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

text:
    John Nolan v. John R. Shaw & Co.
    The relation between factor and principal is not the ordinary relation between debtor and creditor. It is a relation of trust and confidence. The factor is to be considered as undertaking to hold the funds confided to him by his principal subject to his own order, and to he ready to pay them over to him, deducting only his own charges and advances made in the course of his employment, and cannot retain the funds upon the ground of having paid other claims against the principal, which he had received notice from the principal not to pay.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      R. U. Marr, for plaintiff, contended :

      John R. Shaw Sf Co., a commercial firm in New Orleans, professing to act as agents for John Nolan, a planter residing in the parish of West Baton Rouge, and also for James Goodloe, an engine builder living at Cincinnati, entered into a writing dated 26th November, 1845, purporting to be an agreement for the building and putting up of a sugar mill and engine for Nolan, to be completed on or before the 1st day of September, 1846, for the sum and price of $6250, to be paid in the month of March, 1847. This writing is signed “James Goodloe, by his agents John R. Shaw Sf Co.;” “ John Nolan, by his agents John R. Shaw Sf Co.” Goodloe put up a tnill and engine. The evidence does not show at what time they were completed ; but Nolan was not satisfied with the machinery, or with the manner in which the work had been done. Having a large amount of money in the hands of Shaw <§• Co., who were his factors and commission merchants, Nolan wrote to them on the 29th December, 1846, requesting them to pay Goodloe nothing, for any purpose whatever, on his account; and he goes on to give the reasons for this course, saying, among other things, that he feared he should never be remunerated for the great losses he had sustained by the failure of Goodloe’s work, and that he could not think of paying him anything under the circumstances. To this letter Shaw Sf Co. replied a few days after, on the 2d January, 1847, saying they would settle nothing without Nolan’s orders, and informing him, that it has always been their custom to pay out money for no one without orders.
    On the 23d of March, 1847, Goodloe was indebted to Shaw Sf Co. for advances, in an amount exceeding the price of the sugar mill and engine; and Shaw Sf Co., having money belonging to Nolan in their hands, credited Goodloe’s account with $7267 43, and charged Nolan with that amount in two items — ■ cost of sugar-mill and engine, $6250; and amount paid for extra work, $1017 43 —retaining the money themselves and appropriating it to their own use.
    On the 21st of June, 1847, Shaw Sf Co. rendered to Nolan their account current, in which he is charged with the $7267 43, as so much paid for the mill and engine, and extra work. There is nothing to show that Nolan was ever-informed of this pretended payment until the rendition of the account current, and he immediately disapproved of it, and refused to sign a receipt in full, as it was written by Shaw Sf Co , for the balance shown by that account. He also transferred his business to another house, and has not employed Shaw Sf Co. since that time.
    In June, 1848, Nolan brought suit against Shaw Sf Co., to recover the amount alleged to have been paid to Goodloe. There seems to have been an ex parte trial of the cause. The defendants introduced their testimony and submitted the case. No evidence was offered on the part of the plaintiff, and the suit was discontinued.
    In November, 1849, the present suit was brought to recover the amount ¡alleged to have been paid to Goodloe, and two other items of the account current, amounting to $250 43, with which, the petition alleges, Nolan is not properly chargeable. The answer is a general denial; and it also sets up the fact, that Shaio Sp Co. were the general agents of Nolan, and in all things have faithfully discharged their duty. The judgment of the court below was in favor of the plaintiff for $7207 47, with interest from the 23d of March, 1847. Shaw 8p Co. appealed, and Nolan, in answer to the appeal, prays that the judgment may be so amended ns to allow him the additional sum of $253 47, with interest from the 19th of June, 1847, as claimed in his petition.
    On the trial of the cause, the defendants offered in evidence the pleadings and evidence in the former suit, and the writing purporting to be a contract between Nolan and Goodloe; to the introduction of which the plaintiff’s counsel objected, and took bills of exception to the opinion of the court admitting them.
    The objection to the admission bf the record and evidence in the first suit is, that the issues were different, and the testimony was not relevant to the issue made in the present suit. In the former suit an issue is made upon the indebtedness of Nolan to Goodloe. No such issue is made in the present suit; and Nolan bases liis right to recover upon the fact, that the payments with which he is charged, if made at all, were made without his authority or consent. It was immaterial in the first suit, and it is equally so in this, to inquire whether Nolan was or was not indebted to Goodloe ; as the fact of indebtedness alone, if established, would not authorize Shaio Sp Co. to pay the debt without Nolan's consent. It is true they jilead, that they were Nolan’s agents to make the contract; but a power to contract for another is very differeut from a power to acknowledge and pay a debt growing out of that contract, which latter power must be exjiress and special.' C. C. 2966. The question of that indebtedness did not arise in this suit; and evidence tending to prove it is totally irrelevant to the present issue between the parties. 1 Greenleaf’s Evidence, p. 61, sec. 51. Moreover, the writing purporting to be a contract is, on its face, a nullity. It is signed by John R. Shaw Co., as agents for both parties. It lacks the essential requisite of a plurality of persons ; and it cannot be pretended, that it was obligatory either upon Nolan or Goodloe. Their interests conflicted, there was no aggregatio mentium. C. C. 1754, 1772, 1792. Florance v. Adams, 2 R. R. 556. Nolan may have authorized Shaw Sp Co. to contract with Goodloe, but they became incapable of rejiresenting him when they attempted to act for the other contracting party. Beale v. McKiernan, 6 L. R. 418. It is not shown, that Nolan was informed of their agency for Goodloe; and it is barely possible that he would have constituted them his agents for the purposes of that contract, if he had known that they were the representatives of Goodloe. No imjilied ratification of this void contract can result from the simple fact, that Goodloe built for Nolan a mill and engine, unless it is proven, that Nolan accepted the work, with a full knowledge of the existence of the writing, and of its terms and specifications, and of all the material facts connected with it. See Oioings v. Hull, 9 Peters, 629. Such an instrument could not be used to prove the character and specifications of the work to be done by Goodloe, nor the price to be paid by Nolan, nor the time at which the payment was to be made ; and the only pulpóse for which it could be legitimately used is, to prove rem ipsan that such a writing existed — a fact not put at issue by the pleadings.
    The two items which were rejected by the court below are, amount of judgment paid Weld Sp^ Co., $153 47, and fee paid C. M. Randall, $100. In answer to the fifth interrogatory propounded by the jdaintiff, Shaw Sp Co. admit that, the suit of Weld Sp Co. was against them, and the judgment against them, and not against Nolan : and in answer to the sixth interrogatory they admit that it was in this case as their attorney, and in their defence that the services were rendered for which they paid Randall the $100. The case came up to this court, and by reference to it, (2d Ann. 559,) it will be seen, that the object of the suit was, to render Shaw Co. personally liable ; and such was the judgment of the court. The business of the attorney of Shaw Sp Co. was to shield them from liability; and he attempted to do this by showing that they were acting merely as agents for Nolan. Had he succeeded in doing this, the result would have been to establish Nolan's liability, and to subject him to the suit of Weld Sp Co. Surely, they ought not to be permitted to chai’ge Nolan with the amount of this judgment, and with the fee of their attorney. The opinion of this court in the case of Barker v. York, 3d Ann. 94, is conclusive against such a claim on the part of the attorney; and if Shaw Sp Co., as agents for Nolan, so conducted themselves as to become personally responsible to Weld Sf Co. for a breach of contract, it does not seem just or legal that the consequences of their conduct should be visited upon Nolan. C. C. 2993.
    It may be that Nolan is really indebted to Goodloe ; but what have Shaw Sf Co. to do with that indebtedness ? They could not make Nolan their debtor by paying, without his consent, a debt acknowledged by him; much less, one which he did not acknowledge and protested against paying, unless they were legally or by convention subrogated to the lights of the creditor to whom they might make such payment. C. C. 2155, 2156, 2157. Harrison v. Bisland, 5 R. R. 204. Nolle et al. v. Their Creditors, 7 N. S. 603. They do not pretend, that there was any conventional subrogation, nor was their position such as to create a subrogation in their favor, as a matter of right and of law, without a positive contract. C. C. 2157. But the answer to the third interrogatory shows, that there lias been no payment made' to Goodloe, and that Skw Sf Co. merely retain, for a debt which they allege to be due to them by Goodloe, the amount with which they have charged Nolan in their account of 21st J une, 1847.
    Suppose Shaw Sf Co. had plead, in compensation of Nolan’s demand, the amount which they pretend to have paid Goodloe, and the judgment in favor of Weld Sf Co., and 'the fee paid Mr. Randall, could they have succeeded on that plea? By thoir account current of.21st June, 1847, the gross amount due by them to Nolan, is fixed and liquidated; and the only part of that account which is not liquidated is the amount of credits to which they are entitled. Even if they had been subrogated to the rights of Goodloe, of Weld Sf Co., and of Randall, they could not oppose these claims, which were not liquidated by any act or agreement of Nolan’s, part of which he positively refused to pay, to Nolan’s claim against them, upon an account stated by themselves. C. C. art. 2205. Maxwell v. Collier, 5 R. R. 87. But they have not plead compensation ; and the law requires that it should bo pleaded specially. C. P. 367.
    It may be, too, that the mill and engine were not completed in time, and that Nolan actually sustained the great losses of which he complains in his letter of 29th December, 1846. But these are matters to be inquired of between Nolan, and Goodloe, not between Nolan and Shaw 4' Co. If Goodloe has any claim against Nolan, let him sue for it in Nolan’s parish, where he has a right to have it litigated, where the work was done, and where the witnesses live ; and then, and there perhaps, upon a proper issue, Nolan will be able to show that he is entitled to recover heavy damages for the failure of Goodloe’s work. Shaw Sf Co. were advised by Nolan’s letter, that there was a difficulty in the settlement to be made with Goodloe, and they promised not to interfere in that difficulty. What right had they afterwards to interpose and by their officiousness to preclude Nolan's claim for damages ; to change the forum from Nolan's domicil to their own; and to compel him to occupy the position of plaintiff in an action against themselves, instead of that of defendant and plaintiff1 in reconvention in a suit with Goodloe ?

    If there are any outstanding balances between Shaw Sf Co. and Goodloe, let the parties interested adjust them. So far as Nolan is concerned, he claims, as a right which he is not willing to relinquish, and which he confi'denlly asks at the hands of this court, that he may be permitted to settle with his creditors in his own way, not through the self-constituted agency of John R. Shaw Sf Co., or of any other person who may assume to dispose of his money at pleasure. If any express authority or implied power to settle with Goodloe ever existed, it was revoked by Nolan’s letter of 29th December, 1846, nearly three months before the pretended pnyment. The truth and real position of (he matter is just this: Shaw Sf Co., as factors and commission merchants, sold Nolan’s crops and received the proceeds, part of which they retain and refuse to pay over, upon a pretext which has no legal foundation, and which is entitled to no consideration in an equitable point of view. C. C. art. 2927. The money in their hands still belongs to Nolan, and has been unjustly withheld for nearly four years; and he only asks, that his own may be awarded to him, with interest, as provided by article 2984 of the Civil Code, to which, his counsel respectfully submits, he is most righteously entitled.

      Hunton and Bradford, for defendants, contended:

      John R. Shaw Sf Co. of New Orleans, having been for many years the general agents and factors of John Nolan, a planter of West Baton Rouge, were, in the year 1845, authorized by Nolan to contract with James Goodloe for the erection of a sugar mill and engine, of specified dimensions, on the plantation of said Nolan. The specifications were furnished by Nolan himself, and Shaw Co. having been authorized by Goodloe, committed the contract to writing, acting in that behalf, as the agent of both parties. The contract was faithfully executed and fulfilled by Goodloe. He did erect the mill and machinery according to the contract: the same was accepted by Nolan. The testimony as to Goodloe’s compliance with the contract is full and complete. By the terms of the contract, the mill and machinery were to be paid1 for in the month of March, 1847.
    About the 1st January, 1847, the defendants received from Nolan a letter informing them, that the machinery was not made according to the contract; instructing Shaw S¡- Co., his agents, not to pay anything to Goodloe on accountof it. Shaw Co. replied, that they regretted his difficulty with Goodloe, and assured him, that they would pay nothing to Goodloe on account of said contract. Their letter is dated 2d January, 1847. Notwithstanding the positive instructions of tlieir principal, Nolan, to Shaw Sf Co., they, having satisfied themselves that Goodloe had in fact performed his contract with Nolan in good faith, and believing that he was justly entitled to demand from them, as agents of Nolan, payment for the said mill* and machinery, on the 23d of March, 1847, by an arrangement with Goodloe, did settle, extinguish and satisfy his demand against Nolan, on account of the erection of the said mill and engine, under the contract aforesaid.
    This settlement was not made by an actual payment in money, made at the time to Goodloe, but in the following manner: The said Shaw ¡0$ Co. being the agents as aforesaid of Goodloe, had, on the faith of this contract withíNWara, and of other contracts of like nature with.other persons, accepted, prior to March, 1847, the drafts of Goodloe to an amount exceeding the demand of Goodloe against Nolan on account of said mill, and on the 23d day of March, 1847, satisfied and discharged Nolan’s liability to Goodloe, by crediting the said Goodloe with the amount of §7267 43, and charging the same to Nolan.

    About the facts in this case there is no dispute. It is proved, that Shaw 8f Co., in contracting for the machinery, &c., acted as the agents of Nolan. It is in proof, that the mill and machinery, as contracted for, was erected by Goodloe in a good and workmanlike manner, and that after it was actually in operation Nolan expressed himself well satisfied with it. It is proved that, John li. Shaw ^1 Co., as Nolan’s agent, -paid for the mill, See., as hereinbefore mentioned, in violation of his principal’s instructions. And now, it is admitted, that in consequence of this violation, he is responsible to Nolan for any damages or loss he may have sustained thereby.
    The only question in the case is as to the measure of damages. In all cases of neglect of duty or disobedience of orders or instructions,'it is a presumption of law that the agent is responsible in damages. If the principal has incurred any loss in consequence thereof, the agent is bound to repair it; if he has sustained none, it is “ damnum absque injuria,” and the agent cannot be held responsible. There can be no other rule as to damages, and upon this point all the authorities are agreed. See Story on Agency, c. 8, s. 217; c. 9, s. 236.
    . Sedgwick on the Measure of Damages, c. 12, p. 347 and 348. Dunlap’s Paley’s Agency.
    The court is also referred to the case of Walker el al. v. Smith, 1 Wash. C. C. Rep., 153. In this case a merchant sent to his agent a package of goods with instructions to deliver it to the purchaser only upon condition of actual payment or of his giving security. The package was delivered by the agent without his receiving payment or taking security. The purchaser proved insolvent and the agent was sued. The court say in rendering judgment that the amount in controversy was small, but that they wish to establish a precedent, and instructed the jury that the measure of damages was (not the value of the package, but) the injury which plaintiff had sustained; and the jury returned a verdict for an amount considerably less than the value of the package ; and though in this case, it would seem, that the injury to plaintiff was only to be compensated by giving him the value of the package, yet the court, in instructing the jury, wished to avow the general principle, that the measure of damages is the injury done. As to the question raised by defendant, whether Shaw has in fact made a payment, we think there can be no doubt. Goodloe was indebted to Shaw Sf Co. in an amount exceeding his claim upon Nolan. Shaw, in crediting Goodloe with §7,267 43, and charging the same to Nolan, extinguished Goodloe’s debt -pro tanto, and in effect paid that amount to Goodloe for Nolan, See. Pothier, Cont.ratde Mandat., chap. 3, Nos. 71, 73,

      Assuming then, that Shaw has paid for the mil], &c., according to the terms of the contract, which he, as agent for Nolan, made with Goodloe, though in violation of the instructions of his principal, and testing his responsibility by the rules above referred to, what should be the judgment in this case ? Assuredly, we think, for defendants. The proof is clear that the work was done in the manner agreed; that Nolan received it; was satisfied with it in the fall of 1846 : that the engine worked well; and the consequence follows, that Nolan, in justice, ought to have paid for it. What loss, what injury has he incurred by defendants’ act? The only loss is that which some men imagine they have sustained whenever they pay out monies, even though in discharge of their just debts.
    The depositions of McQuiUcin and of Shaw, prove that J. R. Shaw 8f Co. had for many years acted as the general and special agents of Nolan, 1o contract and pay debts, &c. The account rendered by Shaw to Nolan, and approved and settled by the latter, with the exception of the items in controversy in this suit, shows that Shaw was in the habit of paying debts tor Nolan without his express order in every particular case; and this court should,'therefore, infer an authority to do so. And when Shaw, relying upon that general authority and the previous course of dealing between himself and his principal, had made advances to Goodloe upon the faith of his principal’s integrity and honesty, we think he should be protected therein.
    And what would be the effect of an affirmance of the judgment now sought to be reversed ? Shaw has paid Goodloe for the engine he, as agent, contracted for. Paying, as agent, he could never recover the amount so paid from Goodloe, and if this judgment be affirmed, he must inevitably lose $7267 43. The contract of piandate, under which this contract arises, is one which should be construed, as Merlin says, according to the principles of jus gentium, or of natural justice and equity. Good faith on the part of Shaw required that he should see that Goodloe was paid for the work he had faithfully performed at his instance; and now that he has paid that which his principal should have done, he ought, in justice and equity, to be kept harmless, and his conduct approved.
   The judges being equally divided in opinion, the judgment of the lower court was affirmed.

Slidell, J.

The petition in this case alleges that the defendants, in the capacity of factors and commission merchants, received for the plaintiff’s account, at different times, various sums of money, and so became indebted to him in the gross sum of $14,554 23, as shown by an account current rendered by them. That in said account he is improperly charged with certain payments, made by the defendants without his authority or consent. The suit is brought to recover the amount of funds in the factors’ hands, exclusive of these payments.

The defendants answered by a general denial of any indebtedness to the plaintiff ; and alleged that, as his general agents and factors, they had in all respects faithfully performed their duty, and accounted to plaintiff.

The district judge gave judgment in favor of the plaintiff, and the defendants have appealed.

The following facts are presented by the evidence : The plaintiff was a sugar planter, living upon his estate in the country, and the defendants were his commission merchants at New Orleans. They were at the same time agents of Goodloe, an engine builder living at Cincinnati. In November, 1845, the defendants, acting as the agents of Nolan and of Goodloe, made a contract, which they signed for both principals, for the building and putting up of a sugar mill and engine for Nolan. The agreed price was to be paid by Nolan to Goodloe, in March, 1847. Whatever irregularity there may have been in a' contract thus made by the same agent for two principals is immaterial, as both subsequently assented' to the contract. Shaw Co. contracted no personal liability, at the time, to Goodloe, for the payment. On the 29th December, 1846, Nolan, who then had a large amount in the hands of his factors, addressed them a letter, • expressing his dissatisfaction with the machinery furnished by Goodloe, and directing them to pay him no money whatever on his account. To this letter Shaw Co. replied on the 2d January, 1847, as follows : “Your favor of the 29th December, is received, and we note contents. We regret very much that you and Mr. Goodloe should have any difficulty in settling your business. We will settle nothing without your orders. It has always been our custom to-pay out money for no one without orders.” The letter then states that a claim for fifty dollars had been presented by a creditor of Nolan, and asks whether it shall be paid. At this time, Shaw Co. do not appear’ to have been under any obligations to Goodloe, as guarantors, or otherwise, for the price of the machinery. If such had been the case, they had a fair opportunity of showing it by their clerk, whow as a witness for them in the cause, or in their answers to interroga-, lories put to them by the plaintiffs. Subsequently, however, as may be fairly inferred, they accepted drafts drawn upon them by Goodloe, on account of various contracts, including that with Nolan; and on the 18lh March, 1847, Goodloe was the debtor of Shaw Co. in an amount exceeding that stipulated between Nolan and Goodloe for the machinery. Thereupon, Shaw Co. paid themselves the debt due by Goodloe, by debiting Nolan in account current with $7267 43, and crediting Goodloe in his account with that sum. In the account with Nolan, this item is stated as follows : March 23, 1850. To cost of sugar mill and engine, as per contract with James Goodloe, 86250 00: amount of extra work per bill furnished, $1017 43 — $7267 43. The relations of factor and principal still continued as usual, between the plaintiff and defendants, after the order not to pay to Goodloe, and the promise by Shaw 4’ Co. to act accordingly. Further monies were received by them for account of Nolan, and disbursements made upon his drafts, or in payment of plantation supplies, &c. On the 21st June, 1847, they rendered their account current, in which he was charged with the amount of $7267 43, in the manner above stated, this being the first advice given of the payment.

It further appears by testimony offered by the defendants, and to the introduction of which the plaintiff excepted, that the machinery was constructed and erected on Nolan’s plantation by Goodloe, in a good and workmanlike manner, and in conformity with the contract, and that it worked well, except some occasional breaking, which the witness, an engineer employed by Goodloe, says was not uncommon. Some repairs and changes were made by the wjtness after the first grinding season was over (1846) without charge by Goodloe. These consisted in putting in wheels that had been broken. The witness adds, however, that Nolan was always complaining about the machinery.

It is very material to observe, in ascertaining the rights of these parties, that at the time when the order not to pay Goodloe was given by Nolan, Shaw Sf Co. had not incurred any liablity whatever to Goodloe, growing out of the contract for the machineiy. They had not guaranteed the payment to be made by Nolan, nor entered into any engagement with Goodloe, which would have given him a right of action against them. The payment, therefore, must be considered as having been made in violation of the order of their principal and of their promise to obey that order, and in furtherance of their own interests originating after the order was given. We will assume, for the purposes of the present inquiry, that the debt so paid was justly due by Nolan to Goodloe.

The question thus pi’esented is substantially one of the light of compensation. I owe you, says the defendants, the proceeds of your crops placed in my hands for sale, but you owe me a debt which was justly due by you to Goodloe, whose rights against your orders and in furtherance of my own interest, I have acquired by paying him. Is a factor permitted to make such a defence ?

The relation between factor and principal is not the ordinary relation of debtor and creditor. It is a relation of trust and confidence. It creates a contract in the nature of what is known to the civil law as the irregular1 deposit. See Bludworth v. Jacobs, 2d Ann. 28. In the absence of an agreement to the contrary, the factor is to be considered as undertaking to hold the funds confided to him by his principal, subject to his order, and to be ready to pay them over to him upon demand, deducting only his own charges and advances made in the course and within the scope of his employment. In the present case, there was superadded to the implied agreement to hold Nolan's funds subject to his order, a positive promise not to use them in paying Goodloe.

Now, according to the spirit of our code and the principles of the civil law from which it is derived, compensation does not take place against a party who has confided his funds to another under such circumstances, C. C. 2207 and 2927. Compensation must rest upon the basis of good faith. It. is not permitted where its operation would involve a deception and a disappointment of the just expectation and confidence of the party against whom it is set up. Hence, if a creditor should buy goods at the shop of his debtor in such a manner as to hold out the idea that he would pay for them in cash; and after receiving the goods should propose a set off, his conduct would be considered as not in good faith and compensation, would not be allowed. Pardes.sus, Droit Commercial, vol. 2, No. 325. So it would be with one who, under representation of a pressing exigency, and a promise of an early repayment, should borrow money of another, and refuse afterwards to pay upon the ground that the lender was his debtor. Such artifices, says Mr. Pardessus, are unworthy of the good faith of commerce. Ib. See also Merlin Rep. verbo Compensation, ss. 2.

In the examination I have made of the English commentators on commercial law, I have found no case which countenances the pretensions of the defendant.

Mr. Russell, in his Treatise on Fnctors, states it to be an incontestable principle of mercantile law, that where a party orders his agent to pay money to a third person, but afterwards, before the money is paid or passed into account, countermands such order, the agent, paying after such countermand, must be deemed to have made the payment wrongfully, and will not be entitled to charge the sum in account against his principal. Russell on Factors, 170.

In Child v. Maley, 8 Tenn. 610, cited by Mr. Paley in his Treatise on Agency, 110, it was held, that if the principal refuse payment upon a contract made by means of the agent, and the agent not being himself liable, but for the sake of his own character, which would be affected by the discredit of the principal, choose to pay the money himself, he cannot recover it; though the principal might himself have been compelled to pay it in the first instance.

It is in vain for the defendants to say, that the debt which he has paid for Nolan to Goodloe was a just debt; Nolan thought, or professed to think, it was not. He could have withdrawn his funds out of his factor’s hands, if he had chosen, for aught that appears to the contrary. He left them there and permitted them to accumulate under the express promise that they should not be used to pay Goodloe. The payment was a breach of the confidence reposed, and the defendants cannot profit by their own wrong. They must pay over to the plaintiff, upon his demand, the funds entrusted to them, and bring their separate action upon Goodloe's claim, as Goodloe would have been, obliged to do if they had not thought proper, by paying him, to take his place.

We all concur in the opinion of the the district judge as to the other disputed items.

The court being equally divided in opinion, judgment of the district court stands affirmed, with costs.

Preston, J.

I concur in the foregoing opinion delivered by Judge Slidell.

Eustis, C. J.

Concurring with Mr. Justice Shidell in his statement of the facts of this case and with his view of the law of principal and factor, there are circumstances in it which prevent my assent to his conclusion as to the rights of the respective parties. I consider the law on that subject as correctly expounded by this court in Bludworth’s case; and if I was conscious that my view in this case conflicted in the slightest degree with what was decided in that case, I should mistrust their soundness and refrain from urging them.

In my inquiry as to the legal rights of these parties I assume, for the sake of argument at the commencement, that at the time of the payment of the debt for the engine by Shaw Co. to Goodloe, it was a just and subsisting debt due by Nolan, and that, by the payment the debt has been discharged; so that Nolan owes Goodloe nothing, and Goodloe can in nocourtrecover any thing from Nolan; and unless he is bound to pay Shaw Sf Co. for the engine he gets it for nothing. A case is thus presented which is so repugnant to the most ordinary sense of justice, that the mere statement of it carries refutation with it. Shaw &f Co. then can recover back from Nolan the amount of the debt which they have thus extinguished, and ofwhich extinguishment he has had and continues to havethe benefit, and they can recover on the strictest principles of law. I do not consider that the right of Shaw Sf Co. to recover this money back is at all affected by the mode in which the paymentwas made by them. They were the general agents of Goodloe, and Goodloe was their debtor; the payment was made by giving Goodloe credit for the amount in account; Nolan has nothing to do with this mode of extinguishing the debt; Goodloe does not object to it; the debt is paid ; and between Shaw S¡• Co. and Goodloe the affair it must be conceded is strictly mercantile and correct. Shaio 4' Co. at the time were under no engagements towards Goodloe on account of the mill &c. The payment was made in direct violation of Nolan’s orders, but it is not pretended that Goodloe at the time was insolvent or in questionable credit. Pothier in commenting on the law si quis volente, code lib 2, tit xix de negotiis gestis, leg. 24th, in which the opinion of Paulus & Pomponius is confirmed, that a person acquires no right of action for indemnity against one whose business he has interfered with against his prohibition and will, states that the reason of this decision of Justinian is founded on the peculiar nature of the quasi contract, egotiorum, gestorum, that this contract cannot be pre-supposed where the principal forbids the action of the person, and consequently the action contraria negotiorum gestorum will not lie against the person whose business has been done against his directions, and he then adds. He who has transacted the business of another against his formal prohibition, not having, according to the principles we have laid down, the action contraria negotiorum gestorum to recover his expenses laid out in the business, ought he to lose them when the person whose business has been transacted has had the benefit of the expenditures? I have, for example, become security for a debt of your’s against your orders; I have not the action contraria negotiorum gestorum against you for the recovery of what I have been obliged to pay for you, because I acted in violation of your orders; but ought I to lose the sum which I have paid for your benefit, and which has procured to you the release from your debt? Pothier asks if this would not be repugnant to equity, which permits no -man to be enriched to the detriment of a third person, and which gives the party his action in factum, which action is allowed quoties alia actio deficit. The doctors of the Roman l.aw are divided on this subject; but in the jurisprudence of France, in which the names of action are not heeded, and equity itself is sufficient to produce an obligation and ground of action, there is less difficulty. This action, which is given in cases where the business of one is transacted against his orders, does not give to the party the rights of the negotiorum gesta: he can only recover of the sums which he has expended those which have inured to the benefit of the principal.

Under the Spanish law the rule appears to be to the same effect. Any one may pay a debt for the debtor, without his authority or mandate, although he be ignorant of it or know it or forbid it, and the creditor is bound to receive it and by these means the debtor is discharged according to a text of the Partidas, and he who has made the payment may recover the amount of the debt from the debtor, provided the debt be justly due and that he was necessarily obliged to pay it, according to a text, since the payment was for his benefit, he having been released from the debt according to another text. Curia Phillipica, verbo Paga, fol. 383, § 84. The texts referred to are texts of the Roman law, which it is not necessary to examine after having the opinion of Pothier on the subject.

Our code provides that an obligation may be discharged by any person concerned in it, such as a co-obligeo or security. The obligation may even be discharged by a third person, provided that person act in the name and for the discharge of the debtor, or that if he act in his own name he be not subrogated to the rights of the creditor. Art. 2130.

This article is the 1256th article of the Napoleon Code. It is curious that the same question which divided the Roman jurisconsults has been renewed with increased vigor and zeal by the commentator on the Napoleon Code. Toullier repudiates the construction which Pothier has given to the decision of Justinian, si quis volente. This was one of the fifty decisions given by the Emperor himself on disputed questions of jurisprudence, which refuses an action to a person who has laid out money for another against his orders. This distinguished author considers the decision as conformable to justice and the principles of law, and that it ought to be followed in the jurisprudence of the code.

Troplong has since reviewed the whole controversy and has come to the conclusion that the erroron both sides consists in the too great generality of the rule which eaclr party maintains, and tbatthere are certain cases in which this action must be allowed to a party who has laid out money for the benefit of another, even against his positive orders, by which the latter has profited ; 'but the action is only allowed to the extent of the benefit really accruing to him. 11 Toullier, Droit Civil, § 55. Troplong, Mandat, § 70 to § 86.

1 assumed the justness of the debt which Shaw Co. paid for Nolan, for the sake of argument. I now state that, in my opinion, the justness of the debt is proved beyond all question, and that Nolan had no right whatever to withhold or delay the payment; and that according to the principles of law the claim of Shaw 8f Co. against Nolan for reimbursement, is as clear and unquestionable ns Nolan’s right to recover from his factors Shaw 4- Co., the balance of his .account. On looking into such authorities as are at present within my reach, I ought not omit to cite two cases which I consider as justifying the views I have taken of this case: that of Duncan v. Hampton 6. N. S. 22. and of Child v. Morley, 4. Durnford & East. 611. In the first case, Duncan had paid certain Botes drawn by Hampton, under a direct and immediate influence, occasioned by his endorsement of the notes which had been executed in virtue of a void transaction. Hampton had forbid the payment of the notes; but as the payment had inured to his benefit, he was held to be bound to refund the account to Duncan’s executor’s.

I do not understand the case of Child v. Morley as deciding the principle stated in the treatise of Mr. Paley. I understand the Court of King’s Bench only to have decided that the party, under the circumstances stated, could not recover in the action of assumpsit. Indeed, that case appears to presentthe same question as that arising under the Roman and French jurisprudence, and to have been determined not on the principle of right but on the form of action in which the party sought his relief.

In Child v. Morley, it was determined, that a broker who contracts with others for the sale of stock at a future day by the authority of his principal, who afterwards refuses to make good the bargain, cannot, by paying the difference to such third persons, maintain an action on an implied assumpsit against his principal for the amount. This case had been tried before Lord Kenyon, who permitted a verdict to be taken for the plaintiff, and, on giving his opinion in the Court of King’s Bench on a rule taken to set aside the verdict, expressly placed his decision against the validity of the verdict on the form of action, which was that of assumpsit, in which the plaintiff had presented his case. His Lordship observed, “nothing can be more unjust than the defence which has been set up to the whole of this demand; and that consideration may, at first view of the case, have tended to warp my judgment. But I cannot perceive what benefit the defendant can propose to himself by such conduct; for the court have no doubt but that, at all events, the verdict must stand for the ¿£12 10s., the amount of the plaintiff’s commission as broker, under the count for work and labor; and, I think, that some method or other will be found for making the defendant pay the amount of the difference which the plaintiff has honorably settled on account of his principal’s not making good his engagement. But, as to that part of the demand, there is a difficulty in the form of action; and, perhaps, it would have been better framed ex delicto than ex contractu. I admit that no man can, by a voluntary payment of the debt of another, make himself that man’s creditor, and recover from him the amount of the debt so paid; but what pressed on my mind was, that the plaintiff was under some sort of compulsion to pay the differences.” In conclusion, he says, “ considering the difficulties of the case in its present shape, as to the sum recovered for the differences, I think it would be better to frame another action for this part of the demand better adapted to the nature of the case.”

Chancellor Kent, who appears thoroughly to have examined this subject, states the rule to be this: If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be under the pressure of a situation in which one party was involved by the other’s breach of faith. My opinion is, that the refusal of Nolan to pay for this engine was a breach of good faith; and that the promise of Shaw 8f Co. not to pay Goodloe, being made on the misrepresentations of Nolan to them, was not binding; and that, under the subsisting relation between all the parties, Shaw is entitled to recover the debt which he has paid, it having inured exclusively to the benefit of Nolan.

If we could determine on these cross claims, my impression is, thatwe would not allow Nolan to receive from Shaw fy Co. the whole of his debt. Frustra, pelis quod nux restiturus erit. We would, in determining Nolan’s debt to Shaw Sf Co. for the engine to be justly due, allow Shaw 8f Co. to retain the amount in compensation or extinguishment of their debt; that is, would set off one judgment against the other. I say, we would, I think, be bound thus to adjust the differences between these parties, had Shaw &f Co. presented their claims in a proper reconventional demand. Under the rules of the Code of Practice, art. 329, 374, et seq., I think the connection of Shaw 8f Co.’s claim with the principal demand of Nolan is sufficiently evident to authorize the recovery of their debt by way of reconvention. If such would be the result under proper pleadings, what is the proper course to be pursued as the case is now before us.

My brethren, who have come to the conclusion that Shaw 8f Co. are without remedy in the present suit, consider that the payment made by them cannot be set up as a defence or in compensation to the plaintiff’s action according to the principles of law. Even conceding, for argument sake, that opinion to be correct, I cannot concur in the conclusion that Shaw 8¡- Co. are not entitled to relief from our hands. Under this view of the subject, I assume that Shaw Co. were bound to set up their claim against Nolan for the amount paid Goodlot in a reconventional demand. They have not done so, but alleged it as a matter of defence to the plaintiff’s action; and under this allegation, evidence, establishing the justness of the debt due by Nolan, was received by the court. To the admission of the evidence a bill of exceptions was taken, but I do not think it is properly taken according to the rules of practice, by reason of its vagueness. Here we have both parties at fault, and as, from the evidence before me, I come to the conclusion in favor of the equity of Shaw 8f Co.’s claim, I think the case ought to be remanded for further proceedings, with the privilege of the defendants to file their claim in reconvention; and that the amount thereof stand for so much in satisfaction of the plaintiff’s judgment, the execution of which ought to be suspended until the said reconventional demand be adjudicated upon.

The difference between us resolves itself into a mere question of practice, apparently of little moment, but probably the cause of all this difficulty between these parlies. Nolan seeks one of the courts of Shaw Sf Co.’s domicil to exact the amount due by them as his factors ; but to their demand against him offers to them, as he did to Goodlot, the recourse against him at his domicil in the parish of West Baton Rouge. As I think the demands are connected with each other, and dependant on the relations of Shaw Sf Co., not only as Nolan’s factor, but as agents of both Nolan and Goodlot; and as the factors of the latter, I think Nolan, under our system of laws, is bound to litigate the whole matter before the tribunal which he has selected.

Rost, J.

The claim set up by the defendants against the plaintiff being due, it appears to me that the case presents a mere question of practice.

The plaintiff resides in the parish of West Baton Rouge, and defendants in the Parish of Orleans. An act of the Legislature, amendatory of art. 375 of the Code of Practice, provides that when the parties to a suit reside in different parishes the defendant may reconvene for any cause whatever. Session Acts, 1839, p. 164.

Piad this plea been made below, it is clear that the district judge would have been bound to entertain it. The defendants pleaded compensation; and the only question which divides the court is, whether the case shall be remanded to enable the defendants to amend. I think this a proper case for the exercise of the power vested in us, to remand cases when justice requires it.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Henry L. Dorsett et al. v. William M. Lambeth et al.
    A. died in 1832, leaving by will five thousand dollars to be invested, the interest of which was to be paid to Miss L. during her lifetime only; and gave to B. and his heirs the balance of bis estate. B. died in 1833, and gave by will his interest in the above legacy after the death of Miss L. to the children of two of his friends. Miss L. died in 1843. Held: That the bequest to Miss L. constituted an usufruct only in her behalf, the naked property being in B. That the bequest of B. to the children of his friends, to take effect after the death of Miss L. was valid, and that the property did not go to his legal heirs.
    An obligation in solido is not to be presumed ; but the rule ceases where such an obligation takes place by virtue of the provisions of law.
    Where the debt is one that draws interest, the principal is hound to pay interest; hut if the surety has signed a bond for the debt merely, he is not hound for the interest, except from the time he has been put in default.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      TJplon and Rozier, for plaintiffs.

      Mo'ise and Randolph, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs, who are the children and heirs at law of the late Walter H. Dorsett and John W. Reel, of the State of Missouri, allege, that in the right of their respective parents, they have a right to a certain legacy in the last will of the late Philip Taylor, who departed this life in the city of St. Louis, State of Missouri, in the year 1833, of which State he was at the time an inhabitant. By this will, it is provided, among other things, as follows ■: ‘‘ I desire that the legacy of five thousand dollars, left by my late brother A. R. Taylor to Miss Ann T. Lowry, which is to revert to my brother’s estate, be equally divided between the children of my two friends, Walter II. Dorsett, of St. Louis county, and John W. Reel, of the city of St. Louis and State of Missouri, and if they, or either of them, should die childless, their proportion, say twenty-five hundred dollars, to revert to my estate.”

The legacy thus disposed of is to this effect: “6. I desire that an investment of five thousand dollars be also made in some safe stock, the interest of which to be paid to Miss Ann T. Lowry, who was raised in my father’s family, of Virginia, during her lifetime only; after her death, the said sum of five thousand dollars to revert to my estate.”

The first inquiry is as to tire interest which Philip Taylor had in this legacy, which he undertook to vest in Dorsett and Reel by his last will.

Archibald R. Taylor died in 1832, and Miss Lowry died on the 30th of October, 1843; and it is contended that Philip Taylor had no disposable interest in the legacy at the time of making his will. '

Philip Taylor was the residuary legatee of his brother, A. R. Taylor. By an additional clause of the will of A. R. Taylor, all doubt on this subject appears to us to be removed; it is to this effect: “I am induced to add, that my executors may, with the consent of my brother, and other parties to the fourth, fifth and sixth legacies, free themselves of the annual trouble of remitting the interest and dividends, and thereby enable them to make a speedy close of their executorship, pay over the legacies to the parties beneficially interested therein within the year after they qualify.”

We concur with the district judge in the opinion, that these testamentary-dispositions constitute a legacy of the usufruct of a sum of money to Miss Lowry, and of the naked property to Philip Taylor.

It has been contended, in argument, that on the termination of the interest of Miss Lowry, the sum disposed of by the legacy vested in the heirs at law of A. R. 'Taylor, and not in his residuary legatee. By the will, the testator gave to his brother $20,000 over and above any balance which might stand against him on the books of the testator at the time of his death; and in the clause constituting his brother his residuary legatee, the words are added : “and I give to him and his heirs the balance of my estate.” These words, it is contended, are woi’ds of limitation and exclusive of the sums disposed of by the particular legacies. But we think this construction is in evident conflict with the whole tenor of the will, which leaves, in our mind, no doubt of the intention of the testator. We think, therefore, that the plaintiffs have made out their right to the legacy of $5000 in the will of A. R. Taylor.

This case was once before this court, and is reported in 3d Ann. 711. It was on an appeal taken by Lambeth, who was the dative executor of Philip Taylor, from a judgment by which that succession was held liable to pay this legacy; but in that case we held, that as the amount had never been received in the succession of Philip Taylor, the remedy of the parties was against Lambeth, in whose hands it had been retained. The present suit is against Lambeth and his surety for the recovery of the amount, and the appeal is taken from the judgment by which they had been held liable. The heirs at law of Philip Taylor have also taken an appeal from a judgment adverse to their claims.

It appears that the investment of this sum of $5000 in stock, as required by the will, was not made by the executors of A. R. Taylor, but the amount was retained by them; one of them, Lambeth, gave his bond to the administrators of the estate of Philip Taylor, appointed in Missouri, with Charles A. Jacobs as his security, under which the money has been permitted to remain in his hands. The bond is to this effect: “Know all men by these presents, that we, William M. Lambeth and Charles A. Jacobs, are held and firmly bound unto John W. Reel and Rengrose D. Watson, in the sum of five thousand dollars, for the payment of which we bind ourselves, our heirs, executors and administrators. Witness our hands and seals, this 5th day of March, 1835. The consideration of the above obligation is such: that whereas, William M. Lambeth has received of John W. Reel and Rengrose D. Watson, administrators of Philip Taylor, deceased, the sum of five thousand dollars, the interest of which was left as a legacy to Ann T. Lowry, of Fredericksburg, Virginia, by A. R. Taylor, deceased, and at her death to revert to his estate; now, if the said William M. Lambeth, at the death of Ann T. Lowry, pays over the above sum of five thousand dollars, according to the provisions of the will of Philip Taylor, then this obligation is to be null and void; otherwise to remain in full force.”

The district judge considered, that by the terms of the bond Jacobs was only liable for one half the amount thereof, and limited his responsibility to the sum of $2500. He condemned both the parties of the bond to pay interest from the 30th October, 1843, the day on which the right to claim interest by Miss Lowry terminated with her life.

The money in the hands of Lambeth constituted a debt which bore interest, and we are at a loss for any principle on which he can be exempted from paying any portion of it. Jacobs, by the terms of the bond, only bound himself as surety for the payment of the capital and not the interest; he is only bound to pay interest from the day on which he was put in default.

We are not able to concur with our learned brother of the district court in the construction he has given of the legal effect of tñis bond. It is true, that an obligation in solido is not presumed, and must be expressly stipulated; but the rule ceases to prevail where an obligation in solido takes place of right by virtue of some provisions of the law. Code, art. 2088.

Where two persons bind themselves to pay a sum of money, each is only bound for his half; but by the contract of suretyship, the obligation on the surety is to satisfy the debt if the debtor does not. Such being the legal character and effect of the contract, where the surety is bound for a portion of the debt only, it ought to be expressed in the contract.

The judgment of the district court, so far as it relates to the heirs at law of Philip Taylor and of Lambeth, is correct, and must be affirmed.

The plaintiffs and appellees, in their answer, have asked for a change of the judgment against Jacobs, holding him for the amount of the bond ; we think they are entitled to the relief prayed for.

The judgment of the district court, dismissing the petition of intervention of the heirs of Philip Taylor and against William M. Lambeth, appellant, is therefore affirmed : the judgment against Charles A. Jacobs is reversed; and it is decreed, that the plaintiffs recover from Charles A. Jacobs, the surety of William M. Lambeth, with interest from 13th November, 1843, the following sums, to wit, Mary L. Massey, the sum of eight hundred and thirty-three dollars and thirty-three cents ; Henry L. Dorsett, the sum of eight hundred and thirty-three dollars and thirty-three cents; William Scott Tyler, the sum of four hundred and sixteen dollars and sixty-six cents; Bazil W. Tyler, the sum of four hundred and sixteen dollars and sixty-six cents; Harriet Vairin Reel, the sum of eight hundred and thirty-three dollars and thirty-three cents; Mary Therese Reel, the sum of eight hundred and thirty-three dollars and thirty-three cents; John W. Reel, the sum of eight hundred and thirty-three dollars and thirty-three cents; together with costs of suit. It is further decreed, that the appellants pay the costs of this appeal.


author: Rost, J. Eustis, C. J.

text:
    Charles Fortier v. Charles F. Zimpel.
    The setting aside an order of seizure and sale, does not affect the petition, and cannot be considered as dismissing the defendant from the jurisdiction of the court; and where, from a change in the territorial jurisdiction of the court, the property to be seized is thrown into the jurisdiction of another court, the plaintiff may, nevertheless, obtain a new order of seizure, and proceed on the petition in the original court.
    Article 2252, O. C., assimilates in all respects the voluntary execution to the confirmation or ratification of contracts ; and where the parties to a sale execute the contract by giving notes for the price and signing a notarial act of sale, they will not be allowed to dispute the authenticity of the act, upon the ground that a certain person had not signed the act who was not a party to the sale, and was to have signed it merely in consequence of a stipulation in favor of the vendor.
    Where the vendor re-purchases property sold under an order of seizure and sale for the price, and the re-purchase is set aside on account of defects in the order of seizure, the possession which the vendor had under the void sale does not prevent his claiming interest on the original price.
    The sheriff’s return is prima facie evidence that the forms of law as to seizure, notice, appraisements and sale, have been complied with. If the return be untrue, the errors it contains should be specially set forth and shown.

      The party making opposition to a monition is to all legal intents the plaintiff, and must substantiate his allegations by proof.
    Proceedings on an order of seizure and sale which are litigated by the defendant, suspend prescription.
    A third person cannot stand injudgment for the purpose of avoiding a judicial sale on account of informalities, of which the judgment debtor does not complain, without showing he has been injured by it, and without securing both the debtor and the seizing creditor against any loss which may result to them in consequence of the proceeding.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Benjamin and Micou, for appellant.

      E. A. Bradford and T. A. Clarke, for appellee.
   The judgment of the court (Slidell, J. recusing himself on account of relationship,) was pronounced by

Rost, J.

The plaintiff has appealed from a judgment sustaining the opposition of John Slidell in a monitory proceeding. The material facts of the case are as follows: The plaintiff sold a tract of land to the defendant, Zimpd, for one hundred and thirty thousand dollars — twenty thousand dollars cash, and the balance in fourteen notes, endorsed by the opponent and others, each note having but one endorser. Those notes bore interest at the rate of ten per cent per annum from maturity till paid, and it was stipulated by the endorsers in the act of sale, that they should not by payment acquire the right of seizing and selling the property, and that they should not exercise the rights resulting from such payment before the vendor or his assigns had received in full the price stipulated, and interest. The act of sale was not signed by one of the endorsers.

The plaintiff applied to the First Judicial District Court, in 1838, for an order of seizure and sale, alleging himself te be the holder of all the notes given him, except the two notes at one year, endorsed by John Slidell and Seaman Field, which had been paid at maturity. The petition also alleged, that Zimpel was absent from the State, and represented by Frederick Frey, his attorney in fact.

The first writ of seizure and sale issued on this petition was stayed by order of the plaintiff’s attorney, and, on motion, the court issued an alias writ of seizure and sale, under which the plaintiff became the purchaser, for forty-five thousand five hundred dollars. The plaintiff applied for a monition, to which the opponent made opposition on various grounds; this opposition was dismissed in the court below, but on appeal, the judgment was reversed, and the case remanded for further proceedings. 5 R. R. 180.

On the second trial, the district court sustained the opposition, and annulled the sale, on the ground that the writ had issued for a larger amount than was really due.

The plaintiff acquiesced in the judgment, and considering the original petition as still in court, applied by a supplemental petition, in 1846, for a pluries writ, which was granted, and the property was sold a second time, to satisfy the balance due and interest, when the plaintiff became the purchaser for the price of nine thousand four hundred dollars. A monition was issued on this sale, and John Slidell made opposition to it. This appeal is taken from the judgment sustaining that opposition.

The first ground of opposition is, that the court is without jurisdiction, because the property is situated out of the parish of Orleans. This, we consider, to be a question of practice, and as such, resting on authority.

In the case of Ursuline Nuns v. Depassau, 2 N. S. 646, it was held, that the setting aside of an order of seizure did not affect the petition, and could not be considered as dismissing the defendant. The same doctrine is recognized in the cases of Uarrod v. Voorhies, 16 L. R. 256. Mader v. Fox, 15 L. R. 132.

It is contended, in behalf of the opponent, that these cases differ in essential particulars from the present; that the power of the court was not contested there: the only question was as to the mode in which that acknowledged power could be exercised.

We do not perceive the distinction. If under these decisions, the petition is held to have been still in court, after the judgment setting aside the sale, the law organizing the judiciary under the New Constitution, conferred upon the Fifth District Court in relation to it, the jurisdiction of the former Court of the First Judicial District. The power of the court, on that hypothesis, cannot be drawn into question, and the plaintiff had the right to amend his petition so as to show the precise amount due, and the installments which had matured.

The rule adopted by our predecessors appears to us founded in reason, and is evidently in furtherance of justice, and we do not feel authorized to depart from it.

The next ground of opposition is, that the act of sale, not having been signed by all the parties to it, remained incomplete, and any one of them might withdraw ; that the act is, therefore not binding, and if it was, it is not authentic, and cannot be the basis of an executory proceeding.

The contract was voluntarily executed by the delivery of the notes, and the taking possession of the property. Article 2252, C. C., assimilates in all respects the voluntary execution to the confirmation or ratification of contracts; and as it cannot be doubted that if all the parties in this case had either confirmed or ratified the contract by a notarial act, in due form, it would have been binding upon them; it became equally binding after their voluntary execution of it. Merlin, Questions de Droit, verbo. Ratification.

Under the principle recognized in McMunus v. Jewett, 6 L. R. 536, the act was authentic, and an order of seizure could issue on it. Thompson, the endorser, who did not sign, was not a party to the sale. The stipulation he was to enter into was for the benefit of the vendor, and had nothing to do with the original contract. As in the case cited, the sale was signed by the vendor and the purchaser, two witnesses, and the notary. It would be carrying technicality too far not to consider it authentic.

Another ground of opposition is, that no interest was due on $45,500, after the date of the first adjudication, it being shown that the plaintiff has been in possession of the premises since that time. The act of sale fixes the rate of interest for which the order of seizure issued, and the possession of the plaintiff since the first adjudication does not affect the contract. He can be viewed in no other light than as the tenant of Zimpel during that time. The claim of the latter on that account is unliquidated, and cannot be compensated with the interest stipulated in the act of sale.

It is further alleged, that the forms of law, as to seizure, notice, appraisements and sale have not been complied with ; the sheriff’s return, showing that they were, is prima facie evidence of the fact. If the return is untrue, the errors it contains should have been specially set forth and shown. The allegations as made are too vague and general to be acted upon. Pargoud v. Guice, Adm'r. 6 L. R., 77. It is also objected, that the monition has not been duly obtained and regularly advertised; and upon this and the preceding ground of opposition it has been argued with great ingenuity that the party applying for' the monition is the real plaintiff; and that, when opposition is made and informalities are alleged, the burthen of proof is upon him, and he must show affirmatively that the opposition is unfounded. We do not so understand the monition law. The object of the Legislature was, to limit to sixty days the time within which judicial sales of real estate might be attacked for defects of form. The monition is a notice to all persons having rights in the property, that they must avail themselves of those defects within that time; and that after that period elapses they shall no longer be heard. Parties making opposition under this law are, to all legal intents, plaintiffs, and must substantiate their allegations by proof. No informality has been shown in the manner of obtaining or of advertising the monition. We dismiss the plea of prescription, with a reference to the case of Stansbury v. McCall, 4th Ann. 322, in which we held that prescription did not attach under a similar state of facts. The other points made are pleas to the merits, which cannot be inquired into in this form of proceeding. Although we have gone fully into the merits of this opposition, we must not be understood as recognizing the doctrine, that any third person may stand in judgment for the purpose of avoiding a judicial sale, on account of informalities of which the judgment debtor does not complain, without showing that he has been injured by it, and without securing both the debtor and the seizing creditor against any loss which may result to them in consequence of the proceeding. Livingston v. White, 2d Ann. 902. Monition of Johnson, 3d Ann. 656. Coiron v. Millaudon, 3d Ann. 664. Sewell v. Payne and Harrison. Stockton v. Downe, Administrator.

The opponent, as one of the endorsers of Zimpel, stipulated in the original contract that he should not, by payment, acquire the right of seizing and selling the property, and that he should not exercise the rights resulting from such payment before the vendor had received in full the principal and interest of the price. He voluntarily executed this contract, and it is binding upon him; as he has not shown that the property was more than sufficient to pay the amount due to the vendor, and the expenses attending a re-sale, it appears to us that he had no interest in it within the meaning of the act of 1834.

For the reason assigned, it is ordered, that the judgment in this case be reversed. It is further ordered, that there be judgment in favor of the purchaser, Charles Fortier, on the opposition filed by John Slidell to the monition, and that the judicial sale referred to in said monition be homologated and confirmed. It is further ordered, that the opponent pay costs in both courts.

Eustis, C. J.

I concur in the decree reversing the judgment of the district court, on the legal principle determined in the case of Copeland v. Labatut, and cases cited, in the opinion of the court. I do not think that a party, unless he shows an interest, as decided in those cases, can object to the forms of proceeding of a judicial sale under the monition act of 1834. That act requires, in express terms, the party making the opposition to have some right to the property which is the subject of the sale. Under the statute, the sale by the sheriff ought to stand confirmed.


author: Perston, J.

text:
    Timoleon Chauviere v. Mrs. Fliege et al.
    Where a community of acquets exists, property purchased, whether by the husband or wife* belongs to the community unless the contrary be proved, (C. 0. 2371,) and the debts contracted daring the marriage, must he acquitted out of the common fund; the wife’s separate property is not liable for them, although she may have given her promissory note, secured by mortgage upon her property, for the payment of such debts. Tobe a public merchant, the wife must carry on a separate trade from her husband. C. C. 128. The separate property of the wife is liable for frauds committed by her.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Grandmont and Preaux, for plaintiff.

      Dufour and Train, for defendant.
   The judgment of the court was pronounced by

Perston, J.

The defendant, Mrs. Fliegé, is sued as the drawer of a promissory note in favor of T. Myers Sy Co., and endorsed to the plaintiff. A special mortgage is claimed upon a lot of ground in New Orleans by virtue of an act of mortgage executed before Barnett, notary public, dated the 9th day of November, 1849.

Mrs. Fliegé, authorized by her husband, answers that her free consent was never given to the execution of the note and mortgage sued upon, and that the mortgage was illegally and fraudulently obtained to secure the payment of goods sold and delivered to her husband, for his own trade, use and profit, no part of which inured to her benefit, and that the debt was contracted by him and not by her.

Pier' counsel invokes the protection of article 2412 of the code, which prescribes, that “the wife whether separated in property by contract or judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.”

It is fully proved that the property mortgaged to secure the note belongs to Mrs. Fliegé and her minor child, and that her undivided portion of the lot is her paraphernal property, and that the note and mortgage was given for merchandise purchased after her marriage with Fliegé.

The marriage of the defendant with Mr. Fliegé superinduced of right a community of acquets between them, as nothing is shown to the contrary. Code, 2369. The property purchased by them belongs to this community, whether purchased by one or both of them, until the contrary is proved; (art. 2371,) and the debts contracted during the marriage must b'e acquitted out of the common fund; (art. 2372) and under this and article 2412 the wife’s separate property is not liable ble for them. For the husband is the master of the community, and, as to movable property belonging to the community, can give it to whom he pleases without the consent of his wife, who has no control over it.

The debt for which the note and mortgage was given in this case was therefore the debt of the husband, and the wife’s separate property is not liable for it, unless something takes it out of these general principles ; because the payee and mortgagees were as well acquainted with our laws on this subject as she was. And if it had been clearly understood that she purchased the goods, for which the note and mortgage was given,' still, according to the very words of the code, they would have been the husband’s goods, and the unpaid price his debt.

A principal ground on which it is attempted to render the defendant liable in this case is, that she was a public merchant, and obligated herself in a matter relating to her trade. This was not expressed in the note or mortgage nor alleged in the pleadings, but was almost the whole point to which the evidence was directed. To be a public merchant, a wife must carry on a separate trade from her husband. Code, article 128. To render her liable for merchandise purchased by her, it should clearly appear by evidence that her business at the time of the purchase was public and separate from her husband.

It it proved that Mrs. Fliegé traded as a merchant while a widow; but the re ■ cord furnishes no evidence that she carried on business at all, much les3 separate from her husband, after her marriage.

It is urged that she purchased the goods, for which the note and mortgage was given, for the purpose of becoming apublic merchant, and if she did not use them for that purpose she committed a fraud upon the vendors, and is therefore liable. The general rule, that the separate property of the wife may be rendered liable for her frauds, is not disputed; but upon the question whether a fraud was committed or not by her, the district judge, after the examination of much testimony, came to a conclusion in her favor, and we cannot say he erred.

A wife should not be so easily subjected to the imputation of fraud for acts done in presence of her husband, as for those over which he had no control: thus, a wife cannot be convicted of a larceny committed jointly with her husband, unless it be clearly shown that she was the instigator of the offence.

The clerk of Myers Co. who, as endorsers of the note, are the real plaintiffs in this case, testifies that Mrs. Fliegé purchased the goods; but he states that Mr. Fliegé. the husband, was present; and the very day they were purchased he made out the account, stating that Mr. Fliegé had bought the goods of 8. Myers Co., and receipted to him for them

The account he gives of this, weakens very much his testimony, as the basis of a charge of fraud against Mrs. Fliegé. He says what induced him to make out the bill as it is made out, was that he did not know whether the goods bought by Mrs. Fliegé were for her own account or for that of her husband, but when he heard afterwards how the transaction was, he forgot to alter it. And yet the only thing tending to criminate Mrs. Fliegé is proved by him alone, and is inconsistent with the above statement: it is, that she declared to Myers at the time the goods were purchased, that she was going to open a store in Bienville street, and that Fliegé said he had nothing to do with the goods. The fact that he heard that Mrs. Fliegé gave a note and mortgage for the goods, may have had an influence on the memory of this witness, of which he is unconscious. He never saw the store on Bienville street, nor Mrs. Fliegé but on this occasion.

It is impossible to charge the wife with the debt, on the ground that she perpetrated a fraud, on such loose and unsatisfactory testimony of a single witness, in the employment of the party interested in establishing it. A little inquiry made by this clerk, or the trouble which Myers took in going with Fliegé and wife to the store of Dunbar S¡• Co., would have satisfied him that she could not be considered a public merchant doing business separate from her husband; and even if, in the superabundance of female conversation, she loosely mentioned that she was going to open a store, under the circumstances, her husband being present, in legal contemplation it would have meant the store of the community, and should have been so understood by those acquainted with our laws. To charge her separately, the bill should have been made out in her name as a public merchant; and pei'haps for their security the vendors should have seen that, as such, she opened the store for herself.

The bill of goods purchased from Dunbar 8f Co., was made out in the same manner as being bought by Monsieur Fliegé; and Mr. Dunbar testifies thathe sold them to a gentleman and lady who came with Mr. Myers, on his acceptance.

Except the statement of Myers' clerk of the declaration of Mrs. Fliegé, as to her future intention which, if rightly recollected, is but weak testimony, and on which he did not act at the time in making out the account of sales, there is to evidence in the record to charge Mrs. Fliegé as a separate purchaser of the goods, or as guilty of a fraud.

Many witnesses were examined, who show that Mr. Fliegé opened and kept the store publicly, and that his wife attended to her-domestic concerns, and never held herself out as a merchant carrying on a business separate from her husband after her marriage.

There is no evidence that the contract or property purchased inured to her separate benefit more than any other community contract or property; and the case cannot be distinguished from the long list of cases in which creditors have, unsuccessfully, attacked wives in community on their contracts, commencing with our earliest reports and ending with some decisions during the last year which are not even yet reported. See. 7 O. S. 484 ; and the case of Count de Gaalon v. Mrs Girod—not yet reported.

That the defendant gave her note and mortgage to setup her husband in business, he having none, there is no doubt; and having been in the same line of business before her marriage, she aided him with her experience in making purchases. Our laws presume the marital influences which produce such contracts. It is exercised in private; neither husband nor wife ever proclaim it. The articles of the code for the protection of the wife, are based entirely on the presumption of its existence without proof. The business of her husband having proved unfortunate, the wife has chosen to avail herself of the protection to her weakness which those articles afford; and it cannot be denied by the courts, whatever we may think of the legislation.

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


author: Slidell, J.

text:
    David Bigelow v. John Kellar et al.
    The drawer of a promissory note, who had resided in New Orleans, removed to Madisonville before the maturity of the note, leaving no office or place of business in New Orleans, though frequently in the city. To hind the endorser, demand should have been made of the drawer, either in person, or at the place of his domicil in'Madisonville.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J,

      Race and Foster, for plaintiff.

      Hoffman and Ogden, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The defendant, Kellar, is sued as endorser of a note made by Black, dated at New Orleans, 15th August, 1848, and payable at twelve months after date. His defence is, that there was not a demand of payment of the maker.

It appears that Black, at the date of the note, resided in New Orleans, but in March, 1849, he gave up the house he rented there, and removed with his children and wife (or a person, at least, with whom he lived as such) to Madisonville, in the parish of St. Tammany. The circumstances of this change of residence were sufficiently strong to satisfy the district judge that Black could not be sued in New Orleans, and his plea of domicil was consequently sustained. The evidence shows that himself and family occupied the house at Madisonville, at the date of the maturity of the note, and for some months subsequent; and down to the trial of the cause, his domestic arrangements, in that particular, do not appear to have been changed.

It appears, however, that he was in the habit of frequently visiting New Orleans. He had kept a shoe shop in New Orleans, and retired from that business when he removed his family to Madisonville. But some mercantile affairs appear to have remained unsettled. The testimony as to the frequency of his visits is somewhat indefinite; but it may be inferred on the whole that he came to New Orleans once or twice a week. He had given np the office or place of business which he occupied while dwelling in New Orleans; but was in the habit when he came to town, of resorting to the office of Felch, an intimate friend. He had no commercial books there, but would write letters there, read the newspapers, and make memoranda in a memorandum book which he carried about with him. Plis habit of resorting to the office of this friend seems to have been generally known, and the inquiries-there, by persons wishing to see him, were frequent. Three days before the note was protested, the notary’s clerk went to Fetch's office to inquire about Black, and was told that he resided in the parish of St. Tammany, and had no office in that building. It also is proved, that the plaintiff was in Madisonville in July or August, 1849, and was told by a person of whom he inquired that Black resided there.

"We think it clear that the holder was bound to make a presentment, either to Black personally, or at his new domicil at Madisonville, unless he can be considered, under the evidence, as having a place of business at New Orleans. So that the case turns upon the question, whether Fetch's office where the note was presented, at maturity, was Black’s place of business, in such a sense as to authorize a presentment there. Upon this point, we think the case is with the defendant. Black’s visits to New Orleans were occasional only. He had ceased to transact any regular business there. His presence at Felch's office to receive any demands made upon him, was uncertain, nor was any one left there in his absence to answer for him. His removal to Madisonville was brought to the holder’s knowledge before maturity, and the answer made to his agent, the notary’s clerk, was a timely warning not to treat Fetch’s office as his place of business.

It is therefore decreed, that the judgment be reversed, and that there be judgment as in case of non-suit; the plaintiff paying costs in both courts.


author: Seidell, J.

text:
    Widow L. Fourcher v. Day, Klein & Co. et al.
    Payments made in anticipation to contractors are considered as not made, so far as the rights of workmen and furnishers of materials are concerned. C. 0. 2745.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      H. Griffon, for appellant.

      Collins, Denegre, and Race and Foster, for appellees.
   The judgment of the court (Preston, J. recusing himself, having been of counsel in the case,) was pronounced by

Seidell, J.

We concur with the district judge in the opinion, that the payments made by the plaintiff in anticipation, are to be considered as not made with regard to the defendants, workmen and furnishers of materials. C. C. 2745. Act of 1844, sec. 6, p. 35.

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


author: Rost, J.

text:
    Robert Copeland v. Felix Labatut et al.
    Where the plaintiff sues to annul a sheriff’s sale of his property after it has been re-sold at private sale to a bona jide purchaser, upon the ground of informalities in the mode of appraisement, he must show injury to himself in consequence of the informal!,ies, and furnish security to warrant that the property, if re-sold, would bring a higher price than it did at the sale which is sought to he annulled.
    The deputy sheriff is authorized to administer the oath to the appraisers of property sold at sheriff’s sale; and the law does not require that the appraisers, if acquainted with the property, should personally inspect it for the purpose of malting their appraisement.
    from the Second District Court of New Orleans. Lea, J.

      E. LI. Dwell, for plaintiff.

      Benjamin and Micou, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The defendant, Labatut, originally sold to the plaintiff a small plantation and dwelling house, partly for cash and the remainder on time. The notes given by the plaintiff not having been paid at maturity, Labatut took out an order of seizure, under which the property was sold. It was adjudicated to him for a sum exceeding two-thirds of the appraisement, and he has since sold it to his co-defendants, who are purchasers in good faith and for a valuable consideration.

The plaintiff first instituted an action to annul the sale and recover the property on grounds utterly frivolous. The defendants excepted to the petition, alleging that the plaintiff had shown no cause of action, and prayed to be dismissed from the suit. The district judge sustained the exception, and ordered that the plaintiff’s petition be dismissed, with costs. The plaintiff has since instituted this proceeding, in which, besides setting up the same grounds of nullity, he alleges that the appraisers were not sworn, and that if they were, the appraisement is null, because they did not examine the property after the oath had been administered to them; that one of them, at least, never was in the house, and could form no correct 'estimate of its value.

The defendants filed a peremptory exception of res judicata. They also pleaded the general issue, and averred that they were purchasers in good faith for a valuable consideration. They also claim damages in reconvention for the slander of their title. The judge, without passing upon the peremptory exception, decided the case against the plaintiff on the merits; and he has appealed.

There is no error in the judgment. The petition contains no allegation, and the record no proof of any injury having been sustained by the plaintiff, in consequence of the informalities alleged; and no offer on the part of the plaintiff to warrant that the property, if re-sold, would bring a higher price than it did before. Under the rule which we have found it necessary to adopt, those omissions would prevent us from disturbing the judgment, even if the informalities were much more material than they actually are. As the case is before us, the plaintiff is without interest, and therefore without right to contest the adjudication. Coiron v. His Creditors, 3d Ann. Sewell v. Payne & Harrison, 5th Ann. 255. Chretien v. Richardson, ante p. 2. Stockton v. Downey, 6th Ann. We think, with the district judge, that on the merits the case is with the defendants. The deputy sheriff was fully authorized to swear the appraisers.

The appraisers appointed were both well acquainted with the property. It is true, one of them testifies, that he had never been in the house, and that he did not go on the premises after he was sworn. But it is shown, that he yielded to the opinion of the other appraiser, and adopted his valuation. It would, no doubt, have been more regular that both should have gone on the property; but no law required them to do so; and they appear to have acted honestly, and to have made a fair appraisement. There would be no end to litigation if, under such circumstances, judicial sales could be set aside. The rule that many things are forbidden to be done, which, when done, acquire validity, applies with much greater force when the act or omission complained of is not forbidden.

The judgment is affirmed, with costs.


text:
    James E. Woodruff & Co. v. French & Co. et al.
    Where an attachment has been levied in the hands of the same parties in this State and also in another State, the court is bound to protect the garnishee, who stands before it, without laches or default, from the danger of being subjected to pay the same debt twice.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      C. M. Emerson and H. E. Ogden, for appellees.

      A. K. Josephs, for intervenors.

      Rozier, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by Small S¡- McGill from a judgment rendered against thorn as garnishees, by which they were condemned to pay the balance in their hands to the plaintiffs, in part satisfaction of the judgment in the attachment suit. The judgment rendered against them was ex parte, on their answers to interrogatories; no traverse or exception appears to have been taken to their answers; judgment was taken against them at the time of the rendition of the judgment against the defendants ; no appearance on their part was made at the trial The date, at which the plaintiffs assume the «funds in the hands of the appellants to have been attached, is the 14th of May, 1849.

In their answers, they state, that they have in their hands a certain fund belonging to the defendants: they further say, that on the 10th day of May, 1849, they were garnisheed in three several suits, instituted in the Court of Common Pleas of St. Louis County, in 'the State of Missouri, against the said defendants: one suit instituted by J. E. Woodruff, M. P. Woodruff and Robert M. Henning; another by Solon Humphreys and George W. Thatcher; a third by Henry J. Eanah and Augustus W. Pomeroy; all of which will more fully appear by Exhibit “ C” hereunto annexed, and made a part hereof; and which exhibit shows the amount claimed in each suit, and the order in: which the seizures were made : the said attachments were all served on respondents on the same day — the 10th day of May, 1849. That the firm of Small 8f McGill, of New Orleans, is composed of Joel Small asá Theodore L. McGill, respondents ; that said Small resides in St. Louis, in the State of Missouri, and that said McGill resides in the city of New Orleans; that the firm J. Small Co., of St. Louis, is composed of the same members. That they are advised, and believe, and therefore say, that the aforesaid attachments served in the State of Missouri, in said suits, have the priority over those served on respondents in this State. That the attachments in the two suits instituted in this court, and those in the State of Missouri as aforesaid, are laid on the same property, rights and credits, and on the same indebtedness, as stated herein, and none other; said attachments, all comprising the same things.

The learned judge, in giving judgment against the garnishees, considered that there was nothing in the testimony before him to enable the court to pass on the Missouri attachments. This we consider as true: The answers of the appellants disclosed nothing but the pendency of the attachments; and the question is, whether by those answers they subjected themselves to an absolute judgment.

Our impression is, that if the plaintiffs were not satisfied with the answers of the appellants, relating to the attachments in Missouri, they ought to have excepted to them, or to have given notice to produce copies of the records; or if any ulterior steps had been taken in those suits, they ought to have exhibited evidence of the fact. We do not consider that the plaintiffs, having made the first attachment in Missouri, as freeing the case from the embarrassment created by the subsequent attachments. For, in the event of the plaintiffs’ attachment failing from some defect of form, the other creditors, who have an interest in defeating it, would take its place, and then stand as creditors having attachments prior in time to those instituted in this State. Our courts have, on several occasions, experienced the difficulty of deciding in relation to the rights of parties under attachments levied on the same parties in this and another State at the same time ; and they have always thought themselves bound to protect the garnishee who stands before them without laches or default. Robeson v. Carpenter, 7 N. S. 32. West, Syndic, v. McConnell, 5 L. R. 428. Frazer v. Wilcox, 4 R. R. 529.

We think, in the present case, provision ought to be made to prevent the garnishees from being subjected to pay the same debt twice, either by directing a stay of proceedings on the judgment against the defendants for a seasonable term, or proper security to be given to the garnishees to indemnify them against loss from the previous attachments. This the district court, having the control of the matters in controversy, will be enabled to do better than we can, as the case is now presented to us. We make no decision as to the conflicting claims of the other attaching creditors, Humphreys and Thatcher, which, of course, are open for adjudication.

The judgment appealed from is therefore reversed, and the case remanded for further proceedings according to law; the appellees paying the costs of this appeal.


text:
    Thomas Spence v. George Brooks.
    Under C. 0. art. 2746, the furnisher of labor and materials for the construction of a hoüSe!¡ has no privilege for the sum of §556 55, unless there was a Written contract duly registered.
    from the First District Court of New Orleans, Larue, J. Frank

      Haynes, for plaintiff.

      Warfield and Rand, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff claims an amount of $556 55, for labor and materials furnished to the defendant in the construction of a house.

It appears that there was no agreement reduced to writing and registered, as required by the art. 2746 of the Civil Code ; and under these circumstances, we think, there should not have been a decree of privilege. See Taylor v. Crain’s Administrator, 16 L. R. 292.

We think there was not error in allowing the plaintiff interest from the judicial demand.

It is therefore decreed, that the judgment of the district court, so far only as it allows a privilege, be corrected, and that the claim of privilege be rejected; and it is further decreed, that, so corrected, the said judgment be affirmed ; the costs of appeal to be paid by the plaintiff.


author: Preston, J.

text:
    Succession of Elizabeth Schiltmeyer.
    Under C. C., art. 330, the tutor is bound to furnish security before taking possession of the ward’s estate, and cannot be allowed to take possession of the property for the purpose of making an inventory..
    from the Fifth District Court of New Orleans, Buchanan, J.

      Schmidt and Haynes, for appellee.

      JRoselius, for appellant.
   The judgment of the court was pronounced by

Preston, J.

Herman H. Oetkar died in this city on the 18th of December, 1848, leaving a widow, one child, and a'small property. It belonged to the community of acquets which existed between him and his wife. She, therefore, after his death, became owner of half the property, and usufructuary of the other half during her life.

The widow also died on the 25th of September, 1850, leaving the child, Henry Oetkar, the only heir to all the property. Henry Schiltmeyer, his uncle, has been appointed and qualified as his tutor, but has not given security.

The deceased widow made a will, appointing Wilhelm Gredtch her executor, with seizin of the estate. By her will, she gave the fourth of her estate to the Catholic Asylum for orphan boys, on conditition of taking charge of her son, to whom she gave the residue of her estate.

It does not appear that her estate owes anything. The tutor of the child alleges, that he has made the arrangement with the asylum contemplated by the will, and demands the possession of the estate, as authorized by article 1664 of the Civil Code. The district court ordered the executor to give the possession of the estate to the tutor; and the former has appealed.

He contends, that the tutor is not entitled to receive the estate until he gives security, as required by the 330th article of the code. In this, we think the executor is right, and that the tutor should not be put into possession of the property of his ward without giving security. It may be, as contended, a misfortune to her child, that the deceased appointed an executor, and gave him the seizin of her estate, but that was authorized by law: to put his tutor into possession of his estate without security, might entail on him misfortunes not authorized by law.

The district court came to the conclusion, on consideration of articles 329,330, and 1034 of the code, that the tutor was not bound to give security until an inventory was made, and that the executor was bound to deliver to him the „ „ , . , , . effects of the estate, in order to make the inventory.

An inventory was made by the executor as'late as the 29th of September, 1850, which was signed by the present tutor as .tutor ad hoc to the minor. We do not see the necessity of a second inventory, although, undoubtedly, if a length of time had intervened between the period of making the inventory of the estate and the appointment of the tutor, the court might very properly order a new inventory.

We think the executor should have been required to render his account, as directed by article 1003 of the Code of Practice, that lie should have been ordered to deliver the property and funds found in his possession, according to this account, to the tutor, in compliance with the provisions of that and the articles of the Code of Practice immediately following, and also of article 1664 of the Civil Code, invoked by the tutor.

The balance found against the executor, and the value of the property he is ordered to deliver to the tutor, according to the appraisement and inventory already made, would show the amount for which the tutor should give security, with the addition of such sum as is required by law.

The judgment of the district court is reversed; and it is ordered, that on the petition of the tutor of I-Icnry Schiltmeyer, the executor of tho willofliis mother, render an account of the estate in his possession, and deliver over the same to the tutor, on his giving security, according to article 1041 of the code, in an amount exceeding by one-fourth the balance of funds in the hfinds of the executor, added to the value of the property which lie is directed to deliver over to the tutor, according to the inventory made by them, on the 29th of September, 1850 : the costs of this and of the district court to be paid by the estate.


text:
    Barataria and Lafourche Canal Co. v. V. Soniat, Sheriff.
    The exemption in favor of the Barataría and Lafourche Canal Company created by the second section of the act of 9th January, 1833, does not extend to slaves or other property belonging to the company, but relates to their capital stock only.
    from the District Court of Jefferson, Clarice, J. Dufour and

      Lavergne, for plaintiffs.

      A. TV. Jourdan, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs have enjoined the sale of a slave seized by the sheriff of the parish of Jefferson to satisfy the taxes imposed upon their real estate and slaves, on the ground that they are exempted from taxation during the period of twenty-five years from the promulgation of an act of the Legislature, passed in 1833. After hearing, the injunction was dissolved by the district judge; and the plaintiffs appealed.

The second section of the act relied on provides, that the company shall be exempt from paying any tax during twenty-five years, and that after that period they shall pay no more than twenty-five cents upon each and every one hundred dollars composing their capital stock; provided that no slaves and other property, except stock belonging to the company, shall be exempt from the ordinary taxes.

The plaintiffs contend that this proviso is only to take effect at the expiration of twenty-five years, and that, in the mean time, they cannot be taxed. If this were so, it is probable they would have made the discovery before. We think with the district judge that there is nothing in the proviso which would authorize a court of justice in thus limiting its application. The Legislature has, in several instances, exempted the capital stock of corporations from taxation. But it has never gone beyond this ; and the impolicy of extending the exemption to their property without knowing what that property may be, is so obvious, that even if the words of the statute were of doubtful import, we could not adopt the construction pressed upon us by the plaintiffs’ counsel. For analogous exemptions from taxation, see acts of 1833, p. 167; and acts of 1836, p. 27. 5 R. R. 151. 10 R. R. 187.

The judgment is affirmed, with costs.