author: Eustis, C. J.

text:
    Vance v. Boyce.
    The right of an endorser, who has pat his name on a note on the faith of the signature of the maker, and who has been compelled to pay the amount by a party by whom, it was discounted before maturity, to recover against the maker,, cannot be effected by the .fact of the latter’s being creditor of a prior endorser at the-time of his endorsement.
    APPEAL from the District Court of Rapides, Brewer,,:!., presiding.
    ‘0. N. Ogden, for the plaintiff. Boyce, appellant, pro se.

   The judgment of '.the court was pronounced by

Eustis, C. J.

This action is brought by the plaintiff in her own right as surviving wife, .and as executrix,of-the last - will, and tutrix of the minor children, of the late Gilbert Vance. She alleges herself to be the owner of a certain promissory note, dated at New Orleans on the .1st May, 1884, pnyable live years after date, and drawn by the defendant, in favor of Thomas Barrett, far the sum of §4,600, with ten per cent interest after maturity until paid. The note was payable at the counting house of Thomas Barrett & Co. in New Orleans, and was protested for non-payment. It bears the endorsement of Thomas Barrett, and Thomas Barrett Sf Co. in liquidation. There was judgment for the plaintiff, and the defendant lias appealed, and has argued,his case, orally and in writing, in person.

It appears that the note was discounted by the Merchants Bank in New Orleans, which acted as agent of the Bank of the United States, and the proceeds were carried to the credit of Gilbert Vance, who was the lust endorser. This appears by the discount record. The witness examined .for .the defendant thinks that the proceeds.of this were used, with the proceeds .of other notes discounted for Vance, in taking up paper, held for the account of the Bank of the United States, of .which T. Barrett Sf Co. were the drawers, and Gilbert Vance, the endorser; but the witness, not having access to the books of the bank, cannot speak positively as to how the proceeds of the note were used.

On the trial of the cause the defendant made an affidavit for a continuance, in which he stated that he expected to prove that Gilbert Vance was an accommodation endorser, and designated the commissioners who have.charge of the books of the bank, as having the means of ascertaining the fact, by affording access to the books, and thereby showing the relation in which .Vance stood to this paper. The court belo.w held that the defendant was not entitled to a continuance, but required the plaintiff .to make .certain admissions, one of which was that the commissioners of the Merchants Bank would swear that, from entries made in the books of the Merchants Bank in their possession, it appears .that Gilbert Vance endorsed the note sued on, as an accommodation endorser for Thomas Barrett Sf Co. in liquidation. To this decision the plaintiff, as well as the defendant, excepted, and this admission must be .considered as part of the evidence on which the suit was tried.

The books of the Merchants Bank could only show the disposition made of the proceeds of discounts, and the apparent relations of parties as exhibited by the notes and bills in which the bank operated. The theory of accommodation paper the commissioners might .not be sufficiently conversant with, to enable them to state with precision what state of facts creates the relation of an accommodation endorser. Such enquiry might depend on a question of law; and, at all events, the books of a bank, unless they were the record of all the necessary facts on which the relation depended, would not prove a party to a note discounted to be an accommodation party. In giving, therefore, the defendant the whole benefit he is entitled to from this admission, which was exacted from •the plaintiff under an application for a continuance, we may admit, what the witness, Mr. Frazier, thought the books would prove, that the proceeds of this note, and others discounted for Gilbert Vance, were used in taking up paper held for account of the Bank of the United States, of which Thomas Barrett & Co. were the drawers, and Vance the endorser. Judgment for the sum of $4,392 60 was rendered against her at the suit of the receivers of the Bank of the United States, with interest and costs of protest, which judgment was paid by the plaintiff.

The defence urged against her right to recover is that, before the note fell •due,:the defendant was, and still is, a creditor of Thomas Barrett and Thomas Barrett Co-, for an amount greater than that of the note sued on, -which the defendant pleads in compensation of the note; -but the allegation is of such a character that under it no court of justice could award to him a sous; and if it were true, would be no defence .against the recovery of the amount by the widow and heirs of Vance, who put his name on the note on the faith of the -signature of the defendant. Neuman v,. Goza, .ante p. 642.

The defendant has endeavored to bring into this defenoe matters which relate exclusively to the concerns of the Bank of the United States and the Mer-chants Bank, and which can have no connection with the controversy between ■the present parties; and, in relation to the other points which have been presented by the defendant in his written argument, we have examined them all, .and find them entirely untenable. Judgment affirmed-

       The answer alleged that “ before tho note foil due defendant, was, and still is, a creditor Thomas Ban-ell and Thomas Barrett, tj- Co., for an amount exceeding that .of the note •sued-on,” without specifying tho amount of the credit. — II.


source: Caselaw Access Project

author: Rost, 'J.

license: Public Domain

text:
    Vascocu et al. v. Smith.
    'Whoro-a surviving-husband, to whom, after the death of tho wife, the-community property had boon adjudicated, executes a mortgage in favor of the minor children of the marriage, ,on tho real property thus adjudicated, but afterwards sells it, and dies without; having set-died his wife’s succession, or satisfied the claim of the minors, who accept his succession with benefit of .inventory, the minors cannot require payment of any portion of their claims from the last purchaser until the successions ot the husband and wife are finally settled. The husband is-the warrantor of the purchaser; and it is only in case of his succession being insufficient to pay the.claim of tho minors, that.the purchaser can be made liable for the deficiency.
    After pleading the general denial, a defendant may avail himself of an exception taken by a party cited by him in warranty.
    APPEAL from the District Court of Natchitoches, Oleoti, J.

      -Iiertzog and Tuomey, for the appellants. Campbell, for the defendant. .Sherburne lT. B. Smith, for the warrantors.
   The judgment of the court was pronounced by

Rost, 'J.

The plaintiffs are the legitimate children -of Marie Aspasie Vascocu, who-died -in 1824. After her death the property .held- in common between her and her husband, Jean Baptiste Vascocu, was adjudicated to the latter, at the price of appraisement, and ho gave a mortgage in favor of the minors on the real property thus adjudicated. He subsequently sold that property, and the title of the defendant is derived from that sale. Jean Baptiste Vascocu, died without having settled his wife’s succession, or satisfying the the claim of the plaintiffs. It is admitted that his .succession is .still unsettled* and has been accepted hy the plaintiffs under benefit of inventory. They notv call upon the defendant to pay them one-half of the amount of the adjudication of the community property, with legal interest from its date; and, in default thereof, they pray that the land held by him be seized and sold under their mortgage, to satisfy their claim. The defendant filed a general denial, called his vendors in warranty, and asked against them any judgment which might be rendered in favor of the plaintiffs against him. The warrantors appeared, and excepted to the plaintiffs’ action, on the ground that, it could not be maintained until the successions of their mother and of their father were finally settled. The court below having sustained the exception, dismissed tho petition, and the plaintiffs appealed.

There is no error in the judgment. Adjudications .of common property to the surviving parent are generally made without taking into consideration the charges of the succession of the deceased,.and their gross amount does not of itself make proof of the shares of the lieii’s ; but if it did, the father in this case is the warrantor of the defendant, as far as the assets left by him will go. His succession appears fully sufficient to pay the plaintiffs’ claim ; and if it is not, the only right of action they can have against the defendant is for the deficiency which may be found to exist on the final settlement of the succession ; that deficiency to be calculated on the capital only, as it is evident that the income of the minors was not sufficient for their support and maintainance. I-t is argued that the defendant, after filing a general denial,, could not ayail himself of the exception taken by the warrantors. We think otherwise. The objectof calling ■in warrantors is to let them take the defence of the suit. After their appearance the defence rests with them ; and their pleas will avail the defendant, unless'he objects-to them, and insists -on -defending the suit atbis peril and risk.

Judgment affirmed.


author: ’King, L

text:
    New Orleans and Carrollton Railroad Company v. Armstrong, Syndic.
    Where the endorser of a note, after discharge, gives a written promise to pay the debt, and the note and written promise are subsequently lost, no recovery can be had but upon proof that the loss of the written promise had been advertised within a reasonable time, and proper means taken to recover possession of the instrument. It is not enough that tho loss of the note was duly advertised. C. C. 2259.
    Appeal from the District Court of Avoyelles, Farrar, J.

      Generes, for the plaintiffs. Taylor and Sicayze, for the appellant.
   The judgment of the court was pronounced by

’King, L

Briggs was an.endorser on a promissory note made by O.rr., of plaintiffs .were the holders. At the maturity .of the note no steps were taken to fix the liability of the endorsers. Briggs, after having been inf0¡¡.!Tle¿i,of his. discharge, gave.a promise,in writingjto hold himself liable for the payment of the note. Both the note and the written promise of Briggs were subsequently lost. The loss of the former only .was duly advertised. This .suit .is instituted .against the defendant, as syndic of B.riggs, to recover the ampuut.of this,lost note. ¡Op the part of the defence, it .is xo.nte.nded that the •Written promise of Briggs, made after his discharge, having been lost, the .plaintiffs could only recover upon showing that the loss had been advertised. A judgment .was rendered in favor o.f .thejffaintiffs, from which the defendant has .appealed.

"We.think that the district judge erred. Briggs had ibeen .completely discharged from his .liability as endorser, and his .obligation .to pay the note of Orr arose from his subsequent .promise, made with a .full knowledge of his discharge. That written promise was the .foundation of the suit; and .it was an .indispensable prerequisite .to a recovery upon it, that its loss should have been .advprtise'd within a reasonable time, .and proper means .taken to recover possession.of the instrument. No such,advertisement appears to have been made. C. C. art. 2259. Lewis v. Splane, ante p. 754.

It is therefore .ordered that the judgment of the District Court be reversed. It is further,ordered that there be judgment against the plaintiffs .as ip case of ,nop-suit, said plaintiffs paying the costs of both .courts.


author: Slidem,, I.

text:
    New Orleans Canal and Banking Company v. Escoffie et al.
    A surety, who has bound himself in solido with his principal, cannot reipiire the property of the latter to be discussed before.recourse is had against him (C. C. 2089,3014); nor, though the debtbe secured by a mortgage.on -the property of the principal, .can the surety compel the creditor to resort to his mortgage.'before calling upon him.
    A bank will not be responsible for any injury resulting from the omission to protest notes deposited with it .for safe-keeping, ,-and not for collection.
    PPEAL by the defendant Boyce, from a judgment of ‘the District Court of Rapides, Cushman, J.

      Byams and Elgee, for the plaintiffs. IE. Boyce, .appellant, pro se. Thomas, on the same side.
   The judgment of the court was pronounced by

Slidem,, I.

Boycesis sued upon a bond executed in favor of the plaintiffs by Ufo. Escoffie, formerly Sophia Anderson, as principal, and Boyce as surety, in which, however, the parties also acknowledged themselves as jointly and severally indebted to the plaintiffs, and expressly bind -themselves in solido.

Boyce in .his .-answer sets up various grounds of defence, which we will separately state and .examine.

I. He pleads .that he is merely the surety of Sophia Anderson, and as such is entitled to the .benefit of discussion. He points out, in his plea, certain property of Sophia Anderson, and makes a tender of a sum for costs to carry on the discussion. The plea cannot be sustained. The Code is clear and conclusive against it. The obligation of the surety towards the creditor is, to pay him in case the debtor should not himself satisfy the'ddbt; and the property of such debtor is to be previously discussed or seized, unless the surety should have renounced the plea of discussion-, or should be bound in solido with the debtor, in which case tile effects of his engagement are t©' be regulated by the same principles which-have been established for debtors in solido. Civil Code, art. 3014; see also art. 2089. Smith v. Scott. 3 Rob. 260. Duranton, lib; 3, tit. 14, § 332.

II.- He pleads that the bank has granted delay t'o'the'pfihtíipál debtor, wiflw oufi his consent; also that the bank postponed the sale of certain property mortgaged-by Sophia Anderson to secure the bond, and granted-unnecessary delays' in the-execution of the writ'of seizure and sale, until, in the mean while, the' property became greatly depreciated in value, when it Was sdld on execution,- and bought by the bank.- Some delay did occur in the execution of an order of' seizure and sale, which'was attributable partly to the written request of the de-fendant himself, and partly to the sherifif’s inability to obtain a mortgage certificate, by reason of the absence of the parish judge, and the subsequent vacancy' in that office. "We find no evidence of any act done by the' bank to the detriment of the defendant in the prosecution of their mortgage; nor are we aware of any rule of law which compelled them to resort to their mortgage rights at all,before calling upon Boyce, the debtor in solido-.

III.- The defendant pleads that the bond was given in' settlement' of a- debt’ due to the bank by Win.-R. Anderson, deceased, and by Sophia Anderson, his-Widow in-community : That Brewer, the executor of Anderson, as an inducement to the defendant to-sign the bond, transferred to him-four notes drawn by Mrs. Escoffie, and endorsed by Brew'er individually,- and as executor, and by' Culbertson, payable at the Canal Bank’s office at Alexandria,-as a collateral security to indemnify the defendant against the consequencesof signing the bond: That’ before the notes matured they were deposited in-the office-of the Canal Bank’s1 branch at Alexandria-, for the benefit and security of- the defendant, and to be collected and proper measures taken thereon, which the bank was bound to do; but that, when the notes fell due, the bank neglected-to have the notes protested,- or any demand made, or notice to endorsers given,- whereby he has sustained-damage to the amount of the notes, which he pleads in reconvention.

The facts material to the consideration of this branch of the defence are':that the Canal Bank originally held Culbertson’s note, endorsed by W. R. Anderson and by Boyce, which was protested at maturity, and Boyce was notified. The present bond was given- in payment of that note, upon which-, by protest and notice, Boyce had become unconditionally liable, and upon which suit had been brought against him. Before Boyce signed the bond, Brewer, as executor of Anderson, promised to give Boyce the notes as collaterals for his indemnity. The bond bears-date on the 21 December, 1841. On the first of March, 1842, Breiver, as executor, by notarial act, transferred- the four notes to Boyce as M collateral security,” and “ to indemnify Boyce from all loss that he may sustain on account of the suretyship on the bond.” This act was not notified to the bank till 1846 ; but on the day of its execution, Breioer went with Boyce to-the office of the bank, and stated to the cashier their agreement that the notes-should- be a collateral security for Boyce, as the surety on the bond. The notes-,with other assets of Anderson’s estate, had been left by the executor at th© bank for safe keeping, in a bundle or envelope. The four notes were taken out of the package and put in a separate envelope, upon which was endorsed a memorandum that they had been transferred by the executor to Boyce, as his collateral security for his suretyship on the bond of Sophia Anderson. On the back of the notes are pencil memoranda over the initials of Chew, cashier, stating as to one: “No funds”; and as to the other: “ Not protested by request of Brewer, and no funds.” The cashier states that notes were very often deposited at the bank for safe keeping, and without having any connection with the business of the bank ; that if they had been deposited for collection, they Would have been entered on the books of the bank; that no entry in the books was ever made; that the agreement between Brewer and Boyce had no connection with the execution of the bond, so far as' the bank was concerned ; that he never Was authorised to receive, and never did receive, the-notes as security for the bond ; and that it was a mere- deposit for safe keeping at the request of the parties; that when Brewer originally deposited them for safe-keeping, he said there was no necessity for protesting them, as he was first and last endorser; that Boyce never asked him to have them protested ; and that when notes are brought for safe-keeping they are not protested, unless it be requested. In 1846, Boyce exhibited his notarial act of transfer from Brewer to Chew, the cashier of the bank, who gave hinr the' notes. There are several other circumstances tending to show that the bank had no connection with, nor interest in the notes, as collaterals; and that in fact Chew, personally, was considered as the friendly depositary of the parties,- Brewer and Boyce. Among them the most prominent are, that Brewer brought suit in 1844, against Chew, individually, to compel him to give up the notes, which Chew refused to do without Boyce’s consent. This suit was dismissed at Boyce’s instance, and a written agreement was signed by Brewer, as executor, that the notes should remain in Chew's hands. So when Boyce twice received the note from- Chew, he receipted- to him individually, and not as cashier. Both the suit and these receipts were long after the maturity of the notes; and no complaint appears to have been made by either Brewer or Boyce, about the omission to protest, until it was set up in the present action. It is quite clear, under this state of facts, that there is no liability upon the bank by reason of the non-protest of the notes, and the omission to notify the endorsers. In the most favorable view for the defendant, and considering the bank, and not Chew, personally, as the depositary, it was a mere deposit for safe-keeping, and not for collection; and the notes were not a collateral security to the bank, but merely to Boyce, as botween him and Brewer, the executor. Chew’s testimony as to the usages of banks, and the mode of depositing for collection, is in accordance with experience. There is no ground whatever to charge the bank for any loss which may have resulted from the omission to protest.

Judgment affirmed.


author: Slidell, J.

text:
    Kerr v. Wells et al.
    Where the certificate of a notary, dated on the day on which the protest of a note was made, recites, that the parties have been duly notified of the protest thereof, by notices put into the post-office in time to go by the first mail, after the protest &c., it must he understood as certifying that the notices were mailed on the day of protest, and that they had been mailed at the time the certificate was signed.

      Where the endorser of a note unites with the maker, in mortgaging to the payee- property which they owned jointly, to secure its payment, a subsequent discharge of the endorser, by the laches of the holder, will release the endorser from any personal liability lor the debt; but the holder of the note will be entitled to the benefit of his mortgage.
    Appeal by T. J. Wells, one of the defendants, from a judgment of the District Court of Rapides, Cushman, J,
    O. N. Ogden, for the plaintiff» JSlgee and Hyams, for the appellant,
    contended that the notice of protest in this case was insufficient to bind the endorser, citing Mechanics Bank v. Walton, 7 Rob. 452. Palmer v. Lae, 7 lb. 538. Marsoudet v. Jacobs, 6 lb. 283. Harris v. Allnut, 12 La. 467.
   The judgment of the court was pronounced by

Slidell, J.

This is an action against J. T. Wells, as the endorser of several promissory notes. The respective certificates of notice are as follows; “ I do hereby certify that the parties to the above note have been duly notified of the protest thereof, by notices to them by me addressed, dated on the day of said protest, and served in the manner following, viz: Monfort Wells, the drawer, and Thos. J. Wells, the endorser, at Alexandria, and at Cheneyville, Louisiana, having sent each two notices, which I put into the post-office of this city, in time to go by the first mail after said protest. In faith whereof, I have hereunto signed my name, together with A. C. Ainsworth and Wüliani Shannon, witnesses, at New Orleans, this twentieth January, 1845.” Then follow the signatures of the witnesses and notary. All are in the same terms, except that in one is used the equivalent expression ‘ thereafter,5 instead of ‘ after said protest.5 In every case the date of the certificate of notice is the same day as that of the maturity of the note, with a single exception, which will be hereafter noticed.

The objection made is that, under the statute, the notary should state at what time he put the notice into the post-office, so that the court may judgo whether the notice was timely; and that as to the notice being in time or not for the first mail, a simple declaration of the notary to that effect is not sufficient. It is very true that the notary should state the date- at which he mailed the notice, but the enquiry is, has he done so in this case ? The certificate is to be considered, in ail its parts. The date of the protest and the date of the certificate are the same. In certifying, on the 20th January, 1645', that the endorser had been notified of a protest made on that day, the notary undoubtedly certifies that the notice was mailed on that day. When he makes and signs liis certificate, the act of mailing has been done. He certifies an act done, and not an act to be done. To dispute this, and say that tiie notice may not have been mailed until after the certificate was signed, is to declare the certificate false. The certificate is unimpeached by other evidence, and we consider it as showing that this notice was mailed on the day of protest. As to the argument that the notice ought to have been mailed the day after the protest, if it be meant to object to the notice as being given too early and too diligently, we can only say that we cannot believe such a point to be put seriously.

As to one of the notes there has been laches. It was due on the 20 December, 1844, and was not protested, nor notified, until the 20 January, 1845. The personal liability of the endorser is therefore disenarged ; but as he united with the maker in a mortgage of certain property, of which they were joint owners, to secure the payment of this note, the plaintiff is entitled to the benefit of hfo mortgage.

It is therefore decreed that so much only of the judgment appealed from be reversed, as condemns the appellant, Thomas J. Wells, personally, to pay the sum of $2,205 91, with interest from 20 December, 184-4, being the amount of the promissory note of said Ml. Wells, endorsed by said Thomas' J. Wells, for $2,205 91, dated August 31, 1842, and payable 17-20 December, 1844; and that upon so much of the plaintiff’s claim against the said defendant personally, as is founded on said note, there be judgment in favor of- the said defendant, Thomas J. Wells. And it is further decreed that so much of the said judgment as recognises a mortgage in favor of the said plaintiff upon the- property mortgaged by the said Ml. Wells and Thomas J. Wells be amended, only as to the allowance of interest upon the note- herein above described, só as to allow said interest only from the 20 January, 1845, upon the said sum of $2,205 91. And it is further decreed that, in .all- other respects, the judgment- appealed from baaffiimed ; the plaintiffs paying the costs of- this appeaL


author: Rost, J.

text:
    Brown v. Brown.
    Dotal property is inalienable during marriage. Where a husband has sold paraphernal property of the wife’s during marriage, and the action of the wife to recover it would give rise to a claim in warranty against him, prescription will be suspended during the marriage.'C. C. 3491.
    APPEAL from the District Court of Rapides, Cushman, J.

      Flint, Me Wa-ters and Ryan, for the plaintiff. Waters, for the defendant and appellant. • Evans, Gordon, O. N. Ogden and Edelen, for the parties cited in warranty-,who also appealed.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims from the defendant one hundred arpents of lánd, given-her by her father in a marriage contract, and subsequently sold by her-husband. The defendant claims under a regular chain of conveyances ascending. to the husband; pleads the prescriptions of ten, twenty, and thirty years; and has Gited in warranty the legal representatives of John Ha/rris Johnston, his vendor-. These last have cited in warranty the legal representatives of Josiah S. Johnston, who have themselves cited James Byers.

There was judgment in favor of the plaintiff against the defendant for the land,, and a consent decree was entered in favor of the defendant against the legal representatives of John H. Johnston-, for the sum of $500. A judgment was entered for the like sum in favor of each of the warrantors, against his immediate vendor. The defendant and the warrantors have appealed.

There is no 'error in the judgment so far as the plaintiff is.concerned. If the property was dotal, it could not be alienated during marriage. If, as we are inclined to believe, it was paraphernal, the husband sold it during marriage, and the action of the wife to recover it would have given rise to a claim in warranty against him. Whenever this is the case, prescription is suspended during marriage. C. C.3491.

Under the compromise entered into between the defendant and the legal representatives of John H. Johnston, judgment was properly entered in his favor against them; but no judgment should have been rendered against the subsequent warrantors. The defendant, Brown, had previously held the land, and all the parties cited in warranty claim under him. Ho could not maintain an action of warranty; and the fact that -his last vendors saw fit to buy their peace cannot affect the right of the other parties to the suit.

It is therefore ordered that the judgment be amended, and that there be judgment in favor of the legal representatives of Josiah S. Johnston against the •legal representatives of John H. Johnston, and also in favor of James Byers .against the legal representatives of Josiah S. Johnston. It,is .further ordered -.that the judgment as amended be affirmed, with costs.


text:
    Union Bank of Louisiana v. Brewer et al.
    'Where a note appears on its face to have been altered in a material part, tho amount and place of paymentbeing written over erasures, rendering the note suspicious, in an action on it by a hank by which it had been discounted, against an accommodation endorser, not ■shown to have delivered the note to the bant, plaintiffs must prove that the alterations were made under circumstances which will render the note available. Erasures .in anote will be presumed to be false.
    Appeal by the defendant Chambers, from a judgment of the District-Court
    of Rapides, Cushman, J.

      Taylor and Sioayze, for the plaintiffs,
    con:tended that an endorser warrants the genuineness of the instrument, and that it is incumbent on him to prove that any alterations in the instrument, apparent on its face, were falsely or fraudulently made.

      .Waters, for the appellant,
    cited Chitty, 212; Bailay, 98, 99; -19 Johnson, 39.X, to show that it was incumbent on the plaintiffs to prove that the note was altered under circumstances to-render it available against the parties.
   The judgment of the court was pronounced by

Slidell, J.

The defendant Josias Chambers is sued .as endorser -of a promissory note made by Breioer, to the order of, and endorsed by, Ralph Smith, by Chambers, and by Spurlock. The defendant pleaded the general issue ; and also that, since he endorsed, a material change has been made in the instrument apparent on its face, and that such alteration has destroyed his liability. The defendant asked for a trial by jury, -which was refused. The -case was tried by the court, judgment .was given for the plaintiffs, and the defendant Chambers has appealed.

The note has been brought up in original for our inspection. It.is,in these words:

“$1500. Alexandria, October 31, 1840.

“Twelve months after date I promise to .pay to the order of Ralph Smith, the sum of fifteen hundred dollars, for value received, payable and negotiable at the office of discount and deposit of the .Union Bank of Louisiana, -at Avoyelles F. W. Brewer.

“ Credit the drawer. Endorsed, R. Smith.

“ J. C. Josias Chambers.

“ J. D. S. James D. Spurlock,”

In the body of the note between the words “ of” and “hundred dollars,” the word “ fifteen” is written on a grossly palpable erasure. The surface of the paper has been abraded, and the letters composing the word are spread or blotted. At tho head of the note the figure “ 1” lias the appearance of being crowded between the mark and the figures “500.” After the words “ payable and negotiable at the office of discount and deposit of the Union Bank of Louisiana at,” there is a palpable abrasion and erasure, over which is written the word “ Avoyelles.”

Three cashiers of banks have been examined, who all state that they would not have discounted .a note having such an appearance. They concur as to the evident alteration of the note. The purport of their testimony as to the handwriting is, that the whole body of the note, except the month and day of the month, is in the hand-writing of Breiucv, also the words “ credit the drawer” at the foot of the note; and that tho endorsements are genuine. One of these witnessess states that he believes the initials under the word “credit the drawer,” to be in the proper hand-writing of the endorsers. It was admitted by the plaintiffs that the words “ October 31” were written by Coco, the then cashier of the Union Bank, at its branch at Avoyelles. This cashier was examined by the plaintiffs under commission. He states that the note was discounted for the credit of Brewer, and in renewal of a note of the same amount given the year .previous with tho same endorsers, with the exception of Smith, who was not a party to the former note; that the proceeds of the discount were placed to the credit of Brewer; that there has been no erasure or obliteration in any part of the note since it came into the bank’s possession ; that if any alteration was made, it was done before its being discounted, and that it has remained in tho bank’s possession ever since the discount. It is to be observed that the plaintiffs’ interrogatories to their own agent, and his answers, are entirely silent as to any direct communication of himself with Chambers, at the time of the discount. In the absence of any statement by the cashier .upon this subject, and looking to the face of the note and the nature of the transaction, the inference is reasonable .that the note was not brought for discount by the endorsers, or any of them' — at all events, not by Chambers, the second endorser ; and -that Brewer, for whose account it was discounted, and to whose credit the proceeds wont, brought the note to the cashier in the condition which it now presents. It is also in evidence that Brewer has left this State and is living in Texas, under the name of Paschal.

Jn our opinion the court below erred in giving judgment against Chambers. The alteration in a substantial .part, which is grossly patent on the face of the instrument, detracts from its credit and renders it suspicious; and this suspicion the plaintiffs., claiming underit against an accommodation endorser,, who is not shown to have delivered it to the bank, were bound to remove. In such a case, it .is for the holder to prove, and not for the defendant to disprove, that it was altered under circumstances which will make it still available. The bank has failed .to do so. It has failed to interrogate its cashier as to who brought the note for discount, and that agent has been silent on .this point, leaving uncontradicted the reasonable inference that it was placed in the cashier’s hands by the maker. It is also a suspicious circumstance that the bank should hav'e slumbered on its claim for four years, before bringing this action. We think this a proper case for the application of the principal recognised in McMicken v. Beauchamp, 2 La. 291. See also Greenleaf on Evidence, § 564. Chitty on Bills [*212], and the cases there cited.

The judgment of the court below is therefore reversed,-'and judgment is given for the defendant Chambers, with costs in both courts.

       Eustis, C. J., did not sit, having an intorest with tho plaintiffs.


author: Kitfe, J.

text:
    The State v. Fant.
    The jurisdiction of the Supreme Court in appeals in criminal eases being confined by-the-constitution, art. 63, to questions of law alone, the judge of the inferior court is not bound in any case to make a statement of facts. The questions for tho decision of tho Supreme Court must be presented by bills of exception or assignments of error. The stat. of 30 May, 1846, sec. S, which provides that, in certain criminal oases, " an appeal may be taken on behalf of-the accused, returnable to tho Supreme Court as in civil eases,” does not alter in any respect the method of trial or rules of proceeding in the inferior court, merely provid- . ing for bringing the case before the Supreme Court by appeal, in contradistinction to the proceeding by writ of error.
    It is no objection to an indictment under the stat. of 2 April, 1833, against a person for selling intoxicating liquors to a slave without the consent of his master, that the accused is described as a “ tradeV in goods, wares, and merchandize, and spirituous or intoxicating liquors.”
    An indictment-under the stat. of 2 April, 1832, against a person for selling intoxicating liquors -to slaves, which charges that the accused “did unlawfully-sell, give, and deliver inpayment, and.cause to be sold, given, and.delivered in payment" spiritons or intoxicating liquor, is not defective on the ground of repugnarme or duplicity in tho allegations. Per Curiam: The allegations are merely cumulative. A general verdict of guilty on such an indictment would be sustained by proof of any one of the acts charged.
    APPEAL from tho District Court of Rapides, Cushman, J.

      Barry, District Attorney, for the State. O. N. Ogden and Ryan, for the appellant.
   The judgment of the court was pronounced by

Kitfe, J.

The defendant was indicted under the act of 1832, (Acts, p. 162,) for selling spirituous and intoxicating liquors to a slave, without the consent or authorisation of the owner, or other person having lawful charge of the slave,. Upon conviction, the maximum punishment annexed to the offence by the statute was awarded by the sentence of the court, and the defendant has appealed.

An application has been made by the defendant for a mandamus ordering the district judge to make a statement of facts, to which it is contended he is entitled as on appeals in civil cases. The act of 1843, (Acts, p. 60, § 2,) creating a Court of Errors and Appeals in Criminal Cases,conferred on that tribunal appellate jurisdiction, with power to review questions of law, which questions the statute required to be presented by bills of exception taken to the opinion of the judge of the lower co.urt, or by the assignment of errors apparent on .the face of the record. This statute was repealed by the act of the 26th May, 1846; and the act of the 30th of May of the same year, (Acts, p. 100, § 8, 9,) provides that, in criminal cases in which appeals are allowed, they “ may be taken on behalf of the accused from such judgment, returnable to the Supreme Court, as in civil cases.” The defendant contends that the only statute requiring that the questions of law .to bo raised by the appellate court should be presented by bills of exception or assignments of error having been repealed, and provision having been made that the cause is to be brought up by an appeal as in civil cases, he is entitled, as an incident to the appeal, to a statement of facts as a means of enabling this court to review the questions which he desires to present. We do not understand this statute as altering in any respect the method of trial, or rules of proceeding in criminal cases in the inferior court, previous to judgment. It .provides alone for .bringing the -case before theappellate court for revision, which is to be done, as in civil cases, by an appeal, in contradistinction from a writ of error. By the well known rules of caminal proceedings, the evidence introduced on the trial before the jury is not reduced -to writing, and, if it were, we w.ould be without authority to pronounce upon it. A statement of the facts proved on the trial would be only a substitute for the evidence itself, which we are not permitted to examine. The constitution confers appellate jurisdiction on,this court “.in.eriminal cases, on questions of law alone.” Art. 63. Those questions should be presented by bills of exception or assignments of error. The practice, in .this respect, stands unaffected by the repealing.statute of 1846, and the necessity for-observing it results.as a necessary consequence, from .the .constitutional limitation of the jurisdiction of .this court to questions of law alone. The application for a mandamus is therefore refused.

Several objections were made to the sufficiency of the indictment,on a motion for .an arrest of judgment. The first is, that the defendant is averred to be a “.trader in goods, wares, and merchandise, and spirituous .and intoxicating liquors,” no such person being known to the law. 2d. That there is no allegation that the offence was committed -against the .consent of the owner of the slav.e. 3d. The indictment charges in one and the same.count, and as one substantive offence,, that the defendant “ did actually sell, give, .and deliver in payment, and cause to be sold, given, and delivered in payment,” spirituous and intoxicating liquor, all of which constitute distinct offences.

I. Among the different persons to whom the prohibitions .of the statute extend, “.traders” are enumerated. It is no objection to the averment in the indictment, that it specifies the particular class of .traders to which the defendant belonged.

II. The averment in the indictment is a sufficient answer to the second objection. It is alleged, in the language of the statute itself, that the defendant sold &c.,, •“-without .the consent and authorisation therefor of the said Mrs. Henrietta Hooper, the owner of said slave,” ,&c.

III. There is no repugnance or duplicity in the allegations of the indictment. They are merely cumulative ; the offence ehar'ged is the same. A general verdict of guilty on such an indictment would be sustained by proof of any one of the acts charged. A .count charging that the defendant published and caused to be published a libel, has been held not to be pleading double, the offence being the same. So when the indictment charged the defendant with composing, printing, and publishing a libel, it was held that he could be convicted of the printing and publishing only. 2 East, P. C. 515, 516. 1 Starkie on Ev. 336. Archbold, Cr. Plead. 30. Judgment affirmed.


author: King, J.

text:
    The State v. Bogan.
    Decision ia State v. Fant, sxvpra, affirmed.
    Appeal from the District Court .of Rapides, Cushman, J.

      Barry, District Attorney, for the State. O. N. Ogden and Ryan, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendant has appealed from a judgment rendered against him on a conviction for selling spirituous and intoxicating liquor to a slave, in vioIation of the act of the 2d April, 1832. Sess. Acts, p. 162. He has applied for a mandamus directing the district judge to make up a statement of facts, to be used on the-trial of this appeal. In the case of The State v. Fant, just decided, we determined that on appeals in criminal cases the accused is not entitled to a statement of facts, asa means of enabling this court to review the questions of law which he desires to present. The mandamus is, therefore, refused.

The objections made to the sufficiency of the- indictment in this case are the-same which were urged in the case of The State v. Fant. For the reasons-assigned in that case,- they must be- overruled. The-indictments in both cases-are substantially the same. Judgment affirmed.


text:
    Ingram v. Richardson et al.
    To support a plea- of Uiispcndance, the parties, and-the objects of the action, must he identical.
    Rroof of the pendency of proceedings against executors to enforce a sale of the assets of the-succession to pay the claim of a plaintiff, will not support a plea of litispondcmce, in an action to establish the personal liability of the widow, and the liability of the beneficiary-heirs, by reason of their acceptance of the suooession-and community, and of their having, taken the property in their possession. C. P. 335.
    A-widow in community, who has taken the property of the succession into her possession, wassuable in courts of ordinary jurisdiction under the organization of the courts anterior to the’ constitution of 1845; and an action might have been maintained in those courts against' minor heirs, represented by their tutrix.
    Acceptance of service of a petition and waiver of citation, made by the-attorney at law of a1 defendant, are sufficient.
    The word “ attorney” in art. 17-7 of the Code-of Practice means attorney at law, and not attorney in fact,
    Where, in an action against beneficiary heirs, judgment was rendered against them " as-the children of the said R. W. deceased,” the whole context of the judgment must be considered in interpreting it; and where, so interpreting it, its legal effect is that of a judgment-against them to be satisfied out of their patrimonial estate, it will he considered as such.
    Appeal fromthe District Court of Rápidos, Cushman,- J.

      Elgee and ITy*ams, for the plaintiff.
    The attorney at law of an executor may accept service of petition and waive citation. C. P. 177. 8 Mart. N. S. 233. The minors, being properly represented on the trial of the cases in which judgments were obtained, their only remedy was by appeal. 4 Mart. N. S. 415. 5 lb. N. S. 165. 8 Ib. N. S. 233. 7 La. 17, 223. 3 Rob. 69.

      Flint and McWaters, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff alleges that, in the year 1842, he obtained judgment against the estate of Richard Winn, represented by Moore and Neal, executors, upon debts contracted by the deceased ; that since the rendition of the judgments the executors have delivered up all the estate of Winn to his widow, now Mrs. Richardson, and her husband Richardson, in their own right and as tutrix and co-tutor of Winn’s minor children. He prays for judgment against the minors in solido, and against the widow in community, for the amount of the judgments above mentioned, and for general relief. There was a judgment for plaintiff in the court below, and tho defendants have appealed.

The first appearance of the defendants in the cause was by way of exception. They declined answering to the merits, and prayed to be dismissed, on two grounds: first, that the District Court was wholly without jurisdiction of the suit; and, secondly, the pendency of a suit in the Court of Probates, brought by the plaintiff against the executors, to enforce the payment of the same judgments. The suit in the Court of Probates, to which reference is made in the above exception, was a proceedingin which Ingram prayed for an .order of that court to the executors, commanding them to sell sufficient property of the succession for cash to pay his claim, and to render an account of their administration. In- that suit the executors answered that they had been discharged from their executorship by a decide of the Court of Probates, had rendered an account to the widow and heirs, and in obedience to the decree of the court had surrendered all the property of the succession to them. Upon those issues the Court of Probates dismissed the suit, stating as the ground for its decree that, it appeared, to the satisfaction of the court that the executors had been discharged as such, and had surrendered all the property and effects of the succession to the widow and tutrix. From this d'ecx'ee Ingram appealed, and the appeal was still pending when this suit was brought.

The exception of litispendanee is not well taken. The parties, and the object of the actions, are not identical. In the former ease it was a proceeding against the executors, to enforce a sale of assets of the succession to pay the plaintiff’s claims. In the present, the plaintiff seeks a judgment decreeing the personal liability of the widow, and the liability of the beneficiary heirs, by reason of their acceptance of the succession and community, and of their having taken its property into their possession. See C. P. 335.

As to the jurisdiction of the District Court, it is too clear to admit of any discussion, that the widow in community, who had taken the property of the succession into her possession, was suable in a court of ordinary jurisdiction; and upon the authority of the case of Saunders v. Taylor, 6 Mart. N. S. 521, the suit could also be "maintained there against the minors represented by their tutrix. We may remark that in the present case this question of jurisdiction is practically a mere question of costs; for although the exception was heard and overruled in 1845, the trial of the cause on the merits took place in 1847, before the District Court as organised under the constitution of 1845, and clothed with plenary jui'isdiction over minors and successions.

The exception having been overruled the defendants answered. The answer contains no plea of general denial, but is a special plea of the nullity of the judgments obtained in the Probate Court, upon the following grounds : That no citation ever issued to, or was served upon, either of the executors; that neither of them ever authorised any person to acknowledge, or waive, service of citation; and that neither of them ever entered an appearance, or joined issue, in those suits.

The facts material to the decision of the issue thus made are, that Brent Ogden, licensed attorneys and counsellors at law, signed a written acceptance of service and waiver of citation, upon the original petitions of record in those suits. This, would of itself suffice. The 177th article of the Code of Practice authorises an attorney to acknowledge service. It is erroneously argued that by “ attorney” is there intended an attorney in fact. The french text sets all doubt at rest, by using the expression “ avocal.’1 We had occasion in the case of Conrey v. Brenham, 1 An. Rep. 397, to say that, an acceptance of service by the attorney of record of a citation of appeal, will bo presumed to1 bo-authorised by his client, in the absence of contrary proof. We considered the rule as warranted by a consideration of the dignity of the profession, and the necessity, for the convenient administration of justice,- that great confidence should be reposed in members of the bar. It is to be remembered-, too, that what is done by an attorney at law is done under the solemnity of his oath of office; and the allegation that he has violated his professional duly, by acting for a party without authorisation, ought not to be lightly made.

In the present case, the plaintiff has not thought proper to rest the matter solely upon the acceptance signed by Brent Ogden, but has offered evidence-which shows that those gontlemen have not been guilty of a breach of professional duty. Mr. Brent, being examined as a witness, says he thinks he spoke to Moore, the executor, and that he authorised him to waive service. That if he had no special authority, he had a general authority to represent the executors in all matters connected with the interests of the estate. The testimony of this witness, and of another, satisfies us also that Mr. Brent was present when the causes were tried, and the judgments taken, in the Court of Probates. Moore, the executor, swears that Brent Sf Ogden, “were fully authorised by him to exercise their own discretion in all legal matters brought either in favor of or against the estatethat he had entire confidence in them; and that whatever was done by them, in the capacity of attorneys, received his sanction, although he does not recollect if he gave them special authority to waive service in these particular cases. This witness also states bis belief that he promised to pay these judgments ; and this statement is corroborated by another witness, who declares that Moore, as executor, often promised to pay the judgments; but begged indulgence until a crop could be made. At his solicitation suits were brought, and judgments obtained, against the parties primarily liable upon the obligations endorsed by Winn, and upon which the judgments against his succession were obtained. Richardson also solicited that execution should be issued against those parties.

As to the objection that the judgments were rendered without appearance or issue joined by the executors of Winn, it is entitled to no weight. Judgments by default were duly enterad, and the causes were tried in the presence of the counsel of the executors. If there were any informalities on this score between citation and decree, the decrees cured them. We cannot now look behind the decrees to discover informalities, which, if they existed, should have been examined by appeal.

We are clearly of opinion that the grounds of nullity set forth in this answer, are not only untenable, but frivolous.

There was an amended answer which, like the first, contains no general denial, but a mere special plea, in which a further ground of nullity is alleged. The plea in substance is, that the note and draft upon which the two judgments were obtained, were merely collaterals, or means of payment of a note of Wright <^- Robert, endorsed by Briggs and by Winn, due iu 1839 ; that the knowledge of this fact rested only with the plaintiffs, after Winn’s death, and was fraudulently concealed from the heirs and representatives of the succession. The evidence on this point is that, when the new note and draft were given to Ingram, the old note, by the agreement of Ingram, Robert, Wright and Winn, was deposited in the hands of Ingram's attorneys, as a collateral security, “not to be giyen up until the draft and note were paid.” A receipt setting forth the amount was given at-the tima■ to Ingrata by his attorneys, nnd-the old note was retainod in their hands as a collateral security, If the parties chose to put the old debt in the new form of a note and draft, and malte the old note a collateral security instead of a principal -obligation, they had a right to do so, and must be bound-by their agreement.

The'charge of fraud and malpractice made in this amended answer, is unsupported and unjust. If any one has aright to complain in this litigation it is the plaintiff, who has been struggling for so many years to collect a just debt, and whose efforts -up to the present time have been unavailing.

The question -is put by the defendants in argument, whether a judgment rendered -against executors constitutes evidence against, and is binding upon,-the widow in community and heirs. But this question is not raised by the- answer, and cannot be considered. The defence was placed in the answer solely upon the nullity-of the judgments, setting forth the special grounds of nullity.

Objection-is-made to the form-of the judgment, being, it is said, an absolute judgment. If it be absolute against the wife for one-half of the debt, it is properly so; for she has-accepted the community and taken it into her possession,to an amountTar exceeding the plaintiff’s claim. As to the minors, we do not consider it absolute. It is against them “ as the children of the said, Richard Winn, deceased.” The whole context of the judgment must be considered ia interpreting it. So interpreting it, its legal effect is a judgment against the minors, to be- satisfied out of- their, patrimonial estate.

Judgment affirmed,-


text:
    Hopkins et al. v. Johnson.
    Where on the dissolution of a partnership one of the partners purchases the “ other's interest in-the partnership books and accounts,” making the books the basis of the settlement and purchase of that interest, and it appears from entries in the hooks made by the latter before their sale, that a third person, to pay a debt due by whom a note had been executed by the selling partner in the name of the partnership, had advanced to the partner, ship 'a-*sum of "money a little less than the amount of the note, and that the partnership had assumed to pay the debt, the facts will amount to a ratification of the act of the partner by whom the note was executed, and the purchaser of the partnership books and accounts will be bound for the note, though not originally liable, as it was executed without his authority, and not in the business of the firm.
    Appeal from the District Court of Rapides, Cushman, J.

      Elgee and Hyams, for the plaintiffs,
    cited Civil Code, art. 2845. 1 La. 390. 13 La. 197, 488.

      Waters, for the appellant,
    relied on Kent’s Com. vol. 3, p. 40 et seq.

   Tbo judgment of the court was pronounced by

Slidell, J.

Johnson is sued upon two notes, signed by Johnson 8f Hazard, to the order of plaintiffs. He resists the action upon the ground that, the notes were signed by Hazard without his authorisation, and not in the business of the firm.

At the date of these notes the defendant and Hazard were partners in the business of druggists, at Alexandria, under the firm of Johnson 4’ Hazard, The notes were signed by Hazard, at New Orleans, and were given to the plaintiffs in settlement of a debt due by Preston 4' Bleaklcy, to the plaintiffs. The only information with regard to the origin of this matter is 'derived from the commercial books of Johnson S¡- Hazard,, offered in evidence by the plaintiffs, and from an admission made by Johnson at the .trial. It appears, according to the books, that Preston had advanced a sum of money, a .little less than the amount of these notes, to Johnson ¿y Hazard, who assumed to pay Preston's debt to the plaintiffs. The entries, which were made by Hazard, appear to have been made irregularly, that is-to say, neatly a year after the 'date of the notes. The admission at the trial was, that llazardhud really borrowed the money from Preston, and promised to take up the debt due to plaintiffs; but -this admission only went-to Hazard's liability, and not to acknowledge that Hazard had told Preston, at the time, that he borrowed the money for the account of his house, and that his house would assume the debt due to plaintiffs.

It is unnecessary to determine whether the 'firm of Johnson Sj- Hazard was originally bound. We are of opinion that the subsequent conduct of Johnson precludes him from contesting the liability of the house, and of 'himself, as a commercial partner. After these entries were-made in the books, exhibiting the loan by Preston, and the assumption in favor of the plaintiffs, who were formally credited, Johnson, upon the dissolution of the firm, bought out, to use the language of the witness, “ Hazard’s interest in the partnership -boffus: and accounts,” and took the books and partnership assets into his possessession. Having taken the assets, and made the books, as we may fairly infer from the evidence, the basis of his settlement and purchase of Hazard’s -interest, he must be bound by them. The execution of the notes in the name the of house established a prima facie case against the firm ; and conceding that the evidence, which has been offered to contradict that presumption, may create a doubt as to ■the authority of Hazard to bind the firm at the time, yet the case exhibits a subsequent approval and ratification by his partnor.

. Judgment affirmed.


author: Host, J.

text:
    Lynch v. Kitchen et al.
    A jundgment of non-suit will not support a plea of res judicata.

    Land subject to a mortgage was sold by the mortgagor to defendants, who sold to a* third person, by whom the laud was sold to a fourth, who .was evicted by a sale at the suit of the mortgagee. Plaintiff having acquired at a judicial sale the claim of the last purchaser against his vendor, this vendor subrogated the last purchaser to alibis rights of warranty against defendants, and the last purchaser subrogated the plaintiff to alibis rights of action against his vendor, and against defendants. Held, that plaintiff’s action cannot be defeated on the grounds, that defendants’ vendee had no cause of action against them>until lie was himself injured by eviction, and that he could.not assign a right which he had not. Per Curiam: We see no objection to the subrogafcious under which plaintiff claims; they promote the ends of justice, and tend to prevent a multiplicity of -suits.
    Creditors can exercise all the rights and actions of their debtors, except those reserved in arts. 1986,1987 of the-Civil Code. The reservation does not embrace actions of warranty.
    Where an act of mortgage contains the pact de non alienando it is not necessary that the party in possession should be apprized of the seizure, nor is it necessary that the latter should notify his warrantors, in order to preserve his recourse against them. Per Curiam: The defence which warrantors can make against an action of mortgagees .not such as would in any case release them from their warranty. C. C. 2494.

      •One subrognted to the rights of a purchaser who lias been evicted, is entitled to recover from his warrantors any part of the price which the purchaser had paid at the time of his eviction.
    Where a husband joins in an act of sale of real property made by his wife merely for the purpose of authorising her, the purchaser, in case of .eviction, .can recover judgment only against her.
    Appeal from the District-Court of Rapides, King, J.

      O. N. Ogden and Thomas, for the the appellant. Flint, Dunbar., Iíyams.and Elgee, for the defendants.
   The judgment of the court was pronounced by

Host, J.

This is ,an action of warranty. The plaintiff having obtained judgment for a portion of his-claim only, against Harriet Kitchen,and her husband jointly, has .appealed. The defendants ask.that the j udg-ment be revet sed, and that if the plaintiff’s .claim is maintained for any a-mount, they-may have judgmentfor the like sum against Philip M. Cuny, their warrantor.

In 1834, Philip M. Cuny mortgaged to the Canal and Banking Company a tract of land and some slaves, to secure .a loan -of 553000. Shortly after -he sold the land to the defendants, who, in 1836, sold to P. J. limiter, who in his turn said to Wm. L. Gray, in 1838, and while in the latter’s possession the land wns, in 1842, bought at sheriff’s sale by the Canal Bank, .under an order of seizure obtained .on the .mortgage given by Philip M. Cuny.. After the sale Wm. L. Gray instituted an action of warranty against his -vendor, Himt&r. Hunter .called in warranty the defendants, -who excepted to the form of action, -and prayed that it might'be dismissed, without requiring them to answer to the merits. The exception was sustained, and the plaintiff having subsequently failed -to appear to prosecute the principal action, .it was dismissed at his -costs. In December, 1842, the plaintiff in the present suit acquired at sheriff’s sale all-the interest, right, title, claim and demand of Wm. L. Gray against P. J. Hunter, in warranty or otherwise, by reason of, or arising from, .a sale .of the laud purchased by the bank, made to him by the said Hunter, on or .about the 23d-of March, 1838. On the day o.f sale, Hunter executed in favor of Gray, ■a deed, subrogating the said .Gray to all his rights and actions of warranty .against the defendants. Subsequently Gray subrogated the plaintiff to all his rights .of action-against Hunter and his vendors.

The defendantsexcepted to .the plaintiff’s action on the ground, that his vendee, Hunter, had no cause of action against them until he was himself injured ■b.y eviction, and .could not assign a right which he had not. They further alleged -that‘there had been a judgment in their favor-on that point in another suit, -which was res judicata between them and .the plaintiff.

We are of opinion that this exception was properly overruled. The main action never went to trial in the case of Gray v. Hunter, and the decree was nothing more than a judgment of non-suit. When the plaintiff failed to appear Hunter could not proceed with the suit, .and orders previously made have not against him the force of the thing adjudged. We see no legal objection to the subrogations under which the plaintiff claims ; they promote the ends of justice, and tend to prevent.a multiplicity of suits. We are not .prepared to sn,y that there was no privity between William L. Gray and P. J. Hunter, by virtue of which the defendants might be reached. Creditors can exercise ail the rights and actions of their debtors, except those reserved in articles 1986 and 1987 of the Civil Code. The .reservation does not embrace.actions of warranty.

The defence on the merits cannot avail the defendant Harriet Kitchen. Tile act of 1824, authorising parish judges to grant orders of seizure in certain cases, does not appear to have been repealed for the parish of Rapides; and the fact that the order issued for oue year’s interest too much, cannot affect the validity of the sale. The defendants’ counsel expressly admit in their brief, that the land was bought by the Canal Bank. It is so stated in the sheriff’s return on the writ, and the agent of the bank swears that the bank now holds it, by virtue of that purchase. Under that evidence, we must take that fact as true, without regal'd to the mode in which the adjudication was made. The act of mortgage under which the eviction took place containing the pact de non alienando, the possessor was not necessarily apprised of the seizure, and.could not be required to give notice of it to the defendants; if he had done so, the defence which warrantors can make against an action of mortgage is not such as would in any case release them from the waranty. Civil Code, art 2494. Carter v. Caldwell, 15 La. 472.

The defendants have asked that if judgment be rendered against either of them, they may he authorised to satisfy it by returning the land. It is proved that William L. Gray has ceased to occupy the land, since the adjudication to the Canal Bank. The eviction is .complete, and the rights of the parties are .fixed. Had the land been tendered to the plaintiff, we eould not couapel him to accept it. But it is proved to be still the property of tho bank, and the application of the defendants has nothing to rest upon. William L. Gray has •been evicted, and, under the decision in Carter v. Caldwell, which we believe to be correct, his assingnor is entitled to recover any portion of the price which Gray had paid at the time of the eviction.

Tho act of sale from Hunter to Gray establishes the fact that the latter paid S3,258, cash; nothing in the record shows the balance of the price to have been paid, and no damages are proved, except those due in the shape of interest on the price since the eviction.

The defendant, Harriet Kitchen,.alone purchased the land from P. M. Cuny; her husband had no title to it, and could convey none; he joined in the act of sale to Hunter to authorise his wife, and the judgment should have been rendered against the wife alone. We.are of opinion that she is entitled to the judgment claimed against her vendor, Philip M. Cuny.

It is ordered that the judgment in .this case be reversed; and that there be judgment in favor of the plaintiff against the defendant, Harriet Kitchen, wife of Ccesar J. Cuny, for the sum of S3,258, with legal interest from the 6th day of August, 1842, till paid, and costs in both courts. It is -further ordered that Harriet Kitchen recover from Philip M. Cuny the sum of '353,258, with legal interest from the 6th day of August, 1842, till paid, and .costs in both courts. It isfurther ordered that there be judgmentin favor of Casar J. Cuny.


author: Kino, J.

text:
    Weathersby v. Huddleston et ux.
    Where a party is required to answer interrogatories in open court, a day must be appointed for that purpose, and he must be notified thereof unless present at the trial or when the order was made, or, in case of failure to answer, he cannot be -considered in default, nor can the interrogatories be taken for confessed. C. P. 351.

      A clerical error, in the name of a plaintiff, in whose favor judgment was rendered in an inferior court, may.be corrected on appeal.
    APPEAL from tho District Court of Rapides, Cushman, J.

      Leckie and Elgee, for the plaintiff. O. N. Ogden, for the appellants.
   The judgment of tho court was pronounced by

Kino, J.

The defendants, who are husband .and wife, are sued as the joint and several makers of a promissory note. The plaintiff annexed to 'his petition interrogatories, addressed to the wife, the object of which was to elicit from ‘her an acknowledgment of her signature, and that the consideration of the note was a separate debt due by herself. The prayer was that the interrogatories should be answered in open court, and, on motion of plaintiff’s counsel, a day was appointed by the court for that purpose; but of the time fixed she .received no notice. The interrogatories not having been answered on the day named were taken as confessed. A judgment was rendered against both of-the defendants insólido, from which they have appealed.

When a party is required to answer interrogatories in open court, unless he be present at the trial or when the order is made, a day must be appointed for him to appear, and of that day'he must be notified,'before he can be considered in default, and the facts unanswered be deemed confessed. A different rule would expose parties to surprise, more particularly in cases when no appearance has been made, as occurred in the present instance. C. P. art 351. 2 La. 73. 7 La. 335. 10 La. 416. Spears v. Nugent, ante p. 11.

No other testimony was offered in support of the claim against P. Huddleston, the wife. As to her, the judgment must’be reversed; and on the authority of the case of Fink, Executor, v. Martin, 1 Ann. Rep. 117, we will not render a judgment of non-suit, but remand the cause for further proceedings. The demand against Isaac Huddleston is fully proved; but it is objected that the-name in-which the plaintiff sues is George M. Weathersby, and that the judgment is rendered in favor of John M. Weathersby. This is clearly a clerical error, which may be corrected in this court.

It istherefore ordered that-the judment of the District Court, as far as re-relates to the defendant, Polly Huddleston, be reversed, and that the cause, as to her, be remanded for further proceedings according to law. It is further ordered that, as regards Isaac Huddleston, said judgment be amended by rendering the same in favor of George M. 1%eathersby instead of John M. Weathersby; and, in other respects, that said judgment be affirmed ; the plaintiff paying the costs of this appeal.