author: Labatxve, J.

text:
    P. Mazoue v. Dennis Caze et al.
    The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer.
    The tradition or delivery of movable effects takes place either by their real tradition, or by the delivery of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale, or if the purchaser had them already in his possession under another title.
    The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment.
    APPEAL from the Third District Court of New Orleans,

      Hiestand, J. H. Train, for plaintiff.

    — On the 25th August, 1862, the plaintiff caused to be sold at auction, through Guinault, the cows, etc., of his dairy establishment, the terms of which sale were six months credit for approved endorsed notes, to he furnished prior to the delivery of the cows sold. Defendant Caze became the last and highest bidder of á cow and a calf for $184, and of two other cows for $222, making in all $306. Two or three days after the sale, the said Caze,' without having complied with tha terms of the adjudication, by furnishing his notes, with a satisfactory endorsement, went to the place where the sale was made, and in the absence of the plaintiff, and without his consent, took surreptitious possession of the cows and calf adjudicated to him, drove them away, and subsequently P. Canter, the other defendant, was found in possession of one of the cows, the one which had the calf. It was sequestered by plaintiff while in Canter’s possession, who bonded the same. The calf having been previously sold by Caze to another unknown party for twenty-five dollars.
    Upon such a showing, the District Court gave judgment in plaintiff’s favor, against P. Canter, for the restoration of the cow found in his possession and sold to him by Caze, as alleged, and in default thereof to pay $159 to plaintiff. From that judgment Canter has appealed. The laws are abundant for its affirmance. C. C. 3472, 3473, 3474; 4 N. S. 288; 11 B. 16; 2 A. 976, 997; 12 E. 536; C. C. 2427,. 2463, 2464, 2591; Toullier, vol. 14, $117, 118, 119. “Nemo plus juris in aluim transferre potest quam ipse habet.”

      L. Caster a and A. Grima, for defendant and appellant Canter.

    — Denis Caze and P. Canter are sued in solido, for the payment of a sum of $306, value of three milk cows and one calf which said Caze purchased at the auction sale of plaintiffs’s dairy establishment, one of the said cows having been subsequently sold by Caze to P. Canter, the present appellant. Canter appeals from the judgment of the inferior Court condemning him to turn back the cow by him purchased to the plaintiff, or in default thereof to pay the sum of $159. Plaintiff, P. Mazoue, has not joined the appeal, and does not ask the reversal of the judgment on any point. Therefore, the rule by him taken below to dismiss this appeal cannot be entertained by your Honors. See C. P. 592, 887, 888, 889, 907; 4 An. 150, Cobb v. Hynes; 5 An. 140, Succession of Becoux; 8 An. 73, Hood v. Knox; 10 An. 197, Wortham v. Shenck. But on the merits of the rule, the security being found solvent,' the only question is whether the amount in dispute is appealable. It should be recollected that Canter, the present appellant, is sued in solido with Caze for a sum of $306, besides the restitution of a cow valued at $159; it is the amount sued upon or claimed which determines the right of appeal. C. P. 580, 874, 875; 6 La. 323, Burke v. E-ioin’s Heirs; 3 Eob. 370, Qerber v. Marzoni; 12 Bob. 178, Succession of Stafford; 2 An. 163, McKee v. Ellis. Also C. P. 564, 570, 571, 573, 585.
    On the merits of the case the appellant offers the following remarks: P. Canter bought in good faith, a cow from Caze, his co-defendant in solido. The appehee ■ bases his action upon the pretended fraud or collusion of defendants: fraud will not be presumed. The Judge of the inferior Court himself admits, that as to the defendant Canter, the testimony does not establish the charge of fraud or collusion with Caze. C. C. Art. 3413 reads as follows: “The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another. Poultney’s Heirs v; Cecil’s Ex., 8 La. 424; Pearces, Eantum, 16 La. 414; Lowry Curator v. E-win, 6 Eob. 218, 211. Canter is.a bona fide purchaser, for a valid consideration; can he suffer from any defect in the title of his immediate vendor? We contend: first, that as to the present appellant, the title of Ms vendor was sufficient, for the sale to Caze was not for cash, but on term, in wMch case delivery completes the contract. C. C. Art. 2463 reads: “Th'e seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted Mm any term for payment; also C. C. 2453. Art. 2463 is copied from Art. 1612 C. N. Says Troplong, De la Yente, l 312; “Si l’achéteur a obtenu un terme pour payer le prix, il a droit d’exiger, en attendant, la délivrance de la chose.” Pothier, Contrat de Yente, No. 67, says: “Le principe que nous venons d’établir, que l’acheteur n’est pas réiju a demander que la chose vendue lui soit livrée, s’il n’offre d’en payer le prix, n’a pas lieu lorsque le vendeui’, par le contrat, lui a accordé pour le paiement un terme qui n’est pas expiré. ” 1
    The case of Canter is simply that of a man who finds an object or a thing in the possession of another, and having no notice whatsoever of any defect in the title of the actual holder, buys it and pays for the same. Caze purchased at auction sale; the contract which is formed by the adjudication of the auctioneer is subject to the general rules governing the contract of sale. Says Art. 2586: “ This ■ adjudication is the completion of the sale; the purchaser becomes the owner of the object adjudged, and the contract is from that time subjected to the same rules which govern the ordinary contract of sale.” If Caze did not conform himself to the conditions of the sale, the law points out the proper remedy to be sought or used. Yide C. C. 2529, 2539, 2542, 2543. If Caze carried the cows away without any right, he was guilty of a criminal offence ; and, if so,-remedy should first have been sought before the proper tribunal.
    . The agreement amounts to the sale between the parties ; the delivery completes it as to third persons. Where' 'one of several parties must suffer, the loss should fall on that party who, by his imprudent confidence, has enabled the wrong-doer to get credit -with innocent third persons. Campbell v. Penn, 7 An. 371; Pílce Y. Monget, 4 An. 229. It must not escape our consideration that we are dealing with a movable property, and to any enquiry of Canter about his title Caze might have answered: “Possideo quia possideo.” When this appellant bought the cow, he had no reasons to suppose there was any controversy about the title, and he cannot suffer for Ms legal act. ■ ■
   Labatxve, J.

The plaintiff claims of the defendants, in solido, the sum of $306, the value of three cows and. one-calf, purchased by said Caze, at the auction sale of plaintiff’s dairy establishment, one of said cows having been sold subsequently by said Caze to P„ Canter. The petition alleges, in substance, that said Dennis Caze did', illegally and without authority, on the. 25th August, 1862, take from the premises of petitioner and carry away, three cows, belonging to him, and, brought one of said cows, of the value of $184, to the house of Peter Canter, and the other two cows were disposed, of by said Oaze without the knowledge and consent of petitioner, etc.

Caze answered by a general denial. He further answered that he had purchased the cows in question, on the 25th August, 1862, at public auction, for $306, payable according to the terms announced, in six months ; and that the said cows were delivered to him by plaintiff.

P. Canter answered by a general denial; and further, that, in his dealings with said Caze, he acted fairly; and that he purchased a cow from him on the 9th October, 1862, for a valuable consideration.

The District Court gave judgment against D. Oaze for $306, with legal interest, and against the defendant Canter for the restitution of the cow purchased by him from said Caze, and, in case of his failure to restore the same, to pay $159, with interest.

P. Canter alone took this appeal.

The testimony shows the following facts:

On or about the 25th August, 1862, plaintiff caused the cows composing his dairy to be sold at auction, by Guinault, auctioneer.

The conditions of the sale were, that the purchasers should give their notes at six months, endorsed to the satisfaction of the vendor, previous to the delivery of the cows adjudicated to each purchaser. The defendant, Caze, purchased three cows, one of them having a calf. Two or three days after the crying at auction, and whilst the plaintiff was absent from the place where the sale was made, Caze, without having complied with the terms- of the adjudication, sent and had the three cows, one with a calf, adjudicated to him, taken away. Some time after getting possession of the cows, he placed the one which had the calf on the premises of the defendant, Canter, having sold the calf. The cow remained there some time, when he sold her to Canter, on the 8th October, 1862, for $100. The price for which the cow and calf were adjudicated to Caze was $184; the calf was worth about $25.

According to this evidence, the case turns entirely on a question of delivery and possession.

The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. C. C. Art. 2452; 13 L. 235; 12 B. 51. Delivery of movable effects may take place in three different ways: by real tradition; by delivery of the keys of the building in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale. C. C. Art. 2453. The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment. C. C. Art. 2463. It is true, in this case, that the buyer had a term of six months to pay; and it is contended upon this Article of the Code, and Troplong and Pothier are quoted in support of the argument, that the sale was complete, and the seller bound to deliver the objects adjudicated; but this credit of six months was with a condition precedent. ‘ ‘ Thai the purchasei-s should give their notes at six months, endorsed to the satisfaction of the vendor, previous to the delivery of the cows adjudicated to each purchaser.”

The cows were never delivered to Dennis Caze, who was not entitled to a delivery; he obtained possession of them by fraud, without having complied with the conditions of the adjudication, by giving his note satisfactorily to the plaintiff. The sale was not complete, and the cows were yet the property of plaintiff; and the defendant, D. Caze, having no ownership in the cows, could transfer none to his co-defendant, Canter.

We are of opinion that the judgment, of the District Court is correct.

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


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The State v. Lorenzo Saliba.
    Tbe jury, in a criminal case, are tbe judges of both, tbe law and the facts; and, where the Ju refuses to so charge them, their verdict will be set aside, and the case remanded for a new trial.
    APPEAL from the First District Court of New Orleans,

      Hiestand, J. B. L. Lynch, Attorney-General, for the State. John Henderson, Jr., for defendant and appellant.
   Jones, J.

This is an appeal from sentence of death.

Among the assignment of errors filed in this Court we deem it necessary to examine only two of them, which are: 1. That the Court refused an instruction, asked on the part of the appellant, to be given the jury, and, in lieu thereof, gave its own instruction. We have already decided in the case of the State v. Mathew Jurche, that the jury in a criminal case are the judges of both the law and the facts. The lower Court, therefore, should have given the fifth instruction, and erred in refusing to do so. 2. On the point of continuance. As this cause will have to be remanded for further proceedings, for the reasons set forth on the point just considered, we do not think it necessary at this time to decide whether the Court did or did not err in refusing a continuance; but, in order that the appellant shall have the benefit on his new trial of the use of the depositions, and other proceedings accompanying the jury.’s inquest, we determine that the rule on the law officer for the production of the same, should have been made absolute.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be reversed, the verdict of the jury set aside, and th$ cause remanded for further proceedings, according to law.


author: IrsiiEV, J.

text:
    Succession of John C. Norton on the Opposition of J. A. Lum.
    The mortgage is accessory to a principal obligation, which it is designed to strengthen, and of which it is to secure the execution.
    Consequently, it is essentially necessary to the existence of a mortgage, that there shall be a principal debt to serve as a foundation for it.
    Hence it happens, that, in all cases where the principal debt is extinguished, the mortgage disappears with it.
    Hence, also, it happens that, when the principal obligation is void, the mortgage is likewise so,:
    ‘ this, however, is to be understood with certain restrictions, which are established hereafter.
    "When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the two credits.
    •The rights granted the widow, or minor children of a deceased person, by the Homestead Act of 17th March,1862, vest in them at the time of the death of the deceased, provided their condition of • life at that moment of time entitle them to the benefit of the provisions of the Act; their pecuniary circumstances at the time of death of the insolvent, and not at any subsequent time, settles their right to any claim under the Act.
    A widow or orphan must be a resident of the State at the time of the decease of the husband or-' father, in order to obtain the benefit of the Homestead Law.
    APPEAL from the Second District Court of New Orleans,

      Thomas, JJ. Magne, for administrator. J. L. Tissoi, for the widow.

      Geo. L. Bright, for Lum, appellant.-

    — The administrator filed an account and tableau of distribution. J. A. Lum made opposition thereto. The inferior Court maintained them, except that made to the items, “James. Timony, for $300 due him on the note of $2,000, bearing on both properties,” and that to the “widow and children of the deceased John C. Norton, on their homestead claim, they being in necessitous circumstances, $1,000.”
    I. The item $300 is opposed, on the ground it is not due, and not a privileged debt.
    It appears that the note for $2,000, upon which this balance is said to be due, was made on 17th September, 1861, and secured by an act of mortgage of the same date. This mortgage was made by the deceased in favor of James Timony. It does not appear that it was made for a consideration, neither does it contain an admission of indebtedness to the mortgagee; on the contrary, it expressly states that the “note is to be immediately discounted by said Timony.”

      Timony (made a witness) says he has not had the note all the time since the date of the mortgage. Since it was made and given to witness, part, of the time Norton had it in his possession. After the death of Norton,, 'at the request of Mrs. Norton, he gave the note to a gentleman who ■furnished goods to Mrs. Norton, stating to that gentleman that there were only $300 dollars due to him on the note. He states Norton often paid accounts on said note to witness, different sums of money, for which he gave receipts. The last payment of $425 was paid by Mr. Norton.
    It appears that the claimant, Timony, is the same person in whose favor the mortgage was originally made, without any consideration, but for the express purpose of having the note discounted. He appears in the act merely to complete the form, the acceptance of the mortgage. By his evidence, he afterwards surrendered the note to Norton, and,, after Norton’s death, after he is appointed administrator, we find him in possession of the note. He is nnable to' state what he gave Norton for the note. He says: “He does not reeoEect exactly what amount he got at the time Norton gave him the note.” After Norton’s death, at the request of Mrs. Norton, he surrenders the note to a creditor-of Mrs. Norton to enable her to obtain credit.
    Surely he has acted as if he had no right to the note. The return of it to Norton, his appoinment of administrator, and then the possession of the note, are very suspicious circumstances, which are not removed by anything in the record, not even by his own testimony.
    We think Mr. Timony is not entitled to.the $300 claimed by him.
    Admitting, however, that he is a creditor for $300, he has no mortgage.
    Mortgage notes, issued by the maker, and coming again into his hands before maturity, are extinguished by confusion; his re-issue of them may bind him personaEy, but cannot revive, the mortgage. C. C. 2214, 3252; Hilly. Hill, 4B. 416.
    II. The aEowanee of $1,000 to the widow and children of the deceased is opposed on the grounds that it is unauthorized by law ; that the widow is not in necessitous circumstances; that, at the death of her husband, they resided in Mississippi. The residence of Norton and his wife, for .several years, and, to the day of his death, was in Mississippi
    The Judge of the inferior Court says, the evidence shows that, sometime prior to Ms death, being in bad health, he sold out and moved up into the State of Mississippi. The Court proceeds to state, it is not necessary to determine the question of domicEe. The Court says : “It is not the date of the death, but of the settlement of the succession by which this question is governed. The widow is1 now a resident of this -State, and is entitled to the protection of our homestead law. Were she stiE a resident of another State, it might be otherwise.”
    The argument is not good; for, if she be entitled to the benefit of the homestead law, she acquired her right at the instance of the death, which occurred in Mississippi, where she resided at the time, and she acquired the right by the laws of Louisiana. If she did not acquire it then, she could not possibly have acquired it at any other time. The '.right is the offspring of death. If it is not born then, it can never have any existence.
    The argument of the inferior Court is that, at the time of the death of her husband in Mississippi, she had no right, but she acquired it by removal to New Orleans. In other words, it is not from the death the right is acquired, but from the removal. By such an argument, a widow might Eve in the State of Mississippi for years without any right by the laws of Louisiana, but, upon removing here, could disturb the settlement of a succession for the satisfaction of her claim.
    The law, 1852, gives $1,000 to the widow in necessitous circumstances out of the estate of her husband. The law is intended to assist the destitute that the State has some obHgations to assist. Louisiana is under no obligation to provide a homestead to non-residents. It is entitled: “To provide a homestead for the widow and children of deceased persons.”' Can it be for widows and children of deceased persons who reside ont of' the State ? In the language of Judge Lea, Stewart v. His Creditors, 12. An. 91: “It is the duty of the State to protect its own widows and orphans, and those of its own people who are laboring under legal incapacities. Upon what principle of public policy, or even of common justice, could the rights of mortgage creditors in this State be postponed to the claims of an interdicted person residing in France upon the property of his curator situated in this Stats, for an indebtedness growing out of' an administration in that country?” In that case, Stewart made a surrender to his creditors. Stewart resided in Tampico, and his wife claimed a legal mortgage upon his real estate here, and her claim was rejected, on the ground that our system of legal and tacit mortgages did not extend to cases where the debt itself originated 'out of the State at a time when the debtor was also a non-resident. See, also, Arnold v.. McBride 6 A. 703.
   IrsiiEV, J.

Two of the items of the account and tableau of distribution filed by the administrator of the succession of John Cooper Norton, deceased, were opposed:

1. The item of three hundred dollars allowed to James Timony, as the balance of a note for two thousand dollars, subscribed by the deceased, and secured by a mortgage on certain real estate found in the succession..

2. The item of one thousand dollars allowed to the widow and children of the deceased, John Cooper Norton, as a homestead claim.

Both oppositions were dismissed, and the opponent, J. A. Lum, has. taken the present appeal from the judgment of dismissal.

The grounds of opposition to the item of three hundred dollars allowed to Timony, are: first, that this claim is not due; and, second, that if it were due, the mortgage given to secure the payment of it has been extinguished. By reference to the act of mortgage we find no mention made - of any indebtedness by the mortgagor to the mortgagee; but as the mortgage was given to the mortgagee expressly to secure the payment of the note of two thousand dollars, described in the act, we must infer that the principal debt was then due. It was stipulated in the act, that the note was to be immediately discounted by the mortgagee; but we infer from this nothing more than that the mortgagee would put it into the market • for discount, in other words, that he was not expected to hold it himself till its maturity.

Timony himself, examined as a witness, says: “that he claims the three hundred. dollars for lent money.” He further says: “ Norton often-paid accounts on said note to him, for which he gave receipts, and that the last amount paid thereon was four hundred and twenty-five dollars. ”

In the first part of his examination, the witness says: “Since it (the ■ note) was made and given to witness, part of the time, Norton had it in his possession. TMs, unexplained, would certainly have extinguished the mortgage (2214, 3252; Hill v. Hill, 4 Rob. 416); but, in a subsequent part of his testimony he says, that the reason “Norton had the noto in Ms possession for some time, was because, after it was executed, Norton fell sick, and witness did not see him for some time after, when he gave Mm the note, and that Norton never had possession of it afterwards. This possession of the note by Norton was not a possession in his own right, but for Timony; and as the debt was not thereby extinguished, the vitality of the mortgage to secure it was not impaired. Any disposition of the note made by Timony to assist the widow of the deceased has no bearing whatever on the case.

If the able counsel who examined Timony could not elicit from him stronger proof that he was not the owner of the note, it was, we presume, because he found the task a hopeless one.-

We think that item was properly allowed.

The opposition to the second item must be sustained; for, admitting that the widow and children of John Cooper Norton were left in necessitous circumstances, and did not, in their own right, possess one thousand dollars, they were, at the time of Norton’s death, domiciliated in the látate of Mississippi; and it was at the moment of Norton’s death that their right, under the statute (if any they had, which cannot be conceded to them), would have vested. See the case of Gimble v. Goode, 13 An. 352.

The District Judge erred in supposing that “it is not the date of the death, but of the settlement of the succession, by which the question must be governed;” and the fact that Mrs. Nortion did, after her husband’s death, fix her residence in Louisiana, does not, unfortunately for her, vest in her any right to claim the bounty.

Judge Lea thus expresses the opinion of the Court, in the case of Stewart v. His Creditors, 12 A. 91, and we concur fully in the applicability of the doctrine therein announced to the present case: “It is the duty of the State to protect its own widows and orphans, and those of its own people who are laboring under legal incapacities. Upon what principle of public policy, or even of common justice, could the rights of mortgage creditors in tMs State, be postponed to the claims of an interdicted person residing in France upon the property of his curator situated in this State, for an indebtedness growing out of an administration in that country ?” We are unanimously of the opinion that Mrs. Norton and her children cannot sustain their claim under the homestead law.

The judgment of the lower Court is sustained, so far as it rejects the opposition to the claim of James Timony, and reversed, so far as it sustains the claim of the widow and children of the deceased John Cooper Norton.

It is therefore ordered, adjudged and decreed, that the judgment on the opposition of J. A. Lum to the claim of James Timony be affirmed, at the costs of the appellant; and that the judgment on the opposition of J. A. Lum to the claim of the widow and children of John Cooper Norton, under the homestead law, be annulled, avoided and reversed, and that the opposition thereto be sustained, at the cost of the succession.


author: Hvman, C. J.

text:
    Thomas C. Bedford v. Lewis N. Shelton.
    If one, against whom there was a cause of action, die, leaving one heir only, the suit shall be carried on against such heir, as it would have been against the deceased.
    If the suit had already been brought against the deceased, and he had not answered, it shall not bo interrupted, but shall be continued against the heir, by a mere citation or notice served on him to that effect, within the delay for original citations, according as the distance may be from his domicile to the court where the action has been brought.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. W. iS. Stansbury, for plaintiff. Wm. H. Hunt, for defendant. A. Loihrop, for James R. Shelton, warrantor.
   Hvman, C. J.

Plaintiff brought suit to rescind the sale of a slave for redhibitory vices, and to recover the principal for the same, with damages.

Defendant, Lewis N. Shelton, called in warranty James R. Shelton, his warrantor.

The Judge rendered judgment in favor of plaintiff, against John C. Barrelli, as the universal legatee of Lewis N. Shelton, and in favor of Barrelli against James R. Shelton.

Barrelli has appealed.

This suit has to be remanded to make proper parties thereto.

Previous to the trial, plaintiff suggesting to the Court that Lewis N. Shelton had died, and that Barrelli was the universal legatee of the deceased, obtained an order of Court to make him, Barrelli, a party to the suit.

No notice of the suit, or of this order, was served on Barrelli. He filed no answer. His first appearance was on a motion asking permission to appeal from the judgment.

The mode provided by law to make an heir a party to a suit has not been pursued.

The notice required by Article 120 of the Code of Practice should have been served on him.

Before such notice is given, or before he appears, he is not a party.

Judgment of the District Court is reversed and annulled, and the case remanded to the lower Court, to be proceeded in according to law, plaintiff to pay cost of suit.


author: Howebd, J.

text:
    Mary Heyob, Wife of Joseph Bourdette, v. Her Husband.
    A married woman cannot sue her husband as long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds herproperty separate from him by her marriage contract: but in every case she cannot sue, without the authorization of the Court before which she brings her action.
    APPEAL from the Fourth District Court of New Orleans,
    Theard, J. J. Ad. Rozier and Charles E. Reynes, for plaintiff and appellant. L. S. Tissot, for defendant.
   Howebd, J.

The plaintiff, a married woman, alleges that, in October, 1856, she obtained a judgment of separation of property against her husband, which was executed by a notarial act of settlement between them j that, some time thereafter, her husband abandoned the common domicile, and has since neglected to provide, as he is bound to do, for her maintenance as his wife, and has continued to live in open concubinage with a prostitute; that she has had to pay the rent of her dwelling and all her household expenses ; that, in the settlement of the community, he concealed from her, and failed to include, about $20,000 in bank and other stocks, the one-half of which she claims. She prays that she be authorized to sue her husband, and that he be condemned: 1. To reimburse to her the rent and expenses she has paid since his abandonment of the common dwelling; 2. To pay to her $10,000, the half of the bank stock not included in the settlement of the community; and, 3. To receive her tinder a roof, where her dignity as a woman and a wife will not be disgraced by the presence of his concubine; and, in default thereof, that he be condemned to provide for her maintenance, at the rate of $150 per month.

The defendant excepted to the petition, on the grounds : 1. That the plaintiff was not authorized to institute this suit; 2. That he had sued plaintiff in the Third District Oourt for a separation of bed and board, in which suit all questions relating to the conduct and pecuniary rights of both parties are pending ; and, 3. That' the petition sets forth no cause of action.

These exceptions were overruled, an. answer was filed, a trial had, and judgment rendered in favor of defendant, from which plaintiff appealed.

Article 105, C. P., declares that “ a married woman cannot sue her husband as long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds her property separate from him by her marriage contract; but in every case she cannot sue without the authorization of the Court before which she brings her action. ”

The plaintiff obtained an order of Court authorizing her to bring this suit; but we are of opinion that it is not one which she can maintain against her husband during marriage, as provided by the foregoing article of the Code of Practice. No one of her demands comes within the provisions of said article. The marriage is not dissolved, and she does not sue for a separation from bed and board, or divorce, nor a separation of property, nor for the restitution and enjoyment of her paraphernal property; nor is she claiming any rights under or by virtue of a marriage contract.

The plaintiff has not presented herself in the position before the Court to obtain a judgment for alimony, nor for specific property alleged to belong to the community; and we think the exception, that no legal cause of action is shown, should have been maintained.

It is therefore ordered that the judgment of the lower Court, although rendered in favor of the defendant on the merits, be avoided and reversed, and that the exception of defendant be maintained, and plaintiff’s suit dismissed, with costs in both courts.


author: InsiiBY, J.

text:
    Succession of U. H. Virgin.
    Where tlie means of a succession are limited, the fee of its attorney will be made to correspond. Subrogation to tne right of a creditor in favor of a third person who pays him, is either conventional or legal.
    The subrogation is conventional When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subrogation must be expressed and made at the same time as the payment.
    Prescription is not interrupted by any process served upon a person, in his official capacity, before his appointment to office.
    APPEAL from the District Court of the Parish of Jefferson,

      Burthe, J. H. H. Strawbridge and H. B. Ogden, for Mrs. Gldld, opponent.

    — Admitting that the widow is in indigent circumstances, still we say that, in the present case, she nor her children are entitled to anything. - The opponent’s judgment was recorded long prior to the death of Virgin, and had it not been for the fraudulent proceedings of Virgin and wife, in placing the property beyond the immediate reach of the creditors, deponent would have had her judgment satisfied during Virgin’s lifetime, and we consider that the widow cannot be now allowed to profit of her own wrongful acts. 2 An. 15 and 16.
    Again, the property was in the name of a third party; it never would have been inventoried or treated as property of deceased, had it not been for the judgment obtained by opponent. The judgment in the action of the creditor, in avoidance of contract, is that the contract be avoided as to its effects on the complaining creditor, and that the property be applied to the payment of the plaintiff. C. C. 1972.
    Such an action does not benefit any other than the complaining creditor ; the sale was avoided only as to its effects on the opponent, the "Complaining creditor. 1 Rob. 89; 16 La. 140; 9 Rob. 28; 6 La. 540.

      With, respect to Mr. E. E. Virgin and his multifarious demands, in addition to the authorities above cited, a few observations will suffice. His claims of $159 for taxes paid, and of $241 for insurance effected on property not his own, but probably held at the time by Mrs. Virgin, are futile; for he produces no deed of subrogation, and not being bound, either with or for Uriah H. Virgin, or -his wife, no subrogation took place, of right. Neither the taxes or-insurance took precedence of the-vendor’s privilege, imparted by the note, of which he pretends to be holder; if, indeed, the debt which it is produced to prove has not really ceased to exist.
    The note in question was, originally, for a sum of $-. It bore date 6th April, 1853, and was secured by special mortgage, in favor of the .original holders.
    Whether or not the record contains any proof of the registry of this mortgage, is a question of fact of secondary importance; for, beyond the mere fact of E. E. Virgin’s possession of the obligation, nought proves that he holds it by title of ownership. His own evidence proves that it has been paid, not purchased. By the record it appears that, in 1854, U. H. Virgin himself paid $600 on account, and obtained an extension or renewal of twelve months from the holders; and E. E. Virgin himself furnishes proof of payment of the remainder. This he did long after its maturity. He took no transfer or subrogation. He has not even called in the holders to prove a purchase. C. C. 2156; Troplong, No. 353. He has, by his own voluntary act, extinguished the debt, and cannot now revive the collateral mortgage to the prejudice of third persons. Whether in making the payment he acted in his own name or in that of Uriah Virgin, or his estate, is immaterial; in either case the mortgage could not be kept alive. C. O. 2130, 2131; Nichols v. His Creditors, 9 Bob. L. B. 476; Harrison v. Bisland, 5 ib. 209, etc.
    Notice of seizure to Mrs. Virgin was no notice to the estate; and although she received letters, as administratrix, on the 15th of April, 1860, no executory proceedings were prosecuted against her in that capacity. The mere filing of a petition of seizure and sale did not interrupt prescription, for it is only actual citation or its equivalent process of notice in executory matters which produces that effect. 6 N. S. 130; 9 Bob. L. B. 105; 2 An. 927. Under the decision in Harrod v. Voorhies, 16 L. B. 254, enforcement of an order of seizure and sale against property did not interrupt limitation of the debt itself; the actions in rem and in personam being viewed as different in their effects. If later decisions have adopted into our practice the article 2244 of the Napoleon Code, much more distinct and clear than our article 3484, it is all a stronger reason for also following Napoleonic article No. 2247, which declares the interruption a nullity of the creditor “laisse perimer 1’instance,” or, in the words of Art. 3485 of the Code of Louisiana, “abandons or discontinues ” his demand after having made it. Surely the empty ceremony of issuing executory process, which, as every circumstance indicates, the-creditor never really intended to enforce, and-under which the office does not seem to have taken even a constructive possession, can hardly be held to be an interruption.of prescription, as to third persons.

      JR. King Gutter, for Mary A. Virgin, administratrix, and E. F. Virgin, appellants.

    — Edwin F. Virgin, as the holder and owner of the promissory note, with mortgage on the property in question, filed his petition on the 22d of March, 1860, praying for an order of seizure and sale, which was granted on the same day.
    By service of notice it will be seen that, on the 27th day of March, 1860, the notice of seizure and sale was served on Mrs. U. H. Virgin, in her capacity of tutrix, personally.
    That suit, notice and service, interrupted prescription, and at once strikes a fatal blow at opponent’s plea of prescription, and is supported by the following authorities: C. C. 3492, 2615; O. P. 63, 66 and 734; C. C. 1395 and 1396; C. P. 984, 985 and 986; 12 Rob. 507; 1 An. 204; 2 An. 145 and 514; 3 An. 268; 5 An. 737; 11 An. 34; 3 An. 714.
    Service was made in the manner pointed out by law, and upon the only representative of the deceased, U. H. Virgin. The rule of law and practice in proceedings via executiva and via ordinaria are widely different, and that difference is distinctly marked; but, notwithstanding, it would seem, by the language used by opponent’s counsel, that he entertains a different opinion on this subject from that expressed by the books. He says: “Enforcement of an order of seizure and sale against property did not interrupt limitation of a debt itself.” Citation, according to law, in ordinary cases, interrupts prescription, and in proceedings via executiva a mere notice of seizure and sale has the same binding and legal effect.
   InsiiBY, J.

The Court very properly sustained Mrs. Child’s claim for three thousand one hundred and ninety dollars as a privilege claim, only inferior to those specially mentioned in the decree of the lower Court.

The reduction of the fee to the counsel for the succession, to two hundred dollars, was correctly made, on account of the limited means of the succession. See Succession of Jean Mayer, 12 Rob. 413; Stein v. Bouman’s Curator, 9 La. 284.

The claims of E. F. Virgin, for taxes of 1857, 1859, insurance, counsel’s fees, costs of protest, and fees in his suit against the property, were properly disallowed as privilege claims. By paying them he was not subrogated to all the rights of the original creditors. In his hands they are merely ordinary claims. See Arts. 2156, 2157 C. C.; Harrison v. Bisland, 5 Rob. 209; Nicholls v. His Creditors, 9 R. 406.

The mortgage given to secure the note of fourteen hundred dollars, claimed by E. T. Virgin, was extinguished by payment of the note made by Mm to the holders of it; and even the debt, if it had any vitality, after payment made by him, was extinguished by prescription. The notice of se-zure and sale, served on Mrs, Virgin, within the period or term of praseription, did not interrupt it against the succession, as Mi'S. Virgin only became administratrix after prescription' was complete; E. E. Virgin’s claim, therefore, was properly disallowed.

The claim of Mrs. Virgin, under the homestead law, was properly allowed, subject to the deductions made by the Court, and which.reduced it.to three hundred dollars. We think the settlement made of her claim was a fair and legal one.

It is therefore ordered, adjudged and decreed,; that the demand and oppositions of Mrs. Child to these several items in the administratrix’s account be sustained, and that the judgment of the lower Court be affirmed, the costs of appeal to be paid by the succession.


author: Labattve, J.

text:
    Frederick N. Bissel v. T. W. Terrell et al.
    A commission certified in tlie following manner “ In witness whereof I have hereunto set my hand and my official seal, at St Louis, Missouri, the day and year above written. (Signed) Charles H. Tillson, Commissioner” — is sufficient.
    Owners of property may be sued jointly or severally.
    A statute must be produced in order to be enforced in a Court of justice.
    Every act whatever of man, that causes damage to another, obliges him by whose fault it happened, to repair it.
    Every person is responsible for the damage ho occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.
    APPEAL from the Third District Court of New Orleans,

      Sandlin, J. Geo. L. Bright, for plaintiff and appellant.

      J. Ad. Rozier, for defendant.

    — Before a man can be indemnified against, loss, it is self-evident that he must be exposed to the risk of loss; he must have some interest in the thing he assumes-to protect, in respect of which interest he may be liable to suffer loss, or detriment, from those perils against which he insures it. The interest which it is thus necessary for every one to have, before he can effect ah available insurance, on his own account and for his- own benefit, is called an insurable interest. Arnould on Insurance, p. 229. At page 228: “The ship-owner has an insurable interest in the profit he expects to make, by carrying his own goods, in his own ship, and this interest he may protect by a general policy on freight. Ib. p. 228; Phillips on Insurance, vol. 2, p. 663, etc.
    Must prove interest. Greenleaf on Evidence, vol. 2, p. 306: The plaintiff’s interest in the subject insured, and the payment of the premium must be proved.
    Kent’s Commentaries, vol. 3, p. 261, Of Insurable Interests.
    Merrick, C. J., p. 38, vol. 12 An. Rep.: “ It being admitted, that in an open policy of insurance a party can only recover to the extent of the loss which he proves he has sustained,” etc.
    Arnould on Insurance, vol. 1, p. 258: Generally-speaking, the shipowner alone has an insurable interest on freight.

      The consignee should have instituted this suit, if there is any cause of ¡action. See Angelí on Carriers, § 495 to \ 515.
   Labattve, J.

The plaintiff alleges that, on the 15th September, 1863, he shipped on board the steamer Hannibal, then lying in the port of New Orleans, for St. Louis, thirty-six hhds of sugar, weighing 39,452 pounds nett, and of the value of $4,773, to be carried as freight and delivered by said boat at St. Louis, to W. C. Kennett, or his assigns. That the said steamer never delivered the said sugar according to the agreement and according to the bill of lading, and the same was entirely lost to him. That on the trip from New Orleans to St. Louis, the said steamer having on board the said sugar, sunk near Donaldsonville, and the sugar was wholly lost; that the loss was occasioned by the dangers of the river usually insured against. That at the time of making the shipment, Captain T. ~W. Terrell, master and part owner of said steamer, represented to him, and agreed and contracted with petitioner, that said sugar should be insured, that the owners of the boat had an open policy with the Globe Insurance Company against war and marine risks, and that the said sugar was covered by said policy, and they so expressed it in the bill of lading. That by these representations he was induced to ship his said sugar; and that, after the loss of said sugar, it appeared that said steamer had no open policy, as represented, and that petitioner has suffered damages for the value of the sugar, and that the defendants are bound for the same.

The defendant T. W. Terrell excepted that the petition disclosed no cause of action. This exception being properly overruled, he answered in substance by a general denial.

The District Court, after having heard the testimony, gave judgment for plaintiff, against the defendants, for $4,339 72, with interest from the 15th September, 1863.

The defendants took this appeal.

On a rule to show cause why the testimony of several witnesses, taken under commission on the part of plaintiff, before Charles H. Tillson, Louisiana State Commissioner for the State of Missouri, should not be received in evidence, defendant objected to the same on the ground that the alleged commissioner, Charles H. Tillson, has not affixed to his certificate and proces-verbal his seal of office, bearing the impress of his name, official capacity, and the name of the State, or territory within the jurisdiction of the State, or territory which he may pretend that he is authorized to act for; and that no seal is annexed to said depositions, as is required by law.

The Court overruled the objections and admitted the testimony, and the defendants excepted to the opinion of the Court.

The bill of exceptions does not give us the reasons for the ruling of the Court; the record shows that a seal was affixed to the certificate, and the commissioner closes as follows:

“In witness whereof I have hereunto set myha&d and my official seal at St. Louis, Missouri, the day and year above written.
(Signed) Chabees H. Txeeson,
Commissioner.”

We must presume by this circumstance, that the seal so affixed was the proper one, and that the impress of the names and capacity was not distinct, and that the Judge acted correctly.

When the case was called up for trial below, the defendant moved that the cause be continued, and that plaintiff be forced to make the other •owners of the boat parties in the suit. The Court overruled the motion, and the case proceeded. The defendant excepted to the ruling of the ■Court.

We think the Court did not err.

During the trial, plaintiff offered in evidence the bill of lading for the ■sugar; the defendant objected to the same, on the ground that there was no stamp on the same, as required by the laws of the United States.

The Court overruled the objections and received the document.

The defendant’s counsel has not favored us with the laws upon which he relies, requiring a stamp on a bill of lading from one port to another ■of the United States. We think the Court did not err.

We now come to the merits.

The bill of lading, dated New Orleans, September 15th, 1863, shows -that the plaintiff delivered on board the steamer Hannibal thirty-six hogsheads of sugar, to be transported to the Port of St. Louis. On the hill of lading are written the following words: “ Insured under open policy Sir. Hannibal-with Globe Insurance Co. against marine and war risks.”

It was admitted on trial below, that the sugar weighed 39,452 pounds nett, and that it was worth eleven cents per pound. The testimony shows that the steamer Hannibal was lost by sinking in the river Mississippi, near Donaldsonville, and that the sugar was wholly lost with the boat. William W. Green, president, and Henry M. Blossom, secretary, of the Globe Insurance Company, examined under commission, testified that Captain Terrell and the owners of the steamboat Hannibal did not have an open policy of insurance in the Globe Insurance Company, which ■covered the thirty-six hogsheads of sugar shipped from New Orleans to St. Louis, on the steamboat Hannibal, on' or about the 15th September, 1863, and that they had no open policy in the office of said company.

We are clearly of opinion that the defendants are responsible to plaintiff for the damages sustained by the loss of the sugar, because, by their ■own aot and false representations, they induced plaintiff into error, and were the cause of his not insuring his sugar here, for it is evident he intended to do so. C. C. Arts. 2294, 2295.

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


author: Howell, J.

text:
    J. Strauss v. J. Bloom & Co.
    What a party receives and uses as money, whatever kind of paper it is, must be paid in currency. Confederate notes are not monies, within the meaning of the law.
    APPEAL from the Sixth District Court of New Orleans,

      Buplantier, J. Whittaker, Fellows & Mills, for plaintiff. F. W. Huntington and F. W. FeUowes, for defendant and appellant.
   Howell, J.

This is an action to recover from the defendants the amount of a draft left with and collected by them for plaintiff.

The defence is, that the amount of said draft was collected in Confederate currency, which defendants say they are willing to pay, and they ask that the suit be dismissed.

Plaintiff obtained judgment, and defendants appealed.

They contend in this Court that plaintiff, by suing for the amount collected, and not for the draft or its value, has ratified their act in receiving Confederate currency, and are bound thereby.

The record shows that defendants placed the note for collection in a bank, where they kept an account, and that it was paid on the 21st September, 1861, some four or five days after the bank suspended specie payments. A clerk of the bank says that notes, deposited for collection prior to the date of suspension, were not collected in Confederate currency, unless under special instructions, and that the draft sued on was deposited before that date. The defendants have not shown that they were authorized to give such instructions, by their principal, who was absent. They attempted to show that they made a special deposit of the funds received in payment of the draft, but failed in the attempt. On the contrary, it appears that said funds were mingled and used with their own; which, it is true, were, at the time, in Confederate currency. It was incumbent on them to show that they have not used the money thus collected. By receiving and using the amount of the draft, they became the debtors to plaintiff, and must pay in currency, unless they show, which they have not done, that plaintiff ratified their act. A suit for money received and appropriated, is not such a ratification. They received what they used as money, and they must pay what is money. Confederate treasury notes are not money.

We do not think this a case for damages as for a frivolous appeal.

It is therefore ordered, that the judgment of the lower Court be affirmed, with costs.


author: Howeld, J.

text:
    J. B. McClendon v. Bennett & Addison.
    Where proof of a reconventional demand has not been beard in the Court below, the judgment should be one of nonsuit and not final.
    APPEAL from the Judge of the District for the Parish of St. Tammany,

      Martin, J. E. F. Bussell, for plaintiff. _D. W. Hennen, for defendants and appellants.
   Howeld, J.

The defendants are appellants from a judgment against them rejecting their reconventional demand in this proceeding, and they complain that a judgment of nonsuit only should have been rendered.

It appears from the statement of facts made by the District Judge, that no evidence was heard on behalf of defendants in support of their reconventional demand, which, it seems, was the only matter before the Court, and, consequently, the proper judgment to be given was one of nonsuit, as the defendants in another action may be able to establish their demand. See 12 M. 1, and authorities therein cited.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed, and that there be judgment against defendants on their reconventional demand, as in case of nonsuit; the costs of the lower Court to be paid by defendants, and those of appeal by the plaintiff and appellee.


text:
    Succession of Jacob Weigel, on the Opposition of Helena Betz.
    The acknowledgment by the defendant of the truth of the facts alleged in the petition is insufficient to support the demand for a divorce.
    The word “established,” as used in Article 1099 of the Oivil Oode, has a well known legal signifioation, and implies that the claim to property doubtful, as between the third person and- the succession, is permanently settled and confirmed.
    Th'e admissibility of a witness does not depend on the amount of the interest involved; but it is competent for the party offering the witness, if the objector does not pursue the inquiry, to show, on cross-examination, whether or not the witness really has any disqualifying interest in the result of the suit, and for this purpose may inquire how the witness is interested. Further inquiry may show that the interest admitted is not of a disqualifying nature. Some witnesses may feel a strong interest in the success of one of the parties from friendship, relationship, or other motive, which goes to their credibility, or they may be interested in the question; and it is proper that the grounds of their belief, as to their interest, should be developed.
    A release of one interested in a suit by an attorney of record is not good. Such an act is not within, the province of counsel, and he must have special authority to bind his client in such case.
    Descendants are expressly prohibited from being witnesses in civil cases for or against their ascendants. This prohibition is not based exclusively upon the reason that these relations are the forced heirs of each other, hut because it has hitherto been the policy of the law to withdraw the witness from the necessity of testifying for or against those to whom -he sustains such intimate and delicate relations, and to relieve the courts from the embarrassment of hearing and deciding upon this kind of proof.
    APPEAL from tbe Eourth Judicial District of the Parish of Jefferson,

      Beauvais, J. Cutler & Thomas, for succession. Myers & Hamilton, for opposition.
   Howell, J.

Jacob Weigel died on 17th July, 1863, and his wife, Sallie Weigel, opened his succession, in the parish of Jefferson, and qualified and gave bond as administratrix.

Upon her petition, the Recorder of the parish made an inventory of the effects and property, real and personal, belonging to the succession, which was filed and homologated on 4th September, 1863. On the 12th of the same month, one Helena Betz, in the form of a rule, opposed the filing and registering of the said inventory, on the ground that she is the sole owner, in her own right, of two pieces of the real property (fully described by her), and aE the personal property, mentioned in the inventory; that said inventory was not completed in one day, and was not signed on the day of adjournment; and that, notwithstanding her opposition and remonstrances, and, without having had exhibited to him any titles.in said succession, or describing any therein, he persisted in placing thereon her property, and she prayed that the said Recorder, the Clerk of the Court, and the pretended administratrix, be served with copies hereof; and that they show cause, on the 3d day of November, 1863, why the said pretended inventory should not be declared null and void, and of no effect in law, so far as it effects her rights; and why her said property should not be declared to be erroneously placed on said inventory, and why it should not be stricken therefrom, the same being her property.

The Clerk and Recorder answered that they acted officially, and under orders of the Court.

The administratrix, in her said capacity, and, as surviving wife and legal representative of the heirs, pleaded a general denial; alleged that aE the mortuary proceedings were regular and legal; waived the informaHty of this proceeding to test the titles to property inventoried; set forth that she and her deceased husband had Eved separately for many years „• that, before their voluntary separation, four children were born of their marriage and are now Eving; that, since and during their separation, her husband Eved in open concubinage with the plaintiff) Helena Betz, and acquired considerable property, which he caused to be placed in the name of his said concubine, who was, at first, a servant in the famüy, without the funds or means at any time of acquiring property; that the deceased frequently declared the intention of putting his property in the name of the plaintiff to prevent his wife and chüdren from getting it; that she had aided her husband in acquiring more money than the estimated value of the property inventoried; that aE the property acquired by him was community property; that aE the transfers by the deceased to Nicholas Betz and others, and by those to the plaintiff, and aE the purchases in the name of plaintiff, are fraudulent, made to defraud his heirs, and are disguised donations to his concubine, who used the funds of the deceased in making payments for the property described in the inventory; and she prays that the demand of the plaintiff be dismissed, that aE the mortuary proceedings be declared legal and vaEd, that Helena Betz be decreed to be the concubine of the deceased and incapable of acquiring from him, directly and indirectly, and all the property mentioned in the inventory adjudged 'to be the property of the succession. of Jacob Weigel, deceased, in community -with appearer; and, as such, administered and distributed to her and the four children, issue of her marriage with the deceaséd.

An order of Court was made that the cause be tried upon these proceedings, as to the titles to the property inventoried.

The plaintiff, after introducing the inventory, her authentic titles to the real estate claimed by her, and the testimony of the parish Recorder to prove the protest against making the inventory, objected, and reserved her bills of exception to any evidence, on the part of the administratrix, to invalidate her titles or prove fraud and simulation, on the grounds :

1. An administratrix cannot prove the simulation of her intestate’s sale, unless alleged to be in fraud of creditors.

2. An administratrix cannot attack the authentic acts of her intestate in any other manner that the intestate himself could, if living, viz : by counter letters or interrogatories to the other party.

3. This opposition and rule is simply a summary process, the object of which is to strike out from the inventory of said succession certain real estate, as being improperly placed thereon, and, under said summary process, opponent could not be divested of her title to said real property, the proceeding for which purpose should be by petition and citation.

In support of the first and second objections, appellants’ counsel refer us to 6 A. 494; 14 A. 610; 12 A. 684 and 759.

In the first two authorities cited, it was held that an administrator could not maintain the revocatory action without alleging injury to the creditors. In the other two, that forced heirs are considered creditors of their ancestor, and, as such, may attack his acts as simulated, to the extent of their legitime.

In the case at bar, the administratrix has alleged that the acts which are assailed “were fraudulent transfers, made for the purpose of defrauding the legal heirs of deceased, and were disguised donations,” which brings the case within the rulings invoked. But it is charged that the acts complained of were disguised donations of real estate, prohibited by law, null and void, and that the property, in reality, belongs to the succession, and community.

Leaving out of view the question as to proper parties (which is not raised by the pleadings), it is difficult to understand who can, in law, make the proof necessary to establish these allegations, if the direct representatives of the deceased cannot. We think the evidence was properly admitted.

The third objection is to the form of proceeding.

The appellant having instituted the controversy in the form of a rule, and provoked an investigation of her titles to immovable property, complains with ill grace of the opposite party’s right to deny the legality and reality of those titles in that proceeding. The latter might probably have successfully excepted to the form. The manner in which the case has been presented complicates the real questions involved, and increases the difficulty of settling the rights of all the parties interested. It is a question not far from doubt, whether a judgment in this proceeding, and under the circumstances presented in this record, would be binding upon the children of the deceased, who are all of age; but, as we have concluded to remand the case, we will content ourselves with giving our opinion upon such points presented as will be necessary to its final decision.

If we view the proceeding, on the part of the appellant, as one authorized, under Art. 1099 C. C., which directs the notary to “make mention of the effects and property which are claimed by third persons, as having been intrusted to the deceased to keep on deposit, consignment or otherwise,” it would be necessary for her to establish her ownership contradictorily, with the representative of the succession, who would, under the all ordinary principles and rules of jurisprudence, have the right to set up legal defences to the demand; for that article of the Code enjoins all such effects and property to “be estimated with the effects of the succession,” and the third person to establish his claim to them, before they can be taken out of the inventory. We do not understand this article as precluding all legal defences to the claim of third persons for property included in the inventory. The word “established,” as used in this article, has a well known legal signification, and implies that the claim to property, doubtful as between the third person and the succession, is permanently settled’ and confirmed.

We can view the proceeding before us in no other light than as a suit (irregular in its inception and many of its features) to settle the rights of the several' parties to the property in dispute, and think the objection of appellant not maintainable.

It is shown that, on 28th June, 1838, Sallie Weigel, who is now administratrix, brought suit, in the First Judicial District Court, against Jacob Weigel, her husband, now deceased, for a separation of bed and board, on the ground that he kept a concubine (the plaintiff herein) openly and publicly in their common dwelling, to which he filed a general denial; and that, on 7th October following, a “judgment of separation between the plaintiff, Sallie Weigel, and defendant, Jacob Weigel, her husband, was rendered upon the said Jacob Weigel’s written confession of the truth of the allegations of plaintiff’s petitionthat, in April, 1841, Jacob Weigel, the defendant in said suit, applied to the same Court for a divorce, on the ground that more than two years had elapsed since the rendition of the above judgment of separation from bed and board, and no reconciliation between the parties had taken place, which was successfully resisted by the separated wife, on the ground that said judgment of separation from bed and board was rendered in her favor and could not be the basis of a judgment of divorce in his favor, and she, at the same time, obtained a judgment for alimony, at $20 per month, for the support of a child, issue of the marriage ; that, since that time, the parties have lived separately, the husband living with the appellant up to his death, in July, 1863.

Sallie Weigel, the administratrix, now treats the said proceedings and judgment as an absolute nullity, and claims to be the surviving wife in community, and entitled to one-half the property involved in this litigation. These questions should properly be decided in the settlement of the succession, contradictorily with the proper parties, but, as they may effect, to some extent, the rights of the parties to this controversy, and the lower Court recognized a community, we deem it necessary to give our opinion upon the effect of said judgment and proceedings.

In the case of Harman v. McLeland, 16 L. 26, it was held that the acknowledgment by the defendant of the truth of the facts alleged, was insufficient to support the demand for a divorce, and the Court well ,and forcibly states the reason and policy of the doctrine; and, while we wholly approve of it, we cannot say that, when a judgment has been solemnly rendered upon such evidence, subsequently recognized and invoked by both parties in a judicial proceeding, and acquiesced in for more than thirty years, it should be treated as a nullity. It may be unfortunate for the interests of society that there is no express legislation on this point, but we can find no law which declares such a judgment a nullity. We think, therefore, the judgment of separation from bed and board, between Sallie and Jacob Weigel, must have its leg^l effects, until regularly annulled. ’' ""'TL p: ,■

Plaintiff reserved a bill of exceptions to the ruling of the HistrlcUiPudge, excluding the testimony of the witness, Charles Stallman, offered to provq,. the declarations of the deceased, relative to his insolvency!! tiriie*1 and after he left the Delpit plantation, on the ground that* no declarations of the deceased could be proven, except those relating^to'jihé iitles in controversy. A;

We think the objection went more to effect than the admissibility of" the evidence. The administratrix had introduced evidence to show the decedent’s wages while on that plantation, with the view to prove his ability to purchase real estate; and the appellant offered the testimony of this witness as rebutting evidence, which it was competent for her to do, under the circumstances.

Another bill of exceptions was taken to the ruling of the Judge in not permitting the cross-examination of the witness, Margaret Redericlc, on her voir dire, on the ground that the appellant could not inquire into the extent of the interest of the witness. The administratrix propounded the single question: “Have you any interest, directly or indirectly, or otherwise, in the result of this suit?” to which, the witness answered “Yes.” The appellant, who offered the witness, then asked: “What is the extent of your interest, and how are you interested ?” It is true, as urged by the counsel for the succession, that the admissibility of a witness does not depend on the amount of the interest involved, but it is competent for the party offering the witness, if the objection does not pursue the inquiry, to show, on cross-examination, whether or not the witness really has any disqualifying interest in the result of the suit, and, for this purpose, may inquire how the witness is interested. Further inquiry may show that the interest admitted is not of a disqualifying nature. Some witnesses may feel a strong interest in the success of one of the parties, from friendship, relationship, or other motive, which goes to their credibility; or, they may be interested in the question, and it is proper that the grounds of their belief, as to their interest, should be developed. 1 Greenleaf, % 386, 392.

The appellant offered the witness, Nicholas Betz, her vendor of one of the properties in question, to prove that she paid the price mentioned in the act, and that she carried on, for years, a separate trade and business, by which she acquired the means of purchasing property; and, upon the Court’s sustaining the objection, that the witness was interested, as vendor, her counsel drew up. and offered a release to said witness, when the opposing counsel objected, that the counsel of the appellant had not the right, authority nor capacity to grant the release, and the Court sustained the objection. We think this ruling correct.

“A release by an attorney of record is not good.” 1 Greenleaf, § 427. Such an act is not within the province of counsel, and he must have special authority to bind his client in such case.

The last bill of exceptions was taken to the ruling of the District Judge rejecting the testimony of Paul Weigel, son of the defendant and the deceased, offered by plaintiff, as a witness, only against the heirs of the deceased, to prove 'that the plaintiff protested against having her property inventoried; and that she had means and money sufficient to buy the said property, and that she paid for it with her own funds, on the ground that he could not be a witness against his mother, was infamous, and interested in the case.

The Court did not err in excluding this witness. His mother, as she presents herself before the Court, is not a mere nominal party to the suit. She is urging a demand in her own right, and is interested, in any event, in the costs. Whether she has a right to recover must depend upon matters presented during the trial; and the competency of a witness must be determined with reference to the parties, the pleadings, and the subject-matter of the suit. “Descendants are expressly prohibited from being witnesses in civil cases, for or against their ascendants. This prohibition is not based exclusively upon the reason that these relations are the forced heirs of each other, but because it has hitherto been the policy of the law to withdraw the witness from the necessity of testifying for or against those to whom he sustains such intimate and delicate relations, and to relieve the Courts from the embarrassment of hearing and deciding upon this kind of proof. ” 12 A. 410. There is nothing to show that the witness offered is one of those whom the law considers infamous ; but, upon the -last objection, although he was called to testify against his own interest, that interest is so blended with that of his co-heirs and mother, that the effect of his testimony could not be separated and confined to his nwn.

The testimony, which was improperly excluded, may have an important effect in establishing appellant’s ability to purchase the property, the titles to which she holds, and, upon another trial, the representative of the succession, or the heirs, may be able to trace the titles to each part of the properties embraced, respectively, in the acts filed by appellant.

We think justice requires that the case be remanded, to afford the heirs an opportunity to become, if they wish, or be made parties, and for mote -direct and satisfactory evidence to be introduced. The main questions .are, whether the property, to which the appellant has produced titles, was acquired with her own funds, or those of the deceased; or, in other words, whether or not her titles are disguised donations to a concubine, which are nullities; and whether or not there are such parties as will authorize a judgment binding on those interested.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that this cause be remanded for further proceedings, according to law, and the views enunciate^, in the foregoing opinion; the costs of appeal to be paid jointly by Sallie Weigel and the succession of Jacob Weigel.


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    William E. Murphy v. J. M. Denman.
    This Court cannot recognize any legal proprietary right in Confederate notes, unless such rights be based upon som.9 positiva law of Uongress, or upon some legitimate Military Order of the Government of the United States.
    APPEAL from the Sixth District Court of New Orleans,

      Duplaniier, J. Costera & Dufour, for plaintiff and appellant. W. H. Hunt and Q. Schmidt, for defendant.
   Jones, J.

The actual controversy in this case is upon the plaintiff’s :right to recover from the defendant a specific thing, being nine hundred :and twenty-five dollars in Confederate notes.

This Court cannot recognize any legal proprietary right in Confederate. notes, unless such rights be based upon some positive law of Congress, or upon some legitimate military order of the Government of the United States; neither of which being exhibited in this case, the claim for Confederate notes cannot be sustained. This Court will, ex officio, notice the claim of plaintiff, as sustained by the proof; but, it being against public policy, it will not receive its sanction.

This Court, therefore, sets aside the original judgment rendered in this •case, and further orders, adjudges and decrees, that judgment be rendered in favor of defendant, as in case of nonsuit, costs to be paid by plaintiff in both courts. I • ;


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    Bernard Miller v. Conrad Streeder—S. Weber, Intervenor.
    To effect the seizure'of a negotiable note, before maturity, it must be taken into actual custody by the-Sheriff.
    In order to make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer. A promissory note, endorsed in blank by the payee, is of that class of property ; it is not merely the evidence of debt: with its endorsements, it contains the obligations of several parties, and is the subject of sale and delivery, as much as any other movable.
    An endorsee, after maturity, takes the note subject to equities. But, when we speak of equities between the parties, it is not to be understood, by this expression, that all sorts of equities existing between the parties, from other independent transactions between them, are intended ; but only such equities as attach to the particular note, and as between those parties, would be available, to con* tool, qualify or extinguish any rights arising thereon.
    If the evidence of the right be negotiable, and is acquired without notice by an endorsee, even after the seizure of the right, the seizure is ineffectual as to him : a principle adopted in favor of com. anerce. But if the evidence of the right be not negotiable, the seizure of the debt or right, of which it is the evidence, by notification to the debtor or keeper of the subject of the right, is valid against the subsequent assignee of the debt or right.
    APPEAL from the Third District Court of New Orleans,

      Duvigneaud, J. A. Sambola, for plaintiff and appellant. P. W. GoUens, for defendant. T. Wharton Gollins, for intervenor.
   Howell, J.

On the 30th November, 1860, the plaintiff instituted suit-against the defendant, in the Third District Court of New Orleans, upon a promissory note for $324, made by the latter to the order of and endorsed by one H. Alt, and payable six months after date, which was, on the 28th July, 1860, (nine days after its maturity,) protested for nonpayment, at the instance of plaintiff.

On the 12th December, 1860, the defendant answered, that he had been notified that plaintiff was not the owner of the note sued on; that it had been seized, with his indebtedness thereon, under two writs of fi. fa., in the oases of Weber v. Alt, in the Third and Eifth District Courts, as the property of said Alt, who was the true holder and owner thereof at maturity and since; and that, as a mere stakeholder, ready to pay either party,, he is not bound to pay, until the conflict of claims is decided.

On the same day, the said Weber intervened, alleging that he had issued executions upon his two judgments against the said Alt, obtained in the Third and Eifth District Courts of New Orleans, and, in a garnishment process, caused the seizure of the note sued on in this case, and the amount due thereon, in the hands of said Streeder, the maker; that Alt was the actual holder of said note, at the time, and that this suit has been instituted by the plaintiff in order to cover the same and defeat interl venor by fraud and simulation; that the garnishee, Streeder, admitted owing the amount of said note, but omitted to declare in whose hands it then was; that he traversed said answers, and “that, by virtue of said proceedings, he has the best legal and equitable right to the amount sued on herein,” and he prays for judgment against defendant for the amount-of the note, in part satisfaction of his writs of execution.

On these pleadings the parties went to trial, and the lower Court rendered judgment in favor of the intervenor and against plaintiff and defendant, condemning the latter to pay $324, amount of the note sued on,. •with interest, to the Sheriff, to be applied to the satisfaction of the writ, in his hands in the ease of Weber v. Alt, in the Third District Court, and the excess, if any, to the one in the case of Weber v. Alt, in the Fifth District Court, the defendant to pay costs of suit, and plaintiff those of the intervention; from which judgment, plaintiff, Miller, appealed.

There is no dispute as to defendant’s obligation to pay the note, and the question to be decided is, was there a seizure of it, or has the intervenor acquired any right to it?

The record contains no evidence of bad faith in plaintiff, or his knowledge of the attempted seizure, and we are required only to determine the effect of the proceedings under the Act of 1839, resorted to by the intervenor.

The return of the Sheriff shows that nothing came into his hands by the seizure, and the garnishee, in his answers, states that a demand of payment of the note was made of him (by whom he does not say) on the day on which the interrogatories were served on him, and refused in consequence thereof, and that he does not know in whose hands the note was on the day of filing his answers, to wit: on 31st October, 1860. These answers were traversed by the plaintiff in the executions, intervenor herein, and no further steps taken.

The evidence shows further, that, on the 16th July, 1860, Alt, the payer of the note, demanded payment of the note of Streeder, without success, and again on the 19th, the last day of grace, and he was then met with the information that an attachment had been levied upon the note by Weber; that Alt made some unsuccessful effort to effect an arrangement with Weber; that prior to the protest, of the note, plaintiff’s attorney informed Streeder, the maker, that the note belonged to the plaintiff, Miller, who, it appears, was also a creditor of Alt.

It is conceded that, to effect the seizure of a negotiable note before maturity, it must be taken into actual possession by the Sheriff; but the. intervenor contends that, as the note in this case is shown to have been in the possession of the payer, his debtor, on the day of its maturity, it lost its negotiability so far as to make it subject to the rules applicable to other incorporeal rights; and being the mere evidence of a debt, and its transfer conveying no other nor greater rights than those of the transferror, it is enough to seize in the hands of the maker, by service of the garnishment process, under the Act of 1839; a doctrine to which we cannot give our assent, as applied in this ease. Counsel has referred us to one case, that of Wilson v. Munday, 5 L. 487, where the sale of notes under a fi. fa. was sustained, although the Sheriff had not taken possession of them, on the principle that it was sufficient to sell the right of the defendant in execution to them. The facts in that ease are not analogous to those in the case at bar, yet the doctrine enunciated there seems to be inconsistent with our settled jurisprudence. See 7 R. 500; 2 A. 493, 910; 4 A. 369; 6 A. 182. The last case quoted (Scott v. Neblett, 6 An. 182) is one in wiiich the note wasj93s< due and fin suit by the payee against the m.iker, when the Sheriff seized it on execution against the payee, by taking a copy of it and serving a notice on the clerk of the Court, where it was deposited, and the maker, defendant in said suit; but this Court held that there was no seizure, because the Sheriff failed to take actual possession. Chief Justice Eustis, the organ of the Court, said: “We have always held that, in order to make a valid seizure of tangible property, the thing levied upon must'be taken into actual possession by the officer. A promissory note, endorsed in blank by the payee, is of that class of property; it is not merely the evidence of debt: with its endorsements it contains the obligations of several parties, and it is the subject of sale and delivery, as much as any other movable. ”

Itiis true, as contended -by counsel, that an endorsee after maturity takes the note subject to equities. But, as Story says, “Where we speak of equities between the parties, it is not to be understood, by this expression, that aE sorts of equities existing between the parties, from other independent transactions between them, are intended; but only such equities as attach to the particular note, and as between those parties, would be available, to control, qualify or extinguish any rights arising therefrom.” Story on Promissory Notes, $ 178.

In a leading case, Fisher v. Laland, 4 Cush. 456, Shaw, C. J., in the course of his opinion, speaking of the character of a note over due, remarked: “The note does not cease to be negotiable; the endorser takes a title; and if the defendant could make any defence against a suit brought by such endorser, he can make it against the endorsee,”

In the case of Harris v. The Bank of Mobile, 5 An. 539, Mr. Justice Preston-says: “If the evidence of the right be negotiable, and is acquired without notice by an endorser, even after the seizure of the right, the seizure is ineffectual as to him: a principle adopted in favor of commerce. But if the evidence of the right be not negotiable, 'the seizure of the debt or right, of which it is' the evidence, by notification to the debtor or keeper of the subject of the right, is vahd against the subsequent assignee -of the debt or right.”

In the case at bar there are no equities urged by the maker, nor questions raised by him, except as to whom he can safely pay; but a judgment creditor of the payee claims a right to the amount of the note, by virtue of his executions and garnishment process, served upon the maker. 'This we have found to be ineffectual as to the plaintiff, because he is the 'endorser of a negotiable note over due, which did not go into the possession of the Sheriff under those writs, and he is not shown to have any knowledge of the attempted seizure at the time he acquired it. The answers of the garnishee do not show that be was, at the date of the service of the interrogatories upon him, or the filing of his answers, indebted to the defendant in the executions, but that he owed the amount 'of the note, in whosesoever hands it might be.

We think, therefore, that the intervenor has failed to establish his light to the note sued on or its proceeds.

It is therefore ordered, adjudged and decreed, that the judgment of he lower Court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment dismissing the intervention' of Stanislaus Weber, at his costs in the lower Court; and further, that plaintiff, Bernard Miller, recover of defendant, Conrad Streeder, the sum of three hundred-and twenty-four dollars, wjth legal interest from July 19, 1860, with the costs of the main action in the lower Court; the costs of appeal to be paid jointly by the appellees.