author: Ogden, J. Slidell, C. J. Spoffokd, J.

text:
    City of New Orleans v. Elliott.
    Thi ordinance of the city of New Orleans imposing upon the proprietor one-third of the expense of paving the street in front of his property is constitutional.
    from the Second District Court of New Orleans, Lea, J.

      O. B. Duncan, for plaintiff.

      Murphy, for defendant and appellant.
   Ogden, J.

The constitutionality of an ordinance of the City Council imposing upon the front proprietors one-third of the expenso of paving the streets, is drawn in question in the present case. The objection is that by Art. 123 of the Constitution of 1845, it is required that taxation shall be equal and uniform tin-oughout the State and that this mode of taxation for the expenses of paving is not equal and uniform.

The ordinance embraces all the owners of property in front of which, the streets are required to be paved. As was said in the case of Oakey v. Mayor et al.., 1 L. R. 1. The tax falls alike on all who stand in the same situation and it is as uniform as any taxation in relation to the subject matter could well he. We adhere to the opinion expressed in the case of Municipality No. Two praying for the opening of Benton street. 9 Ann., 446, and which has been acted on in subsequent cases, that the constitutional provision in relation to taxation is the declaration of a principle of the organic law, which must necessarily apply to the exercise of that portion of the legislative power in relation to taxation which has been delegated by the Legislature to subordinate bodies.

That principle limiting the power of taxation is not violated by the ordinance in question.

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

VooimiES, J. and Buciíasax, J., concurring.

Slidell, C. J.

The suit is for the recovery of one-third of the cost of paving a street in front of the defendant’s property.

The contract for paving was made between the First Municipality and Walter Welsh, and contained the usual authorization to Welsh to collect from proprietors the one-third for which they would be liable under the ordinance. Under this contract, Welsh would have been authorized to use the name of the municipality, and of the city, which by the new charter succeeded with its rights and obligations, to collect from proprietors. Welsh transferred his contract to one Moores, ho to Birmingham, and Birmingham to Garity, who did the paving. It appears from the certificate of the City Surveyor, the proper officer, that the work thus done by Garity was approved. This seems to me to imply an approval by the municipal government of the assignment of the contract and its incidents, one of which was a right on the part of the contractor to use the municipal name in collecting from the proprietors. I concur with the District Judge in the opinion that this was not a case in which it was necessary under the statute of 1852, sec. 35, that the suit should be brought by the Assistant City Attorney.

The constitutionality of the ordinance imposing upon front proprietors this one-third of the expense of paving is disputed. It is said to be repugnant to Art. 123 of the Constitution of 1845, which declares that “ taxation shall be equal and uniform throughout the State.” It was repeatedly held by our predecessors that the clause in question was applicable only to State, and not to municipal taxes. Lafayette v. Cummins, 3 Ann., 148. Duncan v. Second, Municipality, 2 Ann., 182. I refer also to my opinion in the Benton street case.

I may add that for nearly thirty years this equitable .contribution by front proprietors, who derive a special benefit from the improvement, has been enforced. Experience and the general acquiescence for so long a time may be considered as demonstrating the reasonableness of the apportionment; and it would bo a manifest injustice to the vast number of proprietors who have paid one-third of the costs of paving streets used by all the citizens, if others of their follow-citizens, who have enjoyed a public benefit at the partial expense of front proprietors, should afterwards be permitted, when paving is done in front of their property, to escape a similar contribution. It is just that the burden should fall on all who stand in the same situation.

I think the judgment should be affirmed with costs.

Spoffokd, J.

I concur in the foregoing opinion of Mr. Chief Justice Slipell.


source: Caselaw Access Project

author: Vooküies, J.

license: Public Domain

text:
    George W. Roper v. Elizabeth Magee et al.
    Plaintiff sued on a quantum merxuit, and afterwards amended his petition and set up a written contract. Defendant excepted to the amendment on the ground, that it changed the nature of the action Jffeld: The proceedings which took place from the joinder of issue to the filing of the amendment and exception, amounted to a waiver or abandonment of any objection which the defendants would have had to the form of the action. If defendants wished to avail themselves of the written agreement as a bar to the action on the quantum memiit, it should have been specially pleaded for that purpose.
    The appointment of experts by the court, esparte and without notice to the parties, is null. 0. P* 446
    Experts cannot act at the request of one party, without giving notice to the adverse party. C. P 450.
    from the Fourth District Court of New Orleans, Reynolds, J.
    Oohen, for plaintiff.

      A. Hennen, for defendants and appellants.
   Vooküies, J.

This action was brought by the plaintiff on a quantum me-ruit, to recover the sum of $630, alleged to be a balance due him as the price of materials and of work and labor done in building a dwelling house, kitchen, cistern, fence, &c., for tho defendants.

In answer, the defendants, after pleading the general issue, aver, that on the 27th of August, 1846, they contracted with the plaintiff for the building of a house according to specifications and a plan annexed to tho contract; that on the 16th of January, 1847, a change was made in the same, owing to errors and neglect of the plaintiff, as specified in a paper annexed to their answer. They further aver, that said house was not constructed and finished, nor delivered within the time stipulated, in accordance with said contract; in consequence of which they have suffered $600 damages, which they claim in reconvention.

The answer was filed on the 8th of July, 1848; and on tho 23d of January, 1849, the cause was referred to experts by consent of the parties, John Sewell being- appointed on the part of the plaintiff, and Hugh 0. Ames, on that of the defendants, with instruction “ to examine tho buildings mentioned in the pleadings, and to state how far they were built in conformity with the contract filed by the defendants, and what damages, if any, the defendants had suffered for tho violation of the said contract, and to report within ten days to the court, the result of their examination.” On the 29th of the same month, Alexander Baggett was appointed to act as umpire in case of disagreement of the exports. On tho 31st of March, 1849, II. O. Ames filed a report. No further proceedings were had in the cause, as appears from tho record, until the 9th of January, 1850, when John Rogers was appointed umpire in the stead of Baggett, in consequence of the absence of the latter from the city. On the 18th of March, 1850, Sewell filed a report as one of the experts. Rogers, as umpire, filed a report on the same day, in which he declares having carefully examined tho buildings in question, together with the plan and specifications, and the separate reports of tho exports. That there were some small defects in the interior of the house, caused by the settling of the chimneys, to which new houses are subject, and not imputable to the builder as a fault, and that the defects inside could bo made good for about $20. The additional work done in consequence of alterations made in the work, which was nearly completed, he considered to be worth $250 more than that contracted for. These reports were offered in evidence by the plaintiff and objected to by the defendants’ counsel, on the ground, that Ames, appointed on the part of said defendants, had not been qualified. The court sustained the objection, and ordered a continuance of tho cause; and by consent of parties, the subject matter of dispute was again referred to the same experts, and Baggett was reappointed as umpire. On the 14th of May, I860, the plaintiff filed a supplemental petition, alleging- that the buildings mentioned in his original petitions were constructed by him under the contract annexed to the defendants’ answer, but in consequence of changes made in tho original plan by the defendants’ orders, the price of the work done was worth more than that stipulated for. The petition concludes with a prayer, that the defendants be condemned to pay the plaintiff in solido the sum claimed in the original petition.

This amendment was excepted to by the defendants’ counsel on the ground, that it altered the plaintiff’s demand. The exception was overruled on the 13th of January, 1852.

We do not think the Judge a quo erred. The proceedings which took place from the joinder of issue to the filing of the amendment and the exception in the case, as already noticed by us, clearly amounted, in our opinion, to a waiver or abandonment of any objection which the defendants would have had to tho form of action. If they wished to avail themselves of the written agreement, as a bar to the action on a quantum meruit, it should have been specially pleaded for that purpose, and insisted upon.

On the 27th of December, 1851, a rule was taken on Ames to show cause why he should not be sworn as an expert according to law, &c. On the trial of the fule, exparte on the plaintiff’s showing, by affidavit, that Ames, tho expert appointed on the part of the defendants, declined to act as such, the court ordered George Buróes to be appointed in his place. On the 19th of May, 1853, the experts filed a report. To a rule taken by the plaintiff for the homo-logation of this report, tho defendant filed an opposition on the following grounds: that the appointment of the experts being made exparto and without notice to the defendants, was null and void; that the proceedings of the exports are null and void, because they acted exparte without giving notice to the defendants; that said experts did not examine the premises together, but separately, and did not notify the defendants thereof; and that their report is false, erroneous an'd unjust, as is apparent from the face of the proceedings, and should be sot aside, &c.

On the trial of tho opposition, E. 0. Ames testified as a witness for the defendants, that he visited tho property ; that the report signed and filed by him on the 31st of March, 1849, is correct; that he was lately called upon by the plaintiff to act the second time as expert, but his business prevented him from doing so; that he had never been notified of the report to be made by Buróes and Sewell; and that he was totally unacquainted with all the proceedings had since his first report, and had always been present in the city. Sewell, also examined for the defendants, testified that the report was made without having notified the defendants of it. He met the plaintiff by previous appointment, who pointed out to him the buildings, which he examined with the plan and specifications. When builders are appointed as experts, they do not consider it obligatory to go together or to notify the defendant or his counsel; this is not usual. He had been appointed as expert throe or four times, but had knowledge of three or four hundred cases, more or less; he knew the usage, “ from the statement of the parties who made the expertises in the cases where he acted as expert”; he and Turves did not examine the premises together, but separately j he examined the promises but once, and that at the time he made the first report, which had been made a long time before the second; and objected to make another until a short time previous, having entirely lost sight of the first.- The report of Mr. Turves having been submitted to him, and considering that it agreed nearly with his, as he supposed, and wishing to get rid of the matter, he agreed on the second report and signed it. He examined the premises in March, 1849, with the plan and specifications in his hands. The premises are occupied by the defendants.

On this state of facts, it was decreed that the report be homologated and made the judgment of the court. From this judgment, signed on the 10th of November, 1853, the defendants are appellants.

Wo think the Judge a quo erred. It appears to us that the first and second objection of the opposition filed by the defendants were well taken, and that the report of the experts should have been sot aside. “When either experts, auditors of accounts, or judicial arbitrators, are to be appointed, each party shall name one, and a third shall be appointed by the court, to act as umpire, in case the two should not agree. If the parties, or either of them, neglect or refuse to appoint, the Judge shall name all three.” O. P. 346. “ After the documents in the cause have been placed in their hands, they shall, at the request of either of the parties, give to the adverse party at least three days previous notice of the time and place at which they intend to commence their proceedings, in order that such party may attend.” O. P. 450. 15 L. 425.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed ; that the report of said experts be set aside, and that the case bo remanded for further proceedings according to law ; the ap-pellee to pay the costs of this appeal.


author: Vooriiies, J.

text:
    George W. Roper v. Elizabeth Magee et al.
    Evidence was ruled out on the ground, that it contradicted the report of experts, which had been homologated. Held: That the evidence might be received to rebut other testimony which had been introduced.
    from the Fourth District Court of Now Orleans, Reynolds, J.

      Gohen, for plaintiff.

      A. Jlennen, for defendants and appellants.
   Vooriiies, J.

This is the sequel of the case just decided.

On the suggestion of the plaintiff’s counsel, that the judgment rendered on the report of the experts, from which an appeal had been taken, was only interlocutory, the court ordered the case to be fixed for trial on the 30th of May, 1854. The defendants ruled the plaintiff to show cause why the order should not be set aside, on the ground, that the cause was then pending on appeal before this court, and that the order so granted was on the ex parte motion of the plaintiff. This rule was discharged.

On the trial of the merits, the plaintiff introduced in evidence the documents referred to in the pleadings, and also the testimony of several witnesses, to which the defendants excepted. The defendants introduced likewise the same documents in evidence, and also the testimony of 3. 0. Ames, who testified that he acted as an expert in the case, though ho was not sworn ; that ho examined the house, contract, specifications, and every thing connected with the building; and that the house was not constructed according to the contract.

The District Court rendered a judgment, based on the report of the experts, in favor of the plaintiff, from which this appeal is taken by the defendants.

On the trial, the defendants offered to prove by several witnesses, that the buildings specified in the pleadings, had not been constructed according to the contract between the parties; that the materials thereof were unsound ; that said buildings had not been completed and delivered within the time stipulated and in accordance with the agreement; that the defendants had suffered damages to the amount of $000 in consequence thereof, of which they had complained to the plaintiff. This evidence was ruled out on the ground, that it contradicted the report of the experts, which had boon homologated. Wo think the Judge a quo erred. As the plaintiff had introduced testimony to prove, besides his compliance with the terms of the contract, the additional value of the work resulting from the alleged changes in the original plan, we think it was therefore competent for the defendants to offer the testimony as rebutting evidence. The reference of this cause to experts, it would seem, instead of hastening, has produced the principal obstacle to its speedy termination. Perhaps much delay might have been avoided by the rescission of the order of reference, and resorting to other evidence which could have produced, with greater certainty of dispatch, the same result. See the case of Kohn v. Marsh., 8 R. 48.

Por the reasons assigned in the other case, wo consider the report of the experts informal and void.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the report of the experts bo declared null and void, and set aside, and that the case be remanded for further proceedings according to law ; the plaintiff and appellee to pay the costs of this appeal.


author: Buciiahan, J. Slidell, C. J.,

text:
    Harkness & Son v. C. B. Church.
    The delivery of goods shipped on a steamer to the master of a wharfboat at the port of delivery, is bad, unless there is a special authority vested in the wharfmaster by the consignee to receive the goods, or a ratification of the receipt of them, express or implied.
    The authority of a wharfmaster to receive goods on behalf of the consignee, may be inferred, from, the payment by the consignee of money advanced by the wharfmaster for the freight.
    from the Fifth District Court of New Orleans, Augustin, J.

      Smiley & Perrin, for plaintiffs and appellants.

      Price & Denegre, for defendant.
   Buciiahan, J.

On the 15th of May, 1852, the plaintiffs, through their agents, Moses Greenwood & Oo., shipped on board the steamer Bulletin, of which the defendant is master and owner, two boxes of merchandise, consigned to John Hibbard, or to his assigns, at the port of Napoleon, in the State of Arkansas. On the 19th of the same month, the Bulletin arrived at Napoleon, and discharged the two boxes in question, placing one of them on the wharf-boat Chancellor, belonging to C. B. Shattuoh, and the other on the wharfboat Cotton Plant, belonging to E. Roberts. The box which was placed on the Cotton Plant remained there for three days, until the 22d of May, when it was consumed by fire, with the wharf boat. This suit is brought to recover its value, and the question is, -whether there was such a delivery of the said box of merchandise as satisfied the bill of lading.

As to the circumstances of the delivery of the goods shipped, John 3. Fil-burn, second clerk of the Bulletin, deposes : “ One of the boxes I delivered to G. 3. Ghattuoh, and the other I delivered to 3. Roberts & Co., in tie wharf-boat Cotton Plant, at Napoleon.” And in his cross-examination — “ I did not notify Bibbard of the landing of the goods.”

Janes MeGord, first clerk of the Bulletin, deposes: “ I delivered both boxes to G. E. Ghattuoh, one on his own boat and the other on the wharfboat Cotton Plant, and Ghattuoh then, in my presence, received the said goods, and paid me the freight on the same.” And in his cross-examination — ‘‘I did not notify Bibbard of the delivery of said box on wharfboat as above stated; nor have I ever seen Eibhcwd to my knowledge. I delivered the bill of lading of these goods to E. O. Shattuoh in person.”

James J. Roberts testifies: “ There was one large box put on my wharfboat for John Bibbard. I do not know what the contents were, nor the shipper. There was no bill of lading with it. It was left by the Bulletin.” In another part of the record is the testimony of one James Roberts, who appears to be the same witness, and who testifies, to the same facts, with the addition, that “the box of goods which was received on the Cotton Plant, was received by O. E. Shattuoh & Go.”

John Bibbard, the consignee of the goods, deposes: “ One box was delivered at Napoleon to O. E. Shattuoh, and one to B. Roberts & Co. Both partías were in the habit of receiving goods for me, but no person was personally authorized to receive my freight. I don’t know whether the freight was paid to the Bulletin or not, but I paid the amount of my freight bill to O. E. Shattuoh. I received one box after instructions from Barhness & Son, the other 1 know nothing about, onljr it was said to have been burned on B. Roberts & Go's. boat.” “ I did not get the bill of lading until after they (the goods) were lost, nor no notice of their being there.”

Does this evidence make out a compliance by the master of the vessel with his legal obligation ? In the language of the court in Segura v. Reid, 3 Ann. “ the contract of the vessel is to deliver the goods to the consignee, and the responsibility continues until there is an actual delivery, or some act which is equivalent to, or a substitute for it.” We are therefore to consider whether Shattuoh, the master of the wharfboat, to whom delivery was made, represented the consignee for the purposes of delivery. In deciding this question, we make no account of the pretended local custom at Napoleon, which would substitute another contract for the one entered into, and make the wharfmaster, in effect, consignee of all freight landed at Napoleon. We are satisfied that the wharfboat is the usual and customary place for discharging cargo. But it is an error to suppose that a delivery to the wharfmaster is a delivery to the consignee, unless there is either a special authority vested in the former by the latter, or a ratification of his receipt of the goods, express or implied. A local custom at Napoleon to the contrary, cannot overrule the law, even supposing such custom to be proved ; which we do not think it has been in this case. Kohn & Bordier v. Packard, 3 L. R. 225. Segura v. Reed, 3 Ann. 695. Civil Code, Article 3. United States Bank v. Flukner, 8 Mart. 309. Sennett v. Pierce, 2 N. S. 192. Senac v. Pritchard, 4 La. 160.

The evidence does not show any authorization from Hibbard to Shattuck to receive these goods for him ; but we are of opinion that the act of Hibbard in refunding to Shattuck, the amount of the freight bill which the latter had paid to the clerk of the Bulletin, when the goods were discharged from the boat, without protest made to Hibbard, or reservation of his rights, amounts to a recognition of Shattuek’s authority to receive the goods. Por at the time Hib-ba/i'd so paid Shattuck, the goods wore destroyed by Are; and unless there had been a delivery of the goods previous to their destruction, there was nothing due by the consignee under the bill of lading. This payment was therefore tantamount to an admission of indebtedness, and consequently to an admission that the defendant had complied with his contract. Under these circumstances, the plaintiffs have no claim upon the defendant.

Judgment affirmed, with costs.

Slidell, C. J.,

dissenting. My opinion is, that the usage to deliver goods to the wharfboat at Napoleon, and the consignee’s acquiescence in the usage, are satisfactorily proved.

SroiroBD, J., concurs.


author: Slidell, O. J.

text:
    Leopold Jeannet & Co. v. Leontine Ricker, wife of L. Lakin.
    The judgment of a court, having jurisdiction over the person of the minor, and of the subject-matter of his application, and rendered upon due nolice of the suit to the tutor — unreversed by appeal or action of nullity — cannot be questioned collaterally, on the ground of the alleged informality, anticedent to the decree, and arising after the jurisdiction of the court had attached.
    from the Second District Court of New Orleans, Lea, J.

      Benjamin, Bradford & Finny;, for plaintiff.

      Ogden S'Leovy, for defendant and appellant.
   Slidell, O. J.

This action is brought upon a promissory note made by Leontine Bicker., before her maniage, to her own order, and endorsed by herself, and also endorsed by Samuel Ricker, her father.

At the time of signing this note, Leontine Ricker had not attained the age of twenty-one years. But before its signature, having attained the age of eighteen, she had been clothed with the capacity of a major, by a decree of the District Court of her domicil, under the Statute of 18th of March, 1847, p. 64, which enacts, that whenever a minor above eighteen years, shall bo desirous of being dispensed from the time prescribed by law for attaining the age of majority, the said minor shall present a petition to the District Judge having jurisdiction, wherein ho shall set forth the causes for which ho wishes to have the time for attaining majority dispensed with, &c. The statute directs the Judge to order the convocation of a family meeting, requires the service of a copy of the petition on the tutor, and his citation to show cause against the application, and provides for the homologation of the proceedings of the family meeting. The petition was in the minor’s name, and signed by a member of the bar, whose authority to appear for her has not been denied under her oath, and must therefore be presumed. See Barnes v. Profilet, 5 Ann. 118. After this decree, she made the note and executed an act .of mortgage to secure it, in which she declares herself a person “of lawful-age.”

The defendant claims that this judgment should be treated as absolutely null and void, upon the ground that the under-tutor -was not cited and did not attend the family meeting. If, for the purpose of argument, it be conceded that in the proceedings under the statute, the attendance of the under-tutor at the family meeting was a necessary formality, still the proposition put forth by the defendant, is utterly inadmissible. Under the settled jurisprudence of the State, we must hold that this judgment of a court having jurisdiction over the person of the minor, and of the subject-matter of his application, and rendered upon due notice of the suit to the tutor, the only person whose citation in the suit the statute requires, and which judgment has never been reversed by appeal or action of nullity, cannot be questioned collaterally, on the ground of the alleged informality, antecedent to the decree, and arising after the jurisdiction of the court had attached. The public, in their dealings with the defendant, were not bound to look behind this decree for information in the course of the proceedings. It judicially declared her status, and must be deemed of conclusive authority against her and in favor of third person's dealing with her, at least within the jurisdiction of Louisiana, whose tribunal pronounced the decree. Any other doctrine would make such decrees snares to the public. Seo Fabre v. Hepp, 7 Ann. 9. Lalanne's Heirs v. Moreau, 13 La. 433. Thompson v. Tolmie, 2 Peters, 162.

Wo cannot say the District Judge erred in holding, that the person on whose behalf the suit was prosecuted, was a bona fide holder for a valuable consideration ; and may add, that the acknowledgment of “ value received,” embodied in the note, is not contradicted by satisfactory evidence. The defendant ought not to regret the absence of proof which would cast reproach on her father.

Judgment affirmed, with cost.


author: Slidell, C. J.

text:
    Newton v. Gray & Campbell et al.
    Under the statute of Arkansas, the assignment of a promissory note does not prevent the allowance of discounts or offsets either in law or equity, which the maker had against the original assignor, previous to the assignment, although the assignee be a bona fide holder. But where the subject of the setoff was money advanced by the maker of the note to take up his accommodation acceptances,made for the benefit of the payee, he willnot be allowed to plead that payment as a setoff to the prejudice of an attaching creditor who had seized the notes as the property of the payee before the advance was made.
    1 PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Goold, for plaintiff and appellant.

      Hunton and Bradford, for Gra/y & Campbell.

      H. D. Ogden, for Mont/ross & Stillwell.

   Slidell, C. J.

In 1848, the plaintiff made, in Arkansas, his five promissory notes iu favor of Byrd, payable respectively in February, 1860, 1861,1862, 1863, 1854:. Tho last four notes were endorsed by Byrd, to the commercial firm of Soutlmiek & Byrd, of which he was a member, who delivered them at New Orleans, in March, 1848, under an informal act of pledge, to Gray & Campbell, as security for the protection of the accommodation acceptances of the latter. These notes were also attached by Cray & Campbell in their own hands, at New Orleans, for a debt oí Soutlmiek & Byrd, in January, 1S50. The other note was attached, at New Orleans, by Montross S Stillwell, creditors of Byrd, on an earlier day in the same year. The present suit was brought by Newton, in February, 1801. He alleges that the notes were given for a part of the price of a plantation in Arkansas, the residue of the price being composed of an amount of incumbrances which the buyer was to discharge ; that the amount of incumbrances was in fact greater by a sum of $2,484 24, than was represented by the vendor, which excess the plaintiff had been forced to pay. He also alleged, that he had endorsed bills of exchange for Byrd's accommodation, on which judgment had been rendered against him, to an amount of $2,960 20, which he had also been forced to pay ; and that he was entitled, under the law of Arkansas, to setoff the amount so paid against the notes in the hands of the defendants.

The pretentions of the plaintiff were sustained by the court below, as to the amount paid for the excessive incumbrances. That amount was first applied to the first note which it extinguished, and then to the four notes held by Cray & Campbell, which were thus only partially extinguished. The claim of setoff for the amount paid for the accommodation endorsement was rejected. From this judgment, the plaintiff alone appealed. In answer to the appeal filed by Montross & Stillwell, they pray that the judgment be .amended, by deducting from all the notes pro rata, the amount paid for the excess of incumbrances.

From the evidence, it appears that the general law, in regard to commercial paper, has been modified by the statute of Arkansas, which enacts that all instruments for the payment of money or property shall be assignable, and the assignee may sue on the same in his own name as assignee, in the same manner as the original payee might or could do ; and further, that this provision shall not change the nature of the defence or prevent the allowance of discounts or offsets either in law or equity, that any defendant may have against the original assignor, previous to the assignment, and that all assignments shall bear date of the true day on which they are made, and all blank assignments be taken to have.been made on such day as shall be most to the advantage of the defendant.

Under this legislation, we think it clear that the plaintiff was entitled to relief to the amount paid for the excess of incumbrances on the property purchased. There was a failure of consideration for the notes pro tantp. It was an infirmity contemporaneous with their execution, and the equitable defence in such case, is clearly reserved by the law of the place where the contract was made, even against subsequent bona fide holders. See Oldham v. Wallace, 4 Arkansas Rep. 561.

"With regard to the claim of setoff for the amount paid on the accommodation endorsements, we think it was properly rejected. That payment was not made until March, 1851. A year before that date, the attachments of the defendants were levied. The fact that the plaintiff had furnished his accommodation endorsement to Byrd, was not, of itself, a ground for the allowance of a setoff, either in law or equity. It was only upon payment of the bills that his right to a setoff accrued. But the right then accruing- cannot be permitted to retroact so as to defeat a right by attachment previously acquired. Murray v. Gibson, 2 Ann. 314 Civil Code, 2212. Chance v. Isaacs, 6 Paige, 594. A fortiori, it cannot retroact to the detriment of an endorsee before maturity.

Montross & Stillwell dispute the mode in which the reduction has been imputed by the court below, and ask an amendment imputing it pro rata on all the notes.

Waiving the inquiry, whether Montross & Stillwell, not having appealed, can, by virtue of their answer to the appeal of the plaintiff, a’sk an amendment detrimental to their co-appellees, we proceed to decide the point in controversy.

Byrd, as we have seen, had assigned the last four notes of the series to Gray & Campbell, before maturity, but still continues the owner of the first note, although it is now held by the Sheriff under the subsequent attachment of Montross & Stillwell. As the latter have only the rights of an attaching- creditor in respect to the fli-st note, they cannot pretend, as against the assignees of the four notes, greater rights than Byrd, the assignor, had; and it is clear that as between Byrd and Gray & Campbell, the offset would be properly imputed to the note which he had not assigned, rather than to the notes which he had assigned. As he was unquestionably bound in equity to permit the imputation to be so made, the attaching creditors, taking his right, are in no better position.

As to Neiolon, it is true he asked for a pro rata imputation, but he also stated the facts, and asked for all such relief as equity would sanction, and to change the judgment against him on account of this suggestion in his petition, would be clearly unequitable.

Judgment affirmed, with costs.


author: Vooehies, J.

text:
    François Baudoin, Administrator, v. François Amida Tete.
    Although a judgment may be amended in the Supreme Court in favor of appellant, yet, where he should have applied to the Judge a quo to correct the error, he will be condemned to pay the costs of appeal.
    PPEAL from the District Court of the Parish of Assumption, Cole, J.

      Mailhot & Mills, for plaintiff,

      Gentile, for defendant and appellant,
   Vooehies, J.

The defendant is sued on his three several promissory notes. The only defence urged by him is, that two of the notes sued upon were included in the last note which was given by him to th.e plaintiff on the 3d of April, 1851, for the sum of $832 88.

The Judge a quo considered the proof insufficient to sustain the defence, and ga-ve judgment in favor of the plaintiff, and the defendant appealed.

After a careful examination of the evidence, we are not prepared to say that the Judge a quo erred in his conclusion.

Our attention has been drawn to an error in the judgment of the inferior court in allowing the plaintiff eight per cent, instead of legal interest on the note of $68, amounting at the rendition of the judgment to $14 89. The plaintiff in his petition only claimed five per cent, interest. It is admitted by the plaintiff’s counsel, in their brief, that the error was committed by them in writing the decretal part of the judgment. Although this may not strictly be considered as a remittitur, yet we think it is a sufficient reason to authorize us to amend the judgment in this respect; but in doing so, the costs are not to be thrown on the appellee, as it was clearly incumbent for appellant to have applied to the Judge a quo for the rectification of the error on a motion for a new trial. 5 Ann. 26.

It is therefore ordered and decreed, that the judgment of the District Court be amended, by allowing the plaintiff interest at the rate of five per cent, per annum on the note of §68, from 18th April, 1853, instead of eight per cent, per annum on said amount, from the 1st of April, 1847, as decreed by the judgment of the District Court, and so amended that said judgment be affirmed with costs.


author: Spoeeokd, J.

text:
    Bonniot & Co. v. Fuentes & Co.
    The well settled rule that courts will not lend their aid to establish a demand founded upon a violation of law, will not be extended to close the door of justice against an honest principal, on account of a fraud committed by his agent.
    A factor can not pledge the goods of his principal for his own debts, and where the pledge is cognizant of the ownership, he can not, in an action by che owner, avail himself of the defence that he has been misled by any act or omission of such owner.
    from the Fifth District Court of New Orleans, Augustin, J.

      Magna and Posilius, for plaintiff and appellant,

      llunton & Bradford, and Fijma, for defendant.
   Spoeeokd, J.

A. Bonniot & Go., residents of France, and merchants of Jarnac in the arrondissement of Cognac, shipped ninety-seven packages of brandy, on consignment, to Noel & Guiraud, of New Orleans.

The shipment was made at Bordeaux, on the 28th February, 1851.

The ship John Holland laden with those brandies, entered the port of New Orleans on the 19th May, 1851.

The brandies went into the custom-house warerooms under the general order, and so remained without an entry of any kind until the 29th December, 1S51.

It seems that Noil & Guiraud, who did a commission business, were indebted to the firm of J. J. Prom, & Go., of Bordeaux, in a sum amounting nearly to $6,000, probably for similar consignments.

Prom. & Go. employed Fernando ¿le Fuentes & Go., of New Orleans, as their agents; on the 25th December, 1851, Fuentes <£ Go. anxious to secure the debt due to their principals, approached Noel & Guiraud upon the subject of a compromise to avoid an impending suit, and proposed to extend the time of payment, provided the}r would furnish collateral security. The result was a verbal agreement that the ninety-seven casks of brandy consigned by Bonniot & Co. to Noel & Guiraud, then under the keys of the custom-house, should be given in pledge to Fuentes & Go., as agents of Prom & Go., to secure the debt.

On the next day, pursuant to their own agreement, Noel & Guiraud addressed a letter to Fuentes & Go., in which after stating the contract, they say:

“ Comme garantie du paiement des dits billets, nous vous avons remis ce ma-tin facture et connaissement endossé á votre ordre, á quatre-vingt dix-sept futailles cognac, sous les clefs de la douane au general order, dont vous ferez l’entrée vous-méme au warehouse.”

•This is the pledge on which the defendants rely to defeat the claim of the owners who sue to recover the brandies thus misapplied by their factors.

It will be observed that the contract was made between the factors and the defendants on the 25th of December, and the letter alluding to the invoice and bill of lading as having been sent the same morning, was written on the 26th of December, 1851, up to which time no entry whatever had been made in the custom-house.

Mientes & Oo. did not rest satisfied with the invoice sent on the 26th, and which seems to have been a duplicate, the true invoice made out by the plaintiffs in France and forwarded to Noel & Guiraud, in which the goods were estimated at the sum of 16,848 francs. But a partner of their house after-wards went to the office of Noel & Guwaud and asked for an invoice, in order to make an entry in the custom-house; Noel & Guiraud seemed readily to understand what this meant; Guiraud furnished notes or memorandums to one of his clerks, who proceeded to manufacture the invoice; with the facility of an expert in the business, he soon produced the required document, in which the same brandies figure, the only change being in the prices, which, according to the new estimate, amount in the total to 13,885 francs; this clerk was sworn as a witness in the cause and testified that this invoice was prepared by him “ simply to make an entry in the custom-house.”

Armed with this new document, Be Mientes proceeded on the 29th of December, to make a warehouse entry of the brandies. He took the agent’s' oath prescribed by the Act of Congress of March 1st, 1823, and sought to make the entry thereupon ; but the Deputy Collector perceiving that there was no Consulate certificate attached to the invoice, refused to allow the entry, stating to Fuentes that the law required the owner’s oath on all warehouse entries, to which he replied that the owners were in the city ; after which, Fuentes returned with Guiraud, who filled up the oath on the back of the entry in his own handwriting and was sworn. At the same time a bill of lading was produced endorsed in blank by Noel & Guiraud when the entry was, completed. Fuentes & Go. giving the usual bond for a warehouse entry.

Noel & Guiraud were at that time on the eve of bankruptcy and shortly afterwards failed. The plaintiffs employed an agent to take their business out of their hands, who did not discover the fraud perpetrated in regard to these brandies, until the spring of 1852, when, having- put Fuentes & Go. in default, he brought this suit to recover the goods.

The defendants invoke .the rule that courts cannot lend their aid to establish a demand founded upon a violation of law. No rule is better settled or more salutary in its operation. So long as good men sit in the judgment-seat, suitors who come before them with lying lips or impure hands will be turned empty away.

But the action of these plaintiffs does not spring ex turpi eausd. It is an action to recover property which was lawfully theirs, and which the defendants acquired, not by reason of any fraud or immorality practised by the plaintiffs, but by the wrong doing of their factors and consignees. The particular tort which first enabled the defendants to get the control of the property was the bad faith of the factors towards their principal in assuming to pledge for their own debts that which they received in trust for him. The fact that after they had taken the first wrong step they took another, and by false swearing, defrauded the revenue of the United States, adds to their own turpitude but does not detract from the jolainliffs’ rights.

So far as appears from the record, all the invoices forwarded by the plaintiffs were just and correct. It is not shown that they meditated, still less that they consummated any fraud. To hold them answerable for the fraud of their consignees committed after they had broken their faith towards their principals by converting their goods to an improper use in violation of law, would be to reverse the presumption of innocence until guilt is proved, and to carry to a dangerous extreme the doctrine of liability of the principal fpr the conduct of his agent.

The only thing amounting to negligence, even that can be imputed to the plaintiffs, is their failure to forward an affidavit of the cost of the goods if they were the purchasers, or the market value if they were the manufacturers, attested by a Consular certificate, as called for by the Act of March 1st, 1828, already alluded to. But this neglect does not constitute a fraud, or even a badge of fraud in the present case. The statute does not make it so. The statute even contemplates that such an occurrence may happen, and provides for the contingency. When the goods of foreigners shall not be accompanied with the invoice verified by the owner’s or manufacturer’s oath, authenticated by the Consular certificate, or where it shall not be practicable to make such oath, or where there shall be an'informality in the oath or certificate, &c., the Secretary of the Treasury is authorized to admit the goods to entry upon an appraisement, provided the consignee, importer, or agenfigives bond to produce the invoice, &c., within eight months, if imported from places this side the Cape of Good Hope. See sect. 2 and 10, Act 1st March, 1823, U. S. Stat. at large, vol. 3, p. 730.

It is an error to suppose that the plaintiffs could have prevented the fraud by sending their oath with the Consular certificate. That document would have been sent to the consignee with the bills of lading and invoices. If it had been sent to Noel & Guiraui, they could have suppressed it as easily as they did the true invoices which were sent, and it cannot be supposed under the evidence in this record that they would have scrupled to do so.

But it is urged that if the plaintiffs may be heard in consequence of their want of participation in the fraud upon the law, still their demand must be rejected, and they must abide the loss, because they so clothed their consignees with the indieice of ownership in the goods as to enable them to mislead the defendents.

That as a general rule, a factor cannot pledge the goods of his principal for his own debts, is so well settled that it would be a waste of time to discuss the matter. Hadwin v. Fisk, 1 Ann., 74 New Orleans Draining Company v. De Lizardi, 2 Ann., 287. C. C. 3109-12-13-16. Story’s Bailment, §§ 326-6. Story’s Agency, §§ 78, 113, 224, 226. 2 Kents’ Com., pp. 626-6, (2d Ed).

What have the plaintiff’s in this case done or omitted to do, that they should be deprived of the benefit of this rule ?

They have sent bills of lading to their consignees. But that they were compelled to do to make the consignment They have, it seems, omitted to send an affidavit of cost or value with the invoice, attested by the certificate of a consul or commercial agent. But if such a document had been sent, non con-stat that it would have prevented the consignees from abusing their trust.

The law requiring the owner’s oath to effect an entry in the custom-house, is not in the nature of a registry law to notify the public of titles to property deposited in the government warehouses, but is intended purely to guard the revenues against the fraudulent machinations of importers.

There is sufficient evidence, we think, to show that the defendants were cognizant of the fact that the goods they took in pledge, did not belong to fiToel & Guiraud, and they cannot therefore avail themselves of the defence that they have been mislead by any act or omission of the plaintiffs. The conclusions announced in this opinion have been reached without the aid of the rejected evidence. It becomes unnecessary then to pass upon the questions raised by the bills of exceptions.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further adjudged and decreed, that the plaintiffs recover of the defendants the ninety-seven packages of brandy described in the invoice annexed to their petition or the proceeds thereof, after deducting all lawful charges against the same: it is further ordered, that the defendants pay costs in both courts.


text:
    The Catholic Society v. The City of New Orleans.
    Where taxes, illegally assessed, have been paid through error, they may be recovered back.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Semm.es & Edwards, for plaintiff.

      Wolfe, for defendant and appellant.
   Vooehies, J.

The plaintiff claims the reimbursement of the sum of $756 25, alleged to have been paid in error for municipal taxes on its property which was exempted from taxation.

The admissions in the record are: that the Catholic Society of Religious and Literary Education, was incorporated on the 19th January, 1848; that the object of its creation was the religious and literary education of youth; that since its incorporation it has been the proprietor of the lots of ground and buildings, which have ever since been used exclusively by it as school houses for the purpose of education, except a part thereof, which is used as a public chapel, dedicated exclusively to public worship ; that said school houses have always been frequented since their establishment by a large number of youth attending the schools, superintended by the agents of the society ; that said chapel is and has ever been open to the public at large, though the Roman Catholic form of worship is and has ever been used therein; that the plaintiff paid as general annual municipal taxes laid on said property for the years 1849 and 1850, the sum of $756 25, under the impression that said taxes were legally due, and that the payment thereof could have been legally coerced; that but for said belief and impression the plaintiff would never have paid the same; that said taxes were not paid under any immediate threats of legal coercion, though the officers of said municipality represented to the plaintiff that said taxes were lawful and could bo lawfully collected; and that the plaintiff never discovered (in the opinion of its counsel) that said taxes could not have been lawfully collected by process of law until a few months before the institution of this suit.

The power to lay and collect taxes was delegated to the city by its act of incorporation passed in 1805. The Act of the 27th March, 1818, declares that “no houses or lands, no church or other buildings dedicated to Divine worship, nor any lots whereon arc erected public buildings dedicated to education, shall bo liable to any tax on account of any law of this State.” It is clear under this statute that the chapel was exempted from taxation. By the Act of the 3d of May, 1847, entitled “ An Act to provide a revenue for the support of the government of the State,” it is declared that the following property shall bo exempted from taxation, viz: “ All colleges and school houses and other buildings for the purposes of education, with their furniture, apparatus and all other equipments, and the lots thereto appurtenant and used therewith, so long as the same shall be used for that purpose.” If this Act stood alone, it might not be applicable to taxes imposed by the city of New Orleans. Formerly the city appointed its own assessors for the purpose of assessing property subject to taxation within its corporate limits. By the Act of the Gth March, 1840, entitled “ An Act to organize a Board of Assessors for the parish of Orleans,” it is provided that the board thus created shall furnish “ a certified copy of the assessment rolls of the parish of Orleans to the treasurer of each municipality, and the council of each of said municipalities shall no more have authority of appointing assessors of taxes, but shall use the assessment rolls furnished them by the Board of Assessors, agreeably to this section, for laying and collecting corporation taxes within the incorporated limits of said municipalities.” Since this enactment, the State assessment rolls have always been used by the city for the purpose of laying municipal taxes. Those in question were laid, by virtue of resolutions of the municipality, “ on the assessed value of the property within its limits according to the tableaux of the State Assessors.” It is therefore obvious that the municipalities had no legal authority to lay taxes on any other property than that which was so assessed on the State assessment rolls. The sections 18 and 20 of the Act of 1847, made it the duty of the State Assessors to ascertain “ all the taxable property only,” and to assess “ all real and personal estate liable to taxation.” Property exempted from taxation could not therefore be legally assessed. The assessment under'the Act of 1847 then constituted the basis of the State and city taxes; and if illegal in any respect as to the State taxes, it must be considered equally so as to the city taxes. The law considers the assessment as standing in lieu of a judgment, by virtue of which th.e collector has authority to demand and enforce the payment of the taxes, and has also the effect of an execution issued on a judgment. It is therefore obvious that the legality of taxes based on the copies of the assessment thus delivered to each of the municipalities, could bo contested on the ground of exemption. 7 L. 50. 4 Ann. 252.

It is evident that the taxes in this case were paid through error of law. “ Error of law can never be alleged as the means of acquiring, though it may be invoked as the means of preventing a loss or of receiving back what has been given or paid under such error.” 0. O., 1840, sec. 3.

The rule laid down by Toullier is, “ that the same presumption which throws on the plaintiff in repetition the proof that what he has paid was not due, throws on his opponent, when this fact has once been proved, the burthen of proving that the payment was made knowingly and with the knowledge that what -was paid was not due.” Toul. sec. 70, b. 91, 92, 98.

“ He who has paid through mistake, believing himself a debtor, may reclaim what he has paid. To acquire this right, it is necessary that the thing be not due in any manner either civilly or naturally. 0. 0., art. 2280-1. He who pays through error what he does not owe, has an action for the repetition of what he has paid, unless there was a natural obligation to make such payment.” Applying these rules of law to the circumstances of this case, it is clear the plaintiff is entitled to recover. The exemption itself, whether founded in good reason or sound public policy or not, repels the idea of any thing like a natural obligation on the part of the plaintiff for the payment of the taxes. If those institutions merited the protection and encouragement of the State government, it is difficult to perceive how any natural obligation could possibly exist on their part for the payment of taxes from' which they are exempted. The cases relied on in 9 R., 324, and 7 R., 532, presented facts entirely different from those in the present case.

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


author: Spoffobd, J.

text:
    McDonogh v. DeGruys.
    Where the appellant gives an appeal bond in favor of the warrantor, the warrantor is thereby made a party to the appeal and may move for its dismissal.
    Wnere the Clerk is unable to make out the transcript in season the Supreme Court, upon proper proof, will allow further time. O. P., 8S3.
    The failure of the appellee to move for the dismissal of the appeal within three days after the filing of the transcript, does not bar him from making such motion* afterwards.
    PPEAL from the Fifth District Court of New Orleans, AugusUn, J.

      A. ILrefmen, for plaintiff and appellant.

      Jcmin, for defendant.
   Spoffobd, J.

Allou d'Héméeourt, styling himself warrantor and appellee, has moved to dismiss this appeal, because the transcript was not filed within three judicial days after the return day.

The appellant, admitting the fact, urges various reasons why the motion should not prevail.

He says that d?üémécourt is without interest in the case, being no party to the record, and therefore his motion cannot be heard. It is a sufficient answer to this objection to say that the plaintiff has treated him as a party appellee, by giving an appeal bond in his favor.

It is alleged that the defendants have waived their rights because they procured the cause to bo fixed for trial before they filed their motion to dismiss. But the docket shows that the motion was filed before the cause was fixed..

The plaintiff suggests that the delay was owing to a fault of the Clerk of the District Court, as his certificate shows that he had not completed the transcript on the return day, and therefore the case comes within the purview of the 19th section of the Act of March 20th, 1839, amending the Code of Practice. The Clerk’s certificate was, however, signed within the three judicial days which followed the return day, and no reason is given by the plaintiff, for delaying to file the transcript several days longer. Besides, if the Clerk was unable to make out the transcript in season, the appellant had a remedy by asking of the court within the three days, further time to bring up the record, which would have been allowed upon proper proof. O. P., 883.

The case of Murry v. Bacon, 7 N. S., 265, is relied on to show that the motion to dismiss on the ground stated, should have been filed within three days after the actual filing of the transcript, and not having been filed until several months afterwards, was itself too late. That case does not apply to a motion of this character. If it did, it would require an appellee to keep a constant watch in the Clerk’s office of this court, or be debarred from the exercise of an important right. An appellee must take notice of the filing of an appeal, when it is seasonably filed, otherwise, he is in time to avail himself of his rights when notice of the filing is brought home to him, and cannot be construed to have waived them until that notice is proved, Dwight, Curator v. McMillen, 4 Ann., 350.

But the plaintiff seems to rely mainly upon the position that the motion to dismiss on the ground taken by the appellee, should have been filed before the record was filed ; and ho cites the 19th section of the Act of March 20th, 1839, and the cases of Traverse v. Row, 10 L., 501; Découx v. Plantevignes, 10 L., 506; Desorme v. Desorme, 17 L., 115; and Duperron v. Van Winckle, 4 Rob. 39.

The statute of 1839 referred to, has no relation to the timely filing of a record, which is an act required of the appellant himself. To ask for the dismissal of a case which is not before the court, or on its docket, would seem to be a work of supererogation. And although, such a construction of the law is certainly countenanced by the case from 4th Robinson, it does not seem to have been necessarily settled by the previous cases, upon which that decision was based. The two cases in 10th L. R. were cases where the transcript was filed within the three judicial days succeeding the return day. The remarks in Desorme's Heirs v. Desorme's Syndic, 17th L. upon the Act of 1839, relate to formal objections to the orders of appeal, which were cured by the provisions of that Act.

The point now under discussion, is covered by the decision in Dwight v. McMillen, 4 Ann. 350, already cited. It was then held that the omission of the appellee to move for a dismissal upon the ground taken in this case, within three day's after the filing of the transcript, does not bar the appellee from making such motion afterwards. If the motion is not required to be made within three days after the record is filed, it certainly is not required before such filing.

It is believed that the uniform practice since has been in conformity with this decision, 9 Ann. 21. Such also was the earlier practice of this court. See Kirkman v. Butler, 12 L., 536. Palfrey v. Winter, 8 L., 206. Pond v. Horton, 7 L., 177. Bell v. Williams, 3 L., 251. Meeker v. Muggah, 8 N. S., 184.

If there has been any deflection from this practice, it was occasioned by a misconstruction of the remedial Act of 1839. That Act was intended to relieve appellants from the consequences of faults which were imputable to other persons and not to their own laches.

It is therefore ordered, that this appeal be dismissed at the appellant’s costs.


author: Büchahan, J.

text:
    Joseph Berret v. William C. Adams.
    "When knowledge of a particular redhibitory defect is brought home to the buyer, the general warranty implied by law will not cover that defect. A special warranty can alone enable the buyer to rescind the sale, or reduce the price, on account of such defect. 0. 0. 2498.
    THIS case was tried by a jury, before the District Court of the Parish of Iberville.

      Labcmve, for plaintiff.

      Beblieux & Matthews, for defendant and appellant.
   Büchahan, J.

The plaintiff sues defendant upon the following promissory note:

“ One year after date, for value received, I promise to pay Joseph Berret or order, the sum of five hundred dollars, the same being for a negro boy by the name of Nelson, bought this day of said Berret. William 0. Adams.”

Defendant pleads, that the strange behaviour of the slave Nelson, soon after the sale, induced him to suspect that said slave was of unsound mind; that he ascertained that the slave was in fact incurably insane, and had been so at the time of the sale, and long before, to the knowledge of plaintiff, to whom he had tendered the slave, which tender plaintiff had refused to accept. Defendant claims the rescission of the sale, and damages in reconvention for expenses incurred in keeping the slave.

The evidence establishes conclusively that the slave Nelson had been subject to fits of insanity previously to the sale, and subsequently thereto. But it is also established, that the purchaser was apprised of this redhibitory malady before the date of his purchase. It is proved that he served upon a jury of freeholders before whom Nelson was tried, about six months before the sale, upon a capital charge pf having assaulted his master with an axe, and bitten him, drawing blood. The defence urged to that accusation by the counsel who defended the slave, was insanity; and the identical evidence given on the trial of the present suit, on the subject of the unsound state of mind of the slave, was given before the defendant sitting as juror in the capital prosecution. There was a miss-trial; and subsequently the slave was discharged from custody by the District Attorney. It is further proved, that the subject of Nelson's unsound mind was the subject of conversation between plaintiff, defendant and a third person, in reference to a contemplated sale of the negro. And lastly, it is proved by many witnesses, that the price of the sale to defendant — five hundred dollars, at one year’s credit — was less than one-half of what the negro might have been sold for in cash, had he been of perfectly sound mind.

The only written proof of the sale of the slave Nelson, consists in the promissory note copied above. Warranty against redhibitory maladies is certainly an implied condition of every sale of the kind; but the form which the parties have chosen to give to their contract, the absence of any of the customary stipulations, must certainly be viewed as corroborative of the parol testimony of knowledge on the part of the purchaser, at the time of the sale, of the redhibitory defect of which he now complains. The District Judge charged the jury who tried this cause, that defects which are known to the buyer at the time of the sale, are to be considered as upon the same footing with apparent defects, and that the reason of Article 2497 of the Code, is applicable to the former class. "We cannot say that the learned Judge erred. When knowledge of a particular redhibitory defect is brought home to the buyer, the general warranty implied by law will not cover that defect. A special warranty can alone enable the buyer to rescind the sale, or reduce the price, on account of such defect. See Campbell v. Botts, 6 Ann. 106. C. C. 2498.

Judgment affirmed, with costs.


author: Buchanan, J.

text:
    Leonard and Wife v. Corrie, Testamentary Executor, et al.
    The admission of a will to probate and execution, does not preclude the heirs from bringing an action to contest or annul it, even where they have been duly cited and were present when it was probated
    from the District Court of the Parish of Lafourche Interior, Cole, J.

      Mailhol & Mills, for plaintiff.

      Hall & Bush, for defendants and appellants.
   Buchanan, J.

Josephine Leonard, wife oí J. J. Rousseau, made her will and instituted for her universal legatee, her brother, Jean Leonard. Mrs. Rousseau's father and mother survived her, and have brought this suit for a reduction of the legacy to the disposable portion as fixed by Article 1481 of the Civil Code. They had judgment in the District Court, and the defendants have appealed.

The appellants rely, for a reversal of the judgment, upon the probate of the will of Mrs. Rousseau, which took place in the presence and with the consent of the plaintiffs.

It has been frequently decided that the admission of a will to probate and execution, is not a judgment conclusive upon the heirs, and operating an es-toppel of their action to annul or contest the will, even, when they have been duly cited and were present at the probating of the same. See Aubert v. Aubert, 6 Ann. 105, and the cases there cited.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    Armitage v. Barrow, and St. John, Gregory & Co. v. Barrow.
    Where the actions as well as the judgments in favor of several plaintiffs are distinct, it is the separate, and not the collective, amounts claimed in each, which must determine the question of appellate jurisdiction.
    from the District Court of the Parish of Terrebonne, Oole^ J.

      Hall, and J. C. & A. Beatty, for plaintiff.

      Goode, for defendants and appellants.
   Voorhies, J.

The defendant is surety on the bond given by Claiborne Blake, as curator of the succession of the late William Avent. The curator filed a tableau of distribution, which was homologated on the 13th of August, 1846 ; Charles Armitage was classed thereon as an ordinary creditor for a dividend of $286 62. After having unavailingly sought, by an execution against the curator, to enforce the payment of this dividend, Armitage instituted this suit to recover the amount thereof, from the defendant, as surety on the curator’s bond. In his petition, filed on the 21st of February, 1854, he only claims the amount of the dividend with legal interest thereon from the 4th of May, 1850.

St. John, Gregory & Go., were also classed on the tableau of distribution, as ordinary creditors, for a dividend of $72 90. It appears that the same proceedings were had on their claim as on that of Armitage. The two actions were not cumulated in the same demand, but were tried together.

The inferior court rendered separate judgments in favor of each of the plaintiffs, for the sums respectively claimed by them, with legal interest from judicial demand. From which judgments the defendant has appealed.

The plaintiffs claim that the appeals be dismissed on the ground, that the amount involved in dispute in each of the cases, is not within the jurisdiction of this court.

The objection, it appears to us, is fatal. It is perfectly clear that both actions are separate and distinct, as well as the judgments therein rendered; consequently the separate, and not the collective, amounts claimed in each of them, must determine the question of our jurisdiction. See 5 N. S. 87, and 8 Ibid, 285.

It is therefore ordered and decreed, that said appeals be dismissed at the appellants’ costs respectively.


author: Spopj?oiid, J.

text:
    Succession of Pomponeau—Pugh, Appellant

      TV. TV. JPuffh, who was the tutor of the minor heirs of A. Pomponea^ was also executor of her last will. The succession, when opened, was indebted to an amount nearly equal to the inventory. Held: That the executor is entitled to two and one-half per cent, commission on the inventory, and the additional sum of ten per cent/ on the proceeds of the annual crops, as commission for his services as tutor to the minor heirs.
    from the District Court of Assumption, Gole, J.

      O. A. Johnston and Gentile, for plaintiff.

      J. 0. & A. Beatty, for defendant and appellant.
   Spopj?oiid, J.

W. W. Pugh, who was tutor of the minor heirs of Augustine Pomponeau, was also executor of her last will.

He has administered the succession in the capacity of executor for several years. He rendered an account, in which he charged two and one-half per cent, on the original inventory, for his commissions as executor, and the additional sum of ten per cent, on the proceeds of the annual crops as a commission for his services as tutor to the minor heirs. Upon opposition by the heirs, the District Judge rejected his claim for commissions at ton per cent, upon the proceeds of the crops which came into his hands as executor, but allowed him two and one-half per cent. The executor has appealed.

There is no error in this judgment. The succession, when opened, was indebted to an amount nearly equal to the inventory. The beneficiary heirs really owned nothing but the balance that might remain' after payment of the debts. The crops were not their revenues, but went to satisfy the creditors of their ancestor. Eor Lis trouble in administering the succession, the law fixed the compensation of the executor. That trouble was not enhanced by the fact that he was at the same time, tutor of the minors who had a contingent and eventual interest in the estate.

We see no reason to doubt the correctness of the decision in the case of Heath v. Lambeth, 3 An. 363, upon a point similar to the one raised by the appellant here.

The principle upon which the case turns, is not affected by any provision in the Act of March 18, 1809. See B. & 0. 580, § 6.

Judgment affirmed, with costs.


author: Ogden, J.

text:
    Budreaux v. Tucker et al.
    In an action on a qumvtum meruát-, the defendant may prove that plaintiff offered to perform the work for an amount less than that charged in the account sued on.
    Special allegations in the answer are not necessary to authorize the introduction of evidence, the direct tendency of which is to disprove what the plaintiff alleges.
    PPEAL from the District Court of the Parish of Lafourche, Oole, J.

      Hall & Bush, for plaintiff.

      Belcher, for defendants and appellants.
   Ogden, J.

The plaintiff sued on a quantum meruit for services rendered to the defendants in burning and setting bricks, and for masonry work.

On the trial, the defendants offered to prove that the plaintiff had agreed to do the work for a certain price, which was less than that charged in the account sued on, to which the plaintiff objected, and the court rejected the testimony on the ground, that there was no special contract set up in the answer.

We think the court below erred in rejecting the testimony. It was admissible under the general issue, to disprove the plaintiffs allegation as to the value of the work, and ought to have been- received to be weighed with the other testimony, in determining the amount which the plaintiff was entitled to charge for the services rendered. Special allegations in the answer are not necessary to authorize the introduction of evidence, the direct tendency of which is to disprove what the plaintiff alleges. Powers v. Steamboat Patriot et al. 3 L. R. 347. Stone et al. v. Clifford, Ibid 349. The answer of the defendants contains an averment “that the prices charged were more than the defendants ever promised to give, and more than the work done was worth, and the evidence offered was proper also to support this averment.”

Por the same reason, we think the court below erred in ordering to be stricken out a portion of the testimony of one of the witnesses, who deposed to the acknowledgement made by the plaintiff as to the price he was to receive.

The evidence offered by the defendants as to the failure of the plaintiff to make the quantity of bricks required for the brickwork on the plantation, and as to the injury sustained by the delay occasioned in hauling wood, ought also to have been received, as those facts are made the ground in defendants’ answer of a plea in compensation and rcconvention.

It is therefore ordered and adjudged, that the judgment of the court below 1)0 reversed ; and that the cause be remanded for a new trial, with directions to tlie Judge below to receive the testimonj'- which was rejected on the former trial; and that the plaintiff and appellee pay the costs of this appeal.


text:
    Saulet et al. v. The City of New Orleans et al.
    To support a dedication of property to the public use, it must appear that the ground has been used with the assent of the owner for public purposes in such a rriannet* as to exclude the idea of private ownership, and for such a length of time that the public accommodation and the rights of individuals would be severely affected by the interruption of that use; or else 'it must appear unequivocally by some plan or writing,-that the owner had made a dedication, to violate which would involve a breach of faith.
    from the First District Court of New Orleans, Lcvrue, J.

      St. Paul and Bouney, for plaintiffs,
    Livingston, Griffon and Robert, for defendants and appellants.
   Ogden, J.

The plaintiffs, as heirs of Thomas Saulet, claim to be the own. ers of a triangular lot of ground, comprised between and bounded by Prytanea, Camp and Olio streets. The defendants aver in their answer, that the ground so claimed was laid off as a public street by the plaintiffs’ ancestor, and that it has been so used and in the possession of the city for more than thirty years. To establish the dedication of this property to the public use, the defendants also rely on a plan of the Faubourg Saulet, made by B. Lafon, on the 12th of September, 1810, according to which plan they contend, the parcel of ground now claimed is represented as a street. The plan made by Lafon was deposited by Thomas Saulet, under whom the plaintiffs claim, in the office of Quinone, a notary public, in New Orleans, in the year 1810. On that plan, the space of ground claimed in this suit, is situated opposite the square No, 23, on which the Female Orphan Asylum has been since erected. That square, as well as the others, which are divided into lots, are colored yellow; but on the plan there is nothing to distinguish the parcel of ground in controversy from the streets; an oblong figure, however,-represents a building as then standing, partly on square No. 23, and extending across Olio street on to the space of ground which is now claimed. The lines of Colisée and Prytanea streets, between which the square of the Asylum is situated, being extended beyond Clio street, in the direction of the lower limit of the Faubourg Saulet, come to a point at distance from Olio street on the side of Prytanea, of 174 foot 8 inches, and on the side of Colisée or Camp streets, of 185 feet 2 inches, thus forming a piece of ground of irregular dimensions in the shape of a wedge — it is colored yellow, and thus represented on one plan offered in evidence, and on another plan given in evidence by the defendants, showing the wards and squares in accordance with the assessment rolls, but which has no date — -it is colored green.

Our first inquiry is, whether there is any proof of dedication from the use which the city has made of this strip of ground with the express or implied assent of the plaintiffs or their ancestor. It does not appear from the evidence that it was ever used as a street, or that the city ever claimed any right to it, until December, 1850, when the council of Municipality No. 2, passed resolutions directing the lot to be enclosed, and granting permission to the Female Orphan Assylum to use it as a play ground for the children. Up to that time, it had remained vacant, and the public passed over it in crossing from Prylania street to Coliseo street. From its situation, it does not appear to have be.en used as a part of either of those streets, nor does it seem that such use of it was at all necessary for the public accommodation. The fact ofits having been enclosed by the city, and converted to private purposes, is conclusive evidence that it was not regarded as a part of the -street. The Civil Code, Art. 449, speaks of two kinds of things which belong in common to the inhabitants of cities and other places — 1st, “common property to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common, such as the streets, the public walks, the quays; 2d, common property, which though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.” It is evident, that the city has treated this property as belonging to the latter class indicated in this article, and has not considered it common as the streets are for the use of all the inhabitants and even for strangers. The title of the city to property of that kind must be derived in some one of the modes recognized and sanctioned by law; it is only in relation to that kind of common property to the use of which all the inhabitants of a city,, and even strangers, are entitled in common, that the exception has been admitted,, dispensing with the rules which prevail in private grants,, and supporting dedications for public use on the broad principles of equity which in such cases have been considered alone sufficient to prevent a violation of good faith to the public. See' the case of City of Cincinnati v. White's Lessee, 6 Peters Rep. De Armas et al. v. Mayer et al. 15 L. R.

According to the principles laid down in these cases, on which dedications to the public use have been supported, without any grant or deed, it must either appear that the ground ha's been used with the assent of the owner for public purposes which, in their nature, exclude the idea of private ownership, and for such a length of time, that the public accommodation and private rights would be seriously affected' by the interruption' of that use, or the intention of the owners to appropriate the property to such public purposes must be made to appear unequivocally by some plan or writing, manifesting that intention, so as to render it a violation of good faith to the public and to those who have purchased property according to such plan, for the owner to revoke the dedication.

Such intention on the part of the former owner of this property, cannot be said to result necessarily either from the use to which the property has been applied, or from the plan by which the faubourg was laid off — it is probable that from its size, irregular shape and situation, between two streets, the owner attached very little value to this ground at the time, that it was not therefore marked on the plan ; but that circumstance alone does not sufficiently indicate an intention to appropriate the ground irrevocably to the public use.

The defence of prescription which is relied on by the city, is not sustained by the evidence, from which it appears that their possession dates back only to the year 1860.

We think the plaintiffs have shown a good title to the property, and that the facts of the case do not sustain the defence set up.

It is therefore ordered and adjudged, that the judgment of the court below he affirmed, with costs.


text:
    Dunlap, Syndic, v. Freret, Sheriff.
    In an action by a judgment creditor against a Sheriff, for releasing goods which had been seized to satisfy the writ, the introduction by plaintiff of the Sheriff’s return, which stated that the goods were not owned by the defendant in execution, but belonged to another, will not estop theplain-tiff from disproving the return. In such a case, prima facie evidence of the incorrectness of .the Sheriff’s return is sufficient to cast upon him the burden of proving property out of defendant in execution.
    A Sheriff cannot insist on an indemnifying bond, merely because he sees, or thinks he sees, danger to himself in holding on to the seizure.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Durant & Horner, for plaintiff.

      Blache, for defendant and appellant.
   Slidell, O. J.

The Sheriff appeals from a judgment condemning him to pay the amount of an execution which he levied on goods of Michael O' Oon-nor, the judgment debtor, and which he released, on the representation of one Jackson, that the goods were his, and on the refusal of the plaintiff to give him a bond of indemnity.

The main issue between these litigants is, whether the goods so seized and thert released, were the property of the defendant in execution. An examination of the evidence, of which -the District Judge has given an able review, has not satisfied us that he came to an erroneous conclusion. The veil which the parties had thrown over O' Connor's property was flimsy ; though we are satisfied the Sheriff acted honestly, and committed merely an error of judgment.

It is obviously inadmissible to say., that the plaintiff is estopped by offering the return of the Sheriff, which, in substance, states that the goods seized and then released, were not the property of Michael O’ Oonnor. On the contrary, in an action for false return, the judgment, writ and return, must be proved; and then evidence must be introduced of its falsity. And where, as in this case, a levy had been made, showing that the Sheriff considered at the time that the goods were the property of the defendant in execution, it seems just to say that prima facie evidence of the incorrectness of his return is sufficient to cast upon him the burden of proving property out of the defendant in execution. See G-reenleaf on Evidence, vol. 2, § 592, Petersdorff’s Abridgment, verbo Sheriff. Magne v. Seymour, 5 Wendell, 310. There is nothing in Webb v. Hemp, 2 Ann. 370, which militates against this doctrine. There the action was to make the Sheriff liable under the Act of 1826, for having failed to return the writ of fieri facias within the delay prescribed by law. The only evidence offered was the return of the Sheriff, which showed that the Sheriff had acted under the express instruction of the plaintiff. There being-no evidence to the contrary, the court said that no more valid excuse could be given.

It is urged for the defendant, that it appears from the Sheriff’s return, that on being threatened with suit by Jackson, if he persisted in the seizure, the Sheriff notified the plaintiff’s attorneys that he would give up the seizure, unless they furnished a bond of indemnity, and that they refused to give any bond. We are not aware of any provision of our law, or adjudged case in our Reports, which recognizes the right of the Sheriff to claim a bond under such circumstances, and if refused, to abandon the seizure; nor have we found authority in the practice of our sister States or England, that the Sheriff, in such case, may demand a bond, merely because he sees, or thinks he sees, danger to himself in holding on to his seizure. From the New York and English cases, Mr. Justice Sutherland, in 8 Cowen, 67, deduced this rule, that if no indemnity be offered, it is the Sheriffs’ duty to call a jury, and if they find the property not in the defendant, the Sheriff is justified in returning nulla, dona ; but if, after such inquisition, the plaintiff offers a sufficient indemnity, the Sheriff must proceed and sell; and that a Sheriff acts at his peril in returning nulla dona under any other circumstances. See, also, Magne v. Seymour, 8 Wendell, 309. And as to the jurisprudence in Louisiana, see Lacy v. Buhler, 8 N. S. 664

He who accepts the office of Sheriff, certainly undertakes grave responsibility and serious risks. On the one hand, if the creditor points out property to the Sheriff which really belongs to the debtor, and, deceived by false appearances or misrepresentation, he omits to seize, he is liable to the creditor. On the other hand, if he take the goods of another, though the plaintiff assures him they are the defendant’s, he is answerable in damages to the owner. With the creditor at his back urging a seizure, and a claimant in front warning him to cease — often perplexed by the shifts of a cunning debtor, or embarrassed by the confidence or carelessness of an honest owner, the position of this officer, everywhere delicate and dangerous, is peculiarly so in our own State. Dextrum Seylla latus, lemum implicata Gharryddis odsidet, It is certainly to be regretted, that the hardship of his position, which was the subject of comment in McDowell v. Lewis, 4 Ann, 401, has not been mitigated by legislation. It was well remarked by Chief Justice Eustis, in that case, that ■“ a law empowering Sheriffs to summon a jury to determine on doubtful questions relating to the ownership of property which is directed to be seized in execution, modified, as it is in England and many of our States, by a settled jurisprudence, would be of great public benefit, and no more than a just protection to the public officer in the discharge of his difficult and important duties.”

Judgment affirmed, with costs.


author: Vookhies, J.

text:
    Mrs. Malone v. Her Husband—Gorman, Syndic, et al. Appellants.
    Third persons, not parties to the suit, have a right to appeal when they are aggrieved hy the judg-
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Olaclc, for plaintiff. Defendant in p. p.

      White and Ardrey, for Gorman, appellant.
   Vookhies, J.

The plaintiff brought this action against her husband, to recover the sum of $5,425. She alleges in her petition, that in August, 1841, she married the defendant, whose domicil was in the city of New Orleans; that at the time of her marriage, she owned and possessed, as a gift from her father, the sum of $2,425, and that she afterwards acquired from her brother the sum of $3,000; that all of said sums of money were received by her husband, who used the same in the prosecution of his trade and business.

To this demand, the defendant made no formal defence.

John J. Lafarelle and E. 0. Edwards, whose depositions were taken ex parte, before answer filed, and out of court, deposed that the plaintiff was married, as alleged in her petition ; that her father, in August, 1841, gave her five hundred pounds sterling, and afterwards gave her $3,000 more ; that she also received from her brother’s succession, $7,000; and that all of said sums of money were received by the defendant and used in his business. The defendant’s receipt to the plaintiff’s father, shown by the deposition of Lafa/relle, to be in the handwriting of .the latter, for £500, was also introduced in evidence by the plaintiff.

There was a judgment rendered in favor of the plaintiff during vacation, for the amount claimed in her petition. Patn'iak, Gorman, alleging that he was a creditor and also syndic of the creditors of the defendant, T. G. Malone, and as such, aggrieved by the judgment, appealed therefrom.

The right of Gorman to this appeal, is contested by the plaintiff. Under the Code of Practice, Article 571, the right of appeal is expressly given to third persons not parties to the suit, when such third persons allege that they have been aggrieved by the judgment. See Compton v. Her Husband, 6 R. R. 156.

After careful examination, we think the proof in the record, so far as it relates to the appellant, is insufficient to substantiate the plaintiff’s demand. The depositions of Edwards and Lafarelle are evidently exaggerated. The plaintiff only claimed the sum of $5,425, and they proved upwards of $12,000, received by the defendant and used in his business. Besides, the relation existing between the parties, the manner in which the depositions were taken, and the absence of any defence to the action, are circumstances, in our opinion, which are well calculated to excite suspicion. It must also he borne in mind, that our law looks with an unfavorable eye upon cases of separation of property between husband and wife, and holds out to creditors every facility for the protection of their rights. But, as the plaintiff’s demand was not contested in the inferior court, we think justice requires that the case should be remanded for a new trial.

It is therefore ordered and decreed, that the judgment of the District Oourt be avoided'and reversed, and the case remanded for further proceedings according to law ; the appellee to pay the costs of this appeal.


author: Yookhies, J.

text:
    Mrs. Malone v. Kitching et al.
    Where a creditor charges that the judgment of the wife against her husband was obtained through fraud and collusion, the burthen of proving that such judgment had a legal foundation, is upon the wife.
    from the Third District Court of New Orleans, Kennedy, J.

      Olaak, for plaintiff and appellant.

      Garnett Duncan, for defendants.
   Yookhies, J.

Mary Eoughran brought an action against her husband in the Fourth District Court for the recovery of her separate property. She alleged in her petition, that she was married in Ireland to T. G. Malone, to whom she had been affianced before he resided in New Orleans; that in August, 1841, the marriage was consummated, and she at once, as it was her intention before, came with her husband to reside at his domicil in New Orleans;,that at the time of her marriage, she possessed in her own right the sum of $2,425, given to her by her father; that eight or nine months after her marriage, she acquired $8,000 from her brother, and also other sums by donation and succession ; and that all of said money received by her was at once given and intrusted to her husband, who used the same in the prosecution of his trade and business. Malone filed an answer in which he averred, that he could not deny the facts which had led his wife to believe that this suit was essential for the protection of her rights; that as to the amount of moneys received by her from her family, be submitted the case to the court and was willing that such judgment should be rendered as was right under the proof. On the 9th September, 1852, a final judgment was rendered in her favor on the testimony of two witnesses, John J. Lafm'elle and E. G. Edward, taken out of court and without cross-examination. Edward testified that the plaintiff was married to T. G. Malone, in Ireland, in the year 1841, with intent to proceed at once to the domicil of her husband in New Orleans; that in August, 1841, her father Matthew Houghran, made her a donation of five hundred pounds sterling, which her husband received and for which he gave a receipt to her father in the hand writing of the latter; that her husband also received since her marriage, from her father, as a donation to her, the further sum of $3,000, and from the succession of her brother, the sum of $7,000. The receipt alluded to by this witness is as follows, viz:

“£500. Ballinamike, King’s Co., Ireland.

Received from my wife, Man'ij Malone, through the hands of her father, Matthew Eoughran, five hundred pounds sterling, the same being given her by her father in consideration of marriage, and to be kept for her own use.

(Signed) Tnos. O. Malone.”

The witness declared this receipt to be true and to be signed by Malone, who had used the money in his business. Lafarelle, the other witness, testified that the plaintiff married with the intent to come at once to New Orleans, where her husband then resided; that at the time of her marriage in August, 1841, her father made her a donation of five hundred pounds sterling, which her husband received and used in his business; that afterwards her father gave her $8,000 more, and she had from her brother’s succession $7,000; that all this money was put into the hands of Malone and by him used in his business. On the 21st September, 1852, Malone conveyed to his wife, by authentic act, as a “ dation en paiement” of the judgment against him, all the real and personal property then owned and possessed by him, among other things, the three following named slaves, to wit: Jane, aged about 41 years, a good plain cook, washer, and ironer, for the price of $350; Dennis, aged about 26 years, for $500, and Jim, aged about 28 years, for $300. Malone, it appears, had previously conveyed all his property to his wife as a dation en paiement, by authentic act, dated 17th July, 1851. That act was declared to be null and void at the suit of Joseph Mitchell, a creditor oí Malone, on the 13th of March, 1852. The slaves Jane and Dennis were seized and advertised to be sold by the Sheriff, as the property of T. G. Malone, by virtue of a writ oí fieri facias issued against him on a judgment in favor of the defendant, J. B. Eitching The sale was enjoined by the plaintiff, Marry Houghrcm, on the ground that the slaves thus seized, belonged to her by virtue of her said judgment and dation en paiement.

In answer to the injunction, the defendant pleaded the general issue, and, besides, averred that the property seized belonged to the community, and was therefore liable for its debts contracted by T. 0. Malone as the master and head thereof; that the alleged judgment in favor of the plaintiff was obtained by fraud and collusion between her and her said husband; that she never possessed any right, or received by donation, or otherwise, any of the sums of money which formed the basis of her pretended judgment, which was obtained with the view and intent to defraud the defendant and the other creditors of said Malone; and that said property had always been in the possession of and administered by said Malone, who had received its fruits and revenues.

The case was tried on these issues and judgment was rendered in favor of the defendant, dissolving the injuction with damages against the plaintiff and her surety on the bond. From which judgment the plaintiff has taken this appeal.

The effect which ought to be given to the plaintiff’s judgment against her husband as the basis of her title, is the only question which is presented for our decision. It is well settled, in cases where the answer charges the judgment to have been obtained through fraud and collusion, that the burthen of proof is thrown on the plaintiff to establish the truth and genuineness of the foundation of such judgment against her husband. 8 N. S., 459; 4 L. R., 422; 11 ibid, 536 ; 12 ibid, 296; 4 Ann., 135.

Erom a careful examination of the evidence, we do not think the judge a quo erred in his conclusion. It appears that the record of the suit of the plaintiff against her husband, and the authentic act executed in her favor by him as a dation en paiement, constituted all the evidence on the trial below to substantiate the claims on which her judgment was based. The testimony of Lafa-relle and Edward, it would seem was also considered by the plaintiff to be in evidence with the record of the suit in which it was taken. George BrooJcs, one of the defendant’s witnesses, testified that Malone went to Ireland in 1840, to get married, and came back without his wife in 1841, and something over a year after his return, he sent for his wife. Mrs. Oonnelly, another of the defendant’s witnesses, testified that T. 0. Malone, who was a nephew of her husband and in his employment, had been married in Ireland when he sent for his wife; that she heard the plaintiff say that when she and her husband came to Liverpool, she was obliged to return to her father’s house in Ireland, as they had not the means for both of them to come to this country, and was obliged to wait until her husband got the means to send for her. Malone, who then boarded at witness’s house, sent for his wife and furnished the means for that purpose. Mrs. Goats, another witness for the defendants, also testified that she had a conversation wdth the plaintiff, in which the latter stated that she had to remain in Ireland after her marriage, until her husband sent her money to come to this country. The testimony of these witnesses is in conflict with that of R. O. Edmard and John J. Lafarelle. Besides, there are other circumstances disclosed hy the record which are well calculated to cast suspicion on the testimony of the latter. The plaintiff in her suit against her husband only claimed as a donation from her father the sum of $2,425, at the time of her marriage, and from her brother, $3,000, received eight or nine months after her marriage; both of these witnesses proved not only the amount thus claimed, but also the further sum of $3,000 as a donation from her father, and from her brother the sum $7,000, making an aggregate of $12,425, which, it was roundly asserted by them, had been received and used by the husband in his business. The commissioner who took their testimony, testified that he did not know either of them. There was no attempt to prove the character or standing of Edward. Two witnesses testified on behalf of the plaintiff, that they were acquainted with John J. Lafarelle; that his character for truth and veracity was good; that he had left here about a year previous to their examination, which took place in February, 1853, and had since resided in New York with his brother. Gi'een, one of the witnesses, stated that he had received a letter from him six weeks or two months ago; that he was well acquainted with his signature; that the signature to the deposition exhibited to him, was that of Lafarelle. He did not believe he could produce the letter. The idon-' tity of John J. Lafarelle as the person who signed the deposition, is rendered extremely doubtful by the testimony of his brother, Thomas W. Lafarelle, who testified that the word “ John” looked exactly like his brother’s writing, hut Lafarelle” did not, and besides the signature was different from that of his brother, who generally signed “ John J. Lafan'elle,” and not “ John James Lafarelle;" and that he did not know whether it was his brother’s signature. He was satisfied that his brother was unacquainted with any of the parties previous to April, 1841, when he, witness, left the county where they both resided together and in a different county from that where the parties resided. On the whole, we are satisfied that the plaintiff has entirely failed to substantiate her demand.

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