author: SniDEm, J.

text:
    Young, State Commissioner of Mississippi, v. Crossgrove, Administrator.
    Where the maker of a note was, before its execution and until bis death, a resident of this State, and his succession was opened, and all of his available property situated, here, the fact that the note was dated and payable in another State, will not, in an action on the note against his succession here, make the case an exception to the general rule that the lex fori governs prescription.
    A note made payable to certain commissioners, and not to them or their order, though it contain the words “payable and negotiable at tbe bank of M* * *, at N,” is not a negotiable instrument, and, consequently, not prescribed by five years under art. 3505 C. C. Per Curiam: The words negotiable at 8pc., being joined to the "word.payable, must be considered as referring to the place of payment, and perhaps to the currency usual there.
    To ascertain whether an instrument is prescribed by our laws, its character must be determined with reference to our own jurisprudence.
    from the District Court of Concordia, Farrar, J.

      H. A. Bullard and Frost, for the plaintiff.

      Thomas, Snyder, Stacy and Sparrow, for the defendant,
    contended: 1st. That the note was prescribed by six years under the stat. of Mississippi. 2d. That all claims against the succession of the deceased person not presented &c., -within eighteen months after publication of notice for that purpose, are declared by section ninety-two of the act of 1821 (H. & H. Dig, 413), “tobe for ever barred, and the estate of the testator, or intestator,” “discharged.” Administration was taken in Adams county, Mississippi, on the 5th April, 1840, and the printer’s receipt, in June, 1840, shows that advertisement had been made. 3d. That the note was made “payable and negotiable at the Planters’ Bank of the State of Mississippi, at Natchez;” and, as such, is a negotiable note transferable by endorsement, and was prescribed by the prescription of five years. C. C. art. 3505. “In order to make a promissory note negotiable, it is not essential that it should in terms be payable to order or bearer; any other equivalent expression, clearly demonstrating the intention to make it negotiable, wül be of equal force and validity.” See Story on Notes, s. 44.
   The judgment of the court ('Ring-, J. absent,) was pronounced by

SniDEm, J.

This suit is brought upon a note by which Harrison, Gibson Sf Harris, bound themselves in solido. It is dated and payable in Natchez, and fell due on the 5th September, 1839. This suit was brought, and citation was served, in November, 1846.

The defendant relies on three prescriptions : I. The. prescription of six year® by the laws of Mississippi. This cannot avail him. Gibson was, before the execution of the note, and so continued until his death, a citizen and resident of Louisiana; his succession was opened here, and all his available property was situated here. Under these circumstances there can be no reason for making this case an exception to the general rule, that the law of the forum "regulates prescription.

II. It is urged that, by the laws of Mississippi, all claims against the successions of a deceased person not presented within eighteen months after publication of notice for that purpose, are declared to be forever barred, and the estate of the testator or intestator discharged. It was very forcibly argued, on the part of the* plaintiff, that Gibson's succession was opened in Louisiana, the State of his dormicil, and in which all of his available property was situated; that the administration subsequently opened in Mississippi was merely auxilliary, and for' the purpose of enabling the administrator to prosecute a chose in action there, acknowledged in the petition for letters to be of equivocal value,. the pursuit of which was subsequently abandoned, so that not a dollar was ever realized there. Under such circumstances, it would have Been a vain thing on the part of the creditor to take proceedings there; and it would seem that his rights against the principal administration in this State-should not be affected by his inaction in Mississippi. But however this may be; is is not satisfactorily proved that proper publication was made in Mississippi according to the Requisitions of her statutes, and there is, therefore, no legal basis for tins' Branch of the defence.

HI. It is said that the claim, is barred by the prescription of five years, und'er article 3505 of our Code. That prescription is applicable to negotiable instruments, and we do not consider the note in question as falling under that denomination. The note is payable to the commissioners of the sinking fund, and not to them or their order. The defendant, however, contends that the negotiable character of.' the instrument is- demonstrated by the subsequent expressions, “ payable and negotiable■ at the Planters’ Bank of the State of Mississippi, at Natchez.” In this view we do not concur; the expressions, we think, point to the place of payment. They are very common in ordinary notes, which are' promissory notes in the proper sense, by being made payable to order. The very frequent use of this phrase- in instruments, nogotiable by their tenor, shows- that the words in question are not commonly used for the purpose of designating the character of the obligation. In that sense they would, as ordinarily ¿used, be surplusage.

Besides the word, if construed in the sense contended for, would presont án anomalous and unusal contract—“negotiable at the Planters’ Bank”—that is to say—if you endorse it at the Planters’ Bank, the party tailing will be an endorsee, but if you endorse it any where else, he will be a mere transferee.

The proper meaning of the expression is best ascertained by the application of the rule nosaitur a sociis, and, being joined to the word payable, it is to be considered as pointing to the place of payment, and perhaps to the sort of currency usual at the place.

For the purpose of pescription we have construed the character of the instrument with reference to our own jurisprudence. See the case of Lacoste v. Benton, 3 An. p. 220. Judgment affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Brown v. Stone.
    An action on a promissory note, commenced by attachment against a non-resident maker, by whom the note was executed in the State of A., where he resided, payable in the State of SI., cannot be maintained,, here after the time required to prescribe the note by our laws, on the ground of the claim not having been prescribed by the laws of M. Per Curiam: The maker having lived iu A. at the time he became a party to the note, plaintiff could not have contemplated his bringing or keeping himselfwithin the jurisdiction of M., and he,cannot be considered as having done any act by which his creditor has boon prevented from collecting his debt.
    The general rule is that, prescription is governed by the lexj'ori..
    ^ PPEAL from the District Gourt of Madison, Selby, J.

      Thomas and Snyder, for the plaintiff.
    By the laws of Mississippi, all actions upon instruments of the kind sued on, are barred by the statute of limitations, after the lapse of six years from their maturity. Howard & Hutchison’s Digest, p. 569, s. 91. But by the 99th sec. of the same act (page 571), so long as the debtor is not a resident of said State, the prescription remains in abeyance. The debt therefore not being extinguished in Mississippi, we have only to test it by the laws of our own State. By art. 3505 G. C. actions upon bills of exchange and promissory notes are prescribed by the lapse of five years, unless interruption has taken place in one of the modes pointed out by law. Prescription does not run in favor of an absent debtor, nor against those who cannot prosecute their claims. Stone has always resided in the State of Arkansas; and he could not be sued •either in the State of Mississippi or Louisiana. 7 La. 580. 1 An. 405.

      Bemiss, for the appellant.
    The prescription of five years applies to absentees. D. C. 3505, 3506. 15 La. 146. Prescription is governed by the lex fori. Story’s Conflict of Laws, 2d ed., §577.
   The judgment of tfro court (King, J. absent,) was pronounced by

Rost, J.

This suit was brought by attachment upon a promissoiy note of the defendant, who is a citizen of the State of Arkansas, subscribed and made payable in the State of Mississippi. At the time of the institution of this suit more than five years had elapsed after the note became due, and the defence set up is the plea of prescription, under art. 3505 C. C.

The case is before us on the appeal of the defendant, and the only question it presents is, whether the action, not having been commenced within the period jpresgribed by the laws of Louisiana, can'now be maintained under the statute of limitations of the State of Mississippi. As the defendant lived in Arkansas at the time be became a party to the note, the plaintiff did not contemplate that he should bring or keep himself within the jurisdiction of Mississippi, and he cannot be considered as having done any act by which his creditor has been prevented from collecting his debt.

Under the circumstances, we consider the defendant as protected by art. 3505, the general rule being that the law of the forum governs the prescription of actions. Newman v. Goza, 2 An. 642. Story, Conflict of Laws, § 576, 577. Union Cotton Manufactory v. Lobdell, 7 Mart N. S. 108.

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


author: Slidell, J.

text:
    Ex parte Barrett.
    Decision in Stanton v. Parker, 2 Rob. 550, affirmed.
    for a Mandamus to Buchanan, Judge of the Fifth District Court of New Orleans.

      Sever, for the applicant.
    No other counsel appeared in this ease.
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

For the reasons assigned in the case of State v. Judge Buchanan, 13 La. 576, and Stanton v. Parker, 2 Rob., 550, it is ordered that the writ of mandamus prayed for in this case be refused, at the applicant’s costs.


author: Suidex,!., J.

text:
    The Union Bank of Louisiana v. Jones.
    The board of directors of the branch of the Union Bank at Covington, being clothed by the stat. of 2 April, 1832, incorporating fhe bank, and by the rules and regulations adopted by the board of directors of the mother bank, with such powers only as the charter expressly granted, or such as were necessary and incidental to the accomplishment of the objects contemplated by the charter, in establishing an office of discount and deposit at that place, were limited agents, unauthorized to make a donation of the property of the stock-holders; consequently, where the maker of a note owned by the bank made a cessio lonorum, the board of directors of the branch could not authorize the cashier to vote for his discharge, thereby abandoning all claim against the insolvent in the event of his coming to better fortune, and discharging the endorser. The bank having acquired a right to a dividend whether a discharge was voted or not, the vote was purely gratutious—a mere donation, and not binding on the bank.
    A third person can derive no benefit from an usurpation of power by an agent on whose acts lie relies, where such usurpation was known to him.
    Decisions in Union Bank v. Jones, ’ as to the certificates of notice of protest, ante p. 220, affirmed.
    from the District Court of St. J.
    Halsey, for the appellants.
    The directors of the branch were themselves without authority to grant a discharge. They were agents, having only a power of administration, and could not remit a debt, for remission is an act of ownership. Union Bank of Louisiana v. Bagley, 10 Rob. 43. Pothier, Oblig. 619. Mandat, 164. C. C. art. 630. The charter, s. 34 (Acts 1832, p. 68,) provides “that there shall annually be appointed by the board of directors of the Union Bank, to administer (pour administrer) the affairs of said offices of discount and deposit, five or seven directors.” The expression “to administer” is employed in our law in contradistinction “to use as owner.” We derive the term from the french law, where it is used in the same acceptation. There are many familiar instances of this employment of the word. I will note only that in art. 2965 of the Code, defining the effect of the mandate in general terms, and that of the express mandate. It seems reasonable to infer from the use of a term of this received meaning, to. define the object of the appointment of the directors of the branches, that the legislature has given them the power of general agents—a power of administration, the transaction of the ordinary business of the offices, the care and safe investment of the capital. That this construction gives the intention of the legislature is plain, from other features in the charter. Section 2 provides “that the deliberations of the board of directors of said corporation (the mother bank) shall have the same force and effect as the deliberations of the stock-holders.” Sec. 34 makes the directors of the branches subject “to all such regulations and rules as may be adopted by the board of the mother bank for the government of said officers.” The board of the mother bank is composed neccessarilv of stockholders, (s. 10); the directors of the branches are not required to be stock-holders; besides, the board of the mother bank appoints the directors of the branches. The first is a body of owners having a right in themselves, and an interest at stake. The second are creatures of the first, deriving all authority from their appointment, and have no interest whatever. The first ore principles, the second mere agents. The proximity of the branches to the mother bank, the facility of communicating with it, create a presumption that it was contemplated by the legislature that for all transactions out of the usual course of business, the directors of the branches should cousult the board of the mother bank. “Lorsque le mandant n’est pas assez éloigné pour que son procureur ne puisse facilement le consulten sur ses affaires extraordinaires qui peuvent surv'enir, la présumption est que le mandant par la procuration générale qu’il lui a donnée n’a entendu le charger que de ses affaires courantes et ordinaires, qui ne souffrent pas de dificulté.” This rnle expresses a reservation most reasonably implied in the trust to every agent.
    “If the powers of such attorneys or officers have not been expressly determined, they are regulated in the same manner as those of other agents.” C. C. 430. If the charter be not sufficiently explicit, we must ascertain the powers of the directors of the branches from the rules of the law of mandate. The powers of the directors being given “in general terms, confer only a power of administration.” “The power must be express and special in general, where things to be done are not merely acts of administration, or such as facilitate such acts.” C. C. 2965, 2966. Pothier, Mandat, 148. “ Ouelqu’ étendue que soit une procuration générale, elle ne donne pas au procureur le p>ouvoir de disposer par donation d’aucune chose des biens dont on lui a donné la gestión. C’est une conséquence de ce principe, que le procureur omnium bonorum n’a pas le pouvoir de faire une rémise gratuite de quelque droit qui appartiendrait au mandant, une telle rémise lorsqu’elle est gratuite, étant une véritable donation.” Pothier, Mandat, 164. Olig. 619. The only instance of remission within the power of the general agent is that given from necessity, of a part of the debt in order to preserve the rest of it. “La rémise d’une partie de la créance pour se conserver le surplus, et dans la erainte de perdre tout. Elle he se fait pas tant animo donandi, que dansl’intention de s’assurer par ce moyen le paiement du surplus de la dette et de ne pas tout perdre.” It may well be doubted whether even the directors of the mother bank can give a discharge, without the consideration of an advantage. But it is certain that the directors of a branch cannot. This discharge was not necessary to enable the bank to participate in the proceeds of the insolvent’s estate. The discharge was gratuitous. C. C. 2173.
    No presumption of a ratification of the discharge, which the defendant may derive from the recognition by the board of the vote of the cashier in other respects, can avail the defendant. The ratification cannot be implied—it must be express. C. C. 2990.

      Jones, pro se.

    The holder of the note sued upon, not having preserved his rights unimpaired against the maker, the endorser is discharged. See Civil Code, arts. 3030, 3032. Lobdell v. Niphler, 4 La. 294. Hereford v. Chase, 1 Rob. 212. Callahanv. Tanner, 3 Rob. 299. McGuire v. Wooldridge, 6 Rob. 47. Gustinev. Union Bank, 10 Rob. 412. Freeman v. Profilet, 11 Rob. 33. Bank of the United, States v. Hatch, 6 Peters’ U. S. Rep. 250. Chitty on Bills, 299, 305.

      The cashier of the branch, Read, had a right to do every thing within the scope of his authority, without any special autliorization, according to the general usage, practice and course of business of such institutions; and such acts are binding on the bank. The cashier is the executive officer of the bank, through ' whom and by whom the whole monied transactions of the bank, in paying or receiving debts, and discharging or transferring securities, are to be conducted. He is entrusted with all the funds of the bank in cash, notes and bills, and other securities, to be used, from time to time, for the ordinary and extraordinary exigencies of the bank. And any restrictions upon his authority, with regard to the disposal of the notes and bills belonging to the bank, must be established by competentproofs, and will not bo presumed to exist. See Story on Agency, secs. 16, 52, 53, 114. Minor v. Merchants' Bank of Alexandria, 1 Peters’ U. S. Rep. 70. C. C. art. 429, 430.
    Even if Read had not been cashier, he had possession of this note endorsed in blank, which gave him the legal title to it as owner, and with it ho appeared before the notary, and his authority to controul the proceedings to that amount could not be questioned. The delivery of a note endorsed in blank to an agent, invests him with all the authority respecting the disposal of the note that could be conferred by power of attorney. Story on Agency, s. 104. Chitty on Bills, p. 147. Story on Bills, s. 207. Conrey v. Elbert, 2 An. 18. Succession of Nicolas, 2 An, 97.
    If there should remain any doubt as to the authority of Read, that doubt is removed by the conduct of plaintiffs, which amounts to a ratification. His acts having been notified to the corporation, no objection was made. It hasrecognized the selection of syndic, has controlled his administration and received the dividends. Having acquiesced in the acts done in its name for nearly six years, received the benefits of so much of the acts of the agent as was favorable, still retaining that agent in its employ, it is now too late to disapprove of the part deemed unfavorable. C. C. art. 2252. Story on Agency, s. 90, 93, 244, 250, 260. 1 Livermore on Agency, p. 44, 53. The Episcopal Charitable Society v. The Episcopal Church in JÍedham, 1 Pick. 372. Reid v. Poioell, 11 Rob. 98. Elans'/. Carruth, 2 An. 275.
    The cases reported in 10 Rob. pp. 43, 47 of The Union Bank v. Bagley, and Bagleyv. Tate, no doubt induced the plaintiff to commence the present suit; but the nature of the claims enforced in those suits were entirely different from the present. The claims that were opposed by Bagley belonged to the parent bank, they were not under the administration of Read in his capacity of cashier of the branch, and it was not shown on the trial that he had any authority to represent that bank. Had that authority been shown, it would not have varied the result; because those claims'were founded on special mortgages, executed by Terrell on property which he afterwards sold to Bagley, subject to the mortgages, and in violation of clauses in them. Read, when he appeared before the notary, discharged Terrell, but reserved the rights of the bank on the mortgaged properly; and the bank in those suits only sought to enforce those lights. It did not disavow the acts of Read, as their agent, but sought only to enforce the stipulations he had made in their favor.
   The judgment of the court (King, J. absent,) was pronounced by

Suidex,!., J.

The defendant, who is sued as the endorser of a note discounted and held by the branch of the Union Bank at Covington, contends that he has been released from all liability, by reason of the voluntary discharge of the maker. Terrell, the maker of the note, had made a cessio bonorum. At the meeting of his creditors the cashier of the bank appeared, and voted a discharge of the insolvent. It does not appeal' that any authority to do so had been given by the mother board, nor does any resolution appear on the minutes of the branch boai'd; but a witness, who was at that time a director of the branch, states that, to the best of his knowledge and recollection, the boai'd of directors of the Covington branch requested the cashier to attend the meeting, accept the surrender, and grant a discharge. We do not deem it necessaiy to say whether this-evidence was admissible, and if admissible, whether it proved that a resolution of the branch board was passed authorizing the cashier to give the vote. Assuming, then, that there was such a resolution, we shall limit ourselves to the enquiry, whether it, and the act of the cashier under it, were binding on the corporation.

It is obvious that the discharge was a mere donation. Terrell had made a cessio bonorum; and the bank had acquired a right to a dividend, whether a discharge was voted or not. The vote, therefore, was without consideration, and purely gratuitous. If binding, it was an abandonment of all future claim against the insolvent, in the event of his coming to better fortune, and by consequence, a discharge of the endorser. It gave up the property of the stockholders, without any value received.

When the directors proper of a corporation gratuitously destroy, or give up its property or rights, there can be no doubt they will be personally liable to stockholders for all consequent injury; but whether such an act could be invoked by a third person as binding upon the corporation, we do not think it is indispensable now to discuss. We will confine ourselves to the examination of the question directly presented here—the authority of the board of this branch so to affect the rights of the corporation; premising that the incapacity of the cashier, virtute officii, is clear. See The Union Bank v. Bagley, 10 Rob. 43.

The management of this corporation was placed by the charter in the hands of directors; but to the usual powers was superadded the unusual grant, that the deliberations of the board of directors shall have the same force and effect as the deliberations of the stockholders. But the language of the charter is very different when it comes to speak of the branch boards. After' providing for the establishment of eight offices of discount and deposit, at various points out of New Orleans, the seat of the corporation itself, it provides that there shall be annually appointed by the board of directors of the Union Bank to administer the affairs of said offices of discount and deposit, five or seven directors, three of whom shall constitute a quorum; and said directors shall choose from among themselves a president, and shall be subject to all such regulations and rules as may be adopted by the board of the mother bank for the government of said 'officers, not inconsistent with the provisions of this charter. By sec. 35, provision was made for the appointment by the mother board of cashiers of those officers of discount and deposit, who were to furnish such security as may be required by the mother board. By the 30th section it was enacted that the directors of said offices of discount and deposit shall appropriate two-thirds’ of the capital of such offices to loans on mortgage, and one-third to loans on promissory notes or bills of exchange, and they were authorized to loan or discount upon notes secured by mortgage. By the 39th section, the rate of interest upon loans by these offices was established ; and by the 40th section power was given to the mother bank to withdraw the country offices, in the event of their operations respectively not netting over a certain rate of interest.

No grant of power to the office at Covington, in the form of rules and regulations adopted by the board of the mother bank, having been shown, we must look to the charter alone for the powers of the Covington board; and, under the charter, we cannot consider them as vested with an unqualified control—the jus ulen~ di et abutendi, but as limited agents, clothed with such authority only as was expressly granted by the charter, or was necessarily incident to the accomplishment of the objects contemplated by the charter in using a certain portion of the capital of the bank for loans and discounts, and keeping an office of deposit as therein provided. The power of making a donation of the property of the stockholders, which, if we hold the discharge valid, has been virtually exercised in the gratuitous release of Terrell and of the defendants, was not, we think, within the legitimate sphere of their authority.

The defendant has not shown that he has been in any wise inj ured by the attempted discharge of Terrell; but if he had been reduced into inactivity against Terrell by the conduct of the board, the responsibility cannot be thrown upon the principal of the agents who thus usurped authority. The power of the Covington boai’d was the creature of a statute, and as such was known to the defendant; and a party can derive no benefit from the known usurpation of power by the agent on whose acts he relies.

The note appears to have been properly protested, and the objection made to the certificate of notice, was considered and overruled in the case of the Union Bank v. Jones, ante p. 220.

It is, therefore, decreed that, the judgment of the court below be reversed, and that plaintiffs recover from the defendant the sum of $540, with interest from the 26th day of April, 1842, until paid, at the rate of seven per cent per annum, and costs in both courts.

       Existís, C. J., though a stockholder of the Union Bank, sat on this case, at the request of the defendant.


text:
    Dwight v. Richard.
    A new trial will not be allowed on account of the absence of plaintiff’s'attomey, caused by the ignorance of the latter of the month in which the term of the court was to be held, where the commencement of the term was fixed by law, and the plaintiff was in the parish in which the court was held and aware of the day on which the term would commence, and might have appeared and asked a continuance, and, if unsuccessful, have employed other counsel.
    The fact that no return had been made on an ex parte order of survey, at the time of trial, is no ground for a new trial. It was a matter to be submitted to the discretion of the court on an application for a continuance.
    The fact of a case being set for trial and tried on the same day, in a district court in the country, will not entitle a, party to a new tidal. It is a matter to be submitted to the discretion of the court, on an application for a continuance.
    Where a judgment hearing interest has been enjoined, such additional interest only can be allowed, on dissolving the injunction, as will make the rate allowed equal to the highest conventional interest.
    The judgment rendered against a plaintiff on his non-appearance, should not be conclusive against him, but one of non-suit only.
    Sec. 3 of stat of 25 March, 1831, authorizing the allowance of interest and damages on the dissolution of an injunction, applies to injunctions of orders of seizure and sale in other cases than those enumerated in art. 739 of the Code of Practice, in which the party is not required to give bond.
    from the District Court of Assumption, Randall, J.
    Dwight, for the appellant.

      S. L. Johnson, for the defendant.
   The of the court (King, J. absent,) was pronounced by

Slidell, J.

Richard sold Dwight his interest in a tract of land, One of the instalments not being paid at maturity, Richard obtained an order of seizure and sale. Dwight then arrested the order by injunction, alleging outstanding titles and disturbance, etc. An order of survey was granted, in March, 1848, on DwighVs ex parte motion, and upon suggestion that a survey was necessary to .show the quantity of land covered by adverse claims. On the second day of the May term, 1848, the defendant’s counsel moved that the cause be set for trial for that day. This having been done, the cause was taken up on that day; and, the. plaintiff having been called and not appealing, a judgment was rendered in favor ■of the defendant in injunction, with two per cent interest in addition to. the interest which the amount enjoined bore, and twenty per cent damages. On the third day of the term the plaintiff applied for a new trial, supporting his application by the affidavits of himself and his attorney. The new trial was. refused; and the plaintiff has appealed.

The principal ground of the application is, the absence of the attorney. The plaintiff deposes that his attorney, who lived in another parish, had the sole charge of the case; that he wrote to him on the 9th and 14th May, urging his punctual attendance; but that his attorney did not receive the letters until the 16th. The attorney deposes that he had been under the impression that the term was to be held in June, but not feeling certain that it was not to be in May, he wrote, on the 2d May, for information, and received from his client, on the 16th, the two letters. That he immediately started, and, by traveling day and night, was enabled to reach the court on the third day of the term. »

Although there seems to be hardship in this case, we have concluded that we cannot relieve the plaintiff by reversing the judgment and remanding the cause for a new trial, without establishing a dangerous precedent. 'The rules which govern courts in the administration of justice are framed with reference to general results, and must be respected and enforced, although, in particular cases, they may operate harshly. We do not think we can relieve this party, because his case was taken up, and disposed of, ex parte, through the mistake of his attorney. The term of the court was established by statute; the attorney and his client.were bound to know the law, and cannot plead ignorance of it. Besides, the plaintiff was in the parish, was aware of the day on which the court would open, and was anticipating the necessity of readiness for trial. Finding that his attorney did not arrive, he could have appeared and asked a continuance, and, if unsuccessful, could have employed other counsel.

In Bunch v. Casterton, 7 Bingham, 224, the cause was undefended; and a .verdict having been found for the plaintiff, the defendant asked a new trial .upon the ground that his attorney had been compelled to go to Ireland, and that, 'in his absence, the case had, through the inattention and misconduct of his, clerk, been called as an undefended case, although there was good defence .on the merits. But the court said, if we were to make this rule absolute every case might be tried twice over, as defendants would lie by to speculate on .the amount of the first verdict. So in Moody v. Dick, 4 Neville & Manning, 348, there was a motion for a new trial, upon affidavits stating that .the defendant had be.en kept in ignorance of the state of the action by the attorney whom he then employed, that he had a good defence upon the merits, and that the verdict had gone against him by reason merely of the negligence of his late attorney. Rut the.couft said, that no sufficient ground for depriving .the plaintiff of his verdict-had been shown, supposing the affidavits to be perfectly correct. They suggested, however, upon the same supposition, that,the defendant might have a good cause of action against his late attorney. See also Allen v. Donnelly, 1 McCord, 113. Hatcher v. Reed, Hardin, 515. The case of Levistones, 3 An, 245, was one apparently of peculiar hardship; the party lost his appeal by the alleged fault of his .attorney, hut we were .constrained to refuse relief.

It is obvious that if courts were to abandon the rule, the administration of justice would be frequently frustrated under color of the negligence or omissions of attornies; and the inconvenience would be particularly felt in the country, where the terms are held at long intervals. We feel satisfied that the attorney in this case was not intentionally absent; but there are many cases in which the private mischief must yield to the general convenience.

One of the grounds for the new trial was that the survey was not returned. But this would only have been a ground to be submitted to the discretion of the court, on an application for a continuance. The same remark applies to the setting of the cause for trial, and trying it on one and tho same day.

Upon the authority of the case of Aillet v. Henry, 2 An. 146, we think the appellant is entitled to relief as to the allowance in the judgment of two per cent as extra interest, the debt bearing eight per cent.

As the judgment was rendered upon the non-appearance of the plaintiff it should’not have been conclusive against him, as it might, perhaps, be considered in its present form.

We are of opinion that the statute of 1831 applies to injunctions of orders of seizure and sale in cases other than those enumerated in the 739th article of the Code of Practice, in which the party is dispensed from giving bond.

Under the circumstances we think it a proper exercise of our discretion to reduce the damages, the merits having not yet been exhibited, and it not appearing that the injunction was wantonly obtained.

It is, therefore, decreed that the judgment be amended, by striking out the allowance of extra interest of two per cent, by reducing the damages to two per cent, and by reserving to the plaintiff the right of asserting hereafter by suit or defence the matters of complaint in his petition alleged; and that so amended the judgment be affirmed; the costs of this appeal to be paid by said Richard.


text:
    Guillotte v. Jennings.
    The remedy by a sale & la folie enchére is a severe one, and must be confined to cases coming clearly within the provisions of the law.
    Art. 2590 of the Civil Code contemplates that the terms of the sale a la folie enchére shall be the same as those of the first adjudication; and where an auction sale was made for a price payable partly in cash and the balance on credit, but, on a re-sale a, la folie enchére, the property was offered and sold for cash only, the difference between the price of the first and second sale will not be considered a just measure of the injury sustained in consequence of the first purchaser’s failure to comply with this contract; nor will it make any difference that the change was attributable to delays produced by the failure of the first purchaser, during which the note, which was to hare been assumed for the credit part of the price, matured.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Buisson, for the plaintiff.

      Bradford, for the defendant.
   The of the court (King, J. absent,) was pronounced by

Slidell, J.

The remedy through the medium of the folie enchére has been properly characterized as “summary and severe,” and from this consideration the conclusion is fairly derived that it ought to be confined to cases clearly coming within the provisions of the law, and in which its requisitions have been observed. See Second Municipality v. Hennen, 14 La. 586.

Article 2589 C. C. seems to us to contemplate that the terms of the folie enchére shall be the same as those of the first adjudication. In the present case they were not the same. At the sale to the defendant, made on the 23d May, 1843, the terms were that the purchaser should assume the payment of a note for $640 due in June, 1844, and the balance cash. At the folie enchére the terms were cash.

The plaintiff contends that the change was attributable to the default of the defendant; that he delayed the plaintiff until the note which was to have been assumed had matured. But this is is not an answer to the objection. The law gives three remedies against the defaulting purchaser, the action for specific performance, the ordinary action for damages, and the action based upon the folie enchére, which itself liquidates the damages, if properly conducted. If the seller choose the latter remedy, he must take it as it is given, or not at all. When both sales are made upon the same terms the difference is not an inequitable standard of the injury sustained by the defendant’s failure to fulfil the contract. But when the terms are changed, a new element is introduced to affect the result; for daily experience teaches us that, in consequence of the deficiency of capital, and the necessity of the buyer’s reliance in some degree upon the efforts of his future industry, sales of real estate are made more advantageously, in point of price, upon credit than for cash. Here the property was sold upon a partial credit, in May, 1843, for $1,375, and for cash in August, 1844, for $660. We cannot say that this discrepancy was not in some degree owing to the difference of terms; and the inflexible standard of the folie enchére, by which we are called upon to measure the defendant’s liability, is consequently, in the present case, unsafe and untrue. Had the remedy been pursued according to the requisitions of the law, judicial discretion would have been excluded by a conclusive legal presumption. As it was not, the legal standard has not been created, and there is no basis for the present suit.

Entertaining this opinion, we have deemed it unnecessary to consider the question of the effect of the lapse of time upon the plaintiff’s right to proceed by the folie enchére, and other points made by the defendant.

It is, therefore, decreed that the judgment of the District Court be reversed, and that there be judgment as in case of non-suit; the plaintiff paying costs in both courts.


author: Eustis, C. J.

text:
    Lagrave et al. v. Fowler.
    Where one, who had contracted to furnish marble for a building within a time fixed, finds it impossible, in consequence of the inundation of his quarries und marble works, to comply with his contract within the time specified, is permitted by the other party to furnish the materials afterwards, the latter mustpayfor them.
    Where one, who had been unable to comply with a contract to furnish materials at a certain time, and who is permitted to furnish them afterwards, claims m his petition the original contract price, but, in a supplemental petition, demands a larger sum on a quantum meruit, the amount claimed in the petition will be considered as fixing the price for which the contract was to be performed after the period originally fixed for its performance.
    from the Fourth District Court of New Orleans, J.

      Rozier, Benjamin and Micou, for the plaintiffs.

      Grymes, for the appellant.
   The judgment of the court {King, J. absent,) was pronounced by

Eustis, C. J.

The plaintiffs brought suit againt the defendant, for the sum of $4, 261 61. Of this amount $3,500 was claimed under a contract made between the parties in New Orleans, on the 5th of June, 1844, by which the plaintiffs bound themselves to furnish and put up the granite and marble work required for three new buildings, to be erected at the corner of Magazine and Natchez streets, in the city of New Orleans, for the said sum of $3,500, according to the conditions stipulated particularly in said contract; the balance was for extra work done at the instance of the defendant. The answer alleges that the work was badly done, that unfit and improper materials were used, and that the contract has not been complied with on the part of the plaintiffs, either as to the material, workmanship, or the time stipulated for its execution. It also claims the sum of $600 per month, for the delay on the part of the plaintiffs in performing the contact, from the 15th September, 1844, until the buildings were completed, and a large amount as special damages.

The suit was instituted in 1845, and in April, 1846, a juiy found a verdict for the plaintiffs for the sum of $3,741, and against the defendant on his reconventional demand. On an appeal taken by the defendant this court directed a new trial to be had, being of opinion that, under the pleadings and evidence, the verdict could not be sustained; and the case was remanded accordingly.

On the return of the cause to the District Court the plaintiffs filed a supplemental petitition, in which they allege that the work done and materials furnished were so done and furnished at the special instance and request of the defendant, and were worth the sum of $10,000, and that the front of the building was completed between the months of September, 1844, and May, 1845, under the superintendence of the architect of the defendant, employed by him for that purpose. Some new evidence was offered on the trial, and a jury again found a verdict against the defendant on his plea in reconvention, and gave the plaintiffs the sum of $3,500, with interest from judicial demand. From the judgment rendered in accordance with this verdict, the defendant has appealed.

The buildings were not in a condition to be delivered until late in June, 1845, and it is not insisted that the work to be done by the plaintiffs in making the fronts, was completed before the month of May of that year. We think the plaintiffs were prevented from complying with their contact at the time speeified, to wit, the 15th September, 1844, by the inundation of their quarry and marble works by the'floods of the Mississippi and Missouri rivers, in that year'. The condition of time became thus impossible, and the defendant, by permitting tire plaintiffs to-furnish their labor and materials afterwards, bound himself to pay for them.

It appears that the plaintiffs had, in their petition, asked no more from the defendant than the original contact price for their work, and the juiy have held them to that amount, notwithstanding them claim, as urged in them supplemental petition, on a quantum meruit. The juiy were authorized to act on the allegations'of the petition as fixing the price upon which the contact was to be performed, after the time fixed for its performance, viz. I5th September, 1844 ; and we do not feel authorized to allow the plaintiffs any thing more, though the amount allowed the plaintiffs by the verdict we consider as far short of doing them jnstice-

Judgmcnt affirmed.


text:
    Ellis et al. v. Lauve et al.
    In an action on a note signed by A., by which be promises to pay a certain sum, he appearing on the face of the note to be the only party liable for its amount, instituted against A. and another alleged to be part owner of a steamer for the price of which the note was given, A. cannot be sworn as a witness, at the instance of plaintiff, to establish the liability of his co-defendant as a partner with him. He is incompetent on account of interest.
    from the Fourth District Court of New Orleans, Strawbridge J.

      T'. A. Clarice, Benjamin and Micou, for the plaintiffs.

      Sigur and Bonford, for the appellants.
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

This suit is brought upon two notes of similar tenor. One of them is in these words :

$1,202 45. “ Cincinnati, July 1,1845.

“ Nine months after date we promise to pay to the order of S. W. Hartshorn, twelve hundred and two 45-100lhs, value received, payable at the office of Omer Lame, Esq., N. Orleans. Dimitry & Plaisent.”

The petition alleges that Dimitry and Plaisent, were the agents of the defendants, and had been employed by them to have the steamer built, D. and P. being also part owners; that, at the request of the agents, Hartshorn built the hull of the boat, and received the notes for that consideration, but not in novation of the claim for building; that the plaintiffs, as holders of the notes, are subrogated to the rights of Hartshorn.

At the Rial of the cause, the plaintiffs offered Dimitry and Plaisent as witnesses. The defendant objected to them as incompetent, by reason of interest; but the court admitted them, and the defendants took a bill of exceptions. This testimony is indispensable to the maintenance of the judgment of the court below, which was in favor of the plaintiffs. Without this testimony, there is no sufficient evidence to connect the notes with the building of the hull by Hartshorn, nor to show the value of the work alleged to have been done by him. It is necessary, therefore, to decide the question of competency.

Before doing so, it is proper to notice the other evidence in the cause, which preceded the introduction of those witnesses, and which, the plaintiffs contend, prepared the way for then- admissibility.

The plaintiffs had offered articles of partnership, executed by the defendants, by which it was agreed that a steamer should be built, to ply on the Mississippi as a packet. Lauve was to be the steamer’s agent, at New Orleans; Dimitry her captain; and Plaisent, the clerk. No partnership name was designated in the articles. It was also proved that Dimitry and Plaisent had gone to Cincinnati to. have the vessel built; and, with authority from Lauve, to draw bills upon him for the cost. A letter to the like effect had been addressed by three of the stockholders to a party at Cincinnati, who states that he does not know that he showed it to Hartshorn, but that he informed Hartshorn that, the parties in Louisiana who wrote it were in high credit. That Hartshorn built the hull at the request of Dimitry and Plaisent, and that he must have known that they were not the sole owners, is also proved.

It is obvious that, on the face of the notes, Dimitry and Plaisent, are the only parties liable, or proposed to be bound. The case in this respect differs from that of Knight against the same defendants, 3 An. p. 64. There the note purported to be the promise of the “ Steamer Belle Creole and owners.”

This case is, therefore, one in which the plaintiffs call witnesses, who are prima facie alone liable to them for die debt, for the purpose of throwing that liability upon others, as partners with them. An interest thus exists in the plaintiffs’ success, which compels us to consider them incompetent. Cases there may be which, upon principle, might seem to countenance the opposite view; but after much examination we have not found a single case where, under the circumstances presented here, the witness was admitted. It is not necessary to go into a full statement of die decisions. They may be seen on reference to Collins v. Ellis, 21 Wendell, 401. See also the.case of McIlvain v. Franklin, 2 An. 662. Cutter v. Rathbun, 3 Hill, 679.

It was suggested in argument on the part of the plaintiffs, that the names signed to the notes, Dimitry Sf Plaisent, might be considered the partnership name and style of the defendants. This proposition is not substantiated by the evidence. We have already observed tíiat no name was adopted iu the partnership articles ; and it is not shown that the name in question was so assumed, recognized, and publicly used, as to become the legitimate name and style of the firm.

It is therefore, decreed that, the judgment of the court below be reversed, and that this cause be remanded for further proceedings according to law; the plaintiffs paying the costs of this appeal.


author: SniDEim, J.

text:
    Niblett v. Scott.
    After a case has been submitted on the merits, it is too late for the appellee to contest the correctness of the certificate of the clerk that the transcript contains all the evidence offered on the trial. The objection cannot be considered after the implied acquiescence of the appellee in the correctness of the certificate.
    A judgment rendered by a Circuit Court of the United States in another State, cannot be treated as a foreign judgment. It is entitled to the same respect, and must have the same effect, as though rendered by a state court of that State, of competent jurisdiction.
    Where a defendant, who has been personally cited in an action, fails to appear, personally or by counsel, and neglects to set up grounds of defence then existing, it is 1ns own laches, and he cannot be relieved from its effects.
    from the District Court of Madison, Selby, J.

      Stockton and Steele, for the plaintiff.

      Thomas and for the
   The judgment of the court (King, J. absent,) was pronounced by

SniDEim, J.

The plaintiff sues upon a judgment rendered in his favor against Scott, in the Circuit Court of die United States for the Southern District of Mississippi, and avers that, by the laws of the State of Mississippi in force at the rendition of said judgment, he is entitled to interest on its amount, at the rate of eight per cent per annum from the day of its renditioq. Pie had judgment in his favor accordingly in the court below.

The clerk’s certificate states that the transcript contains all the evidence ' adduced at the trial. The judgment of the Circuit Court of the United States is silent as to interest after its rendition, and the transcript exhibits no evidence to prove the law of Mississippi to be as alleged in the petition. As our own law would not give such interest, we must necessarily reverse the judgment of the District Court.

In a supplemental brief presented by the plaintiff’s counsel, after the cause had been submitted upon the merits, the clerk’s certificate that the transcript contains all the evidence is impeached; and it is argued that the certificate should be disregarded, because it does not appear that the clerk had been required to. note the testimony at the trial. The objection cannot be considered after the implied acquiescence of the plaintiff in the correctness of the certificate.

To facilitate the future trial, we will express our opinion as to the effect of the judgment upon which the suit is brought, and which is attacked by the defendant in his answer. Among other matters, he pleads that he never employed counsel for the purpose of defending the suit in the United States Court; that the note upon which said judgment was obtained .was given in consideration of a loan of .bank notes of various banking corporations of the State of Mississippi, which notes were not worth at the time of the loan over seventy five cents on the dollar; that so the consideration of the notes was usurious, and, by the laws of Mississippi, all usurious contracts are prohibited from bearing interest; that the respondent, never having employed counsel to defend the suit, is not estopped from pleading any and all defences against this action that he could plead were this suit instituted upon the original note. This plea was accompanied by an affidavit that he had not employed the attorney. It appears from the examplification of the record of the United States Court that, the suit was upon the defendant’s note, bearing six per cent interest from its date; that the defendant was duly summoned in that suit, in April, 1840, by a summons commanding him to appear in May, 1840; and that, a plea of the general issue- having been filed by persons purporting to be his attornies, the cause was tided, in November, 1841.

A judgment rendered by a Circuit Court of the United States, is not to be treated as a foreign judgment. Barney v, Patterson, 6 H. & J. 182. It is entitled to as high respect here, as though it had been rendered in a state court in Mississippi, of competent jurisdiction. We consider ourselves bound to give this judgment the same effect that it would have before a Circuit Court of the United States, or, before a state court in' that State. In this case, the defendant was personally summoned, and brought under the jurisdiction of the court, and if he did not appear and set up the grounds of defence which he now alleges, it was his own laches. A court of chanceiy would not relieve him after verdict and judgment at law, where it was in his power to defend himself at law, and he neglected to do so.

It is therefore decreed that the judgment of the court below be reversed, and that this cause be remanded for a new trial, the plaintiff paying the costs of this appeal.


text:
    Rogillio et al., Administrators v. Swift et al.
    Where, before the reorganization of the judiciary under the constitution of 1845, a defendant died pending an action in a District Court, the case was required to be sent to the 3?rob ate Court in which his succession was opened. A judgment subsequently rendered by the District Court, against the executor, who had become a party to the action, would be without effect, that court ceasing to have jurisdiction; and no action could be maintained against the heirs on a judgment so obtained.
    from the District Court of West Feliciana, Lawson, J.

      Muse, Merrick and Brewer, for the plaintiffs,
    contended that, the executor had a right to make himself a party to the action in the District Court. He could even have acknowledged the debt. C. P. 120, 161. Henry v. Key, 12 La. 214. Morgan v. Morgan, 2 Wheaton, 290.

      Ratliff and Cow gill, for the defendants, appellants.
    The District Court was without jurisdiction from the moment of Swift’s death, his succession being administered by his executor in West Feliciana. See Code of Practice, arts. 606, 923,983,984,986. C. C. art. 1105. Succession of Ludewig, 3 Rob. 92. Picou v. Hussuau, 4 Rob. 412. Acts of 1828, p. 156. Fleming v. Hilligs'berg, 1 Rob. 77. Succession of Jacobs, 5 Rob. 270. Kerr v. Kerr, 14 La. 177. McManus v. West, 18 La. 41.
    ' The executor could not, by appearing and answering in the District Court of East Baton Rouge, give that court jurisdiction, as he was acting under the authority of the court of Probates of West Feliciana. No. consent of parties can give jurisdiction to a court that has no jurisdiction ratione materice. See cases cited above, 11 Rob. 77. C. P. 93, 933. 14 La. 177.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This appeal is taken by certain heirs of John Swift, deceased, who died in the parish of West Feliciana, where his succession was opened and administered by an executor.

The action is brought on a judgment rendered in 1839, in the District Court sitting in the parish of East Baton Rouge, to which the executor became a party-defendant. Under the decisions of the late Supreme Court, we think the District Court was without jurisdiction. In addition to the cases cited by the counsel for the defendants, see Smith v. Willson, 2 La. 256. Bullard v. Andrews, 10 La. 219.

The suit in which the judgment was obtained had been instituted against Swift in his life time. The Supreme Court held in the case of Greigh v. Muggah, 11 La. 357, that where a party defendant died, pending a suit in a District Court, the suit should be sent to the court of Probates where the succession was opened.

Under those decisions the plaintiffs cannot maintain their action against the heirs on this judgment.

The judgment of the District Court is reversed, and judgment rendered against the plaintiffs as in case of non-suit, with costs in both courts.


text:
    Hughey et al. v. Barrow.
    A party cannot controvert the title of one under whom he claims.
    Where a husband purchased, during the existence of the matrimonial community, a settlement right on the public lands of the United States, and after its dissolution the government made to him individually a donation of land on account of the settlement of the party from whom he purchased, the land, under the Spanish law then in force in this State, did not inure to the benefit of the community, but belonged exclusively to the individual to whom it was given. Novis. Recop. b. tit. 4,1. 1. The rale that things given by the sovereign formed no part of the community, but belonged exclusively to the party to whom they were given, applied to all cases except where the donation was in remuneration for military services rendered to the sovereign by a husband, who had served without pay and been supported by tlie community. Fuero Real, b. 3. tit. 3,1.3. But tlio right of the wife as to auy improvements made on the property is distinct from her right to the property itself: the augmentation of value by the common labor alone makes a part of the acquests and gains. The facts that the improvements were not made by the spouses, but were purchased by them, does not affect the principle.
    Purchasers of land from a party in whose favor a judgment had been rendered based on the admission of his title by the defendant, are not bound to enquire into the truth of the admission. It is sufficient for them, in a contest with the heirs of the party by whom the admission was made, that the admission is on the records of the court, and that a judgment had been rendered on it.
    Under the stat. of the Legislative Council of 10 April, 1805, regulating the practice of the*. late Supreme Court of the Territory, in all cases of liquidated accounts or demands, wheat no answer had "been filed, the allegations in the petition were to be taken \pro confessisy and the judgment rendered in consequence of \the default of the defendant became fin&U aftcr three days, in consequence of Iris negligence, without any agency of the court.
    ¿Sec. 12 of art. 4 of the constitution of 1812, and sec. 70 of the constitution of 1845, which require the judges of all courts, as often as it^may be possible to do so, in every definitive* judgment, to refer to the particular law in virtue of which suoli judgment may have been, rendered, and in all cases to adduce the reasons on which their judgment is founded, does-not apply to an order making final a judgment by default.
    A certificate of the auditor of public accounts that, “ upon examining the tax-roll for the parish of T. for the year-, there appeared to be assessed thereon, in the name and as the property of A. H., five hundred acres of land,” is inadmissible in evidence; though proof had been previously made that the original tax-roll, which was required by law to be deposited in the office of the parish judge, could not be found there. The certificate disclosing the existence of a copy of the tax-roll ip the possession of the auditor, an extract-from that copy, properly certified, is alone admissible.
    The certificate of a mere matter of fact by a public officer is inadmissible. If he was bound! to record the fact, a copy of the record, duly authenticated, is the proper evidence. • As to matters which he was not bound to record, his certificate is merely the statement of a private person, and therefore inadmissible.
    In sales for taxes the assessment stands in lieu of the judgment in ordinary judicial sales, and the party relying on a sale of that description is bound to show its existence and legality. Want of proof of a proper assessment and of a sufficient description of the land, where no actual possession has followed, are not defects that can be cured by the prescription of five years, under the stat. of 10 March, 1834, s. 4.
    The purchase without warranty, by third person, of the right, title and interest of a party in a tract of land bought by him at a public sale for taxes, but of which he never had possession, cannot form the basis of prescription. The second purchaser was apprized of the nature of his title, and that it was defective.
    from the District Court of West Feliciana, Penn, J.

      Ratliff antt B. A. Crawford, for the appellants.

      Huason, Petterson and Brewer, for the defendant.
   The judgment of the court (King, J. absent,) was pronounced

by

Rost, J.

This is a petitory action. The plaintiffs, as legitimase decendants and forced heirs of Andrew and Mary Hughey, deceased, «jlái-m six hundred and forly acres of land in possession of the defendant, and allegedito have formed part of the community which existed between the said Andrewmná Mary. The defendant, and tire warrantors made parties to the suit, do not-seriously contest the heirship of the plaintiffs, but they deny the title alleged, and. aver that, if it ever existed, it was not in the community, but in Andrew Hughey-alone, who has since been legally divested of it in the following manner: 1st. By;a judgment in favor of John W. Hall against him, for two hundred and forty arpents thereof. 2d. By a sheriff’s sale, of three hundred and sixty acres of the land, made on the 2d day of June, 1824, under a twelve months’ bond, given by him in satisfaction of a judgment obtained against him by W. Wood, on the 9th of October, 1821. 3d. Bya.tax-snle made onthc 3d June, 1824, by the tax-collector,■■df live hundred acres of land in the parish of Feliciana,-fronting on the Mississippi, and belonging to Hughey. The defendant claims title under these partial alienations. He further avers that no proceedings were ever had in the successions of Andrew and Mary Hughey ; that Andrew died in 1824 or 1825, and Mary in 1819, and that, since their death, their successions have been hemreditates yacentes. Ho pleads the prescription of five years against informalities in judicial sales, under the act of 1834; the prescription of ten years against vacant successions; and the prescriptions of ten and twenty years under just titles, and open, peaceable, and uninterrupted possession. There was judgment in his favor in the first instance, and the plaintiffs appealed.

I. The first question which we will consider is, whether the plaintiffs have made out a title in the community or in Andrew Hughey. They have shown a probate sale of the succession of Joshua Barker, dated the 9th of March, 1816, and pending the marriage, showing the adjudication to Hughey of three hundred acres of the land in controversy, more or less, this being at the time a mere settlement right., The defendant objected to the introduction of this evidence on various grounds, which were overruled by the court, and we think properly overruled. The defendant, claiming under Hughey, cannot controvert his title. Crane et al. v Marshall, 1 Mart. N. S. 578. Verret’s Heirs v. Candolle, 4 Mart. N. S. 402. Bedford v. Urquhart et al. 8 La. 237.

This purchase was made during the existence of the marriage, and, after its dissolution, to wit, on the 8th May, 1822, the United States made to Hughey individually a donation of six hundred and forty acres of land, upon the original settlement of Joshua Barker. The plaintiffs contend that, the rights of Barker having been acquired by the community, the subsequent donation to Hughey must enure to its benefit. The donation was made at a time when the laws of Spain were still in force in Louisiana. Those laws provide that: Toda cosa que el marido y muger ganaren 6 compraren, estando de consuno, háyanlo ambos por medio; y si fuere donadío de Rey 6 de otri, y lo diese á ambos, háyanlo marido y muger; y si lo diere al uno, hádalo solo aquel á quien lo diere.” Nov. Recop. lib. 10, tit. 4, law 1. This law expressly ordains that things given by the sovereign shall not be common to the luisband and wife, but shall belong exclusively to the individual to whom the king gives them.

This question first came before the Supreme Court in the case of Gayoso v. Garcia, 1 Mart. N. S. 334, and was decided against the community. This deci. sion was maintained in the cases of Rouquier v. Rouquier, 5 Martin N. S. 98, and Frique v. Hopkins et al. 4 Ib. N. S. 212. In the last case, the court went into an elaborate examination of the laws of Spain on this subject, and we have no doubt of the correctness of the opinion to which they came; and the rule applies to all cases coming within its letter, except those where the king gave in remuneration of military services rendered to him by the husband, when he served without pay and was supported at the expense oí the community. Fuero Real b. 3, tit. 3, law 3. Febrero, p. 1, c. 1, par. 22, no 239. In the same case the court held, on the authority of Febrero, that the right of the wife in ameliorations made on the property, is quite distinct from her right to the property, and that the augmentation of value, given by the common labor, alone made a part of the acquests and gains. The distinction attempted to be drawn, that the improvements in this case were not made by the husband and wife but were purchased by them, does not appear to us to affect the principle. The land was given without any price paid for it, and not in renumeration of any services rendered, and-the consideration which may have induced the donation, or the fact that the cost of the improvement right was paid by the community, cannot change the character and legal effect of the grant. We have no hesitation jn saying that, the land did not enter into the community.

II. The plaintiffs contend that-the judgment in favor of Hall cannot prejudice them : 1st. Because the indentity of the land is not shown. 2d. Because the title of Hall is alleged to be derived from Larclois and Andrew Robertson, and, as no title or confirmation is shown in these parties, the confession of Hughey that they had a title is not binding upon them. The land claimed by Hall is described in the petition as having six arpents front on the Mississippi river opposite the mouth of Red river, and then in possession of the defendant, by his tenant. The defendant compromised this suit, and, in execution of the compromise, made the judicial admission of the existence of the plaintiff’s title upon which the judgment is based. We are of opinion that the evidence of the identity of the land is, prima facie, sufficient, and that the plaintiffs are estopped by the judicial admission of Hughey that the title was in John W. Hall. Purchasers under Hall were not bound to enquire into the truth of that admission. It was enough for them that it stood on the records of the court, and that a judgment had been rendered upon it. 1 Greenleaf, Evid. no. 27. 2 Annual, 446. 8 La. 422.

III. It is next urged that the sheriff’s sale in the suit of Wood v. Hughey conveys none of the land in controversy, and that there is no legal evidence in the record establishing the boundaries, or the-identify, of the land conveyed; that the judgment upon its face is unconstitutional, and can have no binding effect upon any one; and that the forms of law were not complied with, in the execution of said judgment. The land in the sheriff’s deed' is described as fronting on the Mississippi river, bounded east by lands of MeMasters and west by lands of Andrew Hughey, and containing three hundred and sixty acres. The testimony of Purvis shows that MeMasters lived half, or three-quarters, of a mile above the ferry-house opposite the mouth of Red river. This testimony, it is true, does not fix with precision the line of MeMasters, but it shows that the land sold was the eastern portion of the tract, and the line may easily be ascertained by reference to the survey and.location made by the United States.

The judgment in that case is in these words: “ A judgment by default having been rendered in this case, it is, therefore, ordered that judgment be rendered for the plaintiff for $596 40^, with eight per cent interest from 31st January, 1821, till paid, and costs of suit.” It is urged that the plaintiff did not prove his demand; that the judgment does not show that three judicial days elapsed after the default, and does not contain the reasons upon which it is founded, as required by the constitution of 1812.

Under the act of the Legislative Council passed, in 1805, regulating the practice of the late Superior Court, and still- in force when Wood instituted'his suit, in all cases of liquidated accounts or demands, when -no answer was filed, the allegations in the petition were to be taken pro confessis, and the judgment, rendered in consequence of the default of the defendant, became final after three days, in consequence of his negligence and sufferance, without any agency of the court. It has been repeatedly held that reasons need not be assigned in a judgment, which becomes final by lapse of time and operation of law on a judgment by default. Allard v. Ganucheau, 4 Mart. 662. Babin et al. v. Winchester, 7 La. 460. The informalities alleged after the judgment need not be noticed in detail, as it is evident that they are all covered by the prescription of ve years, under the act of. 1834.

The sale by the tax collector conveys a certain iracfr or parcel of lanc5r assessed in the name of Andrew Hughey, lying in the parish of West Feliciana, containing five hundred acres, sold to pay the state and parish tax due on it by Hughey for the year 1822, amounting to $12 75, and the costs and charges amounting to $5. In support of this sale, the defendant offered in evidence a certificate of the-auditor of public accounts, which is in these words : “This is to certify that, upon examining the tax roll for the parish of Feliciana for the year 1822, there appears to be assessed thereon in the name, and as the property of Andrew Hughey, five hundred acres of land, represented as being on the Mississippi river.” The plaintiff objected to the introduction of this certificate in evidence, on the ground that it is not an original, nor the certified copy of an original, but a mere certificate of the auditor, who is not shown to be the keeper of the tax rolls; and further that it contains no description of the land pretended to be assessed.

We are of opinion that this exception should have been sustained. It is ti-ue the defendant proved that the original tax-roll, which the law requires to be de-, posited in the office of the parish judge, is not found there; but the certificate adduced disclbses the existence of a copy of it in the possession of the auditor, and an extr&cfifrom this copy properly certified, was the only admissible evidence. The law never allows the certificate of a mere matter of fact, given by a public Officer, to be admitted as evidence. If he was bound to record the fact, the proper evidence is a copy of the record duly authenticated; and as to matters which he was not bound to record, his certificate is merely the Statement of a private •persoii,-and, .therefore, inadmissible. 1 Greenleaf, Evid. nos. 498, 509.

If this’certificate had been properly in evidence, the description of five hundred fields of land on the Mississippi river, unsupported as it is by proof of possession,under thé sheriff’s Sale, or by any other evidence going to show its identity With the- land claimed, is too indefinite to pass the title. The want of proof of & proper assessment' and of á sufficient description of the land, where no actual possession hás followed, are not defects that can be cured by the prescription óf'fiye.years-, tinder the act Of 1834. In sales for taxes the assessment stands in lieu of the judgment in ordinary judicial sales, and the party relying upon a sale of that description is bound to show its existence and legality. Nancarrouw v. Weathersby, 6 Mart. N. S. 348. 7 La. 50. 10 La. 283.

It is unnecessary to determine whether this sale would be sufficient to support thé plé'a of prescription, as no possession has been shown under it.

On the 16th June, 1824', seven days after the' date of this sale, Bouis, the-purchaser, sold to Sterling, without warranty, Ms right, title and interest in and- to a certain tract of land exposed to public sale for taxes, and purchased by him. It does not appear that Sterling ever took actual possession, and, in 1834, he sold, also Without warranty, to Hartnanson, making an express reference to the act of sale from Bouis to him. This last sale, which embraces several titles, does not, ótt the face of it, purport to be a sale of land; but merely of claims to land, and the purchaser binds himself to incur all the- expenses attending the prosecution of those claims-. Under the deeds from? Bouis to Sterling, and from Starling to Hatfmahson, the purchaser was apprized of' the nature of his title and that it' Was defective. Titles of this kind cannot form the basis of prescription. 4 MaK. N. S. 213, 222. 5 La. 240, 247. 3 "Rob. 220. 4 Martin, 436. 10 Rob-. 80.

This action Whs Cbmmenced in 1842', and the defendant cannot have prescribed wnder Conveyances subsequent in date? to those already noticed.

We are of opinion that, after deducting from the six hundred and forty acres granted to Andrew Hughey by the United States, the 240 arpents recovered by John W. Hall, and the three hundred and sixty acres sold at the suit of William Wood v. Andrew Hughey, the plaintiffs are entitled to recover the remainder; and that, in order to ascertain the boundaries between them and the defendant, and all matters relating to the rents and improvements and the liability of the warrantors, the case must be remanded.

It is, therefore, ordered that, the judgment in this case be reversed. It is further ordered that, the defendant be forever quieted in his possession and title, against all claims and pretensions of the plaintiffs, to the two hundred and forty arpents of land recovered by John W. Hall from Andrew Hughey, being six arpents front by forty deep, opposite the mouth of Red river, and including the house built by Joshua Barker; and also to the three hundred and sixty acres of land sold at the suit of William Wood v. Andrew Hughey, to be taken adjoining to the eastern line of the tract of six hundred and forty arpents confirmed by the United States to Andrew Hughey, under certificate no. 252, in pursuance of the act of Congress passed on the 8th May, 1822, entitled, an act supplementary to the several acts for adjusting claims to land and establishing land offices in the districts east of the island of New Orleans. It is further ordered that, the plaintiffs recover from the defendant the remainder of the aforesaid six hundred and forty acres, and that the case be remanded for the purpose of ascertaining the boundaries between them and the defendant, and all matters relating to rents and improvements, and to the liability of the warrantors. It is i that the costs in both courts thus far incurred be paid by the dg


text:
    Succession of Johnson.
    Minors will not be bound by a promissory note signed by tbeir tutor in liis < the absence of proof of judicial authority to malte the note, or that its consideration to their benefit.
    from the District Court of West Feliciana, Lawson, J.

      Ratliff and Cowgill, for the tutor, and J. H. Collins, for the under tutor, appellants.

      Patterson and Brewer, for the opponents, Dorsey Sf Co.

   The judgment of the court (King J. absent,) was pronounced by

Slidell, J.

J. Dorsey Sf Co. sought to charge the estate of the minors Johnson, upon a promissory note sighed 'by Doherty, their tutor, in his official capacity.

In the absence of proof of a judicial authorization to make the note, or that the consideration of the note inured to the benefit of the minors, we think the claim should have been rejected. That those creditors formerly considered Doherty personally their debtor, is shown by the fact that they sued him personally upon the notes, and obtained a personal judgment against him.

It is, therefore, decreed that, the judgment upon the opposition of said J. Dorsey Sf Co. be reversed, and that upon said opposition there be judgment in favor of said minors; the costs of said opposition in both courts be to. be paid by said opponents.