author: Buchanan, J.

text:
    Marcel Douat v. Barthelemy Beombay.
    Tiio eighth section of the city ordinance relative to markets, which provides for the ojectmont of any person occupying any table, stand, or stall, without the consent of the farmer or collector of the revenues of tho market, has reference to the original occupation of the stall, stand or table, by a person not previously in possession, but does not apply to tho case of a party who obtained possession undor a former collector, and has continued that possession sinco the lease of tho revenues to tho farmer who desires to eject him.
    Ali that tho farmer has tho right to requiro of a butcher, in tho actual occupation of a stall in tho market, is a conformity to the ordinances in relation to the mode of kooping the stall, and tho punctual payment of the dues imposed by tho ordinance.
    There is no warrant given by this oighth section of the ordinance for the summary arrest and imprisonment of a person refusing to deliver up a stall, upon demand.
    Tho compulsion spoken of in the concluding clause of this section, is a compulsion by legal process.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Buisson & Castellanos, for plaintiff and appellant.

      P. Soulé, for defendant.
   Buchanan, J.

Plaintiff is a butcher. In the month of January, 1859, a stall for the sale of butcher’s meat, No. 2, in the New Tremé Market, was assigned to him by the Commissary of said market, under a written authority from the Mayor.

Defendant is the farmer of the revenues of the said market, under an adjudication at public auction on the 5th of March, 1859, his lease to expire on the 31st of December, 1859.

On the 6th of March, 1859, plaintiff being in possession of the stall No. 2, and having butcher’s meat exposed for sale upon the same, was informed by defendant that he had promised the stall to another person, and was ordered to quit the same. Plaintiff answered, that he was in possession by order of the Mayor and Commissary; that he was ready to pay the defendant the legal fees for keeping said stall, and tendered the same to defendant;. who refused to receive said fees, but called in a police officer and required him to arrest and imprison plaintiff; which was done. Plaintiff was taken off to prison, having his stall covered with meat, and without any one to take care of it.

This suit has two objects:

1. Damages for an illegal arrest; and 2. The possession of the stall No. 2 in the market, from which plaintiff was thus ejected by defendant.

The defence is :

I. That defendant had a right to have plaintiff arrested, under his lease with the city, and the 8th section of the' market ordinance; both of which are in evidence.

II. That ho had the right to give the stall to another person, notwithstanding the occupancy of the plaintiff.

These pretensions of defendant are professedly based upon the 8th section of a city ordinance relative to markets, (Compilation of City Ordinances, No. 425,) which reads as follows :

“ Any person occupying any table, stand, or stall, without the consent of the said farmer or collector, and who shall refuse to deliver up the same, on tho first request that shall be made to him by the Commissary of the market, shall pay a fine of ten dollars for each offence, and shall be compelled to conform to the provisions of the present enactment.”

It is clear, from the whole context of this ordinance, that the occupation here spoken of is the original occupation of the stall, stand or table, by a person not previously in possession. For the section immediately preceding the one just quoted, declares as follows :

“ Any butcher or other person residing in said market, if absent therefrom three days, leaving his stall or tablo unoccupied, shall be deemed to have abandoned the same, and the farmer may hire it to another.”

Now, in the case at bar, we have seen that plaintiff had been in possession of a stall about two months previously to the lease of the revenues of the New Tráme Market to defendant; that he had not left the stall unoccupied, but was in the actual occupation of the same, covered with meat exposed for sale, at the moment that the defendant entered into possession of the revenues of the market, under his lease. For the object of the lease, according to the first section of the same market ordinance, and according to the authentic act of lease made to defendant by the Mayor, was nothing else than “ the collection of the revenue of the prolongation of the Tremé Market.” All that the farmer had a right to require from a butcher in the actual occupation of a stall in the market, was a conformity to the ordinances in relation to the mode of keeping the stall, and the punctual payment of the dues imposed by the ordinance. In this case, the dues were tendered by plaintiff; and it is not pretended that plaintiff was in contravention of the ordinance in any respect.

The summary arrest and imprisonment of plaintiff was, if possible, still more unjustifiable than his ejectment from the stall by defendant. The article of the ordinance relied upon by defendant requires a summons or request to be made by the Commissary of the market, for the delivery of possession. Here, there was no such request made by that officer. And supposing that there had been, the legal consequence of disobedience, on the part of plaintiff, would not have been his arrest and imprisonment, but a fine of ten dol’ according to the ordinance. Neither do we find a warrant for the arrest in the concluding clause of the section, which is italicised in the brief of defendant’s counsel, “ and shall he compelled to conform, to the provisions of the present enactment.” We suppose that the compulsion here spoken of, is a compulsion by legal process; of which, certainly, there is no evidence before us.

We conclude, that plaintiff has made out a clear case for damages against the defendant. As the lease of the defendant terminated, by its terms, on the 31st of December last, and as it is probable some other butcher has acquired an occupation of stall No. 2, since that date, who is not a party to this suit, we do not feel authorized to order, as prayed for, a restoration of plaintiff to stall No. 2, at this time. Neither does the evidence enable us to assess the damages caused to plaintiff in person and property by the acts of defendant. Justice seems to require that the cause shall be remanded for further evidence.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that this cause be remanded to the court below for a new trial; and that the defendant and appellee pay costs of the appeal in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    Warren P. Anderson v. Mark Valentine.—G. Belcher, Intervenor.
    In a suit by attachment the garaishee in his answers having acknowledged, himself indebted to the defendant in the amount of sundry noteá and judgments, which were not seized, being in the State of Mississippi, the plaintiff, instead of having judgment entered up against the garnishee for the amount claimed in his petition, obtained judgment against the defendant ivitli privilege on the property attached, and under a writ of fieri facias, caused the right, title and interest of the defendant in the notes and judgments to bo seized and sold — Held: That'thc sale was null for want of an actual seizure, by the Shoriff, of the notes and judgments.
    A certificate of division of opinion of the Judges in the Circuit Court of the United States, accompanied by a statement of facts to serve as the basis for an appeal to the Supreme Court of the United States, is not a final judgment which will support the plea of res judicala.

    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      A. Snyder, for plaintiff.

      Short & Parham and Sparrow & Montgomery, for defendant.

      R. G. Harper, for intervenor, appellant.
   Buchanan, J.

The defendant, Mark Valentine, being indebted for principal and interest, by notes and judgments, to the Commercial and Railroad Bank of Vicksburg, a corporation of the State of Mississippi, in a sum exceeding one hundred thousand dollars, was garnished by service of citation and interrogatories, under a writ of attachment sued out against the said bank, by Galtitzin Belcher, a creditor of the bank, in the District Court of the parish of Jefferson, in this State.

Valentine answered the interrogatories, acknowledging indebtedness to the bank in a larger sum than that claimed by Belcher as due him by the bank. The notes and judgments were not seized, being in Mississippi, in the possession of the bank, where they have always remained. The Railroad Bank was represented by a curator ad hoc appointed by the court, in the attachment suit. Judgment was entered up in that suit against the bank, in favor of Belcher, for the amount claimed, (§1400 with interest,) with privilege on the property attached. A fieri facias was issued upon said judgment, under which the Sheriff seized all the right, title and interest of the Railroad Bank in the several notes and judgments held by it against Mark Valentine, as detailed in the answers of said Valentine to interrogatories. The same was adjudicated to Galtitzin Belcher for the sum of twenty dollars, at twelve months credit.

After these proceedings, the Railroad Bank made an assignment to Warren P. Anderson, of their claims by notes and judgments aforesaid against Mark Valentine, who settled the same with Anderson, by paying thirty thousand dollars in the notes of the bank, and by giving his own notes for the balance, at the rato of fifteen cents on the dollar, payable to the order of Anderson, at one, two, and three years, with interest from date.

The present suit is brought upon the two first of those notes, and Galtitzin Belcher having intervened, claiming to be the owner and holder of the claims of the Railroad Bank against Valentine, assigned to Anderson, the only question submitted to our consideration is, the validity of Belcher’s title under the adjudication at Sheriff’s sale above mentioned.

The garnishment process under writs of attachment, is regulated by the Articles 248 and the following to 264 inclusive, of the Code of Practice. Those Articles authorize the plaintiff in attachment to propound interrogatories to any debtor of the defendant, touching his indebtedness; and, on his confessing such indebtedness to an amount equal to that claimed by the plaintiff in attachment, (as was done in the case in the District Court of Jefferson, by Valentine, made garnishee in that case,) to have judgment entered up against the garnishee for the amount claimed by plaintiff in attachment, with interest and costs. 12 Martin 32 ; 16 La. 523; 17 La. 547 ; 18 La. 405 ; 10 Rob. 136 ; 2 An. 565.

But in the attachment suit of Belcher v. The Commercial Railroad Bank, no judgment was entered up against the garnishee at all. The judgment was incorrectly entered up, with privilege on the property attached ; whereas no property had been attached under the writ. To make a valid seizure of tangible property, the thing must be taken into the actual possession of the Sheriff. Goubrau v. Nashville Railroad, 6 Rob. 345; Simpson v. Allain, 7 Rob. 500; see also 2 An. 338, 785 and 910; 3 An. 390 and 186; 4 An. 369 and 187; 14 La. 449 and 514.

The sale, by the Sheriff, of the right, title and interest of the bank in the notes of Valentine held by it, was equivalent to a sale of those notes themselves, and was null for want of an actual seizure of the notes. Gaines v. Merchants’ Bank, 4 An. 369.

The case of Brau v. The Union Bank of Mississippi, quoted by the counsel for intervenor, contains nothing inconsistent with the doctrines here enounced. The language of the court in that case was as follows:

“ It is contended by the counsel for the garnishees, that their indebtedness cannot be attached, as the bills of exchange, on which they are liable, are not in the State, and our attachment laws never contemplated the seizure of such rights. We cannot give our assent to this doctrine. If it be true, those laws would in many cases be inoperative. It is upon the debtors of non-residents that the attachment laws are especially to operate; and if it were necessary to seize the evidence of the debt, there would be very few cases in which an attachment would lie. There is, in this respect, a wide difference between an attachment, and a seizure under execution.' An indebtedness to a non-resident by a resident, whether by note, acceptance, endorsement, or other mode, may be brought under the operation of our attachment laws, by garnishment, at the instance of a creditor of the non-resident creditor; and no serious evil can result from it, as a judgment against, and payment by the garnishee, will protect him from any demand on the part of his non-resident creditor.”

In strict conformity to those principles, we hold that the attachment of Valentine’s indebtedness to the Railroad Bank of Yicksburg, and the garnishment process thereupon, were perfectly regular. But that the irregularity commenced with the judgment, which made no mention of the garnishee; and was continued by the sale under execution of notes which had never been in the Sheriff’s possession.

We are clear that the proceedings in chancery in the Circuit Court of the United States in Mississippi, do not constitute res judicata in favor of intervenor, in relation to the validity of the Sheriff’s sale in Louisiana. There was no decree in that case upon the issue before the court; consequently, nothing was decided. A certificate of division of opinion of the Circuit Judges, accompanied by a statement of facts, to serve as the basis for an appeal to the Supreme Court of the United States, is not a final judgment.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Yoorhies, J., absent.


author: Duffel, J.

text:
    Succession of Mathias Will, on the opposition of B. C. Elliott.
    When, by tho contract of lease, tlio lessee undertakes to pay tlio taxes to bo thereafter assessed upon tho property leased, if lie fails to do so, tlio lessor, having au interest, as owner, in discharging the debt, would, upon paying tho same, become legally subrogatod to tho rights of tho State or city against such lessee.
    But where the lessor, thus legally subrogated, has failed to prosecute his rights, until, by the lapse of time, the privilege of tho State or city has been lost, he would have no privilogo, since ho cauuot claim a higher right than theirs.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. B. Cotton and A. Hiestand, for plaintiffs.

      A. W. Jourdan, for appellant.
   Duffel, J.

The succession of Mathias Will, is insolvent, and under the administration of a syndic. The syndic having rendered an account of his administration, B. C. Elliott opposed the same, claiming to be classed therein as a creditor, by privilege, for the sum of $350, advanced and paid by him, for account of the deceased, for taxes on a certain property leased by the opponent to the said deceased, and which were to be paid by the lessee. The opponent produced in evidence, the contract of lease, wherein Mathias Witt undertook to pay all the taxes to be thereafter assessed on the buildings which, under the contract, he stipulated to erect on the leased property; and in proof of the amount now claimed, the opponent exhibited a statement, showing the annual amount of taxes, State, Parish and City, charged to him from 1847 to 1857, both inclusive, say, $776 50, which was admitted to be a correct statement of the taxes paid by EUiott. The above statement includes the assessment of four slaves of the opponent, valued at $1700 each, of the lot of ground valued, without the improvements, at $3,000, and of the improvements, valued at $2000,- — thus making a grand total of $11,800.

Tho improvements were not assessed to the opponent in 1856 and 1857, but the taxes of those two years were charged to the deceased ; and we see that the succession is debited for taxes in the two accounts rendered by the syndic. Hence, we must deduct from $776 50, the taxes of 1856 and 1857, which amount to the sum of $141, thus leaving a balance of $635 50 paid on a capital of $11,800 ; making for the share chargeable to the succession, $108.

The opponent having, as owner, an interest in discharging the debt, a legal subrogation followed. C. O., Art. 2157. It will, however, be conceded, that the opponent, under said subrogation, cannot claim a higher right than the State and city could exercise; and it will result, as a natural consequence, that the city and State having, under the 43d section, Revised Statutes, p. 469, lost their privilege, even for the taxes of 1855, on the 1st of April, 1857, the opponent, who filed his opposition on the 10th of August, 1857, has none.

The District Judge rendered a judgment, by privilege, in favor of the opponent, for the sum of $310 60.

It appears from the proceedings in this cause, that the opponent died during the progress of the suit, and that the same was prosecuted in the name of his widow, Malinda J. Shaw, as the natural tutrix of the minor children of the deceased.

It is, therefore, ordered, adjudged and decreed, 'that the judgment of the District Court be avoided; and it is now further ordered and decreed, that there he judgment in favor of the succession of B. C. Elliott, and against the succession of Mathias Will, for the sum of one hundred and eight dollars, and the costs of the lower court; and the syndic of the latter succession is hereby ordered to amend his account, by inserting therein the above sum of $108, as an ordinary claim, and by charging and paying the costs as privileged law charges, and that the account, amended as above, be homologated. The costs of the appeal are hereby ordered to be paid by the opponent.


text:
    M. A. Henderson v. Widow Giraudeau.
    Whore a suit is brought on a promissory note, and want of consideration is set up as a defence, if the note on Us face purports to have been made for a valuable consideration, and it is shown'that the parties have dealings together, and that the plaintiff lent money out on interest, the burden of proof rests upon defendant, to show a want or failure of consideration.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      C. V. Jonte and II. Train, for plaintiff.

      A. Robert, for defendant and appellant.
   Duffel, J.

The plaintiff sues J. Aicard, as curator of the interdicted Widow B. Giraudeau, f. w. c.. for the amount of a note of $2000.

The defence sot up is, want of consideration, denial of signature, and insanity at the date of the execution of the note.

The District Judge, after reviewing the mass of contradictory testimony which usually abounds in such cases, rendered judgment in favor of the plaintiff for the amount claimed.

The note on its face purports to have been made for a valuable consideration ; and it is in evidence, that the parties have dealings together, and that the plaintiff lends out money on interest; it was, therefore, incumbent on the defendant to show a want or failure of consideration, which was not done. The execution of the note was sufficiently established. The declaration of the plaintiff, as disclosed by the curator and another witness, was not of a character, when taken in connection with the other facts of the case, to preclude a recovery.

The District Judge, who “ was better acquainted with the credibility of the witnesses than we are,” was of opinion that the defendant was not notoriously insane, in fact was not insane at all, when the note was made and acknowledged by her, and we cannot say that ho erred. C. C. 395, 1782; Laloir v. Lacoste, 4 La. 115; Holland v. Miller, 12 An. 624.

No damages, for a frivolous appeal, can be awarded.

It is, therefore, ordered, that the judgment of the lower court bo affirmed, with costs.

Land, J., absent.


author: Land, J.

text:
    Caroline E. Henderson, wife of Dr. Whitman Wilcox, v. William J. Fort.
    Wliero the husband makes a sale of property, partly belonging to himself and partly to his wifo, in which his wife joins him and declares that sho gives and grants to tho v ondeo “ all aud singular any rights, titles, or privileges which she may have in her own soparato right or otherwise, in and to tho property mentioned in the act, and hinds herself to maintain tho validity of tho act, it is a valid alienation of tho wife’s separate property and binding on her.
    Such a sale is binding on the wife, although by the express terms of tho contract tho price is made payablo to tho husband. Tho price of her property is still subject to her soparato administration whenever she pleases to demand the same, even against the will of her husband.
    AFPEAL from the District Court of West Feliciana, Haralson, J.
    T. J. & W. H. Cooley and S. J. Powell, for plaintiff and apppellant.

      Collins & Leake and H. M. Spofford, for defendant.
   Land, J.

The plaintiff's action is for the recovery of some seventy slaves and a few personal effects which she claims as her paraphernal estate by inheritance . from the late Stephen Henderson. • .

The slaves in controversy, with others, were sold with the plantation by the plaintiff’s husband, Whitman Wilcox, to the defendant by notarial act passed on the 1th of January, 1859, to which the plaintiff made herself a party.

Three questions are presented on the merits of the case for our decision, to-wit : first, whether the notarial act was a sale by the plaintiff, Caroline E. Henderson, to the defendant, of the property demanded' in this suit; secondly, whether the plaintiff signed tho act of sale in error of fact and of law ; and thirdly, whether the alienation of the plaintiff’s paraphernal property, under the circumstances, was a prohibited contract.

First. The act of sale declares : “ And now to these presents personally came and appeared Mrs. Caroline E. Henderson, wife of the said Whitman Wilcox, herein duly aided, assisted and authorized by her said husband, who declared to me, Recorder, that she did and does hereby freely and voluntarily join her said husband in the execution of the foregoing act in all its particulars, and hereby gives and grants to the said William J. Fort, all and singular, any rights, titles, or privileges, which she may have in her own separate right, or otherwise, in and to said property ; and that she hereby binds herself and her heirs at all times to sustain and acknowledge the validity of the foregoing act in all particulars; and the said Mrs. Caroline E. Wilcox further declared, that it was her wish and intention to renounce and release in favor of the said William J. Fort, all her matrimonial, dotal, paraphernal and other rights, and mortgages, and privileges, which she may have on the property herein conveyed, whether as wife of the said Whitman Wilcox or otherwise.”

The declarations of the wife which follow the stipulations in the act of sale conveying the property to the defendant, and the clauses of the act descriptive of the property sold, consist, first, of a grant of all her rights, titles and privileges in and to said property, and secondly, of a renunciation and release of all her other rights, privileges, and mortgages on the same.

The’legal import of the word “grant,” used in the first part of the declaration, is “ to transfer the title of a thing to another for a good and valuable consideration,” and implies the sale of the property described in the act to the defendant. It is, therefore, our opinion, that the act under which the defendant claims the property, is on its face, evidence of a sale by the plaintiff to him.

Secondly. ' Did the plaintiff sign the act of sale in error ? The defendant’s title is evidenced by an authentic instrument, which makes full proof of its contents between the parties, and is conclusive upon them unless some legal and sufficient cause exists, for setting aside and annulling the same. The cause alleged by the plaintiff, for the purpose of defeating the effect of the act, is error, that is to say, ignorance on her part, of the fact, that the property claimed in this suit, was described in the instrument and conveyed to the defendant. This was a question of fact which the plaintiff was bound to prove, and on which there is the verdict of a jury, confirmed by the judgment of the lower court against her. And after a careful examination of the testimony, to which credit was given by the jury, and which, in our opinion, is inconsistent with the alleged fact of error, we are not satisfied that the jury failed to arrive at a correct conclusion upon the facts of the case. And if it be conceded that the whole of the act of sale, was not read to the plaintiff, yet the testimony is not only repugnant to the alleged fact of her ignorance, but is pregnant evidence of positive knowledge on her part that the property now demanded, was conveyed by the act of sale to the defendant.

Thirdly. Whether the alienation of the plaintiff’s paraphernal property,under the circumstances, was a contract prohibited by law ? The consideration of the sale was the price and sum of seventy-six thousand dollars, to be paid to the plaintiff’s husband, part in cash, and the balance on a credit of one, two and three years.

It is contended that the sale is not binding on the plaintiff, so far as her separate property is conveyed by it, because the sale does not enure to her separate benefit, the price being payable, by the express terms of the contract, to her husband.

It is true that the wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage; nor validly sell or mortgage her property for the payment or security of his debts ; nor make a valid transfer or sale of property to her husband, except for the purpose mentioned in Article 2421 of the Civil Code ; and that whenever she enters into any of these prohibited contracts, the obligation intended to be created on her part, will be declared null and void, whatever form her contract may be mado to assume. But a married woman is not prohibited from selling her paraphernal property to a third person for a lawful consideration, with the consent and authorization of her husband, and such a sale is as valid and binding on her, as if she were a femme sole; nor is she prohibited from stipulating in a contract of sale of her paraphernal property, that the price should be paid over to her husband ; nor is the latter prohibited by law from receiving the price, in such a case, from the vendee of his wife. The stipulation in the contract of sale to the defendant, for the payment of the price to the plaintiff’s husband, cannot, therefore, be said to be in contravention of a prohibitory law, and to render null and void the contract of sale.

Although the price is made payable to the husband, it is still the separate property of the wife, and subject to her separate administration, whenever she pleases to demand and resume the same, even against the will of her husband.

It is not pretended that the husband is insolvent or indebted, and that the object of the sale was to place the price in his hands for the purpose of paying his debts, and thereby evading the prohibition contained in Article 2412 of the Oivil Code. Nor can the sale be considered on account of the stipulation for the payment of the price to the husband in contravention of Article 2421 of the Oivil Code, which forbids the transfer of property from the wife to the husband.

The plaintiff is not entitled, on legal grounds, to the relief which she seeks in this case; and if her property has been alienated for lgss than its value, it is a loss which cannot be repaired by the judgment of this court, on the pleadings and the evidence in the record.

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


author: Voorhies, J.

text:
    Henry Murray v. J. M. Kennedy.
    • Whoro a United States Marshall offers a reward for tlio arrest of a fugitive from his custody, lie acts as a principal; and although he may have signed with the addition of the words U. S. Marshall, he cannot avoid liability.
    The arrest of a fugitive, and his delivery from another State into the hands of the Marshall hove, is a consideration sufficient in law to he the basis of a legal obligation.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      McCay & Edwards, for plaintiff.

      Wm. Cornelius, for defendant and appellant.
   Voorhies, J.

The defendant, being United States Marshall, offered a reward of five hundred dollars for the arrest of Wm. H. Wilder, a fugitive from justice. Henry Hurray, the plaintiff, made the arrest in the city of Mobile, and apprized the defendant of the fact. The latter directed the former to conduct the prisoner to the station of the Pontchartrain Railroad at the lake, promising to pay the amount stipulated.

Wm. H Wilder having been handed over to the defendant, from whoso custody he was a fugitive, the latter refused to comply with his promise, on the ground that the reward had been offered in his capacity of United States Marshall, and that, in consequence, he was not bound individually.

It is true that Kennedy signed these instruments with the addition of the words “ U. S. Marshall,” but he did not pretend to act, in this matter, as the agent of the General Government. As Marshall of this district, it was his duty to take the necessary steps to arrest Wilder, and, in proclaiming a reward to further this object, he was acting as a principal. He knew, and every body knew, that this reward was not due by, nay had not been stipulated on behalf of the Government.

This was not a nudum pactum, as contended for by the defendant’s counsel: the arrest of the fugitive, and his delivery from another State into the hands of the Marshall in the parish of Orleans, were a consideration sufficient in law to bo the basis of a legal obligation.

Judgment affirmed.

Land, J., absent.


text:
    J. P. Watson v. J. James et al.—G. S Sawyer, Intervenor.
    Tho rulo, that parol evidence cannot be rocoived to contradict a written acknowledgment of indebtedness, is subject to exceptions, and in tho present caso it was held that, undor tho circumstances, such evidence was admissible.
    vVhoro it is evident that an instrument in the form of a conditional sale was intended hy the parties to be executed in the form, of a common law mortgage, it will not be regarded as a sale.
    One in whom the legal title to property in Louisiana is vested, subject to a trust created in favor of others by deed of trust executed iu another State, has full power to mortgage tho property.
    APPEAL from tlie District Court of the Parish of Madison, Farrar, J.

      J. H. Farrar and Snyder & Hynes, for plaintiff.

      Short t6 Parham and Sparrow, for defendants.

      York & Sawyer, for intervenor, appellant.
   Buchanan, J.

Three distinct suits are consolidated in this record, to-wit: a petitory action instituted by Watson against Jomes; an executory proceeding by Sawyer against Watson; and an injunction suit by James against Watson & Sawyer.

The first question for solution is, tho right of Watson to contradict his acknowledgments of indebtedness to Sawyer, contained in a receipt, two promissory notes and two authentic acts of mortgage. The receipt is for ten thousand dollars, the notes are for twelve thousand dollars each, and the mortgages are given to secure the notes.

It is admitted in argument, that these various evidences of debt grow out of the same transaction, to-wit, a loan of money made by the appellant, George S. Sawyer, to John P. Watson, in April, 1855. This money passed through the hands of one Britton, a banker in Natchez, by whom it was counted and delivered to Watson, and by whom the receipt for the amount so counted, ton thousand dollars, was written. This receipt was signed by Watson in Britton’s presence, as testified by the latter. It reads as follows :

“ Deceived from George S. Sawyer, ten thousand dollars in cash.
John P. Watson.”

Britton, examined as a witness for the appellant, Sawyer, under a commission, states that the amount expressed in the receipt, consisted of a certificate of deposit in the Citizens’ Bank of Louisiana, to the credit of George S. Sawyer, and endorsed by him, for six thousand dollars, and four thousand dollars in cash or certificates of deposit; and that Watson, at the time he received the same, deposited in the banking house of Britton, to the credit of S. McNeil, the sum of six thousand dollars, being the amount stated in tho Citizens’ Bank certificate of deposit.

We think it was competent for Watson to prove by parol, as he has done, that the true amount of Sawyer’s advance of funds to Watson was the six thousand dollars thus deposited to the credit of McNeil in Britton’s bank ; together with a farther sum of one hundred and thirty-eight dollars paid by McNeil for Watson, and eight hundred dollars paid Carroll & Pritchard by Sawyer, to the credit of Watson. The aggregate amount of these advances is six thousand nine hundred and thirty-eight dollars. Add twelve hundred dollars, which Watson admits, of record, to be due by him to Sawyer for professional services rendered, and tho true consideration of the note of Watson, favor Sawyer or order, payable at thirty days, for twelve thousand dollars, dated April 23,1855, and secured by snortgage before Miller, notary, is thus established to have been eight thousand one hundred and thirty-eight dollars. The note of like amount, dated June 4th, 1855, payable ten days after date, and secured by mortgage on slaves, by act before Beatty, notary, in Pointe Coupee parish, was a renewal of the other note. Both those notes bore interest on their face, at eight per cent, per annum, from date.

On the same day with the execution of the last of these notes, and of the mortgage to secure the same, to-wit, June 4th, 1855, and before the same notary, Watson executed what the counsel in argument call a conditional sale to George 8. Sawyer, of the same negroes thus mortgaged, (but which both the acts declare to be illegally in the possession oí James and wife, in the parish of Madison). The condition of this conveyance is, that if Watson, or any one for him, shall pay to Sawyer the sum of twelve thousand dollars, and interest, amount of Watson’s note to Sawyer of the 23d April, 1855, this sale shall be null and void, or else remain in full force.

The second question which this record presents, is, the effect of this conditional sale. The form of the instrument is that of a common law mortgage, and the evidence leaves no doubt upon our minds, that it was intended as such, when made, at least by Watson, and probably by Sawyer. It must be observed, that Sawyer was a Mississippi lawyer, and Watson a Mississippi planter, until within a few years past, as appears from the record.

But it seems strange, that they should have entered into a contract of this kind, having reference to a debt, (the note of the 23d April, 1855,) which had been extinguished by novation, as shown-by the declarations of this very instrument, which make mention of the note of the 4th June, 1855, and of the mortgage to secure that note, as having been executed previously, although on the same day.

Under these circumstances, we regard this pretended conditional sale of forty slaves by Watson to Sawyer, of the 4th June, 1855, and also the re-transfer or conveyance of twenty of the same slaves by Sawyer to Watson, of the 12th July, 1855, as mere nullities.

It remains to be determined, whether the mortgage of Sawyer, passed before Beatty, notary; the 4th June, 1855, be operative upon the negroes in the possession of the defendants.

We have seen that John P. Watson was indebted to George S. Sawyer for money lent and professional services; and that, to secure the payment of the said debt, he mortgaged, on the 4th of June, 1855, forty slaves, described as belonging to Watson, but illegally detained by James and wife. This mortgage was duly recorded in the parish of Pointe Ooupée, the domicil of Watson. The next day after its date, to-wit, on the 5th of June, 1855, Watson instituted this petitory action in the parish of Madison, against James and wife, and sequestered the slaves so detained by them.

In his petition, Watson asserts title to the slaves in himself, in virtue of a judicial sale made to him at public auction, by a Commissioner in Chancery, at the door of the Court House of the County of Jefferson, State of Mississippi, on the 9th of February, 1848, in execution of a decree of the Court of Chancery for the Southern District of the State of Mississippi.

The defendants, James and wife, answered, pleading that the title of the slaves sequestered was in themselves; that those slaves had been conveyed to the plaintiff, Watson, in trust, for the defendant, Mrs. James, in the State of Mississippi, under an agreement made and entered into between the parties; which agreement was annexed, as part of the answer.

This instrument is entitled : “ Memorandum of an agreement made and entered into the loth February, 1848, by and between John P. Watson, of the parish of Pointe Coupee, in the State of Louisiana, of the first part, and Joshua James and Mary H. James, of the county of Jefferson, in the State of Mississippi, of the second part.”

It stipulates that, whereas Watson did purchase the slaves sequestered and other property, at a judicial sale in execution of a judgment against James and wife, in the Court of Chancery in Mississippi, and did receive a conveyance for the same from the Commissioner of said Court, and did satisfy the judgment against James and wife by a certain draft and five certain promissory notes of said Watson; and whereas James and wife were indebted to Quitman & McMurran in the sum of $250 ; now the said Watson agrees to hold all the property thus conveyed to him, and its- fruits, upon the trusts, for the interests and purposes, and under and subject to the powers, provisions, limitations, declarations and agreements, hereinafter declared, that is to say :

First. 'The rents and fruits of said property to be applied to the payment of the costs and charges of administration-; to the payment of the draft and notes given by Watson to the judgment creditor of James and wife, as aforesaid, and of all interest, costs and charges thereon; and to the payment of the debt to Quitman & McMurran.

Second. The said Watson shall have the lawful title of the property, and may, at any time sell the whole or any portion of the same, on such terms as ho may deem expedient, and apply the proceeds to the payment of any of the above specified debts and charges; provided the surplus of said proceeds be re-invested in other real or personal estate, to be settled upon Mrs. James and her children, as hereinafter provided.

Third. The said Watson to have “ full and absolute power of control, management and disposal, by sale, exchange, and removal out of this (Mississippi) into any other State, of all or any part of said real and personal property, at any and all times, before full payment of all the debts and charges aforesaid.

Fourth and lastly : “ Upon trust that after the payment and satisfaction of all of said costs, charges, expenses, draft, notes, debt and interest, the said Watson, his heirs and assigns, shall, by good and sufficient assurances, settle and convey all the above described real and personal property, with the avails and increase thereof, which may then be held by him and undisposed of, as herein before provided, “ upon and to the said Mary H. James, for and during her natural life, so that she may take, enjoy, and dispose of the clear income and product thereof to her own separate use and benefit, until her death; and after her death, upon and to her children then living, and the descendants of such as may then be dead, to take as purchasers, and according to the statute of descent and distribution of the State of Mississippi, to bo had and held by said children and descendants, their heirs and assigns, forever.”

This instrument, capnot have the effect of avoiding a Louisiana contract made by Watson, as owner of slaves which were, at the time of making such contract, had been for many years previously, and still remain within the territorial limits of this State.

The title of the judgment debtors, James and wife, in the slaves sequestered in this suit, was acquired by Watson, at the judicial sale of the 9th February, 1848, for a bona fide price paid by him.

The agreement of Watson with those judgment debtors, made on the 15 Hi February, 1848, six clays after the said judicial sale, did not divest the title out of Watson; still less, did it reconvey the title to James and wife. On the contrary, all the attributes of ownership, the powers of administering, of removing, of alienating, are reserved to Watson. There is not, in this agreement, even a contemplation of a prospective or contingent conveyance of the property by Watson to James and wife; but merely of an eventual settlement, and by another trust deed, of the fruits of the property, upon Mrs. James during her life : the ultimate beneficiaries being the children of Mrs. James who shall survive her, and the descendants, surviving her, of those of hér children who shall have died before her.

The power of alienation in Watson, necessarily included the power of mortgaging the negroes in question.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as it regards George S. Sawyer, the appellant, be reversed ; and it is further decreed, that the appellant, George S. Sawyer, recover of the appellee, John P. Watson, eight thousand one hundred and thirty-eight dollars, with interest at the rate of eight per cent, per annum, from the 4th June, 1855, until paid, and costs in both courts; and that the slaves specified in the act of mortgage passed before William Beatty, Notary Public in the parish of Poinle Ooupée, on the 4th June, 1855, being the same slaves sequestered in the suit of John P. Watson v. Joshua James and wife, and also seized under executory process in the suit of George S. Sawyer v. John P. Watson, in the District Court of Madison Parish, be seized and sold to satisfy this judgment.

Land, J., absent.


text:
    City of New Orleans v. Congregation Dispersed of Judah.
    Full oíTütít is given by the Supremo Court to evidence received in the inferior courts without objection. The party against whom evidence is offered, the introduction of which might'be resisted, must object at the time it is presented, and if his objections are overruled, take a bill of exceptions.
    By the Act of 1856, a distinction is made between that property, belonging to charitable institutions, which is in use for the purpose of exercising the charitable objects of tbc institution,_ns for instance, the asylum j and that other property belonging to the association yielding revenues to its coffers. The former is exempt from taxation, while the latter lias not the benefit of this exemption.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      W. O. Denegre, for plaintiff.

      Hyams, Labatt & Jonas, for defendant and appellant.
   Voorhies, J.

The defendants, being sued for city taxes for the years 1856 and 1857, resist the plaintiff’s demand on the ground that theirs is a charitable institution, and that their property is, by statute, exempt from taxation.

There is, in the record, an exception filed to the mode of bringing this suit, and an answer on the merits; but the exception came up for trial at the same time as the cause on the issue joined. The defendants, then, have not waived their plea by filing an answer. They insist upon the following points, to-wit:

1st. That the plaintiff has failed to show the published list, as required by law, daring the fifteen days, and no secondary evidence can bo promitted to supply it ; that is the citation. *•

2d. That the bills have not been lodged in suit by the officer designated'by law to initiate legal proceedings.

As regards the first point, the defendants have no right now to complain of the reception of secondary evidence, inasmuch as they have not taken a bill of exception to the ruling of the District Judge. It is the settled practice of this court to give full effect to evidence received in the inferior courts without objection. The party against whom is offered evidence, the introduction of which might be resisted, must object at the same time it is presented, and, if his objections are overruled, take a bill of exceptions.

The 10th section of the Act of 1856, p. 159, provides: “ that on the 2d Monday of May of each year, the Treasurer shall put in suit in a court or courts of competent jurisdiction, all unpaid bills for taxes levied upon property assessed in their several Districts, and all bills for taxes levied upon property shall contain a description of said property, as set forth in the assessment rolls.”

An inspection of the bills sued upon shows that the Oity Treasurer has, in compliance with the above section of the Oity Charter, initiated the present proceedings ; and that he has done so with the assistance of the Assistant Oity Attorney. The objection taken on that score was, consequently, unfounded.

Previously to the passage of the Act of 1856, the city authorities could not tax property belonging to charitable institutions. Act 21st March, 1850; City of New Orleans v. Poydras Asylum, 9 An. 584.

The Act of 1856 exempts from taxation every poor-house, alms-house, cemetery, house of industry, and every house belonging to a company incorporated for the reformation of offenders, or for the refuge of the poor, and the several lots and grounds whereon such houses are situated, together with the furniture belonging to the same, and all halls or edifices of Masonic, Odd Fellows, and other charitable societies.” Session Acts 1856, p. 14V, $40, No. 4.

Under the provisions of this law, the city of New Orleans can tax certain property belonging to charitable associations; but there is a distinction to be kept in view. The property which is in use for the purpose of exercising the charitable purposes of the institution, — as for instance, the asylum, — is exempt from taxation ; whilst other property belonging to the association, yielding revenues to its coffers, have not the privilege or benefit of this exemption.

The property, upon which the defendants deny the right of the plaintiff to impose a tax, is the block of stores on Canal Street, known as the Touro Buildings, forming the corner of Bourbon and Canal Streets, and occupied as an extensive dry goods establishment, at the yearly rent of $5,500. These are used for the support of the synagogue and its charities towards unfortunate persons of the Jewish persuasion. It is evident, then, — keeping in view the distinction laid down upon this subject, — that this property, although free from taxation previously to-the Charter of 1856, has since become subject to be taxed by the municipal authorities.

Judgment affirmed.

Land, J., absent.


author: Doffed, J.

text:
    Bertrand Saloy v. Wm. T. Leonard et al.
    In a suit to recover damages on account of a seizure made without any warrant in law — Held: That the plaintiff, having in vain endeavored to obtain tho original writ of seizure, was authorized to prove, by secondary evidence, its issuing and the action of the Coustablo under it.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      G. & C. E. Sclmidt for plaintiff and appellant.

      G. A. Breaux, for defendant.
   Doffed, J.

We think with the District Judge, that the seizure in this case was made without any warrant in law, and that the defendants are, consequently, responsible to the plaintiff for the losses sustained by him.

The evidence objected to by tho defendants was properly received, 1st, because the defendants must bo viewed as mere trespassers; 2d, because the plaintiff having in vain endeavored to obtain the original writ of seizure, was authorized to prove, by secondary evidence, its issuing and the action of the Constable under it.

The District Judge only allowed certain items of the account, to the amount of $170, and refused to allow the others, considering that their value was not established ; he also refused, for the same reason, damage for the rent lost by the plaintiff in consequence of the seizure.

The whole account, under the peculiar nature of the case, was sufficiently proved by the witness, Greneaux, and besides, the value of some of the rejected items was established by other witnesses. We will, therefore, add the excluded items, by taking the lowest estimates, as follows : 16 decanters $16,13 demijohns $9 66, sugar-bowl $2 50,1 glass jar 50c., 1 lemon squeezer, 50c., 5 waiters $2 50, 34 tumblers $2 75, 9 wine glasses $1 13, 3 dozen spoons $3 50, 1 hammer 50c. 21 billiard cues $16 66, 5 billiard balls $5, 3 tables $6, 1 large screen $10, 1 camphene can 75c. — in all $77 95. We also think that tho plaintiff lost at least one mouth’s rent, by reason of the seizure, that is to say, $60.

It is, therefore, ordered, that the judgment of the lower court be reversed and set aside; and it is further ordered, adjudged and decreed, that the writ of injunction issued herein be perpetuated, and that the defendant, G. W. Simpson, Constable of tho Second Justice’s Court of New Orleans, deliver to the plaintiff all the property seized by him, as described in the opinion of the District Judge and in our opinion, in the condition and order in which the same was when seized, otherwise that the said Constable, and Wm. T. Leonard and Wm. A. Leonard, be condemned in solido to pay to the plaintiff tho sum of two hundred and forty-seven dollars and ninety-five cents. It is further ordered, that the said defendants be condemned in solido to pay to tho plaintiff, as special damages, sixty dollars, with costs in both courts.

Land, J., absent.


author: Düffel, J.

text:
    Langley & Kinkead v. J. H. Burrows & Co.
    Tho curator ad hoc appointed to defend a non-resident lias tho right of appeal.
    Tho 2d section of tho Act of 1855 authorizes commissioners, appointed in other States by tho Governor of tho State of Louisiana, to take the acknowledgment and proof of any deed, mortgage, &c.; and tho 8th section gives to all acts thus acknowledged the force and effect of authentic acts executed in this State. Tho commissioners are thus vested, by express provision of law, with all tho powei s of our Justices of tho Peace and Notaries. Where an act of salo, mortgage, assignment, &c., is passed before a commissioner, therefore, it requires two witnesses in order to mako it authentic, otherwise it is an act under private signature.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      C. A. Taylor, for plaintiffs.

      J. H. Maybin, for defendants and appellants.
   Düffel, J.

The plaintiff obtained an order of seizure and sale, of real property situated in New Orleans, on the following documents, to-wit: 1st, a note of $5000, subscribed by the defendants in Cincinnati, November 22d. 1854, payable one year after date to the order of Lemuel J. Webster, at his office in the city of New Orleans, with interest from date at six per cent., and endorsed without recourse pay to the order of Langley & Kinkead (signed) L. J. Webster ; ” 2d, a deed of mortgage, in the common law form, executed on the same day, 22d November, 1854, by said defendants, in favor of said Webster, his heirs and assigns, to secure the above note, which is fully described in the deed; 3d, the following act of transfer from L. J. Webster : “ For value received from Lewis W. Langley' and /. D. Kinkead, partners doing business under the firm and style of Langley & Kinkead, I hereby assign and transfer to them all my right, title and interest in and under the foregoing mortgage, and in and to the property therein described, and in the debt designed to be secured thereby; but the assignment and transfer are made expressly without recourse to me in any event.” Tho mortgage act is signed by the mortgagors and two witnesses, and the act of assignment is signed by the transferrer and two witnesses; and both acts were acknowledged before the Commissioner of the State of Louisiana in tho State of Ohio; said Commissioner being at the same time one of the subscribing witnesses to the original acts. The acknowledgments are simply attested by the signature of the Commissioner, or in other words, the acts were signed and acknowledged before one witness and the Commissioner. The defendants, who are non-residents, are represented by a curator ad hoc; he took a rule on tho plaintiffs to show cause why the order of seizure and sale should not be set aside and annulled, and tho petition dismissed, among other reasons, because the documents under which the writ issued are not in an authentic form.

The District Judge overruled the motion.

It is contended by the plaintiffs that the acts accompanying the petition for the seizure and sale are authentic acts, and were so declared by an Act of the Legislature approved March 9th, 1855, p. 44, entitled “ An Act to provide for the taking of testimony, the acknowledgment of deeds, &c.,” which act is a reenactment of the Acts of 1838, p. 55, and 1840, p. 80 ; and also that the curator is not in law authorized to take an appeal. The right of appeal cannot be seriously questioned. Bach v. Ballard et al., 13 An. 487; 12 R. 457.

As to tho first point, the 2d section of the Act of 1855 authorizes Commissioners, appointed in other States by the Governor of tho State of Louisiana, to take the acknowledgment and proof of any deed, mortgage, &c.; and the 8th section gives to all acts thus acknowledged the force and effect of authentic acts executed in this State. Thus we may conclude, that those Commissioners are, by express provision of the law, vested with all the powers of our Justices of the Peace and Notaries; and asan authentic act of sale, mortgage, assignment, &c., is an instrument executed, or acknowledged, before a Notary and two witnesses, it necessarily follows, that the documents produced by the plaintiffs are acts under private signature, and, therefore, insufficient to authorize an order of seizure and sale. C. P. Arts. 732 and 733.

It is, therefore, ordered, that the judgment of the District Court bo reversed; and it is further ordered, adjudged and decreed, that the order of seizure and sale heroin issued by the District Judge bo set aside and annulled, and that tho petition of the plaintiffs be dismissed, at their costs in both courts.

Land, J., absent.


author: Merrick, C. J.

text:
    Eugène Bazergue v. Antoinette Faucheux and Mathieu Robert.
    Whore a suit was instituted against a party individually and as tutor of liis minor children, and judgment rendered in his favor in this double capacity, and upon appeal, tho bond was only executed in his favor individually — Held: That the appeal ought to have been taken against him in both capaoi tics, otherwise the minors aro not parties to tho same.
    APPEAL from the Dist. Court of the Parish of St. John the Baptist, Duffel, J.

      G. LeGardeur, for plaintiff and appellant.

      Berault & Legendre, for defendants.
   Merrick, C. J.

There is a motion to dismiss the appeal in this case, on two grounds, viz :

That the appellant has acquiesced in the judgment, by voluntarily executing tho same; and that no appeal bond has been executed in favor of the natural tutrix representing the minor defendants.

On the second ground we observe, that the bond is only executed in favor of Madame Faucheux, widow Robert, in her individual capacity, although the judgment is also in her favor as tutrix to her minor children.

It is contended by the learned counsel for the defendant, that the appeal to this court has followed tho citation in the lower court, which was addressed to the defendant, Madame Robert, in her individual capacity, &c.; that if the minors are not parties to the appeal, then they were not parties to the suit in the lower court, and the appeal was well taken. Tho fact, however, is, that the prayer of the petition was that she should be made a party defendant in both capacities. She answered, and formed her roconventional demand in both capacities, and had judgment thereon accordingly. The appeal ought to have been taken against her in both capacities. The minors, therefore, have not been made parties to the same. Crawford v. Alexander, 14 An. 708.

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

Land, J., absent.


author: Vookhies, J.

text:
    Widow James Hagan v. James Grimshaw.
    Iu tho partition of a succession, where tlioro arc minor heirs, If tlioy have opposite interests to each other, although represented by tho samo tutor, tlioro should ho appointed to each of them a special tutor, or tutor ad hoc. Butin a partition by roots, where tho minors form but one root, their interests inter se do not clash, but on the contrary, aro ahito, and tho necessity for tho appointment of special tutors does not then arise.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. LeGardeur and H. D. Ogden, for plaintiff.

      Duncan S McConnell, for defendant and appellant.
   Vookhies, J.

The plaintiff became the purchaser of property at a sale, made for the purpose of effecting a partition between the heirs of Widow Euphémie Labranche, deceased.

There were six children, the sons and daughters of the deceased, and her grandchildren, in representation of their deceased father, Hermogéne Brown, — in all seven roots.

In the action of partition, tho grandchildren were represented by their tutor, Chastant.

The plaintiff subsequently sold the property so purchased to the defendant, James Grimshaw; but. as tho latter conceived that these minors ought, in law, to have been represented by special tutors, or tutors ad hoc, it was stipulated in the deed of sale that: “ the said vendor does not only warrant and defend the said property against the claim and claims of said minors and each of them, but she here specially binds and obligates herself to have the interest of said minors in the property now sold, forthwith legally divested and conveyed to the present purchaser, free of all charge or additional price, than herein expressed as the consideration of the present sale; and for the particular security of said purchaser for the fulfilment of this obligation, it is hereby specially agreed and covenanted that the note of $5000, payable six years after date, furnished by tho said purchaser in payment, as aforesaid, shall remain in the custody of the undersigned Notary, until the full performance of said obligation shall have been executed to the satisfaction of said purchaser ; and if the same shall not be accomplished before said note becomes due, then the same, without accumulation of interest, is to remain unpaid until the said obligation shall have been duly executed.”

The plaintiff brought this suit, praying to be put in possession of the noto of $5000. She states in her petition, that the stipulation made in the deed, in relation to the alleged defect in tho title to the property transferred, was tho result of an error of law,- — for that the proceedings in the partition were regular, there being no necessity, in such cases, for the appointment of special tutors, or -tutors ad hoc.

The Civil Code, Art. 1291, provides that: “If there are several minors, who have opposite interests in the partition, and who have the same tutor or curator, there shall bo appointed to each of them a special tutor, whoso functions shall cease as soon as tho partition is terminated.”

The test is, whether the minors have interests opposed to each other’s, although represented by tho same tutor. It is evident that, in a partition by roots, where tlio minors form but ono root, tbeir interests inter se do not clash, but, on the contrary, are alike; and that the necessity of the appointment of special tutors does not then arise. Such is the ruling of thiá court on this point in the ease of the Succession of Aguilard, 13 An. 98.

Tho defendant cannot consider himself exposed to an eviction, at the suit of the minor children of Hermogene Brown, deceased : his title, in that respect, is perfect. The plaintiff is, consequently, entitled to the possession of the note in question ; but, under the special stipulations of the contract to hold the purchaser free of all charge or additional price, the former must pay the costs.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by disallowing to the plaintiff the costs of the District Court; and that, in other respects, the said judgment be affirmed, — the plaintiff and appellee paying the costs of appeal.

Land, J., absent.


text:
    Weaver v. Maillot and others.
    An Act cannot govern tho decision of a caso which is based upon a contract made prior to tho passage of flic Act.
    There is nothing in tho Act of March 2d, 1860, in conflict with Article 8 of the Civil Code, the latter is therefore unropealed and in force, upon the subject-matter of tho former statute.
    By the Act of 1855, p. 352, tho right to tho repetition of usurious intorost paid is limited to ono year.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      T. A. Bartlette, plaintiffs.

      Race & Foster, for defendants and appellants.
   Buchanan, J.

Plaintiff sues, as holder of a draft dated New Orleans, July 26th, 1859, for $800, payable five months after date, drawn by TJ. C. Briggs upon and accepted by E. Price <& Co., in favor of J. Maillot <& Co., by whom it is endorsed.

The defendants, the drawers and endorsers of this .draft, plead that about two years since, plaintiff made a loan of eight hundred dollars to defendant, Briggs, for which he received usurious interest; that Briggs’ notes or drafts for this loan were renewed from time to time upon usurious interest paid, (amounts and dates not recollected, with the exception of the two last renewals, which were a draft at four months, from March 30th, 1859, on which $80 were paid as interest— and the draft now in suit, on which $160 were paid as interest.)

The answer further avers that the sums paid from first to last as interest upon this loan and its several renewals, amount to fully the sum of $800, the original amount of the loan. The defendants pray that said payments be imputed to the capital of the loan, and that there be judgment in their favor.

This answer was admitted on trial to contain a true statement of facts. But the court being of opinion that the only sums declared to have been paid within twelve months past for usurious interest, being two hundred and forty dollars, no more could be recovered back by defendants, under the statute of 1844.

Judgment was rendered for $560, — the face of the draft less $240, — and for legal interest on that sum from the day of protest.

Defendants appeal, claiming that the debt is discharged in full, as shown by tho admissions; and plaintiff answers the appeal, claiming that the judgment be amended in his favor, by allowing him the full amount of his demand. He relics upon the Act of 1856, p. 130, also upon the Act relative to the rate of interest, approved March 2d, 1860, Session Acts, p. 41.

We are of opinion that the Act of 1860 cannot govern the decision of this case, which is based upon a contract made prior to the passage of said Act. Tho Civil Code, Art. 8, declares that a law can only prescribe for tho future; that it cannot have a retrospective operation. We find nothing in the Act of March 2d, 1860, in conflict with this provision of the Code. The latter is, therefore, unropealed and in force, upon the subject-matter of the former statute.

The present case is very similar to that of Crane v. Beatty, lately decided; in which case we gave a construction of the statute of March 20th, 1856, relative to the rate of interest.

The only point of difference in this case is, that the limitation o' one year enacted in the Act of 1855, p. 352, for tho repetition of usurious interest paid, is a bar to the recovery of all but $240 of that paid in the present instance.

Judgment affirmed, with costs.

Land, J.. absent.


author: Vooruies, J.

text:
    A. G. Manouvrier v. N. D. Marvel.
    Whore the evidonce of a deputy notary was introduced to explain a certificate of protest, and its admission was objected to - — Held: That, whore the verity of the certificate is assailed, it is legitimate to use the statements of this witness to rebut the charge.
    APPEAL from the Sixth District Court of Now Orleans, Howell, J.

      Clarice <& Bayne and A. W. Jourdan, for plaintiff.

      Waples <& Euslis, for defendant and appellant.
   Vooruies, J.

This case presents a question of fact on tho merits, — the truth or falsity of the Notary’s certificate of protest.

The certificate states that the notice of, protest to the endorser, who is defendant in this cause, was served by delivering the notice “ to his nephew in his domicil, he not being in."

Josiah Marvel, the only nephew of the defendant, as stated in the record, denies having received the notice of protest. And it appears that Scriber, the only white person living at the time in the house, says that no document of tho kind was ever served upon him. His testimony further discloses that there was a Gorman living on the defendant’s premises about that time.

Although the above evidence is positive as to the fact that the notice was not served upon the defendant’s nephew, yet, it does not strictly follow that, admitting the error in this respect, the notice was not served at all at the domicil, upon some one who happened to be there. The deputy Notary, who made tho service, says : “ I do not recollect the individual, but I saw some one in the house; and I think he said he was tho nephew of Marvel; and I reported the same to Mr. Cenas. I was very often in the habit of making my reports directly to Mr. Cenas. It was between nine and 11 or 12 o’clock when I served the notice.”

The only uncertainty which the evidence leaves in the matter is not as to the fact of notice having been made at tho domicil, but as to the person to whom the paper was handed.

The defendant, however, contends that the deputy Notary’s evidence was inadmissible to contradict or explain the certificate of protest; but, inasmuch as the verity of this document was assailed, it was perfectly legitimate to use this witness’ statements to rebut the charge.

It is, therefore, ordered and decreed, that tho judgment of the District Court be affirmed, with costs.

Land, J., absent.


author: Vooehies, J.

text:
    Theophilus Freeman v. His Creditors.
    Whore a party obtains jndgmont against his clobtor previous to his surrender, and has the same recorded after his debtor lias obtained a stay of proceedings, such registry of tho judgment does not give him a mortgage. Ilis rights, in that respect, arc fixed by tho surrender, although his judgment has not boon carried on tho bilan.
    Where such a creditor has not been a party to the proceedings by which property seized and sold was subjected to the payment of tho claims of other creditors, he cannot claim to bo paid by preference out of the funds or procoods so realized.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Clarice <£• Bayne, fqr appellant.

      Mott <& Fraser, for appellees.
   Vooehies, J.

John Valentine, in his capacity of executor of the estate of Whiting Valentine, deceased, filed a third opposition, claiming to be paid by preference out of funds in the Sheriff’s hands, realized at the suit of other creditors of the insolvent, Theophilus Freeman.

Valentine obtained his judgment against Freeman previously to the latter’s surrender, and had the same recorded some time after his debtor had obtained a stay of proceedings. It appears that subsequently, on an ex parte proceeding, in the absence of Valentine, this inscription was erased.

The rights of the seizing creditors, George W. Dunbar, administrator, and the Bank of Kentucky, arise under a different state of facts. They had their judgment recorded subsequently iu date to the registry of Valentine’s; but they seized property in the name of third persons, who enjoined the proceedings. Those creditors thereupon asked the revocation of their adversaries’ titles, on tho alleged ground of fraud and simulation, and carried a successful litigation in both tho District and Supreme Courts. The Sheriff sold the property in question, and the proceeds of this sale form the object of the present controversy.

With regard to Valentine, it may bo stated at once that the registry of his judgment after the stay of proceedings in the insolvent estate of tho common debtor, docs not give him a mortgage. His rights, in that respect, were fixed by the surrender, although his judgment had not been carried on the bilan. Furthermore, as he was not a party to the proceedings, by which tho property seized and sold was subjected to the payment of the claims of the Bank of Kentucky and of G. W. Dunbar, administrator, ho cannot now claim to be paid by preference out of the funds or proceeds so realized. C. C. Art. 1792; Decuir v. Veazey et als., 8 An. 453.

Judgment affirmed.

Land, J., absent.


text:
    Gaspard Didier v. Jean Augé.
    Where plaintiff sought to hold defendant liable for money lent, and defendant’s books were offered in evidence, in which all the entries were made by plaintiff, as his book-keeper, during defendant’s absence from the country — Held: That unless defendant objected to the entries on his return, and had his books corrected by counter entries, he will be presumed to have acquiesced in those made, and they will bind him
    Where money has been exponded in carrying on another person’s business, he is bound to account for the same, although some other party may have hold his power of attorney.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Handlin <& St. Paul, for plaintiff.

      C. Be Choisel, for defendant and appellant.
   Merrick, C. J.

The certificate of the clerk shows that the books, or extracts from the books of the defendant have not been furnished, and are omitted from the record.

The record contains two bills of exception : one to the admission in evidence of defendant’s books, kept by plaintiff as his book-keeper, during his (defendant’s) absence in Prance, to charge him with money lent; the other, to the rejection of defendant’s witnesses to prove negligence on the part of plaintiff'.

We do not understand the defendant to insist upon the last bill of exception in this court, inasmuch as he says the same facts were afterwards admitted by plaintiff in his answers to interrogatories on facts and articles.

As to defendant’s books, it is true that the entries were all made by plaintiff, and at a time when the defendant was absent. But the plaintiff was employed to keep the books, and they were not the less defendant’s books because the entries were made by a clerk. The defendant had the right, on his return, to object to any entries which were erroneous, and to have his books corrected by counter entries. Not having done so, he is presumed to have acquiesced in those made, and they bind him as in the case of the rendition of an account by an agent, which is received without any objection, within a reasonable time, by the principal. 14 An. 398, 4 An. 197.

The money having been used in defendant’s business, ho is bound to account for the same, although another may have held his power of attorney. C. 0. 2278.

As the defendant has failed to bring up the extracts from Ms books of account, wo cannot pass upon the merits.

Judgment affirmed.

Land, J., absent.


text:
    Alexander Norton v. Mark Sterling.
    Tho foreign debtor is entitled to avail himself of our laws of proscription, just as though ho had always boon subject to tho jurisdiction of our courts.
    Whoro there is no allegation or proof that tho foreign debtor had changed his domicil, and that the same was unknown to tho creditor, or that tho creditor could not, on account of some other obstacle, have instituted an action at the domicil of tho debtor, tho maxim, contra non valentón ago'c non cun -it prescriplio, will not apply.
    Whatever may be thought of tho policy of the law, the courts havo no power except to enforce it.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Lacey & Woolridge, for plaintiff.

      Whittaker <& Fellows, for defendant and appellant.
   Merrick, C. J.

It is not clear that the District Judge erred On the questions of fact submitted to him.

The main defence to the action is the prescription of three years as against an open account. The indebtedness is alleged to have been incurred in 1851, for receiving, storing and forwarding railroad iron at Cairo, in the State of Illinois. The plaintiff attempted to commence suit by attachment in Eebruary, 1855, but was unsuccessful in making a seizure. Service of petition and citation were not made on defendant until May, 1858. The petition filed in 1855 describes the plaintiff as residing in this city, and the defendant as a resident of Pennsylvania.

The plaintiff contends that the maxim contra non valentem agere non currit prescriptio, is applicable to Ms case. He had judgment in the lower court and defendant appeals.

We think the plea of prescription of three years under the Act of 1852, p. 90, see. 1 and 2, ought to have prevailed.

Tho account sued on is an open account, if not a merchant’s account, and is thus covered by the statute.

The statute of 1848, p. CO, had reference to absent creditors, it is true, but evqn at that time there was no law which excluded the absent debtor from the benefit of the laws relative to prescription. O. 0. 3487.

The law of 1848, partially at least, removed the incongruity of placing foreign creditors on a better footing than our own, whilst the foreign debtor was entitled to avail himself of our laws of prescription, the same as though he had always been subject to the jurisdiction of our courts.

There is no allegation or proof that the^defendant has changed his domicil and that the same was unknown to plaintiff, or that the plaintiff could not (on account of any other obstacle) have instituted an action at the domicil of the debtor. There is, therefore, no room for the application of the maxim relied upon by plaintiff. Whatever may be thought of the policy of the law, the courts have no power except to enforce it. 14 An. 418.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of tho lower court be avoided and reversed; and that there be judgment in favor of the defendant, and against the plaintiff’s demand, and that tho plaintiff pay the costs of both courts.

Land, J., absent.


text:
    Edward W. Sewall v. Annie G. Howard.
    The conventional subrogation must bo made at the time of the payment.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant <& Horner, for plaintiff and appellant.

      Lea <& Marr and A. G. Brice, for defendant.
   Merrick, C. J.

This 'suit is brought to recover of the defendant, the wife of Tlwmas H. Howard, the amount of four promissory notes, executed by her with the authorization of her husband.

There was judgment in favor of the defendant, as in case of a nonsuit, and plaintiff appeals.

The defendant has filed an answer to the appeal, and prays that she have final judgment against the plaintiff, cancelling the mortgages executed by her in favor of the plaintiff.

Interrogatories were propounded by the plaintiff to the defendant in order to prove that the consideration of the notes sued on enured to the benefit of the separate estate of the defendant. Her answers negative the interrogatories. 13 An. 54G ; 14 An. 15.

Two of the notes sued on, being for f 500 each, were given as part of the price of certain property claimed by the wife as her paraphernal property.

As to these two notes, it is made a question, whether plaintiff bought them, or if he did not purchase them, whether he did not pay them with a legal or conventional subrogation.

The proof shows that he paid the notes. He acquired no conventional subrogation, because he took no such subrogation at the time of the payment. O. O. 2156. There could be no legal subrogation, because, (in the absence of defendant’s answer, which was rejected at the instance of plaintiff,) there is no proof that plaintiff had a valid mortgage upon defendant’s property for any amount. The answers to interrogatories on facts aud articles show, that the supposed mortgage relied upon by plaintiff had no existence as such, and hence, that he is not a creditor who can claim a legal subrogation in the sense of Article 2156, O. C.

As the judgment must bo affirmed, we do not deem it important to consider the other questions raised by the defendant aud appellee. It is sufficient to remark, that we do not think, under the circumstances, that the judgment ought to bo amended in favor of the appellee, so as to bar the plaintiff’s action.

Judgment affirmed.

Land, J., absent.


author: Duffel, 3.

text:
    Berry Whitesides v. H. P. McGrath.
    Whore an action was brought to recover on a note given by the defendant, to make up a loss, as a partner of tho plaintiff and others in a faro banking game — Held: That such an association is not only against good morals, but highly criminal, and courts of justice are not open to litigation of that
    APPEAL from the Sixth District Court of New Orleans, Howell, 3.

      Foute cfi Clinch, for plaintiff.

      Hart & Martin for defendant and appellant.
   Duffel, 3.

This is an action by the payee against the maker of a lost note for its payment. The execution of the note, and its destruction by fire are proved.

The defence is, that the note was given for a gaming transaction.'

Skaggs, plaintiff’s witness, declared, on his cross-examination, that he, the parties to the suit, and a brother to the plaintiff, formed an association to carry on, as bankers, a faro game, which lasted about two months ; that the loss of the bank in this game was near fifteen thousand dollars. Witness adds : “ I settled up my portion of the loss next morning, and advanced a portion of McGrath’s loss; for the balance of his loss, McGrath gave his note to Berry Whitesides for twelve hundred and fifty dollars, being the sum alleged to have been advanced by Wm. Whitesides, for his account. The plaintiff w'as interrogated on facts and articles, and so far corroborates the testimony of his own witness, as to admit that “ the consideration was partly for money loaned by me to the defendant, and partly for a mutual claim held by E. H. Skaggs and myself.” It is true that he states, in answer to the second interrogatory, that the note “ was not given in settlement of a gaming transaction between myself and defendant ”; but this was not enough, he should, in answer to the 3d interrogatory, have stated the nature and character of the settlement which left him a balance, and the object for which the money had been advanced by him. The impression left on our minds, after reading the answers of the plaintiff, the testimony of Skaggs, and comparing the two together, is that the note was given by the defendant to make up Ms loss, as a partner of the plaintiff and others, in a faro banking game; and as it was within the power of the plaintiff to dispel any vestige of doubt, his failure to do so precludes a recovery.

The association was not only against good morals, but highly criminal. Revised Statutes, p. 151, see. 96. Oourts of Justice are not opened to litigations of this kind.

It is, therefore, ordered, that the judgment of the lower court be reversed, and that the demand of the plaintiff be rejected, with costs in both courts.

Land, J., absent.


text:
    Graham & Boyle v. Underwood.—Paul Juge & Co., Intervenors.
    Tko right of the master of a vessel to sell the cargo, in case of necessity, for the benefit of all concerned, recognized in certain cases by the commercial law, for the benefit of navigation, is an exception to the general rule contained in Article 2427 of oar Code, and must bo strictly construed.
    Where a cargo is sold without such a necessity as will justify the sale, it is an act of barratry on the part of the captain, and confers no title upon the purchaser.
    APPEAL from the District Court of the Parish 'of Jefferson, Burthe, J.

      Bonford, Singleton <& Clack, for plaintiffs.

      Durant & Hornor, for defendant and appellant.

      Michel <& Koontz, for intervenors.
   Buchanan, J.

A flatboat loaded with staves consigned to plaintiffs, got aground upon -a bar in the Mississippi. She was unloaded, and her cargo piled up on the bar ; in which condition it was sold by the master of the flatboat to defendant.

The law as to the right of the master to sell the cargo, in case of necessity, for the benefit of all concerned, is laid down in 19 La., pp. 42, 49 and 54.

This right, recognized in certain cases by the commercial law, for the benefit of navigation, is an exception to the general rule contained in Article 2427 of our Code, and must be very strictly construed.

The circumstances of the present case do not disclose that urgent necessity which alone would have authorized the sale of this flatboat and her cargo of staves, under the authorities; but the contrary. The sacrifice of this property, for one-fourth of its value, was an act of barratry on the part of the master of the flatboat which conferred no title upon the purchaser.

Judgment affirmed, with costs.

Land, J., absent.


text:
    Agnes A. Oliver v. Thomas F. Bragg.
    IVhero a party, uot interested in the payment of a note, either as endorser or surety, takes it up at maturity, without obtaining a conventional subrogation to the rights of tbo holders, lie is not legally subrogated to those rights, and the indebtedness of the maker is, in law, extinguished by the payment.

      k PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Ronford, Singleton & Clack, for plaintiff.

      Whittaker & Fellows, for defendant and appellant.
   Buchanan, J.

Mrs. Oliver sued Bragg, in June, 1859, as administrator of her husband, who died in that year, upon three notes of Bragg, to his own order, dated 28th January, 1854, and payable 6, 12 and 18 months after date.

These notes were given in part payment of a lot and improvements purchased by Bragg of Baquié on the day of their date.

The defence is, that Bragg was clerk of Oliver, who had taken up the said notes for his account, and had promised to cancel them — which he was prevented from doing only by sudden death.

In support of this defence, defendant has offered four witnesses, men of respectability and good standing in the community, who were intimate with the deceased, G. B. Oliver, in his lifetime, and who prove his declarations made to them individually, at various times, in relation to these notes, to the effect that the same had been paid by Oliver for Bragg, to the discharge of the latter, and without any intention of seeking reimbursement of the same.

This testimony is corroborated by the acts of Oliver, in retaining the notes in his hands, without making any demand of payment or reimbursement from Bragg, until his death, which occurred several years after the maturity of the last of the notes.

It is also corroborated by the fact, that Mr. Oliver took no conventional subrogation of the rights of Baquié or Toulmi, the holders of the notes, at maturity; and he was not legally subrogated to those rights, for he was in no manner bound, as endorser or surety, for the payment of the notes.

The indebtedness of Bragg upon the notes, is thus seen to have been, in law, extinguished by the payment made by Oliver.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment in favor of defendant and appellant, with costs in both courts.

Land, J., absent.


author: Yoorhies, J.

text:
    State of Louisiana v. James McDavid.
    The exception recognized as to the competency of the wife to testify against her husband, where she has sustained a personal injury, does not extend to cases of bigamy. In these the lawful wife is held to bo incompetent, whilst the second wife’s testimony is not liable to this objection.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      T. J. Semmes, Attorney General, for plaintiff.

      W. T. Scott and A. N. Ogden, Jr., for defendant and appellant.
   Yoorhies, J.

The defendant was found guilty of the crime of bigamy, and sentenced to fine and imprisonment. He appeals from the judgment, and assigns as erroneous several rulings of' the District Court.

We will, however, notice but one of -his objections, as we consider it fatal to the judgment.

The indictment charges that Catherine Kennedy is the lawful wife of the prisoner; and her evidence, notwithstanding the latter’s objection, was held by the District Judge to be admissible. The bill of exceptions states that : “ although on general principles the wife cannot be heard as a witness, either for or against the husband, in cases where she has been injured by the husband, as in cases of assault and battery, bigamy, &c., she can be heard as a witness against him.”

The exception recognized as to the competency of the wife to testify against her husband, where she has sustained a personal injury, does not extend to cases of bigamy. In these the lawful wife is held to be incompetent, whilst the second wife’s testimony is not obnoxious to this objection. Roscoe’s Evid., p. 139 : Greenleaf’s Evid., sec. 339 et seq.

The propriety of the exclusion of the testimony of the lawful wife, on a trial of the husband for the crime of bigamy, may well be doubted. On this subject Allison says : “ Having once, for just and necessary reasons, admitted an exception to the general rule, in the case of a wife who has sustained a personal injury from her husband, is there any principle on which it can be held not to include that case, where the injury to herself and her family is the greatest, from a desertion ofthembothby the'head of the family? Nor is the reason of exclusion founded on the peace of families, here of the slightest weight, but rather the reverse; for a husband, who has been guilty of bigamy, has proved himself dead to all sentiments of that description, and, having already deserted his first wife for another woman, he has given the clearest evidence that no further family dissentions need be apprehended from her appearing to give evidence against him.” Prac. Cr. L., p. 463.

This, however, is not an open question,

It is, therefore, ordered and decreed, that the verdict of the jury and the judgment of the court, in this case, be set aside and annulled; and it is further ordered, that this case be remanded for further proceedings according to law.

Merrick, C. J., absent.


text:
    Robert Morris v. Bernard Kendig.
    In a redhibitory action, where the plaintiff was allowed without objection to prove by parol and 1ns own letter, that he had made a real tender, of a slave which ho had purchased, to his vendor ; that such vendor had received back the slave, and that he promised to return the money — Hel/L: That such proof has, as to the vendor, the same effect that a written act of retrocession would have had.
    APPEAL from the Fifth District Court of JN ew Orleans, Eggleston, J.

      R. King Cutter and R. Beauvais, Jr., for plaintiffs.

      T. G. & A. G. Semmes, for defendant and appellant.
   Duffel, J.

The plaintiff alleges in his petition, among other things, “ that he has made a real tender of said slave to the said Bernard Kendig, and that on or about the 12th of December, 1858, the said Bernard Kendig received back the said slave, and promised to return the money, &c.”

The plaintiff was allowed, no objection being made, to prove by parol and his own letter, the tender, acceptance and promise, as set forth in the petition ; and such proof has, as to the defendant, the same effect as a written act of retrocession would have had. Valery Gaiennié v. William Freret, 14 An. 488.

The defendant, having suffered the seizure and sale of the slave to satisfy one of the two notes given to him by his vendee in part payment of the price, cannot complain; nor have we any doubt, from the whole testimony, that the slave was diseased at the time of the sale, and that he was, in consequence, of no, or of little value.

The judgment of the District Judge was in favor of the plaintiff, and we are satisfied that it is correct.

Judgment affirmed, with costs.

Land, J., absent.


text:
    Heirs of Stephen Henderson v. P. A. Rost and G. Montgomery, on Opposition to Account of Executors and Report of Auditors.
    The appointment of a judicial factor or administrator, by a foreign court of justice, confers no power upon such judicial factor to act in Louisiana, upon the simple registry of the decree of the foreign tribunal for his appointment.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      A. N. Ogden & W. 8. Stansbury, for plaintiffs.

      E. A. Briggs, for op. ponent, appellant.

      P. Soule, for defendants.
   Buchanan, J.

Henry Henderson and George Henderson are heirs, by representation of their father, John Jlenderson, deceased, for two-sixteenths of the succession of their paternal uncle, Stephen Henderson. They claim, by their petition of opposition to an account rendered by defendants, late executors of Stephen Henderson, and now attorneys in fact of his heirs, to be paid their said respective shares of the assets .of Stephen Henderson’s succession, remaining in defendants’ hands.

William Anderson, residing in Glasgow, Scotland, has intervened by petition, in this issue, and by counsel asserts an exclusive right in himself to receive all that portion of the assets in defendants’ hands belonging to John Henderson or his heirs; to be by him, Anderson, conveyed to Scotland, and there distributed by him to the parties entitled to i.he same, under the authority of a Scotch court, by which he has been appointed Judicial Factor upon John Henderson’s estate — • a term in the Scotch law which appears to be synonimous with Administrator. In support of this claim, Mr. Anderson files an authenticated copy of the decree of the court in Scotland, for his appointment as Judicial Factor ; which document, the record informs us, has been registered in the Second District Court of New Orleans.

He is appellant from a judgment rejecting his petition.

There is no dispute in this court, respecting the facts, or the qualities assumed by the parties appellant and appellee. It appears that Stephen Henderson’s succession was opened in this State; that the property of which the possession is disputed herein, is situated in Louisiana; and that the appellees reside here.

It does not appear that appellant was ever within the jurisdiction of our courts. His appointment as administrator of the estate of John Henderson, by the Court of Sessions in Edinburg, on the 10th of March, 1855, does not give him the seizin of the effects of said estate in Louisiana. For, by the Act of i 6th March, 1842, (Session Acts, p. 300,) re-enacted in 1855, (Session Acts. p. 398,) it was declared that the succession of persons domiciled out of the State of Louisiana, and leaving at their demise property in this State, shall be opened and administered as those of citizens and inhabitants of this State; and the Judge of the court wherein such succession is opened, shall appoint an administrator to the same, in conformity to the requirements of the laws of this State in relation to the administration of successions.

In the present case, the appellant has not pursued the steps necessary to qualify him to administer John Henderson’s estate in Louisiana. He has neither made lie application, followed by two daj's advertisement, nor has lie taken the oath, nor given the bond required by law. The simple registry in the Second District Court, in virtue of an ex parte order, granted on his petition to that effect, of the decree of the foreign tribunal for his appointment as judicial factor, cannot certainly have the effect of letters of administration duly granted in Louisiana. Indeed, the argument of appellant’s counsel admits this in substance; for it is contended that the appellant is alone amenable to the court in Scotland, from which his appointment emanates.

The appellant exhibits no legal right to interfere in the administration of John Henderson’s estate in Louisiana.

It is, therefore, adjudged and decreed, that the judgment of the District Court which rejects the appellant’s petition, be affirmed; and it is further decreed, that George and Henry Henderson, the appellees, do recover of defendants, by representation of their father, John Henderson, deceased, two-sixteenths of the residue of the succession of Stephen Henderson, as shown by the statements on file; reserving moreover, to said George and Henry Henderson, under the agreement of counsel filed, any further claim or interest in the fund to be distributed, as heirs or representatives of brothers or sisters who shall have died since the decease of their father aforesaid. And it is lastly decreed, that the costs of this appeal be paid by the appellant.

Land, J., absent.


text:
    State of Louisiana, on the relation of V. Micieses, praying for a mandamus, v. Recorder Benit.
    A party is entitled to au appeal from a conviction in a Recorder’s Court, where a fine of more than three hundred dollars has been imposed.
    ON relation of F. Micieses, praying for a mandamus.

      Field & Shacldejidd, for relator.
   Buchanan, J.

The relator prays for a mandamus to compel the allowance of an appeal from a conviction in the Recorder’s Court, for selling liquor to a slave without the consent of his owner. Fine of $500 imposed.

The answer of the Recorder denies the right to appeal in this case, because there was no question of law presented by the record, and the petition for mandamus does not state any such, as required by Article 840 of the Code of Practice. Respondent also quotes Art. 62 of the Constitution, defining the appellate jurisdiction of this court in criminal cases, and confining it to questions of law alone.

The relator is clearly entitled to the appeal prayed for; a fine having been imposed upon him of more than three hundred dollars.

Let a peremptory mandamus issue.

Land, J., absent.