text:
    Succession of Henry Grant.
    An attorney-at-law is a competent witness in a case in which he is employed, and his testimony can only ho excluded on legal grounds j the relations which exist between him and his client go to tho effect and not to the admissibility of his testimony.
    A copy of several consecutive sections of an Act of another State, taken from a digest of general statutes, and certified to bo a true copy by the Secretary of State, should be received as prima facie evidence of the whole law of the State upon the subject treated of in the sections.
    The capacity and signature of a Justice of the Peace who has taken a deposition under commission in another State, must be established by the certificate of the Governor under the great seal of tho State.
    The registry of an act under private signature, does not make proof of its execution by the parties to it.
    from the Second District Court of New Orleans, Morgan, J.

      Emerson & Huntington, for curator. Race & Foster, for opponent and appellant.
   Land, J.

The curator of the deceased having filed, by order of the court, a second tableau of distribution, the Mercantile Bank of Salem, Massachusetts, claiming to be a mortgage creditor of the succession, made opposition thereto, on the grounds that the curator had refused to allow and place the claims of the bank on the tableau.

The bank has appealed from a judgment of nonsuit on the opposition, and our attention is called to several bills of exceptions, taken by the opponent, to the rulings of the Judge, on the trial of the cause.

The first bill is to the refusal of the Judge to receive the testimony of one of the attorneys-at-law of the bank, on the ground of his interest in the event of the suit. The attorney was interrogated on his voir dire to establish that interest. He swore that no fee had been stipulated with his client, but that he might charge more should he succeed in the cause, than if he were to fail, and that it is customary with his firm to charge less when their clients fail, than when they succeed in their suits.” The interest disclosed by the attorney, is not a direct and legal interest which renders a witness incompetent.

In the case of Sprigg v. Beaman, 6 La. 64, Porter, Justice, says: “ In the instance before us, though the witness felt the obligation which his habits of business had imposed, to vary his charge of compensation with the event of the suit, there was surely no legal obligation on him to do so. The legal responsibility of the client, was to pay him the value of his services, and this value was to be tested by the labor and pains bestowed on the cause, and the degree of responsibility incurred, not by the success which attended his efforts. The physician who conquers a disease is, in law, entitled to no more remuneration than when he is baffled by it, and sees all Ms exertions fruitlessly terminate with the loss of Ms patient’s life.” The attorney was accordingly held to be a competent witness, although he swore on his voir dire, that he would feel bound by his rule of conduct, to apply it to that case, which rule was to charge his clients less should they fail, than if they were to succeed in their suits.

An attorney-at-law is a competent witness, and his testimony can only be excluded on legal grounds. The relation which exists between Mm and his client, goes to the effect, and not to the admissibility of his testimony. If the law is unwise or impolitic, which makes an attorney-at-law a competent witness for his client, the remedy is in the hands of the Legislature, and not of the courts. The District Judge, therefore, erred in refusing to receive the testimony of the witness.

The second bill of exceptions is to the ruling of the Judge, rejecting a certified copy of the interest law of Massachusetts, on the ground that it appears to be “ an extract from the law, and not the entire law.” The certificate of the Secretary of State is as follows :

“ I hereby certify the foregoing to be a true copy of the first, second, third and fourth sections of the thirty-fifth chapter of an Act for revising and consolidating the General Statutes of the Commonwealth, approved by the Governor, on the 4th day of November, in the year 1835,”

The Act certified, appears to be an entire Act upon the subject of interest and usury in the commonwealth of Massachusetts, and to have been copied from a digest of the general statutes of the State. The sections of the Act mentioned in the certificate, are numerically consecutive, and seem to cover the whole subject of interest, and there is nothing on the face of the certificate, to create a presumption that the Act contained any other sections, than those certified. The copy should have been received as prima fade evidence of the interest law of Massachusetts.

The third and fourth bills of exceptions, are to the refusal of the Judge to re^ coive in evidence a draft drawn by the cashier of the Union Bank of New Orleans on the Mercantile Bank of Salem, and also a receipt of the former bank to the latter — the signatures to which had been proved to be genuine, for the purpose of showing that the draft had been paid to the Union Bank, for the use and benefit of the succession of the deceased, Henry Grant, and also to his refusal to receive in evidence, the testimony of a witness, to show the connection of the draft with the succession, and in what manner, and for what given, and that the same was for account and benefit of the succession, in order to protect good col-laterals pledged by the deceased Grant to the Mercantile Bank. The evidence was rejected on the ground, that the draft appeared to have been drawn by the Union Bank on the Mercantile Bank, two years after the death of Henry Grant, and ten years before his succession had been opened, and was in no manner connected legally with the succession or chargeable thereto.

The objection should have been overruled, for one of the questions at issue, was whether the draft could be connected with the succession of the deceased, and made a legal charge against the same. Although the evidence may have been insufficient to make out the plaintiff’s case in that particular, it should have been received for what it was worth, and considered on the merits, in connection with the whole evidence offered in support of the claims of the bank.

The fifth bill of exceptions is to the refusal of the Judge, to receive in evidence certain depositions taken under a commission in the State of Massachusetts, on the ground, that the official capacity and signature of the Justice of the Peace by whom they purport to have been received, had not been legally proved by the certificate of the Governor, under the seal of the State.

The District Judge did not err in ruling out the depositions on this ground. The certificate is subscribed by the Secretary of State alone, and not by the Governor. In the case of Buford v. Johnson, 10 R. 456, which presented a question similar to the one now before us, the court say : The certificate of the Governor, under the great seal of the State, is the usual, and in our opinion, the best evidence of the fact sought to be established. It was in the reach of the party, and could easily have been procured. See Thatcher v. Goff, 13 La. 362.

The sixth and last bill of exceptions is to the refusal of the Judge to receive in evidence a deed of trust, purporting to have been executed by the decease, to the Mercantile Bank of Salem, on the' ground that the original act was under private signature, and could not be received in evidence before the signatures had been proved, and that the registry of the act in a Notary’s office did not dispense with proof of the signatures. The Judge did not err. The registry of an act under private signature, does not make proof of its execution by the parties. This point was ruled by us at Alexandria, on the authority of previous decisions. 14 An.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and cause remanded to the lower court for further proceedings according to law, and the Succession of Henry Grant pay the costs of this appeal.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    D. L. Shearer, for the use of E. Peele, v. Louisiana Mutual Insurance Company.
    When an open policy of insurance is made out in the name ofZ>. L. S. “ for account of whom it may concern,” and a clause is iuserted to the effect, that the “ insurance is on merchandise) to cover all shipments to the address of the ttssured} from time of shipments, and risJcs to be reported as soon as lenown” —Held: That to recover under such a policy the valuó of a lost shipment, it must ho shown that it was made to the address of tlio assured, or if made to the address of anothor person, that the risk was reported hy him.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      F. Haynes, for plaintiff and appellant. Race & Foster, for defendants.
   Buchanan, J.

This action is brought to recover the value of merchandise shipped on freight from New York to New Orleans, and insured under an open policy of the nominal plaintiff, D. L. Shearer, by the defendants.

The defence is:

1st. Want of insurable interest in the assured.

2d. That no risk was taken by defendants.

3d. Fraudulent suppression of facts known to the assured, at the time of the application for insurance.

It is only necessary to examine the second ground of defence.

D. L. Shearer, a commission merchant and auctioneer in New Orleans, had an open policy in defendants’ office, which contained the following' definition of the objects at risk:

“ This insurance is declared to be on merchandise, to cover all shipments to the address of the assured, from time of shipments, and risk to be reported as soon as known.”

The policy is made out in the name of D. L. Shearer, for account of whom it may concern.

Now, whether we consider the party insured in this instance, or under the particular risk spoken of in the evidence, to be Shearer or Pede, a point which the evidence leaves in considerable doubt, the ground of defence which we are oxam-ing must equally prevail.

If it be Shearer, the shipment of goods per ship Saxon, for a voyage from New York to New Orleans, entered on the book annexed to the policy, under date of the 23d of April, 1857, was not covered by the terms of the policy, because the shipment was not “ to the address” of Shearer.

If, on the contrary, the party assured in this risk was Pede, then this action must fail; because Pede did not report the risk as soon as it was known to him, by receipt of the bill of lading through the mail, which is proved to have been from two to three weeks anterior to the report of the risk to the insurance office. The condition, that the risk was to be reported as soon as known, was a lawful one, which the insurers had a right to insert in their contract; and the significance of which is exemplified in a striking manner by the facts of this case.

It is specially to be observed, that defendants, through their legal representative, the President of the company, immediately on being informed by Mr. Shearer, that the shipment in question was not to his address, and the same day that the entry of this risk had been entered upon the book annexed to Shearer’s open policy, by a Clerk in the office, to whom Shearer had not communicated this fact, declared formally to Shearer that the defendants did not consider this shipment to be covered by the policy.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Jean Foss v. M. Brentel et al.
    When a judgment on a rule passes finally upon the merits of a controversy between parties, it will have the same effect as a decree rendered in any other form of proceeding.
    from the Third District Court of New Orleans, Dmigneaud, J.

      L. U. Gaiannie, for plaintiff and appellant. McCarty & Coleman, for defendant.
   Merrick, C. J.

As we understand the appellant’s brief, this case presents but two questions, viz : Whether an order of court making a rule absolute can, where it has the effect to dispossess a person of property, have the effect of the thing adjudged? ■ And if so: Whether the judgment on the rule in the controversy between the defendant, Mrs. Brentel, alone, and Jean Foss, relative to the possession of the stall in the Dryades market, can be pleaded in bar of the suit of Jean Foss against Mrs. Brentel and John Weber ?

If the judgment on a rule passes finally upon the merits of a controversy between parties, no valid reason can be urged why it should not produce the same effect as a decree in any other form of proceeding. As it ends all controversy in a cause, and with it the cause itself, it is a judgment, and as such must produce all effects declared by law to be the incidents of a judgment.

The controversy between Mrs. Brentel and Foss is, as to those two, a controversy between the same parties, in the sense of Article 2265 of the Oivil Code. Foss cannot deprive her of her plea of res judicata, by joining another person with her in the second suit. This would be an easy mode of defeating the plea in all cases.

But as to the defendant, Weber, the case is somewhat different. He was not a party to the suit between Mrs. Brentel and Foss, and, strictly speaking, the plea of res judicata does not apply to him. But in the former suit, the possession of the stall was decreed to Mrs. Brentel, and it is the execution of this judgment which plaintiff seeks to arrest. Now, Weber can defend himself, by showing title in Mrs. Brentel, and authority from her, and as the plaintiff sets up no special cause of action against Weber, we think when the plea of res judicata is sustained in favor of Mrs. Brentel, and she is permitted to execute her judgment, the plaintiff has no longer any interest in maintaining his action against Weber, and, as a consequence, must fail in his suit. O. P. Art. 15.

It thus appears that the judgment of the lower court ought to be affirmed, and it is so decreed.


text:
    German Evangelical Congregation v. H. Pressler.
    Courts of justice cannot regard tlic wishes of the majority of the members of a corporation, unless expressed in a valid form, in conformity with the bye-laws and charter.
    from the Sixth District Conrt of New Orleans, Howell, J.

      G. & C. E. Schmidt and E. Hiestand, for and Durant & Hornor, for defendant.
   Merrick, C. J.

The present appeal is taken by the plaintiffs from a judgment upon a rule dismissing the suit. The question turns upon the validity of a supposed resolution of the society ordering this suit to be discontinued.

It appears to be conceded by plaintiffs’ counsel, that the corporation can be bound by a joint resolution of the council and congregation. The resolution said to have the effect of discontinuing the suit was passed under the following circumstances :

Under the bye-laws of the corporation, the council (who seem to be the detain-ers of the powers of the corporation, and consist .of seven persons,) are elected by the vote of the members of the congregation, upon the nomination of the council going out of office. The old council are to nominate not less than fourteen persons, and not more than twenty-one, out of whom the seven counoilmen or wardens for the ensuing year are to be elected. The officers of the church council are' a president, secretary and treasurer. These officers are required to bo present at the meetings of the church council and congregation.

A meeting having been called by the president, in accordance with the by-laws, for the election of a new council, or board of wardens, to take place on the 28th day of November, 1858 ; and having assembled accordingly, the president proceeded to organize the meeting and announce that it was held for the purpose of an election.

Some members insisted upon passing some resolutions previous to the election. Kaiser, the president, declared them out of order. An appeal was made to the congregation, who decided in favor of the resolutions. The council, it seems, continued intent upon proceeding with the election, and received some votes. Much disturbance then arose. Kaiser, the president, directed some police officers, whoso presence he had procured, to arrest certain persons disturbing the congregation. They paid no attention to his request. Presently, Pressler, the defendant, came in, and at the instance of some in the congregation, ho directed the police officers to arrest Kaiser and the other officers of the council, with one or two of the councilmen, making five in all. The latter took with them the books of the corporation, and were locked up at the guard-house by the police. The congregation then, in the absence of the old board, proceeded to organize the meeting and passed the resolution directing the discontinuance of this suit. They also elected a new board of councilmen or wardens.

On a writ of quo warranto issued at the instance of the old board, the new election was declared to be illegal.

The District Judge being of the opinion, that the resolution was in accordance with the wishes of a large part of the congregation, directed the dismissal of the suit, and the plaintiffs appeal.

The suit having been regularly instituted, cannot be dismissed without a resolution of the corporation. The congregation alone, under the by-laws and charter, have no such power. A majority of the council must be present, and the resolution must be entered by the officers of the council upon the books of the corporation. When, therefore, the president and members of the council were illegally removed, there were no persons present to conduct the election, or to give validity to the resolutions of the congregation. The condusum, universiiatis was wanting. It is quite clear, that the paper circulated among the members of the corporation and signed by the members, however numerously, cannot supply the place of a resolution which can only be passed by the corporators organized as a body, in conformity with the by-laws and charter.

However unprofitable this sort of litigation may be, the courts cannot regard or know the wishes of the majority, unless expressed in a valid form. See the case of St. Mary’s Church, 1 S. & Rawle, 530.

It is, therefore, ordered, adjudged aud decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case bo remanded to the lower court for further proceedings according to law, the defendants paying the costs of the appeal.


author: Cole, J.

text:
    Edward Shiff & Co. v. P. Carprette and W. C. Quirk.
    District Courts cannot dissolve attachments issued hy Justices of the Peace, except on appeal.
    When a party has a claim exceeding in amount the jurisdiction of a Justice of the Peace, and bearing a privilege upon property attached by another party in a Justices' court, his remedy is by a suit in the District Court, claiming his privilege and enjoining the officer having the writ of attachment issued by tlio Justice from proceeding with its execution, and paying over the proceeds to the attaching creditor ; or by a rule taken upon the attaching creditor, to show cause why he should not be paid by preference out of the proceeds of the sale of the property attached.
    PPEAL from tire Second District Court of New Orleans, Morgan, J.
    PI. G. LeGardeur, for plaintiffs. W. D. Hennen and P. Childress, for defendants and appellants.
   Cole, J.

Plaintiffs leased to F. A. Kelman, the first floor of the premises situated at No. 81 Canal street, for one year from the 1st of November, 1856, to the 31st of October, 1857, in consideration of the yearly rent of eight hundred dollars, payable quarterly.

Kelman, being indebted for the quarterly installment expiring on the 1st of August, 1857, and being unable to pay the same, abandoned the premises, sent the keys thereof to plaintiffs, and left the State.

Before leaving, he sent plaintiffs, by the same person that was to deliver the key of the store, a letter, in which he gave them to understand he was about to abscond, and requested them to proceed to the store at once, and take possession, conjointly with others equally deserving as themselves.”

Plaintiffs, in consequence of the abandonment of the premises and of the surrender of the keys by Kelman, took, under Article 3185 of the Civil Code, and by virtue of the letter addressed to them by Kelman, immediate possession of the articles left in the store by Kelman, the value of which was insufficient to satisfy their claim.

Shortly afterwards, W. C. Kirie, Constable of the Eirst Justice of the Peace, under a writ of attachment issued at the suit of P. Carprette, seized, took possession of, and carried away the articles then in possession of plaintiffs, and established to have been worth $150.

These articles were afterwards, on motion of Quirk, sold for storage, and it does not appear what became of the proceeds.

In the meantime this suit had been brought by E. Shiff <& Co. against Quirk and Carprette, and a writ of sequestration issued to the Sheriff, commanding him to seize and hold in his possession the goods seized by Quirk, under the attachment issued by Carprette. But they refused to give up the property.

Plaintiffs also claimed five hundred dollars as damages for the illegal action of the defendants.

Under these circumstances, the court gave judgment in favor of E. Shiff & Co. agaist Quirk and Carprette, for the value of the goods carried away and never accounted for by them, to-wit, one hundred and fifty dollars.

Carprette only has appealed.

The letter of the lessee would alone have authorized plaintiffs, in the absence of any superior right on the part of others, to take possession of the goods and sell them.

Their letter requested them to proceed to the store at once, and to take possession, conjointly with others, of these articles ; but as no one appeared there to take possession, except plaintiffs, they were entitled to take the whole of them, as the value of the articles taken away and now in dispute was insufficient to pay their claim as lessors.

Besides, Article 3185 of the Civil Code, declares that: The right which the lessor has over the products of the estate, and on the movables which are found on the place leased, for his rent, is of a higher nature than mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor, on the contrary, may take the effects themselves and retain them until he is paid.”

This Article authorized plaintiffs to retain the goods found on the premises, and the letter of the lessee empowered him to sell them.

These goods were attached by defendants, as they were about being sold at jDublic auction.

Plaintiff then had them sequestered, and prayed in his petition to have the attachment dissolved, which was granted in the judgment.

We are of opinion, it is not in the power of District Courts to dissolve attachments issued by Justices of the Peace, except on appeal.

If a party has sued out before a Justice of the Peace an attachment of property, and A has a claim, bearing a privilege superior to that of the attaching creditor, but exceeding the jurisdiction of the Justice, A can then protect himself by suit in the District Court, claiming a privilege, and by an injunction enjoining the officer having the writ of the Justice, from proceeding with the execution of the attachment and paying over the proceeds to the attaching creditor, or by a rule served upon the latter to show cause why he, A, should not be paid by preference.

In this way the jurisdiction of the District Court does not clash with that of the Justice of the Peace. The former merely exercises its legitimate jurisdiction, and decides that the privilege of A is superior to that of the attaching creditor. As in a concurso, the Judge before whom the claims of different creditors are contested, has the right to accord a preference to one having no judgment over one having a judgment, if the privilege of the former be superior.

The judgment of the District Court is correct, except as to to the dissolving of the attachment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended, by reversing thai. part of it which dissolves the attachment, and that in all other respects it be affirmed ; and that plaintiffs pay the costs of appeal.


text:
    City of New Orleans v. E. J. Hart & Co.
    The Act approved March. 19th, 1856, entitled u An Act to authorize the City of JSfew Orleans to tax real and personal property,” is not repealed by the general repealing clause of the let approved March 20th, 1856, amending the Act incorporating and providing a government, &c., for the City of Now Orleans.
    The formalities of assessment and collection of City Taxes, as prescribed by the Act of the 20th March, 1856, did not apply to the taxes for that year, as the Act of the 19th March, 1856, authorized an assessment for the year which had not then expired, in accordance with its provisions.
    The meaning of the word income, under the Act of 19th March, 1856, is money received in compensation for services, such as wages, commissions, brokerage, &c., and is totally different from the fruits of capital invested in merchandize, stocks, &c.
    The Act of 1856 makes no allowance for commissions or compensation to be paid by the tax payer to the Assistant City Attorney ; the Act of 1853, which allowed him a commission of Ave per cent., has been repealed.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      XX. IV. O. Denegre, for plaintiff. H. D. Leovy, for defendants and appellants.
   Buchanan, J.

Defendants arc sued for a tax on income, for the year 185C. They plead :

1st. That the formalities required by law for the assessment and collection of taxes were not observed in this case.

2d. That the tax is excessive, and that defendants had no opportunity of correcting the error.

3d. That the Assistant City Attorney is not entitled to the commission of five per cent., or any other compensation to be paid by defendants, for the collection of this tax. '

I. We agree with the District Judge, that the tax sued for in this suit is a tax levied under the Act of 19th March, 1856, (Session Acts, p. 109,) and not under the amended City Charter, or Act of 20th March, 1856, (Session Acts, p. 136). The former of these two Acts was not repealed by the 133d section of the latter. The formalities of assessment and collection of City Taxes, as prescribed by the Act of 20th March, 1856, did not apply to the City Taxes of 1856, which were assessed under the Act of 19th of March, 1856.

The Act of 19 th of March, 1856, authorized an assessment for that year, which was not then expired; and it is proved that this assessment was made in the year 1856. The assessment and taxation were not, therefore, retroactive, as contended by counsel of defendant in argument.

II. It is proved and admitted, that thirty days notice to correct errors in this assessment roll was given, by advertisement in the public papers. In connection with this ground of defence, the defendants have offered in evidence, a receipt for tax on capital, for the same year, 1856, and urge that the tax now sued for is a tax upon profits of capital already taxed.

The Act of 19th March, 1856, clearly defines the meaning of the word income as liable to taxation. It is money received in compensation for labor or services, such as wages, commissions, brokerage, &c., and is totally different from the fruits of capital invested in merchandize, stocks, &c.

III. The Act of 19th March, 1856, makes no allowance of commissions or compensation, to be paid by the tax payer, to the Assistant City Attorney. The Act of 1853, which allowed to the Assistant City Attorney a commission of five per cent., to be added to the amount of every bill for taxes collected by him, lias been repealed. 13 An. 510. The Judgment appealed from is amended in this respect.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; and that plaintiff and appellee recover of defendants and appellants three hundred dollars, with interest at one per cent, a month from July 7th, 1857, until paid, and costs of the District Court; the costs of appeal to bo borne by appellees.


text:
    City of New Orleans v. Crescent Newspaper.
    Art. 106 of tlie State Constitution, which declares that “ ihe press shall be free,” does not exempt capital invested m a newspaper from taxation.
    The decision, in the case of the City of New Orleans v. E. J. Hart é Co., ante p. 803, affirmed.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    _Ol ÍV. O. Denegre, for plaintiff. J. Magne, for defendants and appellants.
   Buchanan, J.

This is a suit for a city tax of seventy-five dollars, upon capital, for the year 1856. The capital was invested in a daily newspaper, printed and published in the city of New Orleans.

The defence set up is, illegality and unconstitutionality of the tax. Defendants plead that the imposition of a tax by the municipal authority, upon newspaper property, is a violation of Article 106 of the State Constitution, which reads as follows:

“ The press shall be free. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for an abuse of this liberty.”

The learned counsel of defendants founds his argument upon the first sentence of this Article ; and urges, that, being a perfect sentence in itself, terminated by a full stop, and embodying a doctrine absolute and unqualified, this courtis bound to give to it the utmost latitude of meaning of which the words are susceptible; and accordingly, as in fiscal matters, merchandise is said to be free, which is not liable to a duty of importation, it follows that the stock of a printing establishment cannot be taxed.

We do not thus understand the Article of the Constitution. The second sentence of that Article explains and elucidates the meaning of the first sentence. The press is free; that is to say, every citizen may publish his sentiments on all subjects. No censor'ghip of the press shall exist. No officer of government shall dictate what may, or what may not be printed. Such is the freedom of the press, as secured by this Article. And note the restriction upon that freedom ; a restriction operating, not in the form of prevention, (which would be impossible without a censorship,) but in the form of penalty. The publisher, says the Article, is responsible for an abuse of the freedom of publication. The limitation, no less than the grant, points evidently to a different kind of freedom from that fiscal freedom for which the defendants contend.

The grounds of illegality in the assessment of this tax, are the same as alleged in the case of the City v. E. J. Hart & Co., just decided. For the reasons there given, this defence is overruled.

Tliore is an illegality apparent upon the face of the record, which we are hound to correct. The judgment of the District Court allows five per cent, commission upon the amount of the tax to the Assistant City Attorney, to he paid by defendants.

The allowance is claimed under a State law, which has been repealed, as was decided by us in the case of the City v. Jeter, 13 An. 510.

In the absence of a State law, this commission is to be viewed as a penalty imposed by authority of a municipal corporation, of which the legality is examinable in this court, under the terms of Article 62 of the Constitution. This point has been decided in the case quoted above.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; and that plaintiff and appellee recover of defendants and appellants, seventy-five dollars, with interest at the rate of one per cent, a month from the 7th of July, 1857, until paid, and costs of the District Court; those of appeal to be paid by plaintiff.


text:
    M. A. Favaron v. J. M. Rideau.
    The object of the law requiring tho authorization of the husband, before the wife can be sued, is fully accomplished when the husband joins the wife in an answer to the suit, even when they have not been designated as husband and wife in the petition.
    "When a married woman who had been authorized to defend a suit by her first husband, marries a second time, while the suit is pending, it is not necessary that the authorization of her second husband should be obtained.
    from the District Court of the Parish of St. Tammany, Wilson, J.

      A. Bowie, for plaintiff and appellant. J. C. David, for defendant.
   Cole, J.

This suit is instituted by plaintiff, to annul a judgment.

The District Court gave judgment for the defendant, and plaintiff has appealed.

The suit sought to be decreed null, was brought against plaintiff and F. Dury. It represented that plaintiff, designated in the petition as Mary A. Riche, and F. Dury were sometime before living and carrying on business together ; at times under the name of F. Dury, and since, about one year and a half, under the name of Mary Ann Riche, the concubine of F. Dury, who has, under her name, their property, to shelter F. Dury from seizure by his creditors. The petition prayed that F. Dury and Mary Ann Riche, who styles herself Mrs. Dury, be cited. They were both cited, and filed the following answer :

Frangots Dury and Mary Ann Riche, residents of the State and parish aforesaid, and defendants in the above entitled case, now appear by counsel, and for answer to plaintiff’s petition, deny all the allegations therein contained, require strict proof of the same, and pray to be hence dismissed, with costs.

(Signed) Angus Bowie, Defendants’ Attorney.”

Plaintiff, M. A. Riche, now seeks to annul the judgment rendered against her in that suit, on the ground, she was the wife of F. Dury at the time of the institution of said suit, and the wife of P. Favaron at the time and before judgment was rendered against her, and that she was never authorized to defend said suit or stand in judgment by the court, or by either of her said husbands.

Plaintiff’s petition in the present case, represents that she intermarried with F. Bury, on the 13th of March, 1854, and lived with him, as husband and wife, until his death in March, 1857. That on the 29th of April, 1857, she intermarried with her present husband, Pascal Favaron, and has lived with him ever since as husband and wife. That on the 8th of May, 1856, the suit in which the judgment is sought to be annulled was filed against her and F. Bury, her husband, and on the 13th of June, 1857, judgment was rendered against her in the same.

The causes of the alleged nullity appear then to be :

1st. That she was not sued as the wife, but the concubine of F. Bury.

If Bury and his wife thought proper to conceal the sacred connection between them, as husband and wife, they cannot hope to derive any benefit from this to the prejudice of their creditors.

Bury and his wife could have excepted to the mode in which they were sued, but instead of this, they filed a joint answer.

If they were really husband and wife at the commencement of the suit, they cured the error of the plaintiff in calling her the concubine of Bury, by jointly filing an answer.

The object of the law in requiring the authorization of the husband, or court, before the wife can be sued, is fully accomplished when the husband joins the wife in an answer to the suit, even if they have not been designated as husband and wife in the petition.

2d. The second ground of nullity is, that her second husband, P. Favaron, never authorized her to appear in the suit, and therefore judgment could not be rendered against her.

Having been authorized by her first husband, by his and her joint answer, it was not necessary for the plaintiff to have afterwards obtained the authorization of her second husband.

Judgment affirmed, with costs of appeal.


author: Land, J.

text:
    H. W. R. Jackson v. F. & J. B. Schmidt.
    To exempt tile proprietor and undertaker from the charge of negligence and liability for damages caused by the falling of the wall of a house in course of demolition, the notice of danger required by law to be given in such cases must be of such a character as to put the party injured in fault.

    When it is contended that a bairicade lmd been erected, it must be shown that it was an actual obstruction to passage, in order to constitute sufficient notice or warning of the impending dangor, and thereby exonerate the proprietor from responsibility in case any one is injured by the falling of the wall, or any part of the materials composing it.
    When in such a case the proprietor, through an error of judgment, had not given sufficient notice, vindictive damages should not be allowed.
    from the Fourth District Court of New Orleans, Price, J.

      W. B. Ilennen & J. B. Lyman, for plaintiff. C. Roselius <® G. LeGardeur, for defendants and appellants.
   Land, J.

This suit was commenced for the recovery of twenty thousand dollars damages for bodily injuries, in consequence of the falling of the wall of a house on Poydras Street, in this city, received by the plaintiff, on the morning of the 15th of August, 1857.

J. S. Schmidt is sued as the owner of the house, and Francis Schmidt as the agent who personally supervised and assisted in its demolition. The plaintiff obtained a verdict and judgment for ten thousand dollars, and the defendants have appealed. They contend :

First. That the law requires simply, that a warning or notice should be given to the public, of the danger of approaching a house, or other building in course of demolition, and exonerates the owners or undertakers from all liability, when that warning or notice has been given.

Secondly. That the evidence shows affirmatively, that the defendants had given the notice or warning required by law.

Thirdly. That the damages are extravagant and excessive.

I. The defendants concede that in a case like this, to-wit, of the demolition of a building in a city, that if the owner or undertaker have taken no precautions whatever to put the public upon their guard; but on the contrary, have suffered them to pass and repass, without any warning or notice of the impending danger, and an accident should happen, the owner and undertaker would clearly be responsible for the consequences of the accident.

The question first presented is, therefore, one of fact and of law, to-wit: was a notice or -warning given at all, and if given, whether it was such as required by law ?

The defendants contend, that there was on each side of the house a plank placed across the banquette from the angle of the building to the gutter, and that this was a sufficient warning to all persons of ordinary prudence, that there was some danger to be avoided. Upon this question of fact, the evidence, if not contradictory, is not all affirmative. Several of the witnesses swore that they saw no barricades, and met with no obstructions on the banquette, in front or near the building which was being demolished.

Granting the existence of the plank at the corners of the building, was it such a notice or warning of the danger to be apprehended, as the defendants should have given ?

It appears that the plank was placed in an oblique or slanting direction from the wall of the house to the verge of the gutter, and that it could he passed under near the wall of the house, and stepped over near the verge of the gutter.

The law has not declared what notice shall be sufficient to exempt the proprietor or undertaker, in a case like the present, from liability for damages caused by the falling of a wall of a house in course of demolition, or of any part of the materials composing it.

In such a case, the notice of danger must be of such a character as to put the party injured in fault, and exonerate the proprietor from the charge of negligence or want of due care.

In a populous city, and on a crowded thoroughfare, the notice or warning, on which defendants rely, was insufficient in law to exempt them from liability. The planks or boards were placed in such a manner, that they could be passed under, near the wall of the building, and passed over, near the verge of the gutter, with little, or no inconvenience, or trouble.

In our opinion, it is not necessary for a proprietor who is demolishing, or erecting the walls of a building, to cause impassable barricades to be constructed; but it is necessary, in such a case, that the barricade should form an actual obstruction to passage, and cause delay, inconvenience, or trouble, to those passing by the building, in order to constitute notice or warning of the impending danger, and thereby to exonerate the proprietor from responsibility for the damages denounced against him by Art. 666 of the Civil Code, which is in these words :

“ Every one is bound to keep his buildings in repair, so that neither their fall nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the proprietor in that respect.”

This view of the case disposes of the first and second grounds, on which defendants rely for a reversal of the judgment.

The third ground is, that the damages are extravagant and excessive.

The defendants were guiltless of any intention to injure the plaintiff, and took insufficient steps to warn him and others of the danger of passing along the wall of the building. The negligence with which they are charged seems to have been as much the result of an error of judgment, as to the sufficiency of the warning or notice given, as of any culpable omission of duty. And as a misfortune has happened which they unwisely in modo sought to prevent, we are of opinion that the damages are excessive, and should be reduced. This is not a case in which vindictive damages should be allowed — -but only actual damage or loss. We are of opinion that five thousand dollars will cover all the actual damage sustained by the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended; and that instead of ten thousand dollars, it is ordered, adjudged and decreeed, that the plaintiff do have and recover of the defendants in solido the sum of five thousand dollars, and costs in the lower court. And it is further ordered and decreed, that plaintiff pay the costs of the appeal.


text:
    C. H. Davis v. Laurent Millaudon.
    A bill of exceptions to tlie refusal of the Judge to grant a trial by jury, cannot be noticed whon. it contains neither the reasons of the Judge for his refusal, nor the grounds on which the ruling was excepted to.
    When on the trial a party is taken by surprise, by the introduction of evidence legally admissible, to establish facts not disclosed by the pleadings, he has aright to a continuance on a proper showing.
    from the Second District Court of New Orleans, Morgan, J.

      O. 8. Lacy and R. A. Upton, for plaintiff and appellant. P. A. Lucros, for defendant.
   Cole, J.

On the lYth of February, 1858, the defendant, Laurent Millaudon, sued out an order of seizure and sale against the plaintiff’s plantation, known as the Coiron Estate, in the parish of St. Bernard.

This writ was issued to enforce the payment of a mortgage note, assumed by the plaintiff in his purchase of this plantation from B. L. Millaudon, who had purchased the same of defendant.

Davis applied for a writ of injunction, basing his application upon four distinct grounds, of which two have been abandoned in this court, so that it is only necessary to consider the remaining two, which will be done in their order.

1. That there was a deficiency in the quantity of land, which gave Davis the right to a diminution of price. j

Plaintiff in injunction contends that as his vendor, B. L. Millaudon, in the act of sale, subrogated him to all his rights of warranty against his previous vendor, L. Millaudon, the defendant in injunction; that therefore, he was entitled to plead this deficiency as an offset to the note sued upon, which was given as a part of the price, to L. Millaudon, of said plantation, by B. L. Millaudon, and assumed by Davis in his purchase of the latter.

The sale from B. L. Millaudon to Davis is a sale per aversionem.

Davis cannot, therefore, call upon the vendor of his own vendor to warrant him against a deficiency, which the latter has not guarantied to himself. Davis cannot, therefore, claim as an offset to the note assumed by him any deficiency which may exist -within the designated limits of the land bought by him.

The parol evidence to make L. Millaudon a party to the act of sale from B. L. Millaudon to Davis was properly excluded.

II. That Davis had just reason to fear being disquieted in his title and possession to the property sold, by Rodolphe Dueros, or the heirs or assignees of Ro-dolphe Dueros.

Upon this point the District Judge remarks, and we coincide with his opinion, “ that Davis is fully protected against eviction, and his title is good.”

The bill of exceptions to the refusal of the District Judge to grant a trial by jury cannot be noticed, because it contains neither the reasons of the Judge for its ruling, nor the grounds on which the appellant’s counsel excepted to its decision.

Davis also objected to the introduction in evidence of certain documents, which were a chain of titles from Rodolphe Dueros to Mme. J. M. Dueros and L. M. Du-eros, for the purpose of showing the legal rights of the said Mme. J. M. Dueros and L. 31, Dueros, to quiet Davis’ title, as averred to be done in an act executed on the 8th of June, 1858. The objection was based upon the ground that there is no allegation in the pleading of the defendant in injunction, of the relinquishment of a claim on the part of Rodolphe Dueros, or his successors, authorizing the proof of the fact, and that Davis was taken by surprise.

The, evidence was admissible. Davis averred as one of the grounds of injunction, that he had just reason to fear being disquieted in his title and possession by Rodolphe Dueros, or his heirs or assignees, and the testimony was offered to rebut this allegation.

If Davis were taken by surprise, it would have been in his power to have obtained a continuance by a proper showing.

The District Judge dissolved the injunction, but did not grant damages, because, as he says in his opinion, the evidence adduced by him shows, that although wrong in his mode of proceeding, he at the same time acted in good faith. The letters and plan which he had received from the Surveyor General were calculated to create great perplexity in his mind.”

The District Judge further justifies himself in not allowing damages, that the defendant in injunction, in order to show that Davis was protected against all eviction and had a good title, relied upon the trial, in part, on a chain of titles, the last of which bears a date posterior to the institution of the suit.

Davis contends that he is not liable for the costs of the lower court previous to the alleged perfection of the title. If he had wished to have relieved himself from them, he ought to have made a tender of the money, payable when his vendor should furnish him with security against the danger of eviction.

Judgment affirmed, with costs of appeal.


author: Meerick, 0. J. Cole, J.

text:
    Succession of John S. Thompson.
    An appeal will lie from an interlocutory order on a party to deposit in court a sum of mouoy} tho right to which is in contestation between the other parties to the suit,
    where several parties claim a sum of money, to which the party in possession of the money does not assert any right, tho court may order the money to be deposited in the hands of the Clerk of tho court, until the respective rights of all the claimants are adjudicated upon.
    from the Second District Oourt of New Orleans, Morgan, J.

      H. R. Grandmont <& H. G. Miller, for appellant. H. B. Ogden and T. W. Collins, for appellees.
   On motion to dismiss the appeal:

Meerick, 0. J.

The present appeal is taken from a judgment upon a rule ordering Mills Judson & Co. to deposit in court $800, alleged to belong to the succession.

There is a motion to dismiss the appeal, on the ground that the judgment- is only interlocutory and not final. The decree is, that the money be deposited in court to abide the event of two other suits pending in the same court. We think the plaintiff is entitled to the appeal. It may be that the court will come to the conclusion that plaintiff, the administrator, is entitled to an absolute decree in his favor.

The rule to dismiss is discharged.

On the merits:

Cole, J.

The cause of the controversy is the same as in the suits Nos. 6262 and 6338, just decided.

A rule was taken on Judson & Co. to show cause why they should not pay the sum of eight hundred dollars, the proceeds of the two notes into the hands of the administrator of Thompson’s estate.

Upon trial of the rule, the District Judge ordered the money to be deposited in the hands of the Clerk of the court, to abide the decisions of the suits of Boyle and of Mrs. Johnstm.

The administrator of Thompson’s estate appealed.

There is no error in the judgment. It was in the furtherance of justice, that the court should not order the money to be delivered to one party, when there were several contesting for the same, until the respective rights of all the claimants were adjudicated upon.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below upon the rule be affirmed, and that the succession of John 8. Thompson pay the costs of both courts.


author: Merrick, O. J.

text:
    James Ross et als. v. J. W. Crockett et als.
    Where church membership is a necessary qualification of the trustees who are to manage the affairs of the corporation, a trusteo who withdraws himself from the church and joins a church of another denomination, which latter church prohibits a connection by its members with the former, such trustee will be considered as having abandoned his office of trustee, and as having no further interest in the property of the church he has left.
    A majority of the Board of Trustees cannot undertake to act in their individual names for the board itself, and no act can be done affecting the ownership of property, except by a resolution of the board when regularly constituted and sitting in consultation.
    PPEAL from the Third District Court of New Orleans, Duvigneaud, J*.
    xi B. J. Sage, for plaintiffs. C. Roselius and E. A. Bradford, for defendants and appellants.
   Merrick, O. J.

This ease was before the court in 1854, and was remanded

for further proceedings. The judgment of the lower court was, however, affirmed, so far as it dismissed the suit as to the Christian congregation.” For a statement of facts, as far as the case had then progressed, we refer to 9 An. 337. It will there be seen that the suit was remanded for the purpose of trying the rights of the plaintiffs to the office of trustees of the Elijah Steel Church.

After the case was remanded, the plaintiff, James Ross, caused himself to be dismissed from the suit, and the Elijah Steel Church was made a party defendant, as contemplated by the decree.

Service was made upon the officers of the corporation de facto, and, at the instance of plaintiffs’ attorney, also upon James Ross, styled by the plaintiff, President of the Elijah Steel Church. Mr. Ross, without any resolution of the board of trustees authorizing the same, undertook to answer for the corporation, and filed an answer confessing the plaintiffs’ demand. The plaintiffs also disregarding the former decree of the court, amended their petition, and a second time made the Christian congregation a party defendant.

After a trial on the merits, a decree was rendered, declaring the plaintiffs and four of the defendants, the only trustees of the church, and annulling the sale to the Christian congregation, of the property sold by Elijah Steel Church to that congregation.

On the trial of the case, the greatest latitude was given by the parties to the introduction of evidence, in order that everything which could throw light upon this transaction, might be made available, and hence much irrelevant testimony has been admitted, -which is without any legal influence on the questions we have to decide.

It is quite evident that the unhappy differences which have arisen between these parties, are the result of a want of unanimity in judgment as to what was the interest of the church, and it is not necessary to suppose that they were controlled by any other motives.

The plaintiffs ask the court to do a vain thing, to restore them to the office of trustees of the church, for it is evident that they do not intend to act as such, and most of them have united themselves to churches of other denominations, where they cannot, according to the rules of those societies, longer act as members or trustees of this church. One has moved away.

Moses Greemoood, one of the plaintiffs, says : that “ he presumes that his place as trustee of the Elijah Steel Church has been filled. It is now a prosperous and harmonious church. It is one of the largest of that denomination in this city. He has no design to become a trustee of that church again."

James Ross, and two others of the plaintiffs, joined the same Presbyterian church with Mr. Greenwood. By the rules of this church, their membership and conuection with other churches ceased. A fair construction also of the rules of the church which they left produce the same effect.

Why, then, should the harmony of the church be again disturbed by restoring-corporators, who have not the qualifications to hold the office, and no intention to serve in that capacity ?

It is not only necessary that a plaintiff should have a right at the commencement of his suit, but it must continue until the day of the judgment. Thus the plaintiff whose debt is paid, compensated or novated during the pendency of a suit, must see a judgment rendered against him. So, too, if an administrator, tutor or executor, is destituted of his office during the pendency of the suit, judgment must be rendered in favor of his successor. We will recur to this branch of the case again, after noticing another point relative to the portion of "the decree, annulling the sale to the Christian congregation.

It is plain, we think, that the plaintiffs who sue simply as corporators, cannot stand in judgment’for this part of their demand. The corporators cannot act singly nor sue singly on account of the corporation. And as this touches the ownership of property, it must be done by a regular resolution of the board, whore the reasons for and against the measure, can be urged by the other trustees. The conclusum universitatis can only be formed in this manner. A majority of the board even cannot, without consultation with the others, and without' any resolution of the board, undertake to act in their individual ñames, for the .board itself. The Code says, what is due to the corporation is not due to any of the individuals who compose it. C. 0. 428.

The suit to rescind the sale of the property to the Christian congregation, can only be sued for in a direct action in the name of the Elijah Steel Church against the former, and wherein the rights of the two churches can be contested between themselves, if it shall be their interest to have such controversy.

Returning now to the question, whether these plaintiffs have a right to be re-instated as trustees in the church, we will examine the proceedings of the board of trustees, after adverting to the provisions of the charter on the subject.

The first article of the charter is in the following words, viz :

“ This corporation shall be governed by the rules and discipline of the Methodist Episcopal Church South, which now exist, or may hereafter, from time to time, be adopted by the general conference of the Methodist Episcopal Church South, provided that such rules and discipline be not inconsistent with the laws of the State of Louisiana.”

By the discipline” then in force, it was provided, on the subject of trustees, that:

“No person shall be eligible as trustees to any of their houses, churches, or schools, who is not a regular member of their church.” And,

“No person who is trustee, shall be ejected while he is in joint security for money, unless such relief be given him as is demanded or the creditor will accept.”

Provisions was made in the form of conveyances recommended by the General Conference to be followed, to secure church property and for the appointment of trustees. The property was to be held in trust and confidence :

“ That they shall at all times, forever hereafter, permit such ministers and preachers belonging to said church, as shall, from time to time, be duly authorized by the General Conferences of the ministers and preachers of said Methodist Episcopal Ohurch South, or by the annual conferences authorized by the said General Conference, to preach and expound God’s holy word therein ; and in further trust and confidence, that as often as any one or more of the trustees hereinbefore mentioned, shall die or cease to be a member or members of the said church according to the rules and discipline as aforesaid, then and in such case, it shall be the duty of the stationed minister or preacher (authorized as aforesaid) who shall have the pastoral charge of the members of the said church, to call a meeting of the remaining trustees as soon as conveniently maybe, and when so met, the said minister shall proceed to nominate one or more persons to fill the places of iiim or them whose office or offices has (or have) been vacated as aforesaid. Provided, the person or persons so nominated, shall have been one year a member or members of said church, immediately preceding such nomination, and be at least twenty-one years of age ; and the said trustees so assembled shall proceed to elect, and by a majority of votes, appoint the person or persons so nominated to fill such vacancy or vacancies, in order to keep up the number of nine trustees forever;' and in case of an equal number o'f votes for or against the said nomination; the stationed minister or preacher shall have the casting vote.”

In 1854, this provision was adopted in a more formal manner by the General Conference, and republished in the “ discipline” as one of the general rules of the church.

It is argued, that as the form of trust deed recommended by the Methodist Episcopal Ohurch South is inadmissible in Louisiana, these trustees did not, as to these subjects, adopt “ The Ohurch Rules,” for they say they adopt them only so far as applicable and consistent with the laws of the State.

It is quite true, that a proviso is contained in the Act of incorporation, that the regulations of the discipline are adopted only so far as not inconsistent with the laws of Louisiana, but this we think does not prevent the Methodist Episcopal Ohurch South, from carrying into effect the general regulations of such church, in the forms authorized by our law, and there is no reason why the whole “ discipline” should not be examined in order to ascertain the polity of such church.

It appears to us, there is nothing unreasonable in construing the discipline to mean, that trustees who were members of the Methodist Episcopal Ohurch South at the time of their appointment as such trustees, do abandon their office when they withdraw themselves from the church and join the churches of other denominations, particularly when the new church also prohibits a connection with the old. What further interest can they have in the property of the church, which they have abandoned, when they are pledged to advance the interest of the church to which they have newly attached themselves ? Is it not but reasonable to suppose that they have abandoned the office which they held, when they abandoned the church for the benefit of which it was established ?

It is true, it has been shown, that in some cases churches have been organized by appointing trustees who were not members of the Methodist Ohurch at the time of their appointment. But this appears to us to be a matter of expediency in organizing a new church, when there are not a sufficient number of male members to form a board of trustees. The disability of such trustee, is known at the time of his appointment, but it is otherwise, where a member of the church is appointed trustee, and he afterwards voluntarily withdraws himself from that church and attaches himself to a church belonging to another denomination of Christians. It may well be supposed in the last case, that he abandoned the office as well as church. Such, we apprehend, w'ould be the construction put upon the act by most persons.

The meetings of the board of trustees of the Elijah Steel Church were held at the church. The last meeting of the old board was held in July, 1848. It does not appear from the minutes how the trustees were notified of the meetings of the same.

On the 7 th of January, 1850, a meeting was held at the usual place, there being only the four defendants present as trustees, and the preacher having the pastoral charge announced the vacancy of the office of the plaintiffs, and they proceeded to fill the same according to the mode directed in the discipline as above recited. This board held three meetings in February, 1850, and with its successors in office, it has continued to hold its meetiugs at the usual place ever since, and so it has continued to manage the temporal affairs of the church which, as the witnesses say, is a harmonious and prosperous church.

The plaintiffs also attempted to hold a meeting as a board. They met at the house of James Ross, on the 26th day of March, 1850, but it does not appear that any notice was given to the other trustees. They passed a resolution purporting to rescind a previous resolution to sell certain property. Since that meeting, it does not appear that plaintiffs have concerned themselves in any manner about the affairs of the church.

As to James Ross, he has voluntarily dismissed his action. Messrs. Moses Greenwood, Newberry and Bowers, have attached themselves to the Presbyterian Church. The Rev. Mr. Curtis has left the State, and is officiating elsewhere as a minister of the Methodist Episcopal Church South in another Conference.

Hering had not met as a trustee with the board for sometime previous to January, 1850, and was expelled for a breach of discipline April 6th, 1850.

It may be, as contended by the plaintiffs, that there were not sufficient grounds at the meeting on the 7th day of January, 1850, to declare the offices of the plaintiffs vacant, as was done. But, however that may be, these plaintiffs, if they desired to preserve their rights, ought to have preserved their qualifications to enjoy them. They ought not now to be permitted to disturb the property relations of two other churches, when they cannot have the slightest interest in either.

Judgment reversed, and judgment for defendant, with costs of both courts.


author: Cole, J. Merrick, O. J.

text:
    E. B. Calmes v. Duplantier et al.
    The possession of slaves under a contract of hire by the husband in his lifetime cannot be made the basis of a prescriptive title in the wife, who continued in possession of the slaves after her husband’s death, and claimed to be the owner of them.
    A purchaser who is aware of the defects of the title of his vendor cannot claim the benefit of tho prescription of ten years.
    from the District Court of the Parish of East Baton

      U. B. <& E. Phillips and J. W. Burgess, for plaintiffs. T. G. Morgan and H. M. Favrot, for defendants and appellants.
   Cole, J.

This suit is instituted by plaintiffs for the recovery of certain slaves, of which they aver themselves to be the legal owners.

There was judgment for plaintiffs, and Penniston, one of the defendants, has appealed.

Plaintiffs allege, that these slaves were hired to Fergus Duplantier in August, 1839, and remained in his possession until his death, in July, 1844. That on the 17th of July, 1844, Josephine Duplantier, widow and universal legatee of said Fergus, took possession of said slaves and his other property, assuming to pay all demands against the estate of her husband. That these slaves were held in bad faith both by her and her husband. That on the 3d of September, 1853, Josephine Duplantier sold them, to Fergus Penniston, in whose possession they now are.

Josephine Duplantier, in her answer, does not pretend to set up any title to these negroes, but relies entirely on the alleged insufficiency of proof to maintain the title ot plaintiffs.

Penniston sets up no title whatever, except that derived from Josephine Du-plantier. , lie pleads the prescription of ten years, but this plea is not urged in argument in this court, neither can it be sustained.

Prescription was interrupted by a suit brought by the present plaintiffs on the 8th December, 1845, against Josephine Duplantier. widow and universal legatee of Fergus Duplantier, for the recovery of the same slaves mentioned in the petition in the present case. Answer was filed on the 12th October, 1846, and the suit was dismissed on the 4th of May, 1852, on motion of defendant’s counsel. It is also established, that Penniston is nephew to Josephine Duplantier ; that he has lived all his life with Fergus and Josephine Duplantier, except when he was at school. Besides, Mrs. Duplantier could not change the nature of the tenure of her husband’s possession of the slaves. She could not claim the benefit of prescription as a bona fide owner of the slaves; for her husband held them by the contract of hire, and not by title as proprietor.

Neither can Penniston succeed in the plea, for he must have been aware of the defects of title of his aunt and vendor.

The District Judge, in his opinion, has elaborately examined the questions of fact in this case, and considered that plaintiffs ought to recover the slaves. We can see no reason to dissent from his conclusion. The contest in this case is between defendants, who have no real title whatever, and plaintiffs, who have sufficiently established their title to recover from those evidently in wrongful possession of the slaves. Miller v. McElwee, 12 An. 478.

Judgment affirmed, with costs of appeal.

Merrick, O. J.

Having been applied to as counsel in this case, I decline taking part in it.


text:
    Liquidator of Clinton and Port Hudson Railroad Company v. C. W. Eason and Wife.
    "Where the liability of a stockholder ill an incorporated company; oil a mortgage given to secure his , subscription to the capital stock, depends on a future contingency, prescription will not begin to run until the contingency has happened, which was to make the payment of the subscription domand-
    "Where property encumbered with a mortgage to secure the subscription of a shareholder to the capi ■ tal stock of a corporation, is sold with shares of stock, for a certain price, and without guaranty against the mortgage, the purchaser is liable to the original stockholder who, when called on for payment of the subscription, may call in warranty his vendee, although there had never boon any transfer of the stock on the hooks of the company.
    PPEAL from the District Oourt of East Feliciana, Haralson, J.

      Jx /. McVea, for plaintiff. Musa <& Hardee and I. B. Smith, for defendants and appellants.
   Cole, J.

Two suits were brought against the defendants to compel them to pay in the one two-fifths, in the other three-fifths, being the total amount, of their subscription to the capital stock of the Clinton and Port Hudson Railroad Company.

There was judgment for plaintiff and defendants have appealed.

Appellants rely in this court on the plea of the prescription of five and ten years to the claim of the Now Orleans Gas Light and Banking Company, and of ten years against the claim for their stock subscription.

The plea cannot prevail against the claim of plaintiff for the amount due on their subscription to stock.

In the act of mortgage given by defendants to the company, the following clause exists :

All which property is to remain so mortgaged and hypothecated, until such time as any and all loan or loans of money effected or to be effected by said company, as contemplated by sections 4 and 5 of the amendatory Act herein before named, as also any interest that may have accumulated thereon shall have been paid, and the said company acquitted thereof.”

By the 5th section of the Act passed in 1833, to incorporate this company, the President and Directors were authorized to borrow money for the objects of the act, by the pledge of stock or other security, and to issue certificates or other evidence of such loans.

At the next session of the Legislature in 1834, the Act of incorporation was amended, and the capital of the company was increased to $500,000, of which two hundred and fifty thousand dollars was to be obtained by a loan on real security, and to secure the loan a subscription of stock to the amount of $300,000 was authorized.

In order to procure the loan of $250,000, authorized by this amendment, the company were empowered to issue bonds, and did so issue them for the preceding amount, bearing five per cent, interest. The terms of the bonds were as follows : $15,000 falling due eight years after date ; $15,000 falling due fifteen years after-date ; and $100,000 becoming due twenty years after date.

This amended Act also provided, that to secure the payment of the capital and interest of said bonds, the subscribers shall be bound to give mortgage to the satisfaction of the President and Directors of the company, or property to be in all cases equal in value to the amount of the stock respectively held by them. Sess. Acts 1834, pp. 114, 115 and 116.

On the 11th of January, 1836, the New Orleans Gas Light and Banking-Company were released from their obligation to establish a branch at Port Hudson, in the parish of East Feliciana, on condition that they would purchase the bonds aforesaid, of the Clinton and Port Hudson Railroad Company, amounting to $250,000, and lend the company $100,000, at the rate of six per cent, per annum. Session Acts of 1836, p. 1.

The New Orleans Gas Light and Banking Company complied with the condition of the Act of 1836.

The mortgage now sued upon was given, among those of others, to secure the loan of $250,000, and the bonds that should afterwards be issued to represent the same.

The said Banking Company is yet the holder for a large amount of the bonds of the said Railroad Company, secured by stock mortgages, and of bonds given for the loan of the $100,000, and large arrearages of interest are due.

As then one of the conditions of the mortgage of the subscriber to the capital stock of the Railroad Company was, that the property was to remain hypothe-cated until all loans of money effected, or to be effected, by virtue of the amended Act before described, were paid, and as they are not yet paid, prescription cannot even begin to run.

For this condition involves the principle that the mortgagors cannot have an action to force the mortgagee to raise the mortgage, until all the loans of money made under the amended Act were paid. Suppose the defendant were even now to institute a suit to have their mortgage erased, their action could not be maintained, because this condition in the mortgage obligated them to let the mortgage rest undisturbed until the loans aforesaid were paid.

It may also be observed, that as the mortgage of defendants was granted to secure the bonds given for the loan of $250,000, there was, therefore, a tacit condition in this contract of mortgage, that the amount of the mortgage should not be domandable until it was necessary to pay these bonds. The act of mortgage also shows that this tacit condition was in contemplation of the parties at the moment of the execution of the mortgage, for it contains the following clause :

And the said Calvin W. Eason and his said wife, further agree and covenant with the said company, that if on the requisition of the Board of Directors thereof made in conformity to the provisions of the amendatory ¿Act of the Legislature mentioned herein, they, the said Calvin W. Eason and his said wife, or their heirs or legal representatives, as the case may be, shall fail to pay the said sum of two thousand dollars, or any part thereof, together with any interest that may have accrued thereon, or shall fail to pay any installment, or the whole of any loan or loans of money that he, the said Calvin W. Eason shall have obtained from said company, on the credit of this present act of mortgage, as contemplated and provided for by section twenty-four of the before named amendatory Act, together with any interest that may have accrued thereon, then and in such case interest at ten per cent, per annum is to be allowed on any or all sum or sums of money so required, until such time as the same shall be paid.”

It thus appears the defendants were not to be obliged to pay until a requisition was made upon them for the whole or any part of the amount of their mortgage, and it was then only in default of the whole or a part thereof, that the penalty of ten per cent, interest was to be allowed on any or all sum or sums of money so required, until such time as the same shall be paid.

This act of mortgage, therefore, left to the discretion of the Board of Directors the epoch at which they should exact the payment.

The mortgage debt was not, therefore, demandable until the Board of Directors should determine it ought to be demanded.

Now, it appeal's, that this Railroad Company forfeited its charter, was put in liquidation as an insolvent corporation, and that commissioners were duly appointed under the Act of 1842. Session Acts of 1842, p. 234.

And by Act of 1850, entitled, “ an Act for the further liquidation of the Clinton and Port Hudson Railroad and Banking Company,” (Sess. Acts, of 1850, p. 225,) the Governor was authorized to appoint a liquidator, whose duty it shall be to “ liquidate the affairs of said insolvent corporation, so far as it has not already been done, as speedily as possible, in pursuance of the provisions of this Act, and the several Acts now in force relative to the liquidation and final settlement of the affairs of insolvent corporations.” It is admitted in the record, that “through the agency of the Commissioners appointed, and liquidators duly appointed from time to time by the Governor, there has been a continuous and uninterrupted administration of this insolvent corporation, from 1842 up to the date of this suit, and up to the time of this admission.”

The Commissioners, and afterwards the Liquidators, were appointed to administer this corporation in the stead of the Board of Directors. It became then their duty, and was in their legal discretion to demand the ¡jayment of the subscriptions to the capital stock when, in their opinion, they were needed.

It is established by the decision in the suit of the Gas Light and Banking Company v. B. Haynes, Liquidator of the Clinton and Port Hudson Railroad Company, 1 An. 115, that the plaintiffs in that case represented they were the holders of the bonds of this Railroad Company, secured by stock mortgages to the amount of two hundred and twelve thousand dollars, and of bonds given for the loan of money to the amount of $92,000, and that there was no means of payment, except by calling upon each of the stockholders of the company for the full amount for which he has subscribed and is liable. They pray that their debt may be acknowledged as due by the company, and that the Liquidator may be ordered to collect from the stockholders the full amount of the stock subscribed by them, and to enforce the mortgages given by the stockholders to secure their subscription to the stock and the bonds issued on the faith of those mortgages.

The Liquidator denied any right of action on the part of plaintiffs against him as Liquidator, and that plaintiffs were bound to resort for payment of their bonds and interest to the individual corporators in their individual capacity. This court held, that it was the special duty of the Liquidator, imposed by the Act of 1850, to collect all the assets of the Clinton and Port Hudson Railroad Company, including the subscriptions of the shareholders, by suit or otherwise, as speedily as possible, and to distribute the amount collected every six months, by filing a tableau of contribution in court, to be homologated by judgment, after legal notices to the creditors.

It is thus shown that the Liquidator did not make the demand of the stockholders, because he was of opinion he was without authority so to do, and, it is admitted in the record, that three-fifths of the debt of defendants for their subscription to the capital stock was legally demanded of them on the 11th day of September, 1852, and the remaining two-fifths on the 22d June, 1854.

Even supposing that prescription could run when it was stipulated in the mortgage, that the property should remain hypothecated until all the loans of money therein designated were paid, still, as it was a condition in the contemplation of the contracting parties, that a demand should be made upon the shareholders by the administration of the company, when, in its discretion, payments of the whole or a part of the subscription to the stock were necessary, prescription could not, therefore, begin to run before the debt represented by the amount of the subscription of each stockholder ought, in the discretion of the administration, guided by the provisions of law, to be demanded of the shareholders, and before it was actually demanded.

Citation in the petition for three-fifths of the subscription, was served on the defendants on the 30th of December, 1853, and as demand is admitted to have been made for the same on the 11th of September, 1852, prescription had not accrued.

In the petition for the remaining two-fifths of the subscription, the answer of defendants was filed on the 5th of November, 1858, and as it is admitted the demand was made on the 22d of June, 1854, prescription had not accrued for the balance of the claim.

It should also be remarked, that mortgages to secure the payment of subscription to the capital stock of corporations, are given to guaranty the payment of their liabilities, in the event their assets do not, without the amount of stock-mortgages, suffice to satisfy them. It would seem, then, as the liability of the stockholder depends upon a future contingency, that prescription ought not to begin to run until at least the contingency had happened.

But the defendants contend, that all the obligations of the railroad company became due as soon as it was declared to be insolvent in 1842, and it was the duty of the creditors of the company to have forced by process of law the administration of the company to make the necessary calls upon the shareholders for contributions, and to enforce their collection. O. C. 2049. That by Article 3508 of the Civil Code, all personal actions, except those enumerated in the title of prescription, are prescribed by ten years, if the creditor be present; and as the company was put in liquidation in 1843, prescription has accrued in their favor against any action to compel them to contribute any part of their subscription to the capital stock, in order to pay the debts of the company.

Defendants rely upon Brown v. Union Insurance Company, 3 An. 181, and upon T. O. Starke, Receiver of the Atchafalaya Bank, v. Burke, Watt & Co., 9 An. 342.

The principles decided in those cases are not applicable to this.

The charters of the Union Insurance Company and of the Atchafalaya Bank provided for the payment of their stock at certain designated periods of time, except that the charter of the former declared that a specified part of it was payable at no particular period, the Directors being authorized to call in at such time and in such proportions as they might see fit, and the charter of the latter provided that the payment of a designated part of the stock might be prolonged by the Directors.

The principles recognized in these two decisions are, that the creditors of an insolvent corporation are entitled to cause it to be administered, if the administration of the company neglects to act and to force the stockholders to pay the whole or a part of their stock for the purpose of distribution in a concurso among the creditors of the company; and that if ten years have elapsed from the time that any installment of stock was due, then prescription had accrued.

In the insurance case, the court refused to recognize the validity of the pica of prescription for the part of the stock, for the payment of which no period was fixed.

As no period was fixed for the payment of the stock of defendants, except that which should be designated by the administration of the Railroad Company, and as ten years had not expired from the time when the payment of the stock was demanded, which might be considered the time fixed for payment of the stock, it is clear that even under the two decisions just quoted, prescription had not accrued in favor of the defendants against the claim of the company for the payment of their stock.

In the case of the New Orleans & Great Northern Railroad Company v. Estlin, it was merely decided that the prescription of three years, of the Act of 1852, (Session Acts, p. 90,) is not applicable to the case of a demand for balance of subscription to the capital stock of a corporation. 12 An. 184.

In Haynes, Liquidator of the Clinton & P. H. R. R. Company v. Isaac Wall & Wife, the court held, under the second exception plead in the case, that the plea of prescription could not bo maintained where the suit against the stockholders was brought in less than ten years after the maturity of the first series of the bonds of the company. 13 An 259,

In Succession of Shropshire, 13 An. 528, this court held that there is no proscription of obligations of individuals for the security of stock subscribed and unpaid, so long as the liquidation of the company continues.

This decision corresponds with the obiter dictum of the court in Gas Light & Banking Company v. Haynes, Liquidator, 7 An. 116, except that in that case, the remark is made in answer to the plea of prescription against the claims of the Gas Light Company, whilst in the Succession of Shropshire, the decision applies to the plea of prescription against the payment of stock subscriptions.

The decision in the Succession of Shropshire conflicts with those in Brown v. The Union Insurance Company and Starke, Receiver, v. Burke, Watt & Co., 3 An. 181, 9 An. 342.

It is unnecessary in this case to express any opinion upon the principle involved in these conflicting decisions, because we have already shown that even if the prescription of ten years could be plead by stockholders of an insolvent company against the payment of their stock, that sufficient time has not elapsed to make the plea effective for the defendants. And as to the plea of prescription of five and ten years, against the claims of the Gas Light Company, this question will, (if it has not been settled by previous decisions,) as the court said in 1 An. 116, more properly arise on tableaux of distribution and contradictorily with all the creditors of the corporation.

¥e have been induced to consider the plea of prescription of ten years in this case at length because it is represented to be one of great importance, not only to the immediate parties tó this suit, but to a great many of the citizens of the State.

The only other question to be disposed of is the liability of George Keller to to warrant the defendants against their responsibility for their subscription of stock.

The judgment of the District Court rejected the claim in warranty.

It is contended by Keller, that he is not liable in warranty, because the 23d section of the Act of 1834, (Session Acts 1834, p. 120) provides that a mortgage stockholder of the Clinton & Port Hudson Railroad Company “ may transfer his stock and bo released from Ms mortgage, upon the new stockholders furnishing mortgage to the satisfaction of the President and Directors of said company.” And that, it is admitted by defendants, “ there never was any transfer on the books of the company of their mortgaged stock, and that the books show no act of ownership on the part of the warrantor. Nor does the stock register show any mortgaged stock to have been owned by said warrantor.”

We are of opinion that the 23d section of the Act of 1834 prescribes the mode in which a mortgage stockholder may be released from his obligations to the company, and that it does not prevent a third party from bindiug himself to guaranty the stockholder against the mortgage debt due by the latter to the company.

When the stockholder sells his shares, it is all he can do to transfer his title to them. It then devolves upon the purchaser, under this 23d section, to furnish a mortgage to the satisfaction of the President and Directors of the company. If he does not, the original stockholder still remains liable to the company, and the purchaser is not a stockholder, but he is still liable to the original stockholder, if he has assumed the mortgage, because it devolved upon him, and not upon the original stockholder, to furnish a mortgage and thus perfect the sale.

In the sale of the tract of land upon which the mortgage was given to the company by the defendants, the latter sold not only the land, but also their twenty shares of stock for a certain price, and the act of sale declares that the vendor warrants the title to this land against everything, except the mortgage in favor of the Clinton and Port Hudson Railroad Company, to secure the payment of the stock herewith transferred, and that the property was sold subject to the mortgage of the company.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended as follows: That the part thereof which rejects the claim in warranty of defendants against George Keller be avoided and reversed, and that the defendants have judgment in warranty against said Keller, and recover from him twelve hundred dollars, with ten per cent, interest thereon from the eleventh day of September, 1852, and the further sum of eight hundred dollars, with ten per cent, interest thereon from the twenty-second day of June, 1854, till paid, and their costs in the lower court; and that the judgment so amended be affirmed, and the costs of appeal be paid by said Keller.

Merrick, 0. J., having been of counsel in this case, recused himself.


author: Buchanan, J. Mebriok, C. J.,

text:
    Wm. P. Ealer v. McAllister & Co.—George G. Ealer v. same.
    A -valid attachment of an accopted draft filed in a suit may fie made, fiy citing as garnishee the Cleric of the court in whose custody the draft is, and proving by his answers to interrogatories his possession of the draft.
    It is too late after an answer to the merits, to move to setasklo an attachment, on tho ground of the insufficiency of the attachment bond, when it is not aUeged that tho surety had become insolvent since signing the bond.
    from the Third District Court of New Orleans, JDuvigneaud, J.

      Lea & Marr, for plaintiff. L. E. Simonds, for defendant and appellant.
   Buchanan, J.

The first of these suits (which are submitted together) is upon defendant’s acceptance of a draft in favor of L. L. Ealer, and endorsed in blank by the payee.

The defendant admits the signature of the acceptance, but pleads specially that he has been served with garnishment process under a fieri facias issued by a court in St. Louis, Missouri, (where both parties reside,) upon a judgment obtained against one Henry A. Ealer, who is the real holder and owner of the accepted draft sued on; and that defendant is in danger of having to pay the said acceptance twice.

If this be so, the defendant is entitled to the protection of the court.

The evidence shows, that a writ of fieri facias issued on the 5th of November, 1857, (one month and nineteen days before the institution of this suit,) to the Sheriff of the county of St. Louis, Missouri, from the St. Louis Court of Common Pleas, upon a judgment recovered by Thomas H. Jones against Henry A. Ealer and Miles T. Reiman. The execution was returnable the second Monday of March, 1858, which, it seems, was the next ensuing term of the court from which it issued. On the same day that the writ issued, a summons was served by the Sheriff of St. Louis on the present defendants, commanding them to appear in court at the return term of the writ, and answer on oath such interrogatories as might be exhibited on the part of the plaintiff in execution, “ touching the indebtedness of the said defendants.”

There is no proof that any interrogatories were ever exhibited — which it seems must be done, according to the statute of Missouri, - within three days following the commencement of the return term of the writ, in order to fix the garnishee. A case of attachment of this debt in Missouri, is therefore not made out. But a record has been offered in evidence, without objection, (No. 12,427 of the docket of the Fourth District Court of New Orleans,) which show that, subsequently to the institution of this suit, but before the trial in the court below, an attachment suit was instituted by Thomas II. Jones against Henry A. Ealer in a court of Louisiana, in which suit the accepted draft, annexed to the petition in this case, was attached as the property of another person than the present plaintiff by garnishment process, and interrogatories served upon the Clerk of court, in whose custody the said draft is.

The answers of the Clerk to interrogatories acknowledge the possession of the draft.

It is urged that this proceeding is inoperative as a seizure; and plaintiff’s counsel has referred us to the cases of Woodworth v. Limmerman, 9 An. 525, Price v. Emerson, 7 An. 237, and Stockton v. Downey, 6 An. 584.

In the case of Woodworth v. Limmerman there was neither actual detention of the evidence of debt by the Sheriff, nor a citation in garnishment. The court says, “ Without an actual seizure, or a citation in garnishment, there can be no attachment. Service of a mere notice on the Clerk, who is the legal custodian of the records of his court, or even on the debtor against whom a suit is pending, is no more effective than publication in a newspaper would be. It is not a mode of attaching property pointed out by law.”

The difference between that case and the present is, that here a regular garnishment process by citation, with interrogatories annexed, was served on the Clerk of the court; which is a mode of attaching property by the law of Louisiana. C. P. 246, 247.

The case of Price v. Emerson is more similar to the present one, and is even a useful precedent, as far as if goes, for the protection which our decree will extend to the defendants. In that case, an attempt was made by a Sheriff to obtain the actual possession and detention, by levy under execution, of notes filed in court by another party than the defendant in execution. The court decided that this could not be done, by reason of the confusion which would result from the summary seizure and removal of evidences of debt, which had been filed by litigants in courts of justice, for the purpose of enabling them to prosecute their rights. But the court went od. to declare, that the plaintiff in execution was not without rights acquired under the proceeding had in that case. “ It is true,” says the court, “ that possession is of the essence of a seizure, and it has been frequently held that no valid seizure of tangible property can be made, without taking it into possession ; but in the absence of express law, it might be within the power of the court, in virtue of the equity powers conferred by Article 21 of the Civil Code, to recognize the proceedings as conferring inchoate rights to be established and matured upon proofs made under proceedings had by intervention or otherwise.” And the decree was, that the Sheriff’s rule be dismissed, without prejudice to the rights of the creditors in the execution; and that the Cleric of the court do retain the notes, subject to the further order of the court in the premises. Note, that the creditors in execution were not parties before the court in Price v. Emerson ; yet the court considered it to be within its equitable powers to protect their interest, by allowing them to make themselves parties subsequently, and by restraining the Clerk from parting with possession of the notes in his custody.

In the present case, Jones, the plaintiff) in the attachment suit in the Fourth District Court, made an appearance in the court below upon an application for a new trial, by express permission of the court.

The case of Stockton v. Downey contains nothing beyond what is said in the other two cases reviewed, that requires particular notice.

Defendants, after answering to the merits, took a rule to set aside the attachment, on the ground of insufficiency of the surety on the attachment bond. The court dismissed this rule, on the application of plaintiff, as taken too late. We find no error in this ruling. It is not alleged that the surety had become insolvent since the bond signed.

The remarks above made are applicable to the second of the suits now submitted, which is instituted upon a receipt or certificate of deposit; and in which the same defences are set up.

There is error in the interest allowed by the court below, which should be five per cent, instead of six. There is no proof of the rate of interest in Missouri being different from our own.

It is, therefore, adjudged and decreed, that the judgments of the court below in the two cases of William P. Ealer v. McAllister & Co. and George G. Ealer v. McAllister & Co. be amended, by reducing the rate of interest allowed by said judgments from six per cent, to five per cent; that in other respects the said judgments be affirmed; and it is further decreed, that the Sheriff of the parish of Orleans hold the moneys made under the present judgments, subject to the decision of the Fourth District Court of New Orleans upon the attachment levied in the suit of Thomas H. Jones v. Henry A. Ealer, No. 12,421 of the docket of said court; and lastly, that the costs of these appeals be paid by plaintiffs and appellees.

Mebriok, C. J.,

concurring. The mode of seizing rights and credits under an attachment orfi. fa., has of late years occasioned great difficulty and difference of opinion. In regard to promissory notes and bills of exchange, this court regarding them as things, and mating no distinction between the debt, and evidence of debt, has required their actual seizure whenever practicable.

But it seems to me, that when a promissory note or bill of exchange has been put in suit and annexed to the petition, or has been offered in evidence, it not only loses its commercial character, but its very identity, and is incorporated into the record of which it forms an essential part.

It is no longer private property as a bill of exchange or promissory note. The debt of which it is the evidence, exists in favor of the holder, but the note or bill has become a portion of the records, and is under the control of the public authorities, who, while they have the custody of the same, have no interest or ownership therein.

The object of the garnishment is to compel the debtor of money or property to admit his indebtedness, in order that it may be applied to extinguish the debt of his creditor. C. P. 246.

He is to answer as to the money he owes, or the property he has in Ms possession. C. P. 247.

Now, as the Clerk is but the simple custodian of the papers filed in a cause ; as he has no control over them ; ás he cannot sell them, pledge them, use them in any way, or even suffer them to be taken from the files, without an order of the Judge, he has, in no legal sense, the possession of them. They are in the possession of the law, in gremio legis. How then can the garnishment be successfully addressed to the Clerk ? Suppose, as in this case, the Clerk answers that the notes are on file in his office, can the court order the Sheriff to sell them as personal property ? It may be the defendant in the action will have something to say. He may have formed his reconventional demand, or have some other reason to urge why the notes should not be taken from the files. Suppose the attachment issues from some other court, can the Judge of that other court order him to deliver documents, filed in his own court, to the Sheriff, to be sold ?

If interrogatories are to be propounded to any of the officers of court, they ought to be propounded to the Judge, who alone has the most 2J0wer over it, and who may authorize a paper (in a proper case) to be taken from the files— but this would be absurd. I have always thought, that when commercial paper is once'put in suit and filed, the debt loses its negotiable character, and the process of garnishment ought to issue against the defendant in such suit, and not against the Clerk or any other officer of court. The defendant is the debtor and not the Clerk, and the proceeding against the debtor directly, avoids circuity, and loads to a direct judgment at once, which cannot be accomplished in the circuitous proceeding against the Clerk. See 5 La. 486.

I think, therefore, that Jones acquired no rights by his garnishment of the Clerk, but as he may possibly have acquired some rights under his Missouri seizure, I concur in the decree which protects his right. Seo 2 Kent’s Com. 119.