text:
    No. 1036.
    Sosthene Roman v. J. Denny et als.
    Where a fieri facias, under which property has been seized, is returned not satisfied before the pro* perty is sold, the proceeding under the writ will be considered to have, been abandoned, and the seizing creditor cannot claim the benefit of any privilege which the seizure gave him on the fruits of the property seized.
    To enable the plaintiff to sell the property, an alias fieri facias must be issued, and a new seizure be made and new notice be given.
    The fruits or revenues of real estate which accrue and are separated and gathered from the land prior to the date of the seizure, cannot be sold by the sheriff in satisfaction of the writ in his hands; only such fruits as are produced or gathered since the seizure was made inure to the benefit of the seizing creditor. O. C. 457.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      O. Boselius and Alfred Philips, for appellants.

      Fellows & Mills, Buchanan & Gilmore, for appellees.

      Brief of Boselius & Philips, for appellants.
    —On the 24th of May, 1861, the plaintiff applied for and obtained an order of seizure and sale, founded on the vendor’s privilege and special mortgage on a sugar plantation and its appurtenances, which he had sold to the defendants. ■ After the seizure had been made, one of the defendants, Jacob Denny, applied for and obtained a suspensive appeal, from the order of seizure and sale. In consequence of the civil war, the case remained undecided in the Supreme Court until the 12th June, 1865, when the judgment was affirmed. An alias order of seizure and sale having been taken out, a controversy arose in relation to a quantity of sugar, molasses, etc., found on the plantation, which was claimed by Forsyth and others, who allege that they were lessees of the property under Denny. By consent of parties these products were consigned to the firm of Eugene Rochereau & Co., to be sold, and the proceeds held subject to the decision of the Court.
    On the 6th January, 1866, the plantation was adjudicated by the sheriff, under the alias order of seizure and sale, to the plaintiff in the suit.
    The alleged lessees intervened, and claimed the proceeds of the sale of the sugar, molasses, etc., sold by Rochereau & Co.

      Judgment, having been rendered in their favor by the District Court, the plaintiffs .appealed.
    These products were raised on the plantation since the seizure in 1861; and it is respectfully submitted that the solution of the question is found in Article 457 of 'the Code, which provides, that “ the fruits of an immovable gathered or produced since it was under seizure, are considered'as making part thereof, and inure to the benefit of the person making the seizure.” The seizure was never abandoned; and the suspensive appeal left the matter in statu quo during its pendency. Its final result depended on the judgment of the Supreme Court; and that judgment having been in affirmance of the order of seizure and sale, the parties occupy the same position as if no .appeal had been taken. It is said that the writ was returned by the sheriff, and that thereby the seizure was abandoned. But no such conclusion can fairly be drawn from that fact. The execution of the writ yvas arrested by the. suspensive appeal, during a period of five years, and the officer had to make a return to the Court for the purpose of showing why he had not executed its mandate.
    We contend, in the second place, that the intervenors have not established their claim to this fund; first,. because Denny, their pretended lessor, had no right to give, a lease to them after the property was under seizure; and secondly, because their pretended lease is under private signature, and has no, date, so far as third persons are concerned, until it was filed in this sqit. ,

      jBrief of Fellows & Mills, Buchanan <& Gilmore, for appellees.
    —The legal question, on the answer'to which this cause mainly turns, is the date of the seizure under which the mortgaged property of defendants was sold.
    The appellees! ihterveñors, contend—and with whom the Judge a quo agrees, that the actual seizure was made on the 16th November, 1865. The appellants insist that it was on the 24th of May, 1861.
    The importance of the question is.this: If the seizure be considered as of l6th‘ November, 1865, then the crop and fruits of the plantation gathered before the seizure, though subsequent to 24th May, 1861, are not covered’ by the seizure.
    ■ If the seizure, under which the property was sold, be held to be that of May'24th, 1861', as contended "for by appellants, then the said fruits and revénues are legally covered by the seizure.
    The record shows'the following .facts: On 25 th May, 1861, a writ of seizure and sale issued.
    On 12th June, 1861, the plantation was seized.
    On 26th July, 1861, tlie writ was arrested by a suspensive appeal.
    On 13th July', 1855, after decision by Supreme Court, an alias writ of seizure and sale was issued.
    ■On 2d August, 1865! the' sheriff again seized the plantation. His return statés: Received the within writ of seizure and sale on the 17th July, 1865.. Oh the 2d. of August, same year, seized the property, as will be fully shown by the .annexed notice of seizure. ”
    “And on the 23d August, same year, received the annexed order from Headquarters, Military Department, postponing and suspending all proceedings; wherefore, I return said writ of seizure and sale to this Honorable Court not satisfied. August 24th, 1865.” - ;
    On the 16th November, 1865, another alias writ of seizure and sale was received by the sheriff, who, in his return, says: ■'“ Received the within writ of seizure and sale on the 16th November, 1865. On the same day I seized and took into my possession the' within named and described property.”
    On this statement of facts, as established by the record, it is submitted that the ruling of the District Court is correct in fixing the date of the actual seizure under which the property whs sold, as the' 16th November, 1865.
    A valid seizure is an act of corporeal possession by the' sheriff. - Its duration depends upon the time such possession is held, by the sheriff. It has no effect until such possession is acquired.' ':It ceases with such possession. That possession of the sheriff rests Only on the writ. When he returned the writ on the 25th of August, 1865, the seizure and possession of the sheriff necessarily ceased. (See Black v. Catlett,-'1 Rób. 540.) Hence, while it be true that “ the fruits of ah. immovable,' gathered or produced since it was under seizure, are considered ¿s making a part thereof, and inure to the benefit of the person making the seizure, ” yet, as the crops and fruits claimed in the case-at bar'were gathered previous to the 16th of November, 1865,’the’ date " of the Wctiial ,seizu'i'e''uhder which the property was sold, such crops and fruits, gathered before that time, are not affected by such seizure.
    ' The 456th Article of the Code covers the facts: “ As soon as the crop is cut down, and the fruits gathered or the tree? cut down, .although not yet carried off, they are movables. ”
    ■ If corroborative proof of the correctness of the opinion of the District Judge were required, it could be found in the record,
    1st. The continuous actual possession of the plantation by, Denny and the Forsyths, from the date of the suspensive appeal until the seizure on .the 16th of November, 1865, shows that the sheriff was not in possession of the mortgaged property.
    The fact of the subsequent seizure by the sheriff, shows abandonment of the previous seizures.
    The agreement between the widow and heirs of Roman and the Forsyths, on the 29th of April, 1863, shows that said widow and heirs did' not consider the plantation to be then under seizure, for it'recites “that in case the Magnolia plantation is seized under the legal process, ” etc., said Roman “will keep said J. & C. Forsyth in possession as keepers or otherwise,” clearly admitting a previous possession of the Forsyths.
    The judgment of the Supreme Court decrees: “ It is ordered, adjudged and decreed, that the order of seizure and sale be affirmed, and that the sheriff seize and sell the property therein described in the order, except the negroes therein mentioned.” Why should a new seizure have been ordered, if the original seizure had been considered in force 1 f
    ■ Again, the original seizure in May, 1861, was clearly illegal, for it was made previous to notification of parties defendant. See record, and cases of Stale v. Judge of Second District Court of New. Orleans-—On Relation of

      Jacob Denny, 16 An. 390; and lioman v. Denny, 17 An. 126; McDonogh v.Fost, l-Rob.,297.. 14 An. 105.
   HowBnp,.,J.

This contest • arises under the 457th Article C. C., which provides, that “ the fruits of an immovable gathered or produced since it was under seizure, are considered as maldng part thereof, and inure to the benefit of the-.person making the seizure;” and the question to be de,termine.d-.is:-;atwhat date-th^ seizure, under which the mortgaged property .of defendants was actually made. The appellants, representatives of plaintiff, contend that it was made on 24th May, 1861; while the appellees, interv.enors and lessees of the property, insist that it was made on 16th November,'-1865. .

.-T-he-'rec.ord shows the following,..facts: ■ On 25th May, 1861, a writ of-seizure and sale issued; on-12th June following, the sheriff of the parish of St. James seized the plantation, and on 26th July, same year, the writ was; arrested by a, suspensive appeal, allowed upon a mandamus from the Supreme Court, which - issued on. the ground that no legal seizure had-been, made.; After which a rule was taken by two of the defendants to obtain possession-from the sheriff, which on 14th January, 1862, was made absolute,, on.the ground that the seizure was illegal and null, from which ruling no appeal.has been taken. On the appeal in the cause, this Court in 1865, affirmed.the judgment of seizure and sale, and ordered the sheriff to seize and sell the property described in the order. An alias writ issued on 13th July, 1865, under which the sheriff seized the property on 2d August following, and on the 24th same month, he returned the said writ not satisfied, in consequence of a military order suspending all proceedings. Aud on the 16th November, 1865, .another alias writ was received by the sheriff, who, in his return, says: “Received the within writ of seizure and sale on the.l6th-November, 1865. On the same day, I seized and took into my possession the within named and described property.” Under this writ the property was sold. ■ It also appears that Denny leased the said plantation to J. & C. Forsyth, intervenors, for two years, beginning on 2d January, 1865, while the appeal was pending.-

From this statement of facts, it is manifest that the District Court-did not err in fixing the 16th November, 1865, as the date of the actual seizure, under which-the property was sold; and as the fruits in controversy were gathered prior to that date, they were properly awarded to the intervenors, whose right to them seems to be fully established.

. We think the record shows that the sheriff did not have possession after the judgment on the rule in January, 1862, ordering the defendants to be ■ put in possession, until he again seized in August, 1865, when he again abandoned possession and seizure, by returning the writ unsatisfied. 1 R. 540.

The appellees have asked an amendment of the judgment, so as to allow them the value of other property claimed by them, and not included in the proceeds of the crop. -This claim is for one-half the value of a sawmill on the place when rented- by the Forsyths, a railway and cars put thereon by them, lumber, cord-wood and corn, amounting to $11,026, ' and it seems not to have'received any consideration in the action'óf the District Judge, further than in reserving intervenors’ rights to all damages incurred.

As the evidence, on this point, is not altogether satisfactory, and counsel for appellees have not referred to the subject in their brief, we will not disturb the judgment in this respect.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


source: Caselaw Access Project

author: Ilsley, J.

license: Public Domain

text:
    No. 1060.
    Jonathan Emanuel v. Charles F. Hatcher.
    The reasons for the judgment rendered by the District Court were: “ When after hearing evidence and argument of counsel, and considering the law, evidence and argument, it is ordered ” etc: Held— That this is as much a reason for judgment in favor of defendant as of plaintiff, and does not meet the requirements of the Constitution, Art. 76. Tit. 5, Con. 1864.
    The Supreme Court has the power to render in the premises such a judgment as the Court below should have rendered: and where the evidence is before the appellate Court to enable it to do so, a final judgment will be pronounced, after declaring the judgment of the lower Court null and
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Phillips & Levy, for plaintiff and appellee.

      W. B. Koonlz, for defendant and appellant.
   Ilsley, J.

This action is founded on a contract of lease, made in the city of Mobile, Ala.

There was judgment for the plaintiff, and the defendant has appealed.

The final judgment contains none of the reasons in which it was rendered.

■ A reason for a judgment, the 'one assigned in this case, viz: “When after hearing evidence and argument of counsel, and considering the law, evidence and argument,” is as much a reason for judgment in favor of defendant as of plaintiff. Police Jury v. Bozman, 11 A. 94 18 A. 360.

• The judgment therefore is unconstitutional, (Art. 76, tit. 5, Con. 1864) but this Court has the power to render in the premises, such judgment as the Court below should have rendered, there being in the record sufficient evidence to enable it to do so. Hatcher, Tutor, v. Dodd, 12 La. 143.

The lease is admitted, and it is not shown that any particular currency was stipulated, in which the rent was to be paid.

The defendant has only himself to blame, if the property leased was occupied by the military authorities, as he abandoned the leased premises. That defence therefore cannot avail him; even, as the plaintiff maintains, if the common law, “ regarding a lease as an absolute purchase for the time, would not justify the application of the maxim caveat emptor.”

We think the plaintiff has fully made out his case; and for the reasons here given, it is ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed, and proceeding to pronounce such judgment as should have been pronounced by the lower Coirrt for the reasons aforesaid, it is ordered, adjudged and decreed by this Court that there be judgment in favor of Jonathan Emanuel, the plaintiff, and against Charles F. Hatcher, the defendant, for the sum of twelve hundred and seventy-five dollars, with, legal interest on four hundred and twenty-five dollars, from the 1st May, 1865, on four hundred and twenty-five dollars from the first of August, 1865, and on four hundred and twenty-five dollars from the first of November, 1865, the costs of the lower Court to be paid by the defendant, and those of. this Court by the plaintiff and appellee.'


author: Labauve, J.

text:
    No. 1063.
    William Hunt v. J. M. Stone et al.
    Payment of a promissory note to the holder, endorsed in blank, -will dischargé the drawer and endorser.
    Where the drawer and endorser of a promissory note seek to avoid payment on the ground that the , • holder is not the owner thereof, and that they have equities against the veal owner, the burden oí proof is on them to show the equities that exist. |J
    The holder of a promissory note, though he is only the agent of the owner, may sue and recover judgment in his own name.
    A PPEAL from the Fifth District Court of New Orleans, Leaumoni, J;

      Whitaker, Fellows & Mills, for plaintiff and appellee.

      Geo. S. Lacey and Alexander Marks, for defendants and appellants.
   Labauve, J.

Tlie plaintiff claims of the defendants in solido, the sum of $3,000, with interest, upon a note signed by Stone and endorsed1 by Chase, both defendants. ■

The defendants answered by a general denial; admitted their signatures as maker and endorser. They further averred that the plaintiff' was not the owner of the note, but that it belonged to one Boss; that said plaintiff acquired the . same under such circumstances as to subject the said note to certain equities, which could have been urged against said Boss; they specify those equities, going to show a failure of consideration. '

The Court, after hearing the evidence, gave judgment for plaintiff, and the defendants appealed.

Alexander Boss, from' whom plaintiff acquired the note, clearly shows a consideration, and defendants have not attempted to prove the equities by them pleaded. The plaintiff was ■ interrogated, and he shows that he acquired the note in good faith, and that he is the holder thereof, subject to a.certain stipulation between him and Boss: that when the note was collected, the plaintiff should pay over to Boss whatever sum should be realized after paying all expenses of collection, and the sum of $1,800 and interest, diie by said Boss to plaintiff. This is a matter with which the defendants have nothing to do; the note is payable to order, and endorsed in blank by the payee; the plaintiff, being the holder, is entitled to receive payment thereof. C. C., Art. 2141, No. 1. Even if the plaintiff were only agent of Boss, it is well settled that he might sue in his own name. 2 L. 264.

." Judgment affirmed, with costs.


author: InsiiET, J.

text:
    No. 1056.
    John Lynn v. J. Lowenthal.
    Any amendment of the judgment of the Court below must be prayed for in the answer to the appeal; otherwise, it will not be noticed by the Supreme Court.
    A
    PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      J. J. E. Planchará and E. Warren, for plaintiff and appellee.

      T. L. Lemly and J. B. Cotton, for defendant and appellant.
   InsiiET, J.

The plaintiff claims as damages in this suit, four hundred and fifty dollars.

' He occupied as a coffee-house, the first floor of the house No. 56, in Perdido street, and, at the same time, the defendant was permitted to occupy the garret in the same building.

During this joint occupancy of the house, the effects of the plaintiff in his coffee-house, consisting principally of cigars, salt, coffee, spices, etc., were greatly damaged by water from the defendant’s hydrant in the garret, which, through his fault or negligence, was left open, and by which the plaintiff’s coffee-house room was completely flooded.

A careful examination of the evidence has satisfied us, that the damage sustained by the plaintiff, through the defendant’s negligence, was greater than the lower Court awarded to him. He has not prayed in his answer to the appeal for any amendment of the judgment, and it will not be noticed in his brief, (Hite v. Barker, 17 An. 141) and the defendant being liable to the plaintiff for the damage sustained by him, (see 2294, 2295 and 2296, C. C.,) has no cause to complain of the judgment against him.

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


author: Howeee, J.

text:
    No. 1057.
    Henry Hinck v. The Home Insurance Co. of New York.
    Where an insurance company has affected an insurance on merchandise, with the words in the policy, laden orí; le luden on board, and the bill of lading for a part of the goods bears date anterior to the date of the policy, and the defendant pleads the general issue, it must be held to include all the goods embraced in the contract of insurance, laden and to be laden.
    The insurer must make a special defence to put the insured to the proof, that all the goods were actually at risk.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      M. M. Cohen, for plaintiff and appellee.

      L. Madison Bay, for defendants and appellants.
   Howeee, J.

The defendants have appealed from a judgment condemning them to pay plaintiff $5,000, balance due on an insurance of goods, valued in the policy at $8,000; and they urge, in the oral argument before us, two grounds for a reversal, to wit: Plaintiff has failed to show, 1st, that all the goods, intended to be included in the policy, were actually shipped; and 2d, the loss. The second point is put at rest by the proof of a partial payment (say $3,000) on the claim after the loss. As to the first, we think the proof sufficient under the pleadings. The language or terms in the policy on which this defence is based, are: “Goods and merchandise laden or io be laden on board the good steamer Shooting Star.” The answer was a general denial, and on the trial plaintiff introduced in evidence the bill of lading, dated two days subsequent to that o'f the policy, and which, without some allegation or proof of deficiency, error or fraud, must be held to include all the goods embraced in the contract of insurance, ‘laden and to be laden.’. “ The valuation, in case of goods, looks to all the goods intended to be loaded,” (1 Arnould, § 125) and the insurer must make a special defence, to put the insured to the proof that all the goods were actually at risk.

We consider it unnecessary to pass on the bill of exceptions in the record, as the exclusion of the evidence objected to would not affect our conclusion.

Judgment affirmed, with costs.


text:
    No. 1035.
    W. G. Vincent, Administrator, v. A. Merle D’Aubigne.
    Ifc is the settled jurisprudence of this State, that a tutor of minor children is competent in that capa* city to administer the succession of the deceased, so long as not opposed by the creditors.
    The law requiring property, sold at succession or probate sale, to bring its appraisement, does not apply to a case where the succession property has been mortgaged, and the creditor has had the property sold under executory process; in such cases, the law regulating the sale of property under execution governs as to the amount of the bid.
    Property sold under a writ of fieri facias, or by virtue of an order of seizure and sale, must bring two-thirds of its appraisement in cash, otherwise it cannot be sold.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      P.H. Morgan, for plaintiff and appellee.

      G. Roselius and A. Philips, for defendant and appellant.
   Ilsley, J.

This action is brought to avoid a sale made in pursuance of executory process.

Two grounds of nullity are set up:

1. When the executory process was issued and the property sold, the succession of Mcllhenny was unrepresented by an administrator, and L. C. Davis, who was merely tutor to the minor Mcllhenny, appointed without bond, was made a party defendant in said suit, and that notice of seizure served on him was insufficient, he being incapable of standing in judgment.

2. The property should not have been sold for less than fifteen thous- and dollars, at which it was appraised in the inventory of the succession.

Judgment was rendered in the lower Court in favor of the plaintiff, and the defendant has appealed.

On the first ground, it is only necessary to say that we consider the jurisprudence settled, that a tutor of minor children is competent, in that capacity, to administer the succession of the deceased, so long as the creditors do not object.

This subject was thoroughly examined in the case of Bryan v. Atchison, 2 An. 465, which rested on more recent legislation than that of the Civil Code, upon which alone was based the previous antagonistic opinions of the Court, no allusions in those opinions having been made to Article 976 of the Code of Practice, the last expression of legislative will.

It would be needless for this Court to multiply the reasons already adduced in support of the doctrine taught in Bryan v. Atchison, to the effect, that the tutor of a minor or of minor children is competent, in that capacity, to administer the succession, so long as the creditors do not object. A doctrine again recognized broadly in the case of Dickason v. Smith, 5 An. 197, and now by us adopted as correct in principle.

L. C. Davis was, it is admitted, the tutor of the minor Mcllhenny, and his appointment, as such, is presumed to have been regular and legal; and his being dative and not natural tutor, was no impediment to his being a party in the executory proceeding. Art. 327, C. C.

There is no proof in the record that the succession was an insolvent one, as was suggested by the Judge of the lower Court, in his reasons for judgment.

The second ground of nullity is equally untenable.

An hypothecary creditor has two distinct remedies against property in a succession, subject to his lien, either to procure an order of seizure and sale, or a rule on the administrator, to show cause why the property should not be sold according to Articles 990, 991 and 992 of the Code of Practice. Mason, Ex’r. v. Williams, 12 A. 68.

If he proceeds, as he has the legal right to do, by way of seizure and sale, (Boguille v. Taille, 1 An. 205, and McCalop v. Fluker’s Heirs, 12 A. 551,) he is bound to observe all the rules of proceeding, and no others, relating to executory process. C. P. 732, et seq.

Article 680 of the Code of Practice, one of the articles referred to in Article 745, C. P., requires that the price offered by the highest and last bidder, shall reach two-thirds of the appraisement of the property offered. The property in controversy was regularly appraised at twelve thousand dollars, and it was adjudicated to the defendant for nine thousand dollars.

The property was, therefore, on that score, legally adjudicated.

The authority cited by the plaintiff, that the property sold should have brought the full amount of the appraisement in the inventory of the succession property; See Succession of Fitz, 12 An. 368, as well as -.the cases of the Succession of Porter, 5 Rob. 95; and the Succession of George. B. Ogden, 10 Rob. 437, relate to succession sales under Articles 990, 991 and 992 C. P., and not to actions via ejecutiva against encumbered succession property.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; it is further ordered, adjudged and decreed, that there be'judgment in favor of A. Merle D’Aubignié, the defendant, and that the adjudication to him of the property described in the plaintiff’s petition, made by the sheriff of the parish of Orleans on the 13th May, 1865, in the suit of A. Merle D'Aubignié, through his agent, John W. Lavillebeuvre, v. George S. Mandeville and G. C. L. Davis, No. 25,287, on the docket of the Second District Court of New Orleans, be maintained as against the plaintiff in this suit, William G. Vincent, administrator of the Succession of Rufus McIlhenny, and it is further ordered that the said plaintiff and appellee pay the costs in the District Court, and in this Court.


text:
    No. 1045.
    Guy Duplantier v. J. B. Michoud.
    Where an attorney-at-law has rendered services in his professional capacity to an estate, and the universal legatee has agreed to pay him a certain amount agreed upon, and makes a partial payment in liquidation thereof, the attorney may sue on this acknowledgment, and recover the balance against the succession. In such a case, the defendant representing the estate, cannot successfully urge the plea of res judicaia, where the amount first paid has been placed on the tableau, and a judgment rendered allowing his claim which has been paid.
    Where the defendant alleges a written contract, he will not be allowed to prove by parol a verbal acknowledgment by plaintiff, nor will he be allowed to amend his answer by striking out the word - ** written," when the case is on trial, in order to enlarge the evidence.
    A PPEAL from the Fifth. District Court of New Orleans, Leaumonl, J.

      R, Bermudez, for plaintiff and appellee.

      T. W. Gollens, for defendant and appellant.
   Labauve, J.

The plaintiff alleges, in substance, that as counsellor-atlaw, he has rendered services to the executors of the late Antoine Mic.houd, in the settlement of the succession of the said Michoud, well worth the sum of two thousand dollars, in part payment of which he received one thousand dollars; that said services extended to the putting in possession of the universal legatee, J. B. Michoud; that after said services had been rendered, said Michoud acknowledged himself indebted unto petitioner for the same, in the sum of $2,000, one-half of which had already been paid, and agreed to pay the balance of $1,000.

.He prays for judgment accordingly, against said J. B. Michoud.

,Tke defendant excepted to the petition, alleging that plaintiff has included in his demand the services rendered previous to the tableau of distribution; that he has no right to do so, the cause of action for sai.d services which are merged in the judgment rendered on said tableau, forming Yes judicata; that the only right plaintiff has, is an action for the services rendered subsequent to the judgment on said tableau.

He'prays that the suit be dismissed, at plaintiff’s costs.

The Court, after hearing the evidence upon this exception, dismissed the same.

The defendant, in support of his exception, relies upon the following entry on the said tableau, which was duly homologated:

‘ ‘ Guy Duplantier, attorney of succession, his fees for services to the filing of tableau $1,000, proportion, $342 46.”

We are of opinion that the exception was properly overruled upon the allegations'in the petition, that the services extending to the putting in possession of the universal legatee, J. B. Michoud, after having been, rendered, were acknowledged by said J. B. Michoud, who acknowledged himself indebted unto petitioner for the same in the sum of $2,000, one-half of which had already been paid, and he agreed to pay the balance of $1,000. ...

The answer, on the merits, contains a general denial, reserving.th.e plea of res judicata, and admitting the services rendered to the filing of tableau to be worth $1,000. The defendant further says, that the payment of $1,000 was made in error, the plaintiff having agreed in writing to allow', the fees earned by Julien Seghers, amounting to $200, to be deducted from said sum, and he claims said sum of $200 in reconvention.

The Court below, after hearing the case, gave judgment for plaintiff, and the defendant appealed.

The provisional tableau of distribution referred to, was filed on the 3d and homologated on the 21st of January, 1863. J. B. Michoud, the universal legatee, who is a resident of France, arrived here on the 30th of November, 1863, and he left on the 20th February, 1864 On his leaving; he left with C. Guillet, former executor, the following document:.

“Pour réglement définitif de la succession de M. Michoud 'je demandrai la somme de deux mille piastres; ceci com.prend la mise en possession de l’héritier et la décharge des exécuteurs testamentares. ”

(Signed) “ G. Bupláktieb. *’->

This paper was brought into Court by said Guillet,' on a duces tecjir^',t and offered by the plaintiff in evidence. The defendant objected to. its introduction, on the grounds that it is the plaintiff’s own act, and is not evidence in his favor; that the plaintiff could not make evidence for himself, by sending a statement in writing to defendant, and then call for its production as proof; that nothing was shown to bind the defendant to the contract proposed in said paper, and even if there had been1 such proof it was inadmissible under the pleadings, which contain no allegatibii authorizing such proof. '

The Court overruled the objections, and received the document. We are of opinion that the Court did not err; the objections go to the effect and not to the admissibility; had the plaintiff claimed more than $2,000, this paper would have been good proof for the defendant to reject the surplus, and the plaintiff might show that the defendant’had acquiesced in or accepted it.

The defendant objected to proof of value of services rendered previous to the filing of tableau, and relied to support his objections upon the plea of res judicata; that plea being overruled, the Court properly received the evidence under the allegation in the petition, that such services were worth $2,000.

The defendant did not except to the petition on the grounds that the claim was based on a quantum meruit, and on a contract.

The defendant offered to prove by a witness, as alleged in his answer, that Duplantier, plaintiff, had agreed to deduct the $200 paid to Seghers, from his fees; plaintiff objected to said proof, on the ground that the answer alleged a written agreement. The Court sustained the objection. The defendant then moved to amend his answer by striking out ike word written; it was objected to, and amendment refused. The Court' decided properly. The defendant had restricted his own evidence, and no otkef proof could' be received, and the case being on trial, it was too late to amend in order to enlarge the evidence. 19 L. 542. 1 R. 58. 13 An. 536. 14 An. 355.

■ There are two other bills of exceptions taken by defendant, and as the conclusion we have come to would not be changed by a decision upon them, wé pass them unnoticed.

Gustave Tournade testified; he says:

“I know the parties to this suit; I was present at the conversation between them, as to the payment of Guy Duplantier, attorney for J. B.' Michoud. Mr. Michoud came to the office of Duplantier, and' began conversation with him in relation to his fees in the succession of Michoud; he wanted to obtain a reduction; he thought the fee was too high, which reduction Duplantier refused to grant, stating thatit was a reasonable fee; the amount being $2,000. Then Mr. Michoud stated he could pay Duplantier, and was in the act of drawing out his pocket-book, when his son who accompanied him, remarked that he had not sufficient money to do so; Mr. Michoud then stated that he would pass again, and bring with him sufficient money to pay; this conversation took place, it maybe, two years ago. ”

This testimony is uncontradicted and unimpeached, and coupled with the paper brought into Court by Guillet, and which Michoud had left with him on his leaving for France, satisfies us that there was an understanding between the parties that plaintiff’s fees should be $2,000. If that paper was of no value, binding no one, why did the defendant preserve it so well, and leave it with Guillet? It strikes our mind thatit was to be us'ed in case the plaintiff had made a demand for more than $2,000.

Upon the whole, we are of opinion that plaintiff made out his case; besides this argument, it was fully proven by old members of the bar that the services were worth the amount claimed; some compute a value of $3,000.

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

Rehearing refused.


author: Howekd, J.

text:
    No. 766.

      Moore & Browder, for the use of Charles E. Alter, v. J. B. Bres.
    Where A sues for the use of B, and the Court is of opinion, from the facts of the case, that B had no interest in the suit before the action was brought: JícW-—That A was the real plaintiff, who had the control of the suit, and might dismiss the same without the sanction of B.
    A PPEAL from the Fourth District Court of New Orleans, Thécird, J. ■

      Elmore & King, for appellant.

      Race, Foster & E. T. Merrick, for appellee.

      R. IT, Marr, for Moore & Browder.

      Reporter.—The original opinion in this case is reported in the 18th Annual, page 483. The case should not have been reported until the rehearing was disposed of. See 18th Annual, page 483.
   On Rehearing.

Howekd, J.

On the rehearing of this cause, the counsel of Alter present the only point involved, in the following form:

“ Whatever rights existed in Moore & Browder before the suit, were transferred to Alter by the fact of their filing a suit for his use and benefit;” and they contend that this point has been expressly decided in the ease of Fowler, for the use of McNair, v. Thompson, 5 M. 561. That suit was instituted against the real obligor, and was founded on a contract of affreightment made by and in the name of Fowler, who, in the petition, declared that he acted as agent of McNair; but the contract being in the name of Fowler, and every one deemed to stipulate for himself, unless the contrary be expressed, or result from the nature of the agreement, McNair could not act without the assistance of Fowler; and the Court considered the latter’s declaration, that he sued for the use of McNair, as amounting under the circumstances, to a relinquishment and transfer of his own right to McNair, and sufficient to enable the latter to appear in the case as the real plaintiff.

The facts in the case before us are quite different. Moore & Browder declare on a contract, personal to themselves, made as factors with a cotton planter, (not a party to the suit) by virtue of which they seek to get the possession of cotton belonging to said planter, but illegally, as they allege, in the hands of the defendant, another factor. There is nothing in the petition which, in our opinion, implies that Moore & Browder had transferred, or ever intended transfer to Alter, their privileged claim upon said cotton, which is the real basis of this action, and on which alone the proceedings against defendant can be maintained, if at all. The only interest disclosed in Alter is his ownership of a draft drawn by the said planter on and accepted by Moore & Browder under their said contract, and which they allege was to be paid out of the cotton, sequestered upon their bond and affidavit, in the hands of defendant. Their prayer is, that the cotton be delivered to them, not to Alter, to pay the draft held by the latter, and an account which they allege is due them, and for a portion of which they swear that they have a privilege on said cotton. The allegations of the petition, taken together, show what the parties meant by the expression, “for the use of Alter,” that Moore & Browder would sell the cotton to pay their acceptance held by Alter—an incident in the main suit and not such an agreement as to make him the real plaintiff, and give him the control of this suit. Moore & Browder, being the real actors, have the right to dismiss their demand, which, according to the allegations of the petition, leaves nothing to sustain any right in Alter to be prosecuted in this proceeding. What may be their responsibility to him, growing out of such dismissal, or what rights he may have against said defendant in another action, need not here be considered.

We would remark that the difficulty which we met, but is not urged, in disposing readily of the case, is technical in its nature. But the issue before us has been confined to Alter and the defendant, the only parties making appearance, and we have passed upon the question presented in argument—-whether or not Alter is the transferree or assignee of Moore & Browder’s rights as against Bres, the defendant. We think he is not shown to be, and that the right of action, as set forth, being in Moore & Browder, and Alter’s claim being incidental, they have the control of the suit.

The authorities quoted by counsel for Alter are not considered applicable to the facts and pleadings in this case.

It is therefore ordered, that the judgment heretofore rendered by us remain undisturbed.


author: Rost, J. Slidell, J.

text:
    Hellwig v. West and Wife.
    The incapacity of married women to contract Í3 not universal and absolute. The limitations imposed on their capacity to contract, for the maintenance of the marital power or for their protection against its abuse, must be construed strictly. In all oases to which they do not extend, the capacity of women is not affected by marriage.
    The plea of want of authorization will not avail a married woman, where its effect would be to enable her to commit a fraud. Nor tlio same reason, in all obligations arising from quasi-contracts, offences and quasi-offences, tho wife is bound without authorization.
    Appeal from the District Court of the First District, Buchanan, J.

      Durant, for the plaintiff. C. Janin, for the appellant.
   On the first hearing of this case, the following opinion of the court was pronounced by

Rost, J.

The plaintiff, a skilful and diligent gardener, was employed in that capacity by Mr. West, with the assent and approval of his wife, at the rate of $25 per month, and took charge of a garden attached to the suburban residence of his employer. West was at the time engaged in business in New Orleans, and his wife had the exclusive management of the place, and of all persons employed on it. She furnished the supplies, received the profits, which amounted to five or six dollars per day, and represented herself to the persons she hired as the absolute mistress of the plantation. After the plaintiff had been working nearly two years West failed, and tho plaintiff brought suit against the assignee of the creditors and Airs. Wist, for the balance due him, with privilege on their moveable effects, under art. 3158 of tho Civil Code. The court of the first instance gave judgment against them in solido, with the privilege claimed, and Mrs. West has appealed.

The defence set up takes it for granted that the incapacity of married women to bind themselves without authorization, is universal and absolute. We conceive the law to be otherwise. Women are not rendered incapable on account of their sex. The capacity of single women to contract is the same as that of men. When they marly the laws, which limit their capacity in certain cases,- have for their object the maintenance of the marital power on the one hand, and the protection of women against the abuse of that poyer on the other. These limitations must be construed strictly, and, in all cases to which they do not extend, the capacity of women is not affected by marriage.

There are entire classes of obligations in which the plea of want of authorization cannot avail married women, because it would enable them to commit fraud. Ulpian, commenting upon the Senatusconsultum Velleianum, in which most of the laws establishing the disabilities ef married women originate, says: “ Decipientibus mulieribus senatusconsultum auxilio non est. Infirmitas feminarum non calliditas, auxilium meruit.” V. 2, § 3. Ulp. lib. 29. (§ 31, tit. 1, lib. 16. Paris edition.)

In all obligations arising from quasi-contracts, offences and quasi-offences, the wife is bound, on that ground, without authorization.

“Ajoutons ici que la femme est obligée sans autorisation par son délit ou son quasi-délit, et qu’elle l’est également si elle a géré sans mandat Ies affaires d’un tiers. En effet, les tiers ne peuvent étre victimes, soit du délit ou du quasidélit, soit des mauvais résultats de 1’administration dont la femme s’est emparé spontanément. Enfin, la femme pourrait Are obligee par la gestión d'affaires d’un tiers.” Proudhon, Etat des Personnes, p. 463, et notes.

These authorities appear to us to cover the present case. The plaintiff was a gardener, and attended besides to the general administration of the place, for the exclusive benefit of the appellant, as he was informed. She represented herself as the owner of the plantation, administered it in her own name and right in presence of her husband, and received the fruits it produced. Under these acts and representations, the plaintiff was not bound to inquire into her title. Pie had good reason to believe that he was working on paraphernal property, which the appellant had capacity to administer, without the assistance of her husband, under art. 2361 of the Code.

Her title to the property is not shown ; but, if it was not paraphernal, the plaintiff was deceived. So far as relates to the rights of third persons, the appellant was, in that case, administering the property of another, and, by the fact of that administration, there was formed between her and the plaintiff, a quisi-contract, which is binding upon her without authorization.

It is a principle of high authority, that the laborer is worthy of his hire; and the laws which award it to him in cases like the present, are a just limitation of those intended for the protection of the rights of married women.

For [the reasons assigned, the judgment of the District Court is affirmed, with costs in both courts.

A wife cannot be made responsible for wages due to a laborer for work done for the community, in the absence of proof of any fraud or misrepresentations on her part, calculated to mislead the plaintiff, by inducing him to believe that the property was paraphernal.

A promise by a wife to pay a laborer who had been employed to work on community property, is not obligatory. Whether separated in property or not, a wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. C. C. 2112.

THE judgment of the court, on the re-hearing, was pronounced by

Same Case — On a Re-hearing.

Slidell, J.

After a careful consideration of this case, we have come to the conclusion, that the judgment heretofore pronounced was erroneous. West and his wife, were in community when the contract with the plaintiff was made, and the land which the plaintiff was employed to cultivate was community property. Under these circumstances, to impose a liability upon Mrs. West, it was necessary for the plaintiff to establish that she had committed a fraud upon him, by falsely representing to him, or inducing him to believe, that the property was her paraphernal property, and by herself employing him accordingly.

The position in which Mrs. West placed herself towards the gardener who succeeded the plaintiff, gave a very strong coloring to the plaintiffs’ pretensions; hut its effect is greatly diminished by considering the separation of property .and the bankruptcy of West, which had intervened. Fraud should be clearly .established. There is here no direct proof of fraud, nor-of any representations made by th© wife to the plaintiff, either at the .date of his employment or during its continuance, which were calculated to mislead the plaintiff. The inferences drawn from her subsequent acts and dealings with others, upon which the plaintiff’s case rested, appear to us, after our renewed examination, to be insufficient to sustain the suit. Moreover, on recurring with more care to the petition, we find it militates against the inference of fraudulent representation, -which was attempted by the plaintiff to be drawn from the wife’s subsequent conduct. The plaintiff there alleges that he was employed by West and wife as a gardener, upon the place belonging to them. No suggestion of fraud is there made, no indebtedness in solido is alleged, nor is judgment prayed in ssolido.

The contract having been a community contract, the property on which the plaintiff labored community property, and the debt a community debt, the subsequent declaration of the wife to a third person, after the discharge of the plaintiff, that 'he should lose nothing and that she would pay him, was unavailing. If this c.o.uld he considered as a promise to the plaintiff, still it is not proved to have be.en authorized by the husband, and is moreover destitute of legal effect, under article 2412 of our Code, which declares that the wife, whether separated -in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him .before or during the marriage.

As to a subsequent acquisition of the land by Mrs. West, which is conjectural, and rests upon inference from her declarations made in conversation with a third person some months after the plaintiff’s discharge, the terms and manner of such acquisition, if made, -whether by judicial sale in [bankruptcy or how otherwise, and whether with or without a divestiture of plaintiff’s privilege, do not appear. It is evident no such acquisition was made before the plaintiff’s employment ceased.

The case of the plaintiff, a laboring man who had served faithfully and skillfully, is one of great hardship ; but however much it ought to commend itself to the conscience of the appellant, we are bound by the less liberal rules of law to reject his claim, as now presented. We do not wish, however, to be considered as withdrawing the opinion expressed at the former hearing, that where a married woman commits a fraud, she is liable, even out of her separate estate. This reversal is based upon a change in our opinion as to questions of fact.

It is therefore decreed that, the judgment appealed from be reversed ; and it is further decreed, that there be judgment, as in case of non-suit, in favor of the said Adelaide Duplessis, wife of John K. West, with costs in both courts.


author: Kute, J.

text:
    Succession of Glover.
    The Probate Courts, under the late judicial system, were authorized, on an opposition to an account presented by an executor, to condemn him to pay to the succession, out of his own property, the amount of any debt due to the estate, which he had failed to collect through culpable negligence, (C. -P. 993, 997,1053,1057); he being chargeable with all sums due t o the succession which he has failed to collect, unless he show a sufficient excuse for his failure. Such a proceeding is not to bo confounded with an action against an administrator on his bond, or for a tort, when the claim against him is a personal one.
    Where an executor obtains a judgment against a debtor of his testator with a stay of execution, due diligence on his part requires that the judgment should be recorded immediately, and that an execution should be issued as soon as the delay has expired. It is for him to show any reason which might render such steps unnecessary.
    Any creditor may oppose the homologation of an account presented by an executor, and may, without making the other creditors parties to the proceeding, obtain a judgment condemning him to pay, for the benefit of the succession, the amount of a debt due to it, which the executor fails to show that he has used due diligence to collect.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J. The executor of Rebecca Glover appealed from a judgment condemning him to amend an account filed by him, so as to credit the succession with $1168 10, the amount of a debt, on the ground that he had not shown due diligence to collect it. The judgment was rendered on an oppostion to an account filed at the instance of the opposing creditor, Dudley.

      E. Randolph, for the opponent.
    The exception taken in this case to the form of proceedings confounds claims for damages founded on torts, with claims for indemnity founded on matters of administration. The rule in the first class of cases is given in 3 La. 464, Young v. Chaney. The question there, was damages for injury to real estate. These, from their nature, are unliquidated demands, and the court say, “ the act complained of would amount to a quasioffence, and to say the least of it, a question might be raised as to the competency of a Court of Probates to decide on such a claim.” The reason of this rule is to be fonnd in considerations touching the trial byjuty. Morgan v. Jjard, 14La._286. “ The jury are the peculiar judges of the quantum of damages.” •‘•he assessment of damages is the peculiar province of a jury.”
      Barney v. Be Russey, 1 Rob. 75. C. P. 313. The two following cases were judgments by default, in which the court had assessed damages without the intervention of a jury : In actions of tort in which, from the nature of the demand, damages are to be assessed, a jury must be summoned to find the same.” Olivier v. Canon, 11 La. 474. “A jury only can assess damages.” Liles v. New Orleans Canal and Banking' Company, 6 Rob. 273. Construed by these authorities, the interpretation of the rule in 3 La. seems to be, that that a Court of Probates ought not to have a jurisdiction which is the peculiar province of a jury, and that it cannot exercise a jurisdiction which, in every case of a judgment by default, would require it to perform an impossibility.
    This case is different. The opponent’s claim is based upon a mere matter of maladministration. In matters of this sort, curators are responsible in the Court of'Probates. C. C. 1140. C. P. 924, no. 9, 997. These articles declare that curators are responsible for their maladministration: that they are to render their accounts to the Courts of Probate; that these courts alone have the power of compelling them to render accounts, and to pay over what they owe. To suppose, under these circumstances, that the Court of Probates could not give judgment against a curator personally, would involve the absurdity of supposing a tribunal possessing exclusive jurisdiction over the facts, without the power to decree what consequences flow from these facts.
    Nor do any of the reasons given for the rule in 3 La. apply here. There canbe no doubtful question of facts to be solved by a jury, for the curator is bound to furnish all the proofs and to make all the facts clear in his accounts ; and there can be no unliquidated damages to assess, as the amount of the debt lost by his negligence, furnishes the exact measure of his liability. See Lafon’s Heirs v. His Hxeeutor, 3 Mart. N. S. p.718,719. Longbottomv. Babcock, 9 La. 49. In these two cases, the executors were held liable, on oppositions to their accounts, for debts which they had failed to collect; the one for gross negligence, and the other for want of proof of due diligence. See also, Hodge's Heirs v. Bunford, 1 Mart. N. S. p. 126. McMicken v. Millaudon, 2 La. 184. ■ Watts v. McMicken, 2 La'. 183. These cases were from courts of ordinary jurisdiction, and it was held that a single act of an administrator'cannot be selected as the foundation of a suit; that the action ought to be to compel him to render an account of every thing he has done in that character, that is, that the Court of Probates had jurisdiction and that an opposition was the proper form of proceeding.
    The cases of Ingraham's Heirs v. Stokes, 10 La. 26, and Parmelee v. Brashear, 11 La. 332, sustain the jurisdiction of the District Courts in suits brought upon bonds of curators, &c., when the penalty of the bond is the gist of the action, and, by implication, refer it to the Probate Court when the gist is an account. In the case of Flint v. Wells, 4 La. 332, the jurisdiction of the District Court was negatived, when a suit on a curator’s bond claimed an account, and not the penalty. The act of March 16,1842, ch. 120, § 6, gives, in terms, exclusive jurisdiction to the Probate Court in all suits upon bonds of curators, &c., in relation to sureties. It must be construed to embrace principal, of course. Conclusive upon the point of jurisdiction, it says nothing about the mode of proceeding; but the case of Wilson v. Murrell, 6 Rob. 69, in construing the clause of this act which requires that the necessary steps shall be taken against tho principal before recourse upon the surety, expressly designates the mode by account and opposition under arts. 1055, 1056, 1057 of the Code of Practico. In Boudousquie’s Succession, 9 Rob. 407, the issues made involved the question of an administrator’s liability for negligence in collecting a debt; the prayer of the plaintiff'in opposition, however, was for a different kind of relief; and the court ordered that the case be remanded to the Court of Probates to enquire whether the administrator ought not to be charged, with a certain sum of money, “in consequence of failure of recovery and loss to the estate, resulting from the administrator’s negligence in pursuing legal means to secure payment.” Code de Procédure, arts. 533, 1002, 995. 2 Toullier, p. 407-9.
    On the question of jurisdiction, the court is referred to Prieur etal. v. Their Creditors, 2 Rob. 541. Dupin’s Pothier, v. 8, p. 79. Story’s Agency, § 183. 11 Mart. 192. 6 Ibid. N. S. 195. 8. Ibid. N. S. 328. 7 Ibid N. S. 38. 18 English Common.Law Reports 348. 20 Ibid., 183. Story’s Agency, § 217, 218. 8 Mass. Rep. 57. 7 Dupin’s Pothier, 161.

      M. M. Robinson, for the appellant. —
    I. Courts of Probate are without jurisdiction of any action or proceeding to render an administrator personally responsible, for laches, or mal-administration. They are courts of limited jurisdiction.
      They have no powers but such as have been expressly given. No article of either Code — no statute has ever given them jurisdiction in such a case. Art. 997 of the Code of Practice declares, that “the judges of the Courts of Probate, who have appointed or confirmed testamentary executors, and other persons administering successions, alone have the ¡tower of compelling them to account and pay over what they may be found to owe” — in the french text “ ont seuls le droit de les contraindre a rendre compte de leur administration et a en payer le reliquat.” The Probate Court has exclusive power to compel an administrator to account; it has authority to force him to pay into court any money, or to give up any property, of the succession, in his possession — but when there is no longer any money or other property of the succession in kind, the Probate Court ceases to have jurisdiction. Any thing due to the succession by the executor personally, becomes a debt to the succession —and payment must be sought from him, as from any other individual, by an action before the ordinary tribunals. In the case of Baillio v. Wilson, 5 Mart. N. S. 217, the question of the jurisdiction of the Probate Court in such a case, was expressly raised and decided. Porter, J. says : “ The first questions to be examined arise out of the pleas to the jurisdiction of the court, and we think the defence well offered to that part of the petition, which alleges the personal responsibility of the defendant by reason of her mal-administration. Such an action should be commenced in the District Court.”
    In the case of Bouquette v. Bonnet, 2 La. 133, the question of the jurisdictiction of the Probate Court of an action against an executor personally, for an illegal act in his administration was raised and argued. The court say: “It appears to us, this is a demand against the executor, in his personal capacity, for property sold by him contrary to law. In other words for a tort or wrong done by him.” “ We think the Probate Court had no jurisdiction of the case.”
    In Ingram v. Stokes, 10 La., 28, which was an action against a curator of absent heirs on his bond, brought before a District Court, the jurisdiction of the court was excepted to, but sustained.
    In the case of Hemken v. Ludewig, 12 Rob. 188, the question was again expressly raised, whether a Probate Court could take jurisdiction of an attempt to render a curatrix liable personally, for the debts of the succession. Simon, J., in delivering the opinion of the court, says: “ It is well settled that Courts of Probate have no jurisdiction of a claim against an administrator personally, for mal-administration.”
    The power of the Probate Court is limited to the property of the deceased— it has a sort of jurisdiction in rem. When the property itself has ceased to exist, and the succession has only a claim against an individual — whether the claim results from an ordinary contract, or from the mal-administration of an executor, payment can only be enforced before the ordinary tribunals.
    It is evident that Probate Courts have not been invested with jurisdiction in actions against executors, &c., for mal-administration, because the remedy being in damages, the defendant is entitled to a trial by jury. The reason does not apply when the the object is to enforce the delivery of property or money, of the succession, in his hands.

      Not a case is to be foundin the whole series of Reports in this State, in which the court has sustained the jurisdiction of a Probate Court in such a case, where the point has been raised. An examination of the numerous cases cited by the counsel of the appellee will satisfy the court of this. In the cases of Longbottom v. Babcock, 9 La. 49 — Lafon's Heirs v. His Executors, 3 Mart. N. S.718 — Collinsv. Andrews, 6 Ib. N. S.195- — and Succession of Boudousquie, 9 Rob., 405, no exception-was taken to the jurisdiction of the Probate Court, nor was the question of j urisdiction raised. The controversies turned on other matters.
    The case of Hodge's Heirs v. Burnford, 1 Mart. N. S. 126, was an action before a District Court, and the question of jurisdiction was not raised. That oiFlint v. Wells, 4 La. 537, merely decides that a District Court is without jurisdiction of an action to compel an administrator to account. In the case of Prieur et al. v. Their Creditors, 2 Rob. 541, the question related to the administration of a syndic of the creditors of an insolvent. The case had nothing to do with a a succession. The case of Wilson v. Murrell, 6 Rob. 65, was an action against the surety of a curatrix under the express provision of the act of 1842, and decides nothing as to the question of jurisdiction. The case of McMicken v.
      Millaudon, 2 La. 184, is the only case in which there was any plea to the jurisdiction of the court, and that case was evidently determined on the ground, that the Probate Court alone had authority to compel an executor to account— which is not denied. The decision Was delivered by Judge Porter, but a week or two before his decision in the case of Boquetle v. Bonnet, reported in the same volume, p. 193, and must be taken in connection with the latter, in which it is expressly decided that a Probate Court has no jurisdiction of an action against an executor personally, for mal-administration.
    If an executor can be condemned, on a mere rule in the Probate Court, to pay a large sum to the succession de bonis proprks on the ground of neglect or maladministration, there must be some law authorizing the proceeding. An examination of the articles of the Code of Practice, (see arts. 993, 997, 1056, 1057,) will show that the Code never contemplated giving the Probate Courts authority to proceed against an executor personally, but where he retained in land property or money of the succession. Art. 993 says: “It shall be ihe duty of the curator to account before the judge of probates, and pay over, &e., a due proportion of the sums which be may have in his hands ; and on his failure to render his account, &c., or to make payment, &c., execution may issue against liis property.” Art. 997 gives authority to probate judges “ to compel executox-s, &c., to account and pay over what they be found to owe — (in the french text, le reliquat,) that is to say, any balance of property or money in their hands belonging to the succession. Art. 1057 authorizes an execution against the property of an executor, “ when he fails to prove that he has no Junds in his hands belonging to the successionand this proof the preceding article (1056) declares may be made by “filing in court, a brief statement of his condition as executor, &c., with regard to the succession.”
    The provisions of sects. 3, 4, 5, of the act of 13th March, 1837, (B. & C’s. Dig., 498 — 9) seem to have suggested the summary proceedings resorted to in the lower court; but it will be seen that they do not extend to a case like this. The accounts of the executor show that the money received was disbursed according to the judgment of the court homologating the tableau, and as fast as received. Besides, there is no evidence that there was any bank in the parish of Orleans allowing interest on deposits. The third and fourth sections of the act of 1837, prescribe a penalty for not depositing money in bank, or withdrawing it — they relate to no other matter. The rule in this case was taken to effect a different object, nor is it pretended that the executor had any funds to deposit.
    Admitting the jurisdiction of a Probate Court to condemn an executor de bonis proprks, for laches or mal-administration, where the question of liability arises incidentally, it does not follow that it would have the same power where such a judgment was sought as the principal end of the proceeding.
    The case of the Succession of Johnston, 1 Ann. Rep. 75, does not touch the questions presented by this case.
    II. All the creditors appearing on the homologated tableau of distribution should have been made parties to the proceeding against the executor, otherwise the judgment on the question of laches, if given in favor of the executor, would not be final, while itwould be, if against him. If a contrary rule were admitted, there might be as many judgments as creditors. See McMicken’s case, 2 La., 184.
    III. There was no laches. The omission to take out execution is not conclusive evidence of negligence. It may be — as was the fact in this case, that there was no property to be seized.
    IV. The omission to record a judgment is not alone evidence of such neglect as will subject an executor to the payment of the whole debt. Such a precaution can only be required where there is reason to believe it might be productive of some good. To render an executor liable for such an omission, it ought to be proved that some injury resulted from it. There was no pretence of any thing of the sort in this case, which is a mere attempt to render an executor personally liable for a technical neglect, in a case in which, in fact, the utmost diligence has been used.
    V. Though the omission to take out execution be regarded as evidence of laches, what law condemns the executor to the payment of the whole debt as a penalty for his neglect? To entitle any party to damages for the malfeasance or misfeasance of another, he must show an injury to himself.
   The judgment of the court was pronounced by

Kute, J.

On a rule taken by T.B. Dudley, as judgment creditor of Glover's succession, the executor of the deceased was ordered by the Probate Court to file a final account of his administration, aud to state particularly all the steps taken for the collection of certain bills, which figured on the inventory and which were past due.

In obedience to this order, the executor filed an account, showing the application of the funds which had been received up to that dato. It was accompanied by a statement that a judgment had been obtained against James Dunlap, the acceptor of the bills, a part of which had been collected ; that an execution had been issued for the residue of the judgment, in virtue of which property had been seized, but had not been sold at the date of the last information from the sheriff, in^ whose hands it was. Dudley opposed the account on the ground that it was incomplete, inasmuch as the steps taken by the executor to coerce payment of the judgment were not stated, and diligence in the collection was not shown. lie charged the executor with negligence in the pursuit of the debt, in giving unreasonable and unwarrantable delays, whereby the claim had probably been lost; and concluded with a prayer, that the executor be condemned to pay the amount of the opponent’s claim, out of his individual effects.

The judge considered thatthe.executor had been guilty of culpable negligence, and ordered him to amend the account, by placing to the credit of the succession the uncollected residue of the judgment against Dunlap, and to distribute it among the creditors, as directed in a provisional tableau previously approved. From this judgment the executor has appealed.

The appellant contends that this is an action to render an ezecutor personally responsible for laches or mal-administratioa, of which the Probate Court has no jurisdiction ; that all the creditors on the homologated tableau should have been made parties to the proceeding against the executor; and finally, that he has heen guilty of no laches.

The Probate Court, as it lately existed, had the exclusive power to compel executors and other administrators to account and pay over what they might be found to owe; and, on their failure to account, or to make payment of the sum found due upon a rendition of accounts, executions issued from that court against the property of the administrates. C. P 997, 993, 1053, 1057.

The appellant treats the proeeeding of the opposing creditor, as an action to render him personally liable for damages for his mal-administration, and contends that courts of ordinary jurisdiction can alone entertain the action. The proceeding, however, is not to be confounded with an action against an administrator on his bond, or for a tort, when the claim against him would be personal. If such were its character, the position assumed by the appellant would be correct. 10 La. Rep. 28. 12 La. Rep. 332. It is strictly an opposition to an account presented by an executor, in which the latter is required to charge himself with the whole of the effects which have come into his hands.

An administrator to whom funds or other effects of a succession are entrusted, cannot alter-his relation to the estate he administers, when called on to account, and claim to stand as an ordinary debtor, for sums which he has either failed to collect, or which have been lost by his negligence. He will still be regarded as tho depositary of all the effects and funds figuring on the inventory, for which he must render an account to the court by which he was appointed.

The right of the creditors to resist tho homologation of a tableau until the entire effects of tho succession have been accsuntod for, and of the Probate Court to charge tho administrator with all sums .which he has failed to collect, unless ho show a sufficient excuse for his failure, has been repeatedly recognized. This jurisdiction of the Probate Court, wo consider to be well settled.

In the case of Watts v. McMicken, the action was instituted in the District Court, to render the defendant liable for mal-administration, in causing an execution to issue improvidently, inconsequence of which a loss was sustained. The question of jurisdiction was expressly raised, and it was determined that the District Court was without jurisdiction of the demand. In that case the court say that, “the proper time to get redress will be when he, the curator, presents his account. Particular acts of the representatives of estates, cannot be singled out by individual creditors, and be made the basis of a suit. There can be only one to render an account, and when that is presented, all the acts of the curator, whether of non-feasance or of malfeasance, by which tho creditors are injured, can be opposed to him. This doctrine has been long established in this court.” 2 La. 184. 1 Mart. N. S. 126.

In the case of Flint v. Wells, where the suit was to recover from an administrator the value of property lost by his negligence, and to compel him to account, tho quostion of jurisdiction was again expressly made, and it was held that the Probato Court could alone entertain the action. 4 La. 537.

In numerous casos originating in the Probate Court, both before and sinco the decision of those already cited, this jurisdiction of that court has been tacitly recognized, without the point being expressly raised; and administrators have been charged, in their accounts, with sums lost in consoqueneo of their negligence. 3 Mart. N. S. 718, 719. 9 La. 49. 10 La. 28. 9 Rob. 407.

As regards the question of diligence, it appears from tho evidence that the effects of tho succession of the deceased consisted, with an unimportant exception, of several bills of exchango; upon those a judgment was obtained against James Dwnlap, the acceptor, and a stay of execution granted for about six months. This judgment was not recorded for many months after its rendition. At tho expiration of tho delay granted, no execution was taken out, nor did one issue until steps were taken by a creditor of tho succession to render the executor liable for laches, about fourteen months after tho judgment was obtained.

It was the duty of the executor, in the exercise of the diligence which a prudent administrator would use in his own affairs, to have caused the judgment to be recorded immediately upon its rendition, and to have issued an execution upon the expiration of the delay accorded to the debtor. If the known insolvency of the debtor, or other reasons existed which rendered these steps unnecessary, it was incumbent on tho executor to show affirmatively the circumstances of excuse, and that the creditors had suffered no injury in consequence of his ucglcct. 11 Mart. 193. 6 Mart. N. S. 195. 9 Robinson, 407. 12 Robinson, 220.

Tho only excuse offered is, the belief of the executor that the debt could only be collected by indulgence. No sufficient grounds for this belief are shown. It has not been made to appear that the debtor’s property was so covered by previous incumbrances as to render the registry of the judgment useless, nor that, at tho expiration of the delay, he was not possessed of property out of which tho judgmont could have been made, in whole or in part. "We are of opinion that tho executor has failed to show tho exorcise of due diiigonco in securing and collecting tho judgment,

It is urged that all the creditors appearing on the homologated tableau,-should have been made parties to the proceeding against the executor. This, in our opinion, was not necessary. Any one creditor who is dissatisfied with an account rendered by an administrator, may oppose its homologation. His rights aro not to be controlled or concluded by other creditors, who may be unwilling to unite in the proceeding, and-hold the executor to- a more strict accountability.

Judgment affirmed.


author: Kino, J.

text:
    Camblat v. Tupery.
    A partner b'as no-reinedy against bis co-partner for money paid or advanced on account af the partnership, or for profits made during its continuance, until a final settlement of the partnership.
    In an action by a partner against another for the settlement of the partnership, ii? is the duty of the plaintiff to furnish the evidence necessary to enable the court to settle the partnership and determine tho rights of the partners. Where such evidence is not furnished, tho action will be dismissed.
    Appeal from the Parish Court of Now Orleans, Maurian, J.

      St. Paul and Buissm, for the plaintiff’. Biron and Schmidt, for tho appellant.
   Tho judgment of the court was protíotínced by

Kino, J.

Tho plaintiff alleges that he was for some timo the partner of Twpery, tho defondant, and claims a settlement of the partnership, and a judgment for a sum of money which ho avers to be duo for capital advanced, profits made, commissions, travelling expenses, &e. The defendant denied’the partJlox'ship, and claimed a large sum in reconventiou. Subsequently ho filed a peremptory exception to the form of the action, alleging that the plaintiff claimed a spocific sum, and not a settlement of tho'partnership. This exception was overruled. Tho matters in controversy between the parties wero submitted to arbitrators, who, after a laborious investigation, made a report which was not homologated, in consequence of having been filed after the expiration of tho deliiy prescribed for that purpose. Tho arbitrators, however, wero sworn as witnesses on the trial of the cause, and stated that their report, which was used by them while testifying as a memorandum, was tho result of their examination-of the books and vouchors, and of the admissions of the parties during the progress of their investigation. They determined a balance to be due to tho plaintiff, for which a judgment was rendorod in the court below, and the defendant has appealed-. He contends: 1st. that the court erred in overruling his exception- to the form of the action; and 2nd. that the judgment is based on tho opinion- of the arbitrators, and is unsupported by the evidence-.

I. We think that the judge did not err in overruling the plaintiff’s exception.Tho averments and prayer of the petition sufficiently indicate that, the' object of the suit was to enforce a settlement of the partnership concerns, and tho payment of such sum as might be found due upon a final adjustment.

II. The only evidence in tho cause which throws any light whatever on tho confused and unintelligible books and accounts of tho parties, is that of tho two accountants who acted as arbitrators, and this is unsatisfactory. These witnesses state that their report, which is tho foundation of the judgment of tho lower court, does not embrace a settlement and liquidation of tho affairs of tho partnership. They conceived that their authority did not extend to such an-examination. Tliey state tliat the profits and loss were not ascertained; >tliat, in the settlement of a partnership account, it is usual and necessary to establish the profits .and losses; that, in making up their .report, the whole amount of sales, paid .or unpaid, was taken into consideration; and that no allowance was made for bad debts. They cannot say what amount is due to the partnership.

It is well settled, that one partner has no remedy against .another for moneys paid, or advanced, or contributed on account of the partnership, or for profits made during its eontinuanco,' until a final settlement takes Nace, when he may recover the balance which may appear to bo due to him. 11 Mart. 435. 8 Mart. N. S. 280, Story on Partnership, ss. 221, 348, and notes.

No final settlement of tho partnership affairs has taken place in the present instance, and the evidence is not before us in a form that enables us to make the liquidation, and determine which is the debtor or creditor partner. Information indispensable to that end is wanting, which the -plaintiff should have furnished. It was his duty to make his demand-clear.

We think that the judgment of the lower court is erronoous; and for the reasons assigned it is ordered that it be voided and reversed. It is further ordered that the .plaintiff’s demand be dismissed, and that he pay -the costs of .both courts.


author: Slidell, J.

text:
    Byrne v. Riddell et al.
    Where the record does not contain all tho evidence on which the case was tried, and there is no statement of facts, hill of exceptions, nor assignment of error filed within the time prescribed by art. 897 of tho Code of Practice, the appeal must bo dismissed.
    APPEAL from tho Parish Court of New Orleans, Maurian, J.

      Redmond and Collens, for tho plaintiff. Bartlett, for the appellant, Banks.
   The judgment of the court was pronounced by

Slidell, J.

The judgmont from which this appeal was taken was a confirmation of a judgment by default. Tho record presents no bill of exceptions, there is no statement of facts, and the assignment of errors was filed six months after tho record was brought up. The motion to dismiss must prevail. Code of Practice, art. 897. I Robinson, 196. Appeal dismissed.

       The final judgment in this case confirmed one previously taken by default, hut it was rendered on the verdict of a jury. The record did not 'contain tho ovidonco laid beforo.the jury-


text:
    Spears et al. v. Nugent.
    Where a party requires his adversary to answer interrogatories or to .produce a book in open court, the day on which the interrogatories are to be answered, or the book produced, must be fixed by the judge, and notified to the party. C. P. 951. Nixing tho day of trial as that on which tho answers are to be given or the book produced, is not a sufficient designation of the day, unless ascertained with certainty in the order notified to the party-Nor is the usual weekly notice posted in the court-room, of tho days for which the cases .are fixed, sufficient. Per Curiam.- Whenever an act is to be done by a party personally, which cannot he done by his counsel, he is entitled to a special -notice of the order, and of theparticular day on. which he is required to comply with it, before he can be deemed to be in default.

      APPEAL from the Commercial Court of New Orleans, Walls, J.

      T. J. Lacy and Hunton, for the plaintiffs.
    The interrogatories annexed to the supplemental petition, were properly taken pro confessis. The defendant was required to answer them in open court, on the day of trial. The Code of Practice, art. 463, provides that cases shall he fixed for trial on the docket of the court, and for all purposes connected with the trial the parties aro bound to take notice of the day so fixed. The order was made by virtue of the Code of Practice, art. 351. The party refusing to answer, the interrogatories were properly taken for confessed. Code of Practice, art. 349. It is true, the record does not show when the case was fixed for trial, nor does any record in this court show when the causes may have been fixed. The presumption is that it was properly done, until the contrary is shown.
    The neglect and refusal of the defendant to bring into court, in obedience to its orders, the ledger of Tu-pin, V/alt §• Co., which order was based upon the affidavit of the agent of the plaintiff, authorized the court to consider the fact sworn to as confessed.
    The fact sworn to was. that the ledger of the firm of Turpin, Watt Co. would show the indebtedness of defendant. The Code of Practice, art. 140, provides, that the facts slated in such an affidavit as was made in this case, .shall lie considered as confessed, unless satisfactory evidence be shown of tho impossibility of producing the documents. Article 143 of the Code of Practice provides that, where a party has been ordered to produce books or papers, he must deliver them previous to, or on the day of the trial, to the clerk of the .court. See also Code of Practice, art. 473.

      Grymes, for the appellant.
    1. The judgment was rendered without sufficient evidence. The only evidence upon which it rests is the order taking the interrogatories .of the plaintiff for confessed, and the order taking the facts set forth in the affidavit of tho plaintiff’s attorney for confessed. Tho day fixed by the court for the answering the interrogatories in open court, was the day ■of the trial of the cause. The Code of Practice requires the judge to fix a day on which the interrogatories shall be answered. Code of Practice, art. 351. The order was inade at the instance and on the prayer of the plaintiffs. Tho .day of trial is a day uncertain, and when the plaintiff took upon himself to ask .of the court to fix a day uncertain, depending upon many contingencies, he took upon himself the responsibility of citing or notifying the defendant of the happening of the contingency, which would render his personal attendance necessary, in compliance'with the order of the court. The record shows no notice t(o the defendant that the cause was to be tried on the 10th February, 1845. The taking the interrogatories for confessed was by surprise, and is no .evidence to support the judgment. 10 La. 417.
    II. The neglect on the part of the defendant to produce the ledger of Tirpin, Walts &>• Co., was wrongfully taken by the court as a confession of what tho plaintiff proposed to prove by the book :
    1st. Because the defendant had no notice of the day of trial.
    2d. Because the Code of Practice, art. 140, requires that the party should declare, in writing and under oath, what are the lacts he intends to establish, and that the facts stated and sworn to, shall be taken as confessed, only on the refusal of the party to answer.
   The judgment of the court was pronounced by

Kino, J.

The plaintiffs instituted this action to recovor a sum of money with interest, alleged to be due on open account, by Richard Nugent, the defendant, .as a member of the cgmmorcial firm of Turpin, Watt & Co., at the time that the debt accrued. To this petition were annexed interrogatories addressed to the defendant, whose answers were not suchas to establish the demand.

. On motion of tho plaintiffs’ counsel the defendant was ordered to produco the ledger of Turpin, Watt & Co. on the trial of the cause, on the 11th of December, 1845. The application was supported by an affidavit of the agent ,of the plaintiffs, of his belief that the ledger called for would show the sum .claimed to be due by the defendant. On the 11th of December, tho trial was jjot gone into, and the plaintiffs .obtained a second order requiring tho book to be produced on the trial of the cause. On the same day ihoy filed a supplemental petition, propounding further interrogatories to tho defendant, which they proposed should be answered, in open court on the trial, and an order to that effect was granted. The defendant was notified of both of these orders. No certain day, however, was fixed for a compliance with either of thorn, and the only notice which it is pretended he received of the day of trial, was that effected by posting up in the eourt-roora a list of the causes assigned for each day. The record does not inform us whether, at any subsequent time, the cause was set down for trial. We find, however, that, on the 10th of February following, an order was entered by tho court, that the second sot of interrogatories propounded to the defendant should be taken as confessed, and that the facts statod in the affidavit for tho production of the ledger should be taken as true, the defendant having failed to answer or produce the book. The court thereupon proceeded to render a final judgment in favor of the plaintiffs for tho sum claimed, from which the defendant has appealod.

The plaintiffs contend that the court must be presumed to have done its duty, and set the cause down for trial, of which parties are required to take notice at their peril, and that this was a sufficient notification of the day on which the interrogatories wore to be answered and the ledger produced.

When a party requires the answers of his adversary to interrogatories to be given in open court, “a day must bo appointed to that effect by the judge,” by which is understood a day fixed and determined, and of that day the party interrogated must be notified. C. P. 351. 10 La. 417. Fixing the day of trial as that on which answers are to be rendered, is not a sufficient designation of the day, unless it be ascertained with certainty in the order notified to the party. Assuming that the cause was set down for trial, tho only notice given of the day assigned was, by posting up in the court room the cases fixed for tho week. This is a sufficient notico to counsel to be in readiness for trial, and to that end to make all the preparation that depends upon them. 13ut where an act is to bo done by a party personally, which cannot be done by his counsel, he is entitled to a special notice of the order, and of the particular day on which lie is required to comply with it, before he can be deemed to be in default for negligence. If the rule wero otherwise, litigants would be perpetually exposed to surprise.

The production of the ledger was also an act to be performed by the defendant personally, and a special notification to him of the day fixed for the trial was necessary, before ho could be considered to have refused to comply with the order of the court.

The facts of this case present a striking illustration of the injustice which would frequently result from the enforcement of the rule contended for by the plaintiffs. The defendant was asked whether he did not believe that he owed the plaintiffs the sum claimed, and was called on to produce a partnership book, in order to show tho indebtedness. His failures to comply with the orders of court at a time of which he only received constructive notice, and of which he was probably ignorant, was taken as a confession of the debt, and a judgment rendered against him on this evidence, when, at the time, his answers to the first set of interrogatories were spread upon the record, in which he had previously informed the plaintiffs that, while he was a member of the house of Turpin, Watt §• Co., the business of tho firm was conducted in the State of Mississippi, and that he resided in this city, that he knew nothing of the business of the house, except what he had derived from his partners, and that he was not in possession of the boolcs of the firm. Thus facts have been taken as confessed, almost directly opposed to those which the defendant had previously stated under oath.

We think that the judge erred in ordering the inteirogatories to be taken as confessed, and in considering the facts stated in the affidavit for the production of the ledger to be true.

It is therefore ordered that, the judgment of tho Commercial Court be reversed, and that the cause be remanded for further proceedings, the appellees paying the costs of this appeal


author: Seidell, J.

text:
    Dennistoun et al. v. Malard et al.
    The privilege of the lessor is superior to that of the vendor, where the property sold has been delivered to the purchaser. Nor can the rights of the former he afflectod by a sale made by tho lessee to one of his creditors, and a fraudulent removal of the property, by an agent of the purchasor, from tho promises leased, for tho purpose of placing it beyond the landlord’s roach. C. C. 19G5, 1972, 1977, 3135, 3230.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      II. II. for and intervenors.
    1st. It was a giving in payment, nota sale, and thero was no real delivery. C. C. 2028, 2626.
    2d. It was made when the seller, or rather the transferror, was insolvent. C. C, 1965, 1972.
    3d. Such transfers, within a year .proceeding insolvency, are presumptive of fraud in both vendor and vendee, who must prove their good faith. Acts of 1840, p. 133, ss. 14,19. Hodge v. Morgan, 2 Mart. N. S. 61.
    4th. Malard's continuing in possessson was proof presumptive of fraud. C. C. 1915, 2456. 5 Touh, no. 41. Pierce v. Curtis, 6 Mart. 418. Thibodeaux v. Thompson, 17 La. 359. '
    The vendor’s privilege yields to the lessor’s, All the goods had been unpacked, and were not claimed within eight days thereafter. Civil Code, arts. 3196 3197, 3230.

      Durel for appellant.
    By art. 1977 of the Civil Code, “If tho parties with whom the debtor contracted,, be,in fraud as well as the debtor, ho shall not, in the annulling the contract, be entitled to restitution of the price or consideration he may have paid, except so much as he shall prove shall have inured to the benefit of tho creditors by adding .to the amount of property applicable to tho payment of their debts; but if the only consideration be a sum due from such debtor to the party with whom he contracted, then'the only restitution to be made is the placing the parties in the situation in which they were before the contract complained of was made.

    By art. 1978, it is declared: uBut if such fraud consisted, merely in the endeavor to obtain a preference over other creditors, for the securing or payment of a just debt, under circumstances in which, by law, the ondeavor to obtain such preference is declared to be a constructive fraud, in such case tho party shall only lose the advantage endeavored to be secured by such .contract, and shall bo re-imbursed what he may have given nr paid, without interest, and shall restore all advantages he has received from the transaction.”
    It is under these articles the plaintiff proceeds.
    If Hunt Co. are, in the language of art. 1978, “only to lose the advantage endeavored to be secured by the contract” of sale; and if, in the language of art. 1977, “the only restitution to be made, is placing the parties in the situation in which they were before the contract complained of was made,” then Hunt tf Co. stand, as creditors of Malard, with tho vendor’s privilege upon all his goods, and upon all goods transferred by the act of sale of the 14th January, excepting a small quantity, which, being unsaleable, were sent to auction, and brought $124 14.

      Plaintiffs’ privileges ns lessors upon the goods was lost by thtfiif, as tlioy did not, in accordance with art. 2679 of the Civile Code, seize tho objects subject to it, before they wore taken from the store, nor within fifteen days thereafter.
    The judgment of the court below was based upon art. 1972 of tho Civil Code. By that art. it is doclared that, “ The judgment in this action, if maintained shall be that the contract be avoided as to its effect upon the complaining creditors, and that all the property in money, taken from tho original debtor’s estate by virtue thereof, or the value of such property to the amount of tho debt, be applied to the payment of the plaintiffs-” In this case, tho effects of the sale wero not injurious to tho complaining creditors, for Hunt Sy Co. obtained thereby only the advantage which the vendor’s privilege gave them, and would still give them, though the sale be anulled. That article must, moreover, be construed in connection with arts. 1973,1974, 1976, 1977, and 1978. Art. 1973 says, “No contract shall bo avoided by this action but such as are made in fraud of creditors, and such a3, if carried into execution, would havo the effect of defrauding them. If Hunt & Co. have tho vendor’s privilege upon the goods, and no other creditor has a superior or equal privilege, by carrying the contract into execution, Hunt Sy Co. gained no more than their privilege gave them, and its execution could defraud no one.
    As to Brewster, it would seem impossible to sustain the judgment of the court below, if tho articles 1973, 1974, 1976, 1977, and 1978, are regarded as at all applicable to tho facts of the suit.

      Greiner, on the same side.
   The judgment of the court was pronounced bjr

Seidell, J.

The plaintiffs leased to Malard a shop in tho city, and while he was in possession, on tho 14th day of January, 1843, being in insolvent circumstances, ho executed to John Hunt & Co., who were his creditors, and represented by an agent at New Orleans, a notarial bill of salo of all his stock in trade, then on the leased premises. The items forming tho consideration of tho sale wore all antecedent debts. Malard,, however, remained in possession of the store for several weeks. Tho understanding between him and Hunt & Co. seems to have been, that he should continue tire business and account to Hunt & Co. for the proceeds of the sales, after applying small sums first for his family oxpenses and his small debts. Malard’s sign was continued on tho outside of tho shop; but a sign was put up inside representing Malard as tho agent of Hunt Sy Co. Subsequently, and about the middle of February, Malard ceased to act in tho store, some dissatisfaction arising between him and Hunt ¿j- Co. who put there an agent appointed by themselves, Malard’s sign still remaining and his clerks continuing to act there. A few days before the institution of this suit, between sunrise and breakfast time, Hunt & Co. carried off all the stock of goods-, and then the plaintiffs, who had never had any notice of the transfer to Hunt & Co., though Hunt & Co. appear to havo known that the rent was unpaid, obtained a sequestration; but the shop was found empty, and the goods could not be traced. Soon after, upon discovering the notarial sale, the plaintiffs, by a supplemental petition, made Hunt & Co. parties, charging the invalidity of the assignment as a fraudulent preference, and also charging a fraudulent combination between Malard and Hunt Sy Co. to deprive them of tho landlord’s lien. Brewster, another creditor for a small amount for goods sold, intervened, and joined with tho plaintiffs in their suit to set aside the assignment. The court gave judgment in favor of the plaintiffs and intervenor; and the defendants, Hunt Sy Co., havo appealed.

Wo entirely agree with tho judge of the court below in the conclusions to which he camo, both that the assignment was a fraudulent preference by an insolvent debtor, and that there was besides a breach of good faith towards tho landlord, and a violation of his rights in the removal of the goods. We consider tho court below aa justified in the opinion, that the agent of Hunt Co. was aware that the lessors had not been jxaid, and that the object of the-removal was to defeat their lien. It is said that the lien was gone, because it was not exercised within the fifteen days by a levy on the property, and that the alleged lien of Hunt & Co., as vendors of the goods, must be preserved to them, even if the assignment be sot aside. It is not proved that this alleged lien of the vendor existed on the whole of the goods, por indeed, as the case is presented, would we be able to say whether it existed at all: for Hunt Sf Co. being a New York house, tliero is strong reason to infer that the sale to Malar cl was made there. But, however this may be, it is clear that the landlord’s lien is superior to that of the vendor’s, who has made a delivery; and it cannot be contended that Hunt Sf Co. could place themselves in a better position, by fraudulently removing the goods beyond the landlord’s reach and frustrating his' search. To recognize such a doctrine would be to say, that a party could, by lxis own wrong, place a fair creditor in duriori casu. Three or four days after the removal, the sheriff was started in pursuit of the goods, and his return is as follows, to the wx'it by which he was commanded to seize them: “Rec’d, 2nd March, 1843. Nothing could bo found; all the within mentioned property having been removed to parts unknown either to plaintiffs or sheriff.”

That Hunt & Co. did not tlxomselves do the acts complained of, is no defence, What was done, was done by their agent, in tho management of their business aixd the prosecution of their interests, and they are equally responsible for its legal consequences. They do not repudiate the assignment, but claim under it, and hold on to tho abstracted property.

It is contended that tho amount of the goods was not equal to the amount of the judgments rendered. Tho evidence on this point is conflicting, but wc aro not able to say that thex’O was xxxanifest ex’ror in the finding of the court bolow. Tho judge of tlxo Commercial Court, who heard tho witnesses, thought tho value was large enough to cover the complaining creditors; and the conduct of the defendants in secreting the property, and thus preventing a more accurate estimate of its value by impartial witnesses, gives a bad grace to their application in tho appellate court for a reduction. See Civil Code, arts. 1965, 1972, 1977, 3185, 3230. Judgment affirmed.