author: Wily, J.

text:
    No. 42.
    Wallace J. Smith v. Benjamin F. Logan.
    Two parties claim tlie same piece of property from tlie same source of title, the one deriving liis title by purchase at priY.ito sale, and the other by purchase at a judicial sale under a mortgage, the existence of which was known to the purchaser at private sale at the time, and the evidence shows that the description of the property at the forced sale is the fame as that in the private sale. Held — That the purchaser at the forced salo can not be defeated in. his title at a suit of the claimant at private sale,-on the ground oi want oi sufficient description of the property at the public sale.
    from the Tenth District Court, parish of Caddo. Jones, J.

      Williamson & Levisee, for plaintiff and appellant. T. T. & A. D. Land, for defendant and appellee..
   Wily, J.

This is a suit to annul a judicial sale of a lot of ground in the city of Shreveport, on'account of the insufficiency of the description of the property and for informalities in the sale.

In July, 1860, William M. Butler mortgaged to the defendant “the following described lots of ground in the town of Shreveport, to wit: Tn block twenty-seven (27), commencing at the corner of Lake and Marshall streets, running two hundred feet on Lake street and one hundred and fifty feet on Marshall street; also eighty feet on McNeill street, running back one hundred and fifty feet along an alley, thence eighty feet parallel with McNeill afreet,' tápese to McNeill street, together with all the buildings and improvements thereon, except that portion of said property sold by said Butler to R. G. Lowe, as per record of Caddo parish.”

The mortgage was duly inscribed in the mortgage office.

In May, 1861, the defendant foreclosed his mortgage and bought the property, the sheriff’s procos verbal describing it just as it was described in the mortgage. The foreclosure and sale was made contradictorily with a curator ad hoe appointed by the court to represent Butler, the mortgager, who was an absentee.

In January, 1861, Butler sold to Marx Baer one of the lots which he had previously mortgaged to the defendant, and Baer sold it to the plaintiff. Plaintiff having thus acquired that one of the lots which lies on McNeill street, sues the defendant for the possession thereof, and to have the mortgage and sale to the latter declared void for want of proper description and for want of proper formalities in the alienation.

The defendant pleaded the general issue, admitted that he had a mortgage on the lot claimed by plaintiff, and averred that it was legally foreclosed, and he became the purchaser thereof.

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

Plaintiff acquired the property from Butler after the mortgage from Butler to the defendant had been executed and-duly recorded; he is therefore presumed to have had notice of the mortgage.

He insists, however, that the mortgage itself was null for want of a sufficient description of the property.

Butler acquired the property from J. S. Cutliff in March, 1858, and the description in the mortgage is just the same as in the deed from Cutliff.

He mortgaged the property to the defendant, describing it identically as in the deed by which he acquired it. Plaintiff and the defendant both claim under Butler; the one is the vendee of Butler’s vendee, the other is the purchaser under the foreclosure of a mortgage given by Butler on the same lot of ground.

We do not, however, consider the description in the mortgage fatally defective. The situation of the lot at the corner of Lake and Marshall streets, block 27, is sufficiently certain. The lot on McNeill street is also fixed as in block 27 by the reference made to the deed from “ Butler to R. G. Lowe, as per record of Caddo parish.” This reference and the description given sufficiently establishes the situation of the lot. The deed from Butler to Lowe was of record at the time of the mortgage; it was received in evidence on the trial, and it establishes the identity of the property.

In Laforest v. Barrow, 12 A. 148, it was held that “ the title of a purchaser under foreclosure of the mortgage who takes possession, can not be defeated by an error in some of the boundaries, where the most important calls in the description are answered, and the identity of the property is established aliunde ; particularly at the suit of a subsequent purchaser under the mortgager with notice.”

As to the informalities, if any, in the foreclosure, they can not avail the plaintiff. He was without interest to arrest the executory proceedings by setting up defenses personal to the deiendant in execution. The formalities in forced sales are for the protection of the deiendant in execution, and not that of third parties to the proceeding.

It is therefore ordered that the judgment of the court a qua bo affirmed with costs.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 177.
    Makler and Husband v. McClelland, Tutor, et al.
    A vendor of real estate in order to defeat the mortgagee of his vendee, on the ground of fraud in the salé of the.property, must show that the mortgagee was aware of the fraud at the time the contract of mortgage was made.
    from the Tenth Judicial District, Parish of Cadjlo. Taylor, J., vice Levisee, J., recused.

      A. W. O. Hieles, for plaintiffs and appellants. Nutt & Leonard, for defendants and appellees.
   Taliaferro, J.

The plaintiffs enjoined a writ of seizure and sale taken out by the defendant in his representative capacity on an obligation entered into by the agent of one Bedell, and secured by mortgage on real estate which the plaintiff Magdelena Makler, late widow Miller, alleges belongs to her. There was a general denial by the defendant. Judgment was rendered in the court below in favor of the defendant, and plaintiffs have appealed.

Wright, acting in the capacity of agent under a power of attorney from Bedell, obtained a loan of money from Logan, father of the minor, for the payment of which he executed on the part of his principal a promissory note for $2200, payable in sixty days, and to secure the 'payment executed a mortgage on certain property in Shreveport. This property, it seems, was the same or part of the same, which Mrs. Makler, during her widowhood, sold to Bedell by deed, bearing date thirteenth June, 1866. There is now before this court a suit by Mrs. Makler to annul and set aside that sale on the ground of the grossest fraud and deception practiced upon her by Bedell, who, as she alleges, resorted to every species of chicanery, falsehood and imposition to cheat and SAvindle her out of her property; that she ivas overreached by his duplicity and induced to sign the act of sale referred to, and has never received one cent for the property which she has thus been foully and wickedly deprived of. The evidence taken on the trial of that case is introduced as evidence in this, and it presents a deplorable spectacle of the ignorance and fatuity of a weak and credulous woman on the one side, and'the cool villainy and impudence of an adventurer bn the other. That the party complaining has been swindled, there is no room to doubt. The grounds, set tip for obtaining the injunction are various, and are as follows;

First — That the agent exceeded his authority in borrowing money; that the loan was not applied to the purposes for which it was obtained; that the lender was aware of this. And the inference made by plaintiff is that he loaned hi* money in bad faith.

Second — That it does not appear from the note, mortgage or any authentic evidence that the sum of $2200 was borrowed money.

Third — That the agent was not authorized to execute the mortgage, nor to contract to pay more than eight per cent, for the loan.

Fourth — Because the note was given for more money than was received for the use of Bedell or was intended for his use, and that this was known to Logan, the lender.

Fifth — That the property mortgaged by the agent was not in the possession of Bedell at the time the order of seizure was granted.

Sixth — Because Alice, the minor child of Logan, had reached the age of puberty at the time the order of seizure issued, and B. F. Logan, the other minor, had, at that time, been emancipated. Therefore, • the minor Alice was not a party, and B. F. Logan was unassisted by a tutor.

Seventh — That the mandate, mortgage and supposed judgment are a fraud upon the rights of Mrs. Maklin, conceived and perpetrated .by Bedell, Surtin, Lawrence Bayliss and Logan for the purpose of injuring, cheating and defrauding her.

Fighih — Because of the non-payment of the price by Bedell, the price not having been paid or tendered.

Unsupported, as most of these asseverations seem to be by evidence, we think they have but little force. The important inquiry is, was Logan, the lender of the money, a party to the fraud alleged, or had he at the time of lending the money knowledge of the fraud practiced upon the complainant? Mrs. Miller sold to Bedell thirteenth June, 1866. Payment of the price is acknowledged. Wright’s power of attorney is full and ample, general and special, covering all the aets he performed in his capacity of agent. The contract of loan and mortgage was consummated on the third of July succeeding the sale to Bedell. The mortgage contains the pact de non alienando.

A close scrutiny of all the evidence adduced in this case faffs to assure us that Logan had knowledge or notice of the fraud. The only notice or knowledge he is shown to have had of Bedell’s title to the property was that which he and others are supposed to have from the fact that that title was of record in the proper office, and that it declares that Bedell had bought the lots from Mrs. Makler, and had paid her for them; and because the purchaser had exercised one of the essential powers of ownership in granting to an agent the authority to mortgage it to any extent. No such circumstances of suspicion as would have led a prudent man to further investigation before parting with his money on the security of such a title is shown. It is shown that he lived near Shreveport, and had lived there for a number of years ; that lie was a farmer and a money lender, a keen, shrewd man; a note shaver, and therefore likely in all transactions of the sort to-look well to “the sufficiency of the bond.” It is in proof that a proposition was made by Lawrence to Hope, the partner of Tally (a witness of the plaintiff), to advance money on mortgage upon this property before the loan was obtained from Logan. Tally in his testimony says :

“The general opinion of the community of Shreveport was that Mrs. Miller had been swindled in the sale by her to Bedell, and I would not have anything to do with the property in consequence of this general belief.” He states also “that the sale from plaintiff to Bedell was not generally known or much talced about until she brought suit to annul it.”

It is unfortunate that the plaintiff, through her ignorance and improvident conduct, has placed it in the power of her deceiver to perpetrate frauds upon innocent third parties. Her admissions are also unfortunate, that not being able to raise money upon her property, and being in need, she had placed the title in Bedell in order to procure money; thus in effect admitting that the sale to Bedell was a simulation, she being a party to it. Unintentionally, no doubt,' she has placed it out of her power now, in contests with third parties without knowledge of the fraud practiced upon her, to deny the declarations made by her in the deed announcing that she had sold her property to Bedell and received payment for it. In such a state of things, the law can afford her no relief. As to all that the evidence shows, Logan or his representatives are free from any imputation of complicity with the parties guilty of the fraud in question or of any knowledge or notice thereof. She therefore cannot be relieved from the effect of Bedell’s mortgage of the property to Logan. The case of William E. Leverich v. Clemence Toby, 6 Ann. 462, is closely in point to this case. See Foster v. Foster, 11 L. 408. Stockton v. Craddock, 4 An. 285.

It is therefore ordered, adjudged and decreed that the judgment oí the District Court be affirmed with costs in both courts.


author: Ludeeing, C. J.

text:
    No. 180.
    H. Borden v. J. J. Hope
    A reeeipt given for money paid is not conclusivo between the parties, and may be contradicted or explained by evidence, bufcj when the evidence offered is conti adictory, and that offered on one side entitled to as much weight as the other, the receipt will stand.
    A PPEAL from the District Court, parish of Caddo. Devisee, J.

      T. T. & A. D. Land, for plaintiff and appellee. J. W. Duncan, for defendant and appellant.
   Ludeeing, C. J.

It appears that in the summer of 1865 H. Borden and J. J. Hope- had a settlement of accounts between themselves, and that Hope was found to he indebted to Borden in the sum of seventeen hundred and sixteen dollars. It further appears that this sum was paid by Hope with United States treasury notes and the notes of different banks in the Southern States — the notes of the banks being taken at seventy-five cents on the dollar.

In March, 1866, this suit was instituted to make the defendant pay the difference between the actual value of the bank notes and seventy-live cents on the dollar, on the ground that Hope had guaranteed the notes to be worth seventy-five cents on the dollar.

On the trial of the cause the plaintiff offered the testimony of one Bushmore to prove that Hope had warranted the value of the bank notes. The defendant objected on the ground that the testimony was intended to contradict and vary a written paper signed by C. B. Rushmore, agent of the plaintiff, creating an obligation between the plaintiff and defendant in reference to the subject matter referred to in the testimony. The objection was correctly overruled.

It has often been decided that a receipt for money paid was not conclusive between'the parties, but that it was open to explanation by evidence. 5 An. 235, 403; 14 An. 274; 12 An. 401.

On the merits the sole question is, did the defendant guarantee that the bank notes were worth seventy-five cents on the dollar? The testimony of Bushmore on the one side is diametrically opposed to the testimony of Hope on the other side. Bushmore swears positively that Hope did guarantee the value of the notes, while Hope swears he did not. He says he did not undertake to make up the difference to Borden between seventy-five cents on the dollar and what that money should be worth on that day — sixth July, east of the Mississippi river.”

The witness Bushmore alone testifies in favor of the position of the plaintiff, and he was the agent of the plaintiff in making the settlement with Hope, and, according to the testimony of Hope, Bushmore had stated to him that Borden intended to make him, the agent, pay the difference. Both witnesses, therefore, were interested in the suit, and one is entitled to about as much credit'as the other.

The receipt given by Borden is in the following words: Beceived of J. J. Hope the sum of seventeen hundred and sixteen dollars and seventy-five cents in fall of all demands to date.”

It is prima fade proof of what it contains. The evidence offered by the plaintiff has not rebutted that proof.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of defendant for costs' of both courts.


author: . W1TLY, J.

text:
    No. 171.
    R. E. Sewell, Executor, v. J. N. Cooper.
    Partners have no cause of action against each other for a specific sum resulting from partner* ship transactions until there has "been a settlement of the partnership.
    from the Tenth District Court, parish of Caddo. Taylor, J.

      George Williamson, for executor and appellee. Looney t& TPeZZs, for defendant and appellant.
   . W1TLY, J.

The succession of Jolm M. Landrum, througli its proper representative sued tlie defendant on liis promissory note for $2983 92, and levied an attachment on his property, ho being an absentee.

After pleading the general issue, the defendant averred that he gave the note sued on to the executor “ as a part or proximate settlement of the partnership heretofore existing between him and the late John M. Landrum, known as the firm of Landrum & Cooper that it was well known to plaintiff that said partnership was not and is not yet settled. He averred that he has always been ready and anxious for a partnership settlement and no demand, either judicial or amicable, has ever been made for such settlement, and he therefore moved for the dismissal of the suit.

Further answering, he averred that the note was given in error — that the partial settlement was erroneous; that there was an item of one thousand two hundred dollars charged as the value of a negro woman named Ann,” which was erroneous, the deceased never having made a valid title to him.

Second — The item of six hundred and forty-five dollars, for half value of the negro boy “Gus,” was for the same reason also erroneous.

Third — The item of $2334 88, due White, Smith & Baldwin was erroneous, the same having been paid to A. J. Bugely & Co. by draft, and now forms part of the consideration of a note on which the defendant is sued by Neill Stephens.

Fourth — The item of sixty-seven dollars and forty-eight cents due J. H. Hudgins was erroneous for the same reason.

Fifth — There was an error in not giving the defendant credit for $1488 36, for the amount paid by draft of Landrum & Cooper for a slave, the private property of Landrum.

Sixth — There was an error in not charging Landrum with $4000, funds of Landrum & Cooper, arising from the construction of a levee on Bed river, and which funds were collected by Landrum.

Seventh — There was error in not crediting the defendant for the amount of taxes of Landrum & Cooper for 1863, which was paid by him.

Fighih — The defendant avers that he paid to J. Dubail $1500, the debt of Landrum & Cooper, for which he had no credit.

Ninth — Defendant avers that he holds the note of Landrum & Cooper, due the succession of William Gardner, for hire of slaves for 1860.

The defendant further avers that he left on the plantation of Lan-drum & Cooper four bales of cotton belonging to said firm, worth eight hundred dollars, which have not been partitioned, and which have been used or appropriated by the plaintiff. Also that there remained on said plantation one hundred head of cattle, worth soven hundred dollars, belonging to said firm, which have not been partitioned, but have been used or appropriated by the plaintiff.

The defendant prayed that plaintiff’s demand be rejected, and for judgment in reconvéntion for $4000.

The court gave judgment for plaintiff for $3764 29, and gave tlie defendant judgment on Ms reconventional demand against the plaintiff for sums amounting, in the aggregate, to $2925 65, and maintained tlie attachment.

The defendant has appealed.

The answer raises issues widely different from those presented in the petition.

■ From the .evidence we are satisfied that there never has been a final legal settlement of the partnership heretofore existing between John M. Landrum and the defendant.

The attempted settlement of the executor and the defendant in 1864 was had without the sanction or authorization of the court, and was not such as tlie law requires. Besides, it appears from the records that all the debts of the partnership had not been paid, and there was some cotton and other property not partitioned.

The note sued on but evidences the supposed indebtedness of the defendant to the succession of Landrum, after the settlement of the partnership.

It is well settled that partners have no cause of action for a specific sum, against each other, resulting from partnership transactions, till the partnership debts have been paid, or there has- been a settlement of the partnership.

Plaintiff has not prayed for a settlement of partnership affairs and the pleadings are not such as are required for tlie settlement of the partnership.- Ilis demand must therefore be rejected, and the recon-ventional demand must also be rejected.

It is therefore ordered that this suit be dismissed, without prejudice to tlie right of either tlie plaintiff or defendant to sue for a settlement of the partnership of Landrum & Cooper.

It is further ordered that plaintiff pay all costs.


author: TaliafeReo, J.

text:
    No. 190.
    Pasiana et al. v. Powell.
    All informaíiüee that occur in connection with the probate proceedings' for the sale of land, are prescribed by the lapse of five years from the date of the sale. Revised Statutes, 1850, page 22, § 4.
    from the Tenth Judicial District Court, parish of Bossier. Weems, J.

      Nutt & Leonard, for plaintiffs and appellees, George Williamson, for defendant and appellant.
   TaliafeReo, J.

The plaintiff Marie Yasan Pasiana, widow of Jean Pierre Schlettre, in her own right and as tutrix of her minor children, heirs of the said Schlettre, joined by his major heirs, bring this suit to recover a tract of land which she alleges is in the possession of the defendant Eliza Powell, who illegally detains it from the plaintiffs, who allege that they are the lawful owners. They pray judgment accordingly, and for fruits and reyenues, ’■

Tlie defendant enters a general denial. Slie avers that slie is tlio true and lawful owner by title derived tlirougli her late husband, William A. Powell, by a probate sale under and by virtue of an order of sale rendered by the Court of Probates of the parish of Bossier. She prays also in case of eviction that she have judgment for one thousand dollars, the price paid by her husband.for the land with reservation of the right to recover for improvements, etc. J udgmeut was rendered in favor of the plaintiffs, decreeing them to be the owners of the land, annulling the pretended sale under which defendant claims, dismissing the defendant’s claim for fruits and revenues as of nonsuit, and ordering a writ of possession to issue in favor of plaintiffs.

Prom this judgment the defendant appeals.

The records of the parish of Bossier seem to have been thoroughly examined in order to procure all the proceedings hád in relation to the probate sale of the land in question, and they appear in extenso in the record. By these documents it appears that one Scarborough filed a petition in the clerk’s office of that parish on the twenty-seventh of October, 1853, setting forth that Jean Pierre Schlottre had died in that parish in the preceding April; that his estate was in debt; that an administration was necessary, and representing himself as a party interested,” prayed to be appointed administrator, and that an inventory be made. This application was followed up by the usual i>ro-ceedings, in apparently regular order, to the time of the order of- sale, which was rendered on the twenty-second of December, 1853. The plaintiffs allege fraud and collusion between the administrator and the purchaser of the property.

There is no evidence that sustains the allegation. The sale was made on the seventh of September, 1854, and this suit was filed twenty-seventh March, 1860, more than .five years having intervened. The defendant opposes to plaintiffs’ claim the prescription of five years, against the informalities alleged by' plaintiffs to appear in the proceedings taken in connection with the sale of the land in controversy. The plea of prescription we think must prevail. See Bevised Statutes, page 22, section 4.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed.

It is further ordered that judgment be rendered in favor of the defendant, quieting her in, the ownership and possession of- the land claimed by plaintiffs; and it is further ordered that plaintiffs and appellees pay costs in both courts.

ON Application- por Keheauing.

Purchasers need not look beyond the decree of the court, if the facts necessary to give the court jurisdiction appear on-tlie face of the proceedings. 13 L. K. 431. >

The rehearing is refused.


text:
    No. 166.
    Elias O’Neill et al. v. Police Jury of the Parish of Caddo et al.
    The cuy of Shreveport has no control over the public ferries across the Red river beyond the limits of the corporation.
    The police jury of the parish of Caddo has the right to establish as many ferries across the Red rive,r or other water courses, aud outside of the corporation of Shreveport, and within the limits of the parish, as the public convenience may require.
    .1 jL PPEAL from tlie Tenth'Judicial District Court, parish of Caddo. Weems, J.

      Richard- W. Tame)’, and Looney & Wells, for plaintiffs and apjiellants, Nutt é Leonard and J. W. Jones, for appellees.
   Taliaferro, J.

It is averred by the plaintiffs that Elias O’Neill in July, 1867, leased for a term of seven years from the city of Shreveport and the parish of Bossier, at the annual sum of $4500 rent, the public ferry across Red river at Shreveport. That being in the discharge of his obligations under this contract of lease, his rights and privileges under the same have been infringed and great damage caused him by the police jury of the parish of Caddo, which has established a ferry across Red river within a few feet of the corporation line of Shreveport, and leased the same to T. E. Jacobs, who in conjunction with William Thatcher have the said ferry so established by the parish of Caddo in active operation, whereby the business and income of the ferry leased by him from the city of Shreveport is vastly reduced and rendered valueless to him. He prays judgment in solido against Thatcher, Jacobs and the police jury of Caddo for $16,000, and’ $150 per month for each mouth said ferry has been or may continue in operation. The 'plaintiffs call in the city of Shreveport as their guarantor in the premises, aud pray judgment against it for $5000.

The defendants filed sex>arate answers specially denying that they are in any manner liable to the plaintiffs on their demand. The answer on the part of the police jury of the parish of Caddo asserts its legal right to establish the ferry complained of; that the establishment of that ferry was called for to meet the public wants and convenience ; that it would be against public policy and order to tolerate a monopoly in favor of the plaintiffs of the ferries across Red river within the limits of the parish of Caddo. It further claims in recon-vention $2000 damages from the plaintiffs, amount of attorney’s fees incurred in defending the plaintiffs’ wanton and vexatious suit.

There was judgment for the defendants, and plaintiffs have appealed.

The only inquiry it seems to us is, has the plaintiff O’Neill, by law, any special franchise or privilege by which he is protected from competition in the use of the ferry he has leased, beyond the corporate limits of Shreveport?

We consider the act of 1805, granting to Parish Judges the right to grant licenses to ferrymen as superseded and repealed by later legislation and especially by the act of March, 1855.

We are unable to find any general law establishing a specific distance within which the keeper of a public ferry is secured against the establishment of any other public ferry. It would be difficult if not impracticable for the law maker to enact a law of that sort which could be beneficially carried out in practice. It- is in the public interest that monopolies should be, as far as practicable, prevented and restrained. We are inclined to think from the evidence in the record that the police jury of the parish of Caddo acted upon this principle in establishing the ferry which gave rise to this controversy. We are satisfied that its establishment has redounded to the public advantage and t.o the general convenience of the community, considerations which must always prevail over personal interest and private cupidity. We fin»1 no law til at sustains the pretensions of the plaintiffs, and we think they have no right to complain of the legitimate exercise of the powers of the police jury of the parish of Caddo in establishing a ferry outside of the corporate limits of Shreveport.

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

Rehearing refused.


author: Howe, J.

text:
    No. 179.
    G. W. Bancker & Co. v. M. Marti and Walters & Elder.
    Wlioro the verdict of the jury contradicts the admissions of the defendants in the answer, and the ends of justice require it, the cause will he remanded.
    from the District Court, parish of Caddo. Levisee, J.

      Wright & Duncan, for plaintiffs and appellants. Land & Taylor, for defendants and appellees.
   Howe, J.

This suit was instituted against M. Marti, as a member of the late firm of Marti & Bradley, to recover the sum of $5407, upon a bill of exchange, which it was alleged had been given to plaintiffs in payment for goods purchased. It was further averred' by plaintiffs that the firm of Marti & Bradley had been dissolved by agreement and that the goods and assets had been placed in the hands of Marti for the purpose of liquidation, but that he had made a fraudulent transfer of the entire stock in trade (including the goods sold to his firm by plaintiffs, and in value about $9000) to the firm of Walters & Elder, who were aware of his insolvent condition. The bill sued on fell due April 3, 1867, and the transfer, alleged to be fraudulent, was made about eleventh March, 1867. They prayed • for judgment against Marti for the amount of the debt, and for the annulment of the sale as fraudulent and to their prejudice, and for judgment in solido against Walters & Elder for the amount of their claim.

The defendants pleaded the general denial — specially denied any knowledge of the business affairs of M. Marti or Marti & Bradley, or of their insolvency, and then proceeded to admit as follows:

“ Defendants ’admit that they purchased from M. Marti a hill of goods in open market and paid said Marti the full value thereof, as a perfect-, legitimate and ordinary transfer, and said goods were delivered to -defendants after payment of the consideration therefor and without knowledge that said Marti was owing any one for said goods, or for any other merchandise.” They specially denied that they ever purchased any goods from SaidMarti that ever belonged to plaintiffs, and required strict proof in this regard. They álso denied that they purchased all the -goods 'of said Marti & Bradley, or of said Marti, and specially averred “ that the goods they did purchase were only a small portion of the original slock of Said Marti '& Bradley, and only such as were suited to the demands of defendants and were not purchased for the purposes of fraud or for any unjust advantage of any one.”

The case was tried hy a jury, which was demanded hy "Walters & Elder.’ No answer was made by Marti. The jury rendered the following verdict:

“ We, the jury in the case of G. W. Bancker & Co v. M. Marti, find the following verdict: a judgment against M. Marti for the full amount of the claim of Gr. W. Bancker & Co., fifty four hundred and twenty-seven dollars with interest. We further find there was no sale to the firm of Walters & Elder hy M. Marti.”

•The plaintiffs moved to set aside this verdict as to Walters & Elder, on the grounds that it was contrary to law and evidence, that it was not responsive to the pleadings, that it did not dispose of the issues involved in the suit,, and that ¿o judgment eould.be rendered on that part of the verdict.

The motion appears to have been overruled, and judgment was entered against Marti for the sum demanded, and in favor of the defendants, Walters & Elder, for their costs, and plaintiffs -appealed.

We are constrained to say that the verdict of the jury in this case is very unsatisfactory. Upon the question of the indebtedness of Marti, their action being merely in confirmation of judgment by default on a bill of exchange, they seem to have arrived ata correct conclusion.; but their finding upon the other branch of the case ought to he set aside. They say there was no sale to the firm of Walters & Elder hy M. Marti-. Ye.t the answer of Walters & Elder admits, as we have seen, that there was a- sale, and the natural interpretation of the answer, as, a whole, would seem to be that tile defendants, while admitting the transfer alleged by plaintiffs, deny that certain goods were included in it; and that it- was made in fraud of the rights of plaintiff and to their prejudice: Their averment that the goods they did purchase were only a small-portion of the “ original stock” Of Marti & Bradley does not militate against this admission or against the averments of the- plaintiffis. The-question-was óf a-sale of the stock on hand about eleventh March, 1867, after the dissolution of the firm. It is shown by the pleadings that-the firm existed at least three months before that time.

We are of opinion that for this reason, and in the interests of justice, the cause should be remanded fot a new trial, as between the plaintiffs and Walters & Elder, that the question of the character of the' sale may be determined.

It is therefore ordered and adjudged that the judgment appealed from as to the defendant Marti, be affirmed, that in other respects the same be avoided and reversed, the verdict of the jury set aside, and the cause remanded for á new trial according to law; the costs of the appeal to be paid by tile appellees.


author: Howell, J.

text:
    No. 181.
    R. L. Gilmer, Application for Monition. Opposition of Josephine Nicholson et als.
    A third party who mates opposition to a monition sued out by the purchaser at judicial sale, must, in order to maintain his opposition, show an injury .resulting to himself from the sale.
    from tbe District Court, parish of Caddo. Devisee, J.

      Mutt cé Leonard, for appellant. Wright <& Duncan, for opponents, appellees.
   Howell, J.

K. L. Gilmer having purchased certain lands in the parish of Caddo, at a sheriff’s sale, made tinder a writ of execution issued in the suit of Josephine Nicholson and Husband v. Laura J. Willis, applied for and published a monition under the statute ot 1855, p. 463, which application was opposed by the said Josephine Nicholson and husband on the grounds following :

First — Jlecause the property described is the only property which the defendant possesses; out of which plaintiff in execution can make her judgment, and the price for which it was adjudicated, to wit, seven hundred dollars, amounting to hut a fraction- of her said judgment.

Second — Because said sale was made contrary to the instructions of the plaintiff, who, through her attorneys and agent directed the sheriff on the day of sale not to expose the property to sale.

Third — Because the said sale was not made according to the advertisement.

Fourth — Because said property was not appraised at one-fourth of its value.

Under the view which we have takeii of the ease, it becomes unnecessary to pass on the hill of exceptions of the appellant, Gilmer, to the admission of the witness Duncan’s testimony. The evidence in tbe record does not show that the sale in question has caused or can cause the opponent, Mrs. Nicholson, any injury, .and hence she has no interest in having the sale set aside. There is no proof that the property was .appraised or sold for less than its value, and it is not even alleged that opponent or any other person would give more for it than the price at which it was sold. It has been frequently held that judicial sales ought not to be disturbed, unless the party suing can show an injury resulting to him from the sale, as well as an interest in the result of the suit. G A. 54, 581; 5 A. 260; 3 A. 656, 664 ; 2 A. 902.

It is therefore ordered that'the judgment appealed from be reversed; that the opposition of Josephine Nicholson and husband be dismissed; that the judicial sale made on the third day of February, 1866, by the sheriff lo R. L. Gilmer, by virtue of a writ of fieri facias issued in the ease of Josephine Nicholson and Husband v. Laura J. Willis, No. 6752 on the docket of the District Court, parish of Caddo, for the sum of seven hundred dollars of the following described property, to wit: the southwest quarter of northwest quarter of section twenty-three, township seventeen, range fifteen, containing forty acres; also, the southwest quarter and the east half of northwest quarter and the west half of the northeast quarter, section twenty-three, and the east half of northeast quarter, section twenty-three; also, the north half of west half of northwest quarter, section twenty, township seventeen, range fourteen, containing in all four hundred and eighty acres, with all the improvements thereon, except the buildings on said land, and one hundred and sixty acres of said land on which said buildings are situated, and which lies immediately adjacent the buildings, the sale of which was enjoined by an order of the District Court of said parish in suit of L. J. Willis v. Simpson, Sheriff, et al., No.-on the docket of said court, be homologated and confirmed, and that the opponents pay the costs in both courts.


author: Ludeling, C. J.

text:
    No. 191.
    J. S. Simons v. Steamer R. White and Owners.
    Tiie instructions of the attorney of record, who placed the writ of jl. fa. in the hands of the sheriff, to retain it after the return day, will protect the sheriff from liability for failing to return the writ. 11
    from the District Court, parish of Caddo. Taylor (attorney-at-law), presiding, vice Levisee, J., recused.

      Williamson <& Levisee, for plaintiff and appellant, S.-N. Chapman, for defendant and appellee.
   Ludeling, C. J.

This is-an action by rule on the sheriff, Nathan Hoss, to show cause why there should not be judgment against him for the amount of a fieri facias placed in his hands for failing to return the writ before the expiration of the return day.

The evidence shows that R. S. Parham, an attorney at law, received the writ, and placed it in the hands of the sheriff; that subsequently he instituted proceedings in garnishment, to collect the amount of the debt; and that he did collect from the parties garnished about thirteen hundred dollars. It appears further that the sheriff was directed and instructed to hold up the writ, and not return it until after the returr day. In tlie present suit tlie plaintiff has denied under oath the attorney’s authority to represent him. Whether br not this affidavit is sufficient to prove a want of authority in tlie attorney to act, under the circumstances, is immaterial in this case. It' js not shown that the sheriff had any reasons to doubt the authority of the attorney to act in the matter. The writ was placed in his hands by the attorney, and the garnishments sued out were obtained by said Parham. These facts justified the sheriff in believing Parham was the authorized attorney of the plaintiff; and he was the attorney of record. We think the instructions of the attorney directing the sheriff to retain the writ in his hands should protect him from liability for not returning the writ, even if the plaintiff had not ratified the acts of Parham by settling with him for the moneys collected by him. Sheriffs have responsible and delicate duties to perform; and they should not be mulct in damages except when it is clear that they have been derelict in the discharge of their duties.

It is therefore ordered and adjudged that the judgment of the District Court be affirmed; and that the appellant pay the costs of appeal.


text:
    No. 173.
    L. Meyer & Brother v. Simpson, Sheriff, et. al.
    A sale of immovables lias no effect against third parties, until it is recorded in the proper office, in the parish where the property is situated. Acts of 1855, page 335 § 2.
    from the District Court, parish of Caddo. Levisee, J.

      George Williamson, for plaintiffs and appellees, Looney & Wells, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs have enjoined the sale of propertj seized under a writ of fi. fa. issued in the case of Simon Levy, Jr., v. Strauss, et al. They claim to be the owners of the property seized, and exhibit, in support of their claim, a notarial act, passed in New' Orleans, but not recorded in Caddo where the' property is situated, until after the seizure. They also offered in evidence an act from the judgment debtors to one Bothan, the plaintiffs’ vendor, which was recorded before the seizure.

The last act is alleged to be a simulation, and the evidence in the record leaves no doubt in our minds -that this position is correct. Bothan, the brother-in-law of the Strauss, came from St. Louis, where he resided, to Shreveport, and in a short time, by successive transfers, the Strauss made sales of their real estate, their interest in a steamboat, and of all their cottons, scattered in Texas and Louisiana, to said Bothan. These sales “ omnium bonorum,” are always suspicious. In this case the testimony of the witnesses and the acts of the parties leave no doubt of the- simulated character of the transactions. As against tliird persons the sale to Meyers & Co. liad no effect until its registry in the parish where the property is. 7 N. S. 661; 2 La. 125; 6 R-. 314; 6 La. 530; 2 An. 597, 869; 14 An. 833; Swan v. Moor.

It is not necessary to examine the bills of exceptions taken by the defendant. It is, therefore, ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the defendants dissolving the injunction, with ten per centum on the amount of the execution enjoined, as general damages, against the plaintiffs and Rebecca Meyer and D. L. Tally in sólido, with the costs of both courts.

Rehearing refused.


author: Ludemng, C. J.

text:
    No. 54.
    C. McCarty v. Straus and Baer & Straus.
    Where the names of one of the parties to a contract has been signed by a person representing.himself to the other as their agent, and the parties whose names have been thus signed specially deny the authority in a< suit to enforce it, the burden of showing authority in the agent to sign the names of the principals, or a subsequent ratification by them iajls on the party who seeks to enforce the contract.
    from the District Court of Caddo Parish. Weems, J.

      James W. Duncan, for plaintiff and appellee. Williamson & De-visee, for defendants and appellants.
   Ludemng, C. J.

The plaintiff sues the defendants - in solido for five thousand dollars in specie, the value of twenty thousand pounds of lint cotton. The claim is based on the following instrument:

“ Shreveport, La., May 29, 1865.

“ l have this day sold, and by these- presents do bargain and sell on my own account and for Baer & Straus, forty bales- of good middling cotton, averaging live hundred pounds per bale (twenty thousand pounds iu all), to bo delivered immediately if called for, to C. McCarty, of this city. Also I sell and transfer on the same account and 'to the said McCarty, forty-seven bales of cotton, marked J. S., now at Mon-terey, in Texas, originally stored with A. M. Hull & Co., of Shreveport, and removed to Monterey.

“ Now, it is understood and agreed that if I, the said Jacob Straus, or Baer & Straus, shall deliver to the said McCarty twenty thousand pounds of good middling cotton in good shipping order in Shreveport, or shall pay to him in specie the value of said twenty thousand pounds of cotton, estimating the price according to current rates when the trade may be opened regularly with-New Orleans; then the sale of the cotton named (if money is- paid) shall be: annulled, and the whole eighty-seven bales of cotton shall return and. belong to Baer & Straus ; otherwise the said McCarty can proceed to- obtain out of the whole amount the value, in the Shreveport market, of twenty thousand pounds of good middling cotton as- aforesaid.

“ BAER & STRAUS, “per Jacob- Straus.” ’

And the- plaintiff prayed for and -obtained a writ of sequestration against certain cotton in tlié possession of Baer & Straus, on the ground that lie had a privilege on it.

The defendants filed a motion to set aside the sequestration, on the ground that .the plaintiff had no privilege on the cotton sequestered. And by consent the motion was tried with the'merits." 1 - • ■'

The defendants, Baer &" Straus, filed an answer in which, after a general denial, they specially deny that ’the' document' sited - upon was signed by them or either'of them, of by'any one authoi'ize'd to represent them. ■ ■ ■ y ■ ■ .=

The defendant Jacob Straus filed no answer, and no default was taken as to him.

There was judgment in favor of the plaintiff for four thousand dollars in specie against all the defendants in soltclo',1 and- maintaining the writ of sequestration issued against the cotton. •- -s . .-

All the defendants have appealed.

Baer & Straus expressly denied that the instrument sued on was signed by them, or-by'anyone who had authority''to bind them. It was tiie plain duty of the plaintiff to’ 'prove fliat Jacob Straus was authorized by them to bind them, or to prove that they- had ratified Ids' acts. The evidence in this record fails to satisfy us that Jacob Straus was authorized to bind Baer '& Straus, or that Baer & Straus ever ratified his acts. The acts of a party from which the ratification of a contract is sought to be deduced, must evince clearly and unequivocally Ms intention to ratify. 17 La. 286, Copeland v. Mickie et al. There is no evidence to show that Baer & Straus, or either of them, ever did or said anything whereby they manifésted an intention to bind-themselves. Oii the contrary, each denied his liability.: Besides, the only evidence which tends to prové a ratification is-the-testimony of Wright. The contract attempted tó be established exceeds- five hundred dollars. C.'C. 2257. " ' ' ' " ' ;

The judgment against M. Baer and Joseph Straus is erroneous.

We have already not! ceil that no default was taken against Jacob Straus, and that no answer was filed by him.. No issue having been joined as to him, the trial was premature.

The views wo have expressed make it unnecessary to pass upon the bills of exceptions taken by the defendants." ■ •

It is therefore ordered, adjudged’ and decreed that the judgment of the District Court be avoided and.reversed; that there be judgment in favor of Baer &'Straus against the plaintiff, rejecting his demand, and that the writ of sequestration be dissolved. ■ • ' - ’■

It is further ordered' that This case bé remanded to the court a qua, to be proceeded in according to law against Jacob Straus ; and -that the plaintiff .pay the costs óf the ’sequestration and of'this1 appeal. - • '


author: Lddeling, C. J.

text:
    No. 185.
    Graham & Anderson v. Thompson Williams.
    A copy of a deed of trust and the assignment thereof which is kept in a public office oí any State, not appertaining to a court, is admissible in evidence in the courts of this State, on 1 being properly attested by the keeper of such records, without showing the loss of the original. Act of Congress of March 27, 1804.
    By a statute of Mississippi, approved March 13, 1837, copies taken from the record of all instruments in,writing may be received in evidence, and when so received they have the same effect as though the original were produced.
    When a statute of another State has once been recognized as law in that State, by a decision of the courts of this State, the courts of Louisiana will thereafter take judicial cognizance of the statute, and, until it bo proved that the law has been changed, will presume it still exists.
    A depositary can not be permitted to introduce evidonco to impeach the title of the depositor.
    from the District Court, parish of Caddo. Weems, J.

      T. T. & A. D. Land, for plaintiffs and appellants. Jones & Harris, for defendant and appellee.
   Lddeling, C. J.

The plaintiffs sue the defendant, claiming that they are the legal owners of thirty-five hales of cotton left with him as depositary by Willis Holmes for Victor F. Wilson. They allege that they acquired the title to said cotton by virtue of an assignment made in the State of Mississippi to them for the benefit of certain parties living in Great Britain.

They allege that the cotton weighed eighteen thousand seven hundred and thirty-six pounds, and was worth ten thousand five hundred dollars at the time they demanded the cotton from said Thompson Williams, and that said Williams has converted the cotton to his own use wrongfully. They pray for judgment for the amount just stated, with interest from judicial demand. Later the plaintiffs filed a supplemental petition, alleging that in a judicial proceeding, in which they were parties, they obtained an order of court to get possession of the cotton which had been left in the hands of the defendant by the sheriff as his keeper, and that he is liable to them for the value of the cotton, which he fails to deliver.

The defendant for answer denied all the allegations of the plaintiffs, except the genuineness of his receipt attached to the petition. He alleged that the contract between Willis Holmes, agent, and Reaves. Williams & Johnson was executory only, and that the consideration of the agreement to sell was Confederate money, and was null and void. For further answer he alleged that the said cotton was seized in the suit of James v. Wilson, and that this respondent, in ignorance of his lights, was employed by the sheriff to remove it from defendant's plantation to Shreveport. That he commenced removing the cotton, and during Ms absence from home with the first load of cotton the remainder, of the cotton, twenty-eight bales, was stolen or carried away from his plantation against his will and without his knowledge or fault.

The case was tried by a jury, who rendered a verdict in favor of defendant. The judgment of the court was in conformity to the verdict, and the plaintiffs have appealed. '

On the trial the defendant retained bills of exceptions to the i uling' of the court, permitting the records in the suit of James v. Wilson to be filed in evidence. The objections urged were irrelevancy and inadmissibility. We think the judge correctly received the evidence. The defendant took another bilb of exceptions to the ruling of the judge a quo, receiving in evidence the assignment executed in the State of Mississippi, on the following grounds: First, that the copy offered was unaccompanied by proof that, by the laws of Mississippi, sucii a copy was admissible in evidence in that State; second, that it was only a copy of a copy j third, that there was no proof of the signature of P. Anderson, one of the trustees, nor of the signature of K. McDowell; fourth, that the original was in the possession of the plaintiffs, and they had to account for its loss before they could introduce a copy; fifth, that a deed of trust is not recognized by the laws of Louisiana unless first shown that such deeds are valid in the State where it w-as executed.

First — The act of Congress, passed in conformity with the constitution declares that “ the records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have, by law or usage, in the courts of the States from whence the said records are or shall be taken. Act twenty-sixth March, 1790. By the act of Congress of twenty-seventh March, 1804, it is provided that all records and exemplifications of office books which are or may be kept in any public office of any State not appertaining to a court, shall be proved or admitted in any court or office in any other State by the attestation of the keeper of said records or books, and the seal of .his office thereto annexed, etc., and said records and exemplifications authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States as they have by law and usage in the courts or offices of the States from whence the same are or shall be taken.”

The assignment was recorded in the State of Mississippi, and was duly authenticated, and it was properly received in evidence; 11 K. 259 ; 7 An. 147, Smith v. McWaters.

It is a sufficient answer to the second objection to say that the act ol Congress makes no such exceptions, but seems to contemjdate the reception of a copy of the record. 7 An. 147.

Third — The presumption is that the officer who recorded the deed' in Mississippi did his duty.'

Fourth — Under the act of Congress it is not necessary to produce the original deed, or to account for its loss. 11 11. 259.

Fifth — This objection goes rather to the effect of the deed than to its admissibility. However, this court has- often recognized the validity of such deeds. 7 Eob. 1 ; 8 K. 262; 4 An. 254.

The plaintiff retained a bill of exceptions to the ruling of the court admitting evidence to show what was the consideration paid for the cotton by Willis Holmes, agent,,011 the .grounds >hat the receipt annexed to the petition .shows that, defendant, held possession of the cotton as bailee of the. purchaser, under written contract of bailment; that consequently lie can not ques.tioq the titlc.of his bailor, ; tjiat tlip, contract was an executed contract as between the fellers of th.e cqtjton -and. Wilson, agent for tlie SoutlicrnRailroad Company; that the,plaintiffs acquired the cotton from said.company on the faith.of the cotton receipt, which declared that defendant held possession of said cqtf;on as the bailee for the purchaser and subject fo, his order, and that the defendant is thereby estopped from denying or questioning the truth of the statements in the receipt. We think the. evidence should not have been received. The sale between Reaves, W.illiams, & Johnson and Willis Holmes, agent, was completed at th.e time the receipt was given. The parties had executed, their contract for the sale of the cotton by receiving the price and delivering the cotton. At whose risk was the cotton after the execution of the receipt annexed to the petition ? Unquestionably the loss would' not have been the, sellers^ if the cotton had been destroyed. C. C, 1903, 2442, 2443. Neither can a depositary question or impeach the title of the depositor. C. C. .article 2921.

The defendant does, not pretend that the receipt was given in error, •or that its statements are not true as against himself and those whom he represents. “A man’s actions and representations will be presumed to correspond to the truth. They are .in all cases evidence of the fact; and when a party ha? induced .another to act on the faith of such representations,, and when he can not show thp contrary without a breach of good faith and. common honesty, such representations are usually absolutely conclusive.” 5 E. 523; 1 An. 11; 6 An. 274 ; 4 An. 293, Gales v. Christy.

' The plaintiffs took a bill of exceptions to the charge of the judge to the jury. The portion of the charge, objected to was “.that the deed óf trust offered in evidence by the plaintiffs was without effect as proof of title in the trustees, although authenticated as required by the act of Congress of twenty-seventh March, 1804, and did not dispense the plaintiffs.from producing the- original deed of trust in evidence, and -sliowing-that it was receivable in evidence in the State of Mississippi.” We have already said this act was properly received in evidence. And sueh.faithund credit to it should'be-given as it .would have in the courts of Mississippi;- and in Smith v. McWaters this court said: “A statute ,,.of dhe.State • of. Mississippi,.’ approved thirteenth May, 1837, .provides that copies of all recorded deeds, conveyances,, bonds and other instruments of.writing w’hich.;are-iiow 0.1; .may hereafter.-be permitted to be ^recorded shall,, when certified by,the clerk imwho.se office the record is kept, he received in any .court, .of Jap.eor .equity,in. this State, andbe as availablewithoutficepMntingfor the.ghsmiccof- the oriqyial.cis if the original were then and there produced.. We think the copy from the record was intended by this act.” 7 An. 147.

In Arayo v. Currell tills court said : When a court knows nothing of the laws of a country it presumes them to he the same as those of its own.. This is the; general rule; and the presumption rests on the ignorance in which it is of any other. 'If it has judicial knowledge of a law of a particular country the presumption does not exist.” Weare bound to take judióial cognizance of the existence of the statute quoted in the case of Smith v. McWaters, and uiitil it be proved that the law has been changed we’ will'1'presume it still exists. 1 La. 541, 255; 4 An. 129.

The charge to the jury'Was erroneous. "We believe that the ends of justice will be subserved by‘remanding the case to the District Court to be tried in accordance with law.

It is therefore ordered that' the judgment of the District Court be annulled; that the verdict of the jury be set aside, and that this ease be remanded to the District Court to be proceeded in according to law. It is further ordered that the appellee pay the costs of appeal.


text:
    No. 69.
    Jenkins v. Howard.
    Where the order fixes the araountQf the bond for a devolutive appéal, and the amount required by law,for a suspensive appeal, and the bond given is,for an amount less than that required by law for a suspensive appeal) the appeal will not bé Süsrnissed but will b'e dfeóláred devolutive only. - .. ...
    Two parties haying iormed a, commercial partnership in a single transaction, and having by . mutu-il consent made a partition between tliem) may enforce their respective cláims against each othor without bringing shit for á settlement of* the partnership.
    from the Tenth Judicial District, parish of Cáddo. ’ Weems, J.

      Áleeli Loarman', for plaintiff and appellant. Looney & Wells, for defendant and 'appellee.
   Taliaferro, J.

Tile defendant is sued ‘for $750’, 'which the plaintiff alleges defendant owes him on’account óf á'partnership transaction. The defendant denies owing the plaintiff anything, and Claims from him in reconvention §21(5, that being one'half the costs of'hauling certain cotton which defendant avers he1 paid on'joint account. There was judgment r'endered'Against the .plaintiff on his’demand' and in favor of the defendant for his ^conventional demand. The plaintiff has appealed.

There is a motion to dismiss the ‘Appeal’ oíi'tlie gróúnd'that the bond is defective for the reason that it’was expressly given for Vsuspensive appeal, being limited as to the extent of the obligation.

A motion was made by tlie appellant for an appeal suspensive and devolutive. The order granted a suspensive appeal with bond in the amount fixed by law. The bond for a devolutive appeal was fixed at one hundred dollars. Tlie bond executed by the appellant is for $300. It is insufficient for a suspensive appeal, but suffices for a devolutivo appeal. Tlie motion to dismiss -is therefore overruled. The facts of this case are that the plaintiff and defendant during- the summer of 1865 embarked in a cotton adventure, a single operation, and the only one they made. This was the purchase of seventy bales of cotton which were to be sold again on their account. This lot of cotton was purchased in the parish of DeSoto and hauled to Shreveport, where it was deposited in care of Boisseau. Boisseau, called as a witness, stated that Howard, who, it appears, was the principal acting partner of the concern, directed him to ship thirty-five bales of the cotton on his account to Carroll, Hoy & Co., in New Orleans, which was accordingly done; that Howard further instructed him to hold the remaining thirty-five bales to the order of Jenkins, who subsequently expressing no dissatisfaction at the course pursued by Howard, instructed witness to ship the remaining cotton on his account to the house of John Philips in New Orleans, which instruction was complied with. The cost of hauling the cotton was $420, which was paid by Howard. It appears that the lot of cotton shipped by Howard to Carroll, Hoy & Co. Drought $7928 69 net; and that the net proceeds of the lot shipped by Jenkins to John Philips were $6735 77. The half of the excess in proceeds of the cotton shipped by Howard over that shipped by Jenkins the latter claims he is entitled to, to make him equal in receipt of profits. A single adventure of the character of that made by these parties, a commercial operation, where the purpose is to buy and afterward to sell the commodity for profit constitutes the parties commercial partners, and creates a commercial partnership quoad the single transaction. Then, if not otherwise rendered unnecessary by the acts of the parties who were alone interested, a formal settlement of the partnership affairs should have preceded a partition of the assets. This the plaintiff does not ask for in his petition. He treats the partnership as at an end, its affairs as liquidated, and its effects ready for division between the partners. The partition, however, the defendant contends, was made by mutual consent, from the fact that each partner took thirty-five bales of cotton and had them sold on his separate account, leaving only the expenses incurred on account of the cotton to be adjusted by the parties. We are inclined to think this to he the proper construction to be given the acts of the parties and to' approve the judgment of the lower court.

It is therefore ordered, adjudged- and decreed that the judgment of the District Court be affirmed with- costs in both courts.


text:
    No. 172.
    State v. Leopold Loeb et als.
    An' order of tlie judge authorizing the sheriff to discharge the prisoner on giving bond, in a fixed amount, is a sufficient authority to the sheriff to receive the bond and file it in court, and the sureties on the bond having obtained the prisoner’s release, on this construction, are debarred from setting up this defense in a suit for the forfeiture of the bond.
    The condition in a bond of release “that the prisoner shall not depart without leave of the court,” will bind the sureties, although the offense is not accurately described in the body of the bond.
    from the District Court, parish of Caddo. Levisee, J.

      James 8. Ashton, District Attorney, for the State. B. J. Looney, for defendants and appellants.
   Howe, J.

Leopold Loeb was indicted for willfully and maliciously setting fire to and burning a dwelling house of -one Eberstadt, in the night time, the house being occupied, in part, as a dwelling by one ltodmore, and in part as a store by the accused.

He was tried and tlie-jury failed to agree. He applied, by writ of habeas eorjpus, for the privilege of hail, and the judge a quo made an order that he be admitted to bail in tlie sum of $3000, and that the sheriff be-authorized to take the bond. He then applied for a reduction of bail, and the judge, setting aside his previous order, made the following:

“ That the sheriff of Caddo parish be authorized to discharge said Loeb from custody on his giving bail, conditioned as the law directs, in the sum of two thousand dollars ($2000).”

The bond was given with the appellants as sureties, and the accused having failed to appear for trial, judgment was rendered on the bond against the principal and the appellants for tlie amount thereof, with costs.

The appellants assign for error :

First — That there is no bond given by and with the approval of the District Court or certified by tlie judge of said court.

Second — That the bond was not taken by .any person authorized to take or approve tlie same.

' Third — That the bond was given for and on tlie condition that the principal appear and answer to a different charge from that found in the bill of indictment, and to a charge that does not violate any criminal law of Louisiana.

' As to the first and second objections, it appears by the order quoted (hat the judge fixed the amount of the bond, and authorized the sheriff to release the accused upon the bond being given. It would seem that an authority to discharge a prisoner upon a bond being furnished in an amount fixed, included an authority to receive the bond and file it in court. Be this as it may, however, the facts of this case are quite as strong against the appellants as those in the State v. Ainslie, 13 Ann. 298. In that case it was held that the sheriff, or even his deputy, in whose custody tlic accused was when, the order, designating no person to take the bond, was rendered, might take it; and that neither the accused, nor his, sureties, who, by- so construing the order, have obtained the former’s release, can gainsay a construction on which they have themsoly.es acted.

It is strenuously contended by th,e counsel of appellants that this decision is incorrect and ought to be overruled, .but' an examination has satified us of its correctness, and we consider it conclusive of this branch of -appellant's case. The first and second grounds, therefore^' upon which they ask for a reversal of .the judgment cannot be maintained.

, Nor do wo think the third point is tenable. The bond recites that “ a charge has been exhibited against the above named L. Loeb by the State of Louisiana for the crime of arson," The word arson has an unmistakable meaning. It is the voluntary and malicious burning of the house of another. Chitty on Criminal Law, p. 1121. With this offense the accused in this case was charged, and it is doubtful whether, under the law of 1858, under which the indictment was found, he was charged with anything more. See Acts of 1858, §§ 1, 2, 3. '

But, in the case of Ainslie, cited above, where the accused was charged with uttering and publishing a false'and forged order, and the bond recited only á charge of forgery,' the court ’said that, if the offense was not accurately described, “ still the condition was also that the accused should not depart without leave of the court, and having violated this condition of the bond, he and his sureties are equally bound,” and cited State v. Redding, 8 Ann. 79, which, in turn, refers to 1 Chitty, Criminal Law, 103.

In the case at bar the bond contains the same condition.

For these reasons it is ordered and adjudged that the judgment appealed from be affirmed with costs.


text:
    No. 62.
    Reuben White, Under Tutor, v. Victoria E. Nesbit et al.
    The sale of the property of a minor by the tutor» for Confederate notes as the consideration, is an absolute nullity ; and the minor may sue for and recover back his property, or its value from the yendee after delivery. ' *•’
    from the District Court, parish of Caddo. Weems, J.

      Ifoncure & Flanagan, for plaintiff and appellee, Looney é Wells, for defendants and appellants.
   Howe, J.

The plaintiff as under t.ntor of the minor, Eobert Nesbit, instituted this suit against the natural tutrix, Mrs. Victoria E. Nesbit, and against the codefendant, Auguste Voinche, alleging that the latter pretended to have purchased from Mrs. Nesbit certain cotton, the property of the minor, and was about to remove it, and he prayed that the cotton might be sequestered and the rights of tlie minor thereto recognized and enforced. Alleging also various acts of unfaithfulness on the part of the tutrix, he prayed for her removal and the appointment -.of a tutor. In the progress of the suit this removal was made; and Thomas H. .Pitts .was appointed tutor, qualified, and permitted to prosecute the action.

The property sequestered was bonded by the defendant Voincho and delivered to him by the sheriff. <

There was judgment in favor of the dative tutor, Tilomas II. Pitts, against the defendant Voinclie for the cotton sequestered,-and in the event of its non-delivery for its value, with interest from the date of the judgment, and the defendant Voinche appealed.

The testimony in the case makes it sufficiently clear that the cotton in controversy was the property of the minor, a child of tender years; that the defendant Mrs. Nesbit undertook to sell it to Voinche on tlio fourth of February, 1804, for Confederate money; that during tho absence of Mrs. Nesbit .from the plantation, about December 10, 18(35, Voinche attempted to remove it, and that it was sequestered at certain gin houses in the neighborhood. Under such circumstances the transaction as to thq, minor was a complete nullity, and could confer no rights whatever on the pretended vendee. The fact that the property had been removed by the vendee cannot avail him in this case. If Robert Nesbit had been of age and had himself been the vendor, the court declining to hear him allege his own turpitude, might have refused to interfere with the possession of Voinche, resulting from a sale, the consideration of which was illegal. But the minor in this case was no party to the pretended sale-; and .the .maxim nemo allegans, .etc., ;can not be opposed to the plaintiff.

For-the reasons given it is ordered and adjudged that the judgment appealed from be affirmed with costs.

Rehearing refused.


author: How-ell, J.

text:
    No. 32.
    Schwartz, Kauffman & Co. v. Marx Baer.
    In order to avoid liability for the loss of cotton on storage, the-warehouse keeper must show that the loss occurred without his fault. He can not be relieved by showing that the loss occurred by an overpowering force. He must also show that he used all possible means to preserve-it.
    from the District Court, parish of Caddo. Weems, J.

      John W. Jones, for plaintiffs and appellees, Looney & Wells for defendant and áppellarit.
   How-ell, J.

This suit is brought on the following instrument:

“The underigned, Marx Baer,, of Shreveport, La., acknowledges .to be justly and íawfulíy indehted to Messrs; Schwartz, Kauffman & Co., of -New Orleans, in the full sum'of; fen hundred'and seventy dollars and ninety-one cents; for the liquidation of said debt, I hereby bind myself to hold, subject to the order of Schwartz, Kauffman & Co., an equivalent amount of cotton, at the rate of, say, ton cents per pound; said cotton to be delivered whenever called for, and as before stated, to be entirely under the control of Schwartz, Kauffman & Co., they paying me storage for holding the number of bales to cancel their claim against me, until such time.as delivered to them or their order. The. storage above to commence from this day, and the article of cotton to be that known in the market as middling quality.

“Done in New Orleans on the nineteenth day of February, .1862, and signed in presence of witnesses.

(Signed) “ SCHWARTZ, KAUFFMAN & CO.' “M. BAER.”

Plaintiffs ask for the delivery or-value of the cotton.

Defendant, besides the general denial, alleges' a discharge of his obligations, or delivery to and acceptance by plaintiffs of said cotton, and avers that by an overpowering force, after the weighing, marking and storing of the cotton in plaintiffs’ name, it was moved from Shreveport beyond his control, and if it has been lost, it was not by his neglect. Judgment was rendered against him for $3319 80, with costs, and he has appealed.

It is shown that, on the twenty-eighth of April, 1862, the defendant caused twenty-lwo bales of cotton weighing ten thousand five hundred and twenty-four pounds and then stored in the warehouse of Howell & Buckner, in Shreveport, to be marked for and transferred on the books of the warehouse to plaintiffs; took a wareliouso receipt therefor and inclosed it on that day in a letter to plaintiffs in New Orleans. This letter appears not to have been received.- The city of New Orleans was about that time taken possession of by the Federal forces, to tlw knowledge of defendant, while Shreveport remained in the possession of the Confederate forces until May or June, 1865.

This action of the defendant did not change his obligations to the plaintiffs, and did not amount to a delivery as contemplated by his agreement in writing. He was bound to hold the cotton subject to their order and control, and was entitled to storage until delivered to them or their order.

It appears that he had other cotton in the same and two other warehouses, and admitting that it was all removed by overpowering force, he was bound to give the same care to the cotton set apart by him for plaintiffs as to his own, and to be relieved from his contract with plaintiffs he must show that the cotton was lost without his fault. This he has not done. Having taken upon himself the custody of the cotton until delivered to plaintiffs, he was bound to use due diligence in preserving it for them, until that event, unless they, were in fault in demanding it. They seem to have demanded it as soon as circumstances would permit, and defendant has not satisfactorily accounted for its non-delivery. Judgment should ho changed so as to give, him the alternative of delivering the cotton as is asked for in the amended petition and reserve to him the right to claim any storage due him.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs have judgment against defendant for the delivery of ten thousand seven hundred and nine pounds of cotton, of middling quality, or, in default of such delivery, for the sum of three thousand three hundred and nineteen dollars and eighty cents, with legal interest from judicial demand, eighteen dollars cost of commission, and costs in the lower court, reserving to the defendant the right to claim storage according to the stipulations of the contract sued on. Costs of appeal to be paid by appellees.


text:
    No. 33.
    J. M. Juillard v. Marx Baer.
    A warehouse keeper gave a receipt to the depositor for cotton received on storage 14 with the stipulation in the receipt * to be delivered in the same condition and order on presentation of this receipt or order.’ ** The depositor subsequently received a portion of the cotton* ior which he gave a receipt. Held — That the presentation oí the order and the delivery oí a part of the cotton was a sufficient putting in mora of the whole amount to be delivered.
    from the Tenth Judicial District, parish of Caddo. Weems, J.

      Wright & Duncan, for plaintiff and appellee. Looney <& Wells, for deiendant and appellant.
   Taliaferro, J.

The plaintiff sues the defendant on the following obligation: .

Received in good order and condition, for storage on my plantation, six miles above this place, for account of Mr. J. M. Juillard, of Paris, Prance, to be delivered in the same condition and order on presentation of this receipt or errder (ñre and war risks excepted) at the port of Shreveport, Louisiana, marks JJ., one to sixty-eight — (68) sixty-eight bales of cotton (32,000 pounds).

M. BAER.

Shreveport, La., March 1,1865.”

The plaintiff on the twenty-seventh June following, indorsed upon this instrument the following:

“ Shreveport, June 27, 1865.

Received from Mr. M. Baer, forty-six bales of cotton" weighing 19,345 pounds, purchased of him.

“JUILLARD.”

And below this indorsement Baer signed the following obligatiop:

“Shreveport, June27, 1865.

“ I do hereby bind myself to deliver to Mr. J. M. Juillard 12,655 pounds of cotton, the balance due on the within bill of sale, within thirty days from date, said cotton to be delivered to Mr. J. Ju.llard in Shreveport, free of charges, in bales and in good shipping order and condition.

“ M. BAER.”

The defendant filed a general denial. He avers that the contract was-illegal and contrary to the laws of the United States, and contrary to. good morals.

.The plaintiff had judgment and the defendant appealed.

Wo see no force in the defense. It is not shown by proof that there was illegality in the contract. The ground taken in argument on the question of putting in delay is entitled to more consideration, but we are inclined to the opinion there was a sufficient putting in delay. The receipt “ to be presented ” as preliminary to the delivery, we doubt not was presented at the time the forty-six bales of cotton were delivered. This was a putting in mora for the whole amount to be delivered, and as the extension of thirty days was for the benefit of the defendant, no further demand or putting in mora was required.

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


author: Mr. Justice Wyl'y :

text:
    Succession of C. W. Stauffer. Opposition of Kate M. Jones et al.
    jtyPPEAL from the Parish Court of the parish of Natchitoches.
   Mr. Justice Wyl'y :

Dissenting opinion of

I cannot concur in the opinion rendered by the court in this case.

I understand from the pleadings and the admissions of the parties that this is simply a contest for the distribution of a certain fund in the hands of the administratrix of the succession of Cyrus W. Stauffer, which fund was derived from the sale of the individual property of the deceased and his share of the goods and assets of the partnership of Stauffer & Co. It is merely a contest of the creditors for the fund. The opponents allege in their petition “ that the assets of said succession are composed principally of the partnership property and the proceeds thereofand they pray that the claim of the widow and minor may be rejected, “ as a privilege upon the general funds or assets of the succession,” and that it be restricted to the fund arising from the sale of the individual property.

The record shows that the property inventoried in Stauffer’s succession consisted of his individual property and his share of the goods and assets belonging to Stauffer & Co., which were sold and which constitute the fund now to be distributed. Among the admissions in the record is the following:

It is further admitted that there is no property belonging to the succession of said C. W. Stauffer except that contained in the inventory.”

The issue before the court then, is, not whether the fund in question belongs to Stauffer’s succession — that has been admitted — but the contest is how shall the fund be distributed ?

The administratrix offers her tableaux setting out the amount on hand derived from the sources aforesaid, and placing therein the claims and rank of the different creditors competing for the fund,' viz.:

First — Succession creditors, such as court charges, expenses of last illness, and the widow and minor’s claim against the succession for $1009, under act 'of 1852 ;

Second — Partnership 'creditors claiming a privilege on that part of the fund derived from sale of partnership assets;

Third — Ordinary creditors of the deceased.

The only question is, how shall these funds be distributed ?

To which class of creditors shall they be paid; or which class shall have, precedence on the tableaux?

Debts of a succession are of a higher dignity than those of the deceased and shall have preference. 10 L. 441; 3 M. 364.

The claim of the widow and minor is a succession debt. Stauffer owed them nothing. In like manner he owed nothing for funeral charges and court charges, but the succession owes them. The law has made the claim of the widow and minor a preference debt of the succession.

It only accrued when there was a succession, and its rank is fixed by law, which says: “the widow or legal representative of the children shall be entitled to demand and receive from the succession of their deceased father or husband a sum, which, added to the amount of projmrty owned by either of them in their own right, will makeup the sum of one thousand dollars, which amount shall be paid in preference to all other debts, except those for the vendor's privilege and expenses incurred in selling the property

The law has specially given the widow and minor’s claim precedence over funeral charges, expenses of last illness and all other debts of the succession, except the vendor’s claim and. expenses of selling the property.

The general law of commercial partnership gives partnership creditors a privilege and pledge on the partnershin assets.

Under this law the opponents, who are admitted to be partnership creditors, have a preference on that part of the fund which the succession derived from the sale of partnership assets. They are nevertheless creditors of the succession, whose claims have been allowed and who are now claiming preference on a certain fund, just as a mortgage creditor would claim a preference on a fund derived from the sale of ‘he property covered by his mortgage.

The rights of the opponents rest merely upon commercial law.

The rights of the widow and. minor are based upon a special statute enacted as late as seventeenth March, 1852.

This I regard as a modification of the commercial law so far as it affects the rank of partnership creditors competing with succession creditors for a certain fund belonging to a succession.

But whether it be a modification, in this regard, of the commercial law or not, the statute of the State has been enacted and we are bound to enforce it. It is plain and clear. The widow and minor shall demand and receive from the succession of the deceased father or husband the amount fixed in the statute in preference to all other debts, except that of the vendor and the expenses of selling the property.

The authorities reliod on by the opponents relate to the right of 'the partner or his creditors in the partnership property. They show that neither the partner nor his creditors, of whatever rank, can take precedence over the partnership creditors.

But the claim of the widow and minor is a succession debt, and not the claim of heirs or creditors of the deceased partner. I do not think the case of the United States v. Baulos applies to this case. That was only a privilege claim against the partner.

The whole question turns upon the fact which I consider the parties have conceded, to wit: does the fund in dispute belong to the succession of Stauffer. Of this I have no doubt.

“Succession signifies the estate, rights and charges which a person leaves after his death, whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges without property.” Civil Code, 868.

Stauffer was individually or solidarity bound for all the debts of Stauffer & Co., and even without assets these alone would have constituted his succession.

I therefore consider that the fund in contest belongs to Stauffer’s succession and should be applied to the claim of the widow and minor under the act of seventeenth March, 1852.

For the foregoing reasons I dissent from the opinion just rendered in this case.

Note — See opinion of the court reported at page 520.


text:
    No. 636.
    Edward Simon, Administrator v. William F. Haifleigh, Sheriff, et als.
    The "burden of showing the incapacity of a judge to act as such, falls on the party who allege® such incapacity.
    The stipulation in an act of mortgage of two per cent, to cover attorney's fees, if resort h$ had to legal proceeding, is made in favor of the creditor, and is collectable with the principal debt.
    Negotiable notes, which are identified with the notarial aot of mortgage given to secure their payment, mahe full proof of themselves.
    A PPEAL from the Third District Court, parish of St. Mary. Gates, J. A

      De Blane tfi Jerry, Gary <£ Fournet and A. I/. Tucker, for plaintiff and appellant, Thomas J. Cooley and McMillan & Massy, for defendants and appellees.
   Taliaferro, J.

The plaintiff obtained an injunction restraining

the sheriff of the parish of St. Mary from selling certain lands seized by bim under an order of seizure and sale' directed to him, and rendered on the petition of several creditors of the plaintiff’s father during his lifetime.

The grounds set forth for the injunction are various. It is alleged that the order was rendered by a person not legally in office as District Judge of the Fourth Judicial District at the date of the order; that, assuming to act in place of the Judge of the'Third Judicial District, within which the property seized is situated, his action is null, for the reason that the Judge of tho Third District had not resigned his office at the time of the rendition of the order.

That no authentic evidence was presented showing that at tho timo the order of seizure and sale was applied for and,obtained, the Judge of the Third Judicial District was functus oficio. That the two per cent, on the amount recovered, stipulated to be paid as attorney’s fees in the event of compulsory proofs being resorted to, is not due to the plaintiff but may hereafter become due to the attorneys employed to prosecute the claims; and that the plaintiff in the case has quoad hoc no cause of action.

That the per centage as attorneys fees being contingent upon the amount recovered, no authentic evidence could bo adduced showing the amount of the attorney’s fees, and as regards this unliquidated claim an order of seizure could not legally issue.

It is also urged that there is no authentic proof of the transfer of the notes. The judgment of the lower court dissolved the injunction and awarded five per cent, damages in favor of tho defendants against the plaintiff - and his sureties. From this judgment the plaintiff appealed.

The plaintiff’s allegation of want of legal right in the Judge of the Fourth District to issue the order, docs not appear to be sustained by the evidence.

The objection that there was no authentic proof before him showing a vacancy in tho office of District Judge of the Third District we do not think tenable. The fact which authorized him to act in the contingencies enumerated in the act of the Legislature of 1860, must bo presumed to have been derived from sources altogether reliable. Tho presumption of the right has not been overturned by the plaintiff’s evidence.

The act of mortgage recites that two por cent, shall be paid on tho amount to be recovered if resort be had to legal proceedings, and this to defray attorneys’ fees.

The sum thus fixed is ascertainable and capable of being made certain.

The attorney’s fees thus provided for are exigible with the principal debt, and are stipulated in favor of the creditor to secure him against the expense he would necessarily incur, if, through the default of tho debtor, he should be compelled to judicially enforce the obligation.

The notes sued upon are negotiable instruments drawn by the makpr to his own order, and endorsed by him, and are identified with a notarial act of mortgage given to secure their payment in favor of the payee or any future holder.

It has been settled that such negotiable instruments accompanied with the act of mortgage make full proof of themselves.

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

Rehearing refused.


text:
    No. 638.
    State of Louisiana v. Easton Hoffpauer.
    All objections to the informalities which may have occurred, in the formation, drawing or summoning of the grand jury must be made on the first day of the term of the court and not afterwards. Revised Statutes, page 296.
    Where the venire from which the grind jury is drawn is composed of legally qualified jurymen, it will not be set aside on objections made alter the fust day of the term.
    from the Eighth Judicial District Court, parish of Vermilion. Bailey, J.

      B. D. JEstilette, District Attorney, for the
    State, li. F. Patton, U ilUam &F. Moulon, for defendant and appellant.
   Taliaferro, J.

The defendant in this case was indicted for assault and battery, found guilty and sentenced to pay a fine of five hundred dollars, or in default thereof to be imprisoned three months in the parish jail.

Previous to the trial the defendant by his counsel moved to quash the indictment on the ground that the grand jury which presented the indictment was not a legally constituted body for the reason that it was drawn from a venire that had been formed under a law which was repealed and not in force at the time the grand jury was drawn.

The motion to quash was overruled by the judge a quo, who assigned as ground for his action that the venire having been drawn before the law changing the manner of drawing juries inthe'parish of Vermilion was approved or took effect, it was properly drawn. That the objection, if a good one, came too late, as it should have been by challenge, to the. array on the first day of the term. The appeal comes up on a hill of exceptions taken by the defendant to the ruling of the court.

The facts appear to be that the venire in question was drawn on the seventh day of March, 1866, under the act of 1855, which provides that the venire of forty-eight jurors to he drawn for an ensuing term of court shall be drawn from ballots taken from a list of all the qualified voters not exempt, of the parish. Revised Statutes, p. 294, sec. 3.

On the eighth day of March, 1866, the day after the drawing of the venire as above stated, an act of tbe Legislature was approved providing that in the parish of Vermilion the forty-eight jurors to be drawn prior to each term of the District Court shall be drawn from ballots taken from the names of only one hundred and fifty qualified voters of the parish not exempted by law. This act repealed all former laws on the same subject matter, and took effect from the date of its passage. Acts of 1866, p. 114.

The grand jury that found the bill in this case was drawn on the ninth of April, 1866, from the venire drawn on the seventh of March preceding, under the law of 1855.

It seems clear that the drawing of the venire on the seventh of March was in every respect a legal act, having been performed under and in conformity with a law in force at the time the act was performed. But the law which legalized the act was not in force on the ninth of April following, when the grand jury was drawn having been repealed and suspended by another law in force on the ninth of April, and which is essentially different from the former law, especially in the matter of the formation of the venire. The venire however from which the jury was drawn was composed of persons competent to sit on juries, and the grand jury so drawn was composed of legally qualified jurymen. The informality objected to might have been successfully urged on the first day of the term, but that not having been done it was too late to interpose the objection afterwards. The act of 1855 (Revised Statutes, p. 296), provides that “all or any objections which might or could be made on account of any defects or informality which may have occurred either in the formation, drawing or summoning of juries, or any defect whatsoever in the construction of said juries shall be made on the first day of the terms of the said District Courts, and not afterwards. We think the judge a quo correctly overruled the exception.

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


author: Wyly, J.

text:
    No. 729.
    Ellen Edwards and Husband v. Fielding Edwards, Natural Tutor.
    The Parish Court is without jurisdiction where the amount involved is above five hundred dollars.
    A judgment rendered by a court without jurisdiction rationc material is a nullity, and cannot be revised on appeal.
    from the Parish Court of the parish of Avoyelles. JSdwards, Parish'Judge.

      Taylor & Thorpe, for plaintiff and appellee, A. B, Irion, for defendant and appellant.
   Wyly, J.

The plaintiff sued the defendant, her natural tutor, for the value of the dotal property of her mother, estimated in the marriage contract at nine hundred and eighty dollars; also for a sum of money and the value of certain property donated (propter nuptias) by the defendant to her mother in said marriage contract; also to recover the sum. of one hundred and eighty-seven dollars and eighty-three cents received by the defendant in right of her mother, being an inheritance comiDg to the latter from the succession of her parents,

The defendant denied that the mother of plaintiff ever brought in dowery the sum claimed; also denied that he made the marriage settlement as alleged, and averred that he was then insolvent, and the declaration in the marriage contract that his wife brought to the marriage the sum named, was false and fraudulent, she being without funds; and the declaration that he made to her a donation on account of the marriage was also false and fraudulent, and intended to defraud his creditors, and tiiat his deceased wife was a party to the fraud.

He also set up in compensation the amount of funds expended by him. in support of the plaintiff, his daughter, and also the value of certain personal property which he has given her.

The court rendered judgment in favor of plaintiff for two thousand two hundred and twenty-ñve dollars and eighty-three cents, and recognized her tacit mortgage.

The defendant has appealed.

Our attention has been called to the fact that the cause was tried by the Parish Court which was without jurisdiction, the amount in dispute far exceeding the sum of five hundred dollars. Art. 87, Constitution. See the case of Swan v. Gale, and Caulderwood v. Caulderwood, decided at the Monroe term.

The appellee contends that the plea of want of jurisdiction should have been made before judgment by default.

The court will notice of its own motion at any time the want of jurisdiction ratione materice.

The judgment of a court without jurisdiction ratione materice is a nullity (C. P. 92, 609), and cannot be the subject of revision in this court.

It-is therefore ordered that the judgment appealed from be reversed and annulled, and the suit be dismissed without prejudice to plaintiff’s right to sue in a court of competent jurisdiction.

It is further ordered that plaintiff pay all costs.


text:
    No. 661.
    James S. Robichaud v. Samuel T. Thorne.
    The law makes no distinction in regard to prescription, between negotiable and non-negotiable promissory notes and bills of exchange.
    A written order drawn by one person addressed to another directing him to pay to a third party a certain amount of money at a specified time is a bill of exchange and is prescribed by the lapse of five years from date of maturity.
    jLL PPEAL from the District Court, parish, of St. Martin. Gates, J.

      Gray & Fournet, for plaintiff and appellant, Fdward Simon, for defendant and appellee.
   Howell, J.

This suit was instituted on ■ the following written instrument :

“April 30, 1860.

“Mr. S. T. Thorne:

“ You will please pay to Mr. James Robichaud, three months from date, the sum of six hundred and eighty-three dollars, as part payment of a note I hold against you bearing eight per cent, until final payment.

sa

(Signed) “ANTOINE ^ DEROUSSELLE,” marque.

Witness:

(Signed) “JOHN STARK.”

(Endorsed) Accept: “ SAM. T. THORNE.’?

The defense is the prescription of five years, which was sustained in the court below, and plaintiff has appealed.

He contends that the instrument sued on is not included in the provisions of article 3505, or the statute of 1852 amending it, because not negotiable or transferable by indorsement or delivery. Article 3505 reads: “Actions on bills of exchange, mites payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, are prescribed by five years, reckoning from the day when the engagements were payable.”

“A bill of exchange is a written* order or request by one person to another, for the payment of money, absolutely, and at all events.” Bayley on Bills, ch. 1, § 1, p, 1: Kent’s Comm. sec. 44, p. 74.

The quality of negotiability is not by our law essential to the instrument, “ although, practically speaking, among merchants, it constitutes its true character.” Story on Bills, p. 4, § 3. “ Its form and language are greatly varied, and it.will be sufficient, if it be in writing, and contain* an order or direction by one person to another person, absolutely, to pay money to a third person, and cannot be complied with or performed without the payment of money.” Ibid, p. 46, § 33.

Applying this definition, the instrument sued on in this case is a bill of exchange; and according to our interpretation of the above article of the code, it does not require that bills of exchange, to come within its dispositions, shall be negotiable. The phraseology and punctuation of the article do not make the description of the notes, as payable to order or bearer, relate to the words “bills of exchange,” and we are not inclined to restrict that class of instruments in the said article to such only as are negotiable, when the law does not do so. This construction is confirmed by the-action of the Legislature in the statute of fifth March, 1852) for had the article referred only to such bills of exchange as are negotiable, they would doubtless ha.ve been algo embraced in said statute, as there is no good reason why a non-negotiable note should be prescribed in a shorter time than a non-negotiable bill of exchange. We conclude therefore that the written instrument on which plaintiff has brought this action is subject to the prescription of five years.

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