text:
    Caldwell v. St. Louis Perpetual Insurance Company.
    The statute of Louisiana of the 6th March, 1834, requiring the captain, owners, or agents of steamers plying within this State, to cause the machinery of their boats to he examined by officers appointed nnder that law, ceased to have the force of law after the passage of the act of Congress of the 7th July, 1838, providing for the better security of the lives of passengers on vessels propelled by steam. ' The exercise by Congress of the power conferred on it by the constitution of the united States, to legislate on the subject, rendered the state law inoperative-
    The rules and principles of marine insurance must be applied to the interpretation of policies of insurance’effected upon vessels exclusively employed in inland navigation, when not inapplicable by reason of the particular subject matter.
    Where a policy of insurance upon a steamer employed in inland navigation, after enumerating certain risks to be borne by the insurer, recites that, besides those particularly mentioned, the insurer will be answerable for " all other perils, losses and misfortunes which shall come to the damage of the said boat, according to the general laws of insurance,” a loss resulting from a collision produced by the negligence of the officers of another steamer, though not an enumerated risk, will be coveredby the policy, being one of the perils of the river.
    The impossibility spoken of in the 5th section of the statute of the 6 th March, 1834, relative to steamers, which declares “ that any accident except such as are impossible to be foreseen and avoided,, that may happen from racing, running into another boat,” &c., shall subject the owner to the forfeiture of insurance, &c., must be considered as an impossibility by reasonable intendment, according to the circumstances of each particular case.

      APPEAL from the Commercial Court of New Orleans, Watts, J.

      Elmore and King, for the plaintiffs.
    A loss by collision is a loss by the perils of the river, and is covered by the policy. Hughes on Ins. p. 216. 1 Phillips on Ins, p.. 636. Peters v.- Warren Ins. Co., 14 Peters 112. The general competency of the pilot of the Buckeye is established by the evidence; ,and negligence on his part is no defence against an action by the assured, unless it violate some of the implied warranties of the policy. Waters v. Merchant's Louisville Ins. Co, 11 Peters, 213. 10 Peters, 507. 3 Peters,'222. Hughes on Ins, 216, 217. 1 Phillips on Ins. 579, 585. Henderson v. Western Marine and Fire Ins. Co., 10 .Robinson, 166. The rule by which to ascertain whether the negligence of the pilot forms a good defence for the Insurance Company, will be found in 3 Peters, 235. The case of Hermann et al v. Western Marine and Fire Ins. Co., 13 La. 516, was decided against the plaintiffs, on the ground of the master having improperly taken a schooner in tow. The case of JDupeyre against the same company, 2 Robinson 457, turned wholly upon the question of seaworthiness. The provisions of the stat. of Louisiana of 1834, on the subject of negligence by the pilot, cannot servo the cause of the defendants. The provisions of that law are repugnant to the constitution of the United States, and were annulled by the act of Congress of 1838. Gordon’s Dig. p. 598. The law of 1834, was a law regulating navigation, and, by the constitution, power to regulate all navigation, as well as commerce, was exclusively vested in Congress. See Gibbons v. Ogden, 9 Wheaton 1. Brown v. State of Maryland, 12 Wheaton 419. City of New York v. Miln, 11 Peters, 102.

      ¡£unton, for the appellants.
    The Buckeye was unseaworthy, the pilot being incompetent, and the boat overloaded. The collision resulted from the negligence or want of skill of the insured, or of his agents. 13 La. 524. 2 Robinson 457. 13 Johns, 451. 1 Phillips on Ins. 312, 587, 597. It was possible to have avoided the collision, and under the 3d and 5th sections of the statute of 1834, no recoveiy can be had on the policy. Loss by collision is not an enumerated peril, nor is it included under the term perils of the river, unless it occur without any fault of the insured. 3 Kent 300. Story on Bailment, 230, 2. Stevens and Benecke, 378. 1 Phil, on Ins. 635-6. Abbott on Shipping, 256.
    R. N. Ogden, on the same side.
   The judgment of the court was pronounced by

Slidell, J.

The defendants effected insurance in favor of the plaintiff on the steamer Buckeye, for a certain term, the boat to be employed in the navigation of the Mississippi river, from New Orleans as high as Fort Adams. The policy was executed at New Orleans. She was lost on a voyage within the policy. The plaintiff claimed for a total loss, and he had judgment in his favor in the court below. The defendants have appealed.

The first point of defence presented by counsel is, that the Buckeye was un-seaworthy, upon which point three propositions are submitted.

It is said that the boat was not sound, but old and frail. Upon this question we are of opinion that the defendants cannot succeed. Two inspectors of New Orleans offices examined the boat, critically, eleven months before her loss, and recommended her purchase to the plaintiff. One of these inspectors was employed by the defendants to inspect the boat a few days before the loss, and upon his favorable report the policy was executed. A large sum, being nearly the amount of the valuation in this policy, was spent in repairs a few months anterior to the voyage in question. She had received from shippers a full freight. She started on her voyage crowded with passongers. The defendants have not presented any thing sufficient to overthrow the deduction of seaworthiness resulting from these proofs.

It is said that the steamer was overladen. That she had a heavy cargo is shown, and a witnesss was examined, who having shipped property in her and having visited the boat when on the eve of her departure, conceived an anxiety about her safety, and went immediately to effect insurance. The underwriter was aware that the boat was deeply laden, but appears not to have regarded the lading as excessive, and gave a policy. The witness was a professional man, and acknowledges that he was not a good judge in such matters. A merchant also deposes on this point, who likewise visited her at the same time. He had goods on board, but felt no alarm and effected no insurance. Other witnesses depose that she was not unduly burdened. We do not think the objection ten- » able under the evidence.

It is next urged that there is no proof that the Buckeye was supplied with the engineer’s official certificate, as to the sufficiency of the boat, engines and boilers, as required by the state act of 1834. See Acts of 1834, p. 55.

It might be'questioned whether the proposition would, anterior to the act of Congress of 1838, have been tenable to the broad extent in which it is stated by the counsel. It is not declared, by the statute, in such clear and express terms, as to be free from all doubt, whether this statute was intended to comprehend within the requisitions of the second and third sections, boats plying between this and other States. But, however, this may be, we do not consider the objection tenable for the following reasons: This statute was enacted in the year 1834. In 1838, the Congress of the United States enacted a statue entitled “An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” This statute provided for the appointment of inspectors of vessels propelled by steam, and the Buckeye had obtained certificates from these inspectors. Thus, under the constitutional power to x-egulate commerce, Congress provided for this very subject matter, the inspection of the machinery and boilers of steamboats. If it be conceded that the State had the power, notwithstanding the constitutional grant to Congress, to legislate as to the inspection of boats plying between this and other States, yet we consider that Congress, by exercising, in 1838, the power, which on this subject until that period had lain dormant, absorbed this particular subject of legislation, and,ywo tanto, rendered the Louisiana statute inoperative. Moreover, we are satisfied that the law of 1834, in this particular, even if not rendered inoperative, had become obsolete. If the chief magistrate of the State did not think proper to appoint an engineer to furnish the prescribed certificate, the assured cannot be held to have forfeited his policy by the non-perfarmance of an impossibility.

Again, it is urged that the steamer was unseaworthy, by reason of the incompetency of her pilot. We do not think this point has been sustained by the evidence, but that, on the contrary, the plaintiff had fulfilled the condition precedent of the contract, by employing a pilot of competent skill. As to the conduct of the pilot upon the particular occasion which has given rise to this suit, it will be considered hereafter.

In March, 1844, while the Buckeye was on a voyage from New Orleans, and had reached Old River, this boat, and another boat called the De Soto, came into collision. Its consequences were as disastrous as they were sudden. The Buckeye almost immediately sunk, her hull and cargo became a total loss, and a large number of passengers perished.

As is usual in such cases, the officers and crew of each boat have strenuously endeavored to fix upon the other the responsibility of this appalling disaster. Numerous witnesses have been examined; their testimony was very elaborately discussed at bar by the respective counsel, and has, besides, received our careful consideration since the argument. This testimony presents, as usual, much that is vague, obscure and conflicting. We shall not recapitulate it, but state the result to which its examination has brought the court, mentioning specially only a few prominent facts, which in this conflict of witnesses we have deemed the best test of the comparative weight of testimony, and the safest guides to truth.

Old River, at that point of it where this wreck occurred, is more than one thousand yards in width. Its bank on one side is termed the willow bank, on the other the island. From the willows to the points where the Buckeyo sunk is a distance of 476 yards, and from the wreck to the island shore is a distance of 557 yards. The space between the willows and the wreck, exhibits several snags. Though on this space, or bar, there is a good depth of water at certain seasons of the year, decreasing, however, as the willows are neared, yet this dopth appears not to have been known to navigators till after this- collision, and the accurate examination to which it gave rise. It is satisfactorily shown that the Buckeye was as close to this bar as it was usual to navigate, especially at j ° night.

jt ¿s a¡30 cjeariy established that, from the wreck towards the island side, the water deepens for a distance of 400 yards, and affords an abundant depth for boats of large draught as far as to within 100 yards of that bank of the stream.

It is also clearly established that, the well recognized usage of the Mississippi river, is for ascending boats to take the bar, and for descending boats to take the bend; that this usage prevails with regard to the particular locality in question ; and that an ascending boat passes in the neighborhood of the bar, and a descending boat takes the deep water towards the island.

From these prominent and clearly established facts, results, unequivocally, this important deduction, that, at the moment of this fatal collision, the Buckeye was in her proper place, and the De Soto was not.

Such being the prominent facts not susceptible of dispute, there remains for our consideration the general assertions of conflicting witnesses, some making such representations as would indicate the Buckeye to have been in fault; others the De Soto. The mere numerical strength of witnesses is in favor of the plaintiff, but we do not attach, in such an inquiry, much importance to such a standard. The best guide to the ascertainment of truth in the settlement of that difficult question, the preponderance of testimony, is the application of important, well defined and clearly ascertained facts, if such there be, to the general mass of evidence. These facts, as above recited, must, from their nature, be thrown into the plaintiff’s scale, and, in our opinion, outweigh the defendant’s showing.

It is quite impossible in this opinion to discuss, in detail, the voluminous depositions which have been ably commented upon by counsel, and carefully considered by this court. "We state, as the result of our examination, that this collision was not attributable to the fault of the plaintiff’s officers or crew.

To what cause, then, is this disastrous collision attributable 1 In the absence of fault on the part of the Buckeye’s officers and crew, we may imagine three classes of causes — the violence of the elements — a malicious and wicked intent on the part of the officers of the De Soto — negligence or mistake of those officers.

The two first classes are, in this case, out of the question. There was no violence of the elements, the weather was placid; the night was clear and moonlit ; the current of the Mississippi, in some places and at some seasons impetuous, was in this place, and at this stage of water, so tranquil as to be scarcely perceptible.

There is not in the testimony the slightest ground to believe that there was a malicious intent on the part of the pilot, or other officers, of the De Soto. There was no bad feeling, nor oven that rivalry which, to the disgrace of com- ' manders and the imminent peril of life and property, so often leads to the inhuman disregard of a most sacred responsibility.

There is, then, nothing left to which this collision can be attributed, except the negligence or the mistake of the De Soto’s officers, if, indeed, the distinction between negligenco and mistake be admissible in a matter involving interests so momentous as the safe keeping of human life.

We believe that the De Soto was not navigated at this locality, according to the. usage of the river. Her proper place, even if we allow her to have been entitled to as great a distance fronAhe island shore as the middle of die stream as usually navigated, was much nearer to the island than the position which she actually occupied at the moment of the collision. Ve cannot close our eyes to the fact that, if she had been, at the moment when this collision occurred, in her proper portion of the stream, the human beings who then perished would have remained among the living.

It was strenuously urged that the Buckeye began too high up the stream, and at too late a moment, to cross from the island to the bar. If we are to believe the plaintiff’s witnesses, this crossing was effected in the usual mode, and in prudent season. Even, according to the testimony of Glasscock, the witness on whom the defendants so much rely, it is evident that several minutes must have elapsed after the Buckeye began to cross before she reached the point where she was struck. The fact is certain, without any contradiction of his testimony, that, at the moment of the collision, she had reached her proper position near the bar. The boat, which sunk almost instantly, lies there still, an indisputable memorial of this fact.

The usage of the river, and what is suitable in its practical observance, may be illustrated, not improperly, by the familiar usage of tire road. The usage is universal upon our streets and high-ways, that vehicles in passing should, each respectively, occupy that portion of the road on its right. If a wagoner, being out of his proper position, sees, at a distance, another vehicle coming from the opposite direction, his duty, if there be time, is to assume as promptly as may be his proper portion of the way, and preserve that position in his further progress till the other vehicle has passed. If he be in his right position when the other vehicle is first observed, he maintains it. Should he attempt to change it suddenly in the latter case, or not attempt to regain it in the former,, a collision would be the natural result of a violation of the rule of the road. For the driver of the approaching vehicle would naturally suppose that the rule of the road would be observed, and would govern, accordingly, his own course, as they approached.

The rule of the river, and the manner of its observance, present a strong analogy to the above familiar case. The descending boat, by that rule, takes the bend, the ascending boat the bar; an unusual and sudden emergency might require and justify a departure from this rule; but we look in vain in the record for such a justification for the De Soto’s officers. The pilot of the De Soto, we believe, mistook his position ; he probably thought that he was in the middle of that space which lies, as we have described it, between the edge of the bar and the island shore. Even the middle of this space, when an ascending boat had been previously observed, would not have been as discreet a position as one near the bend, especially, as there was abundant water for a distance of some hundreds of yards nearer the island. The value of life and property does not justify, especially in navigating by night, a calculation by how few yards an ascending boat may be passed. Men’s fives are not to be saved by a mere inch or a hair’s breadth.

It thus appearing that this collision was attributable, not to the officers of the Buckeye, but to the negligence of the pilot and other officers of the De Soto, we have to consider the question of law. Does a loss, thus occurring, entitle the plaintiff' to a recovery under the policy ?

This policy is partly a printed form of policy, prepared for insurance upon inland risks. It is to be observed that the main frame-work of this policy is taken from the common marine policy. We are of opinion that these policies upon inland risks, thus modelled upon the marine policy,, are to be interpreted, at least where such interpretation would not be inappropriate by reason or the par-tjcu]ar sufc,ject matter, according to the well settled rules and principles of marine insurance. The policy of insurance is, in itself, a perplexed, awkward and uncertain instrument. But a long train ,of decisions in England and the United States, has given to this ancient instrument, the rude work of the Lombard merchant in the thirteenth century, a reasonable certainty. Should we refuse to apply to this instrument, when converted into an inland policy, the well ascertained rules of the marine law, where not manifestly inappropriate, we should find ourselves at once involved in a labyrinth of uncertainty and confusion. In this particular case the policy itself goes further than some inland policies which have come under our observation, and expressly declares, by a printed clause, in speaking of the risks to be borne by the underwriter, that they are,-besides those expressly contracted to be borne, “all other perils, losses and misfortunes which shall come to the damage of the said boat, according to the general laws of insurance.’*

Collision is not an. enumerated risk either in this policy or in the common marine policy ; but it is covered by the marine policy, according to well settled authority, when.the vessel insured, is injured by a collision happening through the negligence of another vessel.

But it is argued that a distinction should be made between a collision on the sea and one upon a river. It is said, also, that the doctrine rests, to a certain degree, upon a technicality; for although •mismangement or neglect may have contributed to bring two ships into contact, the loss is immediately occasioned by the force of the winds and waves. That, in the case before us, there was no Violence of the winds and waves, nor of current. That-the motive power, or force which drove the De Soto and Buckeye into collision, was the power of steam, regulated and- directed by human agency.

That such was the character of the force, and the sole forcé, which drove the De Soto upon the Buckeye, may be fairly assumed. The current slight, and, perhaps at the time even so slight as to be imperceptible, cannot be considered as having any agency in causing this collision.

Was this collision, then, under such circumstances, a peril of, the river 1

We are unable to distinguish this case in principle from the cases of marine collision found in the books. Let us take the case of the Helena, decided by Chief Justice Mansfield. The Helena, on avoyage from Honduras to London, was run foul of at sea by the Margare t, through the grossest neglect of the master and crew of this latter vessel, of whom only one man was on deck, and he was asleep. Now, here the winds and waves acting upon the sails and hull of this vessel, drove her upon the Helena. But these elements were under the control of the officers and crew of the Margaret. That they were so, is clear, otherwise Chief Justice Mansfield’s expression, “the gross and culpable negligence of the officers and crew” would be unwarrantable. The sails acted upon by the wind were the means by which the- vessel was propelled through the sea. These means, duly used, would have carried the Margaret clear of the Helena. Unduly, that is, negligently used, they drove the one vessel upon the other. . The power of steam, and that of the steamer’s helm properly used, would have carried the De Soto clear of the Buckeye ; negligently used, they drove the De Soto into-collision with the [-kintiff’s steamer, and destroyed her-The true spirit of the decision, or at least the judgment for the assured, whatever may be the literal terms used, is, not in the technicality of causa próxima, that the sea did the mischief; but in this, that the gross negligence of those navigating the Margaret, in not duly controlling the means and the element used to propel the vessel, was, in sound reason, a risk attendant upon the navigation of the ocean, and was justly comprehended and contemplated by the term perils of the sea, against which the underwriter promised indemnity.

Without discussing the refined doctrine of causa próxima, and the technical reasons upon which, in some of the cases, the loss by a marine collision caused by the negligence of the master or crew of another vessel is thrown upon the underwriter, it is sufficient now to say, that the judgments in such cases, in favor of the assured, have established the rule of law. And as this policy has declared that the general law of insurance is to be the guide in its interpretation, we must follow and apply the rule thus established.

While upon this subject, it is proper to notice the reference made by the counsel for the defendants to another provision of the statute of 1834. By the fifth section it is declared, “that any accident, except such as we impossible to be foreseen, and avoided, that may happen from racing, carrying higher steam than may appear from the certificate to be consistent with safety, running into or afoul of another boat, or that may occur whilst the captain, pilot or engineer is engaged in gambling, or attending to any game of chance or hazard, or whenever an accident happens from the boat being overloaded, the owner of the boat shall be subject to the penalties provided for in the third section of this act, and the officer or officers of said boat violating the provisions of this act shall be subject to the penalties provided for in the fourth section thereof.” These.penalties are as to the owner, among others, forfeiture of insurance, and .as to the officer, fine and imprisonment.

This section certainly comprehends the case of negligence. But we cannot justly consider the conduct, as proved, of Klady, the pilot-of ¿the Buckeye, as exhibiting a violation of the statute, and as imposing upon his owner the loss of insurance, and upon himself the onerous penalty of fine and imprisonment. As we have already said, he followed the usual course of navigation; he had placed his boat in her proper position when the collision occurred ; and he had reasonable ground to expect that the De Soto would not violate the rule of the river, by chosing a position nearer the bar.

The impossibility spoken of in the statute must be considered an impossibility by reasonable intendment, according to all the circumstances of each particular case. It was possible for the pilot of the Buckeye to have avoided the collision by seeking the island shore and making fast there as soon as the lights of the descending boat were seen, or, as the De Soto’s course eventuated, he would have avoided her by violating the rule of the river and running along the island shore. Such a possibility cannot be considered as what the statute contemplated. Under this view of the proper construction df ¡the statute, it is unnecessary to consider the questions either of its constitutionality, its inoperativeness by reason of the act of Congress, or its obsoleteness.

Whether, under the law of insurance, the. defendant would be liable if the collision could, under the evidence, be attributed to the negligence of the pilot or other officers of the Buckeye, is a question not necessary to be discussed here., and upon which .we have studiously abstained from expressing an opinion.

Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. X.

license: Public Domain

text:
    Succession of Durnford.
    A judgment, final as to tho matters embraced by it, pronounced in an action between tho same parties, in the same quality, the demand being the same, and founded on the same cause of action, is conclusive between them as to the object of tho judgment. C. C. 2265. Such a judgment, though rendered only on one item of an account, is conclusive as to that item.
    Where a judgment of the Supreme Court directs a judge of probates, in the settlement of the accounts of the curator of a succession, to allow the latter a credit on his account, on the day of his eviction from property sold to him by the deceased, for an amount awarded to him as damages for such eviction, “and to close the account and give judgment according to law,” but is silent as to interest, no interest can be allowed. The allowance of interest is not a necessary consequence of the entry of the credit at a particular date.
    Arts. 988,389j of the Code of Practice, cannot be considered as binding successions to pay interest, where, from tho nature of the debt, no interest is due. They place successions on the footing of ordinary debtors as to interest, by declaring that the payment of interest when duo, shall not be affeetodby the fact of the estate being under administration, and dispense with the necessity of a judicial demand.
    Where the words of a judgment are ambiguous, it must be construed with reference to the pleadings in the case, and to the, jurisdiction of the court by which it was pronounced.
    APPEAL from the Count of Probates of N.ew Orleans, Bermudez, J.

      Roselius and A. Hennen, for .the appellant. Potts, Elmore, W. W. King and Grymes, contrá.
   The judgment of the court was pronounced by

Eustis, C. X.

This case was before the late Supreme Court, in June, 1845, and is reported in 11th Robinson’s Reports, page 183. It is brought before us by an appeal from a judgment of the Court of Probates of New Orleans taken by the curator, in which the appellees, the heirs of Durnford, have united, and both claim a reversal of the judgment.

I. The first question which we shall examine is that which relates to the force and effect of the decree of the late Supreme Court, made in June, 1845. It orders that the judgment appealed from be annulled and reversed, and that the case be remanded with directions to the judge below, in the settlement of the account of John McDonogh, as curator of the estate of Thomas Durnford deceased, to give said McDonogh a credit on said account, for the sum of $18,000, of the date of July 19th, 1831, and to close the account, and give judgment according to law. Previous to the rendition of this decree, the cause had already been before the court, and had been decided on all the points at issue, except that relating to the demand of McDonogh for indemnity for the eviction he had suffered from a tract of land he had purchased from Durnford, and against which his succession was bound to warrant, and which was the subject of the decree under consideration. Vide 8 Robinson. 2 La. -544.

Concerning the authority of res judicata, the provisions of our Code are ' positive, both as to its effect and requisites. “ The thing adjudged is said of that which has boen decided by a final judgment,” &c. Civil Code, art. 3522, §9. It has tho sanction of a legal presumption, and evidence is not received against it.

A judgment may be annulled, at tho instance of a party, for certain defects of form, and for causes which will cover all cases of fraud, and which are provided against by express legislation. Code of Practice, art. G04, etseq. Until the judgment is annulled, it stands as conclusive between the parties. The authority of res judicata, takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. Civil Code, art. 2265.

The object of the appellees is to have the subject of this decree re-examined and re-adjudged, and the power of the court to do this must depend entirely upon the decree having the requisites provided for in the preceding article. On examining the proceedings, it will be found to possess every one of them — there is a complete identity of demand, cause of action’, parties and quality. Where all these substantial requisites exist, it would be unreasonable to destroy the effect of the res judicata on a question of mere form when the law requires none. There must be a suit — actor, reus, judex, and the judgment must be final, that is it must settle the matter which it purports to conclude. A judgment rendered on one item of an account is as conclusive as to that item, as though it were the subject of a distinct suit. Successions, syndicates and long standing accounts between merchants are disposed of by adjudications on particular items, and are rarely concluded by one judgment. The only test as to the effect of a decree is its finality as to the matters embraced in it, and its having the requisites of art. 2265.

Let us reverse the case, and suppose that the curator were to attempt, notwithstanding this decree, to charge the heirs of Dunford with. a larger sum for his eviction from the land, or were to institute a personal action against them for more than $18,000 on account of it: we certainly should feel ourselves bound to limit him to the amount of the decree.

We have no power to review the matters determined by this decree of June, 1845, and hold that, in the account between the curator and the heirs, McDo-nogk is entitled to a creditfor the sum of $18,000, of the date of July 9th, 1831.

II. The appellant contends that he is entitled to interest from the 19th of July, 1831, the day to which the credit of $18,000 is ordered to relate back. The sum of $18,000 was awarded by the decree to the appellant on his demand of $21,500, for damages sustained,by him by reason of the eviction. No interest was allowed ; and, if the decree does not allow it, how can we grant it, on the principles on which we refuse even to examine the principal demand ? The decree is silent as to interest. It therefore gives none, and none can be given by us, unless the law grants interest in a case in which 'the court allows none.

If the court intended to allow interest from the date of July, 1831, they ought to have said so. The allowance of interest from that date is not a necessary consequence of the entry of the credit at that date. The claim was for damages, and there would have been no just reason for the allowance of interest before a demand for the principal. In the accounts rendered by the curator since July, 1831, the time of the eviction, this claim for indemnity was not made; 'but it appeared, for the first time, before the court in the account rendered by the curator to the heirs, in March, 1843.

We do not understand articles 989, 988 of the Code of Practice, and others relied on by the counsel for the appellant, as binding successions to pay interest, where, by the nature of the debt, no interest is due, but as providing that the payment of interest due or stipulated, shall not be affected by the administration which the succession is under, and as putting the succession on the footing of an ordinary debtor as to its liabilitiy to pay interest, and dispensing with the necessity of a judicial demand.

If, as is stated by the counsel for McDonogh, the curator had, on the 19th July, 1831, in his hands, $9,809 26 cents, and was a creditor of the succession himself, by reason of the eviction, for the sum of $18,000, it was his duty, under article 988, to have made known his claim at that time, and for his not having done so, we have heard no reasonable cause assigned. Civil Code, arts. 1168, 1169, 1179, et seq. This is not important under the view we have taken of the case; but it is mentioned for the purpose of showing that there may have been very good reasons, in the opinion of the court, for the non-allowance of this interest on damages claimed for the eviction. We consider the decree as entire, and there is no power with us to change it. It must be left with its legal consequence and effects, and cannot be altered for one purpose, and closed to all others. But the late Supreme Court, in the conclusion of their opinion which immediately precedes the decree, intimate that it is the business of the judge to give this credit for $18,000, strike the balance, and give a judgment according to the 1007th article of the Code of Practice. This article authorizes an allowance of interest on the balance from the day of the judgment; and the concluding part of the article brings us to the consideration of another question which has been argued at bar :

III. Whether that part of the judgment of the court below, which is considered as personal against the heirs, is correct. The Court of Probates rendered judgment against the heirs for the sum of $8,190 74 cents, the balance of the account. Article 1007 provides that if the balance be in favor of the curator against the heirs or other claimants, they shall be adjudged to pay him, in the same manner as he would be bound to pay them, were the balance in their favor, and he may, until such payment be made, retain the property of the succession which may be in his hands. The appellees contend that, under this article, the judgment must be limited to the effects of the succession, and that, if the judgment render them personally liable to the curator, it must be reversed, as contrary to law and the evidence in the case. The judgment of the Court of Probates is, “ that J. McDonogh do receive from the heirs of the deceased the sum of $8,190 74 cents, and costs of suit.” This judgment is the sole and necessary consequence of the judgment of the Supreme Court, nothing having intervened since the decision to change, in any respect, the state of the account. The effect of this judgment is limited by the concluding part of article 1007, to the effects of the succession in the hands of the curator. No judgment was demanded against the heirs personally, and none was given by the court, as we understand it. The court was acting within its jurisdiction on the mortuaria of the deceased, and its decree must be limited by the pleadings, and its known and established jurisdiction.

The liability of heirs, personally, to creditors by reason of their having done acts which involve responsibility for the debts of .a succession, is a matter en pais, and is not to be inferred from the import of this.decree, which is confined to the adjustment of the account so far as the effects of the succession under its administration are to be affected by it.

The heirs of Durnford are not in possession of the succession. When they are, they can be held to answer, personally, before the ordinary tribunals, for the consequences of their acts, of which the Court of Probates would have no jurisdiction. Code of Practice, art. 996.

We have doubts whether that court would have jurisdiction over a question involving the responsibility of an heir for his personal acts in relation to the sue-cession, so as to extend a judgment beyond the effects of the suecession under administration; and, therefore, hold the judgment not to be, personally, binding upon the heirs. Such being its legal effect, there is no necessity for altering its phraseology.

Had there been any matter intervening between the rendition of the judgment of the Supreme Court, in June, 1845, and that of the Court of Probates in July following, to have changed the balance of the account, we should, under article 1007 of the Code of Practice, have given interest from the day of the judgment. But, as we have before said, the two judgments are, in point of fact, one, and having determined that of the Supreme Court to be final and conclusive on the heirs of Durnford, it must be so on the appellant, and we can allow no interest. Judgment affirmed.


author: Kino, J.

text:
    Saul, Commissioner, v. Brand.
    The certificate of a notary, by whom a note was protested for non-payment, that notice was given to the endorser, who resided in the place where the protest was made, hy “ a letter delivered to his bar-heeper, he not being in,” is insufficient, in not mentioning the place at which the delivery to the bar-keeper was made — whether at the residence, or place of business of the endorser; but the defect may be cured by other evidence. The certificate should set forth such facts as would constitute a sufficient notice, if proved orally.
    Where a party to a bill or note, entitled to notice of dishonor, resides in the place where the protest was made, the notice must be given either personally, or by leaving it at his residence or place of business. The act of 1827, has made no change in the general commercial law in this respect. It merely provides for another mode of proving, and preserving evidence of the manner in which the party was notified.
    jLI. PPEAL from the Commercial Court of New Orleans, Watts, J.
   The judgment of the court was pronounced by

Kino, J.

The defendant is appellant from a judgment rendered against him as endorser upon a promissory note, which was protested at maturity for non-payment.

The only evidence of the notice of dishonor is the certificate of the notary who protested the note, in which it is stated, that the defendant was notified by a written letter, “delivered to the defendant’s bar-keeper, he not being in.”

It is well settled that, when a party to a bill, entitled to notice of its dishonor, resides in the place where the protest is made, the notice must be either personal, or by leaving it at his residence or place of business. The act of 1827, has made no change in the rules of the law merchant in this respect, but has merely provided a different mode of making the proof, and for preserving the evidence of the manner in which the party was notified. The certificate must set forth such facts as would constitute a sufficient notice, if the testimony were received orally. In the present instance, it makes no mention of the place at which the delivery to the bar-keeper was made, whether at the residence, or place of business of the defendant, or elsewhere. The evidence is clearly insufficient to show notice to the defendant; but the defect is one which may be supplied by other testimony. 3 Rob. 202. Bayley on Bills, 277. 6 La. 729.

Rawle, for the plaintiff. Marsoudet and R. D. Chinn, for the appellant.

It is, therefore, ordered that the judgment of the Commercial Court be avoided and reversed; and ours is in favor of the defendant, as in case of non-suit, the plaintiffs paying the costs of both courts.


author: Kins, J.

text:
    Blanchard et al. v. Grousset.
    A plea by the defendant, in an action commenced by attachment, that the claim sued on was not ownedby plaintiffs at thetime whenthe suit was commenced, is not such a plea as is required tobe pleaded in limine litis-

    Plaintiffs having purchased a quantify of merchandize for defendant, drew upon him for the price, andsold the bills, which were accepted by defendant, but protested for non-payment at maturity. On the day on which notice of protest was received, the holders called upon plaintiffs for payment, when it was agreed that one of the plaintiffs should secure the repayment of the amount of the bills, in three annual instalments, by conveying to the latter certain real estate providedhis titles should be found satisfactory, the vendor reserving the right to redeem the properfy upon making the stipulated payments. In consequence of the delay occasioned by the investigation of the titles, the sale was not completed until several days after, when the bills were delivered to the plaintiffs. An action was commenced by plaintiffs against defendant, for the amount of the bills, on the day when notice of protest was received by the holders, and certain property attached. A third person, claiming the property under an assignment made by defendant previous to the institution of suit, intervened. On au objection that plaintiffs were not the creditors of defendant at the time of the attachment: Held, that the agreement between plaintiffs and the holders was suspen-sive and conditional, depending upon a future and uncertain event; that it was not consummated until the sale of the real estate and the delivery of the bills to plaintiffs; that the contract, when finally concluded, did not relate back to the commencement of the negotiation, and invest the plaintiffs with a title to the hills from that time ; and that, not having been creditors of defendant at the time of suing, the attachment cannot he maintained.
    APPEAL by the defendant and intervenor from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiffs.

      W. S. Upton and Olcott, for the plaintiffs.
    The plaintiffs were the owners of the bills at the time of instituting suit. Civ. Code, arts. 1793 to 1799, 2431, 2631.

      Bodin, Benjamin and Micou, for the appellants.
    The plaintiffs were not creditors of defendant at the date of the attachment. Planters Bank v. Lanusse, 10 Mart. 690. Millaudon v. Foucher, 8 La. 582. Taylor v. Drane, 13 La. 64. Black v. Zacharie, 3 Howard, 501.

   The judgment of the court was delivered by

Kins, J.

The plaintiffs claim from the defendant $11,000, alleging that the indebtedness arose from the purchase which they made of 500 bales of cotton for the defendant. For that sum the plaintiffs drew upon the defendants two bills, one for $5,000, and the other for $6,000, both of which were of the same date, matured at the same time, and were negotiated by Robb & Doge of this city. These bills were accepted by the defendant, but at their maturity not having been paid, were protested, of which the holders, Robb & Doge, received notice on the 4th of February following. On the day on which this notice of dishonor was received by the holders, they called upon the plaintiffs for payment of the bills with damages, when it was agreed that Moore, of the house of Blanchard, Eimer & Co., should secure the repayment of the amount claimed in three annual instalments, by conveying to Robb & Hoge, certain real estate in the First Municipality, provided the titles to it should be found satisfactoiy. The vendor reserved the right of redeeming the- property upon making the stipulated annual payments. The titles to the property were placed in the hands of an attorney, and, in consequence of the delay occasioned by this investigation, the sale was not made until the 10th of February, on which day Robb & Hoge delivered the bills to the plaintiffs.

On the 18th of January, Grousset, the defendant, made an assignment of all his effects then in the possession of Longis, of this city, to George Brady, of the city of New York, for the use of Felix Grousset, of Marseilles, in France, who was the brother of the defendant and his creditor for a large amount. On the 30th, or 31st of January, 1841, Longis states thathfe received a notice of the assignment, and instructions .to transfer on his books the property of the defendant, in his hands, to Brady, to whom he was directed to account and make remittances.

This suit was commenced on the 4th of F ebruary, 1841, by attachment, and all the effects supposed to belong to the defendant were seized, on the same day, in the hands of Longis, who was made a garnishee in the proceedings.

Brady has intervened in the suit, and claims the effects in the hands of Lon-gis, for the use of Felix Grousset.

It is objected to the claim of the plaintiffs : 1st. That they were not the creditors of Grousset at the date of the attachment, bills having been drawn for the amount due by him, which had been accepted, and were at that time held by third persons. , \

2d. That the sale and delivery of the property in the hands of Longis, had taken place before the commencement of the suit.

The conclusion at which we have arrived upon the first point, will render it unnecessary that we should consider the second. To the first objection the plaintiff answers, that it is a plea of prematurity, which is a dilatory exception, and should have been pleaded in limine litis. We consider that the plea of prematurity, which assumes that the debt claimed was not due at the inception of the suit, differs substantially from that opposed by the present defence, which is not that the debt was not due, but that it was not owned by the plaintiffs at the date of the attachment. It is clear that when the suit was instituted the debt was due, an advance had been made, and bills for the amount of that advance had been drawn, accepted, and protested for non-payment. The answer raises directly the issue, who was the creditor of Grousset, at the commencement of the present action, and, as such, then enjoyed a right of action against him? This issue we will proceed to consider.

In the case of Black et al. v. Zacharie & Co., the same question arose upon substantially the same state of facts. In that case the Supreme Court of the United States say: “In respect to the first question, it is plain to us that there was no debt due to Zacharie & Co., at the time when the attachment was made. The supposed debt was for the proceeds of a crop of sugar and molasses, sold by Black, on account of Zacharie & Co. Assuming those proceeds to be due and payable, Zacharie & Co. had drawn certain bills of exchange upon Black, which had been accepted by the latter, for the full amount of those proceeds; and all of these bills have been negotiated to third persons, and were then outstanding, and three of them not yet due. It is clear, upon principles of law, that this was a suspension of all right of action in Zacharie & Co., until after those bills had become due and dishonored, and were taken up by Zacharie & Co. 3 Howard’s Rep. p. 510.

Were the bills in the present case taken up by the plaintiffs, at the commencement of the suit ? It is contended that they were ; that the effect of the agreement between Robb SfHoge, of the 4th of February, was to invest the plaintiffs with the title to the bills on that day.

That agreement, it has been seen, was conditional, that the title to the property proposed to be conveyed, should prove, upon examination, to be satisfactory. The condition was suspensive, depending upon a future and uncertain event, and the contract could not be executed until after that event. Civil Code, art. 2038. If the titles had been discovered to be defective, the agreement would have been at an end. Robb, one of the parties to the contract, states, inhis testimony, that such was the nature of the understanding; and this is further confirmed by the fact, that his firm retained possession of the bibs until the 10th, the date of the transfer, when they were first delivered to the plaintiffs.

We are of opinion that the agreement was not consummated until the sale of the real estate and the delivery of the bills to the plaintiffs, and that the contract, when finally concluded, did not relate back to the commencement of the negotiations, and reinvest the plaintiffs with the title to the bills on the 4th of February. The plaintiffs, not having been creditors at the commencement of the suit, the attachment cannot be maintained.

It is, therefore, ordered and decreed, that the judgment of the Commercial Court be avoided and reversed ; that the attachment issued in this case be dismissed ; and that there be judgment against the plaintiffs as in caseof non-suit, they paying the costs in both courts..


author: Rost, J.

text:
    Patton et al, v. The Cities of Philadelphia and New Orleans.
    A marriage per verba de futuro cum copula has all the legal effects of a marriage per verba da preesenti.

    In the interpretation of a marriage contract executed before the commandant of a Spanish fort, acting as a notary public, as farbackas the year 1799, the understanding of the parties interested and the intentions of the officer,, will be regarded, rather than the form and words of the instrument.
    Itis no objection to tbe validity of a contract of marriagepassed before the commandant of a post under the Spanish colonial government, that the act was executed before him while acting as a notary public. Such was the usual style of all civil acts authenticated by those officers,-except the putting in possession of land under orders of survey.
    Though the heirship of plaintiffs be not put at issue by tbe answer, yet if they introduce evidence to prove their legitimacy, defendants may rebut the evidence and disprove it.
    A marriage evidenced by an act passed before the commandant of a fort in a Spanish colony, acting as a notary public, the act reciting that it was executed before the officer in conformity with a custom sanctioned by the government on account of the want of spiritual assistance, and that the marriage is to be solemnized before the church on the first opportunity^ is valid. Such marriages were included by the canon law, with other informal and secret marriages, under the general appellation of clandestina matrimonia, and their validity was expressly recognized by the Council of Trent. Scss. 24, ch. 1. The declaration of the commandant that he was authorized by the government to celebrate the marriage, is sufficient evidence of the fact. His authority must be presumed. It could only he questioned by his superiors. Such a marriage could not he invalidated by the suhsequentrefusal of tho husband to solemnize it before a priest. It was valid without any such solemnization.
    The adoption of the decrees of the Council of Trent by the king of Spain, at the solicitation of the Pope, was not in the nature of a treaty stipulation with the court of Romo. The king of Spain did not, by their adoption, contract an obligation to enforce all their .provisions in his dominions, in all places and at all times, until dispensed by the Pope from so doing. He retained the power to suspend the operation of portions of-tliose decrees relating to the celebration of marriages in the remote settlements of new colonies, unprovided with churches or priests. The fact that marriages per verba de preesenti were usual in'the remote parts ef Louisiana, is proof that this power was exercised as to this colony.
    By .the Spanish law, children begotten after both parties know with certainty of the existence of an impediment to their marriage, are illegitimate. Aliter, as to children begotten while both, or one of the parties was ignorant of such impediment, or while a doubt existed in the mind of either as to the fact of any impediment.
    By'the laws of Spain, where ahusband, during marriage, contracts a second marriage with -a. woman ignorant of the existence of the first, one half the acquests.and gains will go to each wife; one half to the first wife, because the marital cohabitation did not fail through her fault; and the other half to the second wife, because, by virtue of her good faith at tho time of her marriage, she is reputed a lawful wife, though tho marriage be null, for the same reason that her issue is recognized as legitimate. The one half of the acquests and gams is a debt due to each wife by the husband, and his heirs can claim nothing until his debts are paid.
    APPEAL from the District Court of the First District, Buchanan, J. The petitioners allege, that they are the only lawful heirs and representatives of one Abraham Morehouse, who died in the parish of Ouachita, in the year 1813, intestate; that on the 21st June, 1796, the Baron de Carondelet, then Governor of Louisiana, made a concession of land to the Baron de Bas-trop, in the district of Ouachita, of twelve leagues square, which was duly located and surveyed; that them ancestor and one Charles Lynch, having become interested with the Baron de Bastrop in said concession, Lynch and the Baron de Bastrop, on the 14th May, 1805, transferred to their ancestor, by notarial act, in full for his interest in said concession, and for other claims and valuable considerations, four undivided tenths of the said twelve leagues square; .that Edward Livingston, having become the proprietor, by judgment .and assignment from Lynch and the Baron de Bastrop, of their six undivided tenthts, petitioners’ ancestor, on the 18th September, 1807, made an amicable partition of the said lands with Livingston, by which their ancestor became proprietor of the portion of said lands described in the act of partition ; that Stephen Girard, late of the city of Philadelphia, claimed to be the owner of about .two hundred and eight thousand acres of said lands, by titles derived from persons pretending to be the heirs or representatives .of the said Abraham Morehouse, and by his will bequeathed to the city of New Orleans one undivided third of the said two hundred and eight thousand acres of land, and the remaining two-thirds to the city of Philadelphia; that the said cities set up title .to the land, and pretend to be the owners thereof, by virtue of said bequests; and that their claims ■are injurious to the petitioners, rendering it impossible for them to dispose of their lands but at a great sacrifice. They pray for a judgment declaring them to be the only heirs of Abraham Morehouse, and, as such, entitled to all his title .and interest in said two hundred and eight thousand acres of land ; that the defendants have no right, title, or interest in said lands; and for $1000, for dam-aSe sustaine(^ by petioners in consequence of the pretended claim of defendants.
    The mayor, aldermen, &c., of the city of Philadelphia, answered, through a clu'ator ad lwci “ that they are in possession of certain lands in the parish of Ouachita, which they hold by good titles, as well as by prescription,” but denied that they are of the extent and quantity stated in the petition. The mayor, aldermen, &c., of the city of New Orleans answered, that they are in possession of certain lands in that parish, which they hold by good title as well as by prescription. They deny all the other facts and allegations in the petition.
    The facts on winch the decision in this case turned, are stated in the opinion delivered by Rost, J. The plaintiffs claim under the marriage of Morehouse with EUonore Hook. There was a judgment below in favor of the plaintiffs for two undivided eighths of the land described in the petition. The defendants .appealed.

      Downs, for the plaintiffs.
    1st. The heirship of plaintiffs is not put at issue by the answer. 5 La. 405. 5 Mart. N. S. 343. 1 La. 113, 283. 4 La. .328, and other .cases. Dig. p. 498.
    2d. Plaintiffs are required to prove the marriage under which they claim. 'The nullities of that marriage — the illegitimacy of the children, must be shown by the defendants, as well as the fact that the first wife was living at the time of the second marriage. Philips Ev. vol. 1st, pp. 197-8.
    3d. The contract before the commandant was a good marriage. 18 La. 318. 1 Brown’s Civil Law, 50, 69, 70, 72, 74. Arpin’s case, 6 Mart. N. S. 328. 1 M- and C’.s Part. 451, 453, Law 1, 5, 7; 468 Law 3, Tit. 4. Story’s ,Conf. of Laws, 77, 79, 108. 10 La. 65, 68. The commandant states that he had authority and he exercised it, and in such cases his authority will be presumed. No one can question it but his superiors. 2 Martin’s History 15. 1 White’s Recop. 269, 270, 272. 2 Ibid, 451, 455. 6 Peters 714, 729, Ar-redondo’s case. These general principles have been applied to marriages in our .courts. Holmes v* Holmes, 6 La. 470.
    4th. If the marriage is defective, the act of 1807 cured it. 2 Moreau’s Dig. 3.
    5th. Though the first wife were living, still as the second was in good faith, she .and her children had the rights of a legal marriage. Klendenning v. Klenden-ning et al. 3 Mart. N. S. 43S. Heirs of Morehouse v. New Orleans. 18 La. 318. Civil Code, arts. 119, 120. 5 Toul. 530. 4 Partida, tit". 13, law 1.

      Preston, on the same side.

      G. Strawbridge, for the appellant.
    1. There never was any marriage be.tween Morehouse and EUonore Hook. Poth. Cont. de Mar, vol. 1, Nos. 306, 441. Duranton, Contr. de Mar, vol. 1, Nos. 354-5. Toullier, Contr. de Mar, ■yol. 1, Nos. 654-5-7. The contract on file is no more than a betrothal. Part. 1, Feb. Sup. page 21, No. 2. 1 Poth. Nos. 23, 28, 48. Ord. Council of Trent. 2d. There was no good faith; or, if there was, it ceased before the .conception of plaintiffs.

      SouU, on the same side.
   The judgment of the court was pronounced by

Rost, J.

This was a suit for the slander of a title unattended with possession, which the issue made by the defendants has changed into a petitory action.

The plaintiffs aver, thattheir ancestor, Abraham Morehouse, acquired, in 1805, four undivided tenths of all that grant of land made by the Spanish government to the Baron, de Bastrop, in the District of Ouachita, on the 21st day of; June, 1796 ; that they are his only lawful heirs, and representatives, and have never sold, or otherwise disposed of their rights to said lands; that the late Stephen Girard, accepted transfers from persons pretending to be heirs or legal representatives of Abraham Morehouse, or to hold titles derived from those persons, to the extent of two hundred and eight thousand acres of said land, two-thirds of which the said Stephen Girard afterwards bequeathed to the city of Philadelphia, and the remaining third to the city of New Orleans; and that the municipal authorities of those cities set up and assert title to those lands, to the great damage and injury of the petitioners. They pray that a curator ad hoc be appointed to represent the city of Philadelphia; that the defendants be cited to answer their petition; and that, after due proceedings had, they may be quieted in their title against all claims and pretensions of the defendants, and that said defendants be adjudged to pay damages.

A curator ad hoc was appointed as prayed for, and the defendants answered that they were in the possession of certain lands in the Parish of Ouachita, which they held by good and sufficient title, as well as by prescription; they further denied all otherfacts and allegations in the petition.

The court, of the first instance, gave judgment in favor of the plaintiffs for two undivided eighths of the land in controversy, and the defendants appealed.

On the appeal the plaintiffs have prayed that the judgment be amended, and the whole land decreed to belong to them.

The material facts of the case are as follows: In 1790, Abraham Morehouse married Abigail Young, in the State of New York, and had two children by her. He subsequently came to the Spanish colony of Louisiana, gave it to be understood that he was a widower, and, in September, 1799, by an act passed before the commandant of Fort Miro, in the District of Ouachita, acting as a notary public, agreed to take as his wife, BUonore HooTc, The commandant states in the act, that it is passed before him in conformity with a custom sanctioned by the government, on account of the want of spiritual assistance, and that the marriage is to be solemnized before the church on the first opportunity.

Abraham Morehouse declares himself, in the act, to be the widower of Abigail Young, and stipulates with EUonore Hook and her curator, the Chevalier JDanemours, that the rights of the children of this and of the preceeding marriage shall be the same, whether those born from the present second marriage be bom before or after its solemnization before the church, and whether or not the solemnization takes place. The daughter of the commandant testifies, that there was no priest at that time in the District of Ouachita ; that she was present at the celebration of the marriage before her father; that the usual formalities were complied with ; and that immediate cohabitation followed, as was then the custom in the colony.

It was contended, in argument, that this was a contract per verba de futuro. As it was followed by cohabitation, the distinction is not material, a marriage per verba de futuro cum copula, having all the legal effects of a marriage per verba deprcesenti. Hubbard’s Evidence of Succession, 38 Law Library, p. 218.

"We incline to the opinion, however, that a contract per verba de prasentí, was intended. The commandant of Fort Miro was no civilian, and, at this distance of time, the intention of his acts and the understanding which the parties interested had of them, are safer rules for their interpretation, than can be deduced from the form and the words of those instruments. Clapier et al. vs. Banks, 10 La. 68.

There is nothing in the objection, that the contract was passed before the commandant, acting as a notary public. This is believed to have been the style of all the civil acts authenticated by those officers, except the putting in possession of land under orders of survey.

As stated by the plaintiffs, the land in controversy was acquired by Abraham Morehouse, in 1805. He died in 1813, his two wives being then alive ; and, many years after his death, Stephen Girard acquired those lands through Abigail Young and her sons, representing themselves as being the only legitimate wife and children of said Abraham Morehouse.

The first position taken by the plaintiffs’ counsel is, that the heirship is not put at issue by the answer, and cannot be enquired into. However this might be, if the plaintiffs had introduced no evidence on the subject of the marriage of their ancestors, and rested their title upon proof of their status as legitimate descendants, the defendants cannot now be precluded from contesting the validity of evidence introduced by the plaintiffs themselves. The defendants having traced their tide to Andrew Morehouse, the plaintiffs were bound to do the same. To that effect, they have thought it necessary to prove their legitimacy. The defendants have the right to rebut that evidence, and to invalidate, if they can, that portion of the title. There has been no surprise on either side, both parties seem to have considered that the battle was to be fought there, and the question of legitimate descent being fairly placed before us by the evidence, it id our duty, as far as necessary, to decide it.

On the merits, this cause presents the following legal questions for our consideration :

1st. Was the marriage of Abraham, Morehouse and EUonore Hook valid, as a civil contract, under the laws in force in Louisiana at the time of its celebration, although that marriage was not afterwards solemnized before the church 1

2d. If the marriage was valid, when did EUonore Hook acquire such a knowledge of the previous marriage of her husband, as put an end to her good faith ?

3d. While she continued in good faith, what right had each of the wives in the acquests and gains made by the husband ?

4th. What are the legal effects of the declaration made by EUonore Hook, ok the 19th September, 1813 1

I. Marriages, such as that celebrated by the plaintiffs’ ancestors, were included by the canon laws, with other imformal and secret marriages, under the general appellation of clandestina matrimonia. The council of Trent, 24 sess. chap. 1, recognized their validity on this emphatic language : “ Tametsi dubitandum non est, clandestina matrimonia, libero contrahentium consensu facta, rata et vera esse matrimonia, quamdiu ecclesia irrita non fecit, et proinde jure dam-nandi sint illi, ut eos sancta synodus anathemati damnat, qui ea vera ac rata esse negant.”

The reservation “quamdiu ecclesia ea irrita non fecit,” is considered by commentators as an abuse of power, on the ground that, since those marriages were rala et vera, the Church could not, under the new law, put asunder what God had joined together. Be this as it may, the Church never annulled those marriages; but the Council of Trent ordained that marriages contracted after its adoption should be null, unless they were celebrated before the priest of the parish where the parties resided, or another priest, with the consent of the par-rochus or the authorization of the bishop, and in presence of two or three r witnesses.

That Council was adopted in Spain by a real cédula of Philip II., bearing date 12th August, 1564. Prompta Bibliotheca, verbo Concilium. At that timei Louisiana had not been discovered, and when, two centuries after, it became a Spanish colony, we do not know that the Council of Trent was expressly introduced here, or that it was ever published in every parish of the colony, during the space of thirty days, as requhed by the dispositions of the Council itself. We will, however, for the sake of argument, admit that the Kings of Spain intended that their adoption of general councils should extend to all countries which they might subsequently discover or acquire.

It would be an error to suppose that the adoption of the Council of Trent by the King of Spain, at the solicitation of the Pope, was in the nature of a treaty stipulation with the court of Rome, and that the King of Spain contracted by it the obligation to enforce all its provisions, in all places and at all times, till it pleased the Pope to dispense him from doing so. Such was not the undcrstandr-ing of the high contracting parties. . . .

The avowed object of the Council of Trent was, to reassert and embody the orthodox doctrines of the apostolic church, and to unite-the Christian sovereigns in their support, against the reformers of Germany. The authority of Rome had, for the first-time, been successfully resisted, and the question of the adoption, throughout Christendom, of this Council, though, no doubt, in the eyes of the Church, a question of right, was also a question of power. The Church conceived it necessary to its existence and usefulness, that its supremacy in all spiritual and some temporal matters should be acknowledged; but when submission was secured, that great institution was too wise to bring into disrepute the moral power it possessed over the masses, by requiring the enforcement of the provisions of the Council, when they might be productive of hardship and oppression, or shock the common sense, the habits and customs of nations.

When Clément VIII asked Henry IV of France, in exchange for the absolution which he gave him, to cause the Council of Trent to be published in his dominion, he added, exceptis, si quce forte absint quce revera sine tranquillita~ tis perturbatione, executioni demandari non possint-

, When the kings of Spain caused the same Council to be published in the low countries, the publication was made with many exceptions and reservations, as to their rights and privileges, and the peculiar customs of those provinces. Margaret, who, at that time, governed the Low Countries for the King of Spain, informed the Archbishop of Ccmbray, of the reservations made, and added, after mentioning them, “d tous lesquels droits et autres, semblables quipariji aprés vous seront, si besoin est, plus particuliérement touchée, sa dite Majesté n’entend étre dérogée par le dit Concile, mais pour le mieux effectuer et mettre á due execution selon la qualité et nature de chacun pays et province á laquelle ¡’execution doit étre accommodée,”

The successors of Clément VIII acknowledged with him, that sovereigns had the power to regulate any portion of the laws of discipline established by general Councils, when they deemed it necessary to the public good; and it is conceded that by those reservations they retained the exclusive authority to decide in each particular case, 'what was to be received or rejected, without the Popes or Bishops over having considered the exercise of that discretion as an encroachment upon the rights and privileges of the Church. Francicot, Dissert, sur Ie Coneile de Trente, pp. 28-29.

We conclude, therefore, that after the adoption of the Council of Trent, the kings of Spain retained the power to suspend the operation of that portion of it which relates to the celebration of marriages in the remoto settlements of new colonies, yet unprovided with either churches or priests. In proof that this power was exercised in Louisiana, we have the historical facts that marriages per verba de prcesenti were usual in the remote parts of this colony, and that one of the Spanish governors was married thus. We have, further, the declaration of the commandant who celebrated the marriage of the plaintiffs’ ancestors, that, on account of their being no priest in the district of Ouachita, he was authorized by the government to do so. We deem that evidence sufficient, and consider this to be a proper case for the application of the rule laid down by the Supreme Court of the United States in the case of Arredondo, “that when the commandant says he had authority and exercised it, his authority will be presumed, and that no one can question it but his superiors.” 6 Peters, 714, 729. 2 Martin’s Hist, of Louisiana, 15.

This is not the only instance in which the operation of general Councils was suspended in Louisiana. Those establishing the tribunals of the inquisition and ah other ecclesiastical courts, were never enforced here.

It was argued at the bar, that there can be no marriage in the dominions of Spain, without sacrament. But it cannot be denied that such marriages were valid before the Council of Trent, and one of its commentators explains in this manner, how the sacrament was administered in cases like the present:

The marriages of catholics living amongst heretics or infidels, where die exei’cise of die catholic religion is not tolerated, though contracted per verba de. prcesenti, without the presence of the priest, are a real sacrament. I take it for granted that the civil law of the country approves this manner of contracting marriages. Necessity deprives the parties of the accidental minister, but they are themselves the essential ministers, and consequently, in countries where they cannot have the presence of the priest, and where the civil law does not imperatively require it, they are capable of administering the sacrament to each other.” Dissert, sur le Marriage, p. 162.

He illustrates his argument by stating that, in cases ofnacessity, other sacraments, baptism for instance, maybe administered by persons not in holy orders. Indeed, it was the opinion of St. Thomas, of Bellarmine, and of many general Councils, that, in all marriages, the parties are the ministers of the sacrament, and that the priest simply authenticates the contract, and vouchsafes to them the promise of Heaven that diey will increase and multiply. This question we will not presume to decide.

It matters not, therefore, whether it be true, as stated by one of the witnes-sess, that Abraham Morehouse refused, subsequently, to solemnize his marriage before the priest. That marriage was valid without the solemnization, and Eleonore TIooh was his lawful wife as long as she remained in good faith. We will state here that, had this marriage been contracted in any other manner - not expressly authorized by the King of Spain, we would have come to a different conclusion.

II. The decision of the late Supreme Court in the case of Klendenning v. Klendenning and others, 3 Mart. N. S. 438, in relation to the good faith of the second wife, Í3 a correct application of the Spanish law which regulated the' subject matter, at the time of the marriage of the plaintiffs’ ancestors. By the law 1. title 13, part 4, it is ordained that, “ if, after both parties know with certainty the existence of the impediment to their marriage, they beget children, those children will not be legitimate. Yet, if drn'ing the existence of such impediment, and while both or one of them was ignorant of it, they should be accused before the judges of Holy Church, and before the impediment was proved or the sentence pronounced, they should have children, those begotten iluring the existence of the doubt, wilt all be legitimate.”

Applying these principles to the case before us, the court is of opinion that,, before what occurred oh the arrival of Andrew Y. Morehouse, one of the sons by the first marriage, sometime in the year 1809, the evideuce establishes nothing more than the existence of a doubt. The testimony of Margaret Poor, if it was unimpeached, does not prove that the statement of Morehouse, in relation to his previous marriage, when he was asked to solemnize the second before the priest, was ever made to his wife or in her presence. That evidence is not as positive as that of Kilpatrick, in the case of Klendenning, which the court did not deem sufficient. We confess, besides, that we doubt the veracity of this witness. The general reports current in the country, in relation to the existence of the fii’st wife, are not b rough thome to EUonore Hook, otherwise than by the fact, that she at one time consulted the wife of the commandant in relation to them, and was advised not to believe them, because they were got up by the enemies of Morehouse for the sole purpose of annoying him. This does not fix upon her the certain knowledge, which the law contemplated. Notwithstanding those reports, Morehouse enjoyed public confidence, and was elected to the territorial legislature. The witnesses say that he was a kind and affectionate husband, and there is, in his letters to his wife, a truth of feeling and a warmth of affection, worthy of a better man. Under those circumstances, reports, which EUonore Iiook was advised, by the first lady in the land, not to believe, could not satisfy her that she had been deceived. But Abigail Young, left in New York to shift for herself and her young children, must have been under the influence of very different feelings, and ready to believe any report to the disparagement of her husband. When she first heard of his marriage, she should have apprized EUonore Hook of her rights. After the change of government, she might have done so without difficulty. She did not soe fit to take any steps in the matter, and left the second marriage undisturbed,- till the arrival of her son in Ouachita, in 1809. Till then, we consider that the good faith of EUonore Hook' continued.

Lucretia Morehouse, one of the plaintiffs, has not made it certain that she was conceived during the continuance of the good faith of her mother; indeed, if the declaration of the latter should not be deemed legal evidence to prove the age of her children, the legitimacy of Ann Maria, another of the plaintiffs, is also left in doubt; hut we abstain from deciding these questions. The opinion-we have formed rendering such decision unnecessary.

III. We agree with the plaintiffs’ counsel, that the second wife, and-tile-children conceived during her good faith, have all the rights which a lawful marriage gives. We concur, on that subject, in the opinion of the late Supreme Court in the case of Klendenning, already cited. Jt is because EUonore Hook had all the- rights of a lawful wife, that the plaintiffs have no title or claim to lands acquired by their father during the existence of the two marriages. The plaintiffs have taken it for granted that thero could not be two communities. This is an error ; the laws of Spain recognize in such cases two entire convmunxties. As the wife, under those laws, forfeits her share of the acquits and gains j when she is guilty of adultery, so the husband forfeits his share when he has two ,jjvjn„ an(j pf wives takes the undivided half to which the law would entitle lier, if she was alone. Paz, in his 61st Consulta, class 9, states the law as follows, in a case identically the same as the present;

“ Out of the acquits and gains the debts must be paid, because what the parties owe during the marriage cannot form a part of the acquits and gains, and belongs to the creditors. The balance, after paying the debts, must be divided between the two wives, without any portion of it going to the succession of the husband. The reason of this is that, by the laws of this realm, one-half of the acquits and gains belongs to the first wife, although they have been made by the husband. Lib. 5, Nueva Recopilación, tit. 9, 1. 1-G. And although the second law of this title requires the cohabitation-of the wife with the husband, in order that she be entitled to her share, yet as the marital cohabitation has not failed through her fault, but, on the contrary, through the fault of her husband who abandoned her, she is not to loose her rights on account of the fault and misconduct of her husband. Invputari non debet ei per quem non statv si non faciat quod per cum fuerat faciendum. De Reg, Jur. 6 reg. 41.

“ To the second wifo the other half is due, because, by virtue of her good faith at the time of her marriage, she is reputed a lawful wife, for the same reason for which tho law recognizes her issue as legitimate. This is affirmed by Covarruvias in Epit., p. 2, cap. 7, sect. 1, no. 7 ; Antonio Gomez, 1. 50 do Toro, no. 77; and Molina de Just, tract. 2 disp. 433; who all agree that it is the common opinion of the doctors of the law that a woman, marrying in good faith, although the marriage may be null, is entitled to one half of the acquits and gains. From which it results that one-haif goes to each of the wives, and that the husband deceiving the second and doing a grievous wrong to the first, refuses unjustly to either the share which belongs to her ; and that he is bound to satisfy both out of every thing he possesses, because the law favors those who are deceived against those who deceive them. Cum deceptis et non deeipienlibus jura subveniunt. In taking from the father’s succession those acquits and gains, no wrong is done to the inheritance or the legitimate portion of his children, because this is a just debt which he owes to his two wives, and the thing which the father owes is not inherited by his children, but taken by his creditors, as their own.” Paz, Consultas Varias, pp- 483-4.

The lands claimed in this suit formed part of the acquits and gains, and, at the death of Morehouse, the tille to them vested in his two wives, each for one ' undivided half, to the exclusion of the plaintiffs. If, therefore, they have now any right to exercise upon these lands, it must be derived from the declaration of Elionore Hook, made before the parish judge of the parish of Ouachita, on the 19th September, 1813. That declaration is in these woi'ds :

IV. “ The declaration of Elionore Morehouse, late widow of A. Morehouse, deceased, which declarant says, that she claims no part of the succession of the said A. Morehouse, but claims such property as is in her own right; also as natural tutrix to her minor children, claims what property is in the right of the said minor children.”

What did she mean by property in her oum right ? The marriage contrac, states “ que la dite demoiselle n’apporte en mariage au dit sieur Morehouse, que ses hardes, linge, bijoux, bagues et joyaux.” She was a destitute orphan, lately arrived from Maryland under the care of the Chevalier Danemours.

The marriago contract also states that Morehouse resided, at that time, on one of his plantations in the distinct of Ouachita. It is proved that, immediately after the marriage, they went to reside on that plantation, and that subsequently Morehouse’s land speculations caused him to make frequent voyages to New Orleans. The letters which he wrote to his wife on those occasions, show that there was a large stock attached to the plantation ; that he was raising crops of cotton; and that he had erected upon it, during his marriage, farm, buildings, a new gin, and a dwelling house. That plantation continued to be his homestead .as long as he lived, and the plaintiffs’ main witness states that, after his death, Eléonore Hook was always .called the widow Morehouse, and lived upon the same plantation where they resided during marriage.

A deed of trust, found in the record, executed in her favor by one John Miller, in October, 1811, shows ¡that she had sold him a tract of land, (whether this -was the other plantation of Morehouse, is not material,) for the sum of $6,405, bearing interest, and payable to her in ten -equal annual installments. In less than two years after this Morehouse had died, and one of the sons by the first marriage, in his own right and as curator of absent heirs, had been put in possession of the property considered as belonging to the succession, by the judge of the Court of Probates. The judge states in the order that, from the situation of the estate, it has been impracticable to make an inventory of any .thing but of some moveable effects.

This putting in possession took place on the 5th October, 1813, fifteen days after the date of the declaration of Eléonore Hook, and the judge states that it met with no opposition from her.

The parties claiming adverse rights under the two marriages stood at that time, in this manner: Eléonore Hook was in possession of the plantation with all the buildings and improvements made at the expense of the community, and all the slaves, teams, stock and farming utensils attached to it, whether acquired before or during marriage. She had besides, a claim of over $6,000,' secured by a deed of trust upon another tract of land, which had been sold by her with the authorization of her husband; that plantation and that claim were what she meant by property standing in her own right. Dotal or paraphernal property, she had not.

Abigail Young and her children, on the other hand, had taken for their share a few moveables not attached to the plantation, and the waste lands forming the four-tenths of the Eastrop grant. It was moreover stated by the plaintiffs’ counsel, that Morehouse was very much in debt when he died, and that a great part of those lands had been sold to liquidate his succession.

Viewed with reference to this state of facts and the situation of Eléonore Hook under it, her declaration cannot be construed into a renunciation of the community. After intermeddling in the affairs of the succession, as She did, after retaining all the most valuable and the only productive portion of the property, and leaving the other parties to pay the debts, she did not renounce the community, and her declaration cannot be considered otherwise than as a receipt and acquittance for her share of it. It was so understood by all parties at the time. She let Abigail Young and her sons take possession of some moveable effects and of the waste lands, without opposition, and they have never disturbed her in the enjoyment of the property she retained. The family raised by her to adorn Louisiana, as observed by counsel, was supported and educated out of the ;"come of that property ; that income has enabled the-to live ever since in comfort and affluence. The wild lands taken by the other parties have remained unproductive, and it is to this day a serious question r 1 , , . ... whether Abraham Morehouse had any title to them. The attempt to invalidate, at this time, an arrangement so long respected, so faithfully executed, and so advantageous to the plaintiffs, cannot be countenanced by this court. Tf it were set aside, justice would require that Eleonore Hook should account to the heirs of the first marriage, for the property she received, and the fruits it has produced. As far as the evidence enable us to judge, she retained all the proper estate of A, Morehouse; and if the plaintiffs have any claim, as heirs of their father, it is against her they must exercise it. When she stated in her declaration, that she claimed the property that ivas in the right of her minor children, she probably meant, as in her own case, property which had been purchased ,in their name by their father, and which it does not appear that the other heirs ever claimed from them. If she did not mean this, her children were without any rights, except those they might have to a share of the proper estate she retained.

For the reasons assigned, it is ordered and adjudged that the judgment of the District Court be reversed; that the defendants be for ever quieted in their possession and title against all claims and pretensions of the plaintiffs ; and that the said plaintiffs pay the costs in both courts.

       Existís, C. J., having been of counsel in this case, did not sit on the trial.


author: Slidell, J.

text:
    Patterson v. Hall et al.
    An act mortgaging certain slaves, signed by H. and C., recited that tlie slaves had been previously conveyed by H. to trustees to secure the payment of a note made in favor of plaintiff, on which note partial payments had been made, since the execution of the deed, leaving a certain balance yet due ; that 0. had since purchased the slaves, subject to the trust; and that H. and C., intending still further to secure the payment of said balance, thereby mortgaged the slaves for the purpose of securing the same. The act declared that, if the balance so ascertained shouldnot be paid by a certain time, plaintiff should be at liberty to seize and sell. An order of seizure and sale, taken out by plaintiff, having been enjoined 'by defendants, on the ground that there was no authentic evidence that defendants were indebted to plaintiff, or that the latter was the holder of the note mentioned in the mortgage, which was not filed with the petition: Held, that, as nothing in the notarial act, or in the petition for an injunction, or in the evidence, showed the note to have been a negotiable one, its negotiability cannot be presumed, that it can only be regarded as a mere written promise to pay a certain sum; that the notarial act, which states the exact balance and promises to pay it on a certain day, is as complete evidence of the liability to pay this balance to the plaintiff, as the note would he; if produced; and that, in the absence of any allegation or proof that the note had been assigned to a third person and notice thereof seasonably given, it was unnecessary to produce it on an application for executory process.
    No anterior agreement can affect the provisions contained in an authentic act; nor can any simultaneous agreement, unless in writing, have such effect.
    Though the execution of an order of seizure and sale, taken out against certain slaves, have been enjoined, the mortgagee may sequester the slaves, on showing, by his affidavit, probable cause to apprehend that defendants will remove the mortgaged property beyond his reach.
    APPEAL from the District Court of the First District, Buchanan, J. The defendants appealed from judgments granting an order of seizure and sale against certain property mortgaged by them to plaintiff, and from a subsequent judgment refusing to set aside a sequestration taken out by plaintiff, and dissolving an injunction obtained by defendants to stay the execution of the order of seizure and sale.

      Benjamin and Micou, for tho plaintiff. Barllette, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff obtained an order of seizure and sale upon exhibition of a notarial act, of which a duly certified copy was annexed to his petition.

This act, which is «artificially drawn, recites, “that, on the 13th February, 1839, the defendant Hall executed a certain deed of trust in favor of Briggs & Beauchamp, for the use and benefit of the plaintiff, by which certain slaves were conveyed to secure the payment of a certain note for $6000, drawn by the said James Hall and others, and made payable on the 1st of January, 1840, on which notes payments have been made reducing the balance due to the sum of $1926 47 cents, with interest thereon at the rate of eight per cent per annum, from the 7th of February, 1844, until paid. And whereas the said negroes were afterwards conveyed by the said James Hall to P. M. Collins, of Mississippi, and by said P. M. Collins, on the 18th of January, 1845, to said W.- W-Collins, the said purchaser knowing of the existence of said deed of trust, and intending to receive the negroes subject to the balance due on the same: Now, in order still further to secure the said balance, the said J. Hall and W. W. Collins, do hereby acknowledge themselves bound, jointly and severally to the said J. W. Patterson, his heirs and assigns, in the full sum of $1926 47 cents, besides interest from the 7th February, 1844, until paid, at the rate of eight per centum per annum. And the said William W. Collins does hereby mortgage and hypothecate unto the said Patterson, his heirs and assigns, the slaves mentioned in said original deed of trust, and their increase, to wit:” Tho names of the slaves are then recited. Then follows a pact de non alienando, and the act proceeds as follows: “It being also understood and agreed that this mortgage is not intended to release the obligation of said deed of trust, but the same'to remain in full force and effect, and this mortgage granted as additional security to the same; and whereas the said Collins and Hall, are under the impression that payments have been made on said deed of trust since the said balance was struck, it is hereby agreed that said Collins and Hall are to have credit upon this mortgage for any such payments, on proof that they have been made. And it is further agreed, that said balance of $1926 47 cents, with interest at the rate of eight per centum per annum from the 7th February, 1844, is to fall due on the 1st day of December next (1845) fixed, and without any demand or form of default; and if the same shall not, on that day, be well and truly paid to said Patterson, or to his agent, W. T. Whiting, aforesaid, in this city, that tho said Patterson, his heirs, or assigns, to be at full liberty to take legal measures to cause said negroes to be seized and sold to pay said debt, or any balance thereon.”

The writ of seizure and sale having issued, the defendants filed a petition for an injunction, alleging that the order issued illegally, because it did not appear by the copy of the authentic act that the defendants were indebted to the plaintiff, nor was there authentic evidence that the plaintiff was the holder of the note stated in the mortgage, nor was the note filed with the petition for seizure and sale.

To these objections the plaintiff replies, that the noto was novated by the agreement contained in the authentic act. We entertain doubts whether this act constitutes a novation. But there is another answer which might have been made successfully. There is nothing in the authentic act, nor in the petition for an injunction, which shows the note to be a promissory note — a negotiable instrument. Its negotiability cannot be presumed. It stands, then, before ua as a mere written promise to pay a certain sum of money. The act recites that the promise has been fulfilled by partial payments, states the precise balance, and promises to pay it with interest on a certain day. Certainly, the authentic act is as full and complete evidence of the liability to pay this balance to the plaintiff, as the note would be, if produced. They are both written evidence of an indebtedness. Had the note in question been declared either in the authentic act, or in the petition for an injunction, or been proven by competent evidence in the court below, to be a negotiable instrument, or even that it had been assigned to a third person and notice of assignment seasonably given, we could then recognize perhaps the necessity of its being produced and filed on the application for executoiy process. In the absence of any such recitation, pleading or proof the plaintiffs in injunction, are entitled to no relief. Any future holder of this instrument could take no greater rights than the plaintiff had. Payment to him, enforced by the legal process which has issued at his suit, would be a complete bar against an assignee of the note, whether an antecedent assig-nee who has given no notice, or an assignee subsequent to such payment.

It is also to be observed, that Collins does not appear to have been a party to the note. His obligation to pay the balance due upon it is created by the notarial act, and the slaves mortgaged are represented by the act to be his property and in his possession.

It was also alleged in the petition for an injunction that payments had been made, which reduced the indebtedness to an amount less than that recited in the notarial act, and for which the order of seizure and sale issued. The court below has relieved the defendants to this extent, reducing the injunction granted as to the whole indebtedness to the amount thus paid, and dissolving the injunction, and maintaining the order of seizure and sale, as to the residue. The defendants have thus had-ample justice on this score.

The plaintiffs in injunction further alleged that, the intent of the notarial agreement was, not to create a new debt, but only to create an assumption by Collins, and to give a mortgage to secure it; and also, that it was agreed that the note should be produced before payment was made. The first branch of this objection goes merely to the interpretation of the notarial act which must speak for itself, and authorized, in our opinion, the order of seizure and sale. The socond branch of the objection presents no legal ground for relief. It is not alleged that the pretended agreement for the production of the note was posterior to tho execution of the notarial act. No anterior agreement, nor simultaneous agreement, unless written, could affect the written instrument.

The injunction was properly set aside.

After an injunction was obtained, tho plaintiff obtained a sequestration of the slaves, on affidavit suggesting the injunction, and declaring “ that he feared that the defendants would remove the slaves out of the State, before he could have the benefit of his mortgage, and that the conduct of said parties, and the obtaining said injunction, and the short period the said parties respectively have resided in the State, induced his apprehension.” The affidavit also refers to the proceedings in the cause, and alleges that the plaintiff has, upon a portion of the slaves, the privilege of vendor. The defendants contend that the affidavit was insufficient in law to sustain the order of sequestration. We consider that the allegations of the affidavit and the course pursued by the defendants, as exhibited by tho record to which the affidavit refers, warranted the order of sequestration. There was probable cause to apprehend that the defendants desired to place the mortgaged property beyond the plaintiffs’ reach.

Judgment affirm'''1-