author: Etjstis, C. J.

text:
    Gray, Macmurdo & Co. v. Lowe, Pattison & Co. et al. Lowe and Pattison v. W. B. Partee & Co. and Gray, Macmurdo & Co.
    Ambiguous or obscure clauses in the contract of sale, are interpreted againBt the seller, who is bound to explain himself clearly as to the extent of his obligations. Code, 2149.
    Where, under two contracts, the purchaser bought two parcels of drafts, his right to one of the drafts being afterwards questioned, it was held, that his failure to establish by which of the contracts he obtained the draft, did not invalidate his title, where it was clear that he had obtained it under one or the other of the contracts.
    The sale of a draft, with a privilege reserved to redeem it within a certain time, is valid.
    APPEAL from the Fifth District Court of New Orleans, Buchanan J.

      Elmore and King, for appellants.

      A. N. Ogden, for appellees.
   By the court:

Etjstis, C. J.

The manner in which this case is presented to the court, it is immaterial to state or consider. It turns exclusively on the decision of the point on which the district judge decided it. It is thus stated by him:

“ Did Gray, Macmurdo 8f Co. acquire the draft sued on, from W. B. Partee §• Co., in full ownership, or was it placed in the hands of the former, by the latter, as collateral security for the repayment of a loan ? If the former be the fact, the contract, as to the draft, was a sale; if the latter, a pledge.”

The article 3125 of the code, provided, that in order to give effect to a pawn of movables, against third persons, the contract must be by authentic act, or under private signature, recorded before a notary, besides requiring certain other matters of form, in order to give it validity. This article was extended to promissory notes. Art- 3225.

These articles prevented the circulation and use of negotiable paper, by way of pledge or security, and limited its negotiability to cases of sale or discount, in which the property in the paper was absolutely transferred, unless the forms, required by the code, were observed in the contract. These forms, men of business, in their transactions, had neither time nor inclination to observe, and the copsequence was, of necessity, a resort to some other legal mode, in which negotiable paper could be made available for the ordinary purposes of trade and exchange. Hence, for the purpose of raising money on a note, which was not to be transferred absolutely, it was sold with a privilege reserved by the owner to redeem it within a certain time.

These articles of the code, after having long been a most serious incumbrance to commerce, were, by common consent, repealed at the last session of the Legislature.

The transactions which give rise to this case, took place before the repeal of those articles, which are to regulate the rights of the respective parties, and the question is stated, whether the facts constitute a pledge or a sale of the draft of $5000.

Greenland acted as the agent of Partee S¡- Co., and Bell as the agent of Gray, Macmurdo Sf Co. The testimony of both was taken at great length, and under a very scrutinizing cross-examination,

Greenland, a witness for Lowe and Pattison, gives this account of the business: “ In the months of August and September, in the first instance, in August, on the part of W. B. Partee 4* Co., having been appointed as the person to attend to their business, it became necessary from time to time to raise money; amongst other persons, application was made to Messrs. Gray, Macmurdo 4" CO., and in the first transaction we had with them, we received an amount of money, I think, about $7000, as near as my memory serves me; for this $7000, we agreed to sell a certain amount of paper, reserving the right of repurchasing this paper at a stipulated price on a given day; several transactions of this kind took place between the middle of August and the middle oí September; we had always repurchased the paper at the stated price, on or about the given day, except in two instances; in consequence of the embarrassment of the firm of Partee 8f Co., it became impracticable to repurchase the paper, and that paper is now held, or was held, by Messrs. Gray, Macmurdo 4* Co.; there was no paper signed in the two last transáctions with Gray, Macmurdo 4* Co., and I believe, in those transactions, the paper sued on in this case was included; when I gave the draft of $5000 in question, I think it was given to Mr. Bell; there was no written agreement made, and I do not, at this time, recollect any conversation in regard to it; the draft sued on, was given to Gray, Macmurdo 4* Co., on the same terms and conditions that other paper had been given to them; that is, that W. B. Partee Sf Co., had the privilege of repurchasing the same by a given day; the mode in which these negotiations were made was this: A certain amount was received from Messrs. Gray, Macmurdo 4" Co., for which a certain amount of paper was transferred to them; they agreed that W. B. Partee 4* Co., should have the privilege or right, on a given day, for the amount of money so received of Gray, Macmurdo 8f Co., and a stipulated amount of commission and interests, of receiving back the paper so transferred. When this paper passed from my hands into those of Mr. Bell, there was a tacit understanding, as in former transactions, that Partee Sf Co. had the right of reclaiming the same; Gray, Macmurdo Co. sent, after the stipulated time for paying the amount, to ask of Partee 4* Co., if the money stipulated was to be paid. Tn the previous transactions which W. B. Partee 4* Co. had had with Gray, Macmurdo 8f Co., a sale had been drawn and signed; it was, as I understood, a similar sale which Gray, Macmurdo 4* Co. desired should be signed; if the signatura to that paper had been asked, at the time of making the loan, it would most unquestionably have been given; as near as my memory serves me, it was in. the beginning of October, that a call was made on me for the signature of such a paper; it was perhaps ten days or two weeks after the time the money for the purchase was to have been returned, that the call was made on me for the signing of the paper; I did not sign the paper at the time the draft sued on was given to Gray, Macmurdo Sf Co. I received money from them, and the paper was to be returned in about five or seven days after, on the payment of the amount advanced, and with the gommission and interest; when this paper, the draft sued on, was taken to Gray, Macmurdo 4- Co., the understanding was either expressed or implied, that the paper was to be returned to Partee 4* Co., in five or seven days, on the amount being repaid,” &c.

On being examined by the defendants, he stated: “ The first transaction between the parties, took place on the 28th of August, at which time $7500 were received by Partee &f Co. This sum was returned on the 1st of September; there was a written condition of the sale of the paper, made to them; on the 2d September, there was the same kind of transaction made with them, and $4500 received, and this was returned on the 6th September; on the 6th September, there was the same amount, $4500, received of Gray, Macmurdo Sf Co.; that was returned on the 12th September; on'the 8th September, there was another similar transaction, in which $7500 was received, and returned on the 9th September; on the 10th September, there was another transaction of $9000, which has never yet been returned; on the 15th September, there was a similar transaction, and $8800 received, which was returned on the next day, the 16th September; on the 16th, there was another transaction of $4000, which was returned on the 20th September; on the 18th September, there was another amount of $6000, which has never yet been returned to Gray, Macmurdo 8f Co.; that for the two amounts of $9000 and $6000, above referred to, Gray, Macmurdo 8f Co., had the paper which figures on the bilan of Partee. When the money was returned, the paper which had been placed in Gray, Macmurdo Co.’s hands, was returned to Partee Sf Co.

The bills receivable, retained by Gray, Macmurdo !%• Co., on the two advances of $9000 and $6000, are the following,” &c.

William Bell, a witness for the plaintiffs, makes this statement: “I heard Mr. Greenland give his testimony in this case.” Being shown the bill sued on, says: “It belongs to Gray, Macmurdo Sf Co.; I bought the same for them sometime in September last, fi’om Mr. Greenland; I had several transactions with Gi-eenland, wherein I bought certain paper from him, with the undei'Standing, that he was to redeem them within a given time, fi’om five to seven days ; but, in no case, to exceed seven days ; in two of those transactions, Greenland failed to redeem the paper; this note sued on was in one of those purchases; the note in question was purchased by myself; I attend to the business of Gray, Macmurdo 8f Co., generally, and hold their power of attorney ; none of the members of said firm were present at said transaction, and I think none of them were in town; I am not certain but that Macmurdo was in town; but my impression is, that none of them were ; when this paper was purchased, there was a time fixed within which it was to be redeemed; I cannot say the precise number of days which were fixed, within which this paper was to be redeemed, because the mode of fixing the day was not by the number of days, but by fixing a day in the week, or a day in the next succeeding week; the mode fixed by Greenland was on such a day of the week, or the next succeeding week; in no instance did the time fixed exceed one week; in this case,, I am confident, that the time fixed did not exceed one week ; Mr. Greenland did not offer to redeem this paper within the time, or tender the money.

Being shown the description of the bills in the petition of Lowe and Patti-son v. Partee Sf Co. et al., and asked whether they are the bills which were acquired by Gray, Macmurdo Sf Co., in the same manner as the one sued on, says “ they were; cannot say, that they were acquired at the same time as the one sued on ; but they were acquired at one of the two times alluded to, and in the same manner; about the day, or two days after the time fixed for the redemption of this paper, I think on the 24th or 25th of September, I called on Mr. Greenland, and told him, that I did not want the paper; that if he, Greenland, would give me $15,375, that he might have the paper back. Mr. Greenland’s reply was, that he knew he had no right to the paper, that he felt aware, that it was a favor which I was rendering him, but that if he could get the money that day, he would redeem the paper.

Mr. Geenland never did give me the $15,375. As far as I had any knowledge, Mr. Geenland generally did all the business and financial transactions of W. B. Partee 8f Co., and even when Partee was here, Greenland came to borrow money of Gray, Macmurdo Sf Co.; I do not know that Greenland got any money when Partee was here. -

“After Mr. Partee returned from the north, he never made any objection, to my knowledge, to plaintiffs, Gay, Macmurdo, <$• Co., to hold the paper, or to Greenland’s authority to transfer it to them ; I am still doing business for Gay, Macmurdo $■ Co.; from my position in their house, had Gay, Macmurdo cj. Co., made any such objections, I think it very likely that I should have heard of it; I did not understand the transaction to be a loan, with the paper left as collateral security; I would not have made a loan on a pledge of the paper as collateral security; on the first transaction with Greenland, Mr. Macmurdo consulted me about the matter, and I told him, that a loan on pledge of paper would not be legal, and that he must have a sale of the paper; I drew up the original sale of the paper on said first transaction, and I acted on all subsequent transactions, with Greenland, on the same footing as the first transaction ; on the two transactions, in which the paper was not redeemed, I gave, on one occasion, $9000, and on the other? $6000, and the amountof paperreceived was something over $20,000.”

Cross-examined. “I had a general power from Gay, Macmurdo $ Co., for all intents and purposes; it was written ; 1 had no special power; the members of the firm, are Mr. Gay and Mr. Macmurdo, and no one else; when I got this draft sued on, I cannot say what other paper I got with it, but I can tell what paper we got for the two transactions together.”

Being shown the schedule of Partee $ Co., says: “ The paper put down on the schedule of Partee Co., as being in the hands of Gray, Macmurdo Co., is the paper which Gay, Macmurdo Co., .held under the two transactions spoken of; the dates of the maturity of the paper, I believe, to be correctly stated; of said papers, there has been actually paid $3376 75; two of the papers have been sold, to wit, that belonging to the church, of $1038 83, and $1080 64 ; the rest of the paper they still hold; I am unable to say what I did give for this $5000 draft; I cannot distinguish what particular paper I received at the two particular transactions; when I called on Greenland and told him he could have the paper by paying $15,375, Partee had not returned to the city; cannot say if, at that time, it was generally known here, that Partee had failed; that fact became generally known here, sometime in the latter part of September; Gray, Macmurdo § Co. never lent Partee money since I have been there; I know that they refused to lend money; there was no broker employed in this transaction; on these transactions, the charge was generally one per cent commission; in case the money was returned, it was understood, that Geenland had to pay one per cent commission in addition to the amount obtained; Messrs. Gray, Macmurdo $ Co., never censured me for taking this paper in any way. The objection which I had to lending money on a pledge, was because it required an act to be made before a notary; this was the reason why I took a verbal sale of the paper in the last transactions; I would have taken a written sale, but stopped, at Geenland’s solicitation, that he was in a hurry for the money.”

Re-examined. “Ihave been in business with Gray, Macmurdo Co., since the 19th May last; the consequence was, that if the paper was not redeemed within the time fixed, the paper belonged to Gray, Macmurdo Co.; such was the understanding. S. B. Convey has failed.”

William, Bell, re-called by plaintiffs, Gray, Macmurdo Co., says: “ Messrs. Lowe, Pattison <j- Co., have failed; that is, they have suspended payment; I received the paper in this transaction, and am acquainted with its character; I consider, that Gray, Macmurdo <j- Co., gave a fair price for said paper, and the reason why I think the price a fair one, was because, when I tided to get the paper off, I could not get for it, what Gray, Macmurdo Sf Co. gave for it; I offered the greater part of the paper for sale, in the latter part of September; about the 26th of said month, 1 offered Lowe and Pattison1 s and John Williams’ paper then.” The evidence given by the witness on the 20th inst., being read to him, he desires to correct that portion of it which says: “ the objection which l had to lending money on a pledge, was because it required an act to be made before a notary; this was the reason why I took a verbal sale of the paper, in the last transaction, by stating, that the two alternatives of a loan or pledge, were not presented to me; the only offer made to me was a sale; if the other alternative of a loan or pledge had been offered, I would have refused.”

The district judge was of opinion, that the testimony of these witnesses established the fact of two sales of notes, of which the price of one was $9000, and of the other, $6000; that a day for the redemption was fixed by each of the contracts; that the delay expired without the bills having been redeemed. But he was not satisfied that, under the evidence, the legality of the sale of the draft could be sustained. His reasons are thus given at length:

“But here commences the difficulty. The sale of the 10th of September, became irrevocable on the 15th, or, at the farthest, on the 17th of September, according to both the witnesses; consequently, before the contract of the 18th wasmade, that of the 10th was consummated, by the default of the seller, to the advantage of the purchaser. It follows, that the bills which constituted the object of the first vente a réméré on the 10th of September, could not possibly constitute the object of the second vente & réméré on the 18th of September, because Partee Sf Co. could not possibly sell to Gray, Macmardo Sf Co., that which already belonged, by an absolute title, to Gray, Macmurdo Sf Co.

“ Now, both the witnesses, Greenland and Bell, declare, that the list of notes and accepted drafts given in evidence, as put down among the assets of W. B. Partee Sf Co. upon their schedule, and amounting to a nominal value of twenty thousand dollars and upwards, is a correct list of notes and drafts transferred to Gray, Macmurdo Sf Co. by Partee Sf Co., by the two contracts of the 10th and 18th of September; but both these witnesses are unable to specify which of the said notes and drafts were delivered to Gray, Macmurdo Sf Co., on the 10th, and which on the 18th September. In other words, these witnesses have failed to specify what was the thing sold on the 10th of September, and what was the thing sold on the 18th of September. They agree in declaring that the draft now sued upon, was included in one or the other of those transactions or contracts, but they are unable to say, which. But, for the reason already stated, it is impossible that this draft was included in both of the contracts, considering those contracts as sales with the clause of redemption.

“ The price of the first of the sales iu question was $9000 ; that of the second was $6000.

“The evidence leaves it entirely uncertain to which of those sales the draft now in suit belongs. We have, therefore, no proof what price was given for it, or for any of the bills receivable contained in the list above mentioned.

“ I am fully impressed with the truth of the argument used by the counsel of Gray, Macmurdo 8f Co., that a sale of a flock of one hundred sheep for one hundred dollars, is good, without any specification of how much is given for every particular ram, wether and ewe in the flock. But, at least, the flock must be susceptible of identification; unless so, I must say, that such a sale could not be carried into effect, and would be, to all practical purposes, void. In like manner, Lowe and Paliisoris acceptance for $5000 belonged to a batch of bills receivable, sold by Partee 8f Co. to Gray, Macmurdo Sf Co., on the 10th of September, for $9000, or it belonged to another batch, sold by the same vendors, to the same vendees, on the 18th September, for $6000. But, the agentB of the vendors and of the vendees, in making the two sales, are alike unable to identify the paper sold at either sale; and, consequently, to identify whether this draft was included in the first or last sale. It appears to me a confusion of ideas, to blend the two contracts, and to say that, because the whole price of the two sales was $15,000, and because all the bills and notes on Parteé’s schedule are embraced in those two sales, that therefore the title of Gray, Macmurdo Co. to each and eveiy bill and note in that schedule is made out. To elucidate my idea: suppose that Partee ¿y Co. had presented themselves, on the 20th of September, to Gray, Macmurdo Sf Co. with $6000, (and one per cent added,) in hand, demanding the return of his acceptance of Lowe and Pattison, as returnable under the contract of the 18th of September-. And suppose, upon such a demand, that Gray, Macmurdo 8f Co. had refused to re-deliver the said acceptance, on the ground that it was absolutely their property, under the contract of the 10th of September. Who can say, under the evidence, which would have been right? The fact is, that the two contracts were so distinct, that one was consummated before the negotiation for the other was commenced.

“I decide,for the foregoing reasons, that Gray, Macmurdo Co. have failed to establish their title to the accepted draft sued upon, by failing to identify the contract by which the draft was transferred to them by W. B. Partee &f Co.

The transactions of the 10th and 18th of September, being conceded by the learned judge to be sales, and valid transfers of the things sold, in each case, does it follow, because the witnesses cannot swear as to which of the batches or parcels this draft was included in, that, therefore, it can be sustained as a legal inference, that the object of either was uncertain? As the witnesses concur in stating the draft to have been included in one or the other of the sales, the conclusion is excluded, that it was included in both. We understand the testimony as establishing the verity of each transaction at the dates of the 10th and the 18th, as distinct and separate from the other; and that the price of one was sale $9000, and the other, $6000. As to which of these sales the draft formed a part of the objects, the recollection of the witnesses is at fault; but that it formed a part of one or the other, that it was bought on one or the other of those days, the testimony appears positive.

Had Partee Co., as in the case supposed by the learned judge, presented themselves, and offered to redeem this draft, within the time of redemption, and demanded the redemption, under the contract of the 18th of September, and Gray, Macmurdo 8f Co. had insisted on retaining it, under the contract of the 10th of September, and, had the witnesses to the transaction testified as they do now, it is true, that the embarrassment in ascertaining by which of the contracts the draft was sold, would arise. But our impression is, that we are not justified by the evidence in assuming that such a state of things could have occurred.

As the draft was included in one or the other of the parcels, the matter being fresh in the minds of those who had been occupied about it, it is hardly probable that the parties could not have known exactly how it occurred; and even if the fact was left doubtful, as to which of the parcels the draft 'belonged, the sale of it would not be invalidated, when it was certain that it was included in one or the other of the parcels. The seller would be embarrassed in exercising his right of redemption, from the slovenly manner in which he did hi's business ; but the right to hold the objects sold, would not be affected by this irregularity.

Ambiguous or obscure clauses in the contract of sale, are interpreted against the seller, who is bound to explain himself clearly as to the extent of his obligations. Code 2449.

This rule may not be strictly applicable to the present case; but, when we look at the haste which attended those transactions, the irregular mode in which the business was done, the condition of Partee's house, which was already seriously embarrassed on the 18th, if we cannot fix illegality upon the transaction, we must recognize it as valid, or defeat all contracts made by such people, who do their business irregularly and under such circumstances. "When notes have been fairly sold, in parcels or batches, at two different times, and the price paid for them, it would certainly not be just that the sale of all should be defeated, by the vendor’s not being able to establish his right of redemption to any particular object.

We, therefore, are notable to concur in the conclusion of the district judge, that the plaintiffs have not made out their right to the draft in question, by reason of their failing to identify by which of the contracts they acquired it. It being conceded, that they acquired it by one or another contract, this uncertainty in the testimony, we do not conceive defeats their title.

The plaintiffs’ case being relieved from this objection, we have before us the sale of a draft, with the privilege reserved to the seller to redeem it within a certain time, and a failure to redeem [it. It was purchased at a fair market price, and the plaintiffs gained no undue advantage by their bargain.

The principal argument of the counsel for the plaintiffs is, to show that a loan of money was contemplated by the parties, and that these transactions, taken together, amount to nothing more than the giving the notes as collateral security for the payment of the loan.

The object of Partee Sf Co. unquestionably 'was, to raise money by the notes which they delivered to the plaintiffs; but the evidence, we think, is conclusive, that they were not pledged, but sold, with a privilege of redemption; and that the property in them passed to the purchaser, and would revest in the seller on their redemption. The contract of pledge was known to both parties as unavailable for their urgent purposes; and the contract of sale was that which alone would give the plaintiffs the equivalent which they asked for the advance of their money, and which Partee Sf Co. had agreed to provide, as they had provided in other similar cases.

An inference from the testimony of the witnesses is attempted to be deduced, that the books of Gray, Macmurdo Co. contain no entry of this draft among their bills receivable, nor of the price or consideration given for it. The books of the plaintiffs would not have been admissible as evidence for them. If the defendants wanted to use them, they aught to have asked for their production, and sought to establish by certainty, what is now a matter left to conjecture. The witness Bell, had he been interrogated on this subject, could have stated the fact thus inferred, and would have had an opportunity of giving explanations in reference to it. It would not be just to suffer an inference of this kind to weaken the validity of clearly established rights.

Upon the whole, we consider the defence quite untenable. If maintained, it would establish a precedent which would operate a check upon a free and fair circulation of negotiable paper, and be an innovation of the law as well as of the usages of trade in that article.

The judgment must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the court below, in these two cases, be reversed, and that the defendants, Bartley M. Lowe and William H. Pattison, composing the firm of Lowe and Pattison, and Alexander Pattison, be condemned, in solido, to pay the plaintiffs, Gray, Macmurdo Co., the sum of five thousand two hundred and fifty-four dollars, being the amount of the protested draft, with damages at five per cent, and costs of protest, with interest at the rate of five per cent, from the 14th day of November, 1851, till paid. It is further ordered and decreed, that there be judgment against the firm of Lowe and Pattison, and the firm of Lowe, Pattison 8f Co., in their suit for injunction, and the injunction granted therein is hereby dissolved. It is further ordered and decreed, that the said Gray, Macmurdo Sf Co. are the lawful owners of the said paper, the negotiation of which was enjoined by the said Lowe and Pattison, and Lowe, Pattison Sf Co., and that judgment be rendered thereon in favor of said Gray, Macmurdo Sf Co. And it is further ordered and decreed, that there be judgment against W. B. Partee, on his intervention as syndic of the creditors of W. B. Partee S¡- Co., and that the same be dismissed, at his costs, and that all the other costs of these suits be paid by the said Lowe and Pattison, and Lowe, Pattison Sf Co.

Application for a re-hearing refused.


source: Caselaw Access Project

author:
Eustis, C. J. Eustis, C. J.
      Preston, J.,

license: Public Domain

text:
    Succession of John McDonogh. C. Roselius, F. B. D. Aquin, A. D. Crossman and W. E. Leverich v. R. R. Gurley, B. C. Howard and B. Mayer. T. J. Durant, Attorney of Absent Heirs of J. McDonogh v. R. R. Gurley, B. C. Howard and B. Mayer.
    No. 2416.
    No. 2456.
    A testamentary executor, present in the State, but domiciliated out of it, cannot obtain letters of administration without executing Ms bond with good and solvent security, for such sum and under such conditions as arc required by law from dative testamentary executors.
    APPEAL from the Fifth District Court of New Orleans. Buchanan J.

      M. Grivot and Levi Pierce, for plaintiff.

      H. H. Slrawbridge, Miles Taylor and J. A. Maybin, for defendants.
   By the court: (Slidell, J., absent.)

Eustis, C. J.

No. 2416. — By the will of the late John McDonogh, seventeen persons were named executors, of whom eight resided in New Orleans, and six resided in Baltimore, and three elsewhere.

Four of the residents of New Orleans were qualified as executors, received their letters testamentary, and took upon themselves the performance of their trust. Five of the non-residents, viz : Messrs. Gurley, Howard, Mayer, Gibson and Smith, were also qualified as executors, received their letters, and entered upon the performance of their duties.

This appointment has given rise to several appeals, from decrees rendered by the Court of the Fifth District of New Orleans. The questions involved in each case, though dependent, it will be necessary to examine separately, leaving out of view all matters not necessarily connected with them.

An appeal is taken by the New Orleans executors of the succession of John McDonogh, from two decrees, by which R. R. Gurley, Benjamin C. Howard and Brantz Mayer, were admitted to be qualified as executors of said succession, and letters testamentary were directed to be given to them, without their being required to give security.

The third section of the Act of 1842, amending the article 924 of the Code of Practice, and for other purposes, provides, “that whenever the testamentary executor named in the will, shall be present in the State, but be domiciled out of it, the judge shall only grant him the letters on the execution of his bond, with a good and solvent security, for such a sum, and under such conditions as are required by law from dative testamentary executors.” Acts of 1842, 302.

This law is plain, free from doubt, and imperative. The residence of the gentlemen is alleged, in their petitions, to be in Baltimore, and those. appointments, without being required to give security, cannot be maintained. The decrees appealed from, must therefore be reversed; the appointment of Messrs. R. R. Gurley, B. C. Howard and Brantz Mayer, as executors, vacated ; the appellees to pay the costs of the appeal.

By the court *.

Eustis, C. J.

No. 2456. — On the 1st December, 1851, a judgment was rendered, by which the letters of testamentary executorship, heretofore granted to R. R. Gurley, Benjamin C. Hoivard and Brantz Mayer, of the city of Baltimore, in the succession of John McDonogh, were revoked. This judgment was rendered on the application and petition ,of Thomas J. Durant, Esq., attorney, appointed by the court to represent the absent heirs of the deceased. Messrs. GurUy, Howard and Mayer, have appealed from this judgment.

The residence of Mr. Gurley, was in the district of Columbia, and that of Messrs. Howard and Mayer, in Baltimore. These gentlemen, as we have seen, were appointed executors by the will, and were admitted to be qualified, under decrees, of date the 11th and 13th of December, 1850. The effects of the succession having been subjected to process of sequestration, at the instance of the State, these gentlemen, who had come to New Orleans for the purpose of attending to their duties as executors, returned to their homes a few days after, and have not since come back to Louisiana.

On departing from the State, they left no power of attorney to represent them in the administration, as required by the Act of 1849, and for this reason, the district judge revoked their letters testamentary.

The decision which we have rendered, concerning the validity of the decrees, by virtue of which the appellees claim to act as executors, renders the decision in this appeal unnecessary. It falls with that decision.

Preston, J.,

dissenting.' John McDonogh, a resident"of Louisiana, leaving ^ ¡arge estate, appointed, by his will, executors residing in and out of the State of Louisiana. Four of those appointed in the State, were qualified, and four of those residing without the State.

Questions are presented in relation to the respective rights of these executors, which, I think, might be postponed until the decision of the main case now before the court. But as the decisions are pressed, I will give my conclusions, without going at length into the reasons until the main questions, with regard to the will, are decided.

The whole estate of McDonogh appears, to me, to be so much involved in controversies, that, as at present advised, I am of opinion, that commissions on the whole property, will be but a just and reasonable compensation for his numerous executors. They should be paid only as the estate is passed over to his creditors, legatees or heirs. I should infer this from article 1676 of the code, and 1067 of the Code of Practice; but when I compare article 1663, with 1182 of the code, the inference is irresistible.

In making the estimate of the amount of the commissions, property, which is of no value, is to be deducted. That is the meaning of the term productive, in the article 1676 of the code allowing commissions.

I do not believe McDonogh intended to make any distinction between his executors, as to their powers. He made the cities of Baltimore and New Orleans, his universal legatees. Considering the whole of his will, it appears to me, he intended that the foreign executors should see his whole will carried into effect, but guard especially the interests of the city of Baltimore, and of the colonization society; and that his executors in this State, should guard especially the interest of New Orleans, and some of her charitable institutions.

This object would probably fail of its accomplishment, if the foreign executors were required to give security like dative executors. He, therefore, never intended it. Does the 3d section of the act of the 16th of March, 1842, imperatively require it ?

It is an act providing “ for the administration of the successions of strangers dying, possessed of property, within the State of Louisiana, and for other purposes.” The object of the act, as expressed in the title, does not necessarily embrace the estate or executors of McDonogh, who was not a stranger, but an ancient citizen of this State. I do not think the spirit of the act applicable to this case. The object of the act, was to prevent a foreign executor representing the whole estate, from carrying off the whole property, without accounting to our courts. That is impossible, where there are resident as well as non-resident executors, and joint resident and non-resident legatees of the whole estate, entitled to claim its immediate seizin by their commissioners. Indeed, it appears, that by a writ of sequestration on behalf of the States of Maryland and Louisiana, the great mass of the succession is tied up. so, that, apparently, it is not in the hands of the executors. So that the security for the faithful administration of the foreign executors, would, under all the circumstances, be but nominal. Code 1034. I do not think, therefore, that the appointment of the foreign executors, should be vacated on account of not having furnished it. Much less should their appointment be vacated for having returned to their homes, without leaving powers of attorney. Their co-executors, in such case, act for them, for whose acts they are responsible. Code, art. 1674. The article of the code 1149, and the act of 1849, relied upon for revoking their appointment, on account of absence, refers to cases where their absence leaves the estate unrepresented. No such thing existed in this case. To be a cause for dismissing them, it must also appear, that the succession suffered loss by their absence. Nothing of the kind is pretended. They were strangers, not advised, so far as appears, of these local laws which probably exist no where else. They complied with them, as soon as advised of the necessity. I do not see in the records, the least disposition, on their part, to neglect their duty, disregard our laws, or not to pay the most implicit obedience to our courts. In all respects, I think, they stand upon the same footing with the domestic executors, and have, with them, a great and difficult duty to perform, to execute a somewhat anomalous will in this State, disposing of a very large estate for purposes of great public utility, the execution of which, will require the united exertions and wisdom of all the executors; and for which, probably, commissions on the whole estate, will not be more than an adequate compensation.

      The dissenting opinion of Judge Preston, expressed his views of these eases, and also of the following case on the opposition of HomcMrA, Gurley and Mayer, to the account of the executors of John McDonogh, JJy agreement of counsel, these suits were consolidated.


author: Eustis, C. J.

text:
    Succession of John McDonogh, On the Opposition of R. R. Gurley, B. C. Howard and B. Mayer, to the Account of the Executors
    No. 2524.
    The code provides, that if the executor has not a general seizin, his commission shall he only the estimated value of the objects which he has had in his possession, and on the sums put into his hands for the purpose of paying the legacies and other charges of the will. Art. 1677. Yet, where the seizin of the property of the succession was not given by the will, but the executors took possession thereof in the absence of the heirs, and the possession wss legal and beneficial to the heirs, it was held, that they were entitled to commissions under the article already cited.
    An executor cannot claim a comíaission on waste, uncultivated lands; nor can commissions he charged on bad debts, that is, those which are prescribed or due from insolvents.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      II. H. Strawliridge, for the opponents.

      Levi Pierce and M. Grivot, for the executors.

      Thomas J. Durant, for the absent heirs.

      See the dissenting opinion of Preston, J., last case.

   By the court:

Eustis, C. J.

An appeal was taken by the New Orleans executors, from a judgment of the court, by which an opposition to a tableau of distribution, filed by the former, on the part of R. R. Gurley, B. C. Howard and B. Mayer, of Baltimore, was sustained, and each of them allowed one-eighth part of the total sum charged, as commissions of executors, on the tableau. This judgment was rendered on the 23d of January, 1852.

The question involved in this appeal, relates to the commissions claimed in this opposition.

By the will, the seizin of the immovable property of the deceased was not given to the executors]; on the contrary, it is given to commissioners to be appointed under the will. Seizin Is given to the executors of the personal property only.

The code provides, that if the executor has not a general seizin, his commission shall be only the estimated value of the objects which he has had in his possession, and on the sums put into his hands for the purpose of paying the legacies and other charges of the will. Art. 1677.

Under the will, it is clear that the commissions of the executors were to be confined to the personal property which came into their possession, and such was the settled purpose of the testator.

Under a state of things which were not foreseen, and consequently not provided for, the executors found themselves temporarily in possession of all the property of the succession, subject to the process of sequestration before noted on this property, amounting to some two millions and one half of dollars, according to various inventories, the executors have charged a commission of two and one-half per cent, amounting to the sum of $62, 348 70. The district judge thought the three executors, who are the appellees in this appeal, were entitled to their share in these commissions, and decreed accordingly.

In this connection, we deem it our duty to state what we conceive to be the law on this subject of .commissions.

In the case of Anderson’s Heirs v. Anderson’s Executors, 10 L. R. 35, the court held, in a case where the seizin of the property of the succession was not given by the will, but the executors took possession thereof in the absence of the heirs, and the possession was legal and beneficial to the heirs, they were entitled to commissions under the article 1677 of the code. But an executor cannot claim a commission on the value of waste, uncultivated lands. Succession of Milne, 5 R. R. 48. Such property is considered as forming no part of the productive property of the succession. Nor can commissions be charged on the amounts of bad debts, that is, those which are prescribed or due from insolvents. Code, 1676. By this article, the executor, for his care and trouble, is allowed to charge 2£ per cent commission on the whole amount of the estimate of the inventory, deducting that of property which is not productive, and bad debts.

There are cases in which commissions are allowed to executors on the estimated value of unproductive property, where the administration of it gives trouble and requires expense, as where it is in litigation, or works are required in order to preserve it. Succession of Girard, 4 Ann. 386. The cases on this subject, are collected and reported with great accuracy and ability in the digest of Mr. Hennen, verlo Succession xi, (h.)

Under this view of the law, the charge of two and one-half per cent on the whole amount of the estimated value of the property of the succession, made by the executors, cannot be sustained. A large portion of this immense estate is not productive, consisting of uncultivated lands, and not subject to a general charge of commissions for the executors.

As the journey of these gentlemen, from their homes to this city, must probably have been attended with inconvenience, and certainly with considerable expense; and, as it was undertaken in the furtherance of the objects of the testator’s will, the parties in interest will doubtless not be insensible to their claims; but the questions which we have been obliged to act upon, are exclusively of law, and must exclusively be governed by it.

Our opinion is, that the appellees have no legal claim on the effects of the succession, by reason of the express provision of the act of 1842, before noted-. For the reasons given, this court can enter no decree sanctioning the allowance of the commission of two and one-half per cent to the New Orleans executors. The only portion of this charge before us is, that included in the adverse claim of the appellees, and to this portion the effect of our judgment is necessarily confined. The decree of the district court,, homologating the executors’ account, except as opposed, in which this charge is made, has not been appealed from. Our judgment is upon the opposition of the appellees, which the decree of the district court sustained.

It is therefore decreed, that the judgment appealed from be reversed; the opposition of the appellees be dismissed, and the case remanded for further proceedings; the appellees paying costs in both courts.

Rost, J., concurred. Pp.ESTOn, J., dissented.


author: Rost, J. Preston, J.,

text:
    L. T. Chalon v. Augustus W. Walker. E. Chalon et al., Intervenors.
    Defendants purchased property at a sale made to effect a partition, and alleging that there were informalities in the action-of partition under which the sale was made, refused to pay the price, and claimed its rescisión. Thaparties interested in the partition, offered to waive the informalities, and, within a reasonable time to be allowed by the court, to ratify the sale. Held: The parties in interest could alone object, and it was competent for them to waive the informalities. Held, also,: That under the authority vested in the court, by article 2042 of the code, leave can be granted to them to waive the errors and ratify the sale within a reasonable time.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Buisson, Benjamin, and L. Janin, for plaintifis.

      Elmore and King, for defendant.
   By the court: (Preston, J., dissenting. Slidell, J., absent.)

Rost, J.

The plaintiff claims from the defendant the price of certain lands purchased by him at public auction, with the interest that has accrued upon it.

The answer of the defendant is not so explicit as might be desired; but we understand the prayer to be for a resolution of the sale, on the ground of informalities in the action of partition under which it was made. There was judgment against him for the amount claimed and interest, and he has appealed.

In the action of partition, Elizabeth and Palmyre Alpuente, two of the parties, were married women. The answer states, that they were duly authorized and assisted by their husbands. But the husbands did not make themselves parties to the proceeding, and no authorization is shown.

The heirs of Rabassa were parties in interest, and should have been made parties to the suit. His executor alone was cited.

No experts were appointed to determine whether the property was susceptible of division in kind.

These are informalities of which the parties having an interest could alone take advantage, and which it is in their power to waive, by ratifying the sale; and, as they have offered to .do so, within any reasonable time the court may allow, we consider this a proper-eas'e'for'th.e exercise of the discretion vested in us by article 2042 of the Code.

It is therefore ordered and decreed, that in conformity With article 2042 of the Civil Code, Elizabeth Alpuente, the wife oí Alexander Joseph Atocha, by him duly authorized and assisted; and Palmyre Alpuente, the wife of Henry Boyle, duly assisted and authorized; Julie Pamela Mary,the wife of Antoine Joseph Guirot, by him duly assisted and authorized; and the heirs of the late Joseph Rabassa, have a delay of sixty days, to ratify and confirm the adjudication made to the defendant, Augustus W. Walker, of the property described in the petition: and, whereas the defendant alleges that there are various irregularities in the proceedings for a partition, under which the adjudication to the defendant was made, and the plaintiffs have declared their willingness to ratify generally the said proceedings and adjudication, whereby, it becomes unnecessary to examine said irregularities, it is further ordered, that the plaintiffs and their assigns do ratify said proceedings for a partition, and said adjudication, within said delay of sixty days; that, on the plaintiffs executing before a notary public, and filing in the Fifth District Court, within said delay, a copy of the act of ratification, as hereabove directed, they recover from the defendant, the sum of two thousand six hundred and sixty-four dollars, with five per cent interest on the sum of $666, from the 5th of December, 1250 ; and with interest at the rate of eight per cent on the further sum of $666, from the 11th March, 1850; on the further sum of $666, from the 11th of September, 1850; and on the further sum of $666, from the 11th March, .1851 — until final payment, with costs in the court below; the costs of the appeal to be borne by the plaintiff. And it is further ordered, that if the plaintiffs should fail to execute and file, within the aforesaid delay, said act of ratification, as within directed, the aforesaid adjudication, made to the defendant on the 8th March, 1849, be annulled and rescinded, and that in that case the plaintiffs pay the costs in both courts. It is further ordered, that this case be remanded to the district court, for the purpose of having the foregoing decree carried into effect.

Eustis, C. J., concurred with Rost, J.

Preston, J.,

dissenting. In a suit of Joseph Chalón et al. v. Chalón et al., for a partition, which was decreed, the sheriff of the parish of Orleans, after the notices required by law, and in obedience to the judgment of the court, on the 5th and 8th of March, 1849, offered for sale a large number of lots, in the rear of the city of New Orleans, the price to be paid one-fourth cash, and the balance on twelve, eighteen and twenty-four months’ credit, the notes secured by mortgage, and bearing eight per cent interest from maturity until paid. The defendant became the purchaser, for the aggregate amount of two thousand six hundred and sixty-four dollars. A title having been made out and tendered to him, he refused to accept it and comply with the terms of sale. This suit is brought to recover the price, according to the terms.

The defendant excepts to the suit, that the heirs of Joseph Chalón, and the numerous other parties interested in the partition, have alone the right to maintain this suit against him, upon the grounds set forth in the petition; and his administrator has no such right. Thereupon, all the parties interested intervened, and insisted upon the allegations and prayer of the original petition, and thus disposed of the exception.

The defendant, answering to the merits, alleged, that the various judicial proceedings carried on in the suit of Chalon et al. v. Chalon et al., for a partition, in which the property was sold, were conducted with so much irregularity and illegality, that they have no binding effect upon the parties thereto, many of whom are minors, and others married women, who at any time could claim the property sold to effect the partition, so that the title tendered to him is so defective that he is not bound to pay his money for the property. He assigns several special reasons:

1. That Joseph Chalón, the plaintiff in the suit for partition, was a member of a family meeting called on behalf of the minor, H. H. Alpuente, one of the parties to the suit, and one of the defendants. The conclusive apswer of the plaintiffs to this objection is, that the only question submitted to the family meeting was, on what terms the property should be sold; Chalón and the minor were equally interested, that the property should sell for a good price, and therefore that judicious terms of sale should be recommended. It is an interest adverse to that of the minor, which incapacitates a relative from serving as a member of a meeting of his family, not a concurrent interest with him.

2. It is objected, that the answers to the suit for partition, by several of the heirs, who were married women, and were defendants, are authorized by their husbands. The record shows that, the answer was signed by a licensed attorney, who represented them, as authorized to answer by their husbands, who assisted them in the suit. The authority of the attorney to file this answer, has not been disavowed by the husbands, or denied upon oath by the defendant. On the contrary, the authority of the husband has been since ratified by their appearing, with their wives, and receiving the proportion due to their wives of the proceeds of sales that have been collected, and also joining their wives in this suit, to compel a compliance, on the part of the defendant, with the terms of sale.

3. It is objected, that Etienne Chalón, testamentary executor of Joseph Rabassa, was made party to the suit, instead of the heirs of Rabassa.

The action for a partition, is undoubtedly a real action, and the heirs of Rabassa should have been made parties to the suit, as specially decreed by the Civil Code and Code of Practice. C. P. 123. C. C. 1230, 1245.

But there is not a suggestion, much less proof, in the record, that the property sold for less than its value; and the executor of Rabassa has received his share of the proceeds of the sales which have been completed, and intervened in this suit to approve the former proceedings, and claim his share of the proceeds of these lots. There are also other lots bought by the defendant, at the same sale, for which suit is not yet brought to prove a compliance with its^terms. In forcing a compliance with the sale of those lots, I would recommend a mere ratification of the whole proceedings, on behalf of the heirs of Joseph Rabassa, but do not see sufficient danger of eviction or loss, to the defendant, which may not be avoided, to afford him relief in this case.

Another objection, made by the defendant, to this title is, that no experts were appointed to report to the court whether the property should be divided in kind, or sold to effect the partition. It was proved to the satisfaction of the district court, and appears conclusively to me, that the partition could only be made by a sale, and that the property could not be divided in kind. This superseded the necessity of experts. Other smallerobjections are made, but they appear to me quite immaterial to the title.

I think the judgment of the district court should be affirmed, with costs.


author: Eustis, C. J. Preston, J.,

text:
    Theodore Shute, Executor, v. W. W. Dodge et al.
    The captain of the steamer Concordia, who is part owner, had an insurance in an office, of which Snethen was the agent. The boat was sunk; the captain abandoned, and Snethen refused to accept the abandonment. The captain then made a contract with Snethen, as the agent of a bell boat, to “save the cargo and other property from the wreck, in consideration of the salvage hereafter to he agreed upon, by certain named arbitrators, and the free and full possession of the wreck." The bell boat raised the steamer and brought it to New Orleans, where it was sold by the port wardens. The owner of the bell boat bought it, and had it repaired Held: The sale, by the port wardens, was illegal, and the purchaser acquired no rights by the purchase.
    The circumstance, that the owner'of the bell boat raised the steamer, by means of his boat, gave him no right to possession of the steamer.
    The stipulationin the contract, that the captain of the bell boat should have “free and full possession of the wreck,” meant nothing more than a possession or holding for the purpose of saving the cargo and property, and the exclusion of all interference with his wreck; but not a possession adversely to the owners.
    The purchaser had no right to have the steamer repaired at the expense of the owners, and they are only responsible for those repairs, to the extent that they are benefitted.
    APPEAL from the Fourth District Court of New Orleans, Siraw'bridge, J.

      Benjamin and Micou, and Bonford and Finney, for plaintiff.

      Ogden and Duncan, for the defendants.
   By the court: (Slidell, J., absent.)

Eustis, C. J.

The questions upon which this case has been made ultimately to turn, relate to certain claims set up by the defendant, Dodge, on the proceeds of the sale of the steamer Concordia. The learned judge of the district court describes the case as troublesome and intricate beyond any one which has ever passed through his hands. In deciding it, we must endeavor to simplify it as much as possible; every thing which has not a serious bearing upon the result, must be kept out of view.

This appeal is taken by the defendant, and the plaintiff asks a change in the judgment in his favor.

The plaintiff represents the owners of two-thirds of the steamer Concordia, of this port; her captain, 5. B. Frost, owned the other third. She was snagged a short distance above Fort Adams, on Sunday the 17th of October, 1850.

Frost was insured for five thousand dollars, with the Columbian Insurance Company, of which Mr. Snethen was the agent, and abandoned as for a total loss; the abandonment was not accepted.

The cargo of the steamer was very valuable, and the captain made a contract with Snethen, as the agent of a bell boat, to save the cargo and other property from the wreck, in consideration of the salvage hereafter to be agreed upon by certain named arbitrators, and the free and full possession of the wreck.

Not only the cargo was saved, but-the boat was raised and brought to New Orleans, on the 16th of November. She was sold by the port wardens, and bought by Dodge, the owner of the bell boat. She was then put into Salter and Marcy’s dock, for repairs, was sequestered in this suit, and, after the first judgment rendered in the suit, was sold under the agreement of all concerned, and produced the sum of $8000, which is now before us for adjudication.

The plaintiff, at the time of the accident, was building a new boat at New Albany, and under date of the 31st October, writes a letter to Capt. Frost, in which he says, after noting the misfortune of the Concordia:

“I can now say nothing in relation to the course you should take with the wreck and whatever can be saved. I feel satisfied that you will act for the best interest of all parties, and under advice or instruction from the offices. There are many articles of furniture which we can use on the M, which I would like to have, but which will not be wanted now. I should prefer the sale of everything postponed until I get down; but the boilers and machinery might be shipped at once to New Albany, to Phillips, Hise Co., to be landed at their foundry; if this can be done, I would advise it, as the best means of selling it to advantage.”

This letter was received by Capt. Frost on the 9th of November, and shown to Mr. Snethen on that day.

Assuming that the captain, for the preservation of the steamer and her cargo, had full power to do what a wise and prudent man would think most conducive to the benefit of all concerned, during the. existence of the necessity for his exercising his power. When we read this letter, and consider the circumstances in which the captain found himself, we cannot entertain a doubt that it conferred on him authority to act according to his best judgment in relation to the interests of the writer, and justified him in making any lawful contracts of expenditures called for by the exigencies of the occasion.

Frost was however insured, and had abandoned for a total loss. The plaintiff was not insured. Frost’s interest was, that the steamer should not be saved, but that his abandonment and right of recovery should be fixed. At the same time he had his duty to perform, which was to act for the best interest of all concerned; a very awkward relation to occupy.

It appears, from the evidence, that Snethen was determined, from the beginning, to raise the boat, and that he had no directions from Frost to do any such thing. Frost acted on the reserve as to this project, and his interest was, that it should not be undertaken. Snethen knew this, but he was the agent of the bell boat and of the underwriters, and if he could convert this total into a partial loss, it would be money in the pocket of the underwriters; and it was further his interest to do the best he could for the bell boat, who. would be engaged with her men on the spot, and obliged, in some sort, to prepare for the raising of the boat, by taking out her cargo.

Frost made no contract, and would make none to raise the boat, and the affair was Snethen’s own, for the benefit of parties whom he represented, and not of the plaintiff. These are the conclusions we have come to, from the testimony of both Frost and Snethen.

Frost says, that he never made.any objection to her being raised, but did not want her raised. His idea was, to have the machinery taken out and shipped to New Albany or Louisville, where steamboats are built, according to the plaintiff’s instructions. Snethen acted with his eyes open, according to his views of the interest of those whom he represented. The plaintiff was absent, and Frost declined acting for him, in making any agreement as to the raising of the boat.

The hull of the steamer was not worth the expense of saving. They all knew this, and Snethen, under this state of facts, had the boat raised and brought to New Orleans.

Although Frost was silent as to the doings of Snethen and the workmen, in raising the boat, yet nobody was deceived by it, still less Snethen, who can gain no advantage from the position of Frost, which he created, by not accepting the abandonment of his interest insured.

The district judge considered the claim for raising the steamer, and bringing her to New Orleans, exclusively as one of salvage, and adjusted it on the principles of marine salvage. He thought he was allowing all that could rightfully be asked, in giving Dodge, the owner of the bell boat, one-half the proceeds of the steamer, resulting from the sale by the port wardens, on the 24th November, to wit, one half of $3650.

We are not satisfied that the case is one to which the principles of marine salvage are applicable, nor that the facts constitute the ingredients of what we held in law, to be salvage services; but this objection is only to the principle of the adjustment, which, under the circumstances, we would, in an ordinary case, consider inapplicable. But the defendant has no right to complain of this mode of adjustment, for Snethen undertook the business, on the exclusive footing of salvage. He told Frost, “if the diving bell boat succeeded in raising the Concordia, the boat would be entitled to salvage ; if she failed, it would be her own loss.” He made a salvage adventure, exclusively so, and had no right to expect, and did not expect, any other mode of reimbursement.

It has not been attempted to defend the sale of the steamer, by the port wardens, and it follows, of course, that Dodge could acquire no rights by his purchase. Nor do we consider, that he had, in any legal sense, the right of possession of the steamer, from the circumstance of having raised her by means of his boat.

We understand the free and full possession of the wreck given to him by the contract, as meaning nothing more than a possession, or holding, for the purpose of saving the cargo and property, and the exclusion of all interference with his work, and not a possession adversely to the owner.

It seems to follow, from these premises, under the facts established, that Dodge had no right to have the steamer repaired, at the expense of the plaintiff; and that he is only responsible for the repairs, as he, or the steamer, was benefited by them.

Marcy, who repaired her, says, her hull was worth nothing before she went into dock, and after the repairs, which cost $2100, she was worth $2500. Four hundred dollars were gained by the repairs, and the plaintiff is chargeable with two-thirds of the cost of repairs, say of $2137 03.

The amount allowed by the district judge, for raising the boat and bringing her to New Orleans, is $1216 66.

Our impression, throughout this investigation, has been, that the plaintiff could be subjected tono charge in all this business, unless itinured to his benefit. The evidence is quite defective as to some points, which would have enabled us to bring the subject to some accurate test. Had the amount insured on cargo been proved; had the daily usual earnings of the boat been in evidence, we then might have ascertained what other interest there was which was operating in throwing these charges upon the plaintiff, and to what extent the time of the boat had been paid for by the $4000 allowed for saving the cargo. No details of the mode in which this account was adjusted were given.

So far as the plaintiff’s interests were concerned, Snethen was, throughout, a volunteer, acting for the interests of those he represented. In serving them he aided the plaintiff most unquestionably, but we think it ought to be shown, as nearly as it was susceptible of proof, to what extent the expenditures incurred inured to the benefit of the latter. The repairs put upon the boat by Salter and Marcy, inured to his benefit, and he must bear his share of them. That something is due for the other works, we think is clear; but great uncertainty rests upon the beneficial result of most of the charges.

Neither party asks the case to be remanded. It was incumbent on the defendent, in reconvention, to prove the extent to which the expenditures inured to plaintiff’s benefit, in order to charge him with them in this distribution of the proceeds of the steamer,

Añera thorough examination of the subject, we are satisfied that the judgment of the district court, as an equitable adjustment of these very complicated relations, is as near the justice of the case as we can come, by any consideration in detail, and ought to be affirmed.

The judgment of the district court is therefore affirmed with costs; the costs of the court below to be paid out of the proceeds of the sale.

Preston, J.,

dissenting. The steamboat Concordia was sunk near Fort Adams, on the 15th of October, 1850, in eight feet water and six feet mud. Seven days afterwards, and when a rise of water was anticipated, which would have rendered it impossible to raise and save the wreck, an agreement was made with Dodge, the owner of a steamboat with diving bell and submarine apparatus, to save the cargo; and, I think, by a fair and liberal construction of the agreement, was to save the wreck also if. possible. What other meaning can be given to terms in the agreement, to give him the free and full possession of the wreck under water ? At all events, it cannot be disputed that, a few days after-wards, those interested in the property who were present in the State, employed him to raise and save the wreck, and the agents of all acquiesced. And furthermore, it is not to be admitted that any of them interested, from motives growing out of insurance, should be indulged in letting her go to destruction while there was a possibility of saving her; and the implied consent of all to raise and save the boat is to be presumed.

The salvage, upon any of these hypothesis, was to be settled and fixed by arbitrators, appointed by the parties in advance, that there might be no suspicicion of bias. The record satisfies me that all parties interested, expressly or by silence assented to this arrangement.

Dodge raised, saved and brought the wreck to New Orleans. The arbitrators agreed upon, awarded him three thousand dollars salvage, amounting to about his expenses, all of which he would have lost if he failed in his enterprise. I am not convinced, by the evidence, that this sum was by any means half the .value of the boat floating, with her engine and machinery on the surface of the water. Even if it was more, I look upon the boat, engine and machinery at the bottom of the Mississippi and six feet in mud, as substantially a derelict. If half the value be allowed for taking up a derelict, floating on the surface, that or more might be allowed for diving to the bottom, making the fastenings and bringing the derelict, by herculian efforts, from beneath the bottom, for she was in the sand, taking her safely to New Orleans, and restoring her to commerce.

Salvors cannot exor termini bring the owners in debt — a result the district judge much feared; but such circumstances as existed in this case may leave them but little. Witnesses have been examined to show the value of the engine and machinery, if raised and taken to Louisville or Cincinnati. I doubt if they would have sold for much at the bottom of the Mississippi, near Fort Adams. If so available at Louisville, why did not the owners keep and use it, with their boat, when set afloat, by paying the mere expenses of raising her, allowed as salvage 1

I do not believe the whole would have sold for much,':'at the bottom of the river. By the labor, expense, and I may say risk of life, the salvors have saved something for all the owners. Their reward has been fixed by judges appointed by those owners at barely the expense, the whole of which was risked on the event of success, as well, perhaps, as the health and lives of those employed above and under water in the enterprise. The district judge has brought the salvors greatly in debt under such circumstances.

I think his judgment should be reversed, and the whole amount of the salvage awarded by the arbitrators, selected by the parties, should be paid out of the money in court.


text:
    Mary Adele Nelder, Wife of L. L. Kerr, v. Testamentary Executors of L. B. Macarty, et al.
    The notary concluded the will thns:“Thig will has been dictated tome by the gieur Macarty, and I, the said notary, have written the whole in my hand, such as it has been dictated to me by the said testator, in the presence of the witnesses hereafter named and undersigned,” &c. The question being, whether the words used import that the will was dictated in tho presence of the witnesses, or was only written in tlieir presence. Held: The words, in the presence of the witnesses hereafter named and undersigned, in this connection, would apply indiscriminately to the whole clause — to the dictation as well as to tho writing.
    When the father, by will, in favor of a natural child, disposes of the portion of his estate permitted him by law to dispose of, the only restraint which the law imposes on the rest of his property is, that the disposition of it he not in favor of any other persons than legitimate relations or a public institution.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. N. Ogden and C. Roselius, for plaintiff.

      Benjamin and Micou, Janin and Taylor, Pitot and Eyma, Maurian and LeGardeur, for defendants.
   By the court:

Eustis, C. J.

This appeal is taken from a judgment of the court of the Fifth District of New Orleans, by which the last will and testament of the late Louis B. Macarty was annulled, so far as relates to the plaintiff’s interest in the succession; and they were adjudged to recover their hereditary portion, to wit, one-fourth of the effects thereof.

The ground on which the judgment appealed from is based, is a question of fact; and the conclusions of the district judge, after recapitulating the evidence and commenting on it with great care, are thus given:

“In this conflict of the testimony of the witnesses to the will, and failure of the recollection of the notary who received it, upon a point which is left doubtful by the phraseology of the will, a point which is held to be essential to the validity of a nuncupative will by authentic act, as we have seen above, it is my duty to pronounce as not proved, that the will in question was dictated by the testator to the notary, in the presence of the witnesses; and, for want of this formality, that the said will is invalid as regards the plaintiffs.”

There were other demands against different parties, cumulated in the plaintiff’s petition independant of the validity of the will, but the district judge confined his decision to this single point, reserving all other matters for further adjudication.

The nuncupative will of the testator, L. B. Macarty, was by public act. To give validity to this class of instruments, the law requires that it be received by a notary public, in the presence of three witnesses residing in the place where the will is made, or five non-resident witnesses. It must be dictated by the testator, and written by the notary as it is dictated. It must then be read to the testator, in the presence of the witnesses. Express mention must be made of the whole, observing that all these formalities must be fulfilled at one time, without interruption and without turning aside to other acts.

Our learned brother was of opinion, that, by the phraseology of the will, it was doubtful whether the will had been dictated by the testator, to the notary, in the presence of the witnesses.

The will is in the French language. The concluding part reads thus, in English : It is thus that this will has been dictated to me by Jean Macarty, and I, the said notary, have written the whole in my own hand, such as it has been dictated to me by the said testator, in the presence of the witnesses hereafter named and undersigned; then having read, in an audible and high intelligible voice, and in presence of the witnesses, the present will to the said testator, he has declared, in the same presence, that he had heard and understood it well, and that he ratified it in its whole contents. Of which act, done and passed immediately, without interruption or diversion to other acts, at New Orleans, in the dwelling house of the testator, the day, month and year aforesaid, in presence of Jean Baptist Dejan the elder, Pierre Frederic Thomas and Pierre Pascalis Labarre, witnesses known and domiciliated in this city, &c.

The doubt of the district judge was, whether the words used import that the will was dictated in the presence of the witnesses, or was only written in their presence.

We are relieved from the task of grammatical criticism, which a solution of this doubt might otherwise have imposed on us, by the research of one of the counsel for the defendants. He has shown, from the decisions of courts in France, and the opinions of their first jurists, that in formulas like that made use of by the notary in this will, the words “ in the presence of the witnesses hereafter named and undersigned,” in this connection, would apply indiscriminately to the whole clause, to the dictation as well as the writing.

We adopt this conclusion the more readily, as it accords with the construction which, we think, the general sense of the whole sentence necessarily implies, under the rules of a sound legal interpretation. This construction is also concurrent with the statements in the initiatory clause of the will.

The will is then before us under the certificate of the notary, that it was dictated to him by the testator, in the presence of the witnesses, and written by the notary, as dictated, in their presence; and this certificate is given by virtue of the authority vested in him by law as a public officer.

It is always with the greatest caution, that we interfere with the decision of a judge on a question of fact, when he had the advantage of hearing the examination of the witnesses testifying concerning it, and when the decision rests upon the degree of credit given to them by the judge. In the present case, no difficulty of this kind presents itself. In giving to the testimony of the witnesses the effect which the district judge assigned to it, the will must stand according to the rules of law. The judge considered the testimony of the witnesses conflicting. Be it so. We then have, in support of the will, the force and effect which the law gives to an authentic act, and the presumption which it recognizes in favor of the official acts of public officers, done by virtue of its authority. According to the ordinary rules of evidence, we think it must be considered, as proved, that the will was dictated by the testator to the notary, in the presence of the witnesses, as certified by him.

When we consider that the witnesses, whose testimony is held as conflicting, were examined as to the detail of facts which had transpired more than four years previous, a greater concurrence could not be expected, on matters resting on frail memory, from truthful and conscientious men. And when the testimony of one of the witnesses, that of Dejan, the elder, is urged as impugning the accuracy of that of the others, and his respectability and intelligence are adduced in giving weight to his declarations, it would not be reasonable to leave out of the estimate one of the elements of his respectability — his age — the length of time in which his respectability has been acquired.

Under ordinary circumstances, there are few wills which would be sustained, if courts could set them aside, on testimony like that adduced in the present case.

The plaintiffs are heirs of a half-sister of the testator, L. B. Macarty, and were, at the time of his death, his heirs, by the right of their mother. Mrs. Lalaurie was the full sister of the testator, and co-heir with the plaintiffs. Her heirs are the principal defendants.

The testator having disposed of one-fourth of' his estate in favor of a natural daughter, bequeathed the residue to his sister, Mrs. Lalaurie.

The plaintiffs claim from the heirs of Mrs. Lalaurie, one-fourth part of the three-fourths of the succession thus bequeathed to her, and inherited by them.

They contend, that under the 1474th article of the code, after the testator has exercised the privilege of disposing of one-fourth of his property in favor of his natural child, the rest of it must go to his relations in the regular order of succession, no disposition having been made of any portion of it, in favor of a public institution.

This construction which the counsel for the plaintiffs give to the article, would make the legitimate relations of the deceased his forced heirs, in the cases provided for. The very terms of this article, we think, exclude any such interpretation. We think the law on this subject has been s'ettled, in the cases of Prevost v. Martel, 10 R. R. 516, and Compton v. Prescott, 12 ib. 62.

When the father disposes by will, in favor of his natural child, of the portion of his estate permitted him by law to dispose of, the only restraint which the law imposes on the rest of his property, is that the disposition of it be not in favor of any other persons than legitimate relations, or a public institution.

We therefore conclude, that the claim of the plaintiffs to one-fourth of three-fourths of the succession, under this article of the code, has no foundation in law.

There are several other matters remaining undecided in this cause, which has not been prepared with a view to their termination at this present time. It must therefore be remanded.

The judgment of the district court is therefore reversed. And on the claims of the plaintiffs, to annul and make void the last will and testament of L. B. Macarty, deceased, and to recover from the heirs of Mrs. Lalaurie one-fourth of three-fourths of the succession of the said Macarty, it is ordered by the court, that judgment be rendered for the defendants, with costs. And as to other matters at issue between the parties, it is ordered, that the will be remanded for further proceedings, the plaintiff paying the costs of this appeal.


author: Rost, J.

text:
    M. L. Badillo and S. Chauvin v. Francisco Tio.
    An executor who withholds property from the legal heirs, after his executorship has expired, is in bad faith. He, consequently, can claim no compensation for the administration of it while the tortious possession lasted.
    All who convert the property of others to their own use, are in had faith; hut when the sale itself has been fair, and the full market value obtained, the price, with interest from the date of the sale, is the measure of damages, and the rule is not affected by the subsequent rise or fall in the value of the thing sold.
    The executor charged the succession with one hundred dollars, spent in furnishing the slaves of the deceased with mourning dresses Held: It was an act proper in itself, and should not have been opposed.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      P. E. Bonford, H. R. Denis, and J. Ad. Rozier, for plaintiffs.
    The position assumed by the plaintiffs, is that the defendant owes them the shares of stock, or their value at the time he was ordered by the decree of the court to restore them, together with ail the dividends which accrued thereon in the intermediate time. The defendant was a possessor in bad faith; he was retaining possession of property to which he had no legal right, and against the will of the real owner. If he sold or disposed of that property, he did so without the shadow of authority to justify the act. He cannot weaken the position of the plaintiff in such a sale. And certainly he has no right to reap advantage from his illegal acts, as lie seeks to do, by crediting the plaintiffs with the proceeds of the sale simply, retaining in his own hands the interest for a period of sík years.
    The principle contended for by the plaintiffs is amply sustained by the authorities. See Brown et al. v. McGran, 14 Peters, 479. Neilson v. Morgan, 5 M. R. 256. George v. McNeill, 7 L. R. 124, and the recent case of James S. Foley v. Bell and Slebbins, 7th Annual.
    The inferior court rejected the credit as it stood, and allowed in its stead the value of the several stocks, with the dividends which had accrued thereon, as established by the testimony of Messrs. Matthews, Palfrey and Wood.

    The several items of credit to the succession, for the rents of the real estate, were opposed, on the grounds that the sums thus credited, were not as large as the property, under proper and judicious management, would have produced.
    The opposition proceeded on the basis that the defendant, as a possessor iu bad faith, was bound to account, not only for the revenues actually received by him, but for all such as he might have received, or such as the estate was capable of producing.
    See the following authorities: Duranton, 4, No. 360. Delvincourt, 2, p. 11, in notes. Touillier, 3, No. 110. Dalioz Annuaire, 11, No. 19.

      Janin and Taylor, for defendant.
    The district judge declares, that the defendant is accountable to the plaintiffs for the highest price which the bank and insurance stock had, at anytime before his decision was given, instead of the price for which it was sold. This decision cannot, we conceive, be sustained on any principle of law or equity. The defendant cannot be regarded as a trespasser, nor was it the intention of the Supreme Court, to authorize the district court to so regard him. The 'court decided that he was in bad faith. Now, what is the difference between good faith and bad faith? One regarded in law as being in good faith, makes all the fruits he gathers, his own. One in bad faith, is bound to make restitution to the true owner of the fruits. In the present instance, the defendant sold the stock, after he was put in possession as legatee, and long before the plaintiffs brought their action. He considered himself as the.owner, and acted, as he conceived, for the 'best. This species of property is liable to great fluctuation. He acted as many a prudent man has done before, and sold it, because he believed it better to realize its then actual value, than to run the risk which, in the usual course of things, such property is subject. Let us suppose a case that has not been without example in our day, viz: That the stock, instead of increasing in value, had depreciated, and become worthless, in the same period of time. Would the plaintiffs then have been entitled to recover the price for which it might have been sold for, when the defendant was first put in possession, and before the depreciation took place? If we are permitted to judge from what has been already seen in this cause, it is pretty clear, that the claim would have been made; and then it would have been based upon an allegation, that they had been prevented from selling the stock, in consequence of its being detained from them. If they had had possession of the stock, it is altogether probable, that it would have been sold by them. At any rate, the contrary cannot be known, and it would seem altogether unreasonable and unequitable to suppose the contrary, in a case like the present. It is shown, that the price of the sale accounted for, was the real price of the stock at the time. And as it is not pretended that the sale was made unfairly, and under the influence of any improper motive, we are persuaded, the defendant ought to be made responsible only for the amount received by him. And this would seem to be in concurrence with the decision of this court in this case, with respect to the price of the slaves sold by the defendant. They were sold for much less than the appraisement of them in the inventory, and the amount of the appraisement was claimed. The claim was repeated, and the defendant held to be liable, only for what he actually received. Now, the principle on which that decision was made, is clearly recognized, in the case of Gaulden v. McPhaul, 4 Ann. 79. See Kennedy v. Whetwell, 4th Pick. R. 466. Watt v. Potter, 2d Merlin’s R. 76.
   By the court:

Rost, J.

This case was remanded last year, with directions to the district judge, to cause the defendant to render an account of his administration as executor of Augustin Macarty, and for other proceedings, in conformity with the opinion then delivered.

The defendant rendered his account accordingly. Some of the oppositions filed to it by the plaintiffs were overruled, and others were sustained by the district judge. The defendant has appealed, and the answer of the plaintiffs contains a prayer, that the judgment be amended in their favor. "We will first notice their application. They ask that the judgment be amended in their favor, by charging, not the rent which the real estate produced, but the highest rent, according to the evidence, which it might have produced. Upon that evidence, the district judge came to the conclusion, that the real estate yielded as much as it was worth while it was rented.

We adopt his conclusion, but we are of opinion, that under the evidence, he erred in allowing rent for the two years during which the Camp street property was unoccupied. It was not in a fit condition to rent after the death of Macarty, with advantage to the estate, and could only be rented with very great difficulty, when it was.

The amount paid by Tio for attornies’ fees, in the suit of Fox v. Tio, and in the settlement of the succession of Macarty, was reduced by the. court, from $2500 to $1500, on the ground that, taking into consideration the small value of the thing in dispute in the suit, and the facility with which the succession had been settled, $1500 was a reasonable compensation under the evidence, and the rule applied to such cases by the former and the present Supreme Court. The evidence is somewhat conflicting, but we are unable to say, that the view taken of it by the district judge is erroneous, or that it is not sufficient to rebut the prima facie presumption, that the payments made by the executor, are correct.

The claim of commissions for collecting rents, disbursing, superintending, &c., was properly rejected. After the executorship of the defendant had expired, he was in bad faith, in withholding the property from the legal heirs, and can claim no commissions for the administration of it, while the tortious possession lasted.

The rule by which we determined the liability incurred by Tio, in consequence of the sale of some of the slaves of the succession in 1846, should have been applied to the stocks sold shortly after. All who convert the property of others to their own use, are in bad faith; but when the sale itself has been fair, and the full market value obtained, the price, with interest from the date of the sale, is the measure of damages, and the rule is not affected by the subsequent rise or fall in value of the thing sold. The circumstances attending the conversion in this case, are not worse against the defendant, than they were in the case of The Draining Company v. Lizardi et als., in which, after solemn argument, this rule was recognized and enforced. 2 Ann. 281.

We think that the charge of $100, paid for the mourning dresses given to the slaves of the deceased, should not have been opposed, and that the court erred in reducing it. It was an act, proper in itself, which a son would never disapprove, if done by the executor of his father, and which the plaintiffs, unknown to the deceased as they were, and coming to his succession much against his will, contest with bad grace.

The Supreme Court certainly never adjudged the payment of hire for the services of a dead negro. There is nothing relative to the slave Jackson in the decretal part of the opinion, and the opinion itself has been misunderstood. The court, supposing the slaves Jackson and Liza still in the possession of the defendant, stated that he must account for the hire of those slaves, making proper deductions for time lost. Had this been part of the decree, instead of a mere expression of opinion in the case, as it was then before us, the reservation made was sufficient to cover the contingency of the previous death of those slaves. It being shown in the present record, that Jackson had died shortly after Macarty, the time lost, embraces the whole period that has since intervened, and no hire should have been allowed for him.

It is therefore ordered, adjudged, and decreed, that the judgment of the court below, ordering the account filed by the defendant to be amended, be reversed as to the following particulars: 1st. As to the sum of one thousand dollars for two years’ rent of the property, situated at the corner of Camp and St. Joseph streets, in the city of New Orleans. 2d. As to the sums with which the said defendant is ordered to credit the estate of Macarty, as being the estimated, value of the stock mentioned in the inventory, and the dividends which accrued thereon since the opening of the succession, and in lieu thereof, the said defendant is ordered to credit the estate with the proceeds of the sales of the said stocks, as made by him on the 25th of July, 1846, together with legal interest thereon from the date of said sales, until paid. 3d. As to the amount charged against said defendant, for hire of the slave Jackson. And lastly. As to the reduction made in the charge against the estate, of the sum of one hundred dollars, for mourning dresses for the slaves, which is ordered to stand in the account for the full amount thereof, as charged by the defendant. It is further ordered, adjudged, and decreed, that the judgment of the inferior court be in all other respects affirmed, the. costs of this court to be borne by the appellees, and those of the court below by the defendant.


author: Szmzdzsm,, J. Eüstis, C. J. Preston, J.,

text:
    Dickson & Co. v. Morgan. D. Melville, Garnishee.
    An authority to the agent “ to appear before all judges and justices of the peace, in any court or courts, there to do, say, pursue, implead, arrest, attach, and prosecute, as occasion shall be or require," does not authorize the agent to acknowledge a debt.
    The power of answering interrogatories on oath, cannot he conferred on one person by another. Emits, C. J., and Rost, J.
    APPEAL from the Second District Court of New Orleans, J. N. Lea, J.

      Durant and Horner, for plaintiff.

      J. Q. Bradford, for defendant.
    The question of the agent’s authority, arose out of the following power of attorney:
    “ Know all men by these presents, that on this, the 18th day of May, in the year of our Lord, 1848,1, David Melville, of the city and State of New York, have made, ordained, nominated, and appointed, and by these presents, do make, ordain, nominate and appoint in my place, and depute William E. Camp, of the city of New Orleans and State of Louisiana, my true and lawful attorney ; giving, and by these presents granting unto my said attorney, full power and lawful authority for me, the said constituent, in my name and for my use and behalf, to ask, demand, sue for, and by all lawful ways, to recover and receipt of and from all and every person or persons whatsoevez-, for all such sum or sums of money, goods, wares, merchandise or effects, as now are, or shall or may hereafter be in any person or persons’ hands or possession, due, owing, or payable to me, the said Melville, whether by bond, note, bill, book account, consignment, or by whatever z-eason or means whatsoevez-, none excepted or reserved; and to that end, to account, view, state, settle and adjust all accounts, and the balance thei'eof to receive, and upon the recovery and l’eceipt in the premises, to give one or more acquittances, or other sufficient discharges in due form of law. Further, I do hereby authorize my said attorney, to make and sign for me and in my behalf, all pz’omissory notes, bills, drafts and bank checks ; to dispose and draw money from all and any bank whatsoever; to purchase and sell bills of exchange, as well as articles of jewelry and merchandise ; also, if need be, to appear before all judges and justices of the peace, in any court or courts, there to do, say, pursue, implead, arrest, attach and pi’osecute, as occasion shall be or requiz'e; also, to compound, compromise, conclude and agree for the same, by arbitration or otherwise, as the said attorney shall think proper; and generally, in the premises, to do, execute, and perform, all and whatsoever shall and may be requisite or necessary, in as full and ample a manner, and to all intents and purposes, as the said Melville might or could do, were he personally present. He, the said Melville, promising to hold for good and valid, and to ratify the same, all and whatsoever his said attorney shall lawfully do by virtue hereof.
    “ In witness whereof, the said David Melville, hath hereunto set his hand and seal. Done and passed at New Oi'leans on the day, year and date afoz-esaid, in pz-esence of the undersigned witnesses.”
   By the court: (Preston, J., dissenting.)

Szmzdzsm,, J.

We concur in the conclusion of the district judge, as to the insufficiency of the power of attorney.

Judgment affirmed, with costs.

The following is the judgment of the district court, J. N. Lea, J. “ This case is presented upon the rule taken herein, on the 11th July, 1851, upon W. E. Camp, as agent of David Melville, made garnishee herein, to show cause why said Melville should not be condemned to pay the whole amount of the judgment rendered against the defendant, with costs, on the ground, that the answers of the said garnishee, through his said agent, are in part not categorical, but evasive; and, further, that they show that, at the time of the attachment, he had in his hands sufficient funds of the defendant, to pay the amount of the plaintiff’s claim.

“ The issue presented in this rule, does not differ materially from that which was formerly taken in this case, on the 11th December, 1850, and was passed upon by a judgment of this court, rendered on the 23d December, 1850. It is to be observed, that in this rule, as in the former one, no traverse to the alleged answers of the garnishee is made. The plaintiff does not seek to obtain a judgment, by introducing evidence to show that the answers are not time, or that Melville had in his hands a sufficient amount-óf funds to meet the plaintiff's claim. The plaintiff looks t,o the answers themselves, as the basis of his application for a judgment against Melville.

“ In the reasons for judgment, rendered upon the rule, taken on the 11th December, 1850, it was considered, that there was no sufficient proof of Camp's agency, to justify the court in rendering a judgment against Melville ; that the power to acknowledge a debt, must be express and special.

“ On the trial of this rule, a power of attorney from Melville to Camp, was filed in evidence, which was executed prior to the date of the attachment issued herein. This power of attorney, as I construe its provisions, confers certain general and special powers of administration. It does not, however, authorize the agent to acknowledge a debt on behalf of his principal, except by way of compromise or adjustment.”

Eüstis, C. J.

The power of answering interrogatories on oath, we do not think can be conferred by one person on another.

Rost, J., concurred with the Chief Justice.

Preston, J.,

dissenting. In the suit of DicJcson 8f Co. against Morgan, the plaintiffs cited Melville through his agent, Camp, who answered interrogatories as the agent of Melville.

This court were of opinion, that it was not proved that Camp had power to answer the interrogatories for Melville, or to be cited to defend him in court, reserving, however, to the plaintiffs the right of further proceedings, to show that Melville was liable.

The plaintiff’s have since discovered a power of attorney from Melville to Camp, and rely upon it as sufficient td bind the former, by the answers of Camp.

It is a general power of attorney, and, as to appearances in court, contains the following clauses : “granting unto my said attorney full power and authority for me, the said constituent in my name, and for my use and behalf, to ask, demand, sue for, and by all lawful means to recover and receipt of and from all and every person or persons whatsoever, for all such sum or sums of money.” These clauses give power to the attorney to prosecute suits.

The district court was of opinion, that the instrument did not give him power to acknowledge a debt, which must he a special power, and that his answers, as garnishee, might have that effect; and, indeed, that effect of his answers is sought in this suit.

The power authorizes the attorney to sign notes and bills, which certainly are the acknowledgement of debts.. Immediately afterwards, power is given to appear before all judges and justices of the peace, in any court or courts, there to do, say, and prosecute, as occasion shall be or require, also to compromise, compound and agree to arbitration. The principal, in the beginning of the power, authorized his attorney, by a redundancy of language, to appear as plaintiff and prosecute. These last clauses, after giving power to acknowledge debts, appear sufficiently broad to authorize his appearance to defend suits, and to appear for other purposes in courts, and would be surplussage, if they had not that effect. It is a well settled rule of construction, to give effect to all the clauses of an instrument, rather than to regard them as useless.

I think, therefore, the letters of attorney produced, gave power to Camp to acknowledge debts, and to appear in court to defend as well as prosecute suits, and for all other purposes.

The objection, that he might greatly injure his constituent by negligence or abuse of his power, should have been considered when it was given, and moreover, if the abuse amounted to fraud, the courts could relieve him from its effects.

The answers of Camp set up claims of his principal against, the assets of Morgan in his hands, and there must necessarily be a contest between the parties, as to preferences claimed by them, on the funds or assets attached.

These controversies, the district court has not tried, and this court could not, until he should have rendered judgment upon them, after evidence and hearing the parties.

I think the judgment of the district court should be reversed, and the case remanded for further proceedings according to law; the appellee to pay the costs of appeal.