text:
    Hepburn et al. v. Ratliff et al.
    Where, in an action by the holder of a promissory noto endorsed in blank, plaintiff alleges that, by a second endorsement in blank, made by certain persons as commissioners of a bank, the note was transferred to him, the allegation is unnecessary; and, in the absence of any pretence of an equitable defence against the bank, or of plaintiff’s having come unfairly by the note, he will not be required to prove the authority of the commissioners.
    Notice of protest addressed to the endorser of a note at the post office at which he was in tho habit of receiving his letters and papers, mentioning the State in which it is situated, is sufficient, though the name of the parish be not mentioned.
    APPEAL from the District Court of West Feliciana, Boyle, J.

      Bowman and Bonford, for the appellants.
    Possession of a promissory note endorsed in blank by the payee, is prima facie evidence of title. The note is payable to bearer, and no subsequent endorser can restrain its negotiability. It was unnecessary for the plaintiffs to prove the transfer from the bank commissioners, though, ex abundanti cautela, this was done. See Kent’s Commentaries, 3d vol. pp. 89, 90 and 114. Story on Promissory Notes, § 343. Burnes v. Haynes, 13 La. p. 12. Fitzwilliams v. Willcox, 2 Robinson, p. 303. As to the want of notice, the notary’s certificate shows that the notice to Barrow was directed to St. Francisville, La.; and the assistant postmaster at that place testifies that, at the time the notice was sent, Barrow was in the habit of receiving his letters at that office. It was urged successfully in the court below, by Barrow, that the notice was not directed to the parish of his domicil, but simply to St. Francisville, La. This technical objection, which rests on no reasonable interpretation of the law of notice, was answered by the court in the case of Nott's Executors v. Beard, 16 La. 308.

      Ratliff and Cowgill, for the defendant, Barrow.

    The notice should have been addressed to the endorser Barrow, at his domicil or usual place of residence. Stat. 13 March, 1827, § 2. It was addressed to Mm at St. Francis-ville, and his residence is proved to have been twelve miles from that place. There was, moreover, no proof of the authority of the commissioners of the bank, by whom the note is alleged to have been endorsed to plaintiffs.
   The judgment of the court was pronounced by

Slidell, J.

This suit was brought upon a promissory note, drawn at St. Francisville, by Ratliff, to the order of, and endorsed by, Barrow. Barrow's endorsement is in blank ; the note also has the endorsement in blank of Harrod A* Willard, styling themselves commissioners. The plaintiffs in declaring on the note, aver, that Barrow endorsed it to the Atchafalaya Bank, who transferred it to the plaintiffs.

At the trial, the endorsement of Barrow being proved, the plaintiffs proved the handwriting of Willard A- Harrod, but it was not proved that they were duly authorized commissioners of the Atchafalaya Bank; and it is now contended, that having alleged the ownership of, and transfer by, the Atchafalaya Bank, the plaintiffs were bound to prove it, and that, not having done so, judgment was properly rendered for the defendant, Barrow.

As the indorsement of Barrow was in blank, the averment of title derived from the Atchafalaya Bank was an unnecessary averment; and in a court proceeding according to the rules of practice at common law, the plaintiffs might have had leave to amend their declaration, and then have struck out the blank endorsements of Harrod • Willard. It is not pretended that there was any equitable defence that could have been set up against the bank, nor that the plaintiffs have come unfairly into possession of the note, and the question is whether, upon a bare technicality of this sort, we will put the plaintiffs to the expence of remanding this cause for the purpose of the formality of amending their petition, and striking out the endorsements of Harrocl 8f Willard. We do not think the ends of justice require that we should thus turn the plaintiffs back. See the case of Emerson v. Cutts, 12 Mass. 79. Disregarding this objection, we proceed to the remaining point in this cause, which is, whether Barrow had due notice of protest.

The note was protested in New Orleans, where it was made payable, and on the day of protest the notary put the notice for Bartolo in the post office at New Orleans, addressed to him at St. Francisville, La. It is proved that Bar-vow resided about twelve miles from the St. Francisville post office, that he had a box in that office, and was in the habit of receiving his letters and papers at that office. It is also fairly inferrible from the record and evidence, that Barrow resided in the parish of West Feliciana. The proof of notice is ample. See Bank of the United Stales v. Carneal, 2 Peters, 543. Story on Promissory Notes, § 343.

It is therefore decreed that the judgment appealed from be reversed, and the plaintiffs recover of the defendant, William K. Barrow, the sum of $500, with interest from the 23d day of January, 1843, and costs in both courts.


source: Caselaw Access Project

author: Kins, J.

license: Public Domain

text:
    McCalop v. Newcomb et al.
    Acknowledgment; of the debt by the maker of a note, does not.interrupt prescription as to the endorser. The maker and endorser are not debtors in solido.

    Appeal from the District Court of East Baton Rouge, Burk, J.

      Brunot, for the appellant,
    contended that the maker and endorser of anote are bound in solido, citing Duranton, vol, 6, nos. 207, 213, 241, 242, 243, 187, 188, 189, 190. Civil Code, arts. 2086 to 2089, 2103, 2102. Code of 1808, p. 282. Toullier, vol. 6, p. 751. Poth. on Obi. (Evans’ E d.) vol. 1, pp. 172, 174,180. 4 La. p. 151. 9 Rob. 26. Code Napoléon, arts, 1200, 1201. Pandectas Frangaises, vol. 5, pp. 104,105. The acknowledgement of the obligation by one of the parties in solido, interrupted prescription as to his codebtors. Civil Code, arts. 2486, 3517. 7 La. p. 181. 6 Rob. p. 256. 6 Duranton, p. 303.
   The judgment of the court was pronounced by

Kins, J.

The defendants, Newcomb and Carl, are sued as the maker and endorser of a promissory note. Carl, the endorser, pleaded the prescription of five years. His defence prevailed in the court below, and the plaintiff has appealed.

The note sued on matured, and was protested, on the 5th of January, 1841. The defendant, Carl, was cited in this action on the 21st of Febuary, 1846, more than five years after the maturity of the note. Newcomb, the maker, acknowledged his liability on the note repeatedly, before the expiration of the five years, and the plaintiff contends that this recognition of the debt interrupted prescription as to tli6 endorser, the parties to the note being debtors in solido, from the date of the protest. The question now presented, was elaborately examined in the case of Jacobs v. Williams, in which it was held, and we think correctly, that prescription was not interrupted as to the endorser by the ac-, knowledgment of the maker. 12 Rob. 183, and authorities there cited.

Judgment affirmed.


author: Edstis, C. J.

text:
    Daigre v. Daigre et al.
    Conduct notoriously bad will authorize the removal of a mother from the tutorship of her children; and the neglect and refusal of the under tutor to take any measures for her removal, is a sufficient cause for his removal.
    Appeal from the Court of Probates of East Baton Rouge,

      Tessier, J. Cr. S. Lacey, for the plaintiff. Herron, for the appellants.
   The judgment of the court was pronounced by

Edstis, C. J.

The judgment appealed from removed the defendant, Celeste Daigre, from the tutorship of her minor children, on account of notorious bad conduct. The evidence fully authorized the judgment, and is of such a character as imposed on the relatives of the minors the duty of removing them from the pernicious example of their mother, and from the home which her conduct has made the scene of scandal and profligacy.

The petition charges that the under tutor ought to be removed, for having neglected his duty in not instituting judicial proceedings for the protection of the minors, and refusing to take any steps in their interest against the mother, though fully apprized of her conduct. The under tutor was also removed by the District Court, and both parties have appealed.

On the appeal, as well as in the court below, the under tutor has united with the tutrix in defeating the humane and laudable efforts of the plaintiff, who is a relative of the minors, and who appears under an appointment of the court, to save them from the fatal influence of their mother’s example. This is the mode which he adopts to promote their interests. There is neither reason nor good faith in such conduct.

The judgment is therefore affirmed, with costs in both courts, to be paid by the defendants personally.


author: Slidell, J.

text:
    Menard v. Winthrop et al.
    Where the certificate of a notary, offered to prove notice of protest to the endorsers of a note, written at the foot of a notice of protest dated 26th of June, 1841, the day of the maturity of the note, states that “ a copy of the above notice was, on the 26th inst., put in the post office,” &.C., directed to the endorsers, it is not sufficient. The omission to state in the certificate the month and year, cannot be cured by any inference from the date of the notice.
    APPEAL from the District Court of East Baton Rouge, Burk, J. The plaintiff appealed from a judgment of nonsuit, in an action against the endorsers of a promissory note. Plaintiffs offered as evidence of notice of protest, a notarial certificate, in the following words :
    “Baton Rouge, June 26th, 1841. Messrs. F. D. Conrad, A. Winthrop Sf Adams. Please to take notice that a promissoi'y note, drawn by Manuel Moreno, for $300, dated 24th December, 1840, and due this day, has been duly protested for non-payment, and the holder looks to you forpayment, as endorsers thereof.
    Your obedient servant, Wm. H. Wikoff, Not. Pub.

      “ I certify lliat a copy of the above notice was, on the 26th inst., put in the Posfc °®ce at place, directed to F. D. Conrad, Esq., East Baton Rouge; and also copies were served in person, on the same day, on Messrs. A. Winthrop and Amos Adams. Wm. H. Wikoff, Not. Pub.
    Enos Hebert,
    J. Larguier.
    “ I certify the foregoing to be a true copy of the original, on record in my office. Witness my hand and seal of office, this 13th day of October, 1846.
    Wm. H. Wikoff,,Not- Pub.”

      G. S. Lacey, for the appellant. No counsel appeared for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

Winthrop, Conrad Sf Adams, are sued as endorsers on a promissory note. There was judgment of non-suit as to the endorsers, and the plaintiff has appealed.

We are of opinion that notice of protest has not been sufficiently proved. The plaintiff offered in evidence a certified copy of the notarial certificate of protest, in which the notary certifies that, on the 26th inst., he put (he notice for Conrad into the post office, and served the notices upon Adams Sf Winthrop, personally. This certificate coutains no date of month or year, and it is impossible for us to say to what month and year the expression 26th inst. is referable, unless we deduce it, by conjecture, from the circumstance that the copy of notice contained in the certificate bears date, June 26, 1841. But this is too loose to justify a judgment against the endorsers. The notice might have been dated in June, and yet not have been mailed or served in that month.

Judgment affirmed.


author: King, J.

text:
    Ferriday et al. v. Purnell, Administratrix.
    Though a joint and several note, signed by several parties, was executed exclusively for the benefit of one, neither of them can be regarded as sureties in relation to the payee (C. C. 2086. 2089); but, as between themselves, the other makers are sureties of the one for whose benefit the note was made, and where one of the former has paid the debt, ho has his remedy against his co-sureties, in proportion to the shave of each. C. C. 3027v The makers not standing in the relation of sureties to the payee, payment before suit did not forfeit the recourse of the party by whom the payment was made, against his co-sureties.
    Where a joint and several note is signed hy an individual, and by a commercial firm in their partnership name, they being in fact the sureties of another maker for whose benefit the note was executed, the partnership must be considered only as a single party to the note, and between themselves and their co-surety, they are liable for only one-half of its amount.
    Appeal from the District Court of Concordia, Farrar, J.

      Poindexter, for the plaintiffs,
    cited Civ. Code, arts 2086, 2099, 2100, 2103, 2157.

      Frost, for the appellant.
   The judgment of the court was pronounced by

King, J.

J. C. Jones, Thos. D. Purnell, and the firm of Fexriday, Ring-gold Sf Co., executed a joint and several note, payable to the Mechanics’ Sf Traders’ Bank of New Orleans. The note was made for the benefit of Jones, who subsequently became insolvent. It was paid by the plaintiffs, Ferriday, Ringgold Sf Co., without suit, and they claim, in this action, from the succession of their co-obliger, Purnell, one-half of its amount. The defences opposed by the defendant are : 1st, that the plaintiffs paid the note voluntarily, without suit, and have no recourse against their co-obliger, who, it is contended, was a co-surety; and 2ndly, that if the defendant be liable at all, it is only for a rateable portion of the debt, which is one-fourth, the firm of the plaintiffs being composed of three persons. A judgment'was rendered in the court below, in favor of the plaintiffs, for one-half of the amount of the note, and the defendant has appealed.

I. The obligation was in solido, and the bank could have exacted payment from any one of the obligers. As regarded the bank, none of the parties to the note stood in the relation of sureties. The present plaintiffs could have opposed to the former neither the plea of discussion nor division, and were not required to suffer suit before discharging the debt, in order to avail themselves of their remedy against the obligers. But it is admitted that the note was made exclusively for the benefit of Jones, and that, as between the makers, the parties to this suit were the sureties of Jones. Their obligations, then, amongst themselves, must be governed by the principles which regulate suretyship, and by those the surety who has satisfied the debt has his remedy against his eo-suretios, in proportion to the share of each. Civ. Code, arts. 2086, 2089, 3027.

II. The plaintiffs were a commercial firm, and executed the note in the partnership name ; consequently, it became a partnership liability. The partnership stood as one party to the note, and, as between themselves and their co-surety, they were liable lor only one-half of the debt.

Judgment affirmed.


text:
    Copley v. Sanford, Executor.
    The court Will judicially notice the fact that, the common iaw is the basis of the jurisprudence of the State of Mississippi.
    The court will not require the provisions of the common law on any subject tobe provedas facts by the testimony of witnesses, but will ascertain for itself what that law is, by the examination of commentaries on it.
    The vendor's privilege on moveables recognized by the Civil Code of this State, is unknown to the common law.
    In the distribution of the assets of a^succession among its creditors, one who has absolutely sold and delivered a moveable, is, by the common law, a mere ordinary creditor for the price.
    Where a vendor of moveables sold and delivered in another State, would have no privilege under its laws, he can have none in this State.
    Where property sold in another State, by whose laws the vendor was entitled to a privilege, has heen removed to this, by the laws of which it is considered an immovable, to preserve the privilege, the act of sale must be recorded in the mortgage office. C. C. 3238.
    APPEAL from the Court of Probates of Madison, Downes, J. This appeal is taken from a judgment rejecting an opposition to a tableau of distribution presented by the executor of Mary Cliaille, by which one Watson was allowed a privilege as vendor upon the proceeds of the sale of slaves, originally sold by him to the deceased, in Mississippi.

      Shannon and Dunlap, for the appellant.
    Watson’s act of sale not having been recorded in this State, he can have no privilege. Civ. Code, arts. 3238, 3239 3240, 3326, 3332, 3335. 12 Mart. 543. 1 Ib. N. S. 384, 296, 222.

      Snyder, for the appellee Watson.

      Watson was entitled to a privilege. C. C. art. 3194. It may be objected, that the sale took place in the State of Mississippi, and that the laws of Mississippi were not introduced, to show that Watson was entitled to his privilege in that State. In the absence of proof to the contrary, the court will presume that the laws of a foreign country are the same as our own, in the construction of contracts. The laws of Louisiana must govern this case ; and under those laws the vendor, until his claim is prescribed, has a privilege upon the object sold, in the hands of the vendee or his heirs, and can enforce the same, unless it impair the rights of mortgages fairly acquired.

      Amonett, on the same side.
   The judgment of the court wes pronounced by

Slidell, J.

Watson having been placed on the tableau of distribution of the succession of Chaille as a privileged creditor, by reason of his having been the vendor of certain slaves and articles of furniture, Copley opposed the allowance of this privilege. The opposition was rejected, and Copley appealed. The slaves and moveables were sold, and delivered by Watson to the deceased, in Mississippi. Itis proved that in Mississippi slaves are considered as moveables. It is a matter pertaining to the history of this Union, and of which the court is bound to take judicial notice, that the common law is the basis of the jurisprudence of the State of Mississippi.

Such also are the relations of this State with the other States of this Union, and such are the daily necessities of the administration of justice, that it would be wrong for us, at this day, to say that this court will not take judicial notice of what the common law is, and that, instead of searching for it ourselves in the commentaries of such authors as Blackstone and Kent, whose works are daily quoted in this tribunal, and the perusal of which the court has made a pre-requisite of admission to the bar, we will only notice it when proved as a fact by the testimony of witnesses.

Taking judicial notice of the common law, and that it forms the basis of the jurisprudence of Mississippi, it is our duty to know that the vendor’s privilege upon moveables, as recognized in our Code, is unknown in that system, and that at common law he who absolutely sells and delivers a moveable is, in the distribution of the assets of a succession among creditors, a more ordinary creditor for its price. See Wiston v. Stodder, 8 Martin, 135. Unless the common law has been modified by statute in Mississippi, which has not been proved nor even suggested, Watson would have had no privilege as vendor in Mississippi, and as such can have none here.

We must also remark as to the slaves, that, even if the vendor’s privilege existed in Mississippi, it could not have been preserved against Louisiana creditors in this State, without being recorded according to our law. Upon their arrival and the domiciliation of their owner here, our laws operated upon them; they became immovables ; and the vendor, to preserve his privilege upon an immovable, must record it. Civil Code, art. 3238.

It is therefore decreed that the judgment of the court below be reversed, so far as it accords to Watson the vendor’s privilege; that the said Watson be ranked as an ordinary creditor; and that this cause be remanded for further proceedings, according to law; the costs of the said opposition and of this appeal to be borne by the succession.


author: King, J".

text:
    Woods v. Kirkland.
    An injunction obtained by tbe plaintiff, in an action for a trespass on land, will not be perpet nated on the testimony of a witness that defendant had said that he would trespass on_ plaintiff’s land, where no actual trespass is established.

      APPEAL from the District Court of West Baton Rouge, Burle, J.

      JElam, for the appellant,
    contended that the injunction granted in this case should be perpetuated.

      Herron, for the defendant,
    cited Code of Pract. art. 298.
   The judgment of the court was pronounced by

King, J".

The plaintiff seeks in this action to recover damages for trespasses alleged to have been committed on his land by the defendant, and he accompanied his suit by an injunction, inhibiting the defendant from further invasions of his property. The general issue was pleaded in defence. The court below considered that the plaintiff had failed in his proofs, and rendered a judgment of non-suit, from which this appeal has been taken.

The alleged trespasses were not proved on the trial; but one of the witnesses stated, that the defendant said he would cut wood on the plaintiff’s land. It is contended that, in view of this menace, the injunction should have been perpetuated, although no actual trespass was committed.

We consider the testimony too vague and inconclusive, to authorize the perpetuation of the injunction. Judgment affirmed.


text:
    Webb, Administrator, v. Kemp.
    Where flic amount in contest, in a rale taken on a sheriff, to show cause why he should not be made liable for the balance due on a fi. fa., of which no return was made, is less than three hundred dollars.no appeal will lie ; and where, in sueli a case, an appeal has been taken, it will be disregarded by the court, though no objection on the ground of want of jurisdiction be made by either party.
    APPEAL from the District Court of St. Helena, Jones, J.

      Merrick, for the appellant. Baylies and Lawson, for the defendant.
   The judgment of the court was pronounced by

King, J.

The sum in controversy in this cause is below the jurisdiction of this court, and the appeal must be dismissed. A rule was taken on the sheriff to show cause why he should not be held liable for the amount of a fieri facias which went into his hands, directing him to make $410, with interest, of which no due return was made. Before the rule was taken, tbe sheriff had paid to the plaintiff $400, on account, for which the latter had given his receipt on the writ; and the controversy between the parties relates to the balance due on the writ, which is much less than $300. The claim is evidently fictitious, and cannot confer jurisdiction on this court. We have already had occasion to say, that we would decline considering causes not within the jurisdiction of the court, although the parties themselves should not make the objection. Appeal dismissed.


text:
    Fluker v. Bullard.
    A-sale under a1fi.fi. of a promissory note, never in the actual possessiomof1 the sheriff, con, fers no title on the purchaser. To make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer.-
    There can be no valid pledge of a note payable to order, where the note has not been endorsed by the pledgor, nor put? intb the possession of> the pledgee, nor of any third person agreed on by the partios, C. G. 3128, 31-29.
    Appeal from the District Courtf of East Feliciana, Johnson, J.

      Z. S. Lyons, for the appellant.

      Choses in action may be sold under a ft. fa., and noseizure is necessary.- 4 Mart. N". S, 416. 5 La. 486. The seizure conferred a privilege. C. P. art. 722.

      Lawson, for the interyenoiy
    cited Wilson v. Munday, 5 La. 484.
   The judgment of the court was pronounced by

King, J.

The plaintiff alleges that he is the owner of a promissory note.whichhe acquired by purchase from Bailey, who acquired it at a sheriff’s sale as the property of Robert Dyer, by whom it was owned at the date of the seizure. He further avers that J. P. Bullard has obtained possession of the-note in question, and-prays that the latter be decreed to surrender it to him, or to pay its amount. Bullard, in his answer, disclaimed the ownership of the note,, and alleged that he held-it for Nettles.. Nettles intervened in the suit, ahd alleged that, prior to-the'sheriff’s sale under which Bailey, purchased, the note-had been given to him in pledge by Dyer, to indemnify him against any loss' he might sustain as the endorser of Dyer. He further alleges that the plainttff’s title is defective, beoause the sheriff never had possession of the note-seized, and beoause the note' was sold under a writ which had expired before1 the date of the sale. He prays to be maintained in his possession of the note, until the extent of his liability for Dyer shall have been finally determined, and the purposes of the pledge fulfilled. There was a judgment in favor of the intervenor in the court below, from which the plaintiff has appealed’.

It becomes necessary to enquire only into the first of the alleged defects; as that’ irregularity; in our opinion; vitiated tlie sheriff’s sale to Bailey, and is fatal to the plaintiff’s demand. The sheriff states in his return, that when property was demanded of the defendant in execution, the latter gave up the note in controversy, then in the hands of J. P. Bullmd. Bullard appears to havecontinued'to-bethe depositary of the note; notwithstanding tlis supposed levy; aud it is not shown that notice of the seizure was given to him, nor that the sheriff ever liad the note in actualpossession.

In the case of Simpson v. Allain it was held that, in order to make a valid seizure of tangible property, it is necessary that the sheriff should take the property levied upon inte actual possession. 7 Rob. 504. In the case of Gobeau v. The New Orleans & Nashville Rail Road Company, the same doctrine is still more distinctly announced. The court there say : “ From all the different provisions of our laws above referred to, can it be controverted that, in order to have them carried into effect, the sheriff" must necessarily take the property seized into his possession ? This is of the essence of the seizure. It cannot exist without such possession.” 6- Rob. 348. It is clear, under these authorities, that the Sheriff effected no seizure of theaxote in controversy,.and.consequently his subsequent adjudication of it conferred no title on Bailey. It still remains .the property of Dyer, for whom Bullard held it originally for collection.

The title of the intervenoris-also defective. He claims'to hold in virtue of ;un act of pledge from Dyer,. The mote .is payable to order; and .was not endorsed by the pledgor, nor,put in the possession.of the.pledgee,,nor of a third person agreed on-by the parties. Civil Code, arts. 3128, 3129.

It is therefore ordered that so much of the judgment of the court below as .rejects the plaintiff’s.demand as in -case .of non suit, be affirmed.; and that, in /Other respects, said judgment.be avoided and reversed. It,is further decreed, ¡that the intervenox-’s demand be dismissed, that he pay the costs of his intervention in the court below, and:tliatthe plaintiff.andintervenorpay each one half ¡the costs of this appeal.


text:
    Womack v. Womack et al.
    (One by whom an action had been commenced.as tutrix ofminor heirs, to-recover the value qf improvements made by their father on lands of the defendant, may, on subsequently qualify, ing as administratrix of the father’s.estate, amend.her.petition, and claim to recover in the capacity of administratrix. Such an amendment does not alter the nature of thedemanff
    '¡¡Pile succession of a deceased person is acquired by his heirs from the moment of his death, and with it the right to .institute all actions which the deeeased.could have instituted; and this right of action .is not suspended during'ihe delays-allowed by law -to-the heir to decide whether he will-accept or renounce the succession. C. C. 934,'939.
    •Where a Probate Court has jurisdiction of-an action for a sum of money-against a succession in the bands of an administrator, its jurisdiction cannot’be divested by a partition of the.succession between the widow-and heirs of the deceased, made pending the action. In such a case the administrator may be dismissed, and the widow and heirs be substituted as defendants. and judgment be rendered against them for their respective portions of the debt.
    '2)he valueof useful improvements, made on property occupied by a,pasty under an.agreement that he should pay no rent, may be .recovered from the owner,
    APPEAL from the District Court of St. Helena, Leonard, J. 'The facts of this case are stated in the opinion of the.eoui't infra. There -was a motion to .dismiss the appeal, on the ground of want of jurisdiction, the amount claimed from each heir being less than $300.

      A. Hennen, .for the plaintiff.
    The plaintiff.claimed $1,200 of-the administrator of the estate of Womaclc, who being dismissed, the lieii-s, nine in number, were made defendants. From the widow in community, only an heir’s — a child’s poi'tion, was claimed. Judgment was given for $88 against each of the defendants, against none of whom were $300 claimed. The question is, whemthei-e is a claim .for more than $300 against several defendants, jointly only, but not in solido, can the defendants appeal, when no one of them has-been.condemned to pay $300. We contend that the court has no jurisdiction.
    The amount in contest is certainly not $300, as regards each defendant. Because the Code of Px-actice has required that each defendant should be made a party, it does not follow .that each defendant has the light to appeal.
    The case of Ware and wife v. Welsh’s Heirs, 10 Mart. 430, supports the judgment of the court, on the merits. There was no usufruct of the land. For impx-ovements made thereon the plaintiff claims remuneration. If the amendment was improperly allowed, (he plaintiff, as partner in the community, is entitled to one half of the judgment. No objection was made to the evidence given in to support of this right, and the court can go on to decree in hex-favour. Bryan and wife v. Moore’s Heirs, 11 Mart. 26. Langlini v. Broussard, 12 Mart. 244. When a right is asserted on one grouud, and shown on another, judgment will be given according to the justice of the case. Christy’s Dig. 255.

      Newton on the same side.

      Baylies, for the appellants.
    1. As to the motion to dismiss. The plaintiff and appellee demands of the defendants, the partner in community and the heirs of Abner Womack deceased, the sum of twelve hundred dollars. The judgment below gave the appellee eight hundred dollars, decreeing the partner in community to pay one-ninth of the sum, and the eight heirs the balance, according to their virile portions. The defendants have appealed from this judgment, and a motion is made to dismiss the appeal on the ground, that the judgment against each defendant is for a less sum than $300, and is not appealable. The suit was originally instituted against the administrator of the succession of Abner Womack deceased, but he having been discharged from the administration, the partner in community and the heirs accepted the community property purely and unconditionally, and became parties to the suit as defendants. What was the value of the matter in dispute, is the important question ? As far as relates to the plaintiff, it is whether she shall recover $1,200 of the defendants combined, and in what proportion ? Whether of the partner in commnmty one half, or one-ninth, as awarded ; as relates to the defendants, it is whether they shall be entirely released from a claim exceeding three hundred dollars ; and if not, an incidental question arises among themselves, as to what amount each one shall contribute to the payment of the judgment ?
    The partner in community cerlainly had a right to appeal, as she was liable, legally, .to pay one-half of the judgment. But it is contended that she must be viewed as anheir, because, in another suit, she had renounced in favor of the heirs .all her interest in the community except one-ninth, or, in other words, had tallen what is styled a child’s portion. This was an arrangement, however, made, not by law, but by her own voluntary renunciation, and does not change her liability to creditors. If it is conceded that the partner in community is .entitled to an appeal, can she avail herself of it, without her co-defendants being brought before the appellate court ? And if so, can they not also join in the .appeal? If the plaintiff had appealed, because the partner in community was decreed to pay, not one-half, but one-ninth, could she be severed from her co-defendants, and they left to comply with the judgment of the inferior court, while she might be rendered liable by the appellate court to pay one-half, and the plaintiff be thus enabled to recover more than she originally claimed. It .seems, if the plaintiff is .entitled toan appeal as to all of the defendants, that they •ought also to enjoy the same right. It has been decided that all the parties to the judgment in the inferior court ought to be made parties to the .appeal. 3 Rob. 26,140, 436. 6 L.a. 320.
    2. The plaintiff, as tutrix of her minor children, instituted suit against the .administrator of the succession of Abner Womack. Her right to do so was denied, whereupon she .applied and was appointed administratrix of the succession of Wm. H. Womack, and was allowed to amend her petition by becoming plaintiff in the latter capacity instead -of the first. At the time the amendment was allowed, the succession of AbnerWomack had been partitioned among the heirs .and the partner in community; these had become parties to the suit, were liable ,to be sued in the District Court, and the administrator had been discharged. A suit .and judgment in the name of the tutrix required a different disposition •of the amount recovered, from .a judgment in the name of the administratrix. The one became the property of the minors, and the other of the creditor of ■thedoceased insolvent. The amendment was improperly allowed. 11 La. 573. 1 Rob. 407. A plea was made to the jurisdiction of the Probate Court and .overruled. No law authorized the institution of a suit in the Probate Court .against the partner in community, nor against the hews who had been placed in possession of the^snccession, as in this case, in which the community property ■exceeded $60,00.0. If liable, the defendants had a right to insist that the .amount of liability should be fixed by a jury.

      William Ii: Womack .occupied .a tract of land about 20 years, by permission ■of his father Abner Womack deceased, and it is admitted that he did so without being liable to pay rent. This possession was that of an usufructuary. C. C. art. 525. At the expiration of that usufruct, the usufructuary has no claim for improvements. C. C. art. 589.
   'The judgment of the .court was pronounced by

King, J.

The plaintiff instituted this action as the tutrix of the minor children of W. H. Womack, deceased, to recover from the administratrix of Abner Womack, the value ofimprovements made by the father of the minors on a tract of land, which he had been permitted by Abner Womack, his father, to occupy for a number of years. The authority of the plaintiff to maintain the action as tutrix was objected to, whereupon she caused herself to be appointed administratrix of the succession of W. II. Womack, and amended her petition, claiming in that capacity. To the opinion of the court permitting her to make this amendment, the defendants excepted. A judgment was rendered in favor of the plaintiff, from which the defendants appealed.

The judge did not, in our opinion, err, in permitting the plaintiff to amend her pleadings, and prosecute her claim as administratrix. The succession of the deceased was acquired by his 'heirs from the moment of his death, and with it the right to institute all the actions which the deceased could have instituted. These rights of action are not suspended during the delays allowed bylaw to the heir, to decide whether he will acceptor renounce the succession. Civil Code, arts. 934, 939. Erwin et al. v. Orillion, 6 La. 213. O’Donald v. Lobdell, 2 La. 303. 4 Touilier, nos. 82, 83, 84.

A part of the succession which devolved upon the plaintiff’s wards consisted of the improvements in question, and it became her duty, as tutrix, to institute a suit for the recovery of their value, without awaiting the appointment of an .administrator. After the plaintiff had been appointed administratrix of the be- . neficiary succession, it was equally her duty to claim the value of the improvements for the benefit of the entire succession, which she then administered for the creditors as well as the heirs, and for this purpose it was not necessary to institute a separate action. She could well intervene in the suit then pending; and this intervention, in a capacity which authorized her to claim the entire debt, for the benefit of tlie minors as well as the creditors, did not alter the nature of the demand. If there was any foundation for the objection originally urged to the right of the tutrix to claim more than the portion coming to her wards, it ceased when she became administratrix, and in that capacity was made a plaintiff in the action.

During the pendency of the action, a partition of Abner Womack’s succession was made between his widow and heirs. The administrator was thereupon dismissed from the suit, and the widow and heirs substituted as parties defendant. The latter filed a plea to the jurisdiction of the Probate Court, which was overruled, and we think correctly. When the suit was instituted, the succession was under the charge of an administrator, the demand was for a sum of money, and the Probate Court had clearly jurisdiction of the ■cause, of which it was not divested by the subsequent discharge of the administrator, and partition among the widow and heirs.

Upon the merits, it is shown that Abner Womack put his son W. H. Womack in possesaion of a tract of land, on which the latter resided for a number of years, and made useful improvements. It was understood that the son ¡should pay no rent. The plaintiff is entitled to the value of those improvements, and the estimate placed on them by the judge below is fully supported by the evidence. Ware and wife v. Welsh’s Heirs, 10 Mart. 430. The widow and heirs of Abner Womack having been made parties defendant, ¡after the partition, judgment was properly rendered .against them, for their ¡respective portions of the debt. .Judgment affirmed.


author: Eustis., C. J.

text:
    Aubic v. Gil.

      A judgment rendered by default against a wife, in an action on a note by which .slio bound herself jointly and severally with her husband, will be binding on her, though the note was given for a debt of the husband’s, where no fraud or duress is alleged to have been exercised to prevent her appearance and defence of Che action.
    Where a married woman, for the purpose of shielding certain lands from a creditor conveys them to a third person by .a simulated sale, her heirs, on proof .of the existence and contents of a counter-letter by which the purchaser acknowledged the simulation, and of its concealment or destruction by the latter, may recover the land, with damages, profits and rents.
    APPEAL from the District ■Court of East Baton Rouge, Johnson, J. The plaintiff avers, that her mother was the -owner and possessor of certain lands, and that a short time previous to her death, by act sous seing privé, she sold the same to defendant; that the property was the paraphernal property of the vendor; that the sale was fictitious, without consideration, and was made for the purpose of protecting the property from the creditors of her husband ; and that a counter letter was executed by the defendant, acknowledging its simulation. She prays that the properly may be decreed to belong to her. The defendant answered, contending that the contract was entered into for the purpose of protecting the property from Fr.am.eois Rivas, a creditor ; that it was fraudulent and reprobated by law; and that the court can not interfere to protect parties, under such circumstances. The plaintiff" appealed from a judgment dismissing her action on the ground that the stipulation, alleged to exist in the counter-letter, being illegal, creates no cause of aetion.

      G. S. Lacey, for the appellant.
    The transfer of the property to defendant was not fraudulent, nor is it reprobated by law. This is evident from its object. It was made for the purpose of shielding the paraphernal property of Madame Hortense from the unjust law-suits and persecutions of her husband's creditor ; a stronger case than that of Griffin v. Lopez, mentioned in 17 La. 128, which the Supreme Court there say, evinces no immorality or dishonesty on the part of transferror.. The mother of plaintiff took this method to accomplish what the law, by a suit for separation of property, would authorize her to attain, viz : the protection of her separate property from her husband’s creditor. In addition, we will state, that there are several adjudicated cases where such relief as we pray for, has been extended, or would have been, if a counter-letter had been produced ; the relief was refused, not on the ground of the moral turpitude of the original transaction, but, for the want of a counter-letter, showing that defendant was deviating from the original transaction, and was committing a meto fraud. 6 Mart. N. S. 206. 8 Ib. N. S. 448. 4 La. 16.9, 351. 17 La. 128. 19 La. 412. 3 Rob. 452. The counter-letter having been lost, parol evidence of its contents was admissible. Civil Code, art. 2258. 1 Mart. N. S. 189. 2 La. 168. 12 La. 162. Phillips on Evidence, Cowen and Hill’s Notes, vol. 3, part 2, and numerous cases there cited.

      Elam, for the defendant.
    The contract disclosed by the counter-letter was illegal, and can produce no effect. C. Pract. art. 19. Civil Code, arts. 1887, 1889. Gravier v. Carraby, 17 La. 118. Counter-letters are not allowed to shield transactions reprobated by law, C. C. art. 2236. Domat, book 3, tit. 6, ss. 14, 15 (1 vol. p. 423). The illegality of the transactions on which plaintiff’s action is based, requires that her petition should be dismissed. 5 Mart. 160. 6 Mart. 524. 3 Ib. N. S. 46. 4 La. 169. 19 La. 412. 2 Rob. 272. 3 Rob. 452, 481. 4 Rob. 209. 5 Rob. 490. Armstrong v. Toler, 11 Wheaton 258, 275.
   The judgment of the court was pronounced by

Eustis., C. J.

The plaintiff sues to recover from the defendant a tract of •and in tlie vicinity of Baton Rouge, containing about 117 superficial acres, of which she alleges her deceased mother, during the marriage which existed between her and her late father, made a simulated sale to the defendant, for the purpose of protecting it from the unjust and vexatious pursuit of one Franpis Rivas, who was-a creditor of her husband. She alleges that a counter-letter was given to her said- mother,-which acknowledged the simulation, and contained authority to enable her mother to recover back the property, which- the defendant subsequently obtained possession of and destroyed. There was judgment for the defendant, and the plaintiff has appealed.

Besides the plea of the general issue and an averment of title, good faith, &c.T on behalf of the defendant, it is urged for the defence that, admitting the averments of the petition to be true, which is not conceded, the conveyance to the defendant was for an unlawful and immoral cause, that the court can give no assistance in giving effect to its- object, and that the evidence shows that the reaj purpose of the conveyance was to defraud Franpis Rivas-

The evidence satisfies us that the conveyance from the plaintiff’s mother to the defendant was simulated, and made for the purpose of defeating the execution of a judgment, which was rendered in favor of Franpis Rivas, on the 19th June, 1827, for $413 50, with interest, against both husband and wife, the said sum being the amount of a promissory note made by them, in solido, in favor of said Rivas, on the 21st of April, 1824. The judgment was rendered by default, neither party defendant appearing. The conveyance was under private signature, and executed on the 4th of August, 1826.

The wife was bound by the note which she executed jointly and severally With her husband, although, if the debt for which it was given was her husbannd’s alone, and she merely his surety, she could have resisted the exaction of the amount, by availing herself of her exception to such a contract-resulting from her condition as a married woman. But having made the exception, and no fraud, restraint, or duress, having been charged to be exercised in relation to her non-appearance after citation, the judgment against her must be considered as valid.

At the same time, under the hypothesis on which the plaintiff bases her right of recovery, the law cannot visit upon her the consequences of having made an immoral and illegal contract in conveying the property in dispute from the reach of the creditor of the husband, though he was also her creditor. The condition of married women, their subjection to the marital power, and the relief which the law itself gives them against their own contracts, prevents the same immorality from attaching to an act of this kind, as if committed by a person in the possession of their entire rights. If the husband had the means of inducing his wife to bind herself for his debts, and of preventing her from making a legitimate defence against their recovery out of her property, it may well be assumed that the removal of the property from the pursuit of his creditors, was more his act than her’s.

The husband and wife both were parties to the act of conveyance to the defendant. The act of sale by which the mother of the plaintiff acquired the property in dispute declares, that the payments were made and to be made for it out of the paraphernal funds of the wife, and that the property should remain as her paraphernal property. It is in evidence that she had received, during marriage, sufficient paraphernal property to make the payments.

The existence and contents of a counter-letter from the defendant, executed at or about the time of the conveyance, has been fully established. Its non-appearance has been accounted for. Indeed there is every reason to believe that the defendant, who was the tutor of the plaintiff during her minority, has himself destroyed it, if he has not it in his possession. The evidence shows him throughout to have been a mere spoliator, and the plaintiff’s title is sufficient to enable her to recover the land from him, with its rents and profits.

The recovery in this case can have no illegal or immoral effect. Some of the heirs of Francois Rivas have discharged the plaintiff from the original judgment had against her mother, which the conveyance to the defendant was intended to frustrate. The return of the property to the plaintiff will restore it to the operation of the judgment, for the benefit of those of the heirs- who have not released the plaintiff.

It is therefore decreed that the judgment of the District Court be revei-sed, and that the plaintiff recover from the defendant the land described in the petition, with costs in both courts; her claim for damages, profits, and rents, being reserved.


author: Slidem, J.

text:
    Bank of Louisiana v. Wilcox et al.
    A note discounted by a bank, at the highest rate of interest allowed byjits charter, for the benefit of the maker, to whom the proceeds were paid, will, if unpaid at maturity, bear the same rato of interest from that time till payment.
    A husband is not responsible for debts contracted by his wife before marriage.
    Appeal from the District Court of West Feliciana, Boyle, J.

      A. M. Dunn, for the plaintiffs. Bowman and Lyons, for ¿the appellants.
   The judgment of the court was pronounced by

Slidem, J.

The Bank of Louisiana formerly held a note of one Mussenden, endorsed by Walker, Laurie and Henderson. Mussenden died, and his widow, one of the present defendants, renounced the community of acquéts and gains. After this renunciation, she made the note now sued upon, to the order of and endorsed by Henderson. The bank discounted it, the proceeds were passed to her credit, drawn by her check, and applied to the payment of the protested note of her husband.

The defendant, Mrs. Wilcox, was perfectly competent to contract, and did contract, with the bank; and the fraud, which she alleges was practised upon her by Henderson, has not been proved.

The question is raised, whether interest was rightfully adjudged at the rate of nine per cent per annum after maturity. The note itself stipulates no rate of interest after maturity. But it has been proved that it was discounted by the bank ; and, as it was payable at twelve months after date, the bank had a right to take, upon the discount, nine per cent, according to its charter. After the maturity of this discounted note, the bank is entitled to a like rate of interest from the party discounting, as has boen many years since settled in the ease of The Bank of Louisiana v. Sterling. 2 La. 61. The rule was reaffirmed in the case of the Commissioners of the Clinton and Port Hudson Railroad Company v. Kernan. 10 Rob. 174.

The judgment wa3 improperly rendered against the husband, the debt having been contracted by Mrs. Mussenden, before her marriage with Wilcox.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed, that the plaintiffs recover of the defendant, Caroline E. Mussenden, now Mrs. Wilcox, the sum of $800, with interest at the rate of nine per cent per annum from the 18th day of March, 1843, till paid, and costs of this suit in the court below; the costs of this appeal to be paid by the plaintiffs.


author: SniDEii., J.

text:
    Union Bank of Louisiana v. Jones.
    In an action by the holder against the endorser of a note, the maker is generally a competent witness for the endorser; hut not where the note was endorsed by the latter for the accommodation of the maker. In such tí case he is not indifferent, being liable for the costs in the Cdse of judgment ágainst the endorser; but not liable, if in his' favor. C. C. 2260.
    APPEAL from the District Court of St. Tammany, Briggs, Parish Judge, presiding. The judgment below was in favor of the defendant, and the plaintiffs appealed.
    Halsey, for the appellants.

      Jones and Childress, for the defendant, cited as to' the admissibility of the maker of a note in a case like the present, Waters v, JPetrovic, W La. 584,
   The judgment of the court was pronounced by

SniDEii., J.

This suit is brought against the defendant as endorser of two notes, one made by Penn, and one by Minter, and both discounted by the plaintiffs. They stipulate interest at seven per cent from maturity.

It appears that the note of Penn had been put in suit against him, but had been destroyed by lire, with the other records of the court in which the suit was brought. Independently of the books of the bank, which were objected to, the notarial copy made at the time of protest by the notary, aided by the testimony of two witnesses examined in the cause and the admissions in the answer, sufficiently establish the former existence of the' note, its endorsement by the defendant, that it was discounted to renew a previous note of the maker, and its destruction. There should have been judgment for the plaintiffs upon this portion of his claim.

The note of Minter was also discounted by the bank, to take up an antecedent liability of the maker, the defendant being an accommodation endorser. He has urged in argument, as in his answer, that this note was endorsed by him and discounted on certain conditions, which have not been fulfilled; and, in support of this defence, he offered Minter, the maker of the note, as a witness. The plaintiff excepted to the competency of this witness, and we are of opinion that he should have been excluded. In an ordinary case the maker would probably be a competent witness for the endorser, to prove the existence of such a defence, upon the ground of indifference in point of substantiated interest; and, in this respect, the provision of our Civil Code harmonizes with the prevailing rule of the commercial law; for, in the language of article 2260, he is not interested either directly or indirectly in the event of the cause. If the plaintiff gains he is still liable for the amount of the note to fche endorser; if the plaintiff loses he is still liable for the like amount to the plaintiff. But where the endorser, in whose favor he is called to testify, is an endorser for the accommodation of the maker, his relation is that of principal towards the endorser as surety; and if there be judgment against the endorser, the maker is liable not only for the amount of the note but for the costs of the suit against the endorser.. The case therefore is not one of indifference in point of essential interest; and under our Code, as well as numerous authorities,, the maker, in suGh ease is an incompetent witness for the defendant, without a release. See Chitty on Bills, 655. Greenleaf on Evidence, vol. 2, §. 204. Pierce v. Butler, 14 Mass. 303. Van Schaack v. Stafford, 12 Pick. 565. Hubbly v. Brown, 16 John. 70:

The bill of exceptions, however, to the admission of this witness has not been» presented by the plaintiffs in argument, and w'e shall consider it as not relied upon. We notice the position of the maker of the note to show that he is no 6 a full witness, and that, from this consideration as well as the nature of the facts asserted by him, we are not permitted to affirm the judgment of the court below. He does not prove an offer of a sufficient mortgage to secure the debt, nor his ability to give one. There is a probability, under his testimony, that no application was made by him for the Jenkins Sf Bonner draft till after their bankruptcy, and the liability on that bill was not, according to his own statement, the sole consideration of the note now sued upon.

The case, however, as to this note, is not presented m such a form, as to. enable us to give final, judgment for the plaintiffs.

' It is therefore decreed that the judgment of the court below be reversed ; and it is further decreed that the plaintiffs-recover of the defendant the sum of $680, with interest thereon at the rate of seven per centum, per annum, from the 5th day of July, 1842, until paid, and costs in both courts. It is further decreed that the claim of the plaintiffs against the defendant, as endorser upon the note of Thomas W. Minter,. be dismissed, as in case of non. suit.

       The defendant alleged that it was stipulated with the agent of the plaintiffs, at the time of his endorsing Minter’s note, that the plaintiffs should accept mortgage security from Minter for his debt, and release the defendant as endorser, and that they subsequently rofused to do so, though Minter executed a mortgage for that purpose. Remeten.


author: Rost, J.

text:
    Babin v. Nolan.

      Xt is no objection to the homologation of a partition made by a notary, who holds also the officeof parish judge, that any objections to his decisions as a notary, on questions arising in the course of the partition, must be determined by him in his capacity of parish judge. Per Curiam: The inconvenience, if it be one,, is the necessary result of the parish judge system.
    Appeal by the defendant from, a- judgment of the Court of Probates of West Baton Rouge, Favrot, J.

      W. B. Robertson, for the plaintiff. Brunot, Lobdell and Labauve, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

All the questions involved in this controversy but one-, have twice before been put at issue between the same parties, and each time finally determined by judgments of the Supreme Court, which are res judicatas between them. 6 Rob. 508. 10 Rob. 373.

The remaining question is presented by the opposition of the defendant'to the homologation of the partition of the property of the community which had existed between the defendant and his deceased wife, now represented by the 'plaintiff, on the ground that the judge of the Court of Probates had himself made the partition, in his capacity of notary public; that it should have been made by another notary, because it would be absurd to appeal from the decision of the notary on questions arising in the course of the partition, to the same .person acting as judge.

There is nothing in this objection. The inconvenience suggested, if it be one, was the necessary result of the parish judge system, and it has never before been doubted that parish judges were competent to exercise the functions of notaries in all cases. Until a comparatively recent period they were the only notaries in many parishes, and, under the view taken by the defendant’s counsel in this case, no partition could have been effected in those parishes. The ■decision of the judge, on questions arising in partitions made before him as notary, could be appealed from, if not satisfactory to the parties.

After a careful examination of the record, we can discover no error in the .court below. Courts of justice can afford no relief to the defendant, and we hope and trust that this seventh appearance of the same parties before the ¡Supreme Court, may be the last. Judgment affirmed.

       See 4 Robinson, 278. 6 Ib. 508. 8 Ib. 193. 10 Ib. 373. 12 Ib. 315, 531. The (hope expressed in the text was not realizod. See the same case, post, p. 357.


author: Host, J.

text:
    Beard, Tutor, v. Morancy et al.
    Where the property in .controversy in a petitory action, is proved to he in the possession of the wife of a person offered as a witness for the defendant and of a third person, who cultivate it together, and it is shown that the witness controls and ships the crops, he will he incompetent. Per Curiam: A husband cannot be a witness either for or against bis wife. C. C. 2260.
    A possessor in good faith, in case of eviction, is entitled to be paid for necessary improvements made even after judicial demand and judgment of eviction, such as clearings, levées, and ditches, without which the landcouldnot have beenso cultivated as to yield the rents and profits claimed by tlie plaintiff.
    One bolding under a judicial sale mustbe considered as apossessorin good faith until judicial demand, and as such accountable, in case of eviction, for the fruits from that day only.
    One who removes, and converts to his own use, the materials of a house built on land from which he has been evicted, and for the value of which he was liable, will not be released from that liability, by proof that the ground on which the house was built has since been destroyed by the encroachments of a river.
    'The owner of a tract of land fronting on a river, cannot be made to contribute to the cost of a levée made at right angles to the river, on property of another proprietor, and which was necessary to bring it into cultivation, although the levee may benefit both tracts.
    The husband of a married woman is bound with her, in solido, for her acts as a tutrix.
    Appeal from the District Court of Carroll, Curry, J.

      McGuire, for the appellant. /. Dunlap, for the defendants. Thomas and JBemiss, for Minor, «cited in warranty.
   The judgment of the court was pronounced by

Host, J.

This case was originally a petitory action, in which the Supreme Court gave a final judgment in favor of the plaintiff for the land claimed, and remanded the case for further proceedings as between Morancy and the plaintiff, in relation to the fruits and improvements, and as to all questions between Morancy and the warrantors. See 3 Robinson, 119. The court below gave judgment in favor of the defendant against Win. B. Minor, on his warranty, for the sum of $2000, with five per cent interest thereon per annum from the 1st of January, 1842, uatil paid; this judgment to be credited with the sum of $506 67, with ten per cent interest thereon per annum, from the 7th of February, 1832, until paid. The court also gave judgment in favor of the defendant, Lowry, and against the plaintiff, for the balance due for the value of the improvements over that of the fruits, in the sum of $1559 30, and also in the further sum of $506 67, with ten per cent interest thereon, from the 7th of February, 1832, till paid, being, say the court, the amount to be refunded to Wm. B. Miañar, as having been paid by him on the price of the land recovered by the plaintiff. From this judgment the plaintiff alone has appealed.

Our attention has first been called to two bills of exception, taken by the plaintiff during the trial below. The first was taken to the opinion of the eourt admitting O. B. Cobb as a witness, on the ground that he was interested in the event of the suit, and otherwise incompetent to prove the facts intended to be established by him. It is proved by the declaration of this and other witnesses, that the property in controversy is nowin the joint possession of Lowry and the wife of this witness ; that they cultivate it together, and that Coll himself controls and ships the crops. The husband cannot be a witness either for or against his wife. Ciyil Code, 2260. The judge erred in admitting the testimony of this witness, and we will consider it as not in the record.

The other bill of exceptions was taken to the opinion of the court admitting testimony, relating to improvements made since the judgment of eyiction. The question presented by this .exception was fully examined in the case of Pearce v. Frantum, 16 La. p. 423, Th.e court in that case came to the conclusion that, under the general principles of the civil law, and the enactments ,of the laws of Spain, the party evicted was entitled to be indemnified for the useful improvements by him made on the property during the whole time of his possession, This doctrine .appe.ars t.o haye been acquiesced jn ever since. Our impression is, that the rule has been laid down too broadly; but there can be uo doubt that the party evicted is .entitled to be paid for necessary improvements. The improvements in this case were clearings, levées and ditches, without which the land could not have been brought into cultivation, so as to yield the rents and profits which the plaintiff now .claims. These were necessary improvements, and the judge did not err in admitting eviden.ee in relation to them.

The defendants and their vendors, holding under a sale by the Court of Probates, must be considered as possessors in good faith up to the day of the judicial demand, and as such accountable for the fruits from that day only. But the .court erred in considering that, from 1836 to 1840, there was not exceeding five .acres of cleared land, The testimony establishes that, since 1836, there has been about the same quantity of cleared land upon the tract, that whiph caved into the river being annually replaced by new clearings. The plaintiff has .claimed $200 a year for rent, and the lowest estimate of the witnesses entitles him to that sum, from .the judicial demand to the delivery of possession.

It is also proved that the defendants removed from the land a dwelling house a»d other buildings, worth, as they stood, from $800 to $1000. Tbe fact that £,he spot .on which those buildings stood has since caved into the river, gapnot give to the defendants a title to the materials taken by them; and the same principle which entitles them to indemnity, for improvements made since the judicial demand, requires that they should pay the value of those materials, which, from the evidence, we .take to have been $400.

In relation to the improvements, it is proved that 62 acres of land have been cleared and fenced by the defendants. The court below allowed them $25 an aere, making the sum of $1550.

The levée made at right angles to the river, two lots above the land in controversy, qannot be charged as an improvement upon it. It was necessary to protect and bring into full cultivation the lot on which it was made. Owners of land below it, although they may he benefitted by its erection, cannot be made to contribute to it, against their consent. The cost of making a ditch along that levée, and of oleariugall the ditches afterwards, was also improperly allowed by ■the court below. On the trial, the witness, Bemiss, stated that he had heard and corroborated the testimony of ,Cobb, and that he was well acquainted with ■the premises, .and with the Jeyées and ditches made on the land in controversy. Taking the statements of Cobb as part of the evidence of Bemiss, it is shown that there are 62 rods of levée, and 287J rods of ditching, properly chargeable .as improvements. The leyée is proved tobe worth $5 per rod, and the ditches $1 per rod., making together the-sumof $592 .50.

Judgment was properly given in fav.or of the defendants for the note of :$506 67, paid to the minors now represented ,by the plaintiff, by the purchasers ,at the probate sale. James Beard, their present tutor, was .the husband of their mother when the proceeds of that note were received. He was bound, in solido, with her for .the acts of the tutorship, and has acknowledged, since his appointment, that the amount of the note had been duly received- The court erred in allowing interest at the rate .of ten per cent per .annum upon it; the plaintiff is only entitled to legal interest. The principal, and interest from the judicial demand to the day .of the rendition of this decree, will amount to :$889 78, which added to $1550, for clearing, .and $592 50 for improvements, will make the sum due .the defendants $3032 28. Against this sum the plaintiff is eptitled to .compensate nine years’ rent dne on the 1st January Jast, .at .the rate ,of $200 a year, and $400 for the yalue of the materials removed from the land. This will leave in favor of .the defendants .a balance of $832 28, with legal interest from this date, subject to the payment of rent to .the plaintiff from the 1st ef January last, .at the rate.of $20.0 .a year.

It is therefore ordered, that the judgment rendered in this case between the plaintiff and the defendants be reversed. It is further ordered, that the defendant, Lowry, recover of the plaintiff the sum of $832 28, with legal interest from this date, subject to a credit at the rate of $200 a year from the 1st January, 1847, till paid. It is further ordered that no writ of possession issue in fayor of the plaintiff until this judgment is satisfied.. It is further ordered that, .if the balance due the said Lowry under this decree is not paid or tendered within 60 days from notice to the jolaintifF, the defendant, Lowry, may issue his .execution against the plaintiffs for the same. It is 'further ordered, that the plaintiff pay the costs of the court below; those of this appeal to b.e paid by the (defendants,.


text:
    New Orleans and Carrollton Railroad and Banking Company v. Patton et al.
    Where a bill, drawn by one who was at the time cashier of a branch bank, payable to aperson who was president of the branch, and endorsed by him, and by a third person who was a director of the same branch, who is presumed to have received the proceeds, was discounted by the branch, but not protested at maturity, the circumstances under which the note was discounted, by the act of one of the endorsers, and with the approbation of the other, will take the case out of the rulos applicable to ordinary endorsers. Per Curiam Both endorsers being bound to see] tho note paid, they will not be permitted to profit by the neglect or fraud oí an officer of the bank, whose conduct they were bound to superviso, to exonerate themselves from liability as endorsers.
    Appeal from the District Court of Carroll, Curry, J.

      Benjamin and Miaou, for the appellants, Stacy and Sparrow, for the defendants.
   The judgment of the court was pronounced by

Edstis, C. J.

This is an action against the defendants, who were endorsers on a bill for $402, drawn at the town of Lake Providence, by H. M. Dobbs, on Brisbane, Marshall 8f Co. of Bayou Sara. The bill was dated on the 11th of April, 1842, was not protested, and was found among the private papers of Dobbs, after his decease, about the third of October following. It was then forwarded to the branch of the bank at St. Francisville, was returned unpaid, and it does not appear that any demand was ever made on the drawees.

The charter of the bank required the appointment of five directors for the branch at Lake Providence, which is a small village on the banks of the Missippi. This bill was discounted at the branch bank located there, of which Patton, the defendant, was at the time president; Benjamin, a director; and Dobbs, the drawer of the bill, the cashier. The defendants, with the three other directors were appointed, and it was their imperative duty, to supervise the conduct of the cashier, in the administration of the affair's of the bank.

This bill was discounted with the aid of one of the parties, and the approbation of the other, who was the president of the board and the last endorser, Benjamin, is presumed to have received the proceeds. They are both bound to see the bill paid. They are not permitted to profit by the neglect, perhaps fraud, of an officer of the bank, whose conduct they were bound to supervise. The conflict between their interests and duties produced by the discount of the cashier’s bill, under the circumstances disclosed in evidence, with their endorsements, takes them out of the rules in relation to ordinary endorsers.

The judgment of the District Court is, therefore, reversed, and judgment is rendered in favor of the plaintiffs, against the defendants, in solido, for the sum of $402 02, with interest from the 21st -of April, 1842, until paid, and costs in both courts.

       SuDEiii,, J., being interested, did not sit on the trial of this case.


text:
    Bird v. McCalop.
    Where an endorser does not reside in the town in which the note is payable, but receives his letters and papers from the post office at that place, a notice of protest put into the post office there, addressed to him at his domicil, though not intended to be forwarded by mail, will be sufficient.
    APPEAL from the District Court of West Baton Rouge, Burk, J. The facts of this case are stated in the opinion of Slidell., J., infrd.

      Brunot, for the plaintiff,
    cited Bank of Louisiana v. Watson, 15 La. 38. Stat. of 1827, 1 Moreau’s Dig. 96. Bank of Columbia v. Lawrence, 1 Peters 578.

      Loucks, for the appellant.
    The notice to the endorser was insufficient. The end and aim of post office establishments is the transmission of letters and papers from one section of the country to another. The law uses the post office solely as a means of conveyance, and has never adopted it as a depository of papers where persons may, or may not call for them, as they please. Vide Story on Promissory Notes, p. 375 (in notis}, Laporte v. Landry, 5 Mart. N. S. 360. Ireland v. Kipp, 10 John. R. 490. S. C. 11 John. R. 231. Louisiana State Bank v. Rowel, 18 Mart. 506. The Supreme Court, in the case of Laportev. Landry, 5 Mart. N. S. 360, say, that “where notice cannot be. conveyed by mail, it is idle to put it into a post office, which is not a legal place of deposit for notices.” And Thompson (on Bills, ch. 6, §4, p.475 — 477,2d. edit.) says: “ If it is necessary to send notices by a special message, as where the party receiving it lives out of the course of the regular post, the expenses of such notice will be allowed, &c.”
    C?, S. Lacey, on the same side.
    Whenever the endorser lives in the same placb where the demand is made, the notice to the drawer or endorser of a note, must be served personally. Notes to Story on Promissory Notes, §374.
    The same rule governs, where the party resides a few miles from town, and there is no post office nearer than the one in which the notice is deposited. In this case, notice must be served pei'sonally, or left at the place of doing business. Ireland v. Kipp, 10 J. R. 490. Chitty on Bills, 9 American Edition, §475, b. and cases there cited. Story on Promissory Notes, § 374. 5 Mart. N. S. p. 359.
    The statute of 1827 does not alter the law merchant, in relation to the manner of giving notice of protest; but simply introduce a new mode of proof of service of notice. 8 La. 171. 15 La. 54. 6 Rob. 500. 11 Rob. 467-8. Carmena v. Doherty, 7 Rob. 87.
   The judgment of the court was pronounced by

Slidell, J.

The defendant is sued as endorser of a promissory note, and the ease turns solely on the question of notice. The note was dated and payable at Baton Rouge. The notice for the defendant was deposited by the notary, on the day of protest, in the post office at Baton Rouge, addressed to the defendant, at West Baton Rouge. It is proved that the defendant resides in the parish ofWest Baton Rouge. A witness who has been in the defendant’s employ nine years, as his overseer and in other capacities, says that “ the Baton Rouge post office is the one at which the defendant is in the habit of receiving his letters ; that he has a box there ; that when letters are directed to McCalop, West Baton Rouge, they are received from the office in Baton Rouge ; that this has always been the custom, but does not know whether or not it is an arrangement.”

We consider this proof of notice as sufficient. We have already considered this subject in the case of Hepburn v. Ratliff, ante p. 331, and have there referred .to the opinions of the Supreme Court of the United States in the cases of the Bank of Columbia, 1 Peters, 582, and of the Bank of the United States, 2 Peters’ 551. In the former case, 1 Peters, 582, the same points were presented by counsel as are now urged, and some of the same authorities cited. It Was then, as now, urged by counsel, that post offices are places from which letters are to be forwarded, and not places alf which letters are to be left, when not intended to bo conveyed from them; and it was also urged that the expense of sending a special messenger could be' recovered of the party to whom he is sent. That case was elaborately considered, and the rule then settled seems to us a reasonable one, and founded in considerations of general convenience and the interests of commerce. Judgment affirmed*


author: Éustis, C. J.*

text:
    New Orleans and Carrollton Railroad Company v. Patton et al.
    decisions in Hepburn v. Ratliff, ante p. 331, aid Bird v. ílcC'alop, ante p. 353, affirmed;
    Appeal from the District Court of Carroll; Curry, J.

      Benjamin' and Micou, for the plaintiffs. Stacy and Sparrow, for the defendants-.
   The judgment of the court was pronounced by

Éustis, C. J.*

This casé'turhs upon the'rules laid down by this Court in the cases of Hepburn et al. v. Ratliff et al. ante p. 331, and Bird v. McCalop, ante p. 353, recently decided. The judgment is, therefore,- affirmed, with, costs.


author: Eusl'is, C. J.

text:
    New Orleans and Carrollton Railroad and Banking Company v. Patton et al.
    Where no issue'has been joined, nor judgment by default taken, ncf judgment can be rendered against the defendant.
    Appeal frota’the District Court of Carroll", Curry, J*

      Benjamín and Micou, for the plaintiffs. Stacy and Sparrow, for the appellants.
   The judgment of the court was pronounced by

Eusl'is, C. J.

In this case there was no issue joined nor judgment by default taken, and the court erred in rendering judgment against the defendants.

The judgment of the District Court is therefore reversed, and the case remanded for further proceedings; the costs of the appeal and those of the court incurred after the service of the petition and citation on the defendants, to b'e paid by the plaintiffs and appellees.

      Slidell, J., being interested, recused himself, and did not sit on the trial of these cases,


author: SiiiDEiii., J.

text:
    Thomas v. Marsh.
    Where a note payable at a bank is held by the bank itself, no formal demand of payment Is necessary during banking hours. The maker, having promised to make payment at the bank, it is his duty to be there within the usual banking hours. After these hours, itis time enough to deliver the note for protest.
    Where the cashier of a bank, which is the holder of a note, delivers it to a notary for the purpose of being protested, it is not necessary that the notary should state in his protest, that he exhibited the note to the cashier at the timo of demanding payment. The object of presentment and exhibition being that the debtor may know that he is paying to a party entitled to receive, and that the note is ready to be delivered to him on payment, the exhibition would be unnecessary in such a case, the cashier having himself handed the note to the notary.
    The declaration of an endorser that he had received notice of the protest of the note, and that it would be necessary to make arrangements to pay it, unaccompanied with any complaint as to informality, will be taken as to an admission of his liability founded upon seasonable notice.
    A notice of protest received through an irregular channel, if itreach the party as soon as ho could have received it by the regular mode of transmission, is binding.
    APPEAL from the District Court of St. Martin, Boyce, J. The facts of this case are stated in the opinion of the court, infra. The defendant appealed from the judgment below, which was against him.

      T. H. Lewis, for the plaintiff.
    No specific form of words is required in making a demand of payment of a note, but any phrase used which shows, substantially, a call for payment of the notes, is sufficient. 5 Mart. N. S. 513. 6 La. 730. 16 La. 311. 4 lb. 462. Chitty on Bills, Springfield edition of 1836, pp. 421, 422. The cashier of the bank, being the holder of these notes, and no person appearing at the bank to pay them, during banking hours, on the days they were payable, and there being no funds of the drawers in bank to pay them, and he having no right to protest them until the banking hours had elapsed, no formal demand of payment was necessary. 3 Kent’s Com. 97, 98. 11 Wheat. Rep. 176. 2 Peter’s Rep. 549. 2 H. Black. R. 510,11. Demand, at the place of payment, on the day of maturity, after banking hours, is sufficient — at all events, it is good against the drawer of notes. 3 Mart. N. S. 428 to 431. Chitty on Bills, 424.
    The testimony of John F. Miller, taken without objection, shows that Marsh actually received notice of these protests, and promised to pay the notes. Foreman v. Wikoff, 16 La. p. 23.

      W. L. Brent and Magill, for the appellant.
    There was no sufficient presentment or demand of payment, nor proof that the notary had the notes with him at the time of the alleged demand. 3 Mart. N. S. 427. 12 La. 472. 13 La. 343. 15 La. 244, 312. 10 Rob. 498. 3 Kent’s Com. 95, note a. 6 Eng. Com. Law Rep. 53. Presentment and demand should have been made during the business hours of the bank. 3 Kent’s Com. ed. 1832, p. 102. Petersdorf, Sup. 194. 7 East. 385. 13 lb. 469. 14 lb. 504. 1 Maulé & Selwyn, 28. 6 Esp. 17 Eng. Com. Law, 141. 15 La. 223. 10 Rob. 470. As to the insufficiency of the direction of the notices, see 16 La. 20, 310. 3. Rob. 164. 11 Rob. 492. There is no proof that the defendant was aware of his discharge, at the time of his declaration that it was necessary to make arrangements for the payment of the notes; without such evidence, he cannot be bound. 8 Mart. 148. 4Ib..N. S. 125. 5 1b. N. S. 360. 2 La. 318. 11 La. 17. 12 La. 465, 468. 13 La. 421, 431. 16 La. 315, 318. 1 Rob. 572. 2 Rob. 158. 10 Rob. 40, 62. Story on Bills, 320. 2 Kent’s Com. 113.
   The judgment of the court was pronounced by

SiiiDEiii., J.

AH the notes upon which this suit is brought were payable at the office of discount and deposit of the Union Bank of Louisiana, at St. M&vtinsville. Two of them were drawn, the other two endorsed, by the defendant.

We will first consider the defence set up against the claim upon the notes, erf which the defendant was maker. It is that there was no presentment or demand of the notes at the place of payment specified in them; and that, if such demand-or presentment was made, it was not until the bank was closed, and that it should have been made during the business hours of the bank. The testimony consists of the statements of the cashier, who was examined as a witness in the cause, and of the notarial-certificates of protest. By the former it appears that Dumartrait handed the notes to the notary after banking hours. By the latter, that the notary was called upon by Dumartrait, as cashier- of the bank, on the respective days of maturity, to protest the notes; that accordingly, on those days respectively, as his protest sets forth, upon said request and in virtue of tho original note, of which copy is annexed, he went to the bank to-demand of the maker its payment, where being and applying, to the cashier, the cashier informed him that Marsh was not there, and had not, nor had any one for him, deposited in the bank, nor left in his hands, the money to pay tho notes, whereupon he protested, &c.' •

The objections raised upon this showing are, that the notes were not actually presented to the cashier by the notary at the time of making the demand, and-also, as already stated, that, at the time of the demand, the bank hour had-passed. These objections are not tenable. The note being deposited in the bank for collection, the bank, as agent, was holder of the note. Where a note is made payable in bank, it is not necessary to make the demand elsewhere.The maker promises that he will make payment there. It is his duty to be at the bank within the usual bank hours, and when the note is held by the bank-itself, no formal demand is necessary to be made during those hours. When they have passed, then it is time enough to deliver it for protest, as was done in this case. As the cashier himself handed the notes to the notary, for the pur-pose of pro testing them, he knew they were in the notary’s hands; and the omission of the notary to state in his protest that he exhibited the notes to the cashier, seems to us, under the circumstances, immaterial; for the object of presentment and exhibition of the note Itself, is, that the maker may know that he is paying to a party entitled to receive, and that it be ready to be delivered up to him on payment. The present case, as to the question of presentment, is-not distinguishable from the case of Carneal v. Bank of the United States, 2 Peter’s, 549. See also 13 Pick. 469.

Our next inquiry is as to the notes upon which Marsh is sued as endorser. Plere also the defence is set up,-that there was not a due demand of payment. The facts as to the presentment of the, endorsed notes are the same as stated respecting those of which the defendant was maker, and in law exhibit a demand and default sufficient to charge the endorser. In the case just cited Carneal was sued as endorser.

But it is said that the defendant was not duly notified of- protest. The notices of the respective protests were put into the post office at St. Martinsville, one addressed to Jonas Marsh, New Iberia; the other to Jonas Marsh, parish of St. Martin. It appears from the testimony that Marsh lived from one and a half to two miles nearer to the New Iberia post office, than to that of St. Martinsville. The objection raised by counsel is, that the notices should have been addressed to New Iberia, in the parish of St. Martin. The objection is not applicable to one of the notices; as to the oilier, theró is evidence in the record which counteracts tho objection, if otherwise tenable. Miller, a party to all those notes, and whoso testimony was received without objection, testifies that, after the protest of the notes, he received notices of protest, and that Marsh told him he also received the notices, and said it would be necessary to make arrangements to pay them. Authorities have been cited by the defendant to the offeetthat, to make a waiver obligatory upon the party making it, it is indispensable that it should be made with a full knowledge of all the facts; that is, with a full knowledge that there has been a want of due notice of the dishonor of the note. Such is undoubtedly the rule; but it is not apposite to the present case. The evidence goes, not to establish a waiver, but to prove that the defendant had received due notice. The declaration of the defendant that he had received notice, and that it would be necessary to make arrangements to .pay the notes, unaccompanied by any complaint as to informality, may be taken .as an admission of his liability founded upon seasonable notice. There could be no ignorance on his part how and when the notice reached him; and a notice received through an irregular channel, if it reach the party as soon as he could have received it by the regular mode of transmission, is equally binding. Chitty, 504. Story, § 338. Under the admission of the defendant, coupled with the -consideration that Marsh lived in the parish of St. Martin, and that the post offices of New Iberia and St. Martinsville were both in that parish, it is not unreasonable-to suppose that he -may have got the letter at the.St. Martinsville post office as soon as it could have reached him through that of New Iberia, or that the letter, being addressed generally to the parish of St. Martin, may have been transmitted by mail to New Iberia. In the absence of the admission, no such presumptions would bo permitted ; but with it they are fair subjects of inference, for the unqualified acenowledgment of liability under a full knowledge .of the facts, is inconsistent with the idea that, under the facts so known to him, he was discharged. Judgment affirmed.


text:
    O’Brien v. Police Jury of Concordia.
    One who alleges that he has a joint interest with the plaintiff in a contract between the latter and the defendants, and that he furnished money and labor for its execution and is entitled to one-half of the contract price, cannot intervene in an action on the contract, .in.stitntedby the plaintiffto recover the price of the work done in pursuance of it. Theintervenor, not being a party to the contract, has no more claim upon the amount due by defendants than any other creditor, and the obligation of the defendants cannot be divided against their consent.
    .One who has made a levée, under an adjudication by the inspector of roads and levees under the provisions of the act of 26 March, 1842, relative to roads and levees in the parish of Concordia, in case of the land not selling for the whole amount of the adjudication and the insolvency of the owner, may recover from the parish any balance due.
    Appeal from the District Court of Concordia, Curry, J.

      T. P. Farrar, for the appellant.
    The intervention should have been dismissed. C. P. 389. 1 La. 431. 7 La. 196. There should have been judgment for the plaintiff. See the case of Croisetv. Police Jury of Points Coupee, 1 La. 110. Morgan v. Same Police Jnry, 11 La. 162. Justinian, Juris pracepta, lib. 1, tit. 1, § 3. Code of Pract. 14.

      Sparrow, for the intervenor. Poindexter, lor, .the defendants.
   The judgment of the court was pronounced by

Rost, J.

The making of a Ievée was adjudicated to the plaintiff by theinspecter of i'oads andlevées of one of the districts of the parish of Concordia, 1 . ; . , under the act of 1842, applying specially to the roads and levees of that parish. He built the Ievée, according to the terms of the adjudication, and it was duly accepted by the inspector. The plaintiff subsequently proceeded in rem for the amount of the adjudication, and the land upon which the Ievée was erected did not sell for an amount sufficient to pay him. He now claims from the police jury the amount unpaid.

The defendants contend that the act of 1842 is of a local nature, and gives no right to the contractor to proceed against the parish; that he can only proceed against the owner of the land personally, or, in case the owner does not reside in the parish, against the land itself.

After issue joined, Richard Hawaiian intervened, alleging that he was to have a joint interest in the contract made between the plaintiff and the defendants, and to unite with the plaintiff in performing the said contract; that he did so, and furnished money and labor, and was to receive one-half of the amount agreed upon; that the plaintiff refuses to allow his demand; and that he, the intervenor, claims one-half of the sum due by the defendants.

The plaintiff moved to dismiss the intex-vention, on the ground that the intex-venor had not made out a case entitling him to that mode of relief. The motion was overruled, and the plaintiff excepted. On the merits, the court below gave judgment in favor of the defondants, and both the plaintiff and the intervenor appealed.

The petition of intervention should have been dismissed. The intervenor was not a party to the contract, and has no more claim upon the fund in the hands of the defendants than any other «'editor of the plaintiff. By his own allegations, as well as by his evidence, it appeax-s that there is an unsettled account between him and the plaintiff. The defendants have nothing to do with that account, and their obligation cannot be divided against their consent.

In relation to the plaintiff, we think there is error in the judgment appealed from. The defendants are responsible, unless their responsibility had been waived in the contract of adjudication. The plaintiff proceeded against the land, and it is admitted that the former ownex-s were insolvent at the time the sale was made. The admission that the land was then worth more than the plaintiff’s claim, could not, in any case, prejudice his right. But it is further admitted, that there was a controversy about the ownership of it. This uncertainty as to the title was no doubt the cause of the low price at which it was adjudicated ; and if it be true that it sold below its value, the defendants are to blame for suffering it, not the plaintiff, who probably required the greater part of the amount due, to pay for this work. The Ievée was not ordered to be made for the special benefit of the owner of the land on which it stands, but for the general benefit of the parish; and, in default of other means, the parish must pay for it.

It is therefore ordered that the judgment be revei'sed, and the intervention dismissed, with costs in both courts. It is further ox'dered, that the plaintiff recover from the defendants the sum of 35818 34, with legal interest from the 5th October, 1843, till paid, and costs in both courts.


text:
    Nolan v. Babin.
    Whore judgments for sums of money are enjoined the measure of damages is established by the third section of the stat. of 25 March, 1831; but where the judgment is for the'delivery of specific property, the amount of damages is a question of fact, to bo ascertained in an action on the injunction bond.
    Appeal from the District Court of West Baton Rouge, Burle, J.

      Brunot, for the plaintiff. W. B. Robertson, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

There is no error in the judgment of the court below, refusing to assess damages on the dissolution of an injunction taken to restrain the delivery of property. Where judgments for sums of money are enjoined, the rule of damages is established by the statute under which the plaintiff claims. But when the judgment enjoined is for the delivery of property, as in the present case, the measure of damages is a question of fact, to be ascertained in an action upon the injunction bond. Judgment affirmed.


author: Kino, J.

text:
    Pierse v. Amonett et al.
    Oho with whom slaves seized under an attachment are left, in virtue of an agreomcntbetween the parties that he shall have control over them till the termination of the action, with authority to hire or otherwise employ them, has no such use of the slaves as is contemplated by art. 47 of the Code of Practice; and, being the mere depositary of the slaves pending the attachment, possessing in the namo of another, he cannot maintain a possessory action for their recovery. C. P. 48.
    Appeal from the District Court of Madison, Selby, J.

      Pierse, pro so. Thomas and Snyder, for the appellants. Amonett, one of the appellants) appeared on the same side.
   The judgment of the court was pronounced by

Kino, J.

This is a possessory action instituted by the plaintiff to recover the possession of two slaves, of which he alleges he has been forcibly and frauduently dispossessed by the defendants. The defendants deny that the plaintiff' has everNhad sueh possession of the slaves in controversy, as authorizes him to maintain this action, They further aver that they are the owners of the slaves, under a sheriff’s sale. A judgment was rendered in favor of the plaintiff in the court below, from which the defendants have appealed.

It appears, from the evidence, that the slaves in question belonged to McKee, and were attached at the suit of E. T. Powell. Pierse, the plaintiff, and J. 1. Amonett, one of the defendants, became the sureties of the defendant in attachment in a bond to release the slaves, in consequence of which the following agreement was entered into:

In the case of E. T. Poivell v. G. B. McKee, Ninth District Court, Parish of Madison, Louisiana. In this case, the boys attached, Asbury and Sam, have sen left with Allen Pierse, and he has full control over them till the suit is terminated, or some amicable arrangement made, and has authority to hire them, and do the best he can with them.

“23d January, 1846. .(Signed.) Agent for McKee,

■“ Attest “ W. S. Thompson.

“James I. Amonett. “Edley T. Powell.”

Under a judgment rendered in the State of Tennessee .against McKee, and made executory in this State, .the slaves were seized and sold, during the temporary absence of the plaintiff, Pierse, from .the State, .and purchased by the defendants.

To the plaintiff’s right of action, it is objected that he has not .claimed as owner, and was not in possession for twelve months previous to the institution of this suit; to which he answers that, he is entitled to the use of the. slaves, and was fraudulently .dispossessed.

The term “ use” which .occurs in the 47th article of the Code of Practice, is there employed in its technical-sense, to designate one of the titles in virtue of which the possessory action may be maintained. It is .clear that the agreement under which the plaintiff claims, invested him with no such title. He was the mere depositary of the slaves pending of the proceedings in attachment, possessed in the name of another, and was not .entitled to the possessory action. C. P. art. 48.

It is therefore ordered, that the judgment of the District Court be reversed, and that there be judgment for the defendants, the appellee paying the costs of this appeal.


author: Eustis, C. J.

text:
    Nugent v. Hickey.
    To bind another by a note the power must bo express and special.
    Whcro from the plaintiff’s own books a credit appears to have been given exclusively to a particular individual, ho alone is liable for the debt.
    Where the proceeds of .crops received and sold by factors were more than sufficient to pay for any supplies or advances made by them for the use of a plantation, but, instead of being applied to the extinguishment of those debts, they were appropriated to the payment of private debts of an agent of the owner of the plantation, the owner cannot be made responsible by the factors, for such supplies or advances.
    Appeal from the District Court of East Baton Rouge, Burle, J.

      Elam, for the appellant,
    cited Story on Agency, ss. 61, 93, 95, 127, 25G> 257. Civ. Code, art. 1960. 17 La. 353.

      T. G. Morgan, for the defendant.

      Walsh had no authority to bind the defendant by note. Story on Agency, ss. 62, 65, 68, 69, and notes 2,72, 76. Civ. Code, art. 2966.
   The judgment of the court was pronounced by

Eustis, C. J.

This case involves the question of the liability of the defendant for a debt of $2,332 12¿, due to the partnership of Nugent, Turpin Sf Walt, doing business in New Orleans.

It is charged in the petition that the defendant, being the owner of the Parc Perdu plantation, in the parish of St. Martin, constituted S. W. Walsh his agent for the management of it, with full power for the purchase of stock, or the necessary articles for the use of the plantation, and for the settlement of accounts in relation to the same'; that Walsh remained on the plantation for several years,- and tinder said power' contracted the debt sued on with- Nugent, Turpin Sf Watt, and closed the account by a note in their favor, on the 11th July, 1840, which note is held by the plaintiff, and is the subject of the present suit. The note is signed by S. W. Walsh, agent for P. Hickey, for Parc Perdu plantation.

The power o-f attorney under which Walsh acted is in the words before mentioned, and also1 directs that in all cases in which his, Hickey’s, interest may be-concerned, in relation to the plantation, Walsh should act for him and in his name, as though he were present. There was- no plantation account ke¡ t by Nugent, Turpin Sy Watt, the factors. The account in which Hickey is sought to be made liable is against Simon W. Walsh alone, in which supplies for the' plantation, and money advanced on account to Walsh, are charged to him. No-liability attached to Hickey by reason of the note given in his name, for Walsh had no authority to bind him in that form; and from the factors’ own accounts, it appears that the credit was given exclusively to Walsh. There is one' ground of defence taken by the defendant, which is conclusive. It appears that the proceeds of the crops of the plantation- received by Nugent, Turpin Sy Watt, and sold by them, were moro than sufficient to pay the debts contracted for the plantation. It is evident the factors were bound to apply the proceeds- of the crops to the extinguishment of the plantation debts, and had no right to pay the agent’s private debts with them, and leave the plantation debts unprovided for. In other words, Hickey’s funds-ought to have gone to the payment of his debts; and, on the shewing of the plaintiff, and assuming that the factors knew the authority under which Walsh managed the plantation, there is no cause of action against the defendant. Judgment affirmed.