author: Eustis, C. J.

text:
    Chapman, Assignee v. The New Orleans Gas Light and Banking Company et al.
    Where certain shares of the stock of a hank were attached,- and/on a judgment rendered in favor of the plaintiff in attachment, wore sold tinder execution, an iniervenor in the attachment suit, who claimed tho stock, and was subsequently adjudged to he the owner of it by a superior tribunal, on a writ of error sued out by him, but which did not suspend execution, cannot recover against the bank, the value of tho stock, with profits, dividends» &c., for permitting the marshal to transfer the stock to tho parchas or of the judicial sale, and for refusing to transfer the shares lo him on the ground of their sale and transfer to the the purchasers at the marshal’s sale; nor will the fact that the stock was sold without appraisement, at a time when an appraisement was not considered necessary, though subsequently adjudged to be so, subject them to liability, there having been no neglect on their part, and they being justified in believing that' the public officer acted according ftt" his duty.-
    Whatever effect the want of appraisement may have’on a sale of moveable property under*' execution between the parties to the sale,'third persons cannot consider such a sale as null on that account.
    from the Third District Court of New' Orleans, Kennedy, I.

      Lockett, Goold, and Roselius, for the appellant.

      L. Janin, for the defendant’!

      Chymes, for the parties cited in warranty.
   The judgment of the court (Slidell, f. not sitting, being a stockholder in bneof tho'banks,)' was pronounced by

Eustis, C. J.

On the 4th of May, 1841, a suit was instituted in the laté Commercial Court of New Orleans, by James W. Zacharie & Co. against Francis C. Black, in which certain shares of the stock of the Gas Light and Banking Company and of the Carrollton Railroad and Banking Company, were attached. Black appeared in the suit, and on his application it was removed from the Commercial Court to the Circuit Court of the United States for this district. 'Black pleaded that, prior to the attachment, he had assigned the stocks attached by a deed of trust, for the benefit of all his creditors, to James U. Chapman of South Carolina, who is the plaintiff in the present suit! After the removal of the suit by attachment, Chapman filed a petition of intervention, and became a party to it-^ iii order to protect the interests secured under the deed of trust. The plea of Black, the defendant, the object of which was to release the stocks from the effect of the writ of attachment, was overruled by the court on the 13th of' January, 1842, and iii March of that year a verdict was rendered in favor of Zacha— ríe Sf Co. against Black, for the sum of $8,000’, and' judgment rendered on it accordingly. From this judgment Black took his writ of error to the Supreme Court of the United States, but gave a bond for costs only. Chapman’s petition was dismissed By the same judgment, and he also took his writ’ of error, which was allowed as a supersedeas ; but the judge afterwards rescinded that part of his order which gave effect to the writ of error as a supersedeas, on the ground of the insufficiency of the bond given by Chapman. The Supremo Court of the United States reversed'the judgment of the Circuit Court, and remanded the case with directions to award a venire facias de novo, on the ground that the Circuit Court erred in ruling that there was a sufficient debt established by'tlie evidence to maintain the attachment, and also in directing the jury that the delivery of the stock was not complete, unless the transfer was entered upon the books of the banks. The case is reported in 3d Howard, 509, and was decided in 1845.

On the 11th of April, 1842, the plaintiffs, Zacharie Co., took out an execution on the judgment against Black, and the stocks before mentioned were seized under it, and after due advertizements were sold by the marshal. At this sale Jules Lavergne became the purchaser of one hundred shares, G. Didier of ninety, James W. Zacharie of three hundred and ton shares of the Gas Bank stock, and James W. Zacharie 8f Co. of the six hundred shares of the Carrollton Bank stock, all those stocks having been attached in the suit, and claimed in the petition of intervention of the present plaintiff, Chapman.

The present suits, which have been consolidated and argued together, are instituted by Chapman against the two banks, under the assignment from Black alleged to have been made previous to the attachment suit, for the purpose of compelling the transfer and delivery of the stocks thus attached and sold, or, on default thereof, for the recovery of their value, with the profits, dividends, &c.

The defendants sat up the marshal’-s sale under -those proceedings as a defence _ to the action, and call the purchasers, and the late marshal of the United States in warranty, to defend the suit, and ask such judgment against them as may be rendered against tire defendants. The parties called in warranty pleaded the general issue, with an averment that that they are not bound to indemnify the defendants. The District Court rendered judgment in favor of -the defendants, and the plaintiff has appealed.

On the 22d of March, -1847, the case of Zacharie Sf Co. v. Blach having been remanded to .the Circuit Court, judgment was rendered in favor of the defendant as well as of the intervenor against the plaintiff, and these suits wore instituted in April following. The district judge decided the case on the effect he gave to the judgment of the Circuit Court, which was afterwards reversed, as we have seen, on a writ of error. I-Ie considered that by -that j-udgment -the -right of Zacharie ¿y Co. .to attach the stock standing in Black’s name-on the .books of the banks, .and Chapwtan’s title to them under the assignment, were directly adjudicated upon; that, if that judgment had never been appealed from -nor reversed, the validity of the marshal’s sale could mot be questioned; and that, in that respect, there is no difference between the consequences of no appeal having been taken, and one having been taken which did not operate as a supersedeas, as in the present case.

It appears to ns that the only question to be examined under the issue made between the plaintiff' and the defendant is, as to the responsibility o.f the latter for their acts as stated in the petition. They refused to deliver .and transfer to the plaintiff the stocks assigned to Rim by Black,'on the grounds that they were attached, and were afterwards sold .under execution; the validity o tírese grounds must, therefore, he considered.

The Supreme Court of the United States determined that the stocks were not liable to the attachment of Zacharie 8f Co., but passed, by the assignment, -to-the plaintiff in this suit—not, however, with respect to tho legal title but the oquitable title, which became .thereby vested in the assignee, so as to bind the attaching creditors as well as the banks, as soon as .they had notice thereof, and -that the attaching creditors in this case had notice previous .to the issuing of the writ of attachment.

In’relation to .the non-delivery, or refusal .of .transfer on .the books of the banks, previous to the service of .the attachment, which was made on the 4th of May, 1841, each of the banks acted on reasons applying to itself alone.

The Carrollton Bank hold the stock in pledge for a stack note of Blade, and until that note was paid .the transfer of the stock could not be insisted on. The refusal of the Gas Bank to transfer the stock is given in the letter of its cashier., of date the 20th of April, 1841. The power of attorney from Black to transfer the Gas Bank stock was in favor .of the cashier, but he, not considering it sufficiently formal, returned it, with a request that another might be sent in conformity with tho conditions lie suggested. At all events, he refused to act as the attorney of Black in transferring the stock, and gave immediate notice of his refusal to the present plaintiff. He was not bound to accept the mandate, and no responsibility can attach to the bank for hi's refusal to act under it. Nor do we find any act amounting to a default on the part of the Gas Bank, in refusing .to transfer and deliver the stock to the plaintiff', up -to the time of the attachment; and after that, we think, the attachment was a sufficient reason for its non-delivery -and refusal to transfer. Indeed, it seems, from the view the Supreme Court °f tbe United States took of the matter, that the transfer or non-,transfer of the stocks on the books of the banks precludes no right whatever, inasmuch as it was ° ' the equitable interest in them, and not the apparent title on .the books, which constitutes fhe ownership. The case does not appear to have b.eep prepared with a yiey to any responsibility as to mere delay on the part of the banks in relation to the transfer and delivery; the effect of their acts touching the sale under execution remains only to be considered. In relation to that ground of responsibility ¿the doings of each are similar, and can be examined together.

We have seen that Black was a party defendant in the Circuit Coprf of the United States, and that Cliapman, the plaintiff in this suit, was a parfy by his intervention.

The petition of intervention set up the ownership of the stocks, and ¡averred that .they wer,e wrongfully levied upon by the attachment, and prayed ip ponclupion .that it be dismissed, and .the petitioner decreed to be the owner thereof under ,tho assignment from Black, &c. The Circuit Court decreed that judgment b.e entered in favor of Zaeharie Sf Cq., plaintiffs, against the defendant, Francis C. Black, for .the sum of $8,000, with costs of suit, and that the petition of intervention of fames Chapman, claiming the stocks of fhe Carrollton and Gas Banks attached in this case, be dismissed at his costs. On tjiis judgment a fieri, facia.s was issued, and the stocks attached were levied pp.on and .sold. After the sale, the marshal transferred the stop,lm to the purchasers on th,e books of the banks.

It is urged by fhe counsel for the plaintiff that this judgment decreed no privilege on the stocks attached. This is true; but Black having appeared in the Circuit Court, the judgment against him was personal, and a fierj, facias was lawfully issued op it. The claim of Chapman having b.een determined on in favor of the attaching creditors, the stocks were necessarily subject to be seized as Black’s property and sold as such, unless the execution was stayed. Tho action of the banks appeals to be confined to their permission to the marshal to transfer the sto.cks fo the ¡several purchasers on their bppks. The subsequent reversal of the judgment of the Circuit Court does not affect their responsibility, which seems to be confined .to this act. Under the circjimstanc.ep, we do not ,s.ee hpw the banks co.uld hav.e acted otherwise. True they had notice of the .antagonist claims of Chapman? but those claims had been adjudicated upon, and he had suffered execution to isspe, when he could have stayed it by giving security. He thought proper n.of to do so, but to leave tho propess of the court to its result. We do not think the defendants were bound to impede,or arrest it, and in authorizing the public officer to do his duty in carrying into effect a judicial sale by having the use of thoir transfer book for the purpose of vesting the legal title in the purchasers of tho stocks, wo think they were justified. They were not bound to assume the responsibility .towards the purchasers of retarding or defeating their purchase. . But it is contended by counsel that the sale under execution is a nullity, in consequence of their having been no appraisement made of the stocks, and tho cases of Phelps v. Rightor, 9 Rob. 531, and Stockton v. Stanbrough, 3 Ann. 390, are referred to in support of that opinion.

That appraisement of moveable property was necessary to the validity of a sale tinder execution, was first determined in the .case of Phelps v. Rightor, in 1845. It is admitted by counsel that until this decision, sheriffs did not consider it necessary to appraise moveable properly, and noyer appraised it; such at least was -flae uniform practice in New Orleans. Whatever effect the want of appraisement may have on a sale of moveable property, under execution between the parties to the sale, yet third persons cannot consider a sale of moveables as null on .that account.

When the stocks were advertized for sale the plaintiff, by his attorney, gave notice to the banks of his prosecution of his writ of error, but of nothing else, .except of his persisting in his claims under his assignment. Had, the attorneys applied to the Circuit Court to arrest the proceedings for want of an appraisement previous to the sale, there is reason to believe that the sale would have been arrested and an appraisement made; but it is' obvious that neither of the ¡parties thought it material. We do not think that, as matters now stand, to wit, the sale of the stocks left entire and no attempt made by the plaintiff' to disturb it, or to have any recourse whatever against the purchasers, the banks can be held liable for permitting the transfer to be made by the marshal, although the sale was made without .any appraisement.' They were justified in believing tba'j ,the public officer acted (according to his duty, and it was a fair presumption omnia rite acia fuisse. Besides, by the admission, there was no neglect on their part, .and they merely gave ¡effect to the ac,ts of ,a public officer, in the forms in which they had been usually vested.

But we are asked ,tp give judgment agajnst the purchasers of the stock; anc{ it is said that the stocks purchased by Zacharie and Zacharie Sf Co. are still in .their names on the books of the banks. This suit is not against them; it is against the banks on the issues we have stated. Zacharie <§• Co. are cited in warranty to defend the banks in this suit, but the jilaintiff has prayed for no judgment .against them. Why the sales should be permitted to stand on the case presented by the plaintiff, is a matter resting exclusively with him. If the price be an adequate one, it is his interest that they sho.uld remain in force; but, in the mean time, to make the banks liable to him for ¡the stocks, .or their value, would, it seems to us, be the height of injustice. Judgment affirmed.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Pattison et al. v. Edmonston et al.
    yyiicre after a judgment lias been rendered, but before it is signed, defendant purchase a judgment rendered against plaintiff for a larger amount, and takes a rule on the latter to show cause why a new trial should not he granted, and why, in ease of its refusal, tho judgment should not be declared to be extinguished, the rule should bo made absolute and the judgment declared to bo extinguished by compensation. C. G. 2203. Per Curiam: Plaintiff would have been entitled to an injunction, and no reason has boon suggested why affect should not be given to the plea of compensation on the trial of the rule, when the parties wore before (bo court with their evidence.
    from the Fifth Pistrict Court of New Orleans, Buchanan, J.

      J. and H. H. Straivbridge, for the appellants.

      Murphy, for the defendants.
   The judgment of the court was pronounced by

King, J.

Carter <S¡- Co. having obtained a judgment against the present plaintiffs, issued a fieri facias, .the execution of vyljich the plaintiffs enjoined, alleging that the judgment was illegally rendered, for various reasons stated in their petition. The injunction was, on a trial conducted in the absence of the plaintiff’s counsel, dissolved with claineges. The plaintiffs thereupon took a rule on the defondants ¡to show .cause why a second -trial should not be granted, and further to show cause, in the event ,of the said trial -being refused, why the judgment in favor of Carter 4' Co. should not be declared satisfied ¡and extinguished by compensation, the plaintiffs having become the owners of a judgment against Carter 4- Co. for a larger amount. The rule was discharged, without prejudice to the right of the plaintiffs to sue out an injunction for any offset which they might have to oppose to the judgment of Carter 4‘ Co. against them. The plaintiffs have appealed.

We think that the judge erred in discharging die rule. As regards the regu-, larityof tho proceedings anterior to the rule, it is unnecessary to express onopinion. The plaintiffs are disposed to waive die alleged irregularities, if they exist, and -to rely on their plea of compensation, which we think ought to have been sustained. Subsequently to the rendition of the judgment in favor of Carter 5f Co. against thorn, they purchased a judgment for a larger amount, rendered in favor of other partios against Carter 4* Co., and die latter were notified of the transfer. From the date of -the notice the parties became mutually indebted, their respective claims were equally liquidated and due, and compensation took place, -the effect of -which wqs to extinguish the judgment of Carter &¡• .Co. G. C. art. 2203.

The plaintiffs would have been entitled to an injunction on this ground, and no reason has been suggested why effect should not have been given to the plea of compensation on the trial of the rule, when the parties were before the court with their evidence, instead of driving the plaintiffs to an injunction to accomplish the same end. It is proper to observe that no objection was made to the proceeding by rule.

The judgment of tho District court upon the rule to show cause why the judgment of Carter 4' Co. against the plaintiffs should not be declared satisfied by compensation is reversed, and it is ordered that the said judgment of Carter 4‘ Co. be satisfied and extinguished by compensation. In other respects tho judgment appealed from is affirmed, the defendants paying the costs of this appeal, and the plaintiffs those of tho costs below, with tho exception of the costs on the rule, which ar.e to be borne by the defendants.


author: Slidell, J.

text:
    Wilson v. Phillips.
    ITo recovery can be had in an action for the price of plaintiff's interest in a tract of land without proof oí delivery of possession, where the price was payable only after delivery of possession, and such delivery was alleged in the petition.
    Parol evidence is inadmissible, in the absence of any allegations of fraud, to contradict or alter a written act of sale.
    from tiro District Court of Madison, Selby, J.

      R. C. Downes and for the

      Phillips, appellant, pro sc.

      Thomas and Snyder, on the same side.
   The judgment of tho court was pronounced by

Slidell, J.

The plaintiff, who claims as tiro assignee of Hall and wife, sues the defendant for the sum of $3,000, upon a contract of sale of their interest in certain lands and the improvements thereon, and for the further sum of $329, for certain moveables alleged to have been sold to the defendant.

The contract with regard to the lands, which is without date, but is signed* by Hall and his wife and by the defendant, declares that they sell, release, and make over to Phillips all their right title and interest in and to a section of land (describing it) on which the vendors reside, formerly belonging to S. C. Phillips, deceased ; that in consideration of such sale Phillips binds himself to pay the vendors “$1,500 on account of improvements made on the said tract of land up to the time when possession shall be delivered to the said Phillips;'” “secondly, that Phillips shall use all proper and reasonable Afforts to obtain a full and indisputable title to said land, and hereby engages to proceed therein to the best of his knowledge and ability, thirdly, that the said Phillips shall on obtaining such title pay over to the parties of the first part the further sum of $1,500“ fourthly, the said Phillips engages to sustain the necessary law expenses, and also those aristng'from tire purchase of certain claims to said land, provided said expenses de not altogether exceed $1,000. Itis further understood and agreed upon that the parties of the first part are hereby bound to execute any further instrument of writing, which may be necessary for the carrying into effect the true intent and meaning of these presents, and for the securing the parties of the second part in the premises; and further, that when, in addition to the above, the claims- of tho heirs of Fanny Wallace, legatee of S. C. Phillips, shall have been obtained by tho party of the second part, the title shall be'deemed complete between the parties to this instrument.”

The instrument appears not to have been executed in duplicate, and’ remained in the possession of the vendors. In Iris petition the plaintiff alleges that tire contract was signed on the 1st December, 1-843, and that Phillips, in* virtue of th« contract, obtained possession of the land an or about the 1st January,. 1844.

The plaintiff’ was bound to prove that possession had been given. This was-essential to his recovery under the contract. The absence of any evidence to that effect is an insuperable barrier to the plaintiff’s present success.

As the contract may be the subject sf future litigation, it is proper to state that we think a portion of the testimony of Nicholson, a subscribing witness, was improperly admitted. This witness stated that he was present at the sale: “That the title of the vendors was considered defective, and the title was supposed to be* in William Henderson. That Hall and his wife told Phillips at the time, of the-defect of the title. That the second $T,500 was to be paid when Phillips obtained Henderson's title. That Henderson was the only person supposed to have-any claim at the time of the sale. That there was supposed, at the time, to be an absent heir, but Phillips was willing to take the title in- Henderson, and risk the claims of the absent heir, who was supposed to be dead, and Phillips sard- at the time when, he obtained Henderson’s title, his, Phillips’ title would be perfect.” If this witness had been called to prove that it was understood and acknowledged by the contracting parties at the time that Henderson was the owner of tire rights of all the heirs, or was himself the sole hen* of Fanny Wallace, legatee of £. C. Phillips, Iris testimony to that effect would have been admissible; but as tho testimony stands it tends to contradict and change the written agreement. Under that agreement the title was to be deemed complete when the defendant should have obtained the claims of all the heirs of Fanny Wallace; but according to the parol testimony the purchaser was to taire the risk of the outstanding claim of an an absent heir.

With regard to the claim of $329 for moveables sold, the evidence is also deiective. It perhaps approaches to proof of an agreement to purchase; but there is no proof of delivery by the vendors-.

Wé’ can bfily account for the verdict of flie jury in favor of the plaintiff, upon the supposition that they acted upon their own knowledge with regal'd to the controversy, beyond the evidence offered at the trial.

It is therefore, decreed that the judgment of the District Court be reversed,-and that there be judgment as in case-of non-suit, the plaintiff paying the costs in-both courfs1.


text:
    Ledoux et al. v. Goza.

      &s a general rule ttetrust reposed in an agent is personal; but this is modified iiy the usages of trade, where’the interest Of the employer and reasonable convenience require the custody of the próperty to be delegated to another.
    When the nature of the’busiuess requires the employment of ai sub-agent, the agent is not' ordinarily responsible for the negligence or misconduct of the latter, if reasonable diligence has been used in the Choice of such sub-agent.
    An agent cannot he made-responsible to his principal for exceeding his'powefs,- where no' injurious consequences are proved to have resulted therefrom to the latter.
    Where a balance has been-struck, and an account rendered by a factor to his principal, which is acquiesced in by the latter, interest may be chal'gcd, subsequently,-on such balance,"¡though formed in part of anterior interest. AKtoy Where the account is ndt acquiesced in.
    from the District Court of Can-oil, Seldy? J.

      Thomas and Snyder, for the plaintiffs.

      Stacy wd Syiarrow, for the appellant.
   The judgment off court was

Slidell, J.

The prieipal subject of controversy in this cause is-a-Ioss upon a quanffty^of cotton, which the-defendant, a planter, consigned to the plaintiffs, his factors. The plaintiffs sold it at nine cents per pound; but, on delivery it was found to be wet and damaged, and the'purchaser refused to keep it. The pressmen, with whom it was deposited by the plaintiffs, paid them- a sum in compromise. The plaintiffs credited this amount in account with defendant, as also the’ nett proceeds of a subsequent sale, at a reduced price. The defendant before-suit, disputed the correctness of plaintiffs account, as presented, only with regard’ to the loss upon the damaged cotton; insisting that the plaintiffs should have-given him an additional credit, over the amount received from the- pressmen, equivalent to the amount of the cotton at nine cents.

We cannot adopt the position assumed by the defendant in his correspondence and by his counsel in argument, that it was immaterial whether the damage arose from the plaintiffs’ negligence, or that of the pressmen. It is in general true that the trust reposed in an agent is personal. But the general rule is, in many cases, modified by the usages of trade, where the interest of the employer and reasonable convenience require the custody of the property to be- delegated to another. Where-the nature of the business requires the employment of a sub-agent, the agent is not ordinarily responsible for the negligence or misconduct of the sub-agent, if he has used reasonable diligence in his choice. Plere it was necessary, and according to the usual course of business, to send the cotton to a press, to be taken care of; and there was not a want of due care on the part of the plaintiffs' in the selection of a depositary, nor subsequent negligence on their part before-the damage was found to be done.

It is fully proved that the cotton arrived at New Orleans in good order. The pressmen contended that it was wet before it arrived at the press and could be housed, to such a degree that they could not house it for fear of spontaneous combustion. The evidence appeal's to authorize that view, and to excuse the omission; but does not excuse the omission of other precautions which it is proved might still have been taken, and would have prevented the damage' from being as great as occurred. Ve assume, therefore, that the pressmen did incur a liability to thejdefendant.

The plaintiffs [have shown no authority to Ulake a compromise witifthe pressmen; and it may be conceded that, in doing so without consulting "their principal, they exceeded their powers, and made themselves answerable toTiim. The law is clear that when an agent violates his obligation to his principal by exceeding his authority, he must indemnify his principal if injurious consequences result. The defendant says: “I^will take the §500 you received from the pressmen; but I hold you for the excess that you ought to have got from them,' and Lhave thrown away by the compromise.” Now, the measure of damages is the injury sustained by the unauthorized act; and this involves the inquiry whether, under the evidence, we can say that the pressmen could have been held liable for a greater amount. Upon comparing the price for which the damaged cotton was sold with the standard of the first sale, assuming the weights of the uninjured bales of the same lot as a fair average, and malting some allowance for a portion of the damage as attributable to inevitable accident byjreason of the Weather during its transit from the levée to the press &c., we fee^bound to adopt the conclusion of the district judge, and hold the compromise not injurious to the principal.

The answer of the defendant sets up usury.

When a balance is struck and an account is rendered by a factor to his principal, and is acquiesced in, there is nothing illegal in charging subsequently interest on such balance of which anterior interest formed a component part.

There is an item of §197 86, charged for interest in the account rendered on the 30th June, 1841. We cannot allow interest upon the whole balance struck on that day, of which that item Was a component part, as the defendant did not acquiesce in that account when rendered to him. In the account sued upon there is a claim of §12 50 as a commission of two and one-half per cent for a cash advance, to which the defendant objects, and which must be disallowed.

We cannot open the account Tendered in May, 1840. Under the evidence the defendant must be considered as having approved that account, and sanctioned the payment made on the day of its rendition, by the transfer to his credit of the balance due by G. W. Goza Co.

It is, therefore, decreed that the judgment of the District Court be reversed, and that the plaintiffs recover of the defendant the sum of §1046 78, with interest on the sum of §310 23 from the 30th June, 1841, until the 14th July, 1841; and on the sum of §348 92, from the 14th July, 1841, to the 22d October, 1841; and on the further sum of §848 92 from the 22d October, 1841, until paid, and costs of this suit in the court below, those of this appeal to be paid by the plaintiffs.


text:
    Connolly et al. v. Autenrieth et al.

      JÍ memorandum in writing, containing the terms of a transaction, drawn up in the presence of all the parties interested, and signed by two of them who incurred the heaviest obligation under it, and delivered to a mutual friend of the parties for the purpose of being recorded, will bo binding without any formal acceptance by parties who, though they did not. sign it, afterwards sued to enforce it.
    from the Fifth District Court of New Orleans, Buchanan, J.-

      Preston, for the plaintiffs.

      Schmidt and Roselius, for the appellants.
   The judgment of the court (Slidell, J. not sitting,) was pronounced by

King, J.

The plaintiffs aver that they, and the defendant Sarah Connolly> are the only heirs of tire late Felix Connolly, deceased, who died possessed of property to a large amount, most of which, they allege, was acquired by the deceased in the name of Sarah Connolly, who had no interest in it at the dates of the several purchases, but who now asserts ownership of the' whole property thus acquired. They aver that Sarah Connolly promised to convey to her mother, one of the plaintiffs, two lots of ground belonging to the succession of the deceased, With the buildings and improvements standing' upon them, and to discharge a mortgage debt with which they were encumbered, amounting to $2,000; that she also admitted that two other lots were devised by Felix Connolly to the minor children of his sister, Mrs. Flliott, and promised to make title in accordance with that disposition of the deceased. They pray that the mother may be decreed to be the owner of the two lots, with the buildings standing upon them, free from encumbrance; that the children of Mrs. Flliott be decreed to bo the owners of the other two lots ; and that a partition be made between the plaintiffs and the defendant, of the remaining property of the deceased.

On the trial, the following agreement was produced:

“In a family meeting of the family of Felix Connolly, deceased, his sister, Sarah, who had been entrusted with the settlement of her deceased brother’s affairs, in order to satisfy the other members of the family, viz: her sister, Mrs. Mary Mitchell, Mrs. Filen Flliott, her brother and her mother, agrees and promises to raise a mortgage of $2,000, now resting on the property known as the homestead, and the house in which her brother Felix died, and to make a title to the same to her mother forever. Her sister, Mrs. Mary Mitchell, agrees and obligates herself to raise a mortgage of $500, on the two-adjoining lots bequeathed to the children of Mrs. Elliott. In witness whereof the two, namely, Sarah'Connolly and Mary Mitchell, have signed this agreement.

“ (Signed) Sarah Connolly,

Mary Mitchell.”

“'Witness, J. J. Mullon, November' 11, 1846.”

The district judge considered, that the agreement Was a compromise, made for the purpose of adjusting all the conflicting claims of the parties relating to the succession of jFelix Connolly, and rendered a judgment intended to give effect to its stipulations, from which the defendant has appealed.

The district judge did not, in our opinion, err. The adverse claims of the parties were the subject of frequent discussions amongst them. A friend of the family interfered with the view of reconciling their differences, and the result of a conference which ensued was the above agreement, which must be viewed as a compromise, in which the plaintiffs relinquished their claims as heirs in consideration of the concessions made by the defendant in favor of her mother, and of the minor children of Mrs. Elliott. In pursuance of this agreement the defendant executed an act of donation to her mother, of the house and lot, previous to the inception of this suit.

It is objected that the agreement was neither signed nor accepted by the par-ties, and has not been considered obligatory by themselves. But it is shown that the parties were all present when the compromise was made, and assented to its terms. It was signed by Sarah Connolly and Mrs. Mitchell, who incurred the heaviest obligations, and was delivered to a mutual friend for the purpose of being recorded. A formal acceptance of the act was not indispensable to give it effect. The parties in whose favor the stipulations were made, so far from considering that they are not obligatory, invoke the aid of the agreement in this suit, and found their claims in part upon it. It is true, however, that while they seek to enforce the stipulations in then- favor, they have disregarded then- own obligation to leave the defendant in the undisturbed possession of the remainder of the property alleged to belong to the deceased.

As we consider that the rights of the parties depend entirely upon the compromise, it is unnecessary to examine the bills of exception taken to other parts of the evidence received or rejected on the trial; or the objections urged to the right of the plaintiffs to claim as heirs of the deceased. The district judge gave a judgment in favor of the children of Mrs. Elliott for §1,500, as, we presume, in lieu of the lots • claimed, which, as we have seen, ' the defendant admits were bequeathed to them. The children were entitled either to the lots, or, if for any cause they could no longer be conveyed, to their value. The reason for this deviation from the terms of the act has not been stated. The plaintiffs, however, have not asked for a change of the decree in this respect, and the defendant does not complain that the judgment is move onerous in this form than if the lots themselves had been awarded.


author: . King, J.

text:
    Same Case—On an Application for a Re-Hearing.
    A -transaction signed by a married woman without the authorization of her husband, if subsequently ratified by her, with the assent of her husband, will he obligatory.
   THE judgment of the court, on an application for a re-hcaring made in this case by the counsel for the appellants, was pronounced (Slidell, J. not sitting,) by

. King, J.

In the opinion heretofore read in this cause we said, that the rights of the parties depended entirely upon the agreement entered into between them on the 11th November, 1846, which we held to be a compromise.

The terms of the agreement leave no doubt as to .the intentions of the -parties. It is admitted that Sarah Connolly stipulated: 1st,-to convey to her mother a piece of property, designated as the homestead, free from a mortgage with which it was then encumbered. 2dly, that she admitted that an adjoining lot of ground, title to which then stood in her name, had been devised by her deceased brother, Felix Connolly, to the childron of Mrs. Elliott, and became bound to convey title to them, if the act be obligatory. These arc the two obligations which she incurred, in consideration of which the remaining heirs of the deceased abandoned the succession of F. Connolly in her favor.,

It is contended, in the application for re-hearing that, in giving effect to'this instrument, important principles of law have been violated, in this, that the instrument is neither signed by Mrs. Connolly, Mrs. Elliott, nor John Connolly whose assent to the stipulations is not otherwise proved; and that Mrs. Mitchell was a married woman acting without the authorization of her husband. In view of these supposed defects, it is asserted, with apparent seriousness, that the in. gtrument must be treated as a nulliiy.

Two important facts appear to have escaped the attention of counsel: 1st. That the defendant, prior to the inception of this suit, had actually executed the agreement as far as relates fo her mother, by making to the latter a donation by public act of the property described as the homestead, .and that in her answer filed in the cause she has not asked the revission of the motion. To this extent she has Siven voluntary effect to the agreement.

2dly. That Mrs. Mary Connqlly, John Connolly, Mrs. Elliott, and Mrs, Mitchell, are all parties plaintiff in this action; that the two latter are joined and assisted by their husbands, and that iti their petition tlpey make the following averment: “Your petitioners further show that the sqid Sarah Connolly acknowledged in writing after the death of Felix Connolly, that the two adjoining lots (^describing them,) belonged to the children of your petitioner William, Elliott, and was bequeathed to them by their deceased undo, Felix Connolly, which was done to avoid litigation, and which acknowledgement, being founded in fact, your petitioners pro desirous should be confirmed.” The prayer of the petition is in accordance with this averment. a

This is pertainly an affirmance of the agreement in the most express terms, by pll the parties, and as regards the married wgmen the affirmance is made with the authorization of their husbands. No circumstance occurred between the date of the agreement and the commencement of this suit indicating an intention on the part of tire defendant to repudiate the contract, or treat it as null, because it had pot beep signed by all the parties, or because two of the parties were not authorized by their husbands to enter into it, or for any other cause. But, on the ¡contrary, .she went on, as we have seen, to fulfil the most important and onerous of ifs stipulations.

As regards the second stipulation, we have, lior acknowledgement in writing ¡that a certain lot belongs to the children of Mrs. Elliott, in virtue of a bequest made by ¡their uncle Felix Connolly. Her co-heirs admit the same fact in their petition, and ask that the property be decreed to the minors. If the agreement were liable to all the objections urged by the defendant’s counsel, if would still be valid .as her admission of the right of property in the children of Mrs. Elliott.

It did pot escape our attention, qii the first examination of the opuse, that the district judge had deviated in his decree from the precise terms of the agreement, by awarding to the minor children of Mrs. Elliott a sum of money, instead of the specific property claimed. Not only is the fact adverted to in pur opinion, but, before rendering the decree, the attention of one of the defendants’ counsel was specially directed to it, and to the circumstance that it was not made the subject of complaint in his brief. Enquiry was made into the reasons of the district ju'dge for this part of his decree, and whether, in the event of effect being given by this court to the agreement as a compromise, the silence of the defendant was to be considered as an assent that the sum awarded was a fair equivalent for tlie property claimed. No answer having been made, after reasonable delay, we concluded from the continued silence of the defendant, after notice, that this fea&pre of the judgment was not objected to. The first complaint made was upon the application for a re-hearing. Neither arguments nor authorities were necessary to satisfy us of the error into which the district judge had fallen on this point. The error was manifest, and had attracted our notice, and we only desired to be informed whether the defendant considered it more onerous than a judgment for the specific property, and desired its correction. The original decree must be changed as regards the children of Mrs. Elliott to one for the lot claimed.

It is, therefore, ordered that so much of the judgment appealed from as awards to Eleanor Connolly, as tutrix of her minor children Mary G. Elliott and William Elliott, the sum of $1,500, with legal interest, be reversed; and that said Eleanor Connolly, as tutrix of her said minor,children, recover of the defendant Sarah Connolly, the lot of ground claimed by them in the petition, to wit, lot number nine in the square bounded by Colyseeum, Robin, Magazine and Race streets, in faubourg Annunciation, in Municipality no. Two, of the city of New Orleans, according to a plan drawn by Joseph Pilio, on the 24th November, 1838, and deposited as plan no. 19, in the book of plans of J. B. Marks, notary public.

In other respects, the judgment appealed from is affirmed; the appellees paying the costs of this appeal, and the defendants those of the court below.


text:
    Adams v. Harrison.
    No judgment can be rendered in favor of a party, declaring liim entitled to a right of way-over the estate of an adjoining proprietor on the ground of liis being cut off from access to the public road or river, without showing, by proof of where the shortest road can bo obtained with the least injury to the party required to submit to the servitude, from which of the adjoining proprietors the passage may be legally exacted. It may be that the passage is not due from the party from whom it is claimed, but from another contiguous proprietor.
    from the District Court of Iberville, Nicholls, J.

      Deblieux, for the plaintiff.

      Micou and Labauve, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiff sets forth in his petition three causes of action. First-lie alleges that he is the owner of a tract of land fronting on the Mississippi river, measuring eight arpents, more or less, in front, by eighty arponts in depth, the side lines having an opening of ten degrees toward the rear-, and complains thatJhe defendant, Harrison, has unlawfully and without title, entered upon and taken possession of a part of this tract upon which he has committed various acts of waste. Secondly: He alleges that two bayous which pass through his plantation, and serve as natural drains, have been obstructed by the defendant by means of dikes and embankments, to the injury of his plantation. Thirdly: It is alleged that the defendant, pretending to have a right of way, is in the daily habit of passing over a portion of the plaintiff’s land with his servants, wagons, &c., to his injury and annoyance. The petition concludes with a prayer that the defendant be decreed to restore that portion of the plaintiff’s land, of which he has taken wrongful possession; that he be required to remove the obstructions which he has placed in the natural drains or bayous running through the plaintiff’s plantation; and that hovbe compelled to desist from the use of a part of the plaintiff’s land, as a way,

The defendant, in his answer, avers that he is the owner of a plantation lying in the rear of and adjoining the plaintiff, composed, in part, of two lots, purchased ¿rom the United States, which lots include the land claimed by the plaintiff in this action. That the bayous were closed by his vendor, Botts, more than ten years before the inception of this suit, with the knowledge and consent of (die front proprietor; that the front proprietor had rendered the natural servitude more burthensome, in consequence of which Botts had constructed these works for his own protection, and had made a canal sufficient to discharge the waters which accumulated in the bayous. He further avers that the road which he uses was made by those under whom he bolds, more than fen year's prior to the commence-men of this suit, and was granted by the front proprietors for the use of his plantation, and has ever since been kept in repair-, and used by himself and those under whom he claims. ITe also claims the servitude of way, by the prescription of ten year's.

The three issues presented by the pleadings were all decided in favor of the plaintiff in the court below, and the defendant has appealed.

No questions in regard to the titles of the parlies arise. Those of the plaintiff aro Spanish grants, confirmed by act of Congress, and those of the defendant were acquired by purehaso from the United States.

The controversy in relation to the land, of which it is alleged that the defendan * has taken illegal possession, is, in reality, one of boundary, the upper side line and the rear line of the plaintiff being those which are contested. The defendant contends that the direction of the side line is not in accordance with the original survey, and that its length is greater than is authorized by the plaintiff’s title, in consequence of which it is made to include a part of the land acquired by him, or his vendor, from the United States.

The plaintiff holds under two grants. The first for about eight arpents front, by forty in depth, with a divergence in the side lines of ten degrees, and the second for the double concession of forty arpents by extending the side lines of the front tract.

It appears from the evidence that the plaintiff, and those under whom he holds, have always possessed the front tract by the boundaries which he now claims ; that the side lines, as they now exist, have been established by fences and ditches for upwards of forty years, as far back as the extremity of the front concession; that as late as twenty years ago, there were trees bearing the surveyor’s marks, along the whole length of the plaintiff’s side lines, which have since disappeared from the front portion of the land; that, in 1806, Lafon made a survey of the entire tract, and placed boundary posts on the 'whole length of the side linos, and that the plaintiff’s fences and ditches now occupy the same ground which they did at the date of Lafon’s survey.

The upper side lino of the plaintiff’s front concession measures forty-two and two-thirds arpents in depth. At that distance from the present bank of the river stands an old post, which appeal's to have been always recognized as the upper extremity of the front concession, although the grant is for but forty arpents in depth,

The townships in which the lands of both parties are situated, were surveyed by the United States in 1839. The instructions of the government to the deputy surveyors require them to reestablish the original lines of private claims when they can be found, when the excess in the quantity of the tract is not greator than forty acres. Acting under these instructions the United States surveyors retraced tlie plaintiff’s lines, and reestablished the rear boundary oí1 the upper lind of the front tract, at the point at which the old post now exists, forty-two and two-thirds arpents from the river, and thence extended the line with the same direction forty arpents towards the rear for the double concession. In their operations they were aided by the plan of the front tract of the adjoining proprietor. Their1 survey has been returned and approved.

A survey of the lands in controversy was also made under an order of the court granted in this cause. The surveyors returned a plat of the lands, and a report of their operations. They ascertained the upper side line of the plaintiff, as represented on their plat, to be the line as run by the surveyor of the United States. This was determined by identifying the old boundary posts on the front,by discovering the stumps of tire boundary'trees mentioned in the United States survey at the extremity of tire front concession, forty-two and two-thirds arpents" from the river, and by the surveyor’s marks or line trees, which extended back to within a short distance of the defendant’s clearing. They also ascertained tho re ar line as run by them to be identical with that of tho United States surveyor.

It is true that the plaintiff’s upper line exceeds eighty arpents in length, that it varies slightly from the course of the original survey, and that the superficial quantity of the entire tract, as ascertained by the surveyors appointed by the court, exceeds that which the instructions of the government to its deputies are said -to authorize. It is also true that, although the surveyors appointed by the court found the upper and rear lines of the plaintiff’s land, as they actually exist on the ground and as they were traced by them, to be the linos run by the United States surveyor, still their measurements do not exactly correspond with those of the United States survey, as represented in the township map, and consequently the superficial quantities of the two surveys differ. We do not deem it material to enquire which of the surveys is erroneous, as these discrepancies can in no wise affect the decision of the cause. The actual lines of the United States survey have been determined. Those lines were intended to reestablish the original lines and boundaries of the plaintiff’s tract, and correspond with his possession, and the claim he now asserts. Notwithstanding the deviation in the course of the upper lino, and the excess in the quantity of the tract, the survey of the township has been approved, and the United States have permitted the plaintiff to hold the excess* whatever it be, as an integral part of his tract. The same survey determined the lines of the defendant, and' was the guide of the government in disposing of the lands which were subsequently purchased by the vendors of the defendant, so that no conflict between the lines of the parties does or can occur.

If it be true that the excess of the plaintiff’s tract is greater than that authorized by the regulations of the land department, the error can only be corrected by the government. The defendant cannot be permitted to go upon any portion of the land within the plaintiff’s boundaries which he may think fit, and take possession of this excess, on the ground that the plaintiff is without title to it. The government permits the plaintiff to hold this excess, and the court, did not^ in our opinion, err in requiring the defendant to surrender that portion of the land in his possession, which is included within the plaintiff’s line.

The next question at issue between the parties is, the servitude of drainage. It appears that two bayous or natural drains pass through the plantation of the plaintiff, and, running towards the rear, traverse the land of the defendant. These drains have been intersected by a canal, which receives their waters, and conveys them to swamps in another direction, and the channels of the bayous have been filled up by embankments of earth and other obstructions, leaving no other passage for the water than the canal.

As the proprietor of the lower estate, the defendant owes the servitude of drainage to the plaintiff, and is not permitted to impede the natural flow of the water, nor to divert its course. C. C. arts. 656', 657. He contends that the canal affords as free a passage for the waters, as the’ bayous which he has closed; but this position is not supported by the testimony. It is, on the contrary, shown that the canal is not capable of discharging so large a volume of water as the two bayous, and that the drainage of the plaintiff has been injured by the obstructions thrown across the streams. The alleged assent of the front proprietor to the construction of the embankments across the bayous, is also repelled by the testimony. The' front proprietor distinctly objected to the works, although, at that time, no measures were taken to arrest them, or to cause the obstructions to be removed.- The court did not, in our opinion, err in maintaining his claim for their removal.

The thii'd issue presented is the right of way. The defendant has not, in his answer, based his right to the servitude claimed, on the ground that his estate is enclosed, and that from its position he can legally claim a passage over the plaintiff’s land to the- public road or the river, nor does such appear to.be the fact, from the evidence before us. It has nevertheless been assumed by the defendant’s counsel in argument to be true. The defendant, in his pleadings, rests his claim on the alleged consent of the plaintiff’s vendor that the right of passage should be exercised over his land, and contends that, the place having been fixed where the road should pass, it can no longer be changed, unless it may be for the reasons for which such changes are permitted by law. The evidence in relation to the alleged grant of the servitude by the plaintiff is that, about ten years since, Botts, the former proprietor of the lands now owned by the defendant, with the permission of the plaintiff’s vendor, repaired and made passable a lane between the plaintiff and his adjoining proprietor, and that Botts, and those holding under him, have been permitted to use it from that time until the commencement of this suit. Botts applied to the plaintiff’s vendor for a right of way through this lane, which the evidence shows was positively refused. The front proprietor appears to have granted the temporary use of the road only, but declined recognizing an absolute right of passage. This permission cannot be considered as a grant of the servitude of way, or as an acknowledgment that a passage was due over the land now owned by the plaintiff.

If it be assumed that the defendant’s estate is so enclosed as to entitle him by law to a passage to the public road, still the evidence in the record is not such as would authorize us to decree to him the exercise of the right over the land of th® plaintiff. The facts necessary to determine the controversy on that hypothesis are not disclosed.

The 696th article of the Code provides that: “The owner of the estate which is surrounded by other lands has no right to exact the passage from which of hia neighbors he chooses. The passage shall be generally taken on the side where the distance is the shortest from the enclosed estate to the public road. Nevertheless, it shall be fixed at the place least injurious to the person on whose estate the passage is granted.” The 695th article provides that the proprietor who claims a passage shall pay an indemnity for the right.

Now, conceding that the defendant is cut off from access to the public road or river, by surrounding proprietors, we are not informed by the evidence from which of his neighbors the right of passage may bo legally exacted. It is not shown over whoso land the shortest way may be obtained, and with the least injury to the party who may be required to submit to the servitude, nor what indemnity should be paid. Broussard v. Etié, 11 La. 399. It may well be that the passage is not due by the plaintiff, but by another neighbor. The district judge did not, in our opinion, err in maintaining the plaintiff’s right to forbid the further use of this road by the defendant. But as the terms of the judgment may be considered as concluding the defendant from hereafter claiming a way upon different grounds, it must be amended by reserving his rights in this respect.

It is, therefore, ordered that the judgment of the District Court be amended by reserving to the defendant the right to institute further proceedings to determine his right to a way over the land of the plaintiff, and, thus amended, that it be affirmed; the appellee paying the costs of this appeal, and the appellant that of tho court below.


author: Rost, J.

text:
    Judson, Administrator v. Connolly.
    An acton to recover immovable property is a real action, and not affected by the prescription of ten year's established by art. 3508 C. C. Nor does that prescription apply to judgments.
    The administrator of an insolvent succession represents the creditors, and not the deceased; and he may maintain an action for the benefit of the creditors, which the deceased, were he alive, could not do for his own advantage.
    from the Fourth District Court of New Orleans, Stravibridge, J.

      Hoffman and Halsey, for the plaintiff.

      Preston, for the appellant.
   The judgment of the court (Slidell J. not sitting,) was pronounced by

Rost, J.

This suit is a sequel to that of Bridget Connolly et al. v. Sarah Connolly and husband, lately decided. The administrator of the insolvent succession of the late Felix Connolly, relying on the judicial declarations of the plaintiffs in that suit that the property adjudged to Budget Connolly belonged to the said succession, and was held by Sarah Connolly under a simulated sale, now aslcs that Bridget Connolly be cited, and’that said property be decreed t6 belong to the succession he represents. There was judgment by default, which, upon proof of the facts alleged in the petition, was made final, and the defendant appealed.

The opinion we have formed on the merits, renders it unnecessary to notice the bills of exception found in the record. The defendant has filed in this court several pleas of prescription, and the plaintiff waives his right to have the case remanded, under art. 902 C. P. ,

1st. It is alleged that this is a personal action; that more than ten years have elapsed since Sarah Connolly received from the syndic of Hoskins a title to tho property claimed, and that under art. 3508 C. C. the action is prescribed. 2d. It is further alleged that the debts due by the succession of Felix Connolly are evidenced by judgments rendered more than ten years before the institution of this suit, and that they are also prescribed under the same article of the Code. We have also been referred to an act passed in 1848, on the subject of prescription, providing that tho time required for it shall not be affected by absence from the State.

The prayer of the petition is, that the immovable property therein 'described be decreed to belong to the succession of Felix Connolly, and that it be delivered to its administrator. This is clearly a real action, unaffected- by the prescription of ten years.

Art, 3508 provides that alb personal actions, except those previously enumerated in the Code, are prescribed by ten years. But a judgment is not a personal action, and does not come within the rule. The debts' proved are still- due, and must be sastisfied out of the property of Felix Connolly, if he had any at the time of his death.- That the properly claimed belonged to him is proved by the judicial declarations of the defendant in the former case, which are in evidence^ There is nothing in the judgment of the court in that case tending to falsify those declarations; on the contrary, itenforces a compromise entered into between the parties to the suit', as heirs of Felix Connolly, in relation to the property left by him, and, with the consent of the other heirs, adjudged to the defendant in fulT ownership that portion of it which is now claimed. The defendant'received it in right of Felix Connolly, and her title to it is by inheritance. She cannot- therefore be viewed as a third person, and the prescriptions of one, five, and ten yoarswhich she has pleaded, under arts. 1989, 3507, 3442, 3437, C. C. can no more' avail her, than they would avail Felix Connolly, if ho was alive.

The plea that the action of the pl'aíntifií to annul the Sale’cannot be maintained, because if there was fraud, Felix Connolly was a party to it, and as he would have no action himself, he could transmit none to-his representatives-, assumes that the plaintiff represents the deceased. It is not so; the succession is insolvent, and the administrator represents the creditors.

The case of Gravier’s curator v. Carraby’s executor, is not applicable to this-controversy. Judgment affirmed.-


text:
    Boyle v. Mann.
    All acts or hindrances—-ames dé fait et empCchemens, coming from the debtor, which deprive’ the creditor of the remedy and forum contemplated at the time of the contract, suspend1 prescription.
    from the Fourth District Court of New

      If. D'. Ogden and Molt, for the appellant

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

Rost, J.

This action was commenced by attachment, in August; 1847, on a. promissory note, which had been due more than five years at the time. The' plea of prescription, under art. 3505 of the Code, presents the only question in the cause. The plea was maintained in the first instance, and the plaintiff appealed.

In January; 1837, the defendant was' a member of the commercial' firm of W. L. # W. Mann, trading in Franklin, in the State of Mississippi. Flis brother and pftrther subscribed the note-sued on in the name of the firm, on the 6th January of that'year. It was payable six months after date. W. L. Mann was killed' before the maturity of the note; The defendant took charge of his assets, and, in the words of one of the witnesses, “paid as long as he had available means, and finally abandoned all in despair.” In 1840, he removed from Mississippi to Texas, which was then a foreign country, and thence to Mexico, in 1847.

We consider this a proper case for the application of the rule Contra non valentem. All acts or hindrances—voice de fait et empechernens, coming from the debtor, which deprive the creditor of the remedy and forum contemplated at the time of the contract, suspend prescription. 2 Troplong, Prescription, 725. The Commercial -Code of France establishes, for bills of exchange, a prescription similar to that which is here pleaded. It has been held there that this prescription cannot be opposed by the drawer of a bill, who, before the expiration of the five years, obtained it confidentially from the holder, and wrongfully kept it beyond the time at which prescription would have accrued. 2 Troplong, loco citato. And again, after the drawer of a bill of exchange 'has failed, and the bill has been placed by the holder in the hands of the syndic, if the syndic fails or refuses to return it, the prescription of five years is suspended from the day of such failure or refusal. Dalloz, 1845, 1st part, p. 29.

The disappearance of the defendant, and his removal to a foreign countiy, was also an empeckement by which the plaintiff was deprived of his remedy; and that his intention in removing was to defeat the claim of the plaintiff and of his other creditors, is .proved by his declarations to the plaintiff’s agent, that he had left behind him many debts which he never intended to pay, and that if this was one of them he would class it with the others, and never -pay it. In this resolve we cannot assist him.

It is, therefore, ordered that the judgment in this case be r.eyersed, and that there be judgment in fayor of the plaintiff for the sum of $302 75, with interest at the rate of ten per cent per annum from the 9th July, 1837, till paid, and costs in both courts. It is further ordered that the property attached be sold to Batisfy this judgment.


author: Slideli.., J.

text:
    Spiller v. Davidson.
    The prescriptioiiiOf five years, C. G. -3.505, does not apply to a note not negotiable. Such s. note is prescribed by ten years. C. C. 3508.
    from the District Court of Livingston, Lawson, J.

      Walterston, for the plaintiff.

      W. JD. Hennen, for the appellant.
   The judgment of the court was pronounced by

Slideli.., J.

The plaintiff alleges that, in 1839, he placed a note in-the hands of the defendant for collection, and that the defendant has made no effort whatever to obtain a judgment, but has permitted it to become extinguished by prescription; that he has retained .the note in his possession and has transferred it for his own benefit; and by his professional neglect and misconduct has made himself liable for its amount. The defendant pleaded the general issue. Pie also pleaded that die plaintiff had failed to furnish the evidence necessaiy to establish the validity of the note; that he had offered to return the note; and has always held it subject to the plaintiff’s order. He deposited the note with the clerk of the court at the time of filing his answer.

The noto is dated, in October, 1836, is payable ai 'twelve months, and is not negotiable in its form, being a promise to pay to Isaac B. Shipler. It purports to be signed by the mark of the maker, Amelia Gordon.

As the instrument was not negotiable, it was not subject to the prescription of five, but of ten years. It is, therefore, not yet prescribed. Whiting v. Prentice, 12 Rob. 141, &c. The judgment of the court below based upon the supposed extinction of the note is, therefore, erroneous.

In an action of this sort it is incumbent on the plaintiff to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the attorney. The evidence does not establish the existence now, or at any time, of a valid claim in favor of the plaintiff against Amelia Gordon or her succession.

It is, therefore, decreed that, the judgment of the court below be reversed, and that there be judgment for the defendant, with costs in both courts.


text:
    Hereford v. The Police Jury of West Baton Rouge.
    Article 3411 C. C. applies to tlie abandonment of the possession of moveables only. An abandonment of the title to land must be made in writing.
    Where a road and levée ordered by the police jury to ho constructed on a tract of land is adjudicated to the proprietor of the land fqr a certain sum, who complies with the terms of the adjudication, being himself, as proprietor of the land, the first party bound to pay the amount of the adjudication, his claim will be extinguished by confusion.
    from the District Court of West Feliciana, Penn, J.

      Elam, for the plaintiff.

      Brunot and Bennett, for the appellants.
   The the court was pronounced by

Rost, J.

The plaintiff alleges that he was the owner of a tract of land, having ten arpents front on the river Mississippi; that, after the high water of 1844, it became necessary to construct thereon a new levée, which, in conformity with the general regulations then in force, was to be placed at least one arpent from the baplc of the river, which levée the petitioner held himself ready and willing to construct whenever directed to do sp; that the police juiy conceiving that the levée should be placed at more than one arpent from the bank of the river, appointed commissioners to examine the premises, and fix the direction as well as the dimension and probable cost thereof, and, as nearly as possible the amount of damages which the petitioner might sustain by the construction of the levée; that file commissioners in their report recommended that a new levée should be constructed at a distance of five'arpents from the hank of the river, without making any mention of the damage which the petitioner might sustain thereby, which report was adopted by the police juiy and the construction of the levée ordered; that the petitioner notified the inspector to proceed in the manner pointed out by law to ascertain the damage, which he refused to do, and that the said inspector advertized to the lowest bidder the making of the road and levée; that the petitioner attended in person on the day fixed for the adjudication, and when the sum of $15,000 was bid, ho determined to abandon to the parish his tract of land, and, to avoid the ruinous consequences that might ensue, claimed the right to become a bidder, and thereupon bid the sum of $14,500, which bid was accepted and no one bidding a less sum, the constitution of the road and levée was adjudicated to him, and the inspector exacted a bond and surety, which were furnished; that the petitioner faithfully complied with the terms of the adjudication, and that the road and levée made by him were accepted by the inspector, and his bond cancelled and returned to him; that, after the completion and reception of the road and levée, the petitioner made known to the police jury that, in consequence of the placing of the levée five arpents from the bank of the river, he had been damaged in the sum of $6,000, whichhe requested them to pay, or otherwise to adopt some resolution for referring his claim to an amicable adjustment, all of which they refused to do; whereupon they were more formally notified of the abandonment of the land to them and of the intention of the petitioner to claim the full benefit of his contract, and demand payment of the sum of $14,500; and also of his readiness to make a transfer in an authentic form of the land. The prayer is that judgment be rendered in favor of the petitioner for $14,500, and that the police jury be condemned to accept a title to the land, or that otherwise the petitioner may haye judgment for $6,000, the damages sustained by him on account of the unauthorized location of the levée.

The answer specially denies the existence of any law authorizing the claim for damages set up by the plaintiff,' and contains further a general denial.

On the application of the plaintiff the venue was changed, and the case tried before a juiy of West Feliciana. At the trial the plaintiff discontinued his claim for damages, and the jury having returned a verdict in his favor for $14,500, the defendants have appealed from the judgment rendered thereon.

This case is free from difficulty. It is.unnecesssaiy to determine whether the plaintiff could abandon the land, no legal abandonment having been shown, and the fact that it was made being inconsistent with the claim of damages set up in the petition. The plaintiff’s counsel contends that die law requires no particular form as the evidence of an abandonment, and that it is enough to do some act which manifests the intention of abandoning the possession. C. C. art. 3411, to which he refers us, applies to the abandonment of the possession of moveables only. An abandonment of the title to land must of course be made in writing.

The adjudication has not changed the rights and obligations of the parties to this controversy. The plaintiff stands precisely as he would stand, if he had made the levée when he was directed to do so by the inspector. He would be the first party bound to pay the amount of the adjudication if it had been made to another, and, being at the same time debtor and creditor, his claim is extinguished by confusion.

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


text:
    Watterston v. Webb, Administrator.
    Article 2422 C. C. which prohibits attornies from purchasing litigious rights which fall within the juridiction of the courts before which they practice, under the penalty of nullity, and • the payment of all costs, damages and interest, is imperative; and the fact that the attorney had no connection with the litigation, and that the purchase appears to have been fair, cannot exempt the purchaser from the operation of that article.

      from the District Court .of St. Helena, Penn, 3.

      Watterston, appellant, pro se.

      Bullard and Frost, on the .same side.

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

Eustis, C. J.

This is an appeal from a judgment of the court of the Eighth Judicial District dismissing the plaintiff’s petition, on the ground that his action could not be maintained because it was founded upon a litigious right purchased by him, he being an attorney at law practising in the court before which the right was to fre enforced. The plaintiff has taken this appeal. It appears that a judgment was rendered in the late court of Probates of St. Helena against Webb, as administrator of the succession of Stephenson, from which an appeal was taken by Webb to this court. 'It was filed on the 10th February, 1846, and judgment was rendered on the 10th May, 1847. The judgment -was in favor of the New Orleans Gas Light and Banking Company; and by an act of sale passed before a notary in New'Orleans, on the 17th of February, 1847, pending tlj.e appeal, the plaintiff became the purchaser from the bank of this .claim against the succession of Stephenson, together with a large number of other claims, many of which were considered desperate or doubtful. The plaintiff had no connection with the litigation between the bank and Webb, and the purchase appears to have been a fair one. Article 2422, which prohibits attorneys from purchasing litigious rights which fall within the jurisdiction of the courts before which they practice, under the penalty of nullity and the payment of all the costs, damages and interests, is imperative, and the district judge did not err in giving it effect.

Judgment affirmed.


author: Eustis, C, J.

text:
    Kemp, Tutrix v. Nichols.
    No action can be maintained against a party for aiding a debtor in removing beyond the limits of the State slaves subject to a judicial mortgage in favor of plaintiff, where the evidence shows that the debtor possessed no other property, and that prior mortgages recorded against the debtor exceed the value of the slaves. Per Curiam •• The plaintiff has sustained no injury, and can have no action; or if it be conceded that the plaintiff’s jus in re, resulting from the general mortgage, is sufficient to authorize the action, the damages must be merely nominal.
    from the District Court of Concordia, Farrar, T,

      Thomas and Snyder, for the appellant.
    Stacy and Sparrowand for the defendant.
   The judgment of the court was pronounced by

Eustis, C, J.

The plaintiff is a judgment creditor of Charles N. Roidcy^ The judgment having been duly recorded operated as a general mortgage on the property of Rowley. The petition alleges that certain slaves therein named • owned by Rowley and in his possession, though covered for fraudulent purposes under the name of Jacob JD. Lansing, of the value of $10,000, were removed from the State to parts unknown. It charges that the defendant, fully aware of the mortgage rights of the plaintiff upon the slaves and intending to defeat them, colluded with Roioley, and others to the petitioner unknown, and fraudulently aided in removing the slaves, he, the defendant, well knowing the utter insolvency of Rowley, and thus accomplishing their purpose of defeating the mortgage^ It further states that, after exhausting all the property of Rowley known to the petitioner, a large balance of the judgment remains due and unpaid, and that she has sustained damage to the amount of the value of the slaves, by the illegal, unjust, and fraudulent acts of the defendant in the premises. She prays judgment for $10,000, the amount of the alleged damage, and for general relief.

The defence to this action is, an alleged bond fide purchase of the slaves by the defendant from Charles N. Rowley, as the attorney in fact of Samuel Rowley, by act under private signature, dated the' 31st July, 1847, for a just price, he, the purchaser, believing that the slaves belonged to said Samuel Rowleys There was a verdict for the defendant, .and judgment having, been rendered in Conformity therewith, the plaintiff has appealed.

In addition to the general defence resting on the bond fides and the validity of the purchase of the slaves by the defendant, a point was made and has been argued before us, that there were other judicial mortgages against Roxoley's property having precedence over that of the plaintiff, and that the plaintiff has no sufficient interest in the slaves to support the present action for damages against the defendant. It appears that the judicial mortgages recorded against Rowley exceed the sum alleged to be the value of-the slaves; the petition states that his property has been exhausted, and it follows that those slaves, eight in number, alone remain to satisfy the prior judgments against him. The judicial mortgage gave a right to the plaintiff over the property of the debtor for the security of her debt, with the power of having it seized and sold in default of payment.The existence of a judicial mortgage on properly does not, in any sense, affect the validity of the disposal of it by a contract of sale. The owner may sell it,- ’ and the purchaser takes it subject to the mortgage. It may be sold under execution, the mortgage still subsisting in the hands of the purchaser.

The injury complained of by the plaintiff is the collusion of the defendant with Rowley and others, in removing the slaves from the State and thereby defeating her mortgage. She having neither the ownership nor the possession of the slaves, if her action be based upon the 2294th article of the Code, which provides that eveiy act whatever of man that causes damage to another obliges him by whose fault it happened to repair, it is then incumbent on us to ascertain what damage the plaintiff has suffered by the acts of the defendant in thus aiding in removing the slaves. The petition assumes that the measure of the responsibility of the defendant is the value of the siaves. Let us suppose then that the slaves are returned, and sold under execution, and the proceeds in court for distribution The plaintiff can have no portion of them; they must be applied to the satisfac tion of the previous judgments, arid thus it seems to us that the plaintiff stands before us without interest to maintain the present suit. She' has sustained no injury, and can have no action. Or, if it he conceded that the plaintiff’s jus in re, resulting from the general mortgage, is sufficient to authorize the action, the damages must be merely nominal, and below in arriount the jurisdiction of the c'ourt of the first instance.

The right of the plaintiff to maintain this action is placed upon the same footing by the argument of counsel, as that of the creditor to set aside a fraudulent conveyance made by his debtor. The case's aTe similar’ in principle, but the objiv-i'.f’u taken to the present action is provided for expressly in the revocatory action and removed. The judgment in that action, in avoiding the fraudulent contract, applies the property conveyed by it, or its value, to the payment of the plaintiff’s debt. Civil Code; 1972. We think the provisions of law concerning the revocatory action are in conformity with the views we have expressed concerning the plaintiff’s right of action in the. case as presented to us, in thus creating a definite interest in the creditor in the result of the litigation which is thas made to inure to his benefit,

The district judge was of opinion that the judicial mortgages recorded against Charles N. Rowley, for an amount exceeding the value of the slaves and having precedence of the plaintiff’s mortgage, did not affect hor right to recover in this action, and so charged the jury, who found a general verdict for the defendant. The evidence satisfies us that the slaves, at the time of the alleged purchase by the defendant from Charles N. Rowley, as the attorney in fact of Samuel Rowley, were the property of Charles N. Rowley, and not of Samuel Rowley, and that the names in which the titles were placed of Jacob D. Lansing and Samuel Rowley, were used by Charles N. Rowley for his exclusive benefit, for the purpose of screening the slaves from his creditors. We do not find that the relations of Lansing and Samuel Rowley and Charles N. Rowley, in respect to these slaves, differ materially from those established in the "case of Rowley v. Kemp, 2 Ann. 362, and Farrar v. Rowley, Ib. 478.

As to the privity of Nichols to the mode of operating of Charles N. Rowley which his transactions, wliichhave been the subject of judicial investigation, have disclosed, his position and relations with the latter leave no doubt on our minds, and we do not concur with the jury as to the bona fldes of the defendant in his alleged purchase of the slaves. Although averse to the reversal of verdicts of juries on questions of fact in cases of this kind, we should have felt ourselves obliged to have set aside this verdict and have ordered a new trial, had the plaintiff made out a sufficient cause of action. As the case stands before us, the only judgment we can render is that of non-suit.

It is, therefore, ordered that the judgment of the District Court be reversed, and that judgment be rendered against the plaintiff as in caso of non-suit, with costs in the District Court; the defendant paying those of this appeal.


text:
    Dunbar v. Mansker.
    Decision in MeDonogJi v. Dutillet, 3 An. R. 660, affirmed.
    PPEAL from the District Court of East Baton Rouge, Burle, J.

      Paterson and Brewer, for the appellant.

      Elam, for the defendant.'
   The judg" snent of the court was pronounced by

King, J.

This cause was tried in the court below in the absence of the plaintiff and of. Ms Counsel, and a final judgment rendered in favor of the defendant on the merits, from wMch the plaintiff has appealed.

The defendant pleads no demand in reconvention. His answer is an admission, of Ms signature, and a general denial of Ms liability. We have recently held that in such cases the only judgment which can be rendered on the failure of the plaintiff to appear and prosecute Ms demand, is one as in case of non-suit. McDonogh v. Dutillet, 3 An. 660.

The judgment of the District Court is, therefore, reversed, and a judgment rendered against the plaintiff as in case of non-suit; the plaintiff paying the coste of the court below, and the defendant those of this appeal.


author: Kino, J.

text:
    The State v. Morris.
    The exculpatory oath authorized by seo, 17 of the stat. of 7 June; 1806, to be takeh by a party prosecuted under that statute for the cruel treatment of a slave, in the absence of any wit' ness, is not conclusive of the innocence of the accused, but must be received and weighed as other evidence, and may be rebutted. ' '
    from the District Court of St. Helena, Penn, J.

      Elmore, Attorney General, for the State.

      Halsey, '-Ellis and. ■Haynes, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

The appellant was prosecuted for the cruel treatment of his slave, under the act of 7th June, 1806. Bul. '& Curry’s Dig. p. 61, § 16, 17. No person having been present when the alleged cruel punishment was inflicted, the defendant tendered on the trial his own.affidavit in exculpation, which was received. The judge, however, instructed the jury that it was not conclusive of the appellant’s innocence, but was to be received and weighed as other evidence, and might be rebutted. To this charge a bill of exceptions was taken. The accused was convicted and sentenced, and has appealed.

The section of the law under which the defendaht’s affidavit was received is as follows: “ If any slave be mutilated, beaten, or ill treated, contrary to the true intent and meaning of this act, when no oné shall be present, in such case the pWner, or other person having the charge or management, of said slave thus mutulated, shall be deemed responsible and guilty of the said offence, and shall be prosecuted without further evidence, unless the said owner, or other person, so as aforesaid, can prove the contrary by means of good and sufficient evidence, or can clear himself by his own oath.” It is contended that the oath authorized by this section not only repels the presumption of guilt created by the statute, but is to be taken as conclusive of the defendant’s innocence. Such does not appear to us to be a just interpretation of the act. The law creates a presumption of the master’s guilt, which, iu the absence of this express legislation, Would not arise. It is founded upon the relation of master and slave, and the power of the former to maltreat the latter secretly and without the possibility, in many instances, of otherwise establishing his guilt.

He is consequently held answerable for the cruel treatment received by his slave while under his charge, and when no person is present, and is presumed to be guilty of the offence, “unless” in the words of the act, “he can prove the contrary.” The burthen of proof in such cases is thrown on the accused, who is required to establish his innocence, and for this purpose is permitted to use his own affidavit, in addition to the testimony Which is receivable in ordinary prosecutions. The statute has not said that this oath is to be conclusive, or of higher dignity than other evidence; nor do its terms authorize the conclusion that such was the intention of the law-giver. The ■ obvious meaning of the expressions, “unless he can clear himself by his own oath,” is that the defendant’s affidavit shall be admissible; and, if believed, that its disclosures shall be such as to establish his innocence.

It has been correctly urged by the Attorney General, that the interpretation contended for by the defendant would enable the master to escape punishment by interposing his oath, when his guilt could bo satisfactorily established by other the legislature could not have intended that the owner should escape punishment by interposing his- own oath; or that the jury should acquit, notwithstanding their convictions, from the testimony, of the guilt of the accused. No greater weight is to be given to the oath of the accused in such cases than to other testimony, and the judge did not, in our opinion, err in his instructions to the jury. testimony, which could not have been contemplated by the legislature. He may" have previously confessed his guilt, or it may be established by circumstantial testimony, which is often as conclusive as positive and direct evidence; or the facts disclosed by the affidavit itself may bring the jury to a different conclusion from the defendant in relation to-the cruelty of the punishment. In such cases

Judgment affirmed.-


author: Eustis, Cl J.

text:
    Johnson et al. v. Imboden.
    One With whom slaves, belonging to a succession opened in another State, were deposited lens' safe-lieeping in that State, by whose laws they are personal property, and from whose possession they have been fraudulently and forcibly taken, ánd brought to this State and sold, has such a qualified property in them as'will enable him to’maintain an action for their possession against the purchaser; but he cannot recover the value of their hire while in possession of the defendant; for that he is answerable to the succession-to which they belonged.-
    fromthe District Court of Carroll, Selby, J.

      Thomas, for the plaintiffs.

      Short and Blackburn, for the appellants.
   The judgment of the court Was pronounced by

Eustis, Cl J.

The plaintiffs were'the súreties of Samuel Campbell on his liond'given in the State of Arkansas, as executor of the last will of Duncan G: Campbell, deceased. The plaintiffs it appears, having reason to be alarmed at the mismanagement of the executor of the affairs of the succession entrusted to himi and the Court of Probates Under whifch he held' his authority having taken cognizance of the application of said plaintiffs to be released' from their suretyship, decreed that Campbell should furnish other security. It further appears that, in order to quiet the apprehensions of the plaintiffs, and Before any new security was given by Campbell, he deposited with them for safe keeping, to await the further action of the Court of Probates, certain slaves belonging to the succession. It is alleged that afterwards Campbell fraudulently and forcibly took from the possession of the plaintiffs the slaves thus deposited, and brought them to this State, where he fraudulently transferred them to Imboden, who has them in his possession. The plaintiffs brought the present suit against Imboden for the possession of'the slaves, and had them sequestered. A verdict of a jury was rendered in favor of ’the plaintiffs for two of the slaves Alice and Viney, and for $208 for their hue. From the judgment rendered on this verdict the defendant has appealed.

The occurrences which gave rise to this suit took place in the county of Chicot, adjoining the northern boundary of this State.

The argument presented for the defence, relates to the want of any legal right to maintain this suit, on the part of the plaintiffs. But it appears to us that this right is unquestionable. The slaves being |n the possession of the plaintiffs in the State of Arkansas, where the succession is still open and its affairs unsettled, and having been delivered to them by Campbell for safe-keeping to await the action of the Court of Probates, it seems to us that their right of possession cannot be drawn in question by a mere, spoliator. Campbell’s rights as a legatee gave him no right to remove .the slaves to this State, and to dispose of them to the detriment of the succession which he was charged to administer. The other slaves brought to this State by Campbell have found their-way across the line to Arkansas, and, in permitting the depositaries to maintain-this 'action, -we are only in fact returning those slaves to the action of the forum, from which they were removed for purposes which no court can justify. Slaves being moveables by the laws of Arkansas, the plaintiffs have spch a qualified property in them as will support this action against a party in the position of the defendant. The judgment being for the possession of the slaves we consider that part of it, which secures the possession to the plaintiffs as correct; but for,their- hire the .defendant will be responsible to .the succession to which the slaves belonged. •

The judgment of the District Court decreeing the defendant to pay the plaintiffs the sum of $208, or, as it is written, two thousand and eight dollars, is therefore reversed; and that declaring' the possession of the slaves Alice and Viney to the plaintiffs is affirmed; the defendant paying the costs of the District Court, and .the plaintiffs those of this appeal.


text:
    Halliman et al. v. Clark et al.
    In an action on an obligation in favor of a partnership, all the partners must join to enforce its performance. If one of the partners be .absent, he may be represented by a curator ad hoc..

    from the District Court of Madison, Selby, J.

      Amonett, for the plaintiffs.

      Stockton and Steele, for the appellants.
    1. An obligation in favor of a firm, or several persons jointly, cannot be sued for by any one member of the firm or payees, but the action must be instituted by all the members or payees; and a judgment rendered in their joint name or firm, at the suit of any one or any part of them, would be no bar- to a suit by the whole firm for the same cause, or of the other partners for then- shares. Tucker v. Lile, 4 La. 328. 10 La. 432. 13 La. 484. IB La. 31. 9 Rob. 149,
   The judgment of the court was pronounced by

Kino, J.

Clark executed an obligation in favor of McReynolds, Halliman Sf Co., a firm composed of McReynolds, Halliman and Riley, for the payment of the price of constructing a levée, and the defendant Downes became the guarantor of Clark for the performance of the obligation. Upon this contract Halliman and the administrator of McReynolds instituted the present action to enforce payment. The defendants excepted to the petition for the want of proper parties, averring that Riley should have been joined in the action. An amended petition was thereupon filed, setting forth that Riley was a partner of the firm of McReynolds, Halliman Co., and making him a party plaintiff. The defendants then pleaded to the merits. On the trial the attorney of the plaintiffs was examined as a witness. He deposed that he had never seen Riley, or been authorized by him to join him as a party plaintiff in the shit. That the amended petition was presented in consequence of the exception filed by the defendants, that the object of the witness was t0 collect the sum due for the use of ITalliman, who was the holder, and, as he believed, the exclusive owner of the demand. The district judge instructed the jury that the plaintiffs woro properly before the court, and a bill of exceptions was taken to that part of his charge. There was a verdict in favor of the plaintiffs, and, after an ineffectual effort to obtain a new trial, the defendants appealed.

The district judge, in our opinion, erred in his instructions to the juiy. It has been repeatedly held that, when the obligation is in favor of a firm, all the partners must join in the action to enforce its performance. Crozier v. Hodge, 3 La. 357. Cutler v. Cochran, 13 La. 484. Flower v. O’Connor, 7 La. 196.

As the plaintiff's however are not without remedy, bpt may still make Riley a party, by causing him to be represented by a curator ad hoc, we will remand the cause, which justice appears to us to require.

The judgment of the District Court is therefore reversed, and the cause remanded to be proceeded with according to law, the appellees paying the costs ¡of this appeal.


text:
    Brown v. The Police Jury of Madison.
    No action will lie against a police jury representing a parish, for the amount of an adjudication, under the stat. of 7 February, 1829, for the construction of a levée in front of land belonging to an absentee, until the plaintiff has exhausted Ms remedy against the land. Where in an action against a police jury the tax payers of the parties to be affected, they will not be held to allegations in pleading made in error by their agents.
    from the District Court of Madison, Selby, J.

      Thomas and Sny- . der, for the plaintiff.

      Hynes, Stacy and Sparrow, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff has instituted this action to recover from the defendants the amount of an adjudication made to him, under the act of 1829, for the construction of a levée in front of a tract of land belonging to non-residents. The adjudication, the construction of the levée, and its acceptance by the inspector, are admitted, as alleged; but the defendants contend that the action is premature. There was judgment against them, and they appealed.

The only question of law which the case presents is, whether the plaintiff was bound to discuss the land upon which the levée was made before he could proceed against the parish.

The appellee maintains that the privilege granted by the act of 1829, to parties who have, undertaken the making of a levée is but an accessory to the principal obligation, and that the party in whose favor this stipulation is piade may, or may not, avail himself of it.

It has never been considered by our predecessors or ourselves, thaf adjudications under the a.ct of 1829, created a direct obligation against the parish. The decisions heretofore made seem to consider the police juyy in the light of a surety, not of a principal debtor. Theactof 1829, under which the plaintiff claims, maltes the land directly liable to him, and in our opoinion establishes his first remedy under the adjudication. Had this remedy been resorted to, it is in evidence that, under an ordinance of the defendants, the land would have been purchased by them for a sum .sufficient to pay the plaintiff, and the privilege which he has, Would thus have inured to them benefit. We think they cannot be deprived of this right.

It is urged that the defeendants have alleged in their answer that, the remedies secured to the plaintiff by law were lost in consequence of the acts and omissions of their officer, and that, under this judicial admission, the plaintiff could proceed directly against the parish, as was done in the case of Newcomb v. Police Jury, &c., 4 Rob. 233.

The defence of the police jury was perhaps ill advised. But the plaintiff has proved that it was unfounded, and that all the formalities required had been complied With. Considering that the police jury are nominal defendants, and that it is the tax payers of the parish who are to be affected by our decision, we cannot hold them to allegations made in error by their agents. Millaudon v. First Municipality, 1 An. 215.

It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment against the plaintiff as in case of non suit. It is further .ordered that, the plaintiff pay the costs in both counts.


text:
    Neely v. The Police Jury of Tensas.
    A claim for work done to a public levéc, under the provisions of the stat. of 28 April, 1847, relativo to the parish .of Tensas, may be recovered in an action against the police jury of the parish, unless it be shown that they had provided the specific fund which that act, (s.5,) maltes it their duty to raise, and a satisfactory reason be given for tbeir failure to pay the plaintiff out of it.
    from the District Court of Tensas, Selby, J.

      Montgomery and Frost, for the plaintiff.

      E. D. Farrar, for the appellants.
   The judgment

Rost, J.

This is a suit based upon an account for work done to a public levee in the parish of Tensas, under the provisions of an act relative to roads andlevées in tlie parish of Tensas, approved the 28th April, 1847. The answer admits the correctness of the account, but avers that no action lies upon it against the parish. The plaintiff’s claim was sustained in the first instance, and the defendants appealed.

The 5th section of the act of 1847, provides that a special levée fund shall be formed by the imposition of a tax upon land and out of the proceeds of certain fines and forfeitures, and the 6th section ordains that each owner of slaves employed on the levées shall be entitled to draw from said fund tire sum of one dollar for each day’s work. The appellants insist that the only claim of the appellee is against that specific fund, and pray for u reversal of the judgment on that ground.

We are of opinion that they have failed to make out a proper case for our interference. They ought to have shown that they had provided the specific fund which the act of 1847 made it their duty to raise, and further they should have adduced satisfactory reasons for their failure to pay the plaintiff’s claim out of it.

Judgment affirmed.