, and who testify to her good conduct and behavior, state that they never heard the fact of their being a married couple questioned before they were summoned to appear as witnesses in this case. The testator and the legatee had, therefore, up to the time of the former’s death, publicly, constantly and unequivocally possessed the status of marriage.

The evidence, therefore, creates a presumption that the parties were married ; but this presumption is Dot conclusive, but is subject to be rebutted. Holmes v. Holmes, 6 La. 470; Beaulieu v. Ternoir, 5 An. 480; Hobdy v. Jones, 2 An. 944; Cole v. Langley, 14 An. 770.

The plaintiffs introduced evidence to prove that the testator and the legatee were never married. Objection was raised by the defendant to their right, as legal heirs of the testator, to prove an illicit connection between the deceased and the legatee. This objection is not well taken. If the latter was the concubine of the testator, the legacy was in contravention of public policy. Proof was, therefore, properly admitted to show that fact: otherwise the prohibition of the law were a dead letter.

Three witnesses on the part of the plaintiffs gave their testimony, negativing the fact of a marriage having' ever taken place between Samuel W. Philbriclc and Isabel Spangler. But, before considering' their evidence, it is proper to notice the bills of exception taken by the defendant to the ruling' of the inferior court, as to their competency. These witnesses are, W. G. Mullen, the curator of the estate of Samuel W. Philbriclc, deceased, A. W. Bosworth, the agent of the absent heirs, and George S. Kausler. the testator’s partner.

W. G. Mullen, in his capacity of curator, has no interest in the result of this suit: his liabilities are the same, whether he is to render an account to the plaintiffs or to the defendant. The determination of his rights and liabilities is not involved in the decision of the present controversy.

A. W. Bosworth, in his capacity of agent of the plaintiffs, has no legal interest in the decision of this cause : he has no interest dependent upon the result.

The interest which the defendant conceives that George S. Kausler has in this controversy, arises from the fact that the witness is joint owner of a slave with the estate of Samuel W. Philbriclc, and that there is an agreement between the plaintiffs and the witness as to the transfer of the slave to the latter at a specified price. This might, according to circumstances, be a matter going to the credibility of the witness, but certainly not to his competency. These witnesses state, that the deceased, Philbriclc, and Isabella Spangler, have never been married; that their knowledge of this matter was derived from the declarations of these parties, made, not in the course of passing conversations, but when the subject of these conversations related to her interests, as liable to be affected by the death of Samuel W. Philbriclc.

It is true, that verbal admissions ought to be received with great caution, the more so when the party making them is dead at the time of the trial. “ But,” says Greenleaf, “ where the admission is deliberately made, and precisely identified, the evidence it affords is often of the most satisfactory nature.” Greenleaf, $ 200. Of this character are the declarations of the deceased Samuel W. Philbriclc and Isabella Spangler. The witnesses, who testify to these admissions, are not a little corroborated by the peculiar phraseology of the will in question. The testator does not devise his property to his wife, Isabella Spangler, but says : “the balance of my property to be given Isabella Spangler, I call her my wife.” We consider the presumption of marriage destroyed by the evidence on the record.

With regard to the other objections raised against the validity of the will, it is proper to remark, that they have not been urged on the trial before this court. The reasons given by the District Judge in overruling them are satisfactory.

With regard to the claim of $4000, there is no evidence in the record. It is true, the District Judge rejected the parol proof tendered by the plaintiffs to contradict the contents of an authentic transfer of slaves by the curator of the estate to Isabella Spangler; but this ruling was correct. C. C. 2233, 2255, 2415.

Judgment affirmed.


text:
    J. Artieta v. F. Artieta.
    Where a party called another a rogue in the hearing of bj'stanrlers, in a moment of irritation, and in reference to his unwillingness to settle a debt due him, and no injury resulted from such transient expression of angry feelings — Held : That such a case of defamation is not actionable.
    APPEAL from the District Oourt of the Parish of St. Bernard, Foulhouze, J.

      O. <& C. E. Schmidt, for plaintiff.

      P. A. Hueros, for defendant and appellant.
   Voorhies, J.

The plaintiff’s claim to be reimbursed the sum of $493 00, which he alleges to have paid for the defendant, is substantiated to the amount of $457 21. The evidence in the record leaves no doubt upon this point. So far, the judgment of the lower court must be affirmed.

The defendant, averring that the plaintiff' has slandered him, claims in reconvention the sum of one thousand dollars for damages. The District Judge allowed him two hundred dollars.

The plaintiff’s conduct in calling the defendant, his brother, a rogue, within the hearing of some bystanders, is certainly very reprehensible. But as this was done in a moment of irritation, and in reference to the defendant’s unwillingness to reimburse what had been disbursed for his account, and as no injury appears to have resulted, or could have resulted from this transient expression of angry feeling, the alleged case of defamation is not actionable.

It is, therefore, ordered and decreed, that the judgment of the lower court be avoided and reversed ; and that the plaintiff do have judgment against the defendant for the sum of four hundred and fifty-seven dollars, with legal interest from the 17th of May, 1858, with costs in both courts; and that the defendant’s reconventional demand be rejected.


author: Land, J.

text:
    Gilbert Graham v. R. B. Sykes.
    Unless it is expressly agreed, that a draft given is given in payment, it does not operate a novation of the dobt.
    An account which is signed and rendered by the debtor, is not an open account, and as such proscribed by throe years.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Clarke <& Bayne, for plaintiff and appellant.

      A. N. Ogden & Stansbury, for defendant.
   Land, J.

The commercial firm of Sykes & Hyde, of this city, rendered to the plaintiff, on the 17th of March, 1848, an account of sales of thirty-seven bales of gunny bags, showing in his favor a balance of $840 98. They remitted to plaintiff, in payment of this balance, a sight draft drawn by Martin & Co., of this city, to his order, on J. S. Lake & Co., of New York. The draft was protested for non-payment, and returned with the endorsement of plaintiff on it to Sykes & Hyde. They caused suit to be instituted on the draft, and prosecuted to judgment in the name of the plaintiff. Before judgment was obtained, they promised the plaintiff to pay the returned draft, if he would properly endorse it, and authorize them to continue the suit in his name. After judgment, they caused the draft to be withdrawn from the suit and compromised with Martin & Co., the drawers of the draft, by receiving some forty cents on the dollar.

This suit was commenced on the account rendered; and citation was served on the defendant on the 31st of October, 1855.

The defence is payment, and the prescription of three years, under the Act of the 5th of March, 1852.

The plea of payment is not sustained by the evidence. There was no agreement on the part of the plaintiff to receive the draft in payment; without which the draft was neither a novation, nor payment of the debt due on the account. Gails v. Schooner Osceola, 14 An. 54. The plaintiff’s endorsement was but a transfer of the bill to Sykes & Hyde, to whom it belonged, after its protest and return, and was necessary to vest in them the legal title, as it was payable to Ms order.

The account sued on was signed and rendered by Sykes <& Hyde, the debtors, and is not an “ open account," in the sense of the second section of the Act of the Legislature of the 5th of March, 1852, and is not, consequently, prescribed by the lapse of three years. Dixon v. Lyons, 13 An. 160.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed ; and it is now ordered, adjudged and decreed, that there be judgment in favor of the plaintiff for the sum of eight hundred and forty dollars and ninety-eight cents, with interest thereon at the rate of five per cent, per annum, from the 31st day of October, 1855, and costs in both courts.


author: Buchanan, J. Buchanan, J.

text:
    Adolphe Blache v. J. Aleix.
    An admission of part of tho claim sued on mado by the defendant, and a doposit by him of such amount into court before the trial of tho cause, although tho balance of the claim is not appealable in amount, will not prevent the defendant from appealing, unless the plaintiff, upon the confession and doposit being made, takes a partial judgment for the amount confessed, with a reservation of his right to prosecute to final judgment the balance of tho claim.
    A party purchasing an unexpired lease, in the absenco of proof to the contrary, is presumed to have purchased it, on condition of taking the premises in tho situation they were at the time of the salo ; and he has no claim upon his vendor for expenses incurred in restoring the premises to their original condition at the expiration of the lease.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Martin Blache, for plaintiff.

      Cyprien Dufour, for defendant and appellant.
    On motion to dismiss :
   Buchanan, J.

Plaintiff sued defendant for a debt of §350 under a contract of transfer of a lease. Defendant acknowledged the contract, but pleaded in compensation that he had expended moneys in repairs of the leased premises. He acknowledged himself indebted to plaintiff in a balance of §185 30, which he deposited in court, with costs to the day of deposit.

There was judgment in favor of plaintiff against defendant, for §350, and defendant appeals.

Plaintiff now moves to dismiss the appeal, on the ground that the matter in dispute does not exceed three hundred dollars.

The facts above stated make this case identical with that of Whitney v. Gauche, decided by us in November, 1855, and not reported. The decision will be found in Opinion Book 25, p. 409. The only difference in the two cases is, that here the appeal is taken by the defendant, who deposited the money in court; while in Whitney v. Gauche, the appeal was taken by the plaintiff.

Had plaintiff, upon the doposit being made, caused a partial judgment to be entered up for the amount confessed to be due, with a reservation of the balance of his claim, the case would have fallen within the doctrine of Second Municipality v. Corning, 4 An. 407, invoked by the counsel of appellee ; and upon that precedent, the motion to dismiss would have prevailed. But as the case stands, the whole issue is before us. The claim of plaintiff was not curtailed of its original proportions, in its progress through the District Court, before the rendition of tho judgment which is the subject of the present appeal.

Motion to dismiss appeal discharged.

On the merits :

Buchanan, J.

The plaintiff sues defendant for the price of the sale of a lease, and of certain articles upon the premises leased. The answer admits the amount of the contract as claimed; but pleads that plaintiff is liable to defendant for an amount paid by him, defendant, for replacing the premises, at the end of the lease* in the same situation in which they had been at its commencement, by replacing front doors which had been taken out by plaintiff for the purpose of inserting show cases of French plate glass, which constituted a portion of the articles sold by plaintiff to defendant.

We agree with the Judge of the District Court, that defendant has no claim upon plaintiff, for the restitution of the premises to their original condition, at the termination of the lease of which the unoxpired term had been sold. The salo was made of the premises in the situation in which they existed at the time of the sale, and the purchaser of the lease took upon himself the obligations of the lessee at the same time that he acquired his rights. One of those obligations was, to restore the premises, at the expiration of the lease, in the same situation in which they were at its commencement, necessary wear and tear excepted. Civil Code, Art. 2697. There is no allegation that any deception was practiced by plaintiff upon defendant; and the evidence convinces us that defendant was fully apprised of the facts in relation to the original condition of the premises, when he purchased the lease and fixtures oí the store.

Judgment affirmed, with costs.


author: Vookhies, J.

text:
    A. C. Roberts v. Hyde & Mackie.
    In an action for damages, evidence is inadmissible to prove damages of a different character from those set forth in the pleadings.
    Registry is not necessary as between the parties, to confer a privilege under a building contract.
    APPEAL from the Sixth District Court of New Orleans, Tlowell, J.

      J. S. Whitaker, for plaintiff.

      T. Gilmore, for defendants and appellants.
   Vookhies, J.

The reasons given by the District Judge in deciding this case are satisfactory.

There is in the record a bill of exception taken to his opinion overruling some questions propounded to a witness by the defendant, with the view of proving the latter’s demand in reconvention. This was a prayer for damages, alleged to have been incurred from the failure of the plaintiff to deliver a lot of timber in compliance with the contract.

The defendants, in their answer, state in what these damages consisted, to wit: “ That by the failure and neglect of the plaintiff to comply with his said contract, these respondents were delayed, and were obliged to suspend for weeks the work upon their dock, to their great inconvenience and expense, and were at length obliged to purchase timber from olhers at a p>rice greatly exceeding that which they had contracted to pay the plaintiff.”

The defendants attempted to prove damages of a different character, — the profits which they were prevented from realizing, by being delayed in finishing their dry-dock. On this ground, the District Judge properly overruled the questions propounded to the witness. Besides, these are remote damages.

The plaintiff, is entitled to the privilege awarded to him by the inferior court, although the contract, exceeding- five hundred dollars, was not recorded. Registry is not necessary, in order to affect the parties, although it is indispensable as to third persons. Townsend v. Harrison, 2 An. 174.

Judgment affirmed.


author: Meeeick, O. J.

text:
    William M. Betts v. E. Mougin et al.
    Where the injunction is dissolved by rule, on the ground of insufficient security, the defendant is not precluded thereby from claiming, on the trial of the merits, a judgment for damages against the principal and surety on the bond.
    The Act of the Legislature of 1855, authorizing the court to allow damages on the dissolution of an injunction, applies to the case of an.injunction where the Sheriff is only restrained from seizing specific property.
    PPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      T. A. Bartlette, for plaintiff and appellant.
    P. & N. Soule, for defendants.
   Meeeick, O. J.

This suit was brought to restrain the defendants and the Sheriff from seizing under executions issued against Todd é Co., certain property claimed by the plaintiff as owner.

The injunction was dissolved on a rule taken by defendants, on the ground of insufficient security, and afterwards the case was was heard on the merits, when judgment was rendered in favor of defendants, with twenty per cent, damages against principal and surety on the bond.

The plaintiff appeals, and contends, that as the injunction was dissolved a month before a trial on the merits, and as nothing was said in regard to the damages in said judgment on the rule, the court could not in another decree, viz, in a decree on the merits, award damages.

The statute says, on the trial of injunctions, the surety on the bond shall he considered as a party plaintiff in the suit. The judgment then spoken of, in which the surety may be condemned, is the judgment to be rendered on the trial of the injunction. We do not, therefore, see any objection to the rendition of a judgment for damages either on the rule or on the hearing of the case on its merits.

The latter mode might, in some cases, be preferable, as the court would be better informed of the merits of the plaintiff’s demand. At all events, it could not prejudice the plaintiff, for if he sustained his action on the merits, there would, it would seem, be no further judgment to be rendered against him or his sureties. Phillip’s Dig’. 247, see. 7.

It is further contended, that the law of 1833, (Act of 1855, p. 324.) authorizing damages on the dissolution of injunctions, does not apply to cases where the Sheriff was merely enjoined from seizing specific property.

If the plaintiff be enjoined from seizing certain property under his execution, the process of the court is as much obstructed as it would have been, if the party had waited until the actual seizure of the property by the Sheriff, and had then enjoined. The one case is as much covered by the statute as the other. It is true, that the first section of the Act of 1855, speaks of the sale of specific property, and directs the Clerk to take bond for an amount one-half over and above the estimated value thereof, as certified by the officer making the seizure.

It might be supposed that where the injunction issues to restrain the sale of specific property, the damages could not be awarded on the judgment, because the bond might not equal twenty per cent, damages thereon.

But in order to comprehend this clause of the Act of 1855, we must recur to the previous legislation on the subject; for this statute is but a collection of the existing statutes on the subject of injunctions prior to its passage.

In 1833, the power to issue injunctions was withdrawn from the Clerks of courts.

In 1835, the parish Judge was authorized to issue injunctions in the absence of the District Judge in cases pending in that court.

The Parish and District Judges had extensive discretionary power in fixing the amount of the injunction bonds. C. P. 304.

When the Constitution of 1845 went into operation, and the office of parish Judge was abolished, it became necessary to confer the power to grant injunctions upon Clerks, in the absence of the District Judge, but, in so doing, they could not be intrusted with the discretion vested in the District Judge. Hence, the Cleric was required to take a bond in amounts specially prescribed for his guidance by the statutes. See Acts of 1846,1850 and 1853.

In 1855, the various statutes on the subject of injunctions were collected under one head, and reenacted. It was not the intention of the Legislature, by reenacting what was law before, and what had received repeated judicial interpretations, to unsettle and overthrow well established principles and modes of proceedings.

The first section of the Act of 1855, above referred to, which is supposed to make a distinction between the injunction restraining the execution of a judgment and the sale of specific property, is nothing more than the 8th section of the Act of 1846, as amended by the Acts of 1850 and 1853, relative to Clerics, and the same section was reenacted in precisely the same words, under the sixth section of the Act relative to Clerks. Acts 1855, p. 50

It qonferrcd upon the Cleric the power to grant injunctions, and regulated the amount of the bond which he was required to take in the case of the injunction oí specific sum of money, and the sale of specific property. The latter paragraph of the first section of the Act of 1853, is identical with the first section of the Act of 1855, and evidently relates to Clerks. See Act 1853, p. 293. Phillip’s Dig. 246, sec. 1; ibid, p. 85, sec. 6.

The second section of the Act of 1855, is the reenactment of the second section of the Act of 1828, p. 150.

The third section is the reenactment of the ninth section of the Act of 1826, p. PÍ0.

The fourth section is the reenactment of the first section of the Act of 1825, p. 116.

The fifth section is also found in a former statute.

The sixth section is the reenactment of the third section of the Act of 1828 ; and the seventh and eight sections are the Acts of 1831 and 1833.

The objection that the bond taken by the Clerk might not equal the damages for which the party is liable under the statutes of 1831 and 1833, might have been made previous to the Act of 1853, as well as now.

By the Act of 1825, (5th sec. of Act of 1855,) the bond was required to be in double the sum alleged to have been paid, and by the 8th section of the Act of 1846, one-half over such amount. 1st sec. Act of 1855.

In other cases, the Judge had unlimited discretion over the amount of the bond, so that it might frequently happen that the bond fixed by him was insufficient to cover twenty per cent, damages on the judgment enjoined.

The case of Rowly v. Kemp, 2 An. 362, was a ease of this kind, and the damages were restricted to the amount of the bond.

The Legislature seems to have supposed that where defendant or a -third party enjoins the sale of specific property, that a bond in an amount equal to the value of the property, and one-half over, will cover any damage which the court will award, because the execution is not restrained as to other property. See Perry v. Kearny, 14 An. 400; Morgan v. Driggs, 3 An. 125; Lizardi v. Hardaway, 8 Rob. 20; Ludwig v. Kohlman, 5 An. 298.

On the merits, we cannot say the District Judge erred, or that the damages awarded by him are not justified by the facts.

Judgment affirmed.


text:
    Rice, Bros. & Co. v. Mrs. Alexander et als.
    The law as it stood in regard to the contracts of married women, previous to the Act of the Legislature of 1855, entitled “ an Act to enable married women to contract debts and bind their paraphernal and dotal property, ” remains unimpaired, with the difference, that a married woman taking the benefit of that Act, is placed on the same footing with a femme sole, her contract, furnishing full proof against her ; while under the general jurisprudence, those who deal with amarried woman, are bound to soo that the contract made with her enures to her benefit.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      A. W. Jourdan, for plaintiffs.

      MeCarty and V. F. & J. B. Cotton, for defendants and appellants.
   Voorhies, J.

The plaintiffs are the holders of a promissory note, drawn by Mrs. Alexander, payable to herself, and having the blank endorsements of herself and of her husband, Edward Alexander.

The evidence shows, that this note, which is now in the hands of third persons, was executed in consideration of certain improvements made on the property of Mrs. Alexander, and that the consideration has enured to her benefit. Her defence is, that she was not legally authorized to sign this note, and bind herself for this indebtedness, the formalities of the Act of 1855, relative to the contracts of married women, not having been complied -with.

There are, in the record, two bills of exception to rulings of the District Court involving the defence, upon which the appellant, Mrs. Alexander; relies for the reversal of the judgment rendered against her.

The construction placed by the appellant on the Act of 1855, enabling married women to contract debts, and bind their paraphernal and dotal property, would have the effect of doing away with the whole of our previous jurisprudence upon the same subject-matter; whilst the last clause of this statute repeals only such laws, or parts of laws, as are inconsistent with, or contrary to its provisions. Sess. Acts, 254.

If such a construction were adopted, married women could not transact the ordinary business of their separate estates, without going through the whole forms prescribed by the statute. Nay, contracts enuring to their benefit, and the advantages of which they might .yet be reaping, would be tainted with nullity, as in the present instance. But the statute is susceptible of a different and more rational interpretation — one not productive of such evil consequences.

It is evident that its object is to extend additional facilities to married women to manage their separate interests, at the same time that it guards and protects them against the undue exercise of marital influence in this respect. The law, as it stood previously, remains unimpaired, with this difference : when married women take the benefit of the Act in question, they are placed on the same footing as femme sole, and their contracts furnish full proof against them and their heirs, and are as binding in law and equity in all the courts of this State, and have the same effect as if they were femme sole; but their contracts, which have not this particular sanction, are to be governed a's ordinary contracts of married women, under the general jurisprudence, and those who deal with them in that manner must see, to their own peril, that the contract enures to their benefit.

Whatever technical objections the appellant might raise against the validity of the instrument, which she has executed in favor of her creditor, and which is now in the hands of innocent holders, need not be considered under the state of facts exhibited by the record. She cannot reap the advantages for which this note was given, and, at the same time, repudiate the contract.

Judgment affirmed.


text:
    William Beste v. His Creditors and the Creditors of Beste & Grima.
    Where an agreement was made in writing by one partner, signing tho name of the firm, in which it was agreed that the firm should pay to the brother of tho partner making the agreement, a salary for services to be rendered by him ; and the evidence showed that the party thus employed was unfit to discharge the duties imposed on him by the agreement, and that the agreement was kept from the knowledge of the other partner — Held: That under such circumstances, no effect should be given to the agreement, as an evidence of indebtedness, against the creditors of the partnership.
    from the Fifth District Court of New Orleans, Eggleston, J.

      A. & A. Pitot, syndic, appellant.

      M. M. Reynolds, for opponents.
   Buchanan, J.

This is an appeal from the judgment upon the opposition filed by the curator of Edward Beste, deceased, to the provisional account of the syndic.

The opposition claims that Edward Beste be classed as a privilege creditor for services as clerk of the house of Beste & Grima, in New Orleans, from May 1st to August 31st, 1857, in the sum of §400; and in the further sum of §1,800, as agent of the house in St. Louis, under a special contract.

The first item must be rejected. It was directly disproved by Felix Grima, Junior, the partner of the insolvent, and by Eugene Deffez, the confidential clerk of the house.

Their testimony is more direct and satisfactory than that produced in support of the item, and is corroborated by the books of the firm, which were given in evidence.

Upon the second item, the case of opponent rests upon a document, written and signed by the insolvent, William Beste, which bears date the 31st of August, 1857, but does not appear to have been seen by any of the witnesses, (with the exception of one,) until it was filed and offered in evidence on the trial of this opposition, on the 18th of February, 1859. This document is in the following-words :

Nous soussignés Messieurs Beste et Grima, de la Nouvelle-Orléans, convenons ave0 Mr. E. Beste, qu’en lui dormant laprocuration genérale de notre maison d Saint Louis, Mo., qu’il aura a recevoir depuis ce jour les appointements de mills huit cents piastres Van, et qu’aussitót que les bénéjices le permettent nous lui állouerons d’autres avantages et un intérét dans tout ce qui regards les affaires de Saint Louis.
“ En foi de quoi nous avons signé.
“ Saint Louis, le 31 Aoüt, 1857.
“ Beste & Grima, de la Nouvelle-Orléans.”

The evidence shows, that the firm of Beste & Grima had a branch of their house of the same name, established and doing business in St. Louis, under the management of one Béchaux; that on the 24th of July, 1857, in consequence of matters not going on to their satisfaction in St. Louis, this house despatched Eugene Beffez to St. Louis, with the power of attorney to take their business and property out of the hands of Béchaux ; that Beffez, on his arrival at St. Louis, having examined the books, and satisfied himself that there was nothing wrong, did not make use of the power of attorney which he held, but came back to New Orleans, leaving Béchaux in possession ; that William Beste, the senior partner of the firm, went to St. Louis, some weeks afterwards, for the purpose of closing the business of the firm at that place, as his partner testifies; that William Beste, in the name of his firm, by a procuration signed in St. Louis on the 1st of September, constituted Béchaux and Edward Beste, the joint and several attorneys of Beste & Grima, with general powers; that Edward Beste was a man of intemperate habits, in bad health, who was sent up to St. Louis from New Orleans in June or July, 1857, by his brother, William Beste, with the avowed intention of benefiting his health, and reforming his habits.

Lafitte, a witness of opponent, who accompanied Edward Beste to the steamboat for St. Louis, says that he knows that Edward was to have an interest in the house at St. Louis, of one hundred dollars per month, the same as Béchaux. And in corroboration of this, Béchaux, examined by the syndic, testifies that William Beste told him, when about leaving St. Louis, that ho was going to give his brother Edward a salary of one hundred dollars a month.

Many witnesses on both sides, concur in representing Edward Beste, as a man whose business capacity was greatly impaired by gross and habitual intoxication. And one of the clerks of Be;te & Grima, in New Orleans, named Laurent, testifies, that William Beste showed to him the document copied above, after his, Beste’s, return to New Orleans from St. Louis, in the fall of 1857, and asked his opinion about it; and that the document was not signed at that time.

The correspondence of the firm after Beste’s return, shows that their whole desire was to bring the business in St. Louis to an immediate close; yet this document is an engagement of services for a year to come, with a prospective partnership in the St. Louis house, while, in fact, the business appears to have been wound up, and Edward Beste returned to New Orleans about the middle of December, just before William Beste filed his bilan in court.

When, in addition to all these circumstances, we find that William Beste kept the document in question a secret from his partner, and that it was never produced by Edward Beste, who died after his brother’s failure, we agree with the court below, that no effect should be given to it, as an evidence of indebtedness against the creditors of Beste & Grima.

We consider that we interpret the evidence very liberally in favor of the opponent, in allowing three hundred and fifty dollars, for three and a half months services of Edward Bede in St. Louis, at one hundred dollars per month.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and that the opposition of the appellee be maintained for the sum of three hundred and fifty dollars, with privilege of clerk hire ; the costs of appeal to be paid by the opponent and appellee.


text:
    W. P. Thompson, Agent, v. Chauncey Parent et als.
    When, "by agreement of counsel, all the evidence taken in writing on a previous trial was to be received, subject only to the exceptions that might bo made to its admissibility, on appeal, the Supreme Court will not notice bills of exception which wore taken on the previous trial.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Collens ifi Woolridge, for plaintiff and appellant.

      II. T. Hays and L. M. Hay, for defendant.

      J. T. Lacy and R. L. TJpton, for intervenors.
   Buchanan, J.

This suit, upon a building contract, has been already before this court, and was remanded to allow plaintiff an opportunity of offering evidence to establish the allegations of his opposition to the homologation of the report of an expert. See the report of the decision in 12th An. p. 183.

The only additional evidence offered by plaintiff, who is a second time appellant on the trial of the cause as remanded, is the testimony of one witness, that plaintiff has been compelled to spend one hundred dollars for repairs : and that there is a slight difference in the finish of the front of the buildings, as erected, and that of a building in Rampart street, referred to as a model, in the contract.

The following argreement of counsel was also put on file :

“ In this case, by consent of parties in open court, the rule for homologation of the report of the expert, is cumulated with the merits ; the testimony heretofore taken in writing is to be received, subject only to the exceptions which may be made to its admissibility under the pleadings.”

In argument, wo are referred by the appellant, to several bills of exceptions reserved on the trial in the District Court, which preceded the first appeal.

We cannot notice those bills of exception. All the exceptions to evidence in the old record, were disposed of by the decision in 12th An.

No exceptions were reserved upon the second trial, as should have been dono under the agreement copied above, had the appellant desired to have any interlocutory rulings of the court below reviewed upon this appeal.

"We find no error in the amount awarded by the District Court, as due by plaintiff upon the contract, and for extra work. The amount proved to have been paid by plaintiff for repairing leaks, seems to have been allowed by the court below, in deduction of the balance due on the contract.

Appellees, in their brief, ask us to amend the judgment in their favor, by allowing interest. This application is not made in the form required by the Code of Practice, to wit, by answer to the appeal.

Judgment affirmed, with costs.


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    Isaac Bateman v. Frisby & Kendig.
    "Where, by the terms of a will made in Arkansas, certain slaves were to be set free as soon as two-thirds of their appraised value had been paid to the heirs of the testator for their hire — Held : That one of the slaves sold in this State was entitled to his freedom, upon showing that the amount required to be realized by him had been realized.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      A. Lathrop, for plaintiff.

      T. J. Semmes, for defendant and appellant.
   Land, J.

The plaintiff sues for his freedom, and claims title thereto under the last will and testament of his former owner, made and probated in the State of Arkansas.

The law of that State, on the subject of the emancipation of slaves, is as follows :

Sec. 1. Any person may emancipate his slaves by last will and testament, or by any other instrument in writing, under hand and seal, attested by two witnesses, and proved in the Circuit Court of the county where he resides, or acknowledged by the party in the same court.

Sec. 2. Such emancipation shall have the effect to discharge the slave from the performance of any contract entered into during servitude, and shall make such slave as fully and perfectly free as if such slave had been born free.

The testator in his will declared that his slaves should remain in the possession and service of his wife until her death, and that, on the happening of that event, two of them, described by name, should be liberated and set free, and that his other slaves, with their increase before the death of his wife, should be appraised and hired out, after her death, until their hire should amount to two-thirds of their appraised value; then, and in that event, each and every one of them should be liberated and set free from all further servitude whatever, and that the hire of the slaves should be paid over to, and equally divided between his three eldest sons.

The testator, after making his will, made a codicil thereto, in which he declared that his slave Isaac (who is the plaintiff in this suit) should, after his own death, be hired out, and that one-half of the proceeds should go to his wife, and the other half to be equally divided between his four daughters; and that, after the death of his wife, the proceeds arising from the hire of Isaac, instead of going to the use and benefit of his three oldest sons, should be paid over to, and equally divided between his four daughters.

The testator died in 1850, and his widow in April, 1851, and after her death, Isaac was appraised at the value of six hundred dollars, and his hire in the State of Arkansas was worth one hundred and fifty dollars per annum. Some four years after the death of the testator’s widow, the plaintiff was removed from the State of Arkansas, by the administrator, with the will annexed of the estate of the testator, and sold as a slave for life to the defendant, Kendig.

The defence made in this court is, that under the terms of the will, the plaintiff was not entitled to his emancipation until all the other slaves were, that is, until the hire of all the slaves amounted to two-thirds of their appraised value. In our opinion, the plaintiff was not bound to prove more than he has proved on that point in this case, that is to say, that his own hire exceeded two-thirds of his appraised value, before his sale to the defendant; and whatever validity there may be in the defence set up, the plaintiff having made out his own case the burden of proof in support of the defence was thereby thrown upon the defendant, who admits that no proof has been made.

We are not satisfied that there is any error in the judgment of the lower court, based as it is upon the verdict of a jury, in awarding damages in the sum of three hundred dollars to the plaintiff.

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


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    J. W. Blackman v. William Leonard.
    A notice oC protest served on tlio endorser at his residence in Now Orleans on the day after the protest is sufficient.
    The holder of several notes of the same maker, has aright to impute apartial payment mado on them to part of the notes, and is not hound to make the imputation to all pro rata.

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

      Whittaker & Fellows, for plaintiff.

      Charles E. Schmidt, for defendant and appellant.
   Land, J.

This suit was instituted against the defendant as the endorser of nine several promissory notes. His defence is, first, that he was not duly and legally notified Of the protests of said notes; secondly, that time was granted, by the plaintiff, to the maker of the notes, for a valuable consideration, without his (defendant’s) consent; and, thirdly, that the maker of the notes made a partial payment to the plaintiff, to the benefit of which, he, the defendant, is entitled.

I. There was only judgment against the defendant on four of the promissory notes, and the evidence shows that they were duly protested at maturity, for nonpayment, and that notices of protest were served on the defendant, at his residence in this city, on the day after the protest. This notice was sufficient.

II. The evidence does not show that the plaintiff granted time to the maker, without the defendants’ consent.

III. The maker of the notes made a payment to the plaintiff of two hundred and fifty dollars ; but at the time, the plaintiff was the holder of fourteen several promissory notes of the maker, for which the defendant was liable.

The imputation to a part of the notes, they all bearing the same rate of interest, instead of an imputation to all pro rata, was an advantage to the debtor, as it thus extinguished more of the capital, or otherwise the imputation was to him immaterial.

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


author: Merrick, U. J. Buchanan, J.,

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    Perkins, Campbell & Co. v. H. B. Cenas.
    ■When the heirs, hy an act under private signature, regulate "between themselves the mode or partition of the estate, and authorize the curator to pay certain claims, and. further verbally authorize him, m order to save expense, to settle the affairs of the estate out of court; Held: That the surety of the curator is not discharged from liability by such acts of the heirs, but will be held responsible on the failure of the curator to account or pay over money which he may have received.
    PPEAL from tho Second District Court of Now Orleans, Morgan, J.

      Benjamin, Bradford & Finney, for plaintiffs.

      L. Pierce, for defendant and appellant.
   Merrick, U. J.

II. B. Cenas was the surety of Christy, the curator of tho succession of William Plunket, deceased, on his bond. An appeal was taken by the plaintiffs from the judgment homologating the account rendered by the curator in the succession of William Plunket, deceased. The judgment of the lower court was amended and affirmed by this court in June, 1857. See 12 An. 558.

On the return of the mandate to the lower court, a fi. fa. was issued, and on its return nulla bona, steps were taken to render H. B. Cenas responsible as surety on the bond for the amount of plaintiffs’ debt.

Tire judgment of the lower court on the rule against the surety, having been in favor of plaintiffs, defendant appealed.

The defendant died after the appeal was taken, and his executrix has made herself a party to tho same.

The testimony in the former case, it was agreed, should bo used in the present.

This court, in deciding the former case, said :

“ It is clearly established :
1st. That tho heirs, by an act under private signature regulating the mode of partition of the estate between themselves, withholding certain property from sale, and partitioning the slaves, authorized the curator to settle up the claims as soon as practicable, designating in part the manner in which he should act, by recognizing a certain debt of $1000 against the estate.
“ 2d. That the heirs verbally authorized the curator, in order to save expense, to take the affairs of the estate out of court, and settle up the same.
3d. That William and Joseph Plunket authorized the curator, besides settling up tho estate, to pay their individual debts.”

The counsel for tho appellant contends, that Christy (it is thus shown) was discharged from his office of, curator, and became the private agent of plaintiffs’ assignors ; that the contract between the heirs and curator was changed ; that the oath of office no longer bound tho curator to account; that he could not be called upon to account in a summary manner, nor bo arrested and imprisoned; that the curator was not compelled to keep a bank book, nor to render an annual account, and that this change of tho contract released the surety.

In order to determine this question, we must consider what is the obligation assumed by the administrator, executor or curator, in entering upon the duties of his office. His obligation is principally that of a mandatary, to administer and account. Or, as it is expressed in the condition of the bond subscribed by the defendant, the curator shall “ well and truly, according to law, administer ” the succession, “ and make arid'render a true, just and perfect account of his actions and doings when .thereunto lawfully required either by the aforesaid Judge, or his successors in office agreeably to law, or by the heirs of the said deceased, or their lawful attorneys.”

The first of the three propositions established by this court shows the heirs partitioned a j>ortion of the property among themselves by an act under private signature, and that they authorized the payment of a particular debt. This mode of making partition is recognized by the Code, and if the heirs were of age, prudence may have required that the curator should consult them in regard to doubtful debts. It was but a mode indicated by which the curator was permitted by the heirs to discharge his obligation pro tanto. And this may also be said of the third proposition. The curator has funds in his hands which he is obliged to pay over to the heirs. Now, what difference does it make, whether he pays it directly to the heirs, or to some person delegated by them to receive it? If a third person may be delegated to.receive it, why may not a creditor of the heirs be indicated as well as any other person ? He is but the attorney, or agent in rem suam, mentioned in the bond. Suppose the interests of the heirs had been attached or assigned, would it not have presented the same question ? It is after all but a mode of making payment, and does not novate nor even touch the binding force of the obligation.

But by the second proposition it is established, that the heirs verbally authorized the curator, in order to save expense, to take the affairs of the estate out of court, and to settle up the same; and it is supposed that this, as it released the curator from the twenty per cent, interest, also exempted him from the summary process of the court, and operated to the prejudice of the surety. It is true, the creditor must at all times be ready to subrogate the surety to his rights against the principal debtor, and he must preserve his mortgage and other securities for the benefit of the surety who pays, but there is no law, except relative to prescription, which compels the creditor to resort to legal process to compel the principal debtor to pay, nor to continue the process when once commenced. So, if suit had been commenced on an obligation against the principal debtor, the surety could not complain if the suit were afterwards dismissed, or if it were agreed (to use familiar language) to take the case out of court, provided time were not given the debtor, because the suit might be immediately recommenced by the creditor himself or the surety in the event of payment.

So in the present case, nothing prevented the heirs from countermanding their previous directions, and returning into court and demanding for the future a strict compliance of the provisions of law. And, in fact, this was done, and the judgment which the surety is now called upon to pay was on the rendition of an account ordered by the court having jurisdiction over the succession.

The heirs, it is true, by facilitating the administration and settlement, had precluded themselves from exacting penalties, but not from compelling a full rendition of accounts and exacting, all sums of money received by the curator as such.

It would be extremely mischevious to hold, that any deviatioirby the curator, &c., from the rigid rules of the law, such as the delivery of property by him to the heirs for partition, or the payment of debts with their assent, without the order of court, (or in other words out of court,) was a release of the surety.

Few successions are settled up without the payment of some debts, before the order of the Judge can be obtained and the tableau of distribution filed. If the money is used to pay debts, it cannot remain in bank.

We do not discover that the acts of the heirs or plaintiffs, released or novated the original contract of the curator to administer and account.

We see, therefore, no ground for the discharge of the surety. We do not consider the authorities cited by appellant as applicable to the facts of this case.

Judgment affirmed.

Buchanan, J.,

concurring. The defendant is sued as security of William, Christy, upon his bond 'of curatorship, for sums of money belonging to Joseph Plunkett, of whom plaintiffs are assignees ; which sums of money came into the hands of Christy, before the time at which, according to the latter’s answers to interrogatories, he was authorized by the heirs to take the affairs of the estate out of court. I, therefore, concur in the judgment, holding the security of Christy responsible for these moneys; although, had the time oí' the reception of the moneys by Christy been subsequent to this arrangement with the heirs, in my opinion, upon the authorities cited in the brief of counsel for defendant, the security upon the curator’s bond would not have been liable.


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    Celestine P. Fleytus v. Her Husband.
    An immovable, bought with dotal funds, is dotal.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      C. Morel and L. LeGardeur, for plaintiff and appellant.

      E. Morel, for defendant.
   Buchanan, J.

The amount of the claim of plaintiff against her husband for dotal property, consisting of cash and notes, that have come into the hands of her husband, seems to bo correctly stated by the Judge of the District Court, at the sum of $19,700. It it is also proved that the husband is very much embarassed in his affairs.

The judgment of the court below, however, requires amendment in this; that the dotal funds of the plaintiff received as aforesaid by her husband, are proved to have been invested, in great part, in the purchase of a house and lot, and the stock of an apothecary’s shop in Chartres street, No. 140, from Louis Joseph Bufilho, Jr., on the 31st of March, 1855.

An immovable, bought with dotal funds, is dotal. C. C. Art. 2336.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the plaintiff have judgment decreeing a separation of property between herself and her husband, the defendant; that the house and lot, and stock of an apothecary, No. 140 Chartres streets, purchased by plaintiff of Bufilho, for the sum of $18,000, by act before Bryfous, Notary, on the 31st of March, 1855, be decreed to be dotal property of plaintiff; and that plaintiff recover of defendant, with the privilege granted by the law to married women for the security of their dotal rights, the sum of seventeen hundred dollars and thirteen cents, with costs in both courts.


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    Wm. Hagan, Syndic, v. Wm. Gaunt et al.
    Where the record, of appeal is not complete, in consequence of the failure of the plaintiff to file with the Clerk certified copies of records offered in evidence, a writ of certiorari will not enable the defendant who is appellant to complete the record, and in such case, the judgment of the lower court will bo reversed, and the cause remanded for a new trial.
    PPEAL from the Fourth District Court of Now Orleans, Price, J.

      A. T. Steele, for appellant.

      F. C. Laville, for defendant.
   Land, J.

This is a suit on an injunction bond for the recovery of damages. There was judgment against the defendant and his surety, in solido, for the sum of twelve hundred dollars, and they have appealed.

The evidence on which the case was tried, is not all in the record. On the trial below, the plaintiff offered in evidence the suit of Wm. Gaunt v. Wm. Hagan, in the Third District Court, and the proceedings in the matter of Thomas Barrett & Co. v. Their Creditors, also in the Third District Court, together with the appraisement of the property by the appraisers, — but the Clerk certifies that none of these documents had been furnished, or filed in this suit, prior to the date of his certificate.

The suit of Gaunt v. Hagan was the injunction suit, in which the bond was given, and the suit itself, and especially the judgment therein, is material evidence ; in the absence of which the judgment of the lower court, in this case, cannot he affirmed, nor satisfactorily revised by us, and corrected, if erroneous.

It was the duty of the plaintiff, who offered these records in evidence, to have filed with the Clerk certified copies of the same, and his failure so to do is a fault which cannot be imputed to the defendants and appellants. A writ of certiorari would not enable the appellants to complete the record, and a dismissal of the appeal would be to them, perhaps, a denial of justice. It therefore becomes our duty to reverse the judgment, and remand the cause for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment he reversed, and that the cause be remanded to the lower court for a new trial, and that plaintiff and appellee pay the costs of this appeal.


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    C. Yale, Jr., & Co. v. G. S. Whitmore.
    A garnishee who pays over tlie funds attached in his hands to the Sheriff, after the return of the writ of attachment, without an order of court, or the consent of the plaintiff, docs not thereby release himself from the plaintiff's claim.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Emmerson & Huntington and Neville Soulé, for plaintiffs and appellants.

      Clark & Bayne, for garnishees and appellants.

      Geo. W. Helme, for defendants.
   Buchanan, J.

Plaintiffs having obtained judgment against defendant in a suit commenced by attachment, took a rule on the garnishees contradictorily with two other attaching creditors, to be paid the amount of judgment, by preference, out of the funds of defendant attached in the hands of the garnishees. The rule was made absolute, and judgment entered up against garnishees accordingly. The latter have taken a suspensive appeal from this judgment, and urge in this court that, since the attachment, they have paid the funds of defendant in their hands over to the Sheriff, as shown by the Sheriff’s return of the writ of attachment, made some six months after the return day of the writ, and after this rule taken, although before the trial of the same. This return was not given in evidence on the trial of the rule against the garnishee, nor do we see any reason to doubt the statement of the counsel of appellees, that no mention was made of the fact until the trial of the case in this court. We are at a loss to understand why a suspensive appeal was taken by the garnishees from the judgment of the lower court upon the rule. That judgment was acquiesced in by the two other-parties to the rule, the attaching creditors, who alone were interested in the contest. The position of garnishees was simply that of a stockholder; for plaintiffs had withdrawn their traverse of the garnishees’ answers to interrogatories.

The case of Brown v. Richardson, 1 N. S. 210, relied upon by the appellant, is not in point. In that case, the garnishees had, previously to the judgment against them, delivered over the property attached in their hands to the defendant, by order of court, granted upon the consent of the plaintiff in attachment.

Judgment affirmed, with costs.


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    L. Carreta v. J. T. Lopez.
    The sale of a slave will be rescinded on account of the redhibitory defect of insanity, the existence of which was known to the vendor at the time of the sale.
    APPEAL from the Third District Court of New Orleans, Buvigneaud, J.

      L. Charet, for plaintiff.

      L. Costera, for defendant and appellant.

      Elmore c6 King, for warrantor.
   Voorhies, J.

The object of this suit is to have the sale of a slave rescinded, on account of the redhibitory vice or defect of insanity.

The defendant, who is the vendor, denied the existence of the malady at the date of the sale, and averred that, if it did exist as alleged, it was apparent upon simple inspection. He concluded by citing his vendor in warranty.

The allegations that the slave was not diseased, and that, if diseased, the defect was apparent, are manifestly inconsistent. Apart from this, however, the evidence on the record, and the defendant’s answer on facts and articles, show conclusively the facts of the existence of the redhibitory defect, and the vendor’s knowledge. It appears, also, that the slave’s infirmity was not apparent at the date of the transfer; indeed, it is strenuously contended, on behalf of the defence, that its very existence cannot be traced to that epoch.

The warrantor’s are entitled also to a judgment against their vendee, because it is not shown that, at the date of their transfer, the slave was afflicted with insanity.

Judgment affirmed.


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    Daniel Bloom v. W. J. Beebe.
    Tho redhibitory action cannot be maintained on account of a disease, existing at the time of the sale, which was apparent and might have been discovered by simple inspection.
    Tho knowledge of the agent of the vendee in possession of the slave, at the time of the sale, will be considered the knowledge of tho principal.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      J. B. Cotton, for plaintiff and appellant.

      Michel & Koontz, for defendant.

      Durant & Hornor, for warrantors.
   Land, J.

This is a redhibitory action to annul the sale of a slave, and to recover back the price paid, with damages, on the ground of an incurable disease, or malady, called “ Coryza,” or chronic cold in the head,” existing in the slave at the time of the sale.

The defendant’s answer admits the sale, as alleged, but denies generally the allegations in the petition, and specially, that the slave was afflicted with any redhibitory disease at tho time of the sale; and contains a special plea to the plaintiff's action in these words :

“ Further answering, respondent avers that petitioner, through his agent, had continuous possession of said slave boy, Monday, for nearly three months, previous to the date of said sale, and that, if said slave was afflicted with any disease whatever, it was an apparent one, and petitioner, through his said agent, must have been aware of its existence at the date of said sale, and purchased with full knowledge of the condition of the health of said slave.”

The evidence shows, that the slave was affected before, and at the time of the sale, with a chronic cold in the head, and that this disease was made apparent by a running of the nose, and was known to the agent of the plaintiff, who negotiated the sale in connection with plaintiff’s son. The knowledge of the agent was the knowledge of the principal; and, as Art. 2497 of the Oivil Code declares that apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices, it follows that the plaintiff has no right of action to avoid the sale and to recover back the price, on the grounds alleged in his petition. See 4 Wheaton, 534; Sugden on Vendors, 534; Henncn’s Digest, 879, No. 18..

It is, therefore, ordered, adjudged and decreed, that the judgment bo affirmed, with costs.