author: SniDEim, J.

text:
    Montross and Stilwell v. R. C. Byrd.
    Where an appeal was taken, by motion, on the 31st of March, from a judgment rendered on the 24th of the same month, and the appeal bond was filed on the 2d of April ensuing;
      Held: That the appeal was properly taken, and would not he dismissed; and that the service of citation of appeal was not necessary, the appealhaving been made by motion.
    Where a firm, of which the defendant was a member, had placed in the hands of the garnishees certainnotes which had originally belonged to the defendant, but had been by him transferred to his firm, the garnishees have the right to claim, out of the proceeds, a debt due to them by the firm, in preference to an attaching creditor on an individual debt of one of the firm; but the defendant having purchased the interest of his co-partner in the concern, the attaching creditor has the right to hold any surplus which may remain after the debt due to the garnishees has been paid.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    Iu this case, the principal contest arose between the plaintiffs and Gray and Campbell, the garnishees.

      Hoffman and Ogden, for plaintiffs.

      Hunton arid Bradford, for garnishees.
   The judgment of the court was pronounced by

SniDEim, J.

The appellees have moved to dismiss this appeal, upon the ground, that the appeal bond was not filed until the. 2d April, 1851, and no citation was served upon the appellees. It appears, that the judgment was signed on the 24th March, 1851: and on the 31st of March, upon motion, an order was entered upon the minutes; allowing the plaintiffs an appeal, returnable in this court on the fourth Monday of the ensuing April: “the execution of said judgment to be stayed, on said plaintiffs giving bond in the sum of $5700, with good and solvent security, conditioned as the law directs.” The act of 1843, amendatory of the 573d and 574th articles of the Code of Practice, dispensed the party desiring an appeal, if he made a motion in open court at the same term, &c., from the necessity of presenting a formal petition and formally citing the appellee; which latter requisition had given rise to much inconvenience in practice. Upon this salutary statute we have had frequent occasions to remark. It is only necessary now to observe, that we do not understand it as involving any new provision in relation to the time of filing the appeal bond. In this case, the bond for a suspensive appeal was seasonably filed. The appellee’s motion cannot be sustained. '

Upon the merits, the case presents a controversy between the plaintiffs, as creditors of Byrd, and the garnishees, who assert themselves to be creditors of the commercial firm of Southwick and Byrd, of Arkansas.

Gray and Campbell were garnisheed in a suit, by attachment, brought by the plaintiffs against Byrd, upon his individual obligations held by them. The garnishees were cited in January, 1850. At this time, they held in their hands four notes of one Newton, dated in Arkansas, in January, 1848, in favor of and endorsed by Byrd, and also by Southwick and Byrd. These notes were originally the individual property of Byrd, but were put by him into the firm. In March, 1848, Southwick, acting in the partnership name, pledged these notes, at New Orleans, to Gray and Campbell, to secure them for their accommodation acceptances of certain bills, drawn by Southwick and Byrd, which the acceptors subsequently paid. They have received only a partial reimbursement. The transaction was fair; and the only objection that can be made to it is, that the pledge was by private writing, and not by notarial act, as directed by art. 3125 of the Code. A few weeks afterwards, Byrd and Southwick dissolved their partnership. By the articles of dissolution, Byrd took all the partnership assets, and agreed with Southwick, to pay all the debts; and Southwick was to have, in consideration of his retirement and abandonment of interest, $1000 in goods from the concern, and $500 cash, and was to be credited for the amount of his private account. Byrd immediately wrote to Gray and Campbell, informing them of the dissolution and its terms; but the letter contained no suggestion of any request that they would convert their partnership into an individual claim. In a subsequent letter, he reiterates the information ; and uses language inconsistent with the idea that Gray and Campbell were expected to release the securities received from the partnership, or abandon their position as partnership creditors. In the reply of Gray and Campbell, there is nothing to intimate such an intention. Gray and Campbell still kept in their books an account with Southwick and Byrd, which showed a balance, at the date of their answers as garnishees, of $4129 88; and also opened an account with Byrd,iov subsequent individual transactions with him, which showed a balance of $278 85. In one of his letters, he had requested them to inform him of Southwick and Byrd’s liabilities to their house; and an account was offered in evidence by the plaintiffs, which they got from Byrd, and which appears to have been rendered by Gray and Campbell, in 1849, to him. It is headed, “J2. C. Byrd in account with Gray and Campbell,” and comprises all the items of his indebtedness, both partnership and individual.

We fully concur with the district judge in the opinion, that, as to Gray and Campbell, the four notes are to be considered as partnership property, when they were delivered to them as security; whatever may have been the circumstances under which Byrd put them into his partner’s hands. Byrd made no objection to the pledge by the partnership, although he became soon after-cognizant of it; and clearly could not, having endorsed the notes in blank and put them into his partner’s hands.

We also concur fully with the conclusion of the district judge, that the evidence is insufficient to show an abandonment by Gray and Campbell of the partnership liability, or of the security placed in their hands in the shape of assets which, as to them, are clearly partnership assets. To convert a partnership debt into a separate debt of one partner, the intention so to do must clearly appear. There must be a deliberate and mutual assent of creditor and debtor to such conversion. Nay, more ; a partnership creditor may take the separate liability of one partner, without necessarily thereby extinguishing the partnership liability. Courts will look in all such cases to the intention, as deducible from all the circumstances. Novation is not presumed. The renunciation of substantial and valuable rights is not presumed. This familiar rule is forcibly stated by Merlin. Pour que des faits emportent renonciation, il faut qu’il en résulte uno volonté manifesto de renoncer, c’est-á-dire, que ces faits soient directement et tous égards contraires au droit ou au privilége dontil s’agit.

But it is said, the act of pledge is informal, and does not protect the party against an attaching creditor. That is true: but the garnishees have another protection, and that is in the fact that they are creditors of the partnership of Southwick and Byrd; and the notes in their possession are, so far as the garnishees are concerned, assets of that partnership. They can therefore invoke, in support of their possession, the equity of the 2794th article of our Code, which declares, that the partnership property is liable to the creditors of the partnership, in preference to those of the individual creditors.

We think, however, that under the circumstances, the judgment should have made some reservation in favor of the plaintiffs. The notes represent a capital sum of $7444 38. Southwick has transferred all his rights to Byrd; subject, however, it would seem, to the equity of having the partnership property applied to the payment of its debts. The claim of the garnishees is only for $4129 88, with interest at eight per cent from 9tb March, 1849. It does not appear that there are other outstanding partnership debts. On this account, we think it equitable to modify the decree,'so as to preserve the seizure upon any balance that may remain in the hands of the garnishees, after collecting the notes and paying themselves.

It is therefore decreed, that the judgment be so amended as to reserve the rights of the plaintiffs, under the attachment and garnishment, upon any surplus that may remain in the hands of the garnishees, after applying the proceeds of the collection of the four notes of Thomas W. Newton, described in the informal instrument of pledge which is of record in this cause, to the payment of the claim of said garnishees against Southwick and Byrcl, for $4129 88, and interest thereon at the rate of eight per cent per annum, from the 9th of March, 1849, until paid, and reasonable expenses of such collection; this reservation in favor of plaintiffs being also subject to any rights of said George W. Southwick or others, creditors of the partnership of Southwick and Byrd. It is further decreed, that the judgment of the district court, so amended, be affirmed; the costs of appeal to be paid by the plaintiffs.


source: Caselaw Access Project

author: Preston, J. Rost, J.

license: Public Domain

text:
    Brander, Williams & Co. v. Capt. Goodin et al.
    The art. 313, C. P., requiring that in claims for damages, the court shall direct a jury to be summoned to assess the damages, where a judgment by default is sought to be confirmed, applies only to cases wherein the damages are uncertain, and rest in opinion alone, without a fixed rule or means of proof to ascertain them precisely; as in suits for slander, libel, and the like. The artielo does not apply in cases of damages for breaches of contracts, where the damages can be ascertained with certainty.
    Where a judgment by default was confirmed upon testimony sworn to before the deputy clerk, but his attestation does not show that it was taken in open court, it is liable to objection; but the objection will not be examined by the Supreme Court, unless brought before it by bill of exceptions, or in some other legal manner: and it forms no excuse for not taking the bill of exceptions, that it was a confirmation of a judgment by default; as the defendant should have been present to protect himself from the effects of illegal testimony.
    APPEAL from the Fourth District Court of Ne.w Orleans, Strawbridge, J.

      H. B. Eggleston, for plaintiffs.

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

Preston, J.

The plaintiffs allege, that through a ship broker, in May, 1850, they entered into contracts with the defendants to freight on their ship, from New Orleans to Boston, a large quantify of pork and lard, at certain rates of freight agreed upon; that the defendants refused to comply with their contacts, in consequence of which, they incurred heavy charges in storing the pork and lard, and suffered other damages, which they claim.

A judgment by default was taken against the defendants, and was confirmed, for the amount of the extra charges for storage, freight and insurance, paid in consequence of the failure of the defendants to take the pork and lard on freight. And they have appealed.

Ttóy assign, as error, that the suit was for damages; and that the judgment by default was confirmed without the intervention of a jury, in violation of the 313th art. of the Code of Practice.

The article provides, that “ when, from the nature of the case, damages are to be assessed, the court will direct a jury to be summoned to find the same, in the same manner as if the defendant had answered.”

The defendants’ counsel has cited several cases in which this article of the Code of Practice has been interpreted. In the case of Olivier, Curator, &c. v. Cannon, the plaintiff sued the defendant for damages for taking and detaining a slave, horse and dray, belonging to the plaintiff. A judgment by default was confirmed; and it was assigned for error, on appeal, that the damages were assessed by the court without the intervention of a jury; and it was held, that the assignment of error should prevail, because the action was instituted for a tort, where, from the nature of the demand, damages were to be assessed. 18 L. E. 475.

In Guillotte et al. v. Thompson, 5 R. R. 141, damages were claimed in a possessory action, and assessed by the court. It was held, that a jury should have been summoned to assess them.

In the case of Liles v. The New Orleans Canal and Banking Company, the plaintiff sued for a promissory note and damages. A judgment by default was confirmed for the note and $500 damages, without the intervention of a jury. It'wns affirmed as to the note, but the case was remanded to have the damages assessed by a jury. In all these cases, the damages claimed were uncertain, and it was impossible that there could be evidence by which to ascertain them precisely. From their nature, they were to be assessed or valued by opinion, because there was no other rule. And we think the terms in the article of the Code of Practice, “when, from the nature of the case, damages are to be assessed,” may safely be limited to cases where the damages are uncertain and rest in opinion alone, without a fixed rule or means of proof to ascertain them precisely.

This is generally the case when damages are claimed for offences or quasi offences, as for assault and battery, trespass, slander, seduction, and the like; though the damages, in cases of offences and quasi offences, may be so certain as not to require an assessment. Thus, the larceny of one hundred dollars gives rise to an action for a hundred dollars, certain; the killing my horse, which I had agreed to sell for fifty dollars, for an action for fifty dollars; the concealing and harboring my slave, to a claim for two dollars a day, as a statutary penalty. So, in contracts, when the breach causes injury to the feelings alone, as a breach of a promise to marry; or pecuniary losses resting in opinion, or perhaps, fancy alone, as the failure to comply with an obligation to furnish some object of intellectual enjoyment, or for the gratification of taste, or for convenience ; — the damages must be assessed. But when they are fixed by contract, as a pecuniary penalty agreed upon by the parties for the non-performance of an obligation; or by law, as the legal interest for the non-payment of money; olean be ascertained by exact evidence, as the obligation to deliver me a set of books worth a hundred dollars; — we think the damages are not to be assessed, but are to be fixed by precise evidence; and the intervention of a jury is not required.

Of course, the cases in which the damages are to be assessed by opinion, and those in which they are to be ascertained by precise evidence, will often be not very distinguishable; and then, as in many other cases, the practice must bo left to the wise discretion of the judge.

In the present case, the charges for storage, insurance and extra freight, were matters of absolute certainty, and yet were damages resulting from the non performance of their contract by the defendants. They did not rest in opinion at all; and we think the district court exercised a wise discretion in fixing them by evidence; and that it was not necessary that they should be assessed through the intervention of a jury.

It is assigned, for error, that the evidence to prove the contract nf the defendants to take the freight, was not taken in open court. It consists of the depositions of Gale and Barker, sworn to before the deputy clerk, on the day the other evidence was received and the judgment by default was confirmed; yet, his attestation does not show, that they were sworn to in open court. We have no doubt the depositions were taken in open court, with all the other evidence in the case, on the 24th of June, 1850; yet, the attestation of the deputy clerk is liable to the objection which was considered conclusive in the case of Sandeman v. Drake and Willard, 17 L. R. 335. But we have lately held, upon mature consideration, supported by many decisions, that we ought not to examine objections to evidence received by the court on a trial, in the absence of a party and his counsel, and which objections were not brought before us by bills of exception, or in some other legal manner. Leverich v. Toby, ante, p. 462. Beard v. Pritchard, 9 R. R. 464. West v. His Creditors, 4th Ann. 467. Sommerville v. Young, 3d Ann. 290. Picket v. Bates, Ib. 627. Curtis v. Woodman, 2d Ann. 307.

We can see no reason why the same rule should not be adopted, when issue is joined by judgment by default. It is, in such a. case, peculiarly the fault of the defendant, not to be present to protect his rights, by opposing the introduction of illegal testimony. This assignment of error should therefore fail.

It is assigned, as error, that damages should not have been recovered, without alleging and proving that the defendants were put in default for not complying with their contract. It is expressly alleged, that the defendants contracted.to take the freight; and refused to do so. The contract, we have just seen, was proved; and that the defendants refused to comply with it, is established by several witnesses. This testimony implies a demand upon them to comply with their contract.

The judgment is affirmed, with costs.

Rost, J.

I concur in the opinion of the court, but for reasons in some respect different.

When evidence is offered, in the absence of the defendant, to make a judgment by default final, I think the judge has the right, and that it is his duty, to require legal evidence.

I do not believe, any judge would consider it consistent with his duty or his oath, to admit the affidavits of witnesses, taken out of his presence, when the witnesses were present in court, and could be examined. I am bound to believe, therefore, that such affidavits were not received in this case; and that the evidence offered to prove the contract of the defendants to take the freight, was taken in open court. The certificate of the 'clerk, given during the trial, conveys no other meaning to my mind.


author: Rost, J.

text:
    A. E. Bienvenu v. The Citizens’ Bank of Louisiana.
    The defendants sold to the plaintiff, without recourse, paper to the amount of $3844, for six dollars. After the sale, it was discovered, that a credit of ten per cent, which had been paid, was not endorsed on tlie notes. The plaintiff brought ail action against the hank for that ten per cent. Held: That the only actions which the plaintiff could bring, was one for a rescission of the sale, or one for a diminution of the price; but as he had brought an action in affirmance of tlie sale, judgment was properly entered against him.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      A. Robert, for plaintiff.

      A• Pitot, for defendants.
   The judgment of the court was pronounced by

Rost, J.

At a public sale of worthless paper, made for account of the Citizens’ Bank, without recourse, the plaintiff purchased a judgment on five promissory notes, amounting together to the sum of $3844, for six dollars and twenty-five cents. He has since ascertained, that one of the parties to the notes had made a surrender of his property; and that, before the sale, the Citizens’ Bank had received a dividend of ten per cent, which was not credited on the judgment.

This action is brought to recover the amount thus received, on the ground, that the plaintiff, having purchased the notes for what they were worth on their face, and his vendors being bound to make them good for that amount, the payment made should inure to his benefit.

P. K. Barnes subsequently intervened in the suit, making a similar claim, for an error of the same kind, in a credit purchased by him at the public sale.

The district court gave judgment against the plaintiff, and dismissed the intervention, reserving the right of the parties to sue for a rescission of the sale. The plaintiff, alone, has appealed.

There is no doubt of the plaintiffs right to claim a rescission of the contract, on the ground of error; but he does not pray for it. He sues, in affirmance of the sale; and the only question is, whether the dividend received by the Citizens’ Bank should inure to his benefit ?

No fraud being alleged against the defendants in the sale to the plaintiff, one-tenth of the judgment sold must be considered as having been extinguished by payment. This extinguished portion of the debt could not be revived by a subsequent sale; and the case stands, in fact, as if the plaintiff had suffered an eviction to that extent. Had the plaintiff been evicted from the entire claim, as the sale was made “without recourse,” his only remedy against the bank would be for the restitution of the price. Having suffered eviction to the amount of one-tenth, his only claim, as he affirms the sale, is to be refunded one-tenth of the price paid. But such is not the object of his action; and if it was, the amount would be far below our jurisdiction. The dividend claimed can, upon no legal principle, inure to his benefit. As he has elected to affirm the sale, the court should, perhaps, not have reserved his right to sue for a rescission of it; but there being no prayer for any change in the judgment, it must be affirmed.

The judgment is therefore affirmed, with costs.


author: Pjreston, J.

text:
    A. S. Phelps v. Andrew Hodge.
    An attorney at law had compromised a claim in favor of tlie plaintiff, against the defendant, amounting to ©3000, for ©369. The proof of the authority of the attorney rested upon his own evidence, corroborated by the testimony of another witness. Held; The plaintiff was hound by the compromise.

      from the District Court of Jefferson, Clark, J.
    The principal evidence in this case, was as follows: “ Received from the defendant, the sum of three hundred and sixty-nine dollars, in full satisfaction of the plaintiff’s demand; the plaintiff to pay costs. New Orleans, April 5th, 1848. ( Signed) R. M. Carter, Attorney for plaintiff.”
    “ Richard M. Carter, witness for defendant. Testimony taken by consent, subject to legal exceptions, except as to matters of form. Witness knows both parties to this suit. The plaintiff, defendant and witness, were interested in certain lands purchased of the United States. There was a written agreement, which will disclose the nature of the partnership. The plaintiff considered that he had a claim against the defendant, growing out of said co-partnership. Witness was authorized by the plaintiff to make an amicable settlement, and fully authorized to arrange the same. Under this full power to act, witness made a settlement with Mr. George May, the agent of defendant, and received from Mr. May, a draft for $375, which was paid at maturity, and also, witness’ fee. Immediately after the settlement, as above stated, met Mr. Phelps, the plaintiff; informed him of the settlement, and tendered him the draft for $375. The plaintiff refused to accept of it, and expressed his dissatisfaction with the settlement. Witness had been employed by plaintiff, to institute suit against the defendant, and had done so in the Fourth District Court, at New Orleans; as shown by the copy of the petition annexed to the answer of defendant herein. That petition was dismissed, upon the exception of the defendant to the jurisdiction of the court. Witness had been always authorized by the plaintiff, to settle and compromise the matter with the defendant; but he believes, that he did not effect the compromise till after the petition had been dismissed. Being shown the receipt annexed, and the answer of defendant herein: says, that was the receipt which he gave; but instead of the sum of $369, as therein expressed, he received a draft, which was considered equivalent to the sum of $369, after deducting the discount. Witness was fully authorized to compromise, and settle the matter in that way, with defendant; witness has now in his hands the amount of the draft, viz : $375.”
    “ Cross-examination: Witness had several conversations with Mr. Phelps, as to a compromise, both before and after institution of suit in N ew Orleans. (Defendant reserves his exception to the conversations of plaintiff with witness out of the defendant’s presence.) Witness thinks that the sum of one thousand dollars cash, together with his fee, was mentioned by Mr. Phelps, as being satisfactory to him, Phelps. Witness had several conversations, in which said amount and his fee were mentioned by Phelps. Subsequently to the suit being dismissed, witness saw Mr. Phelps, and advised him to compromise; witness does not recollect that Mr. Phelps ever mentioned any less sum than one thousand dollars and his fee, as a compromise; but witness acted under, as he believed, a general authority to compromise. Witness informed Mr. Phelps that he had effected a compromise, and tendered to Mr. Phelps the draft; which draft was refused. Witness is not certain that he told Mr. Phelps, that he would institute the suit in the Parish of Jefferson ; but recollects that he suggested the name of a person to bring the suit. That witness told Mr. Phelps, that if a suit were instituted, that he, Phelps, would probably be defeated ; and suggested the reasons of this opinion.”
    “Re-examined: When Mr. Phelps mentioned the terms which would be satisfactory to him, he did not limit witness to those terms ; but witness considered, that he was authorized to settle on the best terms he could get. Mr.

      Phelps expressed his preference, as to the terms of the settlement. Witness never communicated those terms to defendant’s agent. He first asked for him the whole amount of the claim set up by the plaintiff, but afterwards settled with him, on the terms above stated. Witness informed Mr. May, as agent of the defendant at the time, that he had full authority to compromise with him. Immediately after the settlement, he tendered to plaintiff the draft he had received.”
    “ George May, a witness for defendant, being duly sworn, says: He was the agent of Mr. Hodge, and authorized to settle with Mr. Carter. He settled with Mr. Carter in full for all the claims of Mr Phelps, as appears in this case. Had a conversation with Mr. Phelps respecting this settlement, after it was made. A short time after the settlement, witness saw Phelps, who expressed his dissatisfaction; that Mr. Carter ought to have got more. Phelps admitted to witness, that Carter was authorized to settle the case, but that he expected more than Carter received. Witness told Phelps, that he had nothing to do with his expectations; that he should have limited Mr. Carter. Witness offered to show Phelps that a settlement had been made; and believes, that he showed him the receipt of Carter. From what Mr. Phelps said, witness understood, that Phelps admitted Carter had full authority to settle the case.”
    “Cross-examined: This conversation happened shortly after the settlement; not more than two months after. In the conversation, Phelps said, that he ought to have received one thousand dollars. At the time referred to, witness paid Carter fifty dollars ; and the balance of the fee, $50, was paid shortly after. Carter said, that Phelps had put him in great trouble about this business; had never paid him a cent; and he thought one hundred dollars was not enough. Being asked, whether the settlement alluded to in the conversation referred to the general authority of Mr. Carter; replied, that he understood that he was authorized to settle the case by compromise, or otherwise. Witness paid Carter in a draft, drawn on Payne and Harrison. It might have been more, and it might have been less, than a sixty days draft; it was a short draft; it may have been more than a ninety days. Sixty or ninety days paper, is a short paper. Mr. Carter offered to return the draft to witness, in consequence of Phelps’ dissatisfaction with the settlement made; this was shortly afterwards. Mr. Carter said, that Mr. Phelps thought that he ought to have got wore.”

      “ Re-examined : The draft in market would have produced, in cash, the amount called for on the receipt.”
    The judgment of the district court was as follows: “ The defendant, in this case, pleads, by way of exception, that the plaintiff had brought suit to recover the same demand before the Fourth District Court of New Orleans; and that, by a settlement made with the attorney of plaintiff, the claim has been extinguished and satisfied. It is admitted, that the suits are about the same subject matter. In proof of the settlement, the defendant has filed the receipt of R. M. Carter, the plaintiff’s attorney of record, in the first action in the New Orleans Court. The authority of the attorney to effect the compromise, is established by his own testimony, corroborated by that of another witness, viz., Mr. G. May. We consider the receipt of R. M. Carter to be a satisfaction and extinction of the demands of the plaintiff.
    It is ordered, therefore, and decreed, that the exception by the defendant filed bo sustained, and the petition of the plaintiff be dismissed,”

      Jourdan and Miles Taylor, for plaintiff, contended:
    The plaintiff and defendant entered into an agreement, in 1838, with a view to the purchase of lands from the United States, and their re-sale at a profit for the advantage of both. By the terms of the agreement, the defendant was to furnish the funds necessary for the purchase of the lands; the plaintiff was to select and make the purchases of the lands, in the name of the defendant; and, as a compensation for his services and agency therein, the plaintiff was to receive one-fourth of all the profits on the re-sale of the lands, over and above their original cost, and tho charges incurred.
    A very considerable number of tracts of land were purchased in pursuance of this agreement, and a large portion of the same having been re-sold at advanced prices, the plaintiff conceived himself entitled to recover from the defendant, the sum of $3207 65, as his portion of the profits; and, with that object, instituted an action against him in the Fourth District Court of New Orleans, on the 27th of January, 1848, by his attorney and counsellor at law, Richard M. Carter; which action was dismissed, on a plea to the jurisdiction, founded on the fact that the defendant was a resident of the parish of Jefferson ; and as such, not bound to answer to an action brought against him in the parish of Orleans.
    On the 5th of April, 1848, the attorney of record'of the plaintiff gave a receipt in the following words: “Received from the defendant, the sum of three hundred and sixty-nine dollars, in full satisfaction of the plaintiff’s demand: the plaintiff to pay costs. (Signed) R. M. Carter.”
    On the 9th of November, 1849, the plaintiff, by his attorney, Jourdan, instituted his action, to recover the same amount from the defendant, in the District Court of the parish of Jefferson; and, on the 5th of December, 1849, the defendant filed his peremptory exception to the action, founded, as he alleges, in law; in which he sets forth the institution of the previous suit on the 27th of January, 1848; and that, on the 5th of April thereafter, he, the defendant, paid to R. M. Carter, the attorney at law and duly authorized agent and attorney in fact of the plaintiff, the sum of three hundred and sixty-nine dollars, in full satisfaction of the plaintiff’s demand. This exception was sustained; and there was judgment, dismissing plaintiff’s petition. From this judgment the plaintiff has appealed. The exception was improperly sustained.
    1. Mr. Carter was without any authority, in his capacity of attorney and counsellor at law, to accept anything less than the amount claimed in satisfaction of the plaintiff’s demand, if he can be regarded as the attorney or counsel of the plaintiff, at the time of giving the receipt. That he was, at the time, entitled to represent the plaintiff at all, in his capacity of attorney at law in that suit, admits of great doubt. According to his own statement, the suit was then at an end. But if he were still the attorney at law of the plaintiff in the case, he not only had no authority to accept of a less amount than was claimed in satisfaction of the plaintiff’s demand, but was without authority to accept anything in payment, but money. His own testimony, and that of the only other witness, shows that the defendant gave, and he, Carter, received a draft, payable at a subsequent time. The receipt was, therefore, a mere nullity, and could in no manner affect the plaintiff Perkins v. Grant et al, 2 Ann. 328. Millaudon v, McMicken, 7 N. S. 145. William II. Dunbar v. Sarah Morris, tutrix, 3 R. R. 278.
    2. If a settlement were made between the plaintiff and the defendant, for a less sum than the amount claimed, it would be in effect a transaction or compromise. This contract must be reduced to writing. C. C. 3038. A power to compromise must be express and special. C. C. 2966. Gaiennie v. Akin's Executor, 17 L. R. 42. When the contract must be in writing, the power of attorney to empower one to make it, must also be in writing. C. C. 2961. Stevens v. Wellington, 1st Ann. 72.
    3. If, however, parol evidence were considered sufficient' to show authority to compromise, that in the record does not show it. The declaration of Carter only amounts to this: that he was authorized to negotiate for a settlement; not to make it. He says, he was always authorized to settle and compromise the matter; and yet he says, that “subsequently to the suit being dismissed, (that in New Orleans,) witness saw Mr. Phelps, and advised him to compromise.” This necessarily implies, that the plaintiff reserved to himself the completion of any settlement or compromise. And this view is supported by the acts and conduct of the plaintiff, after the doings of Carter were made known to him.
    But if this were otherwise, it is clear from the evidence, that if Carter had any authority at all to compromise, it was a limited one to accept a thousand dollarsusdlh the amount of his fee; and as a matter of course, any thing done by Cgner, in violation of this limitation, cannot, in any manner, bind or affect his principal. It was the defendant’s duty to assure himself of the existence and extent of the power of one acting as agent. The plaintiff, as soon as he was informed of the pretended settlement, repudiated it. 6 L. R. 47.
    If, upon the loose and vague declarations, such as those contained in the testimony in the record, and that, too, of witnesses situated as Carter and May were, the claims of individuals are to be considered as extinguished by a receipt, such as given in this case by Carter, there will no longer be any safety for parties who unfortunately become involved in litigation. C. C. 2990.

      Hunton and Bradford, for defendant.
   The judges of the court delivered their opinions seriatim.

Pjreston, J.

The plaintiff having sued the defendant for upwards of $3000, the latter excepted, that the plaintiff having before sued for the same cause of action, he had paid JR. M. Carter, Esq., his attorney at law and duly authorized agent and attorney in fact, $369, in full satisfaction of the demand. He produces in evidence, a receipt of Mr. Carter, dated the 5th of April, 1848, headed with the title of the suit and the name of the court, for $369, in full satisfaction of the claim. It is signed by Carter, as attorney for the plaintiff.

The exception of the defendant rests for its support, principally, on the testimony of Mr. Carter; and examining it minutely, it appears to me, he may have mistaken a special and limited power to compromise for a thousand dollars, for a general power.

An agent may undoubtedly prove his agency; but when it is disputed, the testimony should leave no doubt or uncertainty upon the subject, for two reasons: 1. A man who disposes of another’s property, is extremely imprudent in resting his authority on his own testimony alone, when two or three lines in writing would have prevented all doubt and uncertainty. 2d. A debtor who takes a discharge from any other person than his creditor, is extremely imprudent in not having the authority in writing, when it could be obtained as easily as in the present case ; for the plaintiff and defendant lived in one parish, the attorney in another. In law, moreover, it is the duty of a party taking a discharge from an agent, to see that he has authority to give it; and his risk and loss, if it is given without authority.

In the next place, our laws require that a compromise or transaction should be reduced to writing. Code, art. 3038. When made by an agent, I think the power should also be in writing. The agency is so much a part of the contract, that there should be as high, certain, and indisputable evidence of the agency as of the contract itself.

The good order of society, and tranquillity of persons weary or fearful of litigation, requires that a power to compromise or refer a matter to arbitration, or to make a transaction on a matter in litigation, should be in writing. In all these cases, the parties in some degree renounce the laws of the land and the tribunals of the country established for their protection ; and their renunciation should rest upon the highest and most certain evidence.

The lawgiver, in framing article 2966, intended this, in requiring the power to be express and special, when the thing to be done was in writing; though, undoubtedly, if the thing to be done might be done verbally, as to sell a movable, the power might be verbal; and our late Supreme Court constantly adhered to this principle. 3 N. S. 149. 17 L. R. 42. 13 L. R. 484. 8 L. R. 568.

On the trial of the exception, the defendant having admitted parol proof, without objection as to the power to compromise, if that testimony left the power entirely free from doubt, I would yield to it. The testimony, however, induces me to think, there was not a clear and distinct understanding between Phelps and Carter, that the last might compromise for whatever he might think proper, or indeed for less than a thousand dollars. And there is the more reason for disallowing a compromise, decreed without clear and satisfactory evidence^to establish it, because it is a contract supposed to be based upon a fair and equitable adjustment of the rights of the parties ; and neither, therefore, can be really injured by disallowing it as a peremptory exception, when there is a misunderstanding between them.

I think the exception should be overruled, and the cause remanded to be tried on its merits.

Rost, J. I concur in the foregoing opinion, delivered by Judge Preston, in this case.

Eustis, C. J. I concur in the opinion of the district judge, as to the evidence in this cause, and therefore think the judgment should be affirmed.

Slidell, J. I also concur in the opinion of the district judge.

The judges of the court being equally divided in opinion in this case: it is thorefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.


author: Slidell, J. Pkest on, J. Rost, J. SiiDEXii,, J.

text:
    Succession of Edward Lauve.
    Where a person not a party to the original suit lias obtained an appeal, based upon an affidavit ofhis attorney, that he was a creditor of the succession, and had been injured by the judgment, and the fact ofbisbeingacreditoris disputedinthe Supreme Court. Hold: The case sbouldbe remanded to try that issue, before the Supreme Court would decide the cause.
    from the First District Court of New Orleans, Larue, J.

      T. A. Clark, for appellant.

      M. M. Cohen and H. Si. Paul, for appellees.
   The judgment of the court, (Eustis, C. J., dissenting,) was pronounced by

Slidell, J.

B. F. Lee is appellant from a judgment homologating the administrator’s account. Lee had made no appearance in the mortuary proceedings before this decree, and was not named on the tableaux. He obtained the order of appeal ex parte on the affidavit of his attorney at law, that he verily believed him to be a creditor. The appellees now dispute the alleged fact that he is a creditor; and under the authority of several cases decided by our predecessors, we will direct the issue, whether he is a creditor or not, to be tried in the court below, before proceeding further in this cause. See Oakley v. Phillips, 6 N. S. 307. Taylor v. Jeffries’ Estate, 10 L. R. 438. Desormes’ Heirs v. Desormes’ Curator, 15 L. R. 17.

It is therefore ordered, that a mandate do issue to the judge of the First District Court of New Orleans, directing him to have,and determine the issue, whether the said B. F. Lee is a creditor of the succession of said Edward Lauve, as in his petition of appeal alleged, and to cause his decree upon said issue to be certified to this court; and that, in the meantime, this cause be held under advisement.

Pkest on, J.

The practice sanctioned by this decision will lead to great delays, inconvenience and unnecessary expense; and were it an open question, I should have interpreted ambiguous expressions in our Code of Practice differently. But the practice has been sanctioned by three decisions of our predecessors; and, being a question of practice, and not as to a rule of property, I think the maxim stare decisis should govern this case,

An allegation that a party is transferree of A. andU.isnot inconsistent with evidence that lie is the assignee of that firm, under a voluntary assignment made by them in New York, for the benefit of their creditors.

Where the name of an affiant is inserted in an affidavit taken before a Louisiana commissioner, in New York, it will be presumed, in the absence of any proof to the contrary, that the commissioner was personally acquainted with the affiant, although it be not so stated in the affidavit.

APPEAL from the First District Court of New Orleans, Lame, J.

T. A. Ciarle, for appellant.

M. M. Cohen and H. St. Paul, for appellees.

Rost, J.

The appellant should have taken, on the appellees, a rule to show cause why his appeal should not be granted, and proved his right to appeal contradictorily with them ; as, however, he acted under the influence of a common error, created and continued by repeated decisions of our predecessors, I assent to the opinion of the majority of the court. Should a similar proceeding be resorted to hereafter, it is probable it would not be sustained.

Same Case — On The Merits.

The judgment of the court was pronounced by

SiiDEXii,, J.

The allegation of Lee, that he was a transferree of the judgment obtained by Granger, Birch Sy Co. against Lauve and Benedict, is not inconsistent with evidence that he is the assignee of that firm, under a voluntary assignment, made by them in New York, for the benefit of creditors. We are not aware of any provision of our laws, forbidding such an assignee to appear in our courts without the previous formalities suggested by counsel.

In the affidavits made by Lee, before a Louisiana commissioner, the words used are, “ Benjamin F. Lee beiug duly sworn but it is not expressly stated in the body of the deposition, or elsewhere, that Lee was known to the commissioner. In the absence, however, of contrary evidence, we think we are bound ro infer from the entire document that he was so known. The opposite view supposes a violation of duty by the public officer. Reference is made by counsel to the laws of New York. It is sufficient to say, they are not in evidence.

The transcript is certified by the clerk, as containing all the evidence. We find no evidence of the publication of notice to creditors. See C. P. 1042. Tompkins v. Benjamin, 16 L. R. 199. Desormes v. Desormes, 17 L. R. 115. Lee v. Bennet, 3 Ann. 219. It does not appear that the appellant had actual or constructive notice of the filing of the tableaux.

It is therefore decreed, that the judgment of homologation appealed from, be reversed; and that this cause be remanded for further proceedings according to law; the costs of the appeal to be paid by the said succession.


author: Preston, J.

text:
    F. Lockhart et al. v. H. R. Harrell et al.
    Where an amended petition was unnecessary, because the evidence to sustain it could havd been properly introduced under the original petition; Held: That the filing of the supplemental petition afforded no good ground for a continuance on the part of the defendant; and that the case was properly tried, without any answer to the' supplemental petition on the part of the defendant. i

      Where a party has himself opposed a motion to rescind an order of cumulation of two suits, he cannot complain of the order of cumulation.
    A surviving partner cannot maintain a suit upon an obligation for money due to the partnership, without making the representatives of the deceased partner a party; but where the suit is to annul a sale in which he has an interest, even of a movable, it can be maintained by him alone.
    The whole tendency of modern practice is, to enlarge the latitude as to .the admissibility of evidence, leaving the courts to restrict its applicability.
    Notice of seizure on execution to a debtor before the sale must be made, unless clearly waived; and parol proof of the waiver is not admissible. Notice to the attorney of a debtor, who is himself present in the State, is not sufficient.
    Such instruments as twelve months’ bonds cannot be seized on execution, without taking actual possession of them by the executive officer, and delivery of them to the purchaser, in pursuance of the adjudication.
    APPEAL from the District Court of East Feliciana, Penn, J.

      Z. S. Lyons, for appellees.

      E. T. Merrick, for appellants.
   The judgment of the court was pronounced by

Preston, J.

Lockhart and Arrott held a twelve months’ bond against Eckley Harrell and Nettles, dated the 4th of February, 1843, for $5020. In September and November, 1843, Harrell, the most solvent obligor on the bond, purports to have sold his property by notarial acts to Hohgood.

In January, 1844, just before the bond became due, Lockhart and Arrott brought suit to annul the sales, on the ground that they were simulated; and attached the property. When the bond became due, they issued execution against the property, and Hohgood enjoined the sale of it. The injunction was made perpetual by the district court; but, on appeal, the judgment was reversed by this court, and the case remanded to receive evidence of the simulation; and, on the merits, to dissolve the injunction, if it should be ascertained that the sale was simulated.

While these proceedings were taking place, the sheriff had the costs taxed against Lockhart and Arrott, in their attachment suit, and caused the twelve months’ bond to be sold by the coronel-, for the costs; and, on the 6th of September, 1845, Harrell became the purchaser for $1350, in twelve months’ bonds; and he and Hohgood filed supplemental answers to the suit, to annul the sales of September and November, 1843, that the debt due to Lockhart and Arrott had been extinguished by confusion.

On the 24th of March, 1846, Lockhart, as surviving partner of Lockhart and Arrott, brought suit against Harrell, Hohgood and the sheriff, to annul the coroner’s sale to Harrell of the twelve months’ bond, on twelve distinct grounds.

The defendants denied his right to sue, without making the representatives of Arrott a party plaintiff to the suit; denied the plaintiff’s allegations material to support his demand ; and plead that he was divested of all title to the twelve months’ bond by the coroner’s sale, which they averred was in all respects regular, and that Harrell had thereby become the absolute owner of it.

In 1848, the court ordered this suit to be cumulated with the suit to set aside the sales by Harrell to Hohgood, in September and November, 1843, so far as it was alleged, in the supplemental answers to that suit, that the twelve months’ bond had been extinguished by confusion.

On the 2d of April, 1850, the plaintiff moved to set aside the order cumulating the two suits, which the court refused, the defendants making opposition, and assigned the causes for trial on the fourth of that month. The same day, the plaintiff filed, as a thirteenth ground for setting aside the coroner’s sale, that he did not seize or take actual possession of the twelve months’ bond in selling it, or deliver it to the vendee Harrell; and annexed the bond, alleging that he had always held it in his possession.

The defendants opposed the filing of this amended petition and the assigning the cause lor trial, and asked for lime to defend themsolves against it, all of which the court refused; and they took a bill of exceptions.

The plaintiff, in his original petition for annulling the coroner’s sale of the twelve months’bond, presented his twelfth ground, in these words: “Because every and all that has been dono to.divest your petitioner, in his said capacities, of the ownership of said bond, and to defeat his collection of the same, is wrongful and illegal, none of the requisitions of the law has been observed, and the sale of the same is utterly void.”

We think that, under this allegation, he might have given evidence that the coroner never seized or took actual possession of the twelve months’ bond, or delivered to Harrell. If so, the supplemental petition did not alter the nature of the case, require an answer, or entitle the defendant to timo to defend himself against it, under article 421 of the Code of Practice. Indeed, to support his plea of payment of the bond by confusion, Harrell ought to have been ready to produce it with a legal sale from the coroner.

There was, therefore, no error in allowing the amended petition to be filed, and assigning the cause for trial immediately and without an answer to the amendment. The coda allows great discretion to the judge in these respects, which, we think, should not be abridged.

The defendants cannot hope to reverse the judgment on the ground, that the court refused to rescind the order cumulating the two suits, when it was expressly refused in consequence of their opposition.

The defendants have cited many decisions of our late Supreme Court, to show that the surviving partner of a mercantile firm cannot sue for a claim of the firm, without making the heirs or representatives of his deceased partner parties plaintiff in the suit. Flower v. O'Conner, 7 L. R. 197. Couller v. Cochran, 13 L. R. 484. 3 L. R. 358. 4 N. S. 437. 6 N. S. 188.

The argument of the plaintiff’s counsel, that this is not a suit to recover a sum of money, but to annul a sale in which the plaintiff has a clear interest, is conclusive on this subject. Thus, a joint owner can maintain a suit for land and a fortiori for a movable, at least to have his right recognized. The authorities quoted to the contrary, all occurred where suits for sums of money were brought, in which the discharge of the surviving partner would not discharge the whole debt.

The court admitted, in evidence, the acts of sale from Harrell to Hobgood, charged to be simulated, and some parol testimony in relation thereto ; but expressly restricted it to show any fact or circumstance of combination or fraud on the part of the defendants in relation to the coroner’s sale, which was attacked for fraud. With this restriction, the documents and testimony were admissible in evidence. The character of the case required as much latitude as to evidence, as the rules of law would permit. And the whole tendency of modern practice is, to enlarge the latitude as to the admissibility of evidence, leaving to courts, by their instructions, to restrict its applicability; and to juries, to judge of its credit and effect. The bills of exception show a wise, but cautious, exercise of the discretion of the court in this respect.

We think with the district court, that the notice of seizure to a debtor before selling his properly under execution, must be made, or clearly waived, and that parol proof of the waiver should not be admitted; and further, that service of the notice on his attorney at law is not sufficient, when he is himself present in the State. The bill of exceptions, so far as it relates to other subjects, was a requisition upon the court fo instruct the jury as to abstract principles of law.

Lyons, when examined as a witness in the cause, by substituting other security on the attachment bond and for costs, was divested of any interest in the cause.

It has become the settled jurisprudence, under our decisions, that such instruments as a twelve months’ bond cannot be seized and sold under execution, without taking actual possession of them by the executive officer, and delivery of them to the vendee, in pursuance of the adjudication. We are, therefore, of opinion, that the coroner’s sale, without these essential requisites, transferred no title to the bond to Harrell, and that this plea of confusion must be disallowed.

The -judgment of the district court is therefore affirmed, with costs.


text:
    Executors of S. M. Haggerty v. B. W. Powell.
    A party who sues in a representative capacity, as executor, is only required to prove the capacity in which he acts, when it is specially denied. Going to trial on the merits, without putting at issue the capacity of the plaintiff, implies an admission of it by the defendant.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Bryon, for plaintiffs.

      Livingston, Reynolds and C. Roselius, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who was a resident of the State of Texas, instituted this action, to rescind the sale of a slave sold to him by the defendant, who is a trader in slaves, on the ground, that before and at the time of the salo, the said slave was addicted to the vice of running away; and that he ran away within sixty days from the sale, and has never been heard of since.

After pleading the general issue, the plaintiff died, and his executors'appeared, and were authorized to prosecute the suit. The case was tried by them contradictorily with the defendant, and the judgment rendered in their favor; from which the said defendant has appealed. He urges in this court, for tho first lime, as one of the grounds for the reversal of the judgment, that the plaintiffs are foreign executors; and that, as they have not shown that they had been confirmed as such by a competent court in this State, they have no capacity to 6tand in judgment.

We are of opinion, that this exception should have been taken when the executors first appeared; if it had been, non constat that they could not have shown the fulfilment of that formality. A party suing in a representative capacity is only required to prove the capacity in which he acts, when it is denied. Going to trial on the merits, without putting the capacity of the plaintiffs at issue, was an implied admission of it by the defendant.

The case, on the merits, is clearly with the plaintiffs. They have shown, that the slave had not been eight months in the State when he was sold; and that he ran away within sixty days from the sale. The case comes strictly within the provisions of the act of 1834. Act, p. 7.

The ground, that the persons having charge of the slave for the plaintiff were negligent, and did not exercise a sufficient control over him, is not a legal defence.

The judgment is therefore affirmed, with costs.


author: Preston, J. Slidell, J.,

text:
    Tiner and Conrey v. Joseph Maillot.
    The plaintiffs sold a steamer to A. and Bfor the accommodation acceptances of the defendant. They also had the policy for the insurance of the ho at transferred to them. Oil this policy $1000 were collected, which the plaintiffs permitted A. to use. Held: That the plaintiffs were hound to have seen the $1000 applied to the payment of the acceptances; and that the acceptor was discharged to that extent.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Frank Haynes, for plaintiffs.

      Race and Foster, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs sold the steamboat Chalmet to Dalferes and Thomason, on the 19th of October, 1849. Among other considerations, they gave a draft for $1000, accepted by the defendant, payable eight months after date, or on the 19th of June, 1850; and a draft for $1250, payable a year after1 date. The steamboat was also, by the contract, to be insured for tho full amount of the price, $6500, and the policy assigned to the plaintiffs to secure the payment of the price, including these drafts. The defendant is sued on the last draft; and contends, that he is not liable to pay it, because the boat was partially injured; and that $1040 was received by the plaintiffs from the insurance company, and was paid over to Dalferes, instead of being applied to the payment of this draft.

We think the bill of sale affords intrinsic evidence, that the acceptance of Maillot was for the accommodation of Dalferes and Thomason.

The vendoi'S had the policy in their hands, to secure its payment; and were bound to apply the security in their hands to relieve the acceptor of the draft, as far as possible.

The plaintiffs did give the money they received from the insurance company to Dalferes, to repair the boat. This was its true and equitable destination; but Dalferes did not appropriate it to that purpose. It was the duty of the plaintiffs to have seen that it was so used, and thereby, so far, to have rendered inoro valuable the boat, upon which they had a privilege, as vendors, for the payment of the drafts; and thereby to have maintained unimpaired the security in their hands.

It is true, also, that Dalferes, subsequently to the receipt of the insurance, handed over to the plaintiffs $700, out of monies collected on account of the boat, to aid in taking up the draft of $1000 payable at eight months. It was his duty to have done this, independently of the money received for the insuranco, which he, as well as the plaintiffs, should have seen faithfully applied to the repair of the boat, and, so far, to relieve his accommodation acceptor. As be did not repair the boat, he should have returned the money to the defendant lo pay the drafts, or so far, to have paid them himself; and it was the duty of the plaintiffs to have secured the money for that purpose. Equity forbids that the plaintiffs should recover from the defendant, when they have disposed of means placed in their hands to pay themselves, and without which he probably would not have become surety for the payment of the price of their boat.

■ The judgment of the district court is reversed, and judgment is rendered for the plaintiff, against the defendant, for $209 53, with interest from the judicial demand, and costs in the district court; those of appeal, to be paid by the appellees.

Slidell, J.,

dissenting. I do not find the'fact established, that the plaintiffs knew, when they took the draft or received the insurance money, that the defendant was an accommodation acceptor. In the absence of information to them on this point, they have clearly a right, I think, to consider him as an ordinary acceptor for value, and are not to be held towards him as though he were a surety.

I have not been able to arrive at the conclusion adopted by my brethren.


author: Preston J.

text:
    Augustus W. Walker v. William Creevy.
    Where A. garnisheed, on execution against B., a claim for which B. was sueing C., notice to B. of the seizure was not necessary. The law only requires that notice of the seizure should have been given to C.
    APPEAL from the Fourth District Court of New Orleans. Slrawbridge, J.

      Elmore and King, for plaintiff.

      Wolfe and Singleton, for defendant.
   The judgment of the court was pronounced by

Preston J.

A. W. Walker obtained judgment on the 23d of May, 1849,. and issued an execution against William Creevy. He accompanied the execution with a petition and interrogatories to Messrs T. and G. Forbes, and an order to answer the same ; making them garnishees, and seizing all rights of Creevy against them.

They answered, that they were defendants in a suit of W. Creevy against them, pending in the Fifth District Court of New Orleans, and that, whenever a final judgment is rendered therein, it will fix the position and liability of the parties. In that case, a judgment was rendered in favor of Creevy against them, for $1066 70.

Walker then took a rule on the garnishees, to show cause why they should not pay him the amount of the judgment of Creevy against them.

Woodruff Co. intervened, and claimed the judgment as having been assigned to them by Creevy. The controversy between the parties was tried, and the court gave judgment for Walker against T.-and G. Forbes, declaring that his seizure took precedence of the transfer to Woodruff Sf Co., whose intervention was dismissed in January, 1851.

Notwithstanding this decision, Woodruff 8f Co., by virtue of their assignment from Creevy of the judgment, issued execution on it against T. and G. Forbes. Walker also issued execution against them, and they applied to deposit the money in court, subject to the controversy between Walker and Woodruff Co.

During the pendency of their rule to deposit the money in court, there being executions against them issued by both parties, T. and G. Forbes paid the amount of Creevy’s judgment into the hands of the sheriff, the proper place of payment for their discharge.

The parties again contended for it, and contested each others’ right by pleadings and evidence ; and the court again decided by judgment that it belonged to Walker, from which judgment Woodruff 8f Co. have appealed.

Independently of the exception, rei judicata, to this, their second claim for the same thing, the judgment against it is clearly correct. Walker seized the claim on the 23d of May, 1849, and made T. and G. Forbes garnishees, in the most formal manner. As far as we can discover, the act of the 20th of March, 1839, was strictly pursued. He issued execution on his judgment against Creevy, seized his rights in the hands of T■ and G. Forbes, propounded interrogatories to them, obtained their answers as garnishees, left the execution in the sheriff’s hands to hold the rights seized, and when the claim of Creevy against them was reduced to a judgment, took a rule upon them to pay it to him, and issued execution against them, not against Creevy, to enforce the payment.

Thus, he' did not, as contended, abandon his seizure ; but pursued it in the most formal manner.

It is urged, that.it was invalid, because Creevy was not notified of it.

We find no law rendering it necessary that notice should have been given of the seizure to Creevy. If the sheriff had been directed to sell the claim, it would have been necessary to have given notice to Creevy, that he might appoint an appraiser. But having seized an incorporeal right, the proper and legal mode of realizing it, was to cause it to be collected. The act of 1839 expressly directed the debt to be levied or collected by the sheriff, from the garnishees. It was transferred from Creevy to Walker, as to the garnishees, by the seizure; and no one could acquire rights upon it, to the prejudice of the seizure.

The supposed transfer of the debt by Creevy to Woodruff S¡- Co took place afterwards, on the 14th of June, 1850, and could produce no effect against the seizure on the 23d of May, 1850. The first attachment must necessarily have the effect to supersede those which are subsequent.

The judgment of the district court is therefore affirmed, with costs.


author: Slidell, J.

text:
    Absolom and Crocker v. John Callum.
    An affidavit to arrest a debtor, under the tOthsectionof the act of 28th March, 2840, to abolish imprisonment for debt, must be made by the creditor himself, and not by an agent or attor- ■ ney.
    The 10th section of the act of March 28th, 1840, contemplates debtors who have resided here; and is not applicable to persons who came here after the debt or obligation was contracted. A fraudulent agent, who had absconded from Scotland, could not he proceeded against under the act. The contract of agency having been made in Great Britain, to be there fulfilled, the fraud was consummated when tlio agent there refused to account for his agency.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Stockton and Steele, for plaintiffs.

      Race and Foster, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

In their petition, the plaintiffs, who are merchants in the city of London, state that the defendant was their agent to collect monies due them in Scotland; that he collected for them over £2200, paid over only ¿6627, and refused to pay over the balance, which is still due; that he absconded from his residence in Scotland, about the 1st of September, 185.0, to avoid the payment of his just debts, and defraud the plaintiffs and his other creditors; and they knew not where he was, till recently they learned he was in New Orleans. They prayed an arrest of the defendant, as an absconding and fraudulent debtor.

An affidavit was made by an agent of the plaintiffs, that the allegations of the petition were true, to the best of his knowledge and belief.

The defendant was arrested, and immediately took a rule to set aside the arrest. The arrest was ordered to be set aside, for reasons verbally given by the judge. The reasons assigned orally by the judge were, as we are informed by plaintiff’s counsel, that the fraud complained of transpired in Scotland, out of the limits of Louisiana; and, therefore, the tenth and eleventh sections of the act of 1840, abolishing the writ of capias ad satisfaciendum, etc., did not apply; and that the affidavit for arrest was made by the agent, and not by the creditor himself; and, therefore, the arrest could not be maintained on the ground that defendant had absconded, etc. He said the act of 1847, p. 63, required that the oath, as to the absconding of the debtor, should be taken by the creditor himself.

The rule is well settled in our jurisprudence, that the remedy of arrest is to be strictly construed. Such was the doctrine before Ifie act of 1840, entitled “ an act to abolish imprisonment for debt;” and its propriety is fortified by the lenient spirit of that statute, as compared with the preexisting legislation. This consideration is important in the decision of the present question.

Two grounds are relied upon by the plaintiffs, in support of their alleged right to incarcerate the defendant. 1st, That he was an absconding debtor. 2d, That he was a fraudulent debtor, and his case came within the purview of the 10th and 11th sections of the act of 1840.

I. By the 9th section of the act, (p. 133) it is enacted, that no citizen of another State shall hereafter be arrested in this State, at the suit of a non-resident creditor, except in cases where it shall be made to appear that the debtor has absconded from his residence.

A doubt might be raised, whether this section gives the remedy of arrest, where, as in this case, the absconding debtor is a subject of a foreign government, and the residence from which he absconded was in a foreign country. Do the terms “ citizen of another State,” point to citizens of other States of the Union? Waiving, however, an opinion on this point, and supposing the plaintiffs entitled to the remedy of arrest, under the 10th section, against Callum, a subject of Great Britian, who has absconded from his residence in Scotland, is the affidavit is this case sufficient ? It is made, not by Absolom and Crocker, or one of that firm, the creditors, but by George Black, their agent, appointed under the power of attorney to collect the debt in question.

The 9th section of the act of 1840 was amended by the act of 1847, so as to read ns follows: “That no citizen of another State shall hereafter be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear, by the oath of the' creditor, that the debtor has absconded from his residence.”

This statute introduces two changes in the preexisting law. It brings the resident creditor under its operation; it requires that the fact of absconding be made to appear, by the oath of the creditor. The provision, as it stood before, being thus amended, was satisfied by its being made to appear that the debtor had absconded from his residence; and it might be considered as coming under the then existing provision of law, which authorized an affidavit for arrest to be made by the creditor, or his agent. The amended provision, we think, requires the oath of the creditor himself, as to the fact of absconding. A compliance with this requisition may be inconvenient to the non-resident creditor, but is not impracticable. We are, therefore, constrained to say that, in our opinion, the district judge did not err in bolding tbe affidavit of the agent, as to the fact of absconding, insufficient.

II. Upon the second point, we are of opinion, as we have hitherto said in the case of Hand v. Taliaferro, that the 10th section of the act of 1840 contemplates debtors who have resided in this State. It considers some acts fraudulent, which are lawful by the laws of other States and countries. Its scope and purport must be gathered from the entire section and the context. The consequences of the acts which the statute declares presumptive evidence of fraud, are very severe. The debtor who is adjudged guilty of defrauding the complaining creditor, in the manner contemplated in the preceding section, is to be condemned to incarceration for a period not exceeding three years.

The case of Andrews v. His Creditors, 11 L. R. 464, decided in 1838, upon which the plaintiff relies, does not, in our opinion, cover the present case. It will be observed, that there Andrews, the debtor, charged with the commission, in Alabama; of acts not deemed fraudulent there, but which would have been so under our laws, was seeking a discharge from his debts and arrest under our insolvent laws. It was held, that our courts would not grant him such relief. To what extent we would be prepared, in a similar case, to adopt all the points relied on in Andrews' case, is not now necessary to say.

It is said, that the fraud in this case occurred in Louisiana, inasmuch as the defendant refuses here to pay over money which he received in Scotland on account of the plaintiffs. This view is unsound. The contract of agency was made in Great Britain, to be fulfilled in ail its parts there. The fraud was consummated when the defendant broke his contract, by failing to pay over to his principals, and absconded with their money in his pocket, to escape legal pursuit there.

It will be observed, that it is not charged that Callum is about to depart permanently from the State.

Judgment affirmed; plaintiffs to pay costs.


author: Rost J.

text:
    William Flower v. S. W. Downs.
    An application made by the plaintiff's counsel, that tbe defendant be notified of tbe filing of a report of experts, is not a motion to homologate the report, and does not debar the plaintiff of the right of making objection to it..
    Where the defendant had no attorney of record, service of interrogatories, by leaving a copy of them with bis wife at his domicil, is sufficient, and authorizes the taking of the testimony under them.
    Where the plaintiff, a factor, called on the defendant to answer, on oath, interrogatories as to the correctness of the account sued on, the defendant may state in his answer, that his recollection is not sufficiently distinct to enable him to speak with certainty as to all the items, and that the factor owes him damages, for disobeying his orders as to the sale of his cotton.
    Where a planter, who had given instructions to his factor to sell his cotton, is informed that it has been shipped to Liverpool, he is bound) within a reasonable time, to ratify or disapprove the'conduct of the factor. He cannot be allowed to watch the fluctuations of the market, with the view of adopting or rejecting the shipment, as may be most to bis interest.
    Where afactor has paid money for his correspondent, he will not be allowed to charge more than five per cent interest, unless a contract to pay a higher rate of conventional interest be proved.

      APPEAL from the District Court of Ouachita, Barry J»

      McGuire and Ray, for plaintiff.

      R. W. Richardson and J. O. C. Sharp, for defendant.
   The judgment of the Court .was pronounced by

Rost J.

The plaintiff sues on a factor’s account, for advances made during the years 1838 and 1839, and claims interest on those advances, at the rate of ten per cent per annum.

The defendant, beside pleading the general issue, has made the following averments : That the cotton seed charged in the account was- worthless, and did not come up, in consequence of which, he sustained $1000 damages. That the eighty-two bales of cotton, also mentioned thei'ein, were shipped to the plaintiff by the defendant, in January, 1839 ; that it was of the best quality, and such as was selling for eighteen cents per pound, from the 1st of March to_ the 1st of May, 1839, and afterwards; that from early in March, the plaintiff was positively instructed by the defendant, and repeatedly, both by letter and in person, urgently requested to sell it before prices should fall ; that he sold another lot of inferior cotton belonging to the defendant for fifteen and a half cents, but failed, and refused to sell the eighty-two bales until September, 1839 ; and then shipped it to Liverpool without instructions, and against the wishes of the defendant; by which several acts, and the failure-to sell as directed, the plaintiff became bound to pay the defendant the highest price he could have obtained; which price, the defendant prays may be allowed him.

The district court deducted from the plaintiff’s account the cost of the cotton seed ; allowed the defendant sixteen and two-third cents per pound for the cotton, instead of about twelve cents, the price which it netted, in Liverpool; and gave judgment against him for the balance, with interest at five per cent per annum. The defendant has appealed; and the plaintiff aslts that the judgment be amended, so as to allow him the entire amount of his claim.

We do not think that there was error in the ruling of the court, brought to our notice by the bills of exception of the defendant.

The application made by the plaintiff’s counsel, that the defendant be notified of the filing of the report of the experts, was not a motion to homologate that report, and did not debar the plaintiff' of the right-of making opposition to it.

This motion to give notice was unnecessary; -and the embarrassment it has caused shows that counsel should be equally careful, not to do too much, or too little. The motion to amend the report was made by the plaintiff in 1843 ; the judgment appealed from was rendered in 1850 ; the defendant, who attended to the case in person, had ample time to answer it, and could not have been taken by surprise.

On the other bill of exceptions, the testimony objected to was properly admitted. The defendant had no attorney ofi-ecord ; and we incline to the opinion, that the service of the interrogatories, made by leaving a copy of them with the wife of the defendant, at his domicil, was sufficient. But besides this, the commission was executed here ; and the day before the testimony was taken, the commissioner gave notice of the time and place of taking it, to the defendant, who was in the city at the time. This notice, though short, was sufficient to enable him to obtain further time, if he deemed it necessary. Under those circumstances, we are of opinion, that the district court did not err.

We think, that the evidence itself is legal. It is true, that the plaintiff’s books, or those of merchants with whom he deals,-are not per se evidence for him. But witnesses may look into them, to refresh their memory, as was. do.pe in the present case. This is the only way in which factors can prove their accounts. Morgan v. Bikle et al., 2 N. S. 387. For the purpose of closing this protracted litigation, we have answered, the objections raised against the plaintiff’s witnesses; although on the trial, we did not understand the items proved by those witnesses as being seriously contested.

The only questions argued before us, arising on the report of the experts, were in relation to the cotton seed, the eighty-two bales of cotton, the payment to the Citizens’ Bank, and the rate of interest. The cotton seed is proved to have been worthless ; the cost of it was, therefore, properly deducted from the account. But the defendant has no claim for damages. When it was ascertained that the seed would not come up, the ground was ploughed, and replanted with other seed, and a fair crop was made : a planter suffers no injury by being compelled to give his land an extra ploughing at the proper season.

There is no evidence of a written agreement of the defendant, to pay conventional interest; and as he objects peremptorily to the rate charged, it must be reduced to legal interest. The payments made by the plaintiff to the Citizens’ Bank, which the experts had rejected, are fully proved ; and he is entitled to be credited with their amount.

The plaintiff called upon the defendant, to answer on oath, whether every item in the account was not correct, and to point out the incorrect items. The defendant answered, that, having kept no copy of the orders sent, and taken no account of the articles received, it was not in his power to say whether most of the items charged were correct or not. But he further answered, that the account was incorrect in this, that he ought to have been credited with the proceeds of the eighty-two bales of cotton, of the same date as that of the other lot sold; and at the price of seventeen to eighteen cents per pound, or whatever was the market value of such cotton at the time ; because he instructed the plaintiff, both before he left the city, in March, 1839, and afterwards, to sell; and he held on, against the defendant’s wishes, until the market fell much lower.

The plaintiff moved to strike out this portion of the answer to the interrogatory, on the ground that it was not a categorical answer, and was not closely linked with the question put; and that the defendant could not thus make evidence for himself, on the subject of his directions in relation to the sale of the cotton, upon which he had not been questioned. The motion to strike out was overruled, and the plaintiff took a bill of exceptions.

This is quite an embarrassing question. Under the authority of the cases of Taylor and Hood v. Morgan, 1 M. R. 198, and Nichols v. Pierce, 6 N. S. 707, this portion of the answer might, perhaps, be admitted in evidence. It is not necessary, however, to determine whether it should be. For, admitting that the plaintiff received instructions to sell in March, 1839, the question still remains, whether, under the facts of this case, these instructions were sufficient to render him liable for the highest market price, if he disobeyed them, and the market subsequently fell.

This question was elaborately examined, in the case of Ward & Co. v. Warfield et al., 3d Ann. 464. The court, in that case, recognizing fully the principle, that the agent who disobeys instructions renders himself responsible to his principal for the consequences of his acts, further held, under another principle of the law of agency, that, where an agent has committed a breach of orders, and the principal, with a full knowledge of all the consequences, adopts his acts, even for a moment, he will be bound by them ; and that it is not necessary that such an assent should be express — it may be inferred from the conduct of the principal.

The case was one of an invoice of cotton, sent to the plaintiffs for sale here, and shipped by them to Liverpool. They had the cotton appraised by brokers, at the time of the shipment; and wrote to the defendants, that, as they had acted without orders, they would, if desired, allow the price here, and take the shipment on their own account. The letter to the Warfields bore date the 27th March, and was received by them before the 5th April. They did not answer it until the 9th May, and after news had been received of a serious decline in cotton at Liverpool. Upon the authority of Prince v. Clark, 1 Barnwall and Creswell, 186, the court held that the Warfields were bound to answer, within a reasonable time, the letter of Ward Co., informing them of the breach of orders ; and either adopt the act of the agents, or repudiate it, and place the shipment at their risk ; that they had no right to wait the fluctuations of the market before answering, and that as they had done so, they must be considered us having taken the chance of a rise or fall in prices.

There is no evidence in this record, showing that the cotton was ever placed at the plaintiff’s risk, and the letters of the defendant contain no intimation of 1ns intention so to place it, till after it had 'been sold in England, and the account of sales rendered. In one of those letters, bearing date the 23d April, nearly two' months after the instructions to sell were given, the plaintiff says: “ I do not yet fear for the cotton market. ”

On the 1st August, he writes ffom Kentucky : “You exercised a sound discretion in not selling, under the depression occasioned by the news by the (treat Western. Yet, I hope you will not have let the opportunity pass, of selling during the rise caused by the news by the Liverpool ; for we can scarcely receive better news, and may have worse.”

At the date of this letter, the defendant must be considered as still intending to run the chances of the market; and if cotton had risen, as he anticipated, and the plaintiff had sold, nothing could have been claimed beyond the price received, although that price might have been much lower than the market price in April and May. The fact that the rise did not take place cannot affect the legal question. It is true, the plaintiff shipped without orders; but as the price he obtained was higher than the market price here, at any time after the shipment, the defendant sustained no injury by the breach of orders, and would have no action against the plaintiff, even if he had notified him in time that he would not take the risks of the shipment.

We are of opinion, that this portion of the defendant’s claim cannot be allowed. There is abundant evidence in the record, showing the plaintiff to have been a careless and inefficient factor. The defendant suffered inconvenience, and probably loss, in consequence of those deficiencies; but he has not made out a case in which we can afford him relief.

It is therefore ordered, adjudged and decreed, that the judgment in this case he amended ; and that the plaintiff recover from the defendant the sum of 353438 43, with interest at the rate of five per cent per annum, from the 6th January, 1840, till paid, and costs in both courts. ,


text:
    Commercial Bank v. W. M. Villavaso.
    The Commercial Bank, having gone into voluntary liquidation, under the act ofl2fcli of March, 1842, presents no reason why the commissioner appointed to liquidate its affairs should notuse the corporate name of the hank, in collecting its debts by judicial proceedings.
    from the District Court of St. Bernard, Rousseau, J.

      E. Rawle, for plaintiff.
    C. Roselius, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

We see no reason to dismiss this appeal. The delay in the service of citation is attributable to the fault of the sheriff.

It is contended, that this suit should have been brought in the name of the commissioner appointed to liquidate the affairs of the bank, in pursuance of certain judicial proceedings, under the act of 14th March, 1842. The case of the Commercial Bank was one of a solvent bank which desired logo into liquidation, and did so. Its banking franchises were surrendered; but the body corporate existed, and still exists. The legislation on the subject of banks is complicated, and frequently obscure. So far as the present bank is concerned, we see no reason to say, that the commissioner, in collecting its debts by judicial proceedings, is inhibited from using the corporate name. C. C. 423.

It is therefore decreed, that the judgment of the district court be reversed, that the exception pleaded by the defendant be overruled;, and that this cause be remanded for further proceedings according to law; the defendant paying the costs of this appeal.


text:
    Pierre C. Jacques v. Henry Kopman.
    In a sale made by the sheriff for taxes, under the act of 10lh of March, 1845, tho designation of a lot by its number, square and faubourg, is not sufficient, where the owner has had no notice of the sale.
    APPEAL from the District Court of Jefferson, Ciarle, J.

      J. J. Michel and Elliott, for plaintiff.

      Brewer, Dunbar and Harmon, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

This is an action of slander of title; in which the plaintiff asks damages for the slander, and also to be quieted in his title and possession. The plaintiff, Pierre Christopher Jacques, purchased the property in question from Eohn and Shiff, on the I2th of January, 1844. It is described in the deed, as a lot of ground, situated in the faubourg Livaudais, of the parish of Jefferson, in this State, designated on a plan made by Henry Mulhausen, Surveyor, on the 4th of May, 1844, and deposited in the office of Plermann, a notary, in New Orleans, as lot No. 8, of square number 45, and bounded by Ninth, Live Oak and Laurel streets, and by the line dividing said faubourg Livaudais from suburb Delassize; said lot measuring, as per said plan, thirty-two feet front on said Laurel street, by a depth of one hundred feet between parallel lines, bounded, on one side, by lot No. 9, and on the other side, by lot No. 7, and in the rear, by lot No. 6; together with all the rights, ways, servitudes, &c.

This deed was not recorded in the office of conveyances, in Jefferson parish, until 1847; but the plaintiff took actual possession and occupied the land prior to the tax sale, upon which the defendant relies.

The defendant, in his answer, sets up title under a tax sale made by the sheriff, on the 10 th of October, 1845, in a proceeding entitled, The State of Louisiana v. Jacques Pierre. In the deed, which, we presume, corresponds with the advertisements, the only description given of the property is as follows: A lot

of ground, in faubourg Livaudais, parish of Jefferson, designated by the No. 8, square 45. The deed transfers to the purchaser “the said before described property, and all the right and title which the said Jacques Pierre had in or to the said before described property.” The lot No. 8, in squaro No. 45, Livaudais, was assessed in the name of Pierre Jacques.

The plaintiff does not appear to have had any notice of these proceedings, nor does it appear that an actual seizure was made. He has remained in possession ever since.

This sale was made under the act of 1845, (page 39) by which, in cases of non-payment of taxes, it is made the duty of the sheriff to seize the property assessed, “by virtue of the assessment roll in his possession, which shall be considered an execution, and proceed to sell the same in' the manner and after the delays prescribed for ordinary executions.” &c.

There was judgment for the plaintiff in-the court below, quieting him in his title, and dismissing the reconventional demand of the defendant for the amount of the purchase money paid by him to the sheriff; The defendant has appealed.

We think, there is nó error in the judgment. Without noticing the other points of informality alleged by the plaintiff, it is sufficient to say, that the defectiveness of description in this forced sale, of which the plaintiff had no notice, and to which he has given no actual qr implied assent, is sufficient to invalidate it. It is obvious, that the interests of the owner must be sacrificed, when the advertisement is so vague as not, in itself, to inform bidders, with any approach to accuracy, what they are buying, nor the owner, that his property is to be sold. We adhere to the decision, on the same point, in a case of sale for taxes, reported in Carmichael v. Akin’s Heirs, 13 L. R. 205, in which it was said, “the designation of the lot as No. 5, square No. 58, faubourg Annunciation, is insufficient.”

We are unable to see how the non-registry of the plaintiff’s deed can give validity to the sheriff’s sale.

As to the reconventional demand, we see no reason why, in a case where there was no notice, and such gross irregularity, the owner should reimburse the purchaser the price paid; which, we presume, has either gone into the State treasury or is in the hands of the public officer, where the defendant can get it or a portion of it. If the district judge had ordered the plaintiff to reimburse to the defendant the amount of the tax, fifty-two and a half cents, we would not have disturbed his decree. But even if the defendant was entitled to reimbursement to' that extent, it is too small a matter to authorize a reversal, and the consequent imposition upon the plaintiff of the ^osts of appeal.

Judgment affirmed, with costs.