text:
    Tew v. Labiche et al.
    A payment on account made by the maker of a promissory note to a person not in possession of the note, nor authorized by tbe owner of the note to receive payment, and which was never received by the owner, will not entitle the maker to a credit for its amount.
    An agent employed to make or conclude a contract has not, as a matter of course, any incidental authority to receive payments which may become duo under it.
    Where the title of a holder, before maturity, of a negotiable note, is not affected by any reasonable suspicion, a mere partial failure of consideration between the original parties is not sufficient to throw upon him the burden of showing for what value he became the holder.
    from the District Court of Catahoula, Barry, J.

      Garrett, for the appellant.
    for the defendants.
   The of the was pronounced by

Slidell, J.

The defendants having taken an order of seizure and sale upon two mortgage notes, the plaintiff obtained an injunction to stay its execution. The proceeding subsequently assumed the form of the via ordinaria. The notes are each for the sum of $2,549 81, dated on the 15th April, 1843, and payable, one on the 1st January, 1845, and the other on the 1st January, 1846. They are both made by the plaintiff, to the order of Jacques Lastrapes', and Louis F. Lastrapes. The not© due 1st January, 1845, was protested at its maturily, at the request, as appears by the notarial protest, of the cashier of the Bank of Louisiana; and it also appears, by the same instrument, that at that time the note bore the blank endorsement of the payees, of Labiche, and of Follain and Bellocq.

The prominent question presented in this cause is, whether the plaintiff is entitled to credit, on the note protested 4th January 1845, for a payment made by her, on the 20th February 1845, to R. Garland, and which is exhibited by the following receipt:—■

New Orleans, February 20th, 1845.

“ Received of Mrs. Sarah Y. Tew, the sum of fifteen hundred dollars, which is to be credited on her note, to Messrs. Jacques, and Louis F. Lastrapes, for the'sum of $2,549 81, due the 1st January 1845, secured by mortgage, of record in the office of the judge of the parish of Catahoula.

(Signed), R. Garland,

Atty. in fact of Jacques and Louis F. Lastrapes.”

It is not disputed, on the one hand, that the receipt is genuine, and that the money was really paid by the plaintiff to Garland ; nor is it pretended, on the other hand, that Garland ever paid the money to the persons whose agent he assumed to be.

It must be conceded, as a general principle of law, that a payment to be valid must be made either to the lawful proprietor of the debt, or to some person authorized by him to receive it. It is also clear that payment to an agent properly authorized, is equivalent to payment to the principal. Quodjussu alterius solvitur pro eo est quasi ipsi solutum esset. The question then is, was Garland authorized by the lawful proprietors of the note to receive payment; or was he without such authority, and his aet consequently void against such 'proprietor ?

Before expressing an opinion on this point, it is necessary to recapitulate briefly the material facts proved at the trial, and which have been considered pertinent by counsel.

Lastrapes, Fesmare ¿y Co. had obtained a judgment, in the District Court at Catahoula, against Johnson, Stone, and others, for $4,870, with ten per cent interest, from the 24th January 1838. For this debt, the succession ot Robert Fristoe, opened in the parish of Catahoula, was also bound. Some time previous to the 15th April 1843, Lastrapes, Fesmare Co. had transferred this judgment to J. Lastrapes and L. F. Lastrapes. On the 19th March 1843, J. and L. F. Lastrapes-, by act under private signature, appointed Rice Garland, who was-their brother-in-law, “their agent and attorney in fact, to sue for and adjust, settle, compromise, novate and arrange, in any way he may think best, the claims now due us, from B. E. Johnson, Stone, the estate of Fristoe, and [sued] upon in the name of L. Lastrapes, Fesmare Sf Co., in the District Court held in- and for the parish of Catahoula as respects said Johnson and Stone, and probated in the Probate Court of said parish as respects the estate of said Robert Fristoe, and to have full and plenary powers to act in the premises, as our inte-rest, may seem to him to require ; and all such actings and doings of our said attorney in fact shall be as obligatory and binding on us, as if transacted by ourselves.”

On tho 15th April 1843, Garland, acting under this power, and annexing it to the notarial act, transferred to the plaintiff the judgment above mentioned, and all the rights of the judgment creditors therein, with the exception of a twelve-month’s bond given in that case, which was to remain in its then situation until paid by the plaintiff; in which case, she was to be fully subrogated to the rights of the judgment creditors, the obligees in the bond. This transfer was made in consideration of the sum of $5,099 63, in payment of which Mrs. Tew gave the two promissory notes above mentioned, and executed in the same notarial act, to secure their payment, a mortage of certain lands and slaves, a portion of which were already encumbered by a mortgage which she had granted in favor of the succession of Fristoe. This latter mortgage she covenanted to pay and satisfy with the judgment conveyed to her by Lastrapes, Desmare Sf Co. The plaintiff’s mortgage notes were delivered to Garland, as is stated in the act.

On the 6th February 1844, Mrs. Tew paid to- Garland the amount of the twelve month’s bond above mentioned, which was executed by G. Mayo as principal, and by J. W. Stone and Mrs. Teto as sureties. Garland gave her a written receipt for $1811, as in full for the bond, signing himself attorney in fact for Lastrapes, Desmare Sf Co. ; and it is inferrable from the evidence that when he received the payment he had the bond in his possession, and delivered it to her. The bond was produced, ■ and offered in evidence in the court below.

Ve have already stated that Garland received the $1,500 upon her note, from the plaintiff, on the 20th February 1845. In a letter, subsequently addressed by Garland to Labiche, the defendant, and which was offered in evidence by the plaintiff, he writes as follows :—

New Orleans, Feb. 22,- 1845.

“My dear Sir: Yours of the 6th instant was handed tome by Mr. Urbain. I have paid him for you $600, and have his receipt. I understood that the mulatto, Henry, was bid off to you at $700, and I was to have him at that price. You are mistaken in supposing that the sum of $500 is coming on the amount received by me. It is but little more than half that sum. The amount received from Madam Tew on the bond was about $1750, of which $850 was paid to Desmare for you, and $609 to Mr. Urbain. If you will send down- the note of Madam Tew, due last January, I can get $1500- on it, in the course of next month, or in April. Colonel Tew was here a few days ago, and has made an arrangement for the money. I told him if .that sum was paid soon, indulgence would.be given for the balance. I shall be in Opelousas between the 10th and 15th of next month, and will settle with you then. Respectfully and truly yours, “R. Garland.

“ Mr. Pierre Labiche, Opelousas.”

The defendants offered in evidence the testimony of A. Desmare, a. resident of New Orleans, who deposes that he received the plaintiff’s note, due l-4th January 1845, from Labiche, in April 1845-, accompanied by a letter from Labiche, in which he says, that he had informed Garland -that he had thought of going to the city, but, for fear- of being disappointed, he sends Desmare the note. He states that there had been a promise to pay $1500 on account, and urges Desmare, if it is paid, to let him know at once. He directs him to ascertain when the debtor can pay the balance, speaks of his own urgent want of funds, and his intention,'if the payment on account is not made, to foreclose the mortgage, and buy in the slaves, of which he stands in need. To this letter Desmare replied, acknowledging the receipt of the protested note ; stating his supposition, that Garland would be able to inform him where he should make application for the promised payment. Another letter was also written by Labiche to Desmare, on the 23d April 1845, in which he says, in substance, that be had received a letter from Garland informing him that Mr. Tew could not come to New Orleans in the middle of April as he had promised, but had promised to come about the end of the month. He requests Desmare to see Garland, to ask if he could depend on getting a payment, and to say to him that, as he, Labiche, could not come to the city himself, he had sent the note to Desmare that he might receive the money from Mr. Tew, and have the payment endorsed on the note. Desmare replies, on the 28th April, as follows:—•

“ Votre lettre de 22 de ce mois rn’est parvenu avant hier par le Panola, mon clier Labiche ; j’avais deja prié notre ami Garland de me prevenir aussitot que Mr. Tew serait en ville; je l’ai revu depuis a ce sujet; il m’a paru persuadé que ce monsieur serait ici vers la fin du mois, et m’a promis de me faire savoir quand il serait arrivé. Il faut prendre patience et esperer.”

On the 11th December 1846, J. and L. F. Lastrapes executed in favor of Labiche, in his capacity of tutor, executor, &c., a notarial act of subrogation of the mortgage given by the plaintiff. In this act they declare that, on the 9th May 184'3, they had transferred the notes to him, in his said capacities of executor, tutor, &c., in consideration of the sum of $5099 62, which they acknowledge to have received in cash.

It is admitted by the parties that Garland “left New Orleans and fled the country, about the last of November, or first of December, 1845, to avoid a criminal prosecution.”

There are also in evidence two letters, addressed, irt June and July 1846, by Mr. Tew to Labiche, requesting information about Garland, and asking copies of letters to Labiche, suggesting that they might be useful in case of proceedings against Garland, on behalf of Mrs. Tew.

It seems to us clear that, so far as Labiche 'Ü concerned, no authority is shown from him to Garland, which would have anthorized the latter to obtain a payment on account of the' note from the plaintiff, without the production of the note itself. The plaintiff, on this point, did not profess to treat With him as the agent of Labiche, but of the Messieurs Lastrapes ; and Labiche, although he evidently looked to Garland for advice and assistance in the matter, did not consider him as having authority to collect the money for him, nor does he appear to have expected that Mrs. Tew would pay it to any one without the production of the note. Hence his authorization to Desmare, who appeal's to have been' his factor, to receive the money, although Garland too was then in New Orleans; and hence, also,-his transmission of the note to Desmare. An authorization from Labiche cannot be deduced from the collection of the bond in 1844, by Garland. Although Labiche was evidently interested in the proceeds of the collections, it does not appear that the bond had been transferred to him, nor that he had constituted Garland his agent to collect it, Garland professed to act on that occasion as the agent of J. and L. F. Lastrapes ; and besides would seem to have had the bond in his possession, as we find it went into the plaintiff’s hands; and the fair inference, in the absence of countervailing circumstances is, that she got the bond when she paid the money.

But it is contended by the plaintiff that Labiche is not to be considered ns an ordinary holder, for value, before maturity, in the ordinary course of business; that the plaintiff had charged in her petition that he was not the real owner of the note, that his title was fictitious, and that the transfer to him was a scheme devised by him and Lastrapes to defeat the equitable defence ; lhat, under the pleadings and the circumstances developed by the evidence, the onm was thrown upon the defendants to make out a clear title to the notes, for a valuable consideration, before maturity; that, not having done so, the defendants must be considered as standing in the place of then' endorsers, J. and L. F. Lastrapes; and that the payment to Garland would be binding upon them, were they the holders.

The evidence, taken as a whole, does not sustain the positions which her counsel assumes. But conceding, for the purposes of argument, that he is right, the case, even upon that hypothesis, is against him.

It is said by a writer of respectable authority that, if money be due upon a written, security it is the duty of the debtor, if he pay it to an agent, to see that tire person to whom, he pays it is íd possession of the security. For, though the money may have been advanced through the mediant of the agent, yet, if the security do not remain in his possession, a payment to him will not discharge the debtor. He cites authorities to the effect that, even the agent’s being usually employed in the receipt of money does not in this instance constitute such authority as will secure the debtor. It has been so held, in respect to money paid upon a bond to one who usually received money for the obligee, but who had not the custody of the bond in question. So, even where the obligor had for several- year's paid the interest and part of’ the principal to an agent of the lender through whom the money had been borrowed, who had not the possession of the bond, but had regularly paid the money over tb the obligee, except the last payment,- the obligor was adjudged to pay the last sum over again. Mr. Paley, however, observes that perhaps a special authority from the obligee might be shown, which would be sufficient without possession of the security. See Paley on Agency, 275.

Mr. Chitty, in- common with other writers on the subject of bills and notes, declares that it is neither necessary nor prudent to pay a negotiable note to a party who is not the holder, nor without his first producing and delivering up the instrument; and observes that if, for want of distinct evidence of payment, it should be in doubt whether it was- made, the mere' circumstance of the instrument not having been given up; will afford a presumption against the party who alleges he has paid it.

It seems to be assumed by the plaintiff that the power given by the Messieurs Lastrapes to Garland, on the 19th March 1843, authorized him to. receive the payment in question. In this view we do not concur. We consider that power, the terms of which we have given at length, as covering the settlement novation, and contract generally, made with Mrs. Teu> on the 15th April 1843, and as expiring when that matter was finished, and the notes payable to the order of Messieurs Lastrapes were received by Garland, and delivered to his principals. Such is its reasonable interpretation; and we have not the right to strain it beyond its terms. Now, an agent who is employed to make, or negotiate, or conclude a contract, is not, as of course, tb be treated as having an incidental authority to receive payments which may become due under such contract. An agent, says Mr. Story, authorized to take a bond, is not to be deemed as of course entitled to receive payments of the money due under the bond. But, if he is entrusted with the continued possession of the bond, an implication of such authority may be deduced from that fact, in connexion with the others. Story on Agency, § 98.

The circumstance of Garland's receivingpayment of the twelve months’ bond, has been considered with reference to Labiche; and, without repeating what was then said, we may add that the circumstance is even weaker as against the Messieurs Lastrapes. It is not shown that they received any portion of that money, nor even that its collection was brought to their knowledge.

We conclude, therefore, that this court did not err in refusing the plaintaiff a credit for the money paid to Garland. The loss must fall on the plaintiff; and she must bear the burden of herown imprudence and misplaced confidence.

The plaintiff claims a credit of $800 upon the ground that, previous to the transfer to her of the judgment;, which was the consideration of her notes, that amount had been collected by the transferrors, which was not communicated to her, nor mentioned in the act of transfer. As vendors of the judgment they warranted its existence such as it was described in the deed; and, under the evidence, we should probably reduce the notes pro tanto, were the payees •plaintiffs here. But, in our opinion, this defence is not available against Labiche. He comes before us with the .opinion of the district judge in his favor. We cannot say that this opinion was manifestly erroneous. The title of Labiche, a holder before maturity, is not under the evidence affected by any reasonable suspicion ; and in such case the mere partial failure of consideration between the original parties is not sufficiant to throw upon the respondent the burden of shewing for what value he became the holder. See I Bingham, N. C. 567. See also Greenleaf, Evid. vol. 2, § 172. Judgment affirmed.


source: Caselaw Access Project

author: Esstis, C. J.

license: Public Domain

text:
    Copley v. Hasson et al.
    Where, in an action for slander of title, the petition prays that defendants may be compelled to set forth and establish their titles to the land in dispute, if any they have, and that plaintiff may have judgment for his land, quieting him in his tide, and that defendants be prohibited from setting up title to the same, and for damages, the petition cannot be amended by a supplemental answer containing the grounds of a petitoiy action against the defendants, in which, for the purpose of the action, their possession is conceded.
    The object of the action of jactitation is to protect the ownership of lands from disturbance by slander of the title; but the action has, in no instance, been maintained against a person in possession under a title. The possessory and petitoiy actions, which are regulated by positive law, give the party injured by the adverse possession every remedy that can be needed.
    from the District Court of Ouachita, J.

      Copley, appellant, se.

      Purvis, on the same side.

      McGuire and for the defendants.
   The judgment of the court was pronounced by

Esstis, C. J.

This is an action of jactitation, instituted by the plaintiff against the defendants, who are charged with having, within the last twelve months, pretended to have some title or claim to certain lands described in the petition, and to have slandered the title of the petitioner, to his damage and injury in the sum of $5,000. The prayer of the petition is, that they be compelled to set forth and establish their title to the lands, if any they have, and that the petitioner have judgment for his lands, quieting him in his title, &c., and that the defendants be enjoined and prohibited from setting up title to the same, and for §5,000 damages.

The defendants filed an exception to the plaintiff's action, on the ground that the plaintiff did not allege that he was in the actual possession of the lands, nor that the defendants had maliciously slandered his title; they [allege that they have been for more than two years in actual and undisturbed possession pf the lands as owners thereof, except a certain portion, to which they disclaim title. This exception, involving matters of fact as to the possession of the defendants, was referred to the merits, as is stated.

An answer was afterwards filed, in which the general issue was pleaded, and a title set up under a sale for taxes, by which the defendants claim to hold the interest of one S. P. Pay in said lands, being an undivided moiety thereof, which they allege they possess as owners.

On the day the answer was filed, the plaintiff applied to the court for leave to file a supplemental petition, which the court refused, on the ground that tho amended petition changed the nature of the action; to this refusal the plaintiff who in the court below conducted his cause in person, took a bill of exceptions.

The amended petition contained the grounds of a petitory action against, the defendants, in which, for the purpose of the action, their possession was conceded.

It is contended that the court erred in not allowing the amended petition to be filed, and the authorities relied upon in support of this position are Hoover, Tutor, v. Richard’s Executrix, 1 Rob. 35; and Haydel v. Bateman, 2 An. 755. In the first case, the court permitted a party, who had brought a possessory action, to amend, by converting it a petitory action, inasmuch as it benefited the defendant in making him a possessor until defendants should have shown a better title; and the possessory action was thereby renounced. Code of Practice, 54. In the case<of Bateman, the petition did not disclose whether the action was possessory or petitory, and an amendment making it clearly petitory was held to be admissible. Neither of these authorities appear to be applicable to the present case; and, we think, the judge did. not err in refusing to allow the amendment.

' The defendants pleaded to the merits under reservation pf the matters set •■forth-in.their exception, and, after evidence was adduced as to the title of each party, ana the’ trial closed, the judge nonsuited' the plaintiff, and he has taken this appeal.

The case-is before us under the original petition, and the only question before "US is,.whether,the judge decided correctly in nonsuiting the plaintiff in this suit, which is. one of jactitation of title exclusively.

The defendants claim the lands under a forced sale for taxes, as the property of S. P. Pay, in November 1843, the interest of Pay being an undivided moiety thereof. The plaintiff claims title under a purchase at sheriff’s sale, in 1844, made under proceedings against Pay et al. R does not appear that the plaintiff ever entered into possession of the lands; any possession which he can be considered as having, must result from his title exclusively.

Hasson, who must be considered as possessing for himself and his co-proprietor, is in possession of an undivided moiety, and his actual possession, we think, dates back for more than one year from the institution of the plaintiff’s suit.

The object of the action of jactitation is, to protect the ownership of lands from disturbance by slander of the title ; but we know of no instance in which tfre action has been maintained against a person in possession under a title. The possessory and petitory actions, which are regulated by positive law, give to the party injured by the qdverse possession every remedy which can be needed. We think the judge did not err in nonsuiting the plaintiff, under the authority of the case of Walden v. Peters, 2 Rob. 333.

We have so recently given our views on the subject of this action, which we have held to be restricted within narrow limits, that it is only necessary here to refer .to .the .case of Packwood v. Dorsey, ante p. 90.

Judgment affirmed.


author: Slibem, J.

text:
    Walsh v. Cane, Administratrix.
    Where a partnership 'lias been dissolved by the death of one of its members, a surviving* partner cannot, by acknowledging a claim against the partnership, which had been extinguished by prescription before its dissolution, revive the debt as against the partnership. Such an acknowledgment can only affect the person by whom it was made.
    from the District Court of Bossier, Olcott, J.

      Lawson, Terrell and Hodge, for the plaintiff.

      Spofford and Crain, for the appellant.
   The judgment of the court was pronounced by

Slibem, J.

The plaintiff’s claim is principally for wages, as clerk in the house of Janies H. Crane 8f Co., from 1841 to 1846. The principal grouud of defence was that, in consideration of the youth and inexperience of the plaintiff he was not entitled to wages, and was sufficiently compensated by receiving his board and lodging, and mercantile instruction, in the shop of his employers.

The .claim of .the plaintiff, as presented by him against the estate of a deceased person, was much large? than under any view of the case he ought to have demanded; and this circumstance has induced us to scrutinize closely the voluminous testimony adduced 'by him. On the other hand, we are not permitted to overlook the fact that two juries of the vicinage have talmrbj able .view of his claim for wages, although, on .each occasion, tj duced his demand-

The result of our examination of the evidence is the conclusion,^ tiff is entitled to wages for at least a portion of his time of s| plea of prescription was made, which has not been successful) which therefore excludes any claim for services rendered mo years before the institution of the suit. .Ciyil Code, 350.3.

The effort of the plaintiff to escape the plea of prescription, by imputation^ certain sums du.e to him in account .current by J. H Crane Sf Co., is inconsistent with the entries and balances in the account books made by himself.

The plaintiff relies upon an acknowledgment, said to have been made by one of the commercial firm of J. H. Crane Sf Co., after the death of James H. Crane and the consequent dissolution of the firm. It is obvious that the surviving debtor could not affect the estate of the deceased by renouncing prescription, and thus destroy an acquired right. The liability of Crane’s estate was already extinguished for services rendered more than three years previous, and the acknwledgpoent of .the surviving debtor affected himself only. Troplong, Prescr., no. 629. Pothier, Oblig., no, 700.

It is therefore decreed, that the principal sum nominated in the judgment be reduced so as Jo be $900, instead .of $1819 46, and that, so amended, the judgment be affirmed ; the costs of the appeal to be paid by the plaintiff,


author: Slidex.l, J.

text:
    Ludeling v. Frellsen.
    Tt is not necessary that a petition of appeal should contain an express prayer that the appellee be cited, where there is but one antagonist party to be brought before the appellate court. Per Cur: We do not say that cases may not occur where it might be necessary to point out, to the ministerial officers, the respective persons whose citation the appellant may desire. Arts. 573, 581 must be construed with reference to the liberal spirit of the stat. of 20 March, 1839; and, in doing so, even if the point be doubtful, the appellant is entitled to the benefit of the doubt.

      Per Cur: Under the peculiar circumstances of the case of Selby v. Gibson, 3 An. 319, the motion to dismiss was properly sustained; but we are not satisfied with all the points which are there ruled, nor were they all indispensable to the decision of the motion.
    An appeal will not be dismissed, where the bond, though insufficient for a suspensive, is large enough for a devolutive, appeal.
    Though the petition for an injunction to stay an order of seizure and sale merely state that, remittances to a certain amount were made to the mortgagee which should have been credited upon the note to secure the payment of which the mortgage was executed, without mentioning the dates, manner, and amounts of the respective remittances, yet if no exception be taken to the generality of the petition, and issue be joined on the plaintiff’s averments, defendants cannot afterwards object to its. generality.
    Where a party to an action resides out of the parish in which the court is held, his adversary cannot compel him to bring his commercial books into court; but he may be ordered to produce, under oath, a sworn copy of a particular account. It is not necessary that interrogatories should he propounded to the party from whom the copy is required. Interrogatories may be propounded, and the part}' required to annex to his answers copies of the accounts; but this is not the only mode of getting at the contents of an adversary’s hooks.
    from the District Court of Ouachita, Copley, J.

      JR. W. Richardson, for the appellants.

      Garret, McGwire and Ray, for the defendant.
   The judgment of the court was pronounced by

Slidex.l, J.

The defendant has moved to dismiss the appeal on various grounds, which we proceed to notice :

1. That the appellee has not been cited. No citation appeal’s to have been made. The appellee contends that the omission to do so is attributable to the fault of the appellants, because in their petition of appeal they did not expressly pray that the appellee be cited. Under articles 573 and 581 C. P. we do not think such prayer was indispensable in a case like this, where there was but one antagonist party to be brought before the appellate court. We do not say that cases may not occur where it might be necessary to point out to the ministerial officers the respective persons whose citation the appellant might desire; but the officer could not possibly have been at loss in the present case. We must construe articles 573 and 581 with some reference to the liberal spirit of the statute of 1839 ; and doing so, even if the point be doubtful, the appellant is entitled to the benefit of the doubt. See Gilmore v. Brenham, 1 An. 414.

Not having been cited, the appellee would have been entitled to a continuance until a citation had been duly served. But as no application for further time has been made, the party simply insisting upon a dismissal, and proffering an argument upon the merits, if his motion be not sustained no delay in the decision of the court is necessary.

We have not overlooked the case of Selby v. Gibson, 3 An. 319. Upon a reconsideration of that case, after elaborate argument, we are still of the opinion that, under the peculiar circumstances there presented, the motion to dismiss was properly sustained. But we are not satisfied with all the points which are there ruled, nor were they all indispensable to tho decision of the motion.

II. It is said that the appeal bond is defective; that it only binds the appellants jointly, who should have bound themselves in solido; that, therefore, they are each bound only for the one half of $800, the amount directed by the order of appeal; that the appellants asked, and the court ordered, a suspensive appeal; that the bond is insufficient for a suspensive appeal; and that the appellants are not even entitled to the benefit of a devolutive appeal. The appellants reply that, by legal intendment, the obligation is in solido; and that, even if it be not, the bond is ample to sustain the appeal as devolutive. In this latter position the appellants are clearly right. See Ralph v. Hoggat, 2 An. 462. Lewis v. Splane, Ib. 754. Parks v. Patton, 9 Rob. 167. It is unnecessaiy to decide now whether, under the bond given,- the appeal is suspensive or devolutive. That is important with reference to the right of execution ; and, if a question should hereafter arise upon that point, it will be time enough then to pass upon it.

We have thus disposed of the grounds for dismissal, but embrace the present occasion for making a few general remarks upon the subject of appeals. It is with extreme regret that the court has observed the looseness with which appeals are frequently taken, and the consequent frequency of motions for dismissal. A very large portion of our time, at the present term, has been spent in the hearing and consideration- of motions for dismissal, which might have been more profitably employed in the discussion of legal principles. It is very easy, with a little care, to place an appeal beyond the possibility of cavil; and we would-earnestly urge upon the bar a more careful observance of the formalities required by law. It should not be forgotten that a very grave responsibility, moral, at least, if not legal, rests Upon an attorney whose inattention deprives his client of a high constitutional right. These remarks are dictated by a regard to the interests of justice, and a desire to repress a growing evil. We trust that they will be received and acted upon in the same spirit by the profession.

The present suit is a proceeding by injunction, brought under the following circumstances. W. H. SfJ. II. Dinkgrave were a commercial firm in Monroe. In January 1847, the plaintiff executed a power of attorney in favor of John H. Dinkgrave. This instrument recites' that she is desirous of assisting the Messrs. Dinkgrave in their business, and particularly in enabling them to procure and to keep a stock of goods; and, in order to enable them to do so, a special mortgage on certain property, which she describes, may be required. She therefore authorizes her attorney to mortgage her property to II. Frellsen Sf Co., merchants residing in New Orleans, to secure the final payment of any note, bill of exchange, or draft, made or drawn by John H. Dinkgrave or William H. Dinkgrave, either separately or together, or for any acceptance made for, or in favor of those persons, in any amount not to exceed five thousand dollar’s ; it being expressly understood that whatever mortgage may be executed by the attorney, is to be security for the debts which the mortgage is intended to secure. In February 1847, Dinkgrave, acting under this power, and specially referring to it, executed a mortgage upon the plaintiff's property, in favor of Frellsen Sy Co., to secure a note made by W. II. 4' H. Dinkgrave, payable 1st January 1848, for $5,000; an indebtedness, as stated in the mortgage, for borrowed money and for drafts accepted.

Frellsen & Co. obtained an order of seizure and sale after the protest of this note, and caused the mortgaged property to be seized. Thereupon the plaintiff obtained an injunction,- alleging, among other matters, that large remittances were from time to time made by the said W. II. Sy J. II. Dinkgrave, to the said II. Frellsen 4" Co., and by him received, amounting to the sum of $2,776'31, with interest froira the dato of the different payments (to offset the interests computed on the acceptances included in the note of $5,000) ; and that she has aright to demand- and require that the said sum of $2,776 31, and internet, be credited on the note of $5,000.

On the 10th January 1849, at the first term-of the court after the institution of this suit, the defendant moved to dissolve the injunction on the ground of the insufficiency of the affidavit for injunction. The motion was over-ruled on the 11th January, and no error being alleged as to this ruling, it requires no further notice. On the 10th January, a general order was made that all cases at issue be set for trial in their order on the docket. On the 11th January, the defendant filed- his answer. It commences'with a general denial, and then specially “ denies that any money was ever paid to him or his agent on the note on which the order of seizure and sale issued, Which is enjoined in this case, except what is credited thereto. It expressly denies that W. H. and J. II. Dinkgrave, or either of thorn, ever made any payments on said note, except what is credited thereon. It is expressly averred that, all the money ever paid by W. H. and J. H. Dinkgrave, or either of them, to your respondents, was appropriated by your respondents, according to their express directions, or to the approp'riation.of which, as made by your respondent, they expressly assented. Wherefore respondent prays plaintiff’s injunction be dissolved,” &e.

On the 12th January, the plaintiff presented to the court in writing an application for an order directed to the defendant Frellsen, to produce his ledger, or other books, containing his account current with W. JET. and J. H. Dinkgrave, showing the entire indebtedness of said Dinkgrave, from the 1st February 1847, to the 1st August 1848, and also all the payments made by them during the same period of time, and credits to which they are entitled, and asking that the court would fix a time when said books should be produced and deposited in the clerk’s office for inspection; and praying also for such further orders as the nature of the case may require, and for general relief. Appended to this application was an affidavit of the plaintiff, that she hoped an'd expected to prove by the production of the books called for, that large payments had been made to II. Frellsen Sy Co. by W. II. and J. II. Dinkgrave, on account of the $5,000 note, amounting to the sum of $2,776 31, with interest, and that she had been informed that efforts had been made by Dinkgrave to obtain a full account current since the institution of this suit without effect. This application was opposed by the defendant, “ on the ground that the allegations in the plaintiff’s petition for injunction were not sufficiently definite to sustain any evidence of payments by said W. H. and J. II. Dinkgrave, and that no amendment could be permitted to the original grounds of injunction.” The court refused to grant the order, and the plaintiff took a bill of exceptions. From this bill it further appears that the plaintiff declared, on the argument of the motion, that she would be satisfied with a sworn extract from the books of a full account current of W. H. and J. II. Dinkgrave with H. Frellsen Sf Co.

"We are of opinion that the court below erred. The objection that, under the indefinite allegations of the petition, no evidence of payments was admisssible, was not well taken. It is true that the allegations of the petition merely stated that remittances to the amount of $2,776 31, had been made by W. H. and J. H. D. to H. F. Sf Co., which she had a right to have credited upon the note, without giving a detail of the time, manner, and items, of the respective remittances. But the defendant made no objection to the generality of the petition; he joined issue upon the plaintiff’s averments; and thus clearly precluded himself from a subsequent objection.

It is conceded that, under the ruling in Cooper v. Polk, 2 Annual, 158, the plaintiff had no right to compel the defendant to bring his commercial books from New Orleans to Monroe. But he Was entitled to a sworn copy of die designated account. It is said that interrogatories should have been propounded to the defendant. This objection was not made in the court below; and, if it had been, we should not be disposed to sustain it. In the case of Cooper v. Polk, we suggested that the defendant “ might, in the interrogatories propounded by him to one of the plaintiffs, have required him to annex to his answers copies of the accounts but we did not say that it was the only mode of getting at the contents of the adversary’s books. If Frellsen 8f Co. had lived in Monroe, the plaintiff, "without propounding' interrogatories, could have compelled them to produce the books themselves. As they lived at New Orleans, we see no objection that they produce under oath a sworn copy from the books of W. H. and J. H. D’s. account.

On a subsequent day of the term leave was asked to file an. amended petition, in which the alleged credit' of $2,776 31 was pleaded more definitely. But we deem it unnecessary to pass upon the refusal to allow it to be filed; because, in our opinion, the plaintiff is entitled, under the original petition and answer, to prove credits to that amount.

At the trial of the cause the plaintiff offered witnesses to prove that W. H. and J. H. D. had made shipments of cotton and produce, and made remittances to H. F. 8f Co., in the years 1847 and 1848; which testimony was objected to upon the ground that it was “ inadmissible under the pleadings, the same not being sufficiently definite by dates and accounts to allow the testimony.” We think the testimony should have been received, and refer to our previous remarks.

It is therefore decreed, that the judgment below be reversed; and it is further decreed that this case be remanded, with instructions to the court below to grant an order commanding the said II. Frellsen to produce and file under oath a copy of the accounts of W. H. and J. II. Dinkgrave with the said H. Frellsen Co., specified in the petition of the plaintiff calling for the same, and for further proceedings according to law', the costs of this appeal to be paid by the defendant.

      The plaintiff, and her surety in the injunction bond, both appealed.

       The order of seizure and sale allowed a credit of $45 95.


author: Rost, J.

text:
    Cason et al. v. Cabrara, Administratrix.
    A woman cannot be legally appointed administratrix of the succession of her brother. It is an office which a woman is- incapable of exercising. C. C. 25.
    A woman appointed administratrix of a succession, the duties of which she is incapable by law of exercising, can he made to account only for the property that has come into her hands.
    from tlip District Court of Ouachita, Copley, J.

      Baker, for the appellants.

      Stillman, M‘Guire and Ray, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

There is no error in the judgment appealed from in this case. The appointment of the defendant as administratrix of the succession of her brother Andrew Parker, was a nullity. This was a civil function which the law does not declare women capable of exercising, except in certain enumerated cases, and which they cannot therefore perform. C. C. art. 25, 1042. Caraby v. Caraby, 7 Mart. N. S. 466.

The defendant, having no authority to administer, could at most, be made to account for the property which came' into her hands. The only property which, came into her hands was a slave, which was legally sold; and the plaintiffs admit that they have received the proceeds of the sale.

The remainder of the succession appears to have been taken possession of by John Parker, the lather of the deceased and of the defendant, who was jalso the father of some of the plaintiffs and the grandfather of the others. He paid-most of the debts of the succession, and died without rendering any account of it, leaving the plaintiffs and the defendant as his heirs- at law. The claim which the plaintiffs might have had against him, in his lifetime, is now extinguished by confusion.

Had the appointment of the administratrix been authorized by law, the plaintiffs have not shown that they had renounced the succession of John Parker ; and we do not wish to be understood as intimating that they might in that case-have maintained the present action. Judgment affirmed.


author: Existís, C. J.

text:
    Dickson v. Grissom.
    A statement made by a party to an action is inadmissible in evidence, though offered to be proved by the answer of a witness, introduced by the opposite party, to a question propounded on his cross-examination, where the statement has no necessary or pertinent connection with any fact sworn to by tbe witness, and its admission was excepted to in time.
    An act of sale of land situated in another State, which appears to have been acknowledged by the parties executing it before a justice of the peace in that State, and is certified by the clerk of the court in whose office the act was recorded as a true copy from the records of his office, though accompanied by a certificate of the governor of the State of the official capacity of the clerk and of the certificate’s being in due form, &e., is not admissible as evidence of the original act, but is simply a private writing, and must be proved as such. For Cwr: There is no evidence before us that the certified copy of ilie act of salo would be received in evidence in any court of the State in whicli it was executed, without satisfactorily accounting for tho non-production of tho original.
    from the District Court of Ouachita, Copley, J.

      Balter, for tho appellant.

      R. W. Richardson, for the defendant.
   The of the court was pronounced by

Existís, C. J.

This suit was commenced by attachment of the property of the defendant, and is founded on a claim for indemnity on account of the eviction of the plaintiff from a tract of land, sold by the defendant to the plaintiff in the State of Mississippi. The amount alleged to be due the plaintiff by the defendant is four hundred dollars, the price of the land, and one hundred dollars damages, and the further sum of ten dollars and interest, the amount of a promissory note of the defendant’s held by the plaintiff. The judgment of the district court was in favor of the defendant on the principal claim and damages, and against him for the amount of the note, to wit, ten dollars, with interest, together with costs. The plaintiff has appealed.

It appears that Allen, a witness, who had been examined on behalf of tho plaintiff,on his cross-examination stated that the defendant had said, “the plaintiff had more money in his hands that belonged to him, the defendant, than he gave for the land at sheriff's sale, and that the plaintiff had paid him a part of the price of tho land, and had .retained enough, or more money, in his hands than to pay his bid at the sheriff’s sale,” &c. This statement of the witness was made in answer to the question propounded by the counsel for the defendant, as to this declaration of the defendant being made simultaneously with a fact stated by the witness elicited by tho question propounded, that ho, the defendant, had left the State of Mississippi, very much in debt. Wo think this statement of the defendant himself is not admissible in evidence, and cannot be considered as having any necessary or pertinent connection with the fact sworn to. It having been excepted to by counsel, the exception ought to have been sustained.

Another bill of exceptions was taken to a -decision of the judge, receiving in evidence a certified copy of the deed of tho land from the defendant to the plaintiff, on the ground that it was a copy of a private act, the execution of which had not been proved and not propei'ly authenticated, &c. The deed appears to have been acknowledged by the parties executing it, the defendant and his wife, before a justice of -the peace in tho State of Mississippi, and to have been recorded in tho office of the clerk of tho Court of Probates of Yazoo county, Mississijipi, who certifies tho copy offered in evidence as a true copy of tho original ’ deed as appears on record in his office. To this certificate is appended the certificate of the governor of tho State, of tho official capacity of the clerk, and that the certificate annexed is in duo form, &e. According to our laws tho copy is not admissible as evidence of tho original deed, but is considered a private writing and requires to bo proved as such. Nor is there any evidenoe before us that the certified copy of the deed would be received in evidence in any court in Mississippi, without the non-production of tho original, being satisfactorily accounted for. Wo think the court erred in admitting in evidence the copy of the deed. It is not necessaiy to examine the objections taken to the certificates. The exclusion of this piece of evidence, on which the plaintiff’s case rests, renders it necessary to remand the case.

It is therefore decreed that the judgment appealed from be reversed, and that the case bo remanded for a new trial, w!th directions to the district judge to be governed as to the maltors submitted in the bill of exceptions by the decision of this court thereon; the appellee paying the costs of this appeal.


author: Slidell, J.

text:
    Klein v. Dinkgrave et al.
    An agent is a competent witness for his principal; his relation to the latter being merely a matter to he considered in estimating his credibility.
    Whether a conviction and sentence for felony in another State of the Union will, or will not, render a witness incompetent -in the courts of this State, it is clear that any such disability will be removed by a pardon, where the disability was not annexed to the conviction of the crime by the express words of a statute.
    Parol evidence is admissible to prove the consideration of a due bill, silent as to the consideration. The evidence cannot he considered as contr adicting the terms of the written instrument.
    from the District Court of Ouachita, Copley, J.

      MlGuire and Ray, for the plaintiff.

      R, W- Richardson, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The defendants are sued upon a due bill, signed by them, and payable to John M. Crownriteh, or order. It is endorsed as follows: “Pay the within to N. Klein, for whose account the within was taken. J. M. Crownriteh.” The plaintiff, in addition to the usual averments, alleged, “ that Crownriteh transferred the note to him by writing on the back of it the words above-mentioned, that he acted merely as the plaintiff’s agent in taking the note, and that the same is now, and always has been, the plaintiff’s property.

The defence set up by the defendants is, that the transfer of the note to Klein was fraudulent and collusive, and made for the mere purpose of preventing Dink-grave from setting off certain notes made by Crownriteh, of which Dinkgrave is the holder by endorsement. The plaintiff meets this defence by asserting that a vehicle sold to Dinkgrave, for which the note was given, was his property, and was sold by Crownriteh as his agent and for his account; and that Dink-grave was aware of this when he made the purchase and gave the note.

Before considering this case upon the merits, it is proper briefly to notice certain points presented by bills of exception taken by the defendants. Whether on the face of the writing on the note unexplained, Crownriteh was liable to Klein as an endorser, and, if so, whether he would be a competent witness in favour of Klein to prove that the vehicle belonged to Klein, and was sold for his account to the knowledge of the purchaser when he gave the note, are questions which it is unnecessary to decide. Under the allegations of the petition it is clear that Crownriteh was not liable to the plaintiff as endorser, but was a mere agent. As such, and in a case like the present, he was a competent witness; and his relation to the party calling him was, at most, a mere matter to be considered in estimating his credibility.

It also appears that Crownriteh, in a preliminary examination, acknowledged that he had been convicted in Mississippi of an infamous crime; but also stated, at the same time, that he had been pardoned. Whether or not a conviction and sentence for felony in another State of this Union would render a witness incompetent in a court of Louisiana, it is at any rate clear that such disability would be removed by a pardon, where the disability was not annexed to the conviction of the crime by the express words of a statute.

There was no legal objection to the admission of parol evidence to prove that the vehicle was the consideration of the note, that it belonged to Klein, that it was sold for his account, and that Dinkgrave knew those facts. This was not a contradiction of the terms of the note, in the sense of the Code; and it would be superfluous to cite authority to shew. with what liberality parol evidence is admitted to ascertain the equitable rights of the parties litigant in suits upon bills and notes.

Relieved from the objections to the admissibility of evidence, which was properly disregarded by the court below, the case turned upon questions of fact, dependent upon the weight and credibility of conflicting testimony. All this must have been considered by the district judge who heard the witnesses. It is not our province to disturb the opinion of a district judge or the verdict of a jury with regard to questions of fact, unless where such opinion or verdict appears to us manifestly erroneous; which we are not able to say, in the present case. Judgment affirmed.


text:
    Jones v. Wheelis.
    Where the United States have recognized the claim of one of two persons pretending to be settlers on the public lands and have issued a patent to Mm, the courts of this State have no power, in the absence of any equities or evidence taking the case oat of the general rule, to revise their decision.
    Decision in Hollon v. Sapp, ante p. 5X9, affirmed.
    from the District Court of Franklin, Barry, J.

      W. J. Q. Baker, for the appellant.

      Purvis, for the defendant.
   .The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that the defendant has fraudulently entered the land on which he resides, and obtained a patent from the United States. He prays that the patent may be adjudged to have enured to his benefit, and the defendant be ordered to transfer the land to him upon receiving back the price he has paid, or that, if the court should refuse to do this, he may have judgment against the plaintiff for $1000, the alleged value of his improvements.

The answer contains a general denial, and an averment that the defendant was the first settler on the land, and that the plaintiff always acquiesced in his claim. There was judgment in his favor in the court below, and the plaintiff appealed.

On the trial a witness testified that the plaintiff went into possession under a lease from the defendant; but the same witness having stated, on his cross-examination, that the lease was reduced to writing, the court, on the application of the plaintiff, ordered all the testimony in relation to the lease to be stricken from the record. The counsel for the defendant took a bill of exceptions, which it is not necessary to notice.

The plaintiff and defendant stand before us as settlers upon the same quarter section of land. The United States have recognized the claim of the defendant to it to be well founded, and a patent has issued in his favor, in due course of law. We have no authority to revise this decision. There are no equities and evidence .s.uch as would take this case out of the general rule.

So far as the question of damages is involved, this case does not differ from that of Hollon v. Sapp, ante p 519, decided at this term, to which we refer. The plaintiff has failed to make out-a cause of action. Judgment affirmed.


author: Eustis, C. J.

text:
    Pratt v. Wafer et al.
    An universal legatee is only liable for bis virile share of any debt due by the person whose legatee he is.
    A party to a suit is competent to prove the loss of a .paper on which his claim may depend, so as to authorize the introduction of secondary evidence to establish its contents.
    from the District Court of Claiborne, Olcott, J.

      Vaughn and Spofford, for the plaintiff.

      Lawson, for the appellant.
   The judgment of

the court was pronounced by

Eustis, C. J.

This suit is brought to recover the sum of $322 from the defendants, in solido, and interest, being the amount paid by the plaintiff on an appeal bond in the case of W. L. Barns v. Joel Wafer. The plaintiff alleges that he became the surety of Joel Wafer at the instance of Thomas Wafer deceased, under a promise of indemnity made by the latter; that he paid the judgment rendered against Joel Wafer, and that the defendants, who are the universal legatees of said deceased and have accepted his succession, are bound by the contract of their testator to indemnify him. There was judgment against the defendants, and Mabry Wafer, one of them, has appealed.

It is conceded that the other defendant, who was a married woman, was not in court; and it is contended that Mabry Wafer is liable for the whole debt, under an assumpsit; but of this there is not sufficient evidence.

The appellant being one of two universal legatees, is only liable for his virile share of the debt. The judgment against Joel Wafer was affirmed on the appeal, and the amount of the judgment against the plaintiff on his bond was two hundred and seventy-live dollars, with interest from August 5th 1845, and costs. Concerning the latter, we have no evidence on which we can allow them. A bill of exceptions was taken to the admission of a witness to prove the contents of a letter. But as the letter was lost, we concur with the district judge in considering the evidence as admissible. It is well settled that a party to a suit is competent to prove the loss of a paper on which his claim may depend, so as to authorize the introduction of secondary evidence to establish its contents. Donellan v. Taylor, 8 Pick. 390. Adams v. Leland, 7 Ib. 62. N. O. & Carrollton Bank v. Armstrong, 2 An. 830. Its contents, as proved by the witness, are corroborated by the subsequent declarations and conduct of the appellant.

The judgment of the district court is reversed; and it is decreed that the plaintiff recover from the defendant Mabry Wafer, one hundred and thirty-seven dollars and fifty cents, with interest from the 5th of August 1845, and costs; the plaintiff paying the costs of this appeal.


text:
    White v. McDowell and husband.
    Wlioro a witness, incompetent on account of interest, is admitted without objection, and testifies in favor of that interest, his interest in the event of the suit can only affect his credibility.
    A tutrix cannot, without being specially authorized, execute a note in the name of her pupil, which will bo binding on the latter.
    Where a creditor writes at the foot of an account, “ Received payment by note,” it is a novation of the debt.
    from the District Court of Morehouse, Selby, J.

      Purvis and Morrison, for the plaintiff.

      Baker, for the appellants.
   The judgment of the court, Slidell J. dissenting, was pronounced by

Rost, J.

The plaintiff is the transferee of a promissory note, subscribed by the tutrix of Mrs. McDowell, before the marriage of the latter and in her name, for supplies furnished to her during minority. This note is dated in the month of March 1841, and bears interest at the rate of ten per cent per annum from the first day of January preceding. He instituted this action in the parish court against both defendants, on the grounds that the note was for supplies furnished to the wife, and that since the marriage the husband had assumed to pay it. He obtained judgment in that court against the husband only. On appeal to the district court judgment was also rendered against the wife, and she appealed.

The testimony of Temple, the payee of the note, was admitted without objection in the court below. We cannot, therefore, disregard it; and, although the contingent interest be had in the event of the suit may affect his credibility when he testifies in furtherance of that interest, his evidence is entitled to full faith so far as it makes against it. We can of course take no notice of his declaration that, he took the note with the intention of not releasing the minor. This is a question of law to be deduced from his acts. The defendant Mrs. McDowell alleges, in her answer, that she has in her possession receipts and vouchers, which prove that she has paid the account for which this note was given. Temple, the plaintiff’s witness, states that he wrote the following receipt at the foot of that account:—“Received payment by note of Elizabeth Ross, tutrix, &c.;” and it is admitted in the record that the account thus receipted was adduced by her-, as a pnyment made, in the final settlement of her account as tutrix, and that this payment was allowed to her.

It is not shown that the tutrix had authority' to give a note of any kind on behalf of the minor, and more particularly a note bearing the highest rate of conventional interest from a time anterior to its date. This note must therefore be considered as the personal obligation of Elizabeth Ross. It was thus viewed by her, by the defendant, and by the judge before whom the tutorship account was settled ; the settlement was made on that hypothesis.

The question which this case presents is, whether a receipt for a note in payment of an account is a novation of the debt. It was decided in the' affirmative in the cases of Baron et al. v. Howe, 2 Mart. N. S. 146, Abat et al. v. Nolté et al., 6 Ib. N. S. 636; Murdock v. Coleman, 1 An. 410; Cammack v. Griffin, 2 An. 177. After these decisions, the question can no longer be considered as open.

It is therefore ordered that the judgment in this case be reversed; and that there be judgment in favor of the defendant, with costs in both courts.

       The husband also appealed.


author: Etjstis, C. J.

text:
    Colvin v. Nelson.
    A donation of slaves, and their increase, for the sole use and benefit of the donee daring her natural life, and at her death to tlie heirs of her body forever; but, in the event of her dying without issue of her body and of her husband's surviving her, the husband to enjoy during his natural life all the use and benefit arising from the labor of the slaves and their increase, and, at his death, the slaves and their increase to revert to the heirs of the body of the donor,-and to be their’s forever,-creates a substitution, and is void.
    The facts alleged in an application for a new trial on the ground of the discovery of new and material evidence since the trial, must be supported by an affidavit. C. P. 561.
    An intervention will not be allowed, Where its reception must retard the decision of the principal action.
    from the District Court of Ouachita, Copley, J.

      Richardson and Sharp, for the plaintiff.

      McGuire and Ray, for the appellant.
   The judgment of the court was pronounced by

Etjstis, C. J.

This is an action to annul a donation made by the mother of the plaintiff and defendant, who are sisters, of certain slaves in favor of the defendant, on the ground that the donation contained a substitution. The clause disposing of the slaves is as follows :

“ Doth by these presents convey, donate, and forever grant and donate to her said daughter Nancy Harriet Nelson, the following slaves for life, on the conditions hereinafter to be written in this act: one negro man named Levi about 28 years old, Charlotte a woman about 28 years old, and her five children, namely, Caroline about ten years old, Jenny about eight years old, Hughes about six years old, Maria about four years old, and Buck about three years old, as also their increase for ever. The said Nancy Harriet Nelson to have and to hold the said slaves, and their increase, for her own sole use and benefit, for and during her natutal life; and, at her death, the heirs of the body of the said Nancy Harriet, shall inherit them forever; and the said Donnevant (formerly Sarah Donnevant Huey) further conditions that, in the event her said daughter should depart this life without issue of her body, and that her husband as aforesaid, namely, Thomas Jefferson Nelson, should survive his said wife, then, in that event, the said Thomas Jefferson Nelson shall, during his natural life, enjoy all the use and benefits arising from the labor of said slaves and their increase, and, at his demise, the aforesaid slaves and their increase shall go to the heirs of the body of the said Sarah Donnevant (formerly Sarah Donnevant Huey) and to be by them in the last mentioned event to be their’s forever.”

The district judge properly considered this clause as creating a substitution and annulled the donation, decreeing the slaves to be the joint property of the plaintiff and defendant as heirs of their mother, and giving the plaintiff judgment for the one-half value of one of the slaves, which had been disposed of by the defendant previous to the institution of the suit. And, as the plaintiff had prayed for a partition, he referred the parties to a notary for the purpose of having it formally made, expressly reserving the rights and obligations of each, to make and exact collation, as they might exist, in the succession of their mother, which had never been settled by the two heirs. The defendant has appealed. The plaintiff has asked that the judgment be amended, allowing the hire of the slaves; but ths judge having reserved expressly this matter tobe determined on the final partition, we have not the evidence before us to decide it, and it is not in the interest of the plaintiff to remand the cause on that account.

After judgment was rendered, an application was made by the counsel for the defendant for a new trial, inasmuch as, since the trial of the cause, a will of the deceased donor had been discovered and admitted to probate, and this will disposed of the property which was the subject of donation. Of this no affidavit was offered, as the Code of Practice requires. Art. 561. The judge refused to grant the new trial. A petition of intervention of the executor under the will was, at the same time, attempted to be filed, but the judge refused to admit it, on the ground that it would retard the decision of the cause. We think the judge did not err. The intervention would necessarily embarrass and complicate the case before the court, which turned upon the validity of the donation, and was so decided. The property going back to the succession, the questions arising under the will are to be determined when its execution is enforced. We think the course adopted by the judge, tending to preserve simplicity arid order in the proceedings, was the best for the interest of both parties.

Judgment affirmed.

       Sic in Mss. B.


author: Eustis, C. J. Slidell, J.

text:
    Canal and Banking Company et al. v. Brown et al.
    The failure of any of the persons named as sureties in an administrator’s bond to sign it, authorizes those who have signed it to retract, but they must do so seasonably; it is too late, after the obligation of those who signed has been completed by the delivery of the bond, and after the judge, the creditors of the succession, and the administrator-, have been permitted to act upon the bond, to oppose the omission of the other signatures.
    An administrator's bond, found in its proper place among the papers of the succession, though not marked JUed, must be presumed, in the absence of other evidence, to have been acted upon by the judge in authorizing the administrator to take possession, and by the creditors in acquiescing in the appointment.
    A judgment against the principal in an action on an administrator’s bond is not conclusive against the sureties, who were not parties to the aotion on which the judgment was rendered.
    By the Civil Code sureties could be joined in the action against their principal, and be subjected to the same judgment; but as relates to sureties on the bonds of administrators, tutors, curators, executors, and appellants, the law has been changed by the statute of 16th March, 1842, s. 6.
    from the District Court of Catahoula, J.

      McGuire and Ray, for the plaintiffs.

      Phelps and Purvis, for the appellants.
   The judgment of the majority of the court was pronounced by

Eustis, C. J.

On the 26th of December 1839, Pascal Austin, as administrator of the succession of Thomas Bryan and Melinda Bryan, executed a bond for the faithful discharge of his duties as administrator, with seven pei'sons as his sureties. There are some other persons named in the bond, who did not sign it. The responsibility of two of them, who had a separate trial, has been adjudicated upon in the case of the Canal and Banking Company v. Grayson, ante p. 511. The survivors of the remaining nine pei-sons, and the representatives of those of them who are dead, are sued, to be made responsible as sureties of Austin, by several of the creditors of the succession of Bryan. The plaintiffs had judgment for the several amounts appearing to be due them, and the defendants have appealed. The two other defendants, who did not sign the bond, we consider as in no sense the sureties of the administrator, for the reasons given in the case referred to, the facts in both cases being not dissimilar, and governed by the same legal principals: they must be held not liable in plaintiffs action. The first ground of defence taken in argument is that, the bond is void, because the parties signed it on the condition that the four other, persons, whose names are contained in the bond, should also beeome parties to it; that it was an escrow, and had no effect as a bond until completed by all their signatures ; and was delivered to the parish judge as an escrow, to take effect in the event of all the signatures being affixed to it, and in no other.

A bill of exceptions was taken by the counsel for the defendants to the admission of the bond in evidence; but as the objections can all be noticed in considering its effect as a bond valid and obligatory in law, it is not necessary to remark on the several points made to its admissibility.

It is stated that this defence is sustained by the evidence of the bond itself, which contains four names in the recital of the parties which are not signed to the instrument, and that in such a case the parties who have signed are not bound in law on the bond. The cases of Wells v. Dill, 1 N. S. 592, and Pawling v. The United States, 4 Cranch, 219, are relied upon in support of this position.

We have already had occasion to examine the case of Wells v. Bill, when cited in support of the doctrine in the case of Taylor v. Jones, 3 Annual Rep. 621; and we held the report of the case to be too imperfect to authorize the infei’ence drawn by counsel. In that case the decision seems to have beeir based on the authority of the case cited from Cranch, and Pothier on Obligations, No. 11.

Po drier says : “ Lorsqu’il y a un acte sous signatures privé es d’un marché qui n’a pas recu sa perfection entiére par les signatures de toutes les personnes exprimées dans l’acte, quelqu’une d’elles s’etant retirées sans signer, celles qui ont signé peuvent se dedire, et sont crues á dire qu’en faisant dresser cet acte siles ont eu ¡’intention de faire dependre de la perfection de cet acte leur convention.”

. If any of the parties to a contract, which has not yet been perfected by the signatures of all the persons whose names are mentioned in the act, should refuse to-sign it, those who had signed it may retract. The defendants, on the refusal of the other parties to sign, could have withdrawn their signatures. But the difficulty in the application of this authority is that, the obligation of the defendants was completed by the delivery of. the bond, and that, after permitting the judge and the creditors of the succession and the administrator to act upon the bond as it stood, they can no longer be hear'd on the objection of the want of the other signatures.

The case of Pawling turned on a question of fact, whether the bond was deIivered as an escrow or absolutely. There appears to be nothing in the opinion which is applicable to the case under consideration. It was before us in the ease of Taylor v. Jones, and had already been examined by this court in the case oí McNamara v. Purvis, 2 Annual, 592. We then expressed our view of the law to be that, the failure of any of the parties to a contract to sign the instrument gave to those who had signed a right to retract, yet it was incumbent on them to do so seasonably and before the contract takes effect. Certainly there is nothing in the opinion of the Chief Justice in Pawling’s case which are in conflict with this doctrine.

The defendants have pleaded that the bond was handed to the judge as an «screw, to be of avail when signed by the parties named in it.

The clerk of the district court swears that the bond was found among the papers transferred from the office of the late parish judge to his office, and that no other bond of Austin was there found. It bore the endorsement Bond of Administrator, without any note of filing or other memorandum. It bears date the 26th of December 1839, and recites that Pascal Austin has been appointed administrator. The oath of Austin, as administrator, was taken two days previous before the judge, and letters of administration were granted,by the judge en the 13th of January following, and under this authority the succession has been administered, or rather dilapidated, by the administrator, without any attempt-on the part of the sureties to preveut it, or to have themselves released. The proceedings are far from being regular, but we can find no defect which reaches the validity of the bond. The presumption attached to the legal acts of the judge is that the bond, which is in its proper place among the papers of the succession of Bryan, was acted upon by the judge in authorizing the administrator to take possession and administer the succession, and by the creditors in acquiescing in the appointment.

There is no evidence, other than that stated, concerning the delivery of the bond; and we conclude that the defendants who signed it are bound by it, on the principles settled in the case of Taylor v. Jones.

These are the views of a majority of this court, as at present advised. But as we remand the cause for a new trial, the subject is still open for further examination.

The -plaintiffs brought this action on a judgment and proceedings under it, in a suit against Austin, the administrator, which were offered in evidence without objection. On the trial of the cause two of the defendants offered evidence to prove that this judgment was for a much larger sum than Austin, the administrator, was liable for. The admission of this evidence was objected to by the counsel of the plaintiffs, on the ground that the defendants were bound by said judgment, and were precluded from examining into the grounds or correctness of said judgment. This objection was sustained by the judge, and the evidence not admitted.

The question is thus presented whether a judgment on an administrator’s bond is, under our laws, conclusive upon the sureties, who were not parties to the action in which the judgment was rendered.

A judgment in favor of the principal debtor necessarily inures to the benefit of the surety; but Pothier states that, when the judgment is against the principal debtor the creditor can oppose it to the surety, and require that it be made executory against him, but the surety is permitted to appeal from this judgment, 01‘> ^ ^ be rendered in a court of the last resort, to make a third opposition to it. Pothier on Oblig. 816, De Re Judicata, § 60.

There does not appear to have been provided in the Code of Practice any mode of making an opposition in the case of a surety who is sued on a judgment rendered against the principal debtor, the Code providing for two cases only. Hence it seems obvious, and has been so decided, that all rights other than those provided for in the Code are to be canied out in the ordinary action. Skillman v. Parnell, 3 La. 494. We have held that judgments of this kind were not conclusive on sureties. The case of collusion between the creditor and the principal debtor presents an example, in which the necessity of this rule is apparent. Dawes v. Shed, 15 Mass. 7. Heard v. Lodge, 20 Pickering, 59.

By the Civil Code sureties could be joined in the same action with the principals, and would consequently be subjected to the same judgment; but in relation to sureties on the bonds of tutors, administrators, &c. the law has been changed by the act of 1842. That act provides that no such such suit shall be instituted againat the surety, until the necessary steps have been taken to enforce payment against the principal.

A plaintiff was accordingly non-suited, who attempted to sue the surety of a curatrix of a vacant succession before having taken the legal steps to enforce his judgment against the curatrix. Wilson v. Murrell, 6 Robinson, 68. This prohibition of the sureties being made parties to the suit against the principal debtor, strengthens the position that they cannot be held to be concluded by the judgment.

We therefore conclude that the judge erred, in excluding the evidence offered for the reason that the judgment against Austin was conclusive upon his sureties; and that said judgment is not conclusive, but may be enquired into and corrected on proper allegations and by legal evidence. Some of the defendants have expressly pleaded fraud in not resisting the judgment, and as they do not unite in their pleas, and the want of proper allegations of defence is not mentioned in the bill of exceptions, we have confined our decision to the question of law therein stated.

It is therefore decreed that the judgment of the district court be reversed, and that judgment be rendered in favor of the legal representatives of Resin Criswell and G-. L. Lovelace, against the plaintiffs, with costs in both courts; and it is further ordered that the case be remanded for a new trial as to the other appellants, with directions to the judge not to refuse the evidence offered by the two defendants, as stated in their bill of exceptions, on the grounds by him, the said judge, therein sot forth; the appellees paying the costs of this appeal.

Slidell, J.

I wish to be considered as not expressing an opininn as to the validily of the bond, not having formed one ; and concur in the decree remanding the cause, as leaving the subject open for further examination,


text:
    Buffington v. Dinkgrave.
    Under section 4 of the statute of 3d May 1847, the tax on pedlers and hawkers is due from the time when the applicant for a license commences to sell; and, as all taxes are laid for fee calendar year, n license for fee year 1848, will not authorize fee person obtaining it to sell under it in 1849. At whatever period of fee year 1848 fee license may have been issued, it will expire wife feat year. Nor can one who obtains a license at any time after fee commencement of the year complain that he pays as much for a license to trade during a portion of the year as others have paid for the whole year; the inequality is of his own creation, and does not render the statute unconstitutional.
    The collection of fee taxes on pedlers and hawkers for the calendar year, is secured by the bond given in that year by the sheriff, as tax-collector, for the taxes assessed for the preceding year: thus, fee taxes on pedlers and hawkers for 1848, which the sheriff receives in the course of feat year as fee licenses are issued, is secured by the bond given for the general taxes for the year 1847, which are assessed in that year and collected in 1848, the bond providing for fee payment of all sums for which the sheriff may become legally liable during that year.
    from the District Court of Ouachita, Copley, J.

      Garrett, for the plaintiff.

      Sharp and Stillman, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This action was instituted by the plaintiff to recover back from Dinhgrave, sheriff and tax-collector, state and parish taxes, paid under protest, for a license to sell goods in a flatboat at the landing of the town of Monroe. The plaintiff alleges that his boat was laden with the produce of the soil and manufactures of the other States of the Union, and that he was on that account exempt from taxation : That, if he had been liable for the tax, the first license should have endured one year from its date, and he was not liable for the tax of 1849, when he paid it, the year not having expired: That the defendant was not authorized to collect said taxes, and had not given bond at the time : That to be taxed for one month as much as others pay for one year, is unequal ■and unjust, and that the laws taxing pedlers and hawkers are unconstitutional on that ground : That he was compelled to malte payment to avoid the seizure and sale of his property. He .prays that the State and the Parish be made parties to these proceedings, and that he may have judgment for the amount paid by him.

The defendant answered that he acted in the premises in the discharge of his dnty as collector of the state and parish taxes, and averred his authority to do so, and the liability of the plaintiff to pay the tax ; he also denied generally the allegations of .the petition,

The district attorney, and the counsel for the police jury, also appeared and joined in the defence, justifying the acts of the defendant, and alleging that the boat of the plaintiff was laden with foreign products.

There was judgment in favour of the plaintiff, and the defendant appealed.

We are of opinion that the provisions of the act of 1848, exempting from taxation “ any boat or boats laden exclusively with the products of the soil and manufactures of the other States for sale,” is general in its character, and that the plaintiff would have been entitled to the benefit of it, if he had brought himself within the exception.

It is not necessary to determine upon which of the parties the burden of proof lies. The plaintiff, in his petition, does not call upon the defendant to prove that he sold foreign products. He holds tire affirmative of the issue without any reservation, and, in the opening of the case, introduced a witness in support of it. That witness testified that he had bought a great many articles from the plaintiff, and that his assortment consisted of domestic goods, as far as he remembers ; but the same witness stated that he seldom bought of the plaintiff himself, he generally dealt with his clerk. The clerk must have known positwely the nature of the assortment. Why was not his evidence taken ? This omission is suspicious; and the testimony of Dillard that, he went on board of the boat and saw the clerk selling coffee and other foreign products, explains the reason of it.

Should it be conceded that the burthen of proof is upon the defendant, the testimony of Dillard is positive, and cannot be got over. It was excepted to on account of the general character of the answer, but it is clear it could not have taken the plaintiff by surprise. Coffee being the foreign product stated to have been sold by him, in the receipt and protest upon which his action is based. The plaintiff has failed to show that he was within the exception, and if the taxes were legal and properly assessed he has no cause of action.

Wo will dismiss the ground of unconstitutionality by reason of the inequality of the tax, with a simple reference to the cases of The Second Municipality v. Duncan, 2d Annual 182, and The City of Lafayette v. Cummins, 3d Annual 674, in which the same question was thoroughly examined, and decided adversely to the plaintiff’s pretensions.

Under the 4th section of the act of the 3d of May 1847, this tax was due and demandable from the time the plaintiff commenced to sell; -and, as we understand all taxes to be laid for the calendar' year, the license for 1848 expired with that year, and the plaintiff could not sell under it in 1849. The inequality of wbich he complains is of his own creation. The license authorises him to trade for the year during which it is granted, without reference to its date.

It is further argued that the defendant had not given bond for the collection of tlio taxes at the time they were collected. If this was true, and the taxes were justly due, it would not probably be a sufficient reason to authorize the plaintiff to recover the amount claimed. Worsley et al. v. Second Municipality, 9 Rob. p. 324. But we are satisfied that the objection is untenable. By the 44th section of the act of 1847, it is made the duty of sheriffs, before they commence the collection of the taxes, to give bond in a sum at least equal to one-half over and above the amount of taxes levied for state purposes, conditioned for the faithful'performance of the duty of tax collector and for the just and faithful payment of all sums for which the sheriff may become legally liable. The taxes spoken of in this section are the general taxes on property, which are assessed one year and collected the next; for instance, the bond for the tax of 1848 was given only in 1849. The tax on pedlers and hawkers for the year-1848, which it is made the duty of the sheriff to receive in the course of that year- as the licenses are issued, could not therefore have been secured by that bond; but the bond for the general tax of 1847, which was given in 1848, was not only for the faithful performance of his duty as collector of those taxes, but also for the just and faithful payment of all sums for which he might become legally liable during that year. The tax on pedlers and hawkers must therefore be secured by this latter clause of the bond, or it is not secured at all. However this may be, the sheriff is authorized to receive it when he gives the license.

The state tax on pedlers and hawkers is assessed by law¡ and the parish tax on them for the year 1848 was assessed by an ordinance of the police jury. We are of opinion that the sheriff was authorized to receive those taxes; but the parish tax for 1849 had not been assessed at the date of the sheriff’s receipt, and he had no means of knowing what the amount of it would be. The plaintiff is therefore entitled to recover the sum of $67, admitted to have been paid for the parish tax of 1849.

It is therefore ordered that the judgment in this case be reversed ; and that there be judgment in favor of the plaintiff for the sum of sixty-seven dollars, with interest at the rate of five per cent per annum, from the 9th day of April 1849, till paid. It is further ordered that the costs of the district court be paid by the defendant, and those of this appeal by the plaintiff and appellee.


text:
    Hill et al. v. Spangenberg.
    The domicil of a person is in the parish in which lie has his habitual residence. O. C. 42. The expression, “if a defendant reside alternately in different parishes,” in art. 166 0. P. does not mean the passing of a certain portion oí'the day ih one parish, and the residue in another, but the dwelling certain portions of the time in one parish and certain portions in another, as in the case oí winter and summer residences in different parishes.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Peirce, for the appellant,
    cited Digest, book 50, law 27, tit. 1, s. 1. Merlin, Domicile, ss. 2, 7. Cole v. Lucas, 2 An. 946. Code of Practice, 266. Judson v. Lathrop, 1 An. 78.

      Lockett and Gfoold, for the defendant,
    cited C. C. 42. C. P. 166. Tanner v. King, 11 La. 178'. Story’s Conflict of Laws, ss. 46,- 47.
   The judgment of the court was pronounced by

Slidell, J.

The defendant, being sued upon three acceptances, declined the jurisdiction of the Fifth District Court of New Orleans, averring his domicil to be in the parish of Jefferson. The validity of this exception is the sole question presented for our consideration.

The following facts are in evidence: The defendant, fotr about eighteen months previous to the institution of the suit, had been the proprietor of a large sugar plantation in the parish of Jefferson, and of one hundred and fifty slaves employed in its cultivation; during which period he had habitually slept and breakfasted in a dwelling house upon the estate, and returned thither in the afternoon to dn10’ and pass the residue of the day. Pie was in the habit of coming daily, after breakfast, to the city, by the Carrollton railroad, and his mornings were engaged in the business of cotton brokerage in New Orleans, as a member of the firm of Spangenberg Sf Mason. At intervals, however, some days would bé spent continuously at the plantation without visiting the city. His partner, Mason, lived in New Orleans. The defendant’s wife and family had formerly resided at the north, and he was in the habit of spending his summer there; but, after the purchase of the plantation, he ceased to keep houso in New Orleans, and furnished the dwelling house on his plantation, whither his wife and family removed Rom the north, and where they have since continued to live with him, except during the summer, when they went to the north. The defendant had voted, before the institution of this suit, in the parish of Jefferson. For many years before he bought the plantation, the defendant was domiciled in New Orleans, pursuing the business of a cotton broker. He is an owner of real estate in New Orleans. In three or four notarial acts of mortgage, &c., executed by him in New Orleans, shortly before the institution of this suit, he is described as living in New Orleans.

The provisions of our law more particularly pertinent to the present question are to be found in article 42 of the Civil Code, and articles 162 and 166 of the Code of Practice.

“The domicil of each citizen is in the parish wherein his principal establishment is selected. The principal establishment is that in which he makes his habitual residence. If he resides alternatelly in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered his principal establishment, at the option of the persons whose interests are thereby affected.” C. C. art. 42.

“It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence; but that rule is subject to several exceptions.” C. P. art. 162.

“If a defendant reside alternately in different parishes, he must be cited in that in which he appears to have his principal establishment, or his habitual residence. If his residence in each appear to be nearly of the same nature, in such case he may be cited in either, at the choice of the plaintiff, unless he liasdeclared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil.” C. P. 166.

Testing the case by these provisions of our code, we are clearly of the opinion-that the exception must be maintained, that the defendant must be deemed a resident of the parish of Jefferson, and entitled to have his defence heard before the tribunal there. Not only is he the possessor and cultivator of a large estate there, which,- in point of pecuniary importance-, may be considered equivalent to his business operations in New Orleans, but it is there that he sleeps, takes his meals, spends two thirds of his time, has established his household, and surrounded himseli with his family and the comforts of domestic life. His dwelling house there is emphatically his permanent home. Even if it had been proved that the yearly profits of his business as a cotton broker exceeded the revenues of his plantation, we should by no means- consider that as outweighing the considerations we have just stated.

The plaintiff’s counsel has cited the law 27 of the Digest, ad municipalem, as pertinent to the present controversy. Si quis negotia sua, non is colonia, sed in municipio semper agit, in iilo vendit, emit, contrabit, et in eo foro, balneo, spectaealis retitue, ubi festos dies celebrat, omnibus denique municipii commodis, nullis eoloniaum fruitur; ibi majis habere domicilium, quam ubi colende causa diversatur. Conceding fully the correctness of the doctrine, and its consistency with our legislation, we do not regard the case contemplated by the digest as parallel with the one at bar. The city was by no means the exclusive seat of the defendant’s business; and his comforts and enjoyments were centered elsewhere. He participated in the advantages of country life, commodis eoloniaum; and the cultivation of his plantation was an object of his daily supervision, and not of the mere occasional attention of a town resident.

Under the article of the Code of Practice, an option is given to the creditor under certain circumstances, in case the debtor resides alternately in different parishes. We think that there is much reason for saying, with the defendant’s counsel, that residing alternately in different parishes, does not mean passing a certain portion of the day in one parish and the residue in another. It would seem rather to contemplate the case of a person dwelling certain portions of the time in one parish, and others in another, as, for example, in the case of winter and summer residences. Such persons might be said to have alternate residences. But however this may be, there is a qualification in the article confering the option upon the creditor. It is limited to those cases where the debtor’s alternate residences appear to be nearly of the same nature. This cannot be said to be the case of the defendant.

The district judge appears to have considered the present case as covered by the opinion of this court in Judson v. Lathrop, 1 An. 79. But on recurring to the facts of that case, a very marked difference will be found from those presented here. Lathrop was held liable to the jurisdiction of New Orleans, because, although he spent the summer months in Feliciana, he passed the business season, or eight months of the year, in New Orleans, as a commission merchant. And the court refused to compel his creditor to go to another parish, where, during two thirds of the year, his person could not be found.

The descriptive words used in the notarial acts were admissible in evidence against the defendant, and a fair subject of consideration in connexion with other facts, in testing the question of evidence. But we do not consider such immaterial recitals, in contracts with third persons, as conclusive upon the party making them, in a contest with others upon a question of jurisdiction. As to the-comparative weight of this evidence, it may be considered as inferior to another implied declaration of the defendant, on the subject of this domicil. The recital in the notarial act was immaterial, and may have been in reality .the act of tire notary, and not suggested by the defendant, nor noticed by him; but his voting in the parish of Jefferson was his own deliberate act, clearly implying a declaration that he resided in that parish, and involving a fraud upon the public, if that declaration was untrue.

If we reverse this case, and suppose that the present suit had been brought before the District Court of Jefferson, and the defendant had excepted to its jurisdiction, we think, under the facts shown, the exception would have been dismissed without the least hesitation. By parity of reasoning we feel bound to sustain it here.

It may be true that inconvenience to the mercantile community of New Orleans may arise from refusing to them the choice of their own forum, in pursuing debtors who reside in adjoining parishes and transact daily business here. But this inconvenience must yield to the legislative will; and, if it be an evil, must be remedied by a new expression of that will.

It is therefore decreed that the exception of domicil be sustained, and that the plaintiffs’ petition be dismissed; the piaintiffspaying costs in b.pth courts.


author: Rost, J,

text:
    Howland et al. v. Fosdick et al.
    Where the owners of merchandize consigned to an agent for sale, in answering a letter containing an account of the sales, writes with fall information of all the circumstances under which it was made, that V The sale leaves us a very serious loss, but we suppose you acted for the best; we should have preferred holding .on to selling at sue!) low figures,” it amounts to a ratification and approval of the sale.
    from the Fourth District Court of New Orleans, Strawbrige, J.

      Mayhin, for the plaintiffs.

      Lpckett and Goold, for the appellants.
   The judgment of the court (King, J. absent, J was pronounced by

Rost, J,

The defendants, who are merchants in this city, shipped to the plaintiffs, in New York, in the month of August 1.847, forty-six bales of cotton, and directed them .af first to sell it on its arrival, They .drew on the plaintiffs, at the same time, a bill for $2,.062 40, pn the shipment. The plaintiffs acknowledged the receipt of the letter containing the order to sell at .once, before the arrival of the ship. They accepted the bill .and have since paid it.

On the 27th of September, the ship arrived at the quarantine ground, eight miles below the city of New York, and was not permitted to enter the port until the 11th of October. After her arrival, the plaintiffs frequently sent to ascertain when the cotton would be landed. It was landed on the 16th October. On the same day the plaintiffs had it hauled to their warehouses, and as soon as parcticable placed samples of it in the hands of two brokers. It was sold on the 23d of October, at eight een,ts per pound, leaving the plaintiffs upcovered to the amount of 1574 34. They sue for the recovery of this sum, which the defendants refuse to pay, on the ground that it was the dpty of the plaiptiffs to have sent lighters to the quarantine, as soon as it was ascertained that the vessel would be detained there, for the purpose of bringing the cotton to the city of New York, and that, by failing to do so, they violated the defendants’ orders, and were guilty of gross neglect; that by reason of the delay, which occurred, the defendants lost 3 cents per pound on the cotton, and have sustained damages in the sum of $671, which they claim in reconvention. There was judgment against them in the first instance, and they have appealed.

The reasons of the district judge in support of his decree, are as follows :

By the bill of lading, the ship undertook to deliver the cotton in the port of New York; it was then incumbent on the defendants to have shewn some usage or custom by which the consignees were bound to send to Staten Island, and which protected the said consigness from the risk and expense of lighterage, &c., and this has not been done, to my satisfaction. On the contrary, from the oc-> cupation and long expprience of the witnesses Barstow and Robert, in the New Orleans trade, I come to the conclusion that it is not the usage, nor was it the duty of the plaintiffs to send to Staten Island, unless under the special instruc-, tjons of the defendants.”

In this view of the facts and of the law of the case, we entirely concur. Had the vessel been compelled to discharge all her cargo at the'quarantine ground, agreeably to quarantine regulations, it would 'have been the duty of the consignees to make arrangements with the ship for the transportation of the cotton to New York, and to see that it was transported. But, as long as there was a probability that the vessel would be permitted to enter the port with all or a part of her cargo, it was not the duty of the plaintiffs to send lighters under the alleged usage of trade.

Uncommon diligence having been used by the plaintiffs, after the arrival of the ship in New York, there is nothing for the defence to rest upon. So far from being in any manner sustained by the evidence, it is inconsistent with the defendants’ own letters and instructions to the plaintiffs. On the 23d of October, they wrote: “ If the cotton is still on hand, we must leave you to exercise your own discretion as to its being sold immediately or held.” On tho 8th of November, they acknowledge the receipt of the plaintiffs’ letter informing them of the sale of the cotton, and go on to say: “ The sale leaves us a very serious loss; but we suppose you acted for.the best. We should have preferred holding on, to selling at such low figures.”

"When they wrote the last letter they were informed of all the facts alleged in their answer, and it is to all intents a ratification and approval of the sale.

Judgment affirmed.