author: Land, J.

text:
    Widow Meissonier, Executrix, v. Charles Laurent.
    The functions of an executor are not limited to the execution of the legacies contained in the will, hut extend also to the payment of the debts of the deceased.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      Budd & Lambert, for plaintiff. C. Dufour and H. R. Grandmont, for defendant and appellant. R. H. Browne, attorney for absent heirs.
   Land, J.

Annette Bizouard in her last illness made her will, in which she instituted the plaintiff lier universal legatee and executrix thereof, and declared that Charles Laurent, the defendant in this suit, was indebted to her in the sum of $1100.

This suit is for the recovery of the sum declared to be due in, the will. The plaintiff sues as executrix, and not as universal legatee.

The defendant pleaded a general denial and a claim in reconvention against the plaintiff personally, which it is unnecessary to notice, as it was abandoned in this suit.

The defendant afterwards filed a peremptory exception to the plaintiff’s right and capacity to prosecute this suit, on the grounds that she had filed in court a formal renunciation of her rights as universal legatee under the will of Annette Bizouard, and that said will was thereby virtually of no effect.

The functions of an executor are not limited to the execution of the legacies contained in the will, but extend also to the payment of the debts of the deceased. Succession of Dupuy, 4 An. 571. As the record discloses the fact that there are debts due by the testatrix, the exception was properly overruled. Succession of Boyd, 12 An. 612.

On the trial of the case on its merits, the plaintiff was offered as a witness, and was objected to by the defendant, on the ground of interest in the result of the suit. The objection was overruled and the defendant excepted.

It is not material to decide the question of competency raised by the bill of exceptions, for the reason that the demand is sufficiently established, independently of the testimony of the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


source: Caselaw Access Project

author: Merrick, O. J. Land, J. Buchanan, J., Buchanan, J. Spofford, J.,

license: Public Domain

text:
    S. Moussier v. J. E. Zunts et al.
    The acknowledgement by a married woman in an act of mortgage of her indebtedness, does not estop her from denying that the debt which her mortgage was given to secure had enured to her separate "benefit.
    The creditor is hound to show affirmatively that mortgage notes signed by a married woman were given for a debt which had enured to lier benefit, in order to render her liable.
    The burden of proof in such case rests on the creditor, although the wife is separated of property from her husband.
    A married woman, when properly authorized, may become security for any other person than her husband.
    from the District Court of the Parish of Plaquemines, Rousseau, J.

      M. M. Cohen and J. Foulhouze, for plaintiff and appellant. H. B. Ogden and P. E. Bonford, for defendants.
   Merrick, O. J.

Although the re-hearing was granted generally in this case the reexamination of it has been confined chiefly to two or three branches of the controversy.

Ye have considered the opinion of Mr. Justice Buchanau as conclusive upon the question, whether the mortgage was absolutely void, as having been extorted-by fear and threats, and also on the question of damages for the alleged wrongful acts of the Sheriff in executing the writ, and on the right of the plaintiff in the executory process to seize the property attached to the plantation, and thus made part thereof for the working of the same.

The questions which have occasioned us the most trouble in the decision of the cause are the following-: On whom is the burden of proof? Ought the plaintiff to be charged with the sum of $10,000 paid Mrs. White ? Could she bind herself in solido for all the debts of the Bellevue plantation, her sister’s debt as well as her own, and was that her intention ?

Prom the synopsis of the plaintiff’s petition made by Mr. Justice Buchanan in liis opinion, it appears that one of the grounds of injunction is, that there is a failure of consideration in this, that the mortgage notes were given for the balance of an account, but that the same did not enure to the benefit of the plaintiff, she being a married woman.

The defendant, in making up the issue upon this branch of the case, avers “that the said act of mortgage and the notes sued on were given voluntarily for valuable consideration for moneys advanced and paid by the said Maunsel White for the 2>ayment and liquidation of debts due by the said petitioner in injunction and her sister, Miss Marie Emma Comm, and for supplies for the plantation belonging to said Mrs. Moussier, plaintiff in injunction, and said Miss Comen,” and after setting-out plaintiff's title, the defendant further alleges “that, in the aforesaid divers acts of transfer and sale, mortgage notes had been given^for the same, and said Mrs. Moussier and Miss Emma Cornen were bound to pay, and did assume the payment thereof; that the consideration for which the mortgage and mortgage notes sued on were given, was the advances made by said Maunsel White and Maunsel White & Co., for the payments for the aforesaid mortgaged notes given for the said property, and assumed as aforesaid, and for the sum and price of $10,000, paid said Mrs. Maunsel White, and the amount advanced and paid to the Union Bank, and for supplies and expenses to the said plantation, all of which facts will more fully appear by accounts-current and copies of the notarial acts hereunto annexed, and made part of this petition, and referred to for a full and complete detail, and for greater certainty.”

This being the issue on this branch of the case, the question then arises on whom is the burden of proof? The plaintiff, to show failure of consideration, or the defendant, to show that the consideration which has set forth enured to the benefit of the plaintiff, a married woman. The question is by no means a new one.

The case of Eliza J. Erwin v. James McCalop et al, 5 An. 173, is somewhat similar. In that case, “ the plaintiff enjoined an order of seizure and sale sued out by the defendant, McCalop, upon a mortgage given by her to secure the payment of her promissory note in his favor, on the ground that the debt was originally her husband’s, and that she is not responsible for it.

“ The answer” was, “ that the debt enured to the benefit of the plaintiff and that, if it was a debt of her husband, it was contracted under circumstances which render her liable for it.”

The court says “ it is not necessary to notice the bill of exceptions taken by defendant’s counsel, for if all the facts which he offered to prove were admitted, they would not show that this particular debt enured to the benefit of the plaintiff. This fad must be shown affirmatively by the defendant, in order to make the debt binding upon her ; her being- separated of property does not throw the burden of proof on her, nor is she estopped from setting up this defence by her acknowledgment of indebtedness in the act of mortgage. Dranguet v. Proudhomme, 3 L. R. 74 ; Pascal v. Sauvinet, 1 An. 428, and cases there cited.”

Tlie subject was again considered in the case of Patterson v. Fraser and the doctrine in the case of Brandigee v. Kerr, 7 N. S. 64, that it is of the essence of the obligation that the wife should have a separate advantage in the contract, was reviewed and affirmed. It is there said, that “ to permit the naked acknowledgment of the wife to bind her without other proof, is inconsistent with the spirit and policy of our laws and jurisprudence. The influence of the husband will readily obtain from the wife such declaration.”

These cases were again reviewed in the case of Beaurgard v. Her Husband, 7 An. 294.

The court again says, it is a principle which has come down to us from the laws of Spain, that he who .contracts with a married woman must show affirmatively that the contract turned to her advantage.” The exception was when the wife renounced the 61st law of Toro, but this exception no longer exists. The Act of 1855, p. 254, authorizes the wife to bind herself as a femme sole for her separate debts, but this Act has no application to the present case. Revised Statutes, p. 560, see. 1, 2 and 3.

The case at bar, however, differs from the cases cited in this, that the wife alone signs the promissory note authorized by the husband. But this can make no difference, as has been' repeatedly remarked by this court, for the husband would only have to change the form of the contract and authorize the wife to sign, to evade the provisions of Article 2412 Civil Code altogether. 7 N. S. 66.

The burden of proof was, therefore, upon the defendant, and he has alleged that $10,000, the amount of the purchase of the plantation from Mrs. White, was advanced by him. He must prove it; and how does he make this proof? He says that the deed from Mrs. White to Mrs. Moussier establishes the fact when taken in connection with the mortgage.

But before we can consider these two instruments the deposition oí Miss Emma Cornen must be disposed of, for she is a witness introduced by the defendant himself, and she has sworn that Mrs. White was actually paid the $10,000 specified in the act of sale in money from her savings, and some money which her sister, the plaintiff, had. To this it is replied that the witness is mistaken, as it is evident from her letters that she and her sister were both without means in money at that time. But these letters were objected to, and a bill of exception taken to their ' introduction. They were inadmissible to impeach the testimony of the witness, for she was defendant’s witness. They were inadmissible to charge plaintiff with any indebtedness, for they were merely the acknowledgments of a third person in a correspondence. 1 Greenleaf, secs. 442, 443. The only purpose for which they were admissible, was to show the indebtedness of Miss Emma Cornen herself, for whom, it is asserted in argument, Mrs. Moussier became security,

They can have no effect upon the indebtedness of Mrs. Moussier, but when offered for the purpose for which they were admissible, they create a doubt whether the witness may not be mistaken as to the payment by Mrs. Moussier, and we prefer considering the question without reference to this testimony.

Then, when we place the act of sale from Mrs. White to Mrs. Moussier and Miss Cornen, by the side of the act of mortgage from the latter to Mrs. White, we find in one instrument the receipt of $10,000 acknowledged as paid at the execution of the act, and, as a consequence, in the presence of the notary, to Mrs. White, and in the other an acknowledgment of indebtedness of $43,362 53 to Maunsel White. How can this court presume from these two acts that the $10,000 acknowledged to have been paid in lawful current money was not paid, but formed a part of the $43,362 53. There is nothing from which it can be inferred. The burden of proof is upon the defendant, and the comparison of these instruments does not furnish the proof which he was bound to administer. But it is said the proof results from a ratification of the account which contained this as one of the items as testified to by Kohn. The testimony of Kohn is rebutted by that of Reese, and we have not discovered any proof in the record which shows that Mrs. Mous-sier ratified the account containing this item ; if, indeed, she could be concluded by such ratification.

We think, therefore, the defendant has failed in his proof to the extent of one-lialf of the debt for one-third of the plantation bought of Mrs. White, viz : $5000.

By the same reasoning it is shown he has failed in his proof for one-half of the debts due by Mrs. White, and the plaintiff is not bound for Moussier’s drafts and the other items of the account not proven. The one-half of the latter amounts to $2362 56, and the whole being deducted from $24,863 14 leaves $20,136 01; the one-third of which would be Mrs. White’s share, and one-half of one-third, $3356 33, improperly charged to Mrs. Moussier, without proof, as part of the price of Mrs. White’s interest.

The following items, therefore, are unsustained by proof, viz : one-half of the price of Mrs. White’s interest. $5,000 00

One-half of Moussier’s drafts and other items not proved.. 2,362 56

One-half of balance of Mrs. White’s indebtedness. 3,356 33

$10,718 89

The next question to be considered is, whether Mrs. Moussier could bind herself in solido with her sister as her surety ?

At the execution of the act of mortgage, Mrs. Moussier (with the exception of 7-240 parts, as shown by Mr. Justice Buchanan), was the owner of five-sixths of the plantation, and Miss Emma Comen one-sixth. But in buying the one-third from Miss Comen on the 3d of March, 1849, Mrs. Moussier assumed one-third of the mortgages remaining upon the plantation unpaid.

Miss Comen at the time she executed the notes and mortgage was sui juris. She could bind herself as a femme sole for her own debts, and as surety for her sister. But as surety for the latter she would not be bound for anything more than the amount for which her principal was bound. O. O. 3006. The obligations of Miss Cornen subscribed by her, stand upon a different ground from those of Jlirs. Moussier. The burden of proof is upon her to show the failure or want of consideration. And as against her the mortgage and notes corroborated by the letters must stand, unless they are shown to be erroneous.

The mere failure of proof on the part of the defendant will not release her from her portion of the promissory notes.

On a review of the authorities, we find that it has been decided that a married woman may become a security for a third person. See Ferrell v. Toe, 2 An. 903 ; Roberts v. Wilkinson, 5 An. 369. It is with some hesitation, however, that we admit the doctrine in the present case, where the wife binds herself in solido Nvith a third person, and the contract is not one of suretyship purely, although by her act of purchase from that person she had bound herself for certain mortgages upon the property. But giving the benefit of this construction of the law to the defendant, it will leave the one undivided half of said notes subject to the payments, in Ml force and vigor; for, the surety cannot question an obligation which her principal has not the means of showing to be erroneous.

As it respects the claim for dividends upon bank stock, the plaintiff fails in her proof, and has not the proper parties before us.for relief.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by this court be set aside, and that, as heretofore decreed, the judgment of the lower court be avoided and reversed, and now proceeding to pronounce such decree as ought to have been pronounced, it is ordered, adjudged and decreed by the court, that the said mortgage notes upon which said order of seizure and sale issued be credited, upon the principal thereof, one-fourth upon each note, as of the day of their date, with the sum of $10,118 89 in favor of the plaintiff, as improperly charged to her in the consideration of said notes, and that said mortgage note which fell due in April, 1851, be further credited with the payment of $5057 08, as of the 4th day of April, 1851, and that the further sum of $3600 be credited as of February 15th, 1853, pro rata, upon the mortgage notes then due, and that the injunction issued in this case be perpetuated for the said three several sums herein allowed as credits, and that the same be dissolved as to the residue of said writ of seizure and sale, the plaintiff herein paying the costs of appeal, and the defendant the costs of the lower court, it being understood that this decree does not prejudice any claim the.plaintiff may have against the proper parties on account of said Union Bank stock.1

Land, J.

I concur in the decree prepared by C. J. Merrick.

Buchanan, J.,

dissenting. The question of suretyship does not seem to me properly to arise in this case. The only case mentioned in the Code in which one creditor in solido is considered as the surety of the other creditor, is that put in Article 2102, which is not applicable to the contract now under consideration.

Again, a distinction is made in the opinion prepared by the Ohief Justice, between Mrs. Moussier and Miss Comen, as to the burden of proof. But it is not necessary to make any such distinction. This is a suit to which Mrs. Mous-sier alone is a party plaintiff, and in which she enjoins an order of seizure and sale, on the ground, among others, that the balance of accounts, for which the notes held by plaintiff were given, was erroneous. The principal error alleged was an item in the account to the debit of the Bellevue plantation, of ten thousand dollars, for so much paid by Maunsel White, or M. White & Co., to Mrs. White, tor her third of the plantation sold Mrs. Moussier and Emma Comen. With regard to this item, which is the only one upon which any difference of opinion really exists, the original opinion of the court treated the burden of proof as being upon the plaintiff in injunction, Mrs. Moussier, and not upon the defendant in injunction, Mr. Zuntz. And Mrs. Moussier was found to have proved the error by evidence of no less authority than the declaration of Maunsel White and of his wife, the vendor, in the authentic act of sale of Mrs. White's third of the plantation referred to in this item of the account. The defendant in injunction endeavored to rebut this affirmative proof of error, but unsuccessfully. The reasoning and conclusions of the original judgment upon this head seem to be entirely concurred in by the opinion prepared by the Ohief Justice, on the rehearing ; and it does, therefore, appear to me incorrect to say, as is said in the opinion, that there is simply a failure of proof on the part of defendant, of the correctness of the account. On the contrary, every cent of deduction that was made by the original judgment of this court, was so made upon affirmative proof administered by the plaintiff in injunction.

I think our former judgment ought to remain undisturbed.

OPINIONS ON RENDERING THE ORIGINAL JUDGMENT.

Buchanan, J.

The plaintiff, a married woman, enjoins the execution of a mortgage by authentic act, granted by her upon her separate estate. Her grounds of action are various, and are substantially:

1st. That the mortgage was extorted by fear and by threats.

■ 2d. That the mortgage was given for a balance of account-current, in which there are many errors to her prejudice.

3d. That many of the items to her debit in said account did not enure to her benefit, but were advances made to her husband.

4th. That the sum of three thousand six hundred dollars has been paid by her, on account, which is not credited upon the writ of seizure and sale.

5th. That the advertisement of sale includes three horses, fifteen mules, six working oxen, one cow, eight sheep and lambs, ten carts, and a lot of farming utensils, which were not mentioned in the writ of seizure and sale.

6th. That plaintiff has suffered twenty thousand dollars damages, by acts of waste and trespass on the part of the Sheriff’s keeper, who was in charge of the property from the 30th January to the 28th February, 1855, such as “ forcing plaintiff’s servants out of her employ, ruining her fields by mismanagement, preventing plaintiff from cultivating the same, and from planting therein the canes which she had prepared and matrassed for the purpose, starving her cattle, destroying her poultry yard, cutting down fruit trees,” &c.

I. The petition does not explain in any manner what was the nature or degree of the fear of plaintiff, or by whom inspired. The only evidence on the subject, is that of two witnesses, who testily that the plaintiff’s husband expressed great anxiety that she should sign this mortgage, which she was unwilling to do ; and even threatened to go to California, unless she signed the same. This is not such a threat as can have the effect of invalidating the contract, under Article 1845 of the Civil Code. It is also to be observed, that the mortgagee had no share in these threats, such as they were, nor any knowledge of them. There was also another apparent cause for the mortgage than the threats of plaintiff’s husband. C. 0.1852, 1853.

II. In examining this ground, we must commence by a chronological retrospect of the origin and changes of ownership of the property mortgaged, and of the relations of the mortgagee thereto, as illustrating the correctness of the manner in which the accounts have been kept, -upon which the present mortgage is based ; and of the balance of account which is represented by the notes, which this mortgage has been given to secure.

Marie Genevieve Garel, wife separated in property of Jean Marie Comen, of the parish of Plaquemines, died possessed, in her own right, of a tract of land of fifteen arpents front on the left bank of the river Mississippi, by forty arpents in depth, cultivated as a sugar plantation, under the name of the Bellevue plantation, with thirty slaves. Her heirs were nine in number, her husband and eight children of full age, each inheriting one-ninth of her succession. On the 15th of

April, 1843, three of the children and heirs of Mrs. Cornen, sold to their father and the five other co-heirs, their interest in the Bellevue plantation and improvements, cattle, implements of husbandry and other appurtenances, also in thirty slaves thereunto attached. The six.purchasers, Jean Marie Cornen, Pierre Paul Cornen, Emma Cornen, Coralie Cornen, Mrs. Coolidge, and Mrs. Moussier, the present plaintiff, being thus each vested with the ownership of the entire plantation and slaves for one undivided sixth, formed a copartnership in the business of sugar planting, on the 21st of April, 1843, to continue three years, under the firm of J. M. Cornen & Co.; one of the articles of which copartnership was, that Pierre Paul Cornen should be the manager for the purpose of making the crops, and Jean Marie Comm, or in case of his sickness or inability, Pierre Paul Cornea, should be the financial manager and agent of the concern.

1846, February 12 — Coralie Cornen and Mrs. Coolidge, two of the partners in the firm of J. M. Comm & Co., and collectively owners of one-third of the plantation and slaves, sold out their interest in the land and 27 slaves, (four of those mentioned in the sale of the 15th April, 1843, not being in this, and one being in this, who was not in the former sale,) and, also, two-eighths of the interest of Jean Marie Comm, their father, therein, which had fallen to them by inheritance, the said Jean Marie Cornen having died, to the other three surviving partners, namely, Pierre Paul Cornen, Emma Comm and Mrs. Moussier.

1846, March 24 — Frangois Theodore Comm, one of the children of Jean Marie Cornen and his wife, and one of the vendors in the sale of the 15th of April, 1843, above mentioned, made an act reeognitive and confirmatory of a sale of the 6th of June, 1844, by said F. T. Cornen to his brother Paul, and his four sisters Emma, Coralie, Mrs. Coolidge and Mrs. Moussier, of all his share (one eighth) in his deceased father’s interest in the property of the firm of J. M. Comm <& Co.

1846, March 28 — Mrs. Ackille Sigur, another of the children of Jean Marie Cornen and his wife, and one of the vendors in the act of 15th of April, 1843, above mentioned, sold her interest (one-eighth) in the share of her deceased father in the said property, to her brother Paul and two sisters, Emma and Mrs. Moussier.

By the effect of the above recited conveyancy, the Bellevue plantation, with its appurtenances and the slaves attached thereto, belonged, after the 28th March, 1846, to the following persons:

1st. Mrs. Edward Sigur, in the proportion of £ to i, equal to 1-48, as heir of her father, Jean Marie Comm.

2d and 3d. Mrs. Coolidge and Coralie Cornen, each in the proportion of 1-5 of i of &, equal to 1-240, as vendee of a portion of their brother Theodm-e’s share in the succession of their father.

4th, 5th and 6th. Paul Cornen, Emma Comm and Mrs. Moussier, jointly, for all the remainder, being 233-240, or in the proportion of 233-720 to each.

1847, December 15 — Pierre Paul Comen, styling himself owner of one undivided third, although, as we have seen, this was not altogether correct, sold the undivided third of the plantation and appurtenances, also one-third of 29 negroes (four of those named in the sale of the 12th of February, 1846, not being in this sale, and six of those named in this sale not being in the former) ; also, one-third of 206 shares of Union Bank stock, (not mentioned in any of the previous sales,) to Mrs. Helo'ise White, wife of Maunsel White, and authorized and assisted by her husband.

1849, March 3 — Emma Comm, making the same mistake that her brother had made, sells to Mrs. Moussier the undivided third of the plantation and of twenty-eight slaves — one old negro named -Alexander, included in the last sale (15 th of December, 1847,) not being found in this sale.

1850, April 22 — Mrs. White sells to Emma Comen and to Mrs. Moussier, jointly, one undivided third of the plantation and appurtenances, and of twenty-eight slaves; a young man slave named Paul Turner, named in both the sales of the 15th December, 1847, and the 3d of March, 1849, being omitted in this sale; while the old man Alexander, omitted in the sale of 3d March, 1849, figures again in the present sale. There is no mention, in this sale from Mrs. White, of the 206 shares of Union Bank stock of which she had acquired one-third as attached to the plantation when she purchased in December, 1847 ; neither do those shares of stock figure in the mortgage of which we shall presently speak, nor in the accounts-current between the parties.

The petition for the seizure and sale is equally silent respecting this bank stock, which apparently has been-separated from the plantation; but how, or for whose benefit, the record does not inform us.

We cannot help adverting to this hiatus in the record, because it might, if filled up, throw some light upon the acknowledgment of the receipt of ten thousand dollars, made by defendant’s author, but which defendant now affects to treat as a fiction.

The present market value of 206 shares of Union Bank stock, is believed to be not far from ($6,000) six thousand dollars.

On the same day with the sale last mentioned, (22d April, 1850,) and before the same notary, Mrs. Moussier and Emma Comen acknowledged themselves to be indebted to Maunsel White in the sum of $43,064, for which they make their four joint aud several promissory notes, to their own order, and by them endorsed in blank, for $.10,766 each, with eight per cent, interest from date until paid, and payable, respectively, 1, 2, 3 and 4 years after date, and secured by special mortgage upon the plantation and appurtenances, and upon the twenty-eight slaves mentioned in the sale of the same date.

- 1852, April 30 — Maunsel White assigns and transfers the four mortgage notes above mentioned to James E. Zuntz, the defendant, with subrogation to all rights of mortgage and privilege.

The evidence shows the acknowledgment of indebtedness by the plaintiff and her sister, to be based upon accounts rendered by Maunsel White, as factor and commission merchant, showing a balance in favor of said White, under date of April 2d, 1850, of a like amount with the notes and mortgage.

The accounts of White are four in number. The first: “ J. M. Comen & Co. in account with Maunsel White & Co." This account commences on the 15th of February, 1847, and is closed on the 24th December, 1847, by the following entry : “ To balance transferred to Maunsel White.$3,408 94.”

The second account is headed as follows : “ Bellevue plantation in accountcur-rent and interest account to April 1st, 1849, with Maunsel White." This account commences : 1847, December 24. To Maunsel White & Co. for the full amount of their claims against said plantation.$3,408 94,” and is closed by balance to debit of the Bellevue plantation brought down under date of April 1,1849, of.$25,356 92

Increased by addition of sundry items, said to be omitted, to.$25,604 45

The third account is headed thus : “ Bellevue plantation in account-current and interest account to 1st of April, 1850, with Maunsel White." This account commences as follows: “1849, April 1st. To balance from page 4.$25,604 45” and closes by a balance to the credit of Maunsel White, struck under date of “ April 1, 1850, of.$29,620 71”

The fourth and final account we copy in full, as it resumes, in a few items, the whole of the charges which go to make up the amount of the mortgage notes.

“ Bellevue plantation in account-current and interest account, to April 1st, 1850, with Maunsel White :

1850.
April 1. To balance.$29,620 11
March 24. Paid Union Bank. 5,150 00
April 2. Paid R. Patterson & Co. 6,140 40
Paid for 50 empty barrels, $1 15. 51 50
Paid Theodore Comen. 150 00
Paid Madame White her $.10,000 00
Paid cash insurance. 112 00
Paid their draft on me. 184 86
$52,015 53 Oe.
By net proceeds of 202 hogsheads of sugar and 100 barrels of molasses. $8,653 00
$43,362 53
My bills receivable for four promissory notes, at 1, 2, 3 and
4 years, from April 1, 1850, $10,166.$43,064 00
By amount of the above charges for balance.• 298 53
$43,362 53”

During the period embraced by the first account, February to December, 1847, the plantation belonged, as we have seen, with the exception of a small fraction, (7-240,) to Paul Comen, Emma Comen and Mrs. Moussier, in equal proportions. During that embraced in the second account, (December, 1841, to March, 1849,) the plantation belonged to Mrs. Moussier, Emma Comen and Mrs. White, (with the exception of the said fractional part,) one-third to each. And in the period embraced in the third account, the plantation belonged two-thirds to Mrs. Moussier and one-third to Mrs. White, always with the exception of the trifling fraction above mentioned. It will also have been observed, that Mrs. White, in buying out Paul Comen’s share, took his place as to liabilities for the debts of the first of these partnerships. Supposing, therefore, all the charges and credits of the three first accounts-current to be perfectly correct, the balances shown by the same would be due, as follows:

$3,408 94 balance of the first account.
•J- or $1,136 31 by Pierre Paul Comen, assumed by Mrs. White.
I or $1,136 31 by Mrs. Moussier.
■J- or $1,136 31 by Emma Comen.
$25,604 25 balance of second account.
3,408 94 being deducted therefrom, which is the balance due by the former partnership, although included in this account, and which we have already distributed,
Leaves $22,195 31 to be distributed as follows :
$ due by Mrs. White, equal to..'.$7,398 43.
§ due by Mrs. Moussier, equal to.1,398 43.
i due by Emma Comen, equal to.1,398 43.
$29,620 11 balance of the third account.
25,604 25 being deducted therefrom, as already distributed among the members of the previous partnership,
Leaves $4,016 52 to be distributed as follows :
$ due by Mrs. Moussier, equal to.$2,611 68.
i due by Mrs. White, equal to. 1,338 84.
Total due by plaintiff to Maunsel White, at the close of the third account, 1st of April, 1850.$11,212 42.
RECAPITULATION.
Due by the several partners in the Bellevue plantation to their factor, Maunsel White, upon the several balances of account-current rendered by Mr. White, to 1st April, 1850 :
1st. By Mrs. Moussier.$1,136 31
1,389 43
2,611 68-$11,212 42
2d. By Mrs. White.1,136 31
1,398 43
1,338 84- 9,813 58
3d. By Emma Comen.1,136 31
1,389 46— 8,534 11
Total.$29,620 11

It does not admit of discussion, that a partnership in a plantation and slaves employed in agriculture, is an ordinary partnership, in which the liabilities of the several partners are not solidary but joint, each being bound for the debts in the proportion of his interest in the concern. And yet we will find the settlement of the affairs of the Bellevue plantation, to be made on the footing of a solidary obligation, on the part of two out of three parties interested, for the whole amount of three accounts runniug through three distinct partnerships; in one of which partnerships, one of those two parties (Emma Comen) had no interest whatever ; while the third party, Mrs. White, who was liable, by contract, for one-third of the debts of the first of the three partnerships, and as partner, for one-third of the debts in the second and third partnership, is left entirely out of view, and treated as if she were under no liability whatever. The evidence of that settlement is contained in the fourth account, which we have copied above, and in the four notes of Emma Comen and the plaintiff, secured by mortgage, for the balance of the fourth account. We are next to inquire how this final balance, thus liquidated by mortgage notes, has been arrived at.

Commencing on the debit side with a statement of a balance due by Bellevue plantation, under date of April 1st, 1850, of $29,620 11, Mr. White proceeds, in the fourth account, to charge the plantation with the amount of two debts which he had paid; one to the Union Bank of Louisiana, and the other to Robert Patterson <& Co., of Philadelphia, which were mortgages resting upon the property when Mrs. White bought out the interest of Pierre Paul Comen, in December. 1841, and one-third of which she had assumed to pay in her contract of purchase' These debts amount to $11,890 40, of which two-thirds, or $7926 94 are chargeable to Mrs. Moussier, and one-third, or $3,963,46, to Mrs. White.

The next charge in this account which demands attention, is the item of $10,000 paid Mrs. White for her third of the plantation sold Mrs. Moussier and Emma Comen. The District Judge has rejected this charge, because the same is not proven, but on the contrary, the authentic act of sale by Mrs. White shows that the purchasers paid the price in cash in the presence of the notary. The following-are the expressions of that instrument, which was signed by Mr. White as well as by his wife: This sale is made for and in consideration of the price and sum of ten thousand dollars, which by the said purchasers has been in hand well and truly paid in lawful current money, at the execution of these presents, the receipt whereof is hereby acknowledged, and acquittance in full therefor granted by the vendor.”

Supposing that it was competent to defendant, as assignee of Maunsel White, to show that the money, thus acknowledged in the act of sale to have been paid by the purchasers in lawful current money, at the execution of these presents, was in reality paid by Maunsel White himself to his wife, and not by the purchasers (which is a point not necessary to determine), yet, some affirmative proof of such payment should at least have been administered, to overcome the solemnity of the acknowledgment to the contrary, signed by Maunsel White as well as by his wife. But defendant has offered no proof, oral or written, in support of the charge. The only witness who was questioned in relation to it (Miss Emma Comm, one of the purchasers from Mrs. White,) declared, on the trial, in answer to defendant’s queries, that she and her sister had paid the total of the price of Mrs. White’s third interest in the plantation, cash, with their own proper funds, and that no conversation took place between the parties at the time of the sale, in relation to Mr. White’s paying this price for the purchasers, and including it in the mortgage. The defendant has introduced a number of letters of this witness, expressive of limited means and pecuniary embarassments, to discredit this portion of her testimony. To the introduction of these letters in evidence, the plaintiff has excepted. But granting that they were properly admitted, and giving them all the effect which the defendant proposes, it is not seen that his case is much benefited. We are only rid of the testimony of one witness, elicited by himself, adverse to the charge in question. But the notarial act still remains, unrefuted, unimpeached, unexplained. It would be contrary to all principle and to all precedent, to allow a party to destroy his own act, by a mere side wind of suspicion.

Proceeding to the credit side of the account under consideration, we think Mrs. Moussier should only be credited with two-thirds, instead of the whole of the nett proceeds of 202 hogsheads of sugar and 100 barrels molasses, say $5,768 67, the other third to be credited to Mrs. White.

The District Judge was correct in holding the defendant to be bound by the equities which existed between the original parties to the notes and mortgage, two of the notes being past due when defendant acquired them; and the assignment and subrogation conferring no greater rights than the original mortgagee had.

Having thus corrected what we conceive to be errors in the accounts upon which the plaintiff’s notes were based, we have not been able to concur with the District Judge in relation to the rejection of items as having not inured to the use of the plaintiff. The production of proof for every small sum paid for a planter by his factor, is not easy, after many years have elapsed, and we think, that to require proof of the signature of the payee of every order of the planter on liis factor, is requiring too much. The authority of plaintiff’s husband to draw orders, must be inferred from the evidence. Such appears to have been the uniform course of business of the Bellevue plantation, after Mr. Paul Cornen ceased •to have an interest, and even before.

•The next ground of injunction is, that $3600 have been paid on account of the •mortgage debt, which are not credited in the writ of seizure and sale issued. This 'appears to be well founded, and the injunction must be perpetuated for so much.

As to the horses, mules, working oxen, cows, sheep and lambs, carts and farming utensils, which are advertised for sale, although not mentioned in the mortgage, 'we are of opinion that the mortgage covers them, although not expressed. The property mortgaged is a tract of land under culture as a sugar plantation. The animals and movables above enumerated, are evidently attached to this land for its service and improvement. They are, therefore, immovable by destination, and constitute a part of the plantation. C. C. 459.

' The petition next alleges that petitioner has suffered twenty thousand dollars damages by plaintiff taking illegal possession of the plantation of petitioner from •the 30th January to the 28th February, 1855, under the writ of seizure, and committing vai’ious acts of trespass and waste thereon, such as forcing- jjetitioner’s servants out of her use and employ, ruining.her field by mismanagement, preventing her from cultivating the same and planting therein the canes' which she had prepared and matrassed for the purpose, starving her cattle, destroying her poultry-yard, cutting down fruit trees, &c.

Upon this claim for damages, some evidence has been given of waste committed by the Sheriff’s keeper, who was put in possession of the property seized by that officer ; but no privity of the defendant is proved, and the plaintiff must look to the Sheriff for reparation of the tortious acts of his subaltern in the execution of the writ addressed to him. Sheriffs give bonds for the faithful and proper discharge of their duties; and litigants pursuing legal remedies, are not responsible for the Sheriff’s abuse of those powers which the law confers upon him as the executive officer of the courts of law. Mayes v. Schmidt & Co., 11 An. 476.

There is a further claim of twelve hundred dollars for travelling expenses and counsel fees in defending the executory process, which requires no further notice, •as plaintiff has introduced no evidence in support of it.

■' We state the indebtedness of the plaintiff to the original mortgagee, at the time the notes and mortgage were executed, (22d April, 1850,) as follows :

Balance of account April 1st, 1850,. $11,212 42

Add two-thirds of the Union Bank and Patterson debts paid by

Maunsel White. 7,926 94

Also 1- of items $57 50, $150, $112, $184 86, — total $504 36, in account under date of 2d April, 1850,... 336 24

$19,475 60

Or.

By j net proceeds sugar and molasses. $5,768 67

Balance in favor of mortgagee, bearing interest from April 22d,

1850, at 8 per cent. $13,706 93

To be credited with the sum, paid on the 4th of April, 1851, of... $5,057 08

And with the further sum, paid on the 15th February, 1853,- of... $3,600 00

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the writ of seizure and sale be reduced in conformity to the statement above written, and that the injunction be perpetuated for the surplus, without prejudice to defendant’s recourse against Emma Comen upon his mortgage ; that the injunction herein issued be perpetuated for the amount by which the executory process is hereby reduced as above; and that, for the remainder of the writ, after the reductions and credits aforesaid, the injunction be dissolved; and that the defendants pay the costs of the court below; those of appeal to be borne by plaintiff and appellee.

Spofford, J.,

dissenting. Wo all agree that the duress which forms the burden of the complaint in this case was insufficient to afford any ground for relief to the plaintiff.

There is no presumption of improper marital influence; because the notes were not signed with, nor for her husband, from whom the plaintiff alleges herself to be separated of property.

It is not now pretended that the husband received anything for the notes, or had any interest to induce his wife to sign them if she did not owe them.

The only ground left is that of error, which is most vaguely alluded to in the petition.

In this court, I understand the theory of the plaintiff’s case to be, that by ■mistake, she signed, and Maunsel White took her notes for about $20,000 too much, in executing a mortgage for about $43,000 only. To establish this, we are called upon to ignore one notarial act which she signed, and to give a literal and isolated interpretation in her favor to another, which she signed at the same time, and before the same notary and witnesses. I look upon these simultaneous acts as constituting one entire transaction; construing them thus, the plaintiff’s indebted-’ ness is established. . ■ . ■

And my review of the record has led me to the conclusion, that the evidence is not sufficiently cogent to overturn the notarial act of mortgage, and to sustain the plaintiff’s injunction on the ground of error to the extent of about $20,000. ;


author: Merrick, O. J.'

text:
    James Saunders v. J. W. Carroll et al.
    A defendant pleading prescription may be interrogated, as to any acknowledgments or promises lie may . have made, before prescription has been acquired.
    The Act of 1858, which, provides that parol evidence shall not be admitted to prove a promise to pay any writton obligation when prescription has already run, but that in all such cases tho promise to pay shall be proven by written ovidenco, is an Act affecting the remedy, and must be held to apply only to tho proof of promises made subsequent to its passage.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Simmonds é Fenner, for plaintiff. Singleton <& Clark, for defendants and appellants.'
   Merrick, O. J.'

This suit 'is brought against two members of the 'firm of Buchanan, Carroll <&, Co. upon a draft accepted by them. The draft was drawn on the 1st of Marcha 1850, on the acceptors, at eight months, and payable to the order of the plaintiff for $2006 29. It was not presented to the acceptors for payment until more than five years after its maturity. The suit was commenced on the 22d day of May, 1857.

The defence is the plea of prescription. To show interruption of prescription, the plaintiff, among other things, propounds interrogatories on facts and articles which have been taken as confessed.

The defendants excepted to the interrogatories, and declined answering them until their exceptions were overruled.

Certain of the interrogatories inquire of the defendants whether at certain times therein mentioned, (the same being before the expiration of five years,) they did not state to the individuals named, that said debt was then due and unpaid ?

This portion of the interrogatories is not satisfactorily answered, and the question is presented, whether the court could compel the defendants to answer the interrogatories ? This point was decided in the case of Levistones v. Marigny, 13 An., in the affirmative, and we see no reason to doubt the correctness of the conclusions in that case.

It is true that the debtor, in order to interrupt prescription, cannot be called upon to swear whether the debt has or has not been paid, because good faith is not required in order to prescribe. Art. 3515 0. 0. But the Code does not prohibit the plaintiff from proving, by propounding interrogatories to his adversary, any other fact needed to make out the case.

The Code declares that an acknowledgment of the debt by the debtor interrupts prescription. 0. 0. 3486, 3516, 3517. What good reason can be assigned why the fact of acknowledgment may not be proven by the highest sort of evidence, viz : the admission of the debtor on interrogatories on facts and articles ? The question is not then, has the debt, been paid, which is prohibited, but, did you at such a time and to such a person admit that you owed the debt ? did you at such a time promise to pay the debt ? or, did you at such a time make a payment of so much upon the debt ? or the like. Here the interrogatory goes to a fact which hitherto at least might also be proven by testimonial proof, and does in no manner raise the question of the good or bad faith of the debtor. If the question is, did you promise to pay ? the affirmative answer establishes a new contract: the pact constitum pecunia. If a partial payment, then a tacit acknowledgment which leaves the residue of the debt free from any question of honesty or of the good or bad faith of the debtor in pleading prescription, and his plea is not to be tainted by the imputation that it is opposed to a demand valid in the estimation of all honorable men. If prescription has been acquired, it is for the debtor alone to determine whether it is right or wrong to avail himself of the shield furnished him by the law. But the creditor has the right to prove any fact which shows that the debtor has in truth never acquired prescription, and this may be done by propounding interrogatories as well as by testimonial or written proof.

We think, therefore, that the plaintiff had the right to propound the interrogatories, and in default of a legal answer, to take the same as confessed.

But it is urged that the Act of 1858, which provides, that hereafter parol evidence shall not be received to prove any promise to pay any written obligation when prescription has already run, but that in all such cases the promise to pay shall be proven by written evidence, is an act affecting the remedy, and, therefore, applicable to the case before us. Acts of 1858 p. 148, sec. 4. This section of the Act, if at all applicable to a case of this kind, we are of the opinion, must be held to apply to the proof of promises made after its passage. To construe it as referring to antecedent promises would be to violate the well settled rules of construction, as well as to impair the obligation of contracts. Leges et constitutiones futuris cerium est dare formara negotiis, non ad facta prceterita revocari, nisi nomm-atim et de prceterito tempore ct adhuc pendentibus negotiis cautum sit. Code, lib. I, tit. 14, Const. 7.

No general or special legislative Act can be so construed as to avoid or modify a legal contract previously made. C. C. Art. 1940, No. 1; C. C. 8 ; Mackeldy, parte spéciale, sec. 467.

Taking the interrogatories as confessed, and in connection with the same, the letter of October 10th, 1856, it leaves the defendants without any further reply to plaintiff’s demand.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Merrick, C. J.

text:
    Thomas Buckley v. F. Lacroix and the City of New Orleans.
    The failure of the appellant to file the transcript of appeal on the last judicial day, will not he excused on the ground of the Clerk’s office being closed earlier than usual; in the absence of proof of the time of day when the attempt was made to file it, the presumption being that it was after business hours.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Hunton & Miller, for plaintiff. Collens & Wooldridge and J. J. Michel, for defendants and appellants.
   Merrick, C. J.

The appeal in this case was not filed until after three judicial days after the return day. The city of New Orleans has moved for the dismissal of the appeal.

We think the motion must prevail.

It appears that the transcript was completed on the last judicial day, and the Deputy Clerk employed upon the same undertook to file it in the office of the Clerk of the Supreme Court; that he went in the evening to file the transcript but found the Clerk’s office closed earlier than usual; that he searched for the Clerk, but did not find him that evening, and that he filed the transcript early the next day.

We have not heard it pretended that the Clerk’s office was not open as usual during business hours, and in the absence of proof of the time of day when the agent of the appellant went to file the transcript, we must presume that it was after business hours, and that the failure to file the transcript was the fault of the appellant.

It is, therefore, ordered, adjudged and decreed, that the appeal in this case be dismissed at the costs of the appellant.


author: Merrick, O. J.

text:
    J. B. Morgan v. Seth W. Nye.
    Since ttie statute of 1843,-a bare majority of the creditors of an insolvent have the power to grant a respite and thus postpone the payment of the debts of the minority.
    The vote-of a single creditor for a respite, is nota more offer to make a new contract between the creditor and debtor, but is a quasi judicial act by which the rights óf othor creditors are to be affected.
    Any agreement of the debtor to buy the vote of a creditor by giving security for the payment of his debt, must be considered as fraudulent, and the creditor whoso vote is thus bought, cannot recover the amount of his debt against the surety furnished by his doctor, as the contract must bo considered as a perversion of the course of justice, and a fraud upon the court charged with the homologation of the deliberations of the creditors.
    from the Fifth District Court of New Orleans, Eggleston, J.

      H. T. Hays and 'Henry- M. Spofford, for plaintiff and appellant. John H. Holland, for defendant.
   Merrick, O. J.

The plaintiff is a resident of Pennsylvania. He had a claim against Henry S. Sherman for $2,474 12. Being about to proceed in the United States Circuit Court to collect the debt, the plaintiff was induced to desist and vote; for a respite upon the verbal agreement of the defendant to stand security for the debt. It is shown that Sherman.eovld not have obtained the respite without the plaintiff’s vote, and that other creditors, in ignorance of the private agreement, were governed by this vote, and voted accordingly, which resulted in a respite.

In a little over a year afterwards Sherman made a surrender, which produced on this claim $420 11.

This suit was brought to recover of Nye the amount assumed by him.

The defence to the action is that the contract is illegal. The Judge of the District Court being of this opinion, gave judgment for defendant, and plaintiff appeals.

On behalf of the plaintiff it is contended in substance, that Sherman represented himself to be solvent when the agreement was made, and that the application for and obtaining a respite is no evidence of insolvency, and that the surrender made fourteen months afterwards cannot have a retroactive effect, so as to render invalid an agreement made at a time when the creditor did not suspect his debtor to be insolvent.

We think that it is a matter of no consequence, so far as it concerns this case, whether Sherman was or was not insolvent. It is evident that the agreement was entered into for the purpose of obtaining Mwgan’s vote in favor of the respite, and also thereby to influence other creditors. And this result was obtained.

Since the statute of 1843, a bare majority of the creditors have the power to grant the respitd, and thus postpone the payment of the debts of the minority. The vote, therefore, of a single creditor, is not a mere offer to make a new contract between the creditor and debtor, but is a quasi judicial act by which the rights of other creditors are to be affected.' Hence, any agreement of the debtor to buy the vote of a creditor, by giving security for the payment of the debt, must be considered a perversion of the course of justice,' and a fraud upon the court charged with the homologation of the deliberations of the creditors. Such a contract.cannot be enforced. See Slidell v. Pritchard, 5 Rob. 104, and authorities there cited.

Judgment affirmed.


author: Oole, J.

text:
    Moses A. Jamison v. Isaac Bridge et al.
    A slave cannot be & party in anj’ civil action, either as plaintiff or defondaut, except when he lias to claim or prove his freedom. C. C. 177.
    As emancipation is now prohibited in this State, a slave cannot prosecute a suit for his freedom. Session Acts 1857, p. 55.
    appeaL from the Second District Oourt of New Orleans, Morgan, J.

      Ogden & Leovy, for plaintiff and appellant. T. H. Howard, for defendants.
   Oole, J.

Petitioner avers that in 1836, he was sold to Jeremiah Berry, but for a cause unknown to petitioner the title was not taken in the name of Berry, but in that of Ms daughter, now deceased, who was then the wife of Isaac Bridge; that after the purchase he remained in possession of Jeremiah Berry as his property, and the said Berry acquired a title by prescription; that in 1855 Berry died, leaving an olographic will, which has been probated; that Berry, in the will, donated to petitioner his freedom; that Isaac Bridge, the husband of Mary Berry, in whose name petitioner was purchased, for himself and as tutor of his minor children, now claims and asserts a title to petitioner.

The petition concludes with a prayer that defendants be prohibited from asserting any claim to petitioner, and that so far as the defendants are concerned, petitioner be declared to be free.

The judgment was for the defendants, without prejudice to the rights of the succession of Jeremiah Berry.

A slave cannot be a party in any civil action, either as plaintiff or defendant, ■except when he has to claim or prove his freedom. 0. 0., Art. 117.

As emancipation is now prohibited, plaintiff cannot prosecute this suit for. his freedom. Session Aqts 1857, p. 55.

It is objected by plaintiff, that this suit is not only one for freedom, but also for the determination of the question, whether the Succession of Jeremiah Berry, or that of his daughter, be entitled to petitioner as a slave.

The sole interest of plaintiff in this question is, that he may successfully enforce his suit for freedom, aud as this is impossible under the law as it now exists, it would be useless to enter into such an investigation.

The judgment ought to have been one of nonsuit, for the plaintiff may hereafter have a right of action for his freedom, if he be entitled to it, in the event oif a change of the law relative to emancipation.

It is, therefore, ordered, adjudged and decreed, that the judgment be so amended, that there be judgment against the plaintiff as in case of nonsuit, instead of a final judgment for the defendants; and that the judgment so amended, be affirmed ; and that appellees pay the costs of appeal.


text:
    Jeanette Mock v. J. M. Kennedy.
    Where ail officer in executing a writ of fieri facias against the husband, seizes property which he has good reasons to lenow is tho separate property of the wife, he is responsible to her in damages for such illegal seizure.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    XX 0. & C. E. Schmidt, for plaintiff. T. J. Semm.es, for defendant and appellant.
   Land, J.

The defendant has appealed from a judgment condemning him to pay two thousand five hundred dollars damages, for the illegal seizure of the plaintiff’s property, under a writ oí fieri facias, issued in the suit of Robertson & Hudson v. Auguste Rose, the plaintiff’s husband, from the United States Circuit Court for the Eastern District of Louisiana.

It appears from the evidence, the property seized consisted of a stock of dry goods, in a store-house situate at the corner of Girod and Tchoupitoulas streets in this city, and was in the possession of the plaintiff, who was carrying on business in her own name, as a public merchant, and was separated in property from her husband. It further appears from the evidence, that the defendant had previously seized the stock of goods in possession of the plaintiff, in the same store-house, in the suit of A. Journay & Co. v. A. Rose, her husband ; that she enjoined the sale, and upon the trial of the injunction suit, she was decreed to be the owner of the property seized, and the defendant perpetually enjoined from selling the same under the writ oí fieri facias then in his hands.

It further appears that the defendant was enjoined from selling the goods seized in the suit of Robertson & Hudson v. A. Rose, and that this injunction was also peipet-uated, on the ground oí plaintiff’s separate ownership of the property seized, and that the judgment was affirmed on appeal to this court.

It, therefore, is manifest, that the defendant had good reasons to know that the property seized at the suit of Robertson & Hudson was not the property of the defendant in execution, but the separate property of this plaintiff before, and at the date of the seizure, and that he was committing an act of tresspass and wrong at the instance of the plaintiff in execution.

The damages allowed by the District Judge are heavy, but, under the circumstances of the case, we do not think them excessive.

It is, therefore, ordered, adjudged and decreed, that tho judgment be affirmed, with costs in both courts.


author: Merbiok, O. J.

text:
    Robert McCulloch, Administrator, v. J. D. Weaver.
    Where tlie purchaser of property at a succession sale had gone into possession of |;he_ property .and complied with the terms of the sale, by making a cash payment and furnishing his notes fer tile balance of the price — Held: That the administrator could not sue to rescind the sale, on the^puinj - of defects in the title of the purchaser.
    from the Second District Oourt of New Orleans, Morgan, J.

      Benjamin, Bradford & Finney, for plaintiff. T. A. Bartlett, for defendant and appellant.
   Merbiok, O. J.

We take this case as stated by the counsel for the appellee, merely premising that the decision of this court referred to, was one against José Martinez, and not against the defendant, Weaver. It is stated as follows :

“ In pursuance of an order of the Second District Oourt of New Orleans, the property belonging- to the successions of Newland and Eliza Holmes, of which the plaintiff is the curator, was sold. At this sale, the defendant, Weaver, purchased a house and lot at the price of $2075, payable as follows :

“ 1. Cash, $518.

2. Three promissory notes for $51 87i each, payable at one, two and three years after date, $155 62.

“ 3. Eight promissory notes, each for $116 71, payable at one and two years after date, $933 68.

“ 4. Pour promissory notes, for $116 73| each, payable at three years after date, $466 94.”

“ The sale was executed, and the defendant took possession of the property, which he has ever since enjoyed.

It was afterwards decided by this court, that the sale thus made, was invalid. “ Your Honors say : “ This is a suit for partition, instituted by one representing himself to be the attorney in fact of an absentee, who is of age, against the co-heirs of said absentee, two of whom are of full age, and two minors. The two minors are cited through their tutor, Thomas Mushaway. Mushaway appeared, and denied the power of attorney of the petitioner, and pleaded several other exceptions. The two defendants who are of age filed their consent to the partition ; and the court, on the ex-parte motion of the counsel of the plaintiff, ordered a sale of the property, without a formal judgment of partition, and without the dilatory and declinatory exceptions of the tutor of the minors having been disposed of.

Your Honors have thus decided, as we understand, that the sale thus made was in pursuance of a judgment rendered ex-parte, under circumstances which did not warrant the exercise of any such authority by the Judge of the Second District Oourt of New Orleans. The order was certainly of no legal effect. The sale had been executed, as we have said, and the defendant was in possession of the property, enjoying its fruits and revenues; but the sale was unquestionably null, being a sale of the property of a succession belonging in part to minors, in the absence of any legal showing, of all circumstances and of all formalities, which the law requires to support such an alienation. Both parties, then, the curator as well as the defendant, were in a false position.”

“ The defendant had the property, but no title; and the curator had the defen-¿lírnt’s notes for the purchase money, which wore without consideration, and could not be collected. Justice required that the sale should be rescinded, and both parties placed where they were before the sale. Acting upon this view, the curator tendered the defendant all the money which he had paid, with eight per cent, per annum interest from the date of payment, and all the notes which he had given for the credit part of the price, and demanded a reconveyance of the property and an account of the rents. The defendant offered to reconvey, upon receiving the cash paid with interest, and his notes, and upon the further condition, that he should be allowed to retain the rents and revenues.”

The distinction between the present case and that of Martinez exists in the fact, that Weaver complied with the terms of sale, and went into the possession of the property, whilst Martinez refused to accept the sale and comply with its terms, because there was a cloud upon the title offered him. The cases are, -therefore, different, and are governed by different provisions of law, as is explained in the case of Gassen v. Palfrey, 9 An., 560, referred to by the court, as decisive of the case of Martinez. But in this case, Weaver has gone into possession, and complied with the terms of sale, without discovering or caring to urge the defects which are said to exist in the title. He says now, that he is content with the title which he has acquired, and that he will risk any disturbance, relying solely .upon his right to demand security for the restoration of so much of the price as remains unpaid, whenever he shall be called upon to pay the same.

As Weaver has no action against the administrator to rescind the sale until evicted, so also he cannot be compelled to rescind against his will, and he may well impose any conditions he pleases upon all parties bound by the sale who 'demand a rescission. C. C. 2476, 2535, 2538 ; 7 N. S. 272 ; 2 L. R. 242 ; Bessy v. Pintado, 3 L. R. 490 ; 16 L. R. 505 ; 10 L. R. 120; and Succession of Devereux, 13 An. 33.

It may be that the cloud which rested upon the title of the purchasers will be removed by a final deeree of partition, and that the minor heirs, when they shall arrive at the age of majority, will neither find it their interest nor inclination to disturb the defendant.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment . of the lower court be avoided and reversed, and that the said rule taken against the said Joseph D. Weaver be discharged, and that the appellee pay the costs of both courts.


author: Mekeick, C. J.

text:
    S. D. McCutcheon v. John Angelo.
    Proof of possession as owner is sufficient to maintain an action of damages for injury done to a slave. The authority given by law for the use of fire-arms by freeholders, in the arrest of slaves under certain circumstances, is not to be extended beyond the express terms of the statute.
    from the District Court of the Parish of Plaquemines, Foulhouze, J.

      J. M. Davidson, for plaintiff. Collens & Wooldridge and J. McConnell, for defendant and appellant.
   Mekeick, C. J.

The plaintiff is the owner of a negro slave, whose eyesight was utterly destroyed by shot fired from a gun by the defendant.

It seems that some one having heard a noise in Angelo’s yard, informed him of the fact; whereupon he took his gun, went upon the gallery, and seeing some one going from his chicken-house, he called three times to the person to stop, which not being done, he fired; he then went out to. catch and tie the man, but was prevented by the witness and two others, and by the running away of the person at whom he shot.

The person shot proved to be the slave of plaintiff, who lived a short distance from the defendant, on the opposite bank of the Mississippi River.

The action is brought to recover damages for the injury to the slave, which deprives the owner of his services, and entails upon him the charge of taking care of a negro who has thus become helpless and a constant burden upon the owner.

The defence to the action pleaded in the answer, is a general denial and a claim in reconvcntion of $1500 for the libel contained in plaintiff’s petition, and the damage occasioned by the action.

Judgment was rendered in favor of plaintiff for $1500, and the defendant takes a devolutive appeal.

I. The first ground of defence assumed in this court is, that there is no written evidence of title adduced by the plaintiff. We are of the opinion, that the proof of plaintiff’s possession as owner was sufficient to enable him to recover. Wrongdoers and tresspassers, without color or title, cannot compel parties in possession, as owners, to exhibit their titles.

II. We see no objection to the testimony of Dr. Eagan as to the value of the negro. He states that he believes the negro to have been worth $1800. Witnesses commonly testify to value in this manner, and if the negro did not possess the usual qualities of slaves of his ago or appearance, defendant could have shown it by a cross-examination or other proof.

III. It is further contended, that the law authorized the course pursued by defendant, 1st, because the negro was committing a felony, and 2dly, because he did not stop when commanded. The facts do not sustain the first of these positions. As it regards the other, it is true that it is provided by law that “ if any slave shall be found absent from his usual place of working or residence, without some white person accompanying him, and shall refuse to submit himself to examination, any freeholder shall be permitted to seize and correct him; and if he should resist or attempt to escape, the freeholder is authorized to make use of arms, but to avoid killing the slave; but should the slave assault and strike him, he is authorized to kill him.” Bullard & Curry’s Digest, pp. 53, 54, and Rev. Stat., p. 59, sec. 11. But the defendant has not relied on this statute, as a justification, in his answer, and the proof does not enable us to say that he was a freeholder, or had any right to use fire-arms in order to compel the negro to submit to an examination, if such were his object.

On this branch of the case, we adopt with approbation what was said in the case of Blanchard v. Dixon, 4 An., 58. Mr. Justice King, as the organ of the court, says :

“ The provisions of the sections under consideration are departures from the general law, and must be strictly construed. In the absence of this express legislation, no citizen could legally assume to interfere with the property of his neighbor in the manner authorized by the statutes. The extraordinary powers it confers in relation to slaves, has been confided to a certain specified class of citizens, to whose prudence and discretion the Legislature supposed they could be safely intrusted. Freeholders alone are authorized by the law invoked, to seize aü(j correct slaves who are found absent from their homes, without a written permission and unaccompanied by a white person, and to use arms in the event of resistance or of an attempt to escape. The authority cannot be extended beyond the express terms of the statute.”

“ The defendant could only have availed himself of the protection of the statute on which he relies, by bringing himself within its provisions, and showing himself to be a freeholder. This he has neither alleged nor proved; and under the evidence, we think he is answerable for damages which the plaintiff has'sustained.”

The case of Dupérier v. Dautrive, 12 An. 664, relied on by defendant, is not in point. The parties who attempted to arrest the slave in that case, composed the patrol, and were in discharge of a duty imposed by law.

The case of Bibb v. Hebert, 3 An. 132, was that of one slave killing another, and of course, the statute under consideration could not apply.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed with costs.


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    Reding, Pasteur & Co. v. T. Ridge et al.
    An affidavit to obtain, an attachment, that the plaintiff really believes and has just grounds to apprehend that the defendant may depart from the State, &c., is insufficient. The affidavit must be positive as required by Art. 242 of the Code of Practice.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Michel <& Koontz, for plaintiffs and appellants. J. McConnell, for defendants.
   Land, J.

The plaintiffs are appellants from the judgment dissolving the writ of attachment issued in this case.

The District Judge, in his reasons for judgment, says : “ The affidavit in this case, alleges that the affiant verily believes and has just grounds to apprehend that said Thomas Ridge may depart from the State of Louisiana permanently, without leaving in it sufficient property to satisfy plaintiffs’ demand.

This is somewhat too uncertain to come within the strict meaning of the law ; the affiant should state that he believes that the defendant is on the eve of, or about leaving the State permanently.

The word ‘ may,’ intimates a doubt in the mind of the affiant, and leaves the time of the departure very indefinite, ‘ non constat,’ that defendant will depart before the plaintiff can obtain a judgment or have his property seized.”

We concur with the District Judge, that the affidavit should have been positive as required by Article 243 of the Code of Practice.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs, and that the cause be remanded for further proceedings according to law.


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    City of New Orleans v. Eliza Costello.
    Assuming that the tax of $250 assessed against every person wlio hoards or rents rooms to lewd and abandoned women is legal, the city authorities might be authorized to impose a penalty upon all persons who should set up the occupation or open a house of the description, without first taking (fut a liconse. This would be a mere police regulation.
    The corporation, however, excoeds its powers in imposing imprisonment of not less than one calendar month, by the ordinance of March 10th, 1857.
    Section 3d of the ordinance authorizing a prosecution before the Kecorder, does not violate Article 103 of the Constitution.
    The fourth section of the ordinance under which this suit is instituted, as amended by the first section of the ordinance of 27th of March, 1857, does appear to violate sections 103 and 105 of the Act of 1856, pp. 158,159.
    The ninety-second section of the Act of 1855,p. 144, relative to crimes and offences, does not prevent the city from levying a tax upon boarding houses kept for thesopeople, provided they do not license houses of this class.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Laville <& Morel, for plaintiff and appellant. L. M. Day and M. M. Reynolds, for defendant.
   Merrick, C. J.

This suit is instituted to recover of the defendant a tax of $250 assessed under an ordinance of the city of New Orleans of 10th of March, 1857, levying a tax of that amount against every person who hoards or rents rooms to lewd and abandoned women.

The defendant excepted, that the ordinance is' illegal, unconstitutional and void. Judgment being for the defendant, the city appeals.

We have thought it best in this case, briefly to consider the objections to the ordinance, although a single objection may be decisive of the case.

Assuming that the tax is legal, the city authorities might be authorized to impose a penalty upon all persons who should set up the occupation or open a house of the description without first taking out a license. Por such, we think, would be a mere police regulation rendered necessary by the character of the occupants and visitors of the house, and the danger of disturbance of the public peace.

This regulation the city has the power to inforce, by a penalty not exceeding one hundred dollars fine, and in default of paymént, by imprisonment not exceeding one month.

But as the ordinance declares that the imprisonment shall not be less than one month, perhaps that and the law together would be construed to mean that the imprisonment shall not be less than thirty days, nor more than one calendar month, but then it might happen that the calendar month in question would be less than thirty days. Hence, whether the month be taken to be either lunar or calendar, the imprisonment exceeds the power of the corporation. See French Penal Code, Art. 40 ; 1 Co. Litt. 135-6 ; 2 Black. 141; 4 Kent Com. 94, 95, note ; 1 Bouvier Inst. p. 284; United States Dig. vol. 3, No. 30 ; C. C. 2055 ; 6 Term. Rep. 224.

The case of Municipality No. 1 v. Pance, 6 An. 515, is not in point. For the penalty there imposed, was to enforce the collection of a tax. See Guillotte v. City of New Orleans, 12 An. 432; Acts of 1852, p. 48, sec. 22, and 1805, p. 52; Revised Statutes of 1852, p. 112, sec. 29, and p. 114, sec. 35; Revised Statutes, p. 373, sec. 62.

The 3d section of the ordinance authorizing a prosecution before the Recorder, does not violate Article one hundred and three of the Constitution, which requires prosecutions to be by information or indictment, because the same Constitution expressly authorizes the Legislature to vest in the city Recorders such criminal jurisdiction as may be necessary for the punishment of minor offences and crimes, and as the police and good order of this city may require. Art’. 124. And this power has been conferred upon the Recorders by express legislation. Act 1856, p. 142, sec. 28 ; Act 1852, p. 48, sec. 22, and p. 49, sec. 27 ; Act of 1836, p. 35, sec. 19 ; Act of 1840, p. 50, sec. 5 ; and Act of 1820, p. 20, sec. 1; Revised Statutes, 1852, p. 141, sec. 133.

The fourth section of the ordinance under which this suit has been instituted, as amended by the first section of the ordinance of 27th of March, 1857, does appear to violate sections 103 and 105 of the Act of 1856, pp. 158,159. Because the fourth section of the ordinance is clearly a tax known as a license on a calling, and was (under the law as it then stood) payable in the month of January, and must expire the 31st day of December of each year.

This section is as follows :

Sec. 4. Be it ordained; &c.; That an annual license tax of one hundred dollars be, and the same is hereby levied upon each and every woman or girl notoriously abandoned to lewdness, occupying, inhabiting, or living in any house, building or room within the limits prescribed in the first section of this ordinance, but not in contravention thereof, and an annual tax of two hundred and fifty dollars upon each and every person keeping any house, room or dwelling for the purpose of renting rooms to, or boarding lewd and abandoned women, which said tax shall be payable in advance on the first day of April of each year.”

Now, as the ordinance makes the annual tax payable in advance, on the first day of April of each year, the license is continued by implication to the first day of April, and the portion of the ordinance under consideration is in contravention of the Act of the Legislature, and so far void. See Acts 1858, p. 1.

The case might have been different, perhaps, if the ordinance had simply levied a tax for the year 1857, leaving the license to expire December 31st of that year, instead of prescribing regulations different from the statute.

The 92d section of the Act of 1855, p. 144, relative to crimes and offences, does not prevent the city from levying a tax upon boarding-bouses kept for these people, provided they do not license disorderly houses of this class.

And, because the calling is subject to taxation, it by no means follows, that a house kept for this class of people shall be subject to the same tax as other board-ing7houses, merely because the city ordinance calls the house a boarding-house for lewd and abandoned women, instead of using the true or another name for the • establishment. We can discover no reason why such establishments should be • classed with respectable boarding-houses, and subjected to a tax uniform with them.

We do not perceive in what particulars sections 11 and 14 of the ordinance , are in conflict with the Constitution of the United States. See 12 An., p. 434.

Judgment affirmed.


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    E. S. Green v. S. K. Green.
    The reputed father of a child, who has introduced the mother as his wife and the child as his son, will not he permitted afterwards to bastardize such issue.
    PPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.
    XA U. B. c6 E. Phillips, for plaintiff. W. Beatty, W. Cooley and C. Roselius, ■for defendant and appellant.
   Oole, J.

This suit is instituted by the plaintiff, as heir of his mother, to recover certain slaves inherited by him from his deceased mother, -which are now in possession of the defendant.

The evidence establishes that his mother formerly lived with the defendant, that he introduced her into society as his wife, and they were regarded by the com'munity as man and wife; that he and his supposed mother acknowledged petitioner to be their son, and they treated him as such ; that they afterwards separated, and Mrs. Green married Mr. Ives, from whom she also separated and returned to Mr. Green with whom she lived till her death, which took place a few months after her arrival.

It is also shown, that at the time of her death she was the owner of the slaves now sued for, that she died at the house of the defendant, who took all of the slaves into his possession.

That defendant afterwards married Miss Birdwett, by whom he has several children.

Defendant answered by a general denial, and claimed to be the owner of the negroes, but he has failed to exhibit any title to the same.

Before going into the trial, defendant filed a motion requiring plaintiff to elect . whether he would claim as the legitimate or illegitimate child of his mother.

The motion was properly overruled.

. It is sometimes impossible for a child to know with certainty whether he be legitimately begotten or not; besides, the motion came with a bad grace from the one presumed to be the father, who was, perhaps, better able to give information upon the subject than any other person.

■ We are of opinion, that the introduction to the world, by defendant, of Mrs. . Green, as his wife, and plaintiff as his child, joined with the recognition of plaintiff by Mrs. Green as her child, prevent defendant from now successfully seeking .'to bastardize plaintiff in order to enjoy the possession of property which never belonged to him, and for which he has .no title whatever.

Judgment affirmed, with costs.


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    State v. C. Rolland.
    Where in a criminal case the Judge a quo refused an application for a new trial, based on the ground of newly discovered testimony and the Mure of the Sheriff to summon witnesses, stating that he disbelieved the affidavit of the accused — Held: That file refusal to grant a new trial could not on appeal bo assigned as error.
    An indorsement or memorandum of the Clerk upon the indictment is not properly a part of the record.
    from tlie First District Court of New Orleans, Hunt, J.

      Vaughn <fi Thomas, for appellant. M. A. Foute, District Attorney, for the State.
   Merrick, O. J.

The accused in this case is sentenced to two years imprisonment in the penitentiary.

He appeals, and his counsel assigns as error the refusal of the Judgá a quo to grant a new trial and a rendition of judgment without reasons.

The application for a new trial was based on the ground of newly discovered testimony and the failure of the Sheriff to summon witnesses. The District Judge states that he disbelieves the affidavit of the accused. It is, therefore, clear that no question of law can be predicated upon the refusal of the Judge to grant the new trial. See State v. Johnson, 11 An. 422, and cases there cited.

The judgment is as follows:

“ And the said Constantine Rolland being present at the bar, in the custody of the Sheriff, and being ready to receive the sentence of the law on the verdict of the jury of 26th May, 1858, finding Mm guilty of embezzlement, and having nothing to offer in arrest of judgment — it is ordered, that in consideration of the above verdict and the 81st section of an Act of the Legislature of the State of Louisiana, entitled An Act relative to crimes and offences, approved 18th March, 1855, that the said Constantine Holland for his offence aforesaid, viz : embezzlement, be sentenced to two years imprisonment at hard labor in the penitentiary, and to pay the costs of this prosecution.”

The foregoing judgment does not violate the Constitution, for it is manifest it was not rendered without reasons.

The supposed judgment to which we have been referred by the counsel of the accused is but an indorsement or memorandum of the Clerk upon the indictment. It is properly no part of the record.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.


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    Pelagie BROWN, f. w. c. v. Ursin Raby.
    A slava claiming to be a siaiu liber, whose master is a resident of another State, cannot have her rights judicially investigated in this State. She should resort to the courts of the State in which her master is domiciliated.
    Under our present law no slave can bo emancipated, and a slave’s right to freedom cannot be established here according to the laws of another State.
    from the Fourth District Court of New Orleans, Price, J.

      H. Gaither, for plaintiff and appellant. T. Drouet, for defendant.
   Oole, J.

Plaintiff was arrested and lodged in jail as a runaway slave belonging to defendant; whereupon she presented a petition, averring that she was purchased from Mary Walker, her former mistress, by Branch Walden, who lives in the city of Mobile, with the special condition of emancipating her ; that she is a statu liber by the laws of Louisiana, and is entitled to be emancipated ; that the said Walden will emancipate her, as soon as he will come to New Orleans ; that she is entitled to the protection of the laws of Louisiana to prevent the defendant from removing her from this State, and prays for a writ of sequestration ordering the Sheriff to sequester her, until Walden comes to the city to set her free.

In accordance with her prayer she was sequestered.

A motion was afterwards made to dismiss the suit on several grounds.

The suit was dismissed and plaintiff has appealed.

The evidence establishes that the defendant is a resident of the State of Mississippi ; that he came to New Orleans with plaintiff in his possession, and a short time afterwards he was obliged to leave the city without plaintiff) she having run away.

We are of opinion that she ought not, under such circumstances, be permitted to have her rights judicially investigated in this State, but ought to resort to the courts of Mississippi, where her master resides. Marshall v. Watregant, 13 An.

Besides, she claims to be emancipated by Walden, who is not a party to the suit.

The counsel of plaintiff has asked us to have the case remanded in order to enable plaintiff, with the aid of amended pleadings, to try the case on its merits, and establish the validity of her claim to freedom according to the laws of Alabama.

It would be useless to remand the cause, as under our present laws no slave can be emancipated.

Judgment affirmed, with costs.


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    State of Louisiana v. Joseph Lindsey.
    Tho refusal of the Judge of the criminal court to grant a continuance on tho affidavit of tho accused, which the Judge did not heliovo to be true, cannot be assigned as error of law on appeal.
    After the jury list had been called over in the presence of the accused and his counsel, and live jurors had been sworn, and four peremptory challenges had been made by the prisoner, his counsel moved for a continuance, on tho ground, that various jurors in tho list were not in attendance, nor within the jurisdiction of the court, and wore not liable to jury service, and that some of thorn had been excused previous to tho list being served on the prisoner — Mdd: That the accused must be considered as having waived any objection ho may have had to tho panel, and that it was too late to move for a continuance.
    PPEAL from the First District Court of New Orleans, Hunt, J.

      E. W. Moise, Attorney General, for the State. A. P. Field, for defendant and appellant.
   Merrick, C. J.

The accused having been convicted of a capital offence and sentenced to undergo the penalty of death, has taken this appeal.

No assignment of error has been made ; no brief has been filed, nor oral argument presented to this court on behalf of the prisoner.

Not knowing, therefore, on what particular grounds the accused expects a reversal of the judgment of the lower court, we shall examine his bills of exception and such grounds contained in the motion for a new trial, as are proper to he considered by this court.

I. The first bill of exception is to the refusal of the Judge to grant a continuance on the affidavit of the counsel on account of the non-attendance of certain witnesses. The District Judge did not credit the affidavit. No question of law is, therefore, presented by this bill. See State v. Kennedy, 11 An. 479.

II. It appears by the second bill of exception, that after the jury list had been called over in the presence of the accused and his counsel, and after five jurors had been'Sworn, and four peremptory challenges had been made by the defendant, and after the thirty-fourth juror on the list had been called to the book, the counsel for the accused moved the court for a continuance, on the ground, that various jurors in the list served on the 24th of April were not in attendance, nor within the jurisdiction of the court on the 24th of April, and not liable to jury service, and some of them had been excused previous to that time, and ought not to have been placed on the list, inasmuch as it was calculated to embarrass and confuse defendant in his selection of a jury; said list being insufficient in law and not a compliance therewith. That the court overruled the motion and the accused excepted.

It further appears, that some of the jurors had been excused for sufficient cause, and that others were absent from the city or not served, and others who were in the city, and whose presence could have been procured by the process of attachment, were not in attendance. The list consisted of seventy-two jurors, twenty-four of whom, including those excused and absent, were not present on the day of trial. But it does not appear that the accused made any objection to proceeding to empannel the jury until five jurors were sworn, nor that he required the absent jurors to be brought in by attachment, before proceeding with the cause. The accused must, therefore, be considered as having waived any objection he may have had to the panel, and it was too late to move for a continuance on that account. State v. Benjamin, 7 An. 47 ; same v. Viaux, 8 An. 514; same v. Maxant, 10 An. 743 ; same v. Jackson, 12 An. 681; same v. Nolan, 15 An. 276.

III. As to the motion for a new trial, the only matters which we can consider are those contained in the bills of exception, which are reiterated in the motion.

We have nothing to add to what we have already observed in regard to the bills of exception. If the bills show no error, it was not error to refuse a new trial on account of matters therein set forth.

We discover no error in the record to justify a reversal of the judgment.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.


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    Elisha S. Austin v. James Vaughan and E. Hill.
    A partner cannot obtain judgment against his copartners for a debt due him by the partnership, when it is shown that the partnership accounts are unsettled, and that the judgment asked for will not have the effect of a final liquidation of the partnership aflairs.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      XX. Singleton & Clack, for plaintiff and appellant. Simonds <& Turner, for defendants.
   Land, J.

The plaintiffs and defendants were the owners of the steamer D. S. Stacy, employed in carrying personal property for hire. The plaintiff instituted this suit against his copartners for the recovery of a specific debt due him from the partnership. The copartner, Vaughan, pleaded in compensation specific debts due from plaintiff to the partnership. The compensation opposed by Vaughan was allowed by the judgment of the lower court, and the plaintiff condemned to pay the difference between his demand and the amount opposed in compensation.

The evidence shows that the partnership accounts are unsettled, and that a judgment in this case on the demands of plaintiff and defendants, will not have the effect of a final liquidation of the partnership affairs — -the legal consequence of which may be, under the judgment of the lower court, to condemn the plaintiff to pay Vaughan a partnership debt, when Vaughan really may be a debtor of plaintiff on partnership account. The judgment should have been one of non-suit as to the demands of both partners.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court: It is ordered, adjudged and decreed, that there be judgment in favor of defendant as in case of nonsuit on plaintiff’s demand; and that there be judgment in favor of plaintiff, as in case of nonsuit, on the demand opposed in compensation. It is further decreed, that the defendant and ap-pellee pay the costs of this appeal; and that plaintiff pay the costs of the lower court.


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    E. H. Roquest v. Antoinette Boutin.
    Neither a rescission of tho sale nor a reduction of the price can he claimed by the purchaser of a slave affected with a redhibitory disease, if he neglects to procure the medical assistance which the situation of tho slave requires, until long after the sale.
    Where the answer of a witness is not responsive to the question asked, or is a voluntary statement made by him, tho court may order it to be stricken out.
    from the Fifth District Court of New Orleans, Eggleston, 3.

      Durant & Hornor, for plaintiff and appellant. G. & C. E. Schmidt, for defendant.
   Merrick, C. J.

This is an action of redhibition brought to annul a sale of a female slave sold by defendant to plaintiff for $1000, and alleged to be afflicted with an incurable disease of a scrofulous character, and addicted to drink.

The slave was sold in March, and no physician was called until August, although some of the witnesses swear the slave had a swollen foot and leg immediately after the sale.

Three physicians have been called by plaintiff to testify in the case.

The one called to see her and treat the disease in August, calls it “ Edéme,” (an edemetous tumour). One of the two called to examine the slave in November, terms the disease Elephantiasis,” and says it is incurable. The other says it was a tertiary syphilis, and if it had been attended to three or four months previously, he presumes the disease might have been cured long ago.

It is shown that the plaintiff had several conversations with a broker (Bonne-mi,) previous to August, in regard to the sale of the slave, giving as a reason that his family was about to move away, and fixing her price at $1200; that in these conversations, he made no mention of her being sickly, and finally told the broker he had changed his mind and would keep the negress.

The judgment of the lower court was in favor of the defendant.

We discover no error in the decree. The testimony is too uncertain to justify a judgment in favor of the plaintiff. If it be even conceded that the disease, as a syphilitic tumor, lessens her value one half, still the plaintiff is not entitled to a rescission of the sale, nor a reduction of the price, because he did not procure for her that medical assistance which, to judge from the testimony of his witnesses, her situation required, until four months after the sale. Palmer v. Taylor, 1 Rob. 412 ; Dupree v. Prescott, 5 An. 593; Williams v. Talbot, 12 An. 407.

The court did not err in receiving the testimony of Bonneval, as it was not offered either to make or destroy title. 10 Rob., 135, Smith v. Taylor.

And we are not prepared to say that the court erred in striking out the declaration made by the witness that, “ about a month and a half ago, he had met the plaintiff at the corner of St. Ann and Ohartres streets, who informed him that he had brought suit against Boutin for the slave,” although it deprived the plaintiff of a cross-examination as to that conversation, if the court were of the opinion that the answer was not responsive to the question of the defendant’s counsel, or that it was voluntarily stated by the witness. And such, we infer was the case, from the concluding portions of the bill.

Judgment affirmed.


author: Meeeick, C. J.

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    A. Thompson & Co. v. Robert Howes.
    ■When a party is sued for damages, resulting from a Preach of contract in failing to deliver, as he had contracted to do, a specific number of molasses barrels — Held: That tho market price of barrels at the time of the breach of the contract, and not exceptional sales, is the proper criterion for the estimation of damages.
    from the Fourth District Court of New Orleans, Price, J.

      A. N. Ogden & Stansbury, for plaintiffs. Mott & Fraser and Whitaker & Fellows, for defendant and appellant.
   Meeeick, C. J.

About the 20th or 22d day of January, 1857, the defendant contracted to deliver to the plaintiffs fifteen hundred molasses barrels at one dollar each.

On the 28th day of the same month, the plaintiffs made a demand for the barrels, and stated their willingness to pay for the same.

The next day they sought to obtain a specific performance of the contract, and for that purpose sued out a writ of sequestration. The Sheriff was able to seize only five hundred barrels, and these the defendant released by giving bond.

The plaintiffs afterwards filed a supplemental petition, and claimed three hqndred and fifty dollars damages for the breach of the contract. No objection appears to have been made to this change in the pleadings.

Judgment was rendered in favor of the plaintiffs for $375, and the defendant appeals.

The defendant contends that the District Judge has assessed the damages too high, inasmuch as the evidence shows that about the time of the alleged breach of the contract plaintiffs bought fifteen hundred barrels at a less sum than that allowed by the Judge, and sales have been shown by the defendant to have been made by different parties for from 90 cents to $1 10, and no advance in the market has been shown from the 22d to the 28th of January.

We think that the testimony shows that the market value of tho barrels at the time of the breach of the contract was not less than that found by the District Judge. It is the market value at the time of the breach of the contract, and not exceptional sales, which is the criterion for the estimation of damages in actions of this kind, at least where no portion of the price has been paid. Nelson v. Morgan, 2 M. R. 263; Douglas v. McCallister, 3 Cranch, 298, (1 condensed, p. 537 ;) 3 Wheaton, 200, Shepherd v. Hampton ; Vance v. Tourné, 13 L. R. 225; C. C. 2462 ; 2 Greenleaf’s Evidence, sec. 251. The District Judge did not therefore err in his assessment of the damages.

The plaintiffs, by abandoning their original action and claiming damages for a breach of the contract, have abandoned their sequestration. They are, therefore, bound for the costs occasioned by it.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to decree, that the plaintiffs shall pay the costs of the sequestration, and that the said judgment of the lower court, so amended, be affirmed, the plaintiffs paying the costs of the appeal.