author: SniDEim, J.

text:
    Jones v. Elliott.
    The transfer of the title to a promissory note is not restricted to the form of an endorsement» It may be assigned by a separate instrument; and the assignee may sue in his own name.
    Where a note described in a notarial act of assignment corresponds in date, amount, parties, rate of interest, maturity, and in all other respects with the note sued on, with the single exception that the note described in the notarial act is stated therein to be secured by mortgage while the note held by plaintiff is not paraphed, the Want of a paraph will not be considered inconsistent with the identity of the notes.
    Article 3347 G. C. which directs that “ every notary before whom an act shall have been made* by which notes to order have been given for the payment of a debt bearing a privilege or mortgage, shall attest each of the notes by putting his name on them, mentioning the daté of the actfrom which the privilege or mortgage is derived, under the penalty of damages,” is merely directory to the notary. Th & paraph is not essential to the existence of the mortgage; the identity of the note may be established by evidence aliunde. The correspondence of date, amount, parties, rate of interest, and maturity, coupled with the possession of the note, raises a presumption of identity, throwing upon the defendant the burden of showing the existence of another note of like description made by himself, the mortgagor referred to in the act of assignment.
    from the. District Court of Jefferson, Clarke,, J.

      Michel, for the appellant.

      F. B. Conrad, for the defendant.
   The of the court (King, absent,) was pronounced by

SniDEim, J.

There is perhaps some looseness in the clerk’s certificate of the transcript,, but it is aided by the statement of facts made at the trial; and we see no reason to doubt that the transcript presents all the evidence upon which the cause was tried.

Phelps is the payee of the note, upon which this suit is brought against Elli~ ott, the maker,. The transfer of the title to a promissory note is not restricted to the form of an endorsement merely. It may be assigned by an independent instrument. In a court of common law the mere assignee of a negotiable instrument, not endorsed by the payee, would not be permitted to sue in his own name; ' but a court of equity would aid the assignee in its collection, and certainly there is no objection under our system to the assignee suing in his own name. See Hughes v. Harrison, 2 La. 92.

The defendant has not shown any equitable defence, which could have been maintained against the payee, were he plaintiff in the cause.

The district judge was not satisfied with the evidence adduced to show the ownership of the note. In this opinion we do not concur. The plaintiff relies upon a notarial act of assignment of a promissory note which corresponds, as therein described, in date, amount, parties, rate of interest, maturity, and, in all other respects, with the note held by the plaintiff, with the single exception that the note described in the notarial act is said therein to be secured by mortgage of certain land, according to an act mortgage which is referred to. The defendant contends that the note contemplated by the transfer cannot be the same note held by the plaintiff, because this note exhibits no notarial paraph. He refers to the 3347th article of the Code, which directs that every notary before whom an act shall have been made, by which notes to order have been given in payment óf a debt bearing a privilege or mortgage, shall attest each of the notes by putting his name on them, mentioning the date of the act from which the privilege or mortgage is derived, under the penalty of damages. This article is directory to the notary; and th & paraph is not essential to the existence of the mortgage. Hence when the mortgagee desires to enforce his mortgage, he will be permitted to establish the identity by evidence aliunde. See Succession of Johnson, 3 Rob. 217. It is obvious therefore, that the absence of the paraph in the present case is not inconsistent with the identity of the note which the plaintiff holds, with that contemplated in the notarial assignment. Then the only question is, whether 'the presumption of identity arising from the correspondence of date, amount, parties, rate of interest and.maturity, is to be disregarded and treated as-,,a weak and unsatisfactory presumption, solely because the note before us bears no paraph, and that described in the notarial transfer .was a note for which a mortgage was therein said to have been given. We think it should-not bé so treated; but that, on the contrary, the evidence, coupled'with the possession of the note,'raisés a presumption of identity, which may, in the language of the Code, be characterized as grave, precise, etconcordantef’ justifying a reasonable conviction, and throwing upon the defendant the burden of showing the existence of another nofe'of like description, having been actually given by himself, the mortgagórareferred to in the act of assignment. ' '

It is very certain that, 'Phelps would never be permitted to.recover from the defendant upon this note, even if he could hereafter jprove, which we have no reason to believe he could .do, that if was not the. note assigned to the plaintiff, and 'that the plaintiff 'got possession of it wrongfully, unless, at least, he could' also 'show that Elliott had in his power the means óf disproving the presumption of identity created by the act of transfer, and neglected to use them.' It would b6 'prima facie a sufficient answer to him to say, he had put into the hands of the present plaintiff an instrument describing the note transferred in such terms as to justify the convictio'n that it was the note now in question,'.and that if the note really transferred bore a notarial paraph it was his own fault that he did not say so in the assignment.

It is proper to observe that, the defendant does not state in his answer, nor even directly assert in arguni'ent, that he had giv.eh Phelps, another note of like tenor with this. It is also to be observed that'the'plaintiff simply asks a personal judgment against Elliott, and does hot ask, in this suit, to enforce the mortgage. 1

It is therefore decreed, ’that the judgment of the court below be reversed, and that the plaintiff recovekof the defendant the sum of $458 .92, with interest thereon from the 6th December, 1841, until paid, and the costs of this suit in the court below and those of the appeal. " 1. ' .


source: Caselaw Access Project

author: Sumí,, J.

license: Public Domain

text:
    Hill v. Noe.
    Eees paid to counsel for prosecuting an injunction’ against an illegal order of seizure and sale cannot be recovered by the plaintiff against tile defendant, where the injunction is maintained. ■ j
    APPEAL, by the defendant, from a judgment of'tlie District Court of Jefferson, Clarice, J., maintaining1’an' injunction taken out against an order of seizure illegally issued.

      Brewer, for the plaintiff.

      Marks, and Iliestand, for the appellant'.
   The judgment of the court (King, J.'absent,) was pronounced by

Sumí,, J.

The order of seizure and Bale upon which the various writs issued was irregular. Hill was dead when the suit was instituted; yet he was named as the defendant in the cause. The pluries writ was objectionable on the additional ground that, when it issued the decree enjoining Not stood unreversed.

The only change which the judgment requires is, as to the allowance of $150 as damages for the expense incurred by the plaintiff, for professional services in prosecuting this suit. See Smith v. Bradford, 17 La. 266.

It is, therefore, decreed that the judgment of the District court be amended, by striking therefrom the allowance of $150; and that, in other respects, the •judgment be affirmed; the costs of the appeal to be paid by the succession;


author: Rost, J.

text:
    Jobert et al. v. Pitot, Executor &c.
    íhe testimony of witnesses is admissible to prove that a person, alleged to be the mother of á child, presented the 'child to the priest for baptism and declared herself to be its mother, though the certificates of birth and baptism of the child had been previously offered in evidence; by the same party, tp prove the same facts.
    The acknowledgment of an illegitimate child, which the law requires to be made before a no; tary in the presence of two witnesses, when not made in the registry of birth or baptism, is that of the father. Illegitimate children may prove their natural maternal descent, and the acknowledgment of their mother, by any legal evidence. C. C. 221, 230.
    In an action by the father and sister of a testatrix against her executor, to annul atestamentby which an acknowledgednatural child was made heruniversal legatee, letters of the testatrix are inadmissible, where the father had remained unknown, to show that the instituted heir was an adulterous bastard child. Natural paternal descent could not be proved against the heir in such an action. Per Cúriark: We do not mean to say that the acknowledgment oi the mother is an absolute title against her legitimate heirs; but, as she ivas free, they can only oppose to it that it is false, or made in fraud of their rights.
    The heirs of the father and mother will not be allowed to prove that a child; acknowledged by a father who was free, was an adulterous bastard on the side of its mother, who had remained unknown. This is equally true; where the mother lias acknowledged the illegitimate child, and the lather is unknown.
    from the Fifth District Court of New Orleans, Buchanan, J;

      Blache, for the appellants.

      Denis, for the defendant.
   The of ihe court (King, J. absent,) Was pronounced by

Rost, J.

This action is brought by the father and sister of Marie Adeline Joherti deceased—one as forced heir, the other as heir at law—to set aside her will, 'on the ground that the universal legatee therein named, is the adulterous bastard child of the testatrix on the side of his father, and as such incapable of taking by will any thing more than alimony, and such a sum as may be necessary to instruct him in a profession or trade. There was judgment in favor of the defendant, and the plaintiffs have appealed;

Oil the trial below, the defendant’s counsel having introduced in evidfeh'cé Ihe tertificates of birth and of baptism of the instituted heir, representing him to be the son of the testatrix and of a father unknown, further Offered a witness to prove that the testatrix was present at the baptismal ceremony, that she present-fed the child to the priest, declared herself to be the mother of it, and held it in her arms during the ceremony. The plaintiffs opposed the introduction of this testimony, on the ground that no parol evidence could bo received against of beyond wliat is contained in the acts of birth and baptism, and that it was also inadmissible to prove the acknowledgment of the child by his mother. These objections were overruled, and the plaintiffs excepted to the opinion of the court.

We are of opinion that the evidence was properly admitted. The acknowledgment of an illegitimate child, which the law requires to be executed before a notary in presence of two witnesses, when it has not been made in the acts of birth or baptism, is that of the father. Illegitimate children may prove their natural maternal descent, and the acknowledgment of their mother, by any legal evidence. C. C. 221, 230.

The plaintiffs’ counsel then offered in evidence letters alleged to have been written by the testatrix, whose hand writing and signature thereto they, at the same time, offered to prove, in order to show that the instituted heir is the adulterous bastard child of the deceased, in the manner alleged in the petition. The counsel for the defendant objected to the introduction of this evidence, on the ground that natural paternal descent could not be proved against him in this suit, and tiie court, having sustained the objection, the plaintiffs took a bill of exceptions.

.At the time of the conception and birth of the legatee, his mother was free, and it is proved that ho has been acknowledged by her. The plaintiffs, as heirs of the mother, seek, as already stated, to annul her will in his favor, on the ground that, at the time of his conception and birth, his father, who has heretofore remained unknown, was a married man.

This case materially differs from those of Jung v. Doriocourt, 4 La. 175, and Robinet v. Verdun, 14 La. 542. In both of these cases the legatees were children of color,, and the plaintiffs claimed as heirs of the father, who was a white man. Had the claims been made by the legal heirs of the mother, as in this ease, we presume the decisions would have been otherwise. We do not mean to say that the acknowledgement of the mother is an absolute title against her le - gitimate heirs. But as she was free, they can only oppose to it that it is false, or made in fraud of their rights. They cannot be permitted to attenuate its force, or to change its results, by going into a scandalous inquiry of matters enpais, not personal to the testatrix. “ Les héritiers du páre et de la mére peuvent combatiré la reconnaissance, á l’ouverture de leur succession. Mais ils ne pourronS demander á prouver qu’un enfant reconnu par un pére libre est adultérin, du cóté desamére, restée inconnue.” 2Toullier, no. 966. This proposition appear-» to us equally true when the mother has acknowledged the illegitimate child, and the father is unknown.

We conclude, therefore,, that the evidence offered was properly rejected by the court.

The testatrix having left no legitimate descendants, her natural child could acquire from her by donation mortis causa the whole amount of her succession and the act of her last will being in due form, our judgment must be in his favor. C-C. 1471. Judgment affirmed.


author: Edstis, C. J.

text:
    Crane v. McGrew.

      An order, by which a- rule taken against a sheriff by the plaintiff in an action is' made absosolute,- holding the sheriff to be personally liable to fee plaintiff for any judgment thstl
      may be rendered therein, in the same maimer as certain sureties, taken by him in a bond on which property was released, would have b,een liable, had they been found good and sufficient's not a final judgment, nor one from which an appeal canbe taken by the sheriff.
    from the Fourth District Court of New Orleans, Strawbridgé, J.

      J. N. Lea, for the plaintiff.

      T. R. Wolfe, for the defendant.

      R. Hunt, for the sheriff, appellant.
   The judgment of the court (King, J. absent,) was pronounced by

Edstis, C. J.

John L. Lewis, who is the sheriff of the parish of Orleans, took an appeal from an order of the Fourth District Court of New Orleans, by which a rule taken against him by the plaintiff in this suit was made absolute, holding him, the said sheriff, to be personally liable to the plaintiff in this suit, for any judgment that might be rendered therein, in the same manner as certain sureties, taken by said sheriff in a bond on which property was released, would have been liable, had they been found good and sufficient. We are of opinion that this is not a final judgment, nor one from which, according to the uniform -decisions of this court, an appeal can be taken.

Appeal dismissed.


author: Eustis, C. J.

text:
    Conrey v. Copland.
    Art. 1987 C. C. is repealed by art. 647 C. P., so far as they are inconsistent with each other.
    The word office, in arts. 1987 C. C. and 647 C. P., means a public office. The commissioners appointed under the stat. of 14 March, 1842, providing for the liquidation of banks, are not public officers.
    An amount due to a commissioner, appointed to liquidate a bank under the stat. of 14 March, 1842, for arrears of salary, will be extinguished by compensation, where the hank was a judgment creditor of the commissioner for an equal amount.
    from the Fifth District Court of New Orleans, B.uchanan, J. This proceeding was instituted by Conrey, as the purchaser of the assetts of the Merchants’ Bank.

      Lockett and Goold, for the plaintiff.

      Hamner, for the appellant.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This is an appeal taken by Robert Copland, the defendant, from a judgment of the Fifth District Court of New Orleans, by which a debt of f1,166 66, due the appellant, being the balance of his salary as one of the commissioners of the late Merchants’ Bank, which had been allowed on a tableau of distribution as a privileged debt, was held to be partially extinguished by the amount of two judgments rendered in favor of the commissioners of the Merchants’ Bank against said Copland.

It is contended by the counsel for the appellant that the compensation between these debts cannot take place, the debt due to Copland being the salary of an office, and as such not liable to the payment of debts. Art. 647 of the Code of Practice provides that, “if the debtor has neither moveables, nor slaves, nor immovable property, the sheriff may seize the .rights and credits which belong to him, and all sums of money which may be due 'to him, in whatsoever right, unless it be for alimony or salaries of office.”

Art. 1987 of the Civil Code considers money due for the salary of an office (emploi public), wages or recompense for personal services, as not liable to the payment of debts. But this article of the Code of Practice (647) has been held to repeal this part of art. 1987 of the Code (Vance v. Lafferanderie, 4 Rob. 341); and we have only to consider whether the article of the Code of Practice exempts the appellant’s salary from the ordinary operation of mutually subsisting; debts.

Copland was one of the commissioners appointed under the act of 1842 for. tjhe' liquidation of insolvent brinks. He was appointed by the bank presidents..

It is evident that by the article, qf the Cjvil Code alluded to, the word office. meant a public office; the french text is conclusive as to its meaning. The ex-.. pressions salaries of office in the 647th article of the Code of Practice, do not change that sense, and the french text—“$alai,rqs d’office” is still more restrictive, and indicates a. public office, and. nothing else, hferlin, Rep. de Jurisp. verbo Office, Domat, Droit Public, liv. 2, tit. 1, sec. 1.

It is true, as contended by the counsel for the appellant, that, by the bank act of 1842, the. State undertook, by. the instrumentality of thq. commissioners ap-r pointed, to liquidate and settle the affairs of the insolvent banks, under the control, qf the courts. The direction in. that act that one commissioner should be appointed by the bank presidents and another by the stockholders of each bank, we do not consider as constituting the persons thus appointed public officers, withip the meaning of our laws and constitution.

Judgment affirmed,


text:
    Alling v. The Citizens’ Bank et al.
    Tlie decision in Bertoli v. Citizens’ Bank, 1 An. 119, that no sale, whether judicial, forced ojj voluntary, of property mortgaged to the Citizens’ B auk, can in any manner affect the rights ¡secured to that institution by the 24th section of its charter, applies to the esse of a sale made without the consent of the bank and lor a sum insufficient to satisfy their claim.
    frorp the Fifth District Court of New Orleans, Buchanan, J.

      J. and Ii. H. Strawbridge, for the plaintiff.

      Pitot, for the appellants.
   The, judgment of the court (Kigig, J. absent,) was pronounced by

Rost, J.

The plaintiff has enjoined an ordqr of seizure, obtained by the defendants on two mortgages subscribed by him in their favor.

The facts of this controversy axe identical vvith those of Bertoli against thq same defendants,, reported in 1 An. p. 119, with the single exception, that, in Bertoli’s case, the sale of the property mortgaged was made without the partipipation or knowledge of -the bank, yhife in this tjh.e bank authorized the syndic to sell, on condition that the purchaser should assume all, the obligations of the insolvent to them, and take the property subject to the stock mortgage. The Dis-, ijrict court considered that, although the defendants may not be bound by the proceedings in bankruptcy of their debtors, they may waive that privilege, and, being of opinion that; they had done so in this case anij.made themselves parties to the proceedings, perpetuated the injunction. The defendants have appealed.

The defendants authorized tho syndic of th,q, creditors of Donlin, the insolvent debtor, to sell the property piortgagqd to them, Qn condition that the purchaser should assume the stock mortgage and pay all sums actually due them. Aftei; tjhis authorization, Hoffman,. the legal a,dviser of the syndic, and one qf the Qommissioners of the bank, called upon the cashier, and presented to him a manuscript advertizement of the syndic’s sale, with a blank space left in it for the, insertion qf a description of the nature and amount of the obligations due the @i$zens’ Bank. rJ?he cashier inserted in, this blank, the description of a stock note of' $1,200, maturing on the 1st of May, 1847, and returned the advertizement, which was then duly published. After the legal delays, the property with h e stock upon it, was adjudicated to the plaintiff, for a sum more than sufficient to pay all the claims which the defendants really had upon it. The syndic, having raised all the mortgages on the property except the stock mortgages, executed the act of sale to the purchaser, and received the price in money and notes, including the stock note. This sale was passed by a notary, who was then the acting president of the board of the Citizens’ Bank, and the title papers of Donlin were delivered to him by the officers of the bank, for the purpose of eija-. bling him to pass it. Lesassier, the cashier, testifi es that about this time he sent to the syndic a memorandum of the cash indebtedness of Donlin, but cannot state whether he mentioned therein the nature of the indebtedness, and that it was secured by mortgage.

In due course of administration the syndic filed his tableau of distribution, on Which he placed the defendants as ordinary creditors for $1,698. After the usual advertisements, this tableau was homologated, without opposition from the defendants, and, under the order of court, the assetts in the hands of the syndic, with the exception of the last note furnished by the plaintiff, were paid over to¡ the creditors.

. The plaintiff, having subsequently called upon the defendants for a transfer of' the stock to him on their books, was met by the cashier with a demand for the. sum of $1,698, alleged to be due the bank and secured on the property sold by a, mortgage subsequent in date to the stock mortgage. This debt and mortgage'ap-. pearing to exist on the books of the bank, they declined to transfer the stock; and: on the refusal of th,e plaintiff to pay the sum claimed, took out against him for this amount, and for that of the stock note, the order of seizure which he has enjoined.

The reason given by the cashier why he did not mention the mortgage in the advertizement—because his understanding was that it should be paid in cash, and fhat the syndic was to pay the money to the bank, is quite unsatisfactory, and can in no manner benefit the defendants. It shows that the bank had joined in the proceedings of the other creditors, and looked to the syndic for payment. This arrangement as made, was perfectly legal; it enabled the defendants to collect, Without any expense or loss of time, what was due to them, and to obtain a solvent instead of an insolvent stockholder. It was faithfully carried into effect by the syndic, and a s\iffi,cioijt sum realized by the safe to satisfy their entire claim; that this sum was not tfms applied, is attributable exclusively to their negligence.. Their claim was not filed with the syndic as a mortgage claim, and they suffered the tableau to be homologated without making opposition, notwithstanding the. cashier’s declaration that he looked to the syodic for payment.

It is frue we said in the case of Bertoli,, that no sale, whether judicial, forced, or voluntary, of property mortgaged to the Citizens’ Bank,, can in any manner affect the rights .secured to that institution by the 24th section of their charter.. But this, of course applies to a sale made without the consent of the bank, and for a sum insufficient to satisfy their claim. Here the bank was a parly to the proceedings of the creditors. On the faith of their authorization thatthe property should be sold, the plaintiff purchased, and the price he paid, though more fhan sufficient to pay the bank debt, was lost to them through the negligence of fheir officers. It would be unjust to throw this loss upon an honest purchaser,, $nd diere is no warrant of law for doing so. Judgment affirmed^


author: Sudem,, J.

text:
    Harned v. Churchman et al.
    Where ths consignees of a vessel, who had had other transactions with the owner, malve advances to the captain, for services and supplies furnished to the vessel, for towage, pilot-age, custom-house charges, and furnish him with cash for other purposes not shown, and, though informed by the owner of his intention to sell the vessel, take a hill of exchange on him, drawn by the master at thirty days, for the amount, and permit the vessel to depart, they must be considered as having made the advances solely on the personal credit of the owner, and cannot claim any lien, or tacit hypothecation, for the amount advanced, on the vessel in the hands of the vendee of one who had purchased the vessel while on her voyage to the port to which she was consigned.
    To authorize the master to hypothecate a vessel by bottomry, it must appear that the advances were made for repairs, or supplies, necessary for the voyage or the safety of the vessel, and that the repairs or supplies could not have been procured onreasonable terms, nor with funds in the master’s control, nor upon the credit of the owner independent of the hypothecation. It is essential to the lawful exercise of this power that, no other means of procuring funds, at the place at which they were required, existed.
    The taking of a bill of exchange upon the owner of a vessel for advances made to the master, or for amounts due to material-men, or wages to seamen, is presumptive evidence that the credit is personal to the owner, and that any lien on the vessel is waived.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Baer, for the plaintiff,
    cited The Jerusalem, 2 Gallison, 347. The Aurora, 1 Wheaton, 96. 3 Kent, 132,169. C. C. 3204. Parish v. Crawford, Strange’s Rep. 1251.

      Bradford, for the appellant,
    relied on C. C. 2156, 2157. Grant v. Fiol, 17 La. 160. Agricultural Bank v. Barque Jane, 19 La. 9. Hill v. Phcenix Co., 2 Rob. 36. Hyde v. Calver, ante p. 9. Harper v. A new Brig, 1 Gilpin, 536. Abbott on Shipping, (ed. 1846), pp. 200, 202.
   The judgment of the court (King, I. absent,) was pronounced by

Sudem,, J.

This suit was brought by Harned, as the endorsee of a bill of exchange for $1210 20, payable at thirty days after date, drawn at Philadelphia, on the 19th February, 1848, by James Robertson, master of the barque Due d’Orleans, in favor of Heald, Buckner Co., for their disbursements on account of the vessel in the port of Philadelphia. It was drawn on Churchman of New Orleans, the former owner of the barque, and was accepted by him. The bill was protested at maturity, and, on die 24th March, 1848, this action was brought against the acceptor; and Woodruff, the present owner of the barque, upon which a lien is claimed, was made a defendant, The barque was sequestered. The plaintiff had judgment in the court below against Churchman, with a privilege on the barque. Woodruff has appealed.

The barque left New Orleans, her home port, about the 1st January, 1848, consigned by Churchman to Heald, Buckner Co. In a letter of the 3d January, he remarks, to them:—“I am arranging a bill of sale of the Due d’Orleans, and will forward that also.” The barque arrived at Philadelphia, on the 4th February, 1848, and left that port for New Orleans on the 19th. Part of her cargo was for the owner’s account, so that her freight list to Philadelphia produced only $443 95, which was collected by Heald, Buhner 8f Co., and carried by them to Churchman’s credit in account. They had had previous dealings; and the antecedent charges against Churchman seem to have been more than sufficient to absorb the freight money. The vessel, while at Philadelphia, incurred various expenses for services and supplies by carpenters, sail-makers and chandlers, for towage, pilotage, custom-house charges, &c; for the payment of these, and also in the form of cash advances to the captain (for what purpose, or upon what representation, does not upper,) Heald, Buckner 8¡- Co. disbursed a sum which amounted, with the customary commission and interest, to $1210 20 ; and for this amount the captain’s bill on Churchman was taken.

Churchman sold thebarque on the 11th, January, 1848, to De Coverly and others. The purchasers got out a new register, on the 18th March, 1848. They resold the barque at auction, on the 23d March, 1848, to the appellant.

It may be conceded, for the purpose of the present enquiry, that, by the transfer of the bill of exchange, the holder may be considered as equitably invested with any accessary rights which accompanied it in the hands of the payees, who made the advances in consideration of which it was drawn.

Looking to all the facts of this case, we think it has been properly said by the appellant’s counsel that, the money must be considered as having been advanced solely on the personal credit of the owner. He was the former correspondent of Heald, Buckner Sf Co. They were consignees of the vessel. They also were aware that he contemplated selling her. They permitted the vessel to depart, and took a bill of exchange at thirty days, on Churchman, payable in New1 Orleans, for the amount of the advances.

In a veiy extended examination of the authorities upon the maritime law, we have not met with a single case, where, under like circumstances, a tacit hypothecation of the vessel in favor of the consignee has been recognized. If we look to the doctrine of special hypothecation or bottomry, the well settled principles of the maritime law respecting the contract are pregnant with air implication against the plaintiff’s pretensions. The writers are unanimous in -a jealous restriction of tire captain’s power to hypothecate by bottomry. It must appear' that the advances wore made for repairs, or supplies, necessary for the voyage, or for the safety of the ship, and that the repair’s or supplies could not be procured on reasonable terms, or with funds within the master’s control, or upon the credit of the owner independent of the hypothecation. See Kent’s Com. p. 171.

Benecke, in speaking of bottomry, remarks: “It frequently occurs, that the master of a vessel is under the necessity of borrowing money abroad, for the purposes of the voyage. If this happens at a place where the owner of the vessel has friends or correspondents, the master applies to them first; and they usually furnish him with the money required, for which they draw bills, including commission and interest, either or the owner, or on such other house as he may direct. But if, either the correspondents refuse to advance the money,, or if it be wanted ata place where the master is not able to raise it upon bills, het is often reduced to the necessity of mortgaging, according to circumstances, either the vessel, or the vessel and caigo.” In Rucker Co., v. Conyngham, 2 Peters’ Ady. 302, Judge Peters observes: “ It is essential to the lawful exorcise of this power that, no other means of procuring funds at the place required, should exist. Of course, if the owners have agents or consignees, who have either funds or property to furnish, or are bound to afford means on the personal credit of the owners, this power in the captain is excluded.” Mr. Jacobson, citing the ordinance of Bilbao as his authority, says the master, if he requires money for the prosecution of the voyage which he cannot have advanced upon his average money, or obtain by bills upon his owners, is authorized' to lien the ship by bottomry. Laws of the Sea, p. 359.- IntheeaseoftheALZcxewiiZer, 1 Dodson, 279, Sir "William SgoW sustained abottomry bond given to the consignee of the cargo. saying that as they had no knowledge' of the owners of the ship, it must have been that they looked to the ship itself for their security. See also Holt on Shipping, vol. 1. 399. The Aurora, 1 Wheaton ,104. Smith’s Mercantile Law, 350:

The plaintiff’s counsel has cited Boulay Paty in support of the tacit hypothecation or privilege. The language of that author is: “Le privilege n’en compte pas moins an preteur, quoique l’acte de pret soit tout autre qui’un contrat á la grosse. Aujourd’hui le capitaine peut avoir recours a l’emprunt simple par lettre de change, ou autrement, pour subvenir aux necessités du navire.” Cours dé Droit Commercial Maritime. The case of the owners, consignees and correspondent is not mentioned by this writer as falling within the rule. But however that may be, it must be observed that he is commenting upon the special legislation of the french Code of Commerce, and that the privilege which it grants, is not recognized, without the observance, at the time of the loan, of formalities which seem to point to a contemplation of the credit of the vessel as well as that of the owner. See Code of Commerce, 191, 192, no. 5.

In looking into the english and american authorities we find that, the taking of a bill of exchange upon the owner is considered as creating a presumption that the credit is personal. Thus, in the case of a marihcr, whose claim is peculiarly favored in admiralty: a sailor having been offered his wages in money, elected to' take part thereof in a bill of exchange on the owner, who afterwards became a bankrupt, in consequence of which' the bill was dishonored. It was held that he was not entitled to arrest the ship for wages to the amount of such bill, on thé ground that, having made his election, ho must stand by the risk. The William Money, 2 Haggard, 136.

In Murray v. Lazarus, 1 Paine, 572, the cnsewas thus: Thevessel, bound from New Orleans to New York, put into Wilmington in a damaged state, -when the master; having no other means, obtained advances from the libellants for the-necessaiy repairs, and gave them a draft for the amount on his consignees, which was expressed to be for value received “ in disbursements and repairs of the brig Hannah.” It Was protested for non-acceptance; and, on a lib el against the freight in the hands of the consignees, it was held that, the taking of a draft Was a waiver of the lien, if any existed.

In the case of the brig Nestor, 2 Sumner, 87, Mi-. Justice Story remarked that the receipt by a material-man of the owner’s negotiable note, “is direct proof that credit is given to thé personal responsibility of the oWner, and presumptive proof that no credit is given to the ship; or, in other words, that there is a waiver of any lien on the ship. It cannot be ordinarily presumed that a ship owner, giving a negotiable note for supplies, intends, at the same time, that alien shall exist oh thes hip itself for the debt; for the lien might bé iri the hands of oné person, and the negotiable security in the hands of another. To bring the present casé within the reach of that decision it should be shown that, a promissory riégótiablé note of the master, or owner, had been taken by the libellant ”.

It is certainly very difficult to reconcile the opinion in thé fiase of thé Nestor, and that of Lord Stowel, in 2 Haggard, with the subsequent bpinion in the case of thé bark Chewson, 2 Story, 466. Blit, whatever be the weight of the later opinion, thé ease is distinguishable in this respect from the present, that there the materiaLmaii Was the libellant, and here the tacit hypothecation or privilege is claimed by thé bWner’s correspondent, the consignee of the vessel

It is the duty of courts, in all commercial nations, to extend the rulé of national gbmity to bottomry bonds, and sufch other maritime hypothecations as are recogni'zed by the general assent of the commercial world. But the publicpolicy of reftog* bizing implied hypothecations orliéns, asfollowing propertyfrom foreign countries-, may well be questioned. That is also a safe rule of our jurisprudence, which regards privileges as -stricti juris, and not to be extended to doubtful cases.

It is, therefore, decreed that the judgment of the court below, as to said Wood-ruff, be revei'sed, and and that there be judgment in his favor; and that the claim of privilege upon the said barque Due d’Orleans be rejected; the cost of the sequestration, of the proceedings against Woodruff, and of this appeal, to be paid by the plaintiff.


author: Si/Idell, J.

text:
    Bacchus v. Moreau.
    On an appeal fr&m a judgment in favor of two or more parties, a bond made payable to oné of the appellees txetaV\ will be good. The expression “etal .” must he considered as referring to all the other appellees*, and the bond will he available to all of them.
    Where one Of two appellees has not been cited, the judgment cannot he totiché'd, so far as hé is concerned; but the omission is no obstacle to the consideration of the case as to theparfcy cited, where the interests of the two are separate, and susceptible of being separately de1 termined.
    Where the vendor of a tract of land having one arpent and three-quarters front, received five-sevenths of the price in cash, and# for the balance, took a note of the purchaser, identified with the act of sale by tbe paraph of the notary, the act reciting that, “pour assurer le paiement dn ditbilletá son échéance, ainsi que de tous frails et inléréts, hypothéque spéciale esfc réservé seulement sur trois quarts d’ arpent du cote d'en haut de la dite propriety l’acquéreur s'obligeant dene les point aliéner, on liypothéquer, au préjudice des presentes,” the vendor’s privilege notbeing necessarily inconsistent with this clause, will be considered as retained upon the whole tract; nor can the enforcement of the mortgage, by an order of seizure snd sale, opérate as an implied renunciation df the privilege.
    The renunciation ot the vendor's privilege must be express; or result by cogent implication* A mere doubt Will not suffice to deprive a party of what the law presumes in his favon
    A mortgage and privilege may co-exist on the same thing. They are distinct rights, not exclusive of each other.
    Where a note is made payable two years after date, but the maker, on its face, “reserves to himself the right to postpone payment for five years,” and the latter makes no tender of payment at the end of two years; nor subsequently, hé mustbe considered as having availed himself of the reservation; and prescription will not begin to run against the payee until the expiration of the term of five years.
    Where the testimony as to a judicial sale is conflicting, it will he insufficient to destroy the legal presumption that the sherriif did his duty.
    An agreement made by the sheriff with a purchasei’, subsequently td the adjudication at a judicial sale; that the price should remain in the hands of the sheriff until a good and satisfactory title was given; and; in default thereof; that he Would return it, cannot invalidate the adjudication.
    from the District Court of Jefferson, Clarice, J.

      Graihle, for the appellant,
    cited C. C. 3153, 3216. 12 Bob. 279. C. P. 732, 733, 734,736# 737,744.
    Collens, for the defendant,
    cited 16 La. 109. 7 La. 91. The judgment of the court (King, J. absent,) was pronounced by
   Si/Idell, J.

The plaintiff had previously sold a portion of a tract of land# purchased from him by Moreau, under an order of seizure and sale granted lipón a mortgage of that portion. Afterwards, he obtained an order of seizure and sale# by virtue of the vendor’s privilege, upon the residue. After the second adjudication# which was made to Mrs Waggaman, he took a rule upon Cavhelie$ a mortgagee claiming under a mortgage inscribed after the inscription of the plaintiff’s sale to Moreau; upon Fische, the holder of a subsequent judicial mortgage; and upon the sheriff, to show cause why the subsequent mortgages should not be cancelled, a clear title given to Mrs. Waggaman and the proceeds of sale applied to the satisfaction of the plaintiff’s claim. The district judge dismised the rule, and the plaintiff has appealed.

Caubette has asked the dismissal of this appeal, on the ground that no bond was given in favor of the other parties to the proceeding, and that they have not been cited. The bond is given in favor of Caubette et al.” Under these expressions, which must be considered as referring to all the other parties in the cause, the bond would have been available to all the appellees, and cannot therefore be considered defective. But it does not appear that the other appellees have been cited. This will prevent us from touching the judgment, so far as Fische is conseerned; butisno obstacle to a consideration of the case as. to Caubette-, for the parties have separate interests, which are susceptible of being separately determined.

The principal question in this case is, whether in this act of sale by Bacchus to Moreau, the former is to be considered as having relinquished the vendor’s privilege. The sale was of a tract of land containing one arpent and three-quarters front, by forty in depth. The total price was $7000. The vendor acknowledges a cash payment of $5000 ; and for the residue Moreau gives his note for $2000, paraphed for the purpose of identifying it with the act. The description of the note is followed by a clause in these words : “Et pour assurer le paiement du dit billet a son échéance, ainsi que de tous frais et intéréts, hypothéque spéciale est réservé seulement sur trois quarts d’arpent du cóté d’én haut de la dite propriété; l’acquéreur promettant et s’obligeant de ne les point aliéner, ou hypothéquer, au préjudice des présentes.”

The appellee must concede that, if the act had contained no stipulation of mortgage, the vendor’s privilege, which results by operation of law, from the nature of the contract, and needs no express stipulation of the parties (C. C. 3153, 3216), would have extended to the entire tract. But it is said the language used is inconsistant with, and excludes the vendor’s privilege; that the vendor must be considered as having relinquished the privilege upon the entire tract, and contented himself with an encumbrance, for his security, upon the three-quarters of an arpent only.

As covenants oblige not only to what is expresed in them, but likewise to every thing which the nature of the covenant demands, and to all the consequences which the law gives to the obligation, it is obvious that the existence of the vendor’s privilege in tire present case is supported by a legal presumption, which throws the burden of proof on the party against whom it militates. Bonce probations aut prossumptione contraria fortiore enervata fuerit. On the other hand, it is equally true that a party may renounce what the law has established in his favor; but the intention to renounce a right implied by law should be clear. The renunciation should either'be express, or it should result by cogent implication. A mere doubt, would not suffice to deprive a party of the benefit of what the law presumes in his favor. Thus the law implies a lien in favor of the factor ; but he may renounce it either by an express stipulation to the contrary, or, impliedly, by assenting to a state of things inconsistent with the right to retain and enforce his lien.

Tho true test then of the rights of these parties is the consistency or inconsistency of the clause in question with the existence of the vendor’s privilege. If it is not necessarily inconsistent, the legal presumption must stand.

If the parties had reversed the order of the words used, and had said “amortgage only is reserved, ” there would have been strong reason to infer the relinquishment of the vendor’s privilege. It would seem inconsistent to claim a privilege, after agreeing that a mortgage orafo/shonld be taken as security for the debt. But as the contract is written, the word “settlement” is not only susceptible of being referred to the quantity proposed to be mortgaged, that is to say, to only three-quarters of an arpent of the whole tract sold, but such is the grammatical construction of the clause as written. We do not say that this construction meets the intention of the parties, beyond the possibility of a doubt. But, as already observed, the legal presumption in favor of the vendor cannot be overthrown, except by a cogent and clear implication.

It is unnessesary to enlarge further upon the subject of the vendor’s lien and its renunciation, which has been fully considered in the case of Boner v. Mahle. 3 An. 600. See also Citizen's Bank v. Cuny. 12 Rob. 297. If the vendor’s privilege on the whole tract was not renounced by taking a mortgage upon a portion of it, is obvious that the enforcement of that mortgage by an order of seizure and sale of that portion could not operate as an implied renunciation. The mortgage and the privilege are distinct rights. They may coexist. The one does not exclude the other; and the enforcement of the mortgage did not conflict with the privilege, which still subsisted upon the residue of the property sold.

The plea of prescription is clearly untenable. The note of $2000 was dated in 1841, and promised to pay two years after date, but with the following condition or reservation:—“I reserve to myself to postpone payment for five years from maturity.” As the promissor made no tender of payment at the end of the two years, or subsequently, he must be considered as having availed himself of this reservation in his favor. The creditor cannot be considered to have renounced his action; because if he had brought suit before the expiration of the stipulated term, he could not have sustained it. Quis enim incusare eos poterit, si hoc non fecerint, quod etsi maluerint, minime adimplere lege obviante valebant. Code, lib. 7, tit. 40. De annale exceptions.

The act of sale appears to have been properly recorded, so as to preserve the vendor’s privilege. The sheriff, after he sold the portion mortgaged under the order of seizure and sale upon the mortgage, was without authority to cancel the inscription of the vendor’s privilege as to the residue of the land. Indeed, properly considered, his certificate was an authorization to cancel certain “mortgages. ” It was silent as to the vendor’s privilege.

An objection is made to the validity of the sheriff’s sale, in consequence of the alleged circumstances of irregularity under which the adjudication was made by the sheriff. It appears that the recorder’s certificate was read by the sheriff, which, after reciting the inscription of the act of sale, stated that the “ mortgage above stipulated was cancelled and annulled. ” The sheriff and a by-stander have been examined as witnesses. The sheriff deposed that he read the entire certificate, and that no difficulty arose until after the adjudication was made. The other witness states that, after the certificate was read, and before the adjudication, he asked the sheriff whether the property was sold on the first privilege, or whether there were other mortgages having preference. That thereupon a conversation ensued between the plaintiff’s attorney and the sheriff, when tire sheriff stated that the terms of the sale would be, that the price of the adjudication should remain in tlie hands of the sheriff until a clear and perfect title should be given tct the purchaser. Waiving the consideration of the effect of such a conversation, if proved, upon a judicial sale, we think it sufficient to observe that the testimonyis conflicting, and therefore insufficient to destroy the legal presumption that the sheriff properly discharged his duty. The return of the sheriff does not show that any unusual announcementpre'oeded the adjudication; and his subsequent agreement with the purchaser that, the price should remain in the sheriff’s hands untilla good and satisfactory title was given, and, in default thereof, that he would return it, did not invalidate the adjudication.

In conclusion, we consider that the only party defendant to the rule who is before us, has shown no defence to the rule. As to the other parties to the rule, they are not before us; and, indeed, seem not to have been represented at the trial of the rule in the court below.

It is therefore decreed that, the judgment of the court below, so far as it determines the issues made between the said plaintiff and the said Pierre T. Caubetle, be reversed; that the adjudication, made on the second day of May, 1848, to Mrs, Waggaman, as appears by fije return of the sheriff of record in this cause, be maintained, as against the said Caubetle; that the said plaintiff be recognized as a creditor upon the proceeds of said adjudication, by privilege superior to the said Caubelte ; and that the costs of this appeal, and of the rule, as against said Cuw\etle in tffe court below, be paid by the said Caubetle.


author: SniDEtn, J.

text:
    Lesseps et ux v. The Architects’ Company of New Orleans.
    Though it be conceded that an incorporated company, not empowered by its charter to declare the forfeiture of the shares of stockholders who may be in default by the nonpayment of enstallments due for the price of stock, cannot enact, through its board of directors, a bylaw subjecting them to such a forfeiture, yet where, after the organization of such a company, a by-law is adopted at a meeting of the stockholders, declaring that the failure to pay any installment due for stock shall operate a forfeiture, in favor of the company, of the shares, on which such installments may be due and of all previous payments thereon, and the evidence shows that the by-law received the general acquiescence of the stockholders, a stockholder, whose stock had been declared forfeited under the by-law, and who, though not at. the meeting at which the by-law was adopted, is shown to have assented to it, and whose certificates of stock, signed, by the president and secretary, and offered in evidence by himself, acknowledging the payment of the first instalment, contain, at the bottom of each, a printed copy of the by-law, will not he allowed to recover from the company, on the winding up of its business, the amount paid on bis stock. Per Curiam: The acceptance of' the certificates in the form in which they were delivered, was a tacit acquiescence in, and submission to, the by-law; and it became the law between the party by whom it was. accepted and bis fellow-stockliolders. No rule pf law forbids the stockholders to form such a convention with each other; ft is not forbidden by the terms, of the charter, and cannot be held to he against public policy; and, although, the silence of the charter is a strong argument against tb.e implication of such a power as an incident to the administration of the corporation, it is no reason for frustrating the wishes and agreement of the stockholders themselves. Regarding the question as one of contract, the stockholder whose shares have been forfieted,bas no equitable claim for relief.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Remy and ¡¡¡ouU for the appellants,
    relied on the case of the Long Island pp. pp. jPeziis, lor the defendants, cited Angelí and Ames on Corporations, p, 267-, SO], 466. Brantv, Louisiana State Bank, 8 Mart. 310. Smith’s Mercantile Law, p. 83. C. C. 424. Noe v. Taylor, 13 La. 249.
   The judgment of the court ( King, J. absent,) was pronounced by

SniDEtn, J.

The plaintiffs were subscribers for sixty shares, of one hundred dollars each, in the stock of the Architects’ Company, and had paid four instalments. In 1834, being unable to meet a call of two-tenths, they applied to the board of directors for indulgence, and were allowed further time. At its expiration, they failed again to pay; and after a considerable interval, they still remaining in default, their stock was declared to be forfeited at a general meeting of the stock-holders. The company, ceased its operations in 1836, and went into liquidations. After reducing the assets to cash, the stock-holders were enabled to realize their capital, and a small excess of about six per cent. The stock-holders, although they have got back their capital and this small excess, are still virtually large losers, when we taire into consideration the loss of interest upon the investment of many years. The plaintiffs were excluded from a participation in the distribution of the assets, and brought the present action, in 1847. They alleged no tender of the unpaid instalments, at any time since the declaration of the forfeiture. The defendants pleaded the forfeiture, insisted upon its legality, and also prayed that, if the declaration of forfeiture be considered illegal, it might be judicially pronounced, and judgment rendered for the defendants.

The charter of the company does not contain the grant of power, not uncommon in charters, and which is found in several granted by this Staté, namely, that of declaring the forfeiture of the shares of a defaulting stock-holder. It may be conceded that an incorporated company has not the power to create, through its board of directors, a by-law subj ecting stock-holders to such a forfeiture, unless the power to pass such by-law be expressly granted by the charter. See the Matter of the Long Island Rail Road Company, 19 Wendell, 37. But, in our opinion, the question presented here is one of contract, and not of corporate power under the charter. After the organization of this company a meeting of stock-holders was held, and by-laws were adopted, of which one was in these words: “Tout actionnaire qui manquera d’effectuer son paiement sur une ou plusieurs actions, perdra, au profit de la compagnie, tous les paiemens qu’il aura deja fait sur les dites actions ”. The plaintiffs do not appear to have been present at the meeting; but it is obvious from the evidence that, the by-law or rule received the general acquiesence of the stock-holders, and, among them, that of the plaintiffs. The very certificates of stock offered in evidence by the plaintiffs, show the terms upon which they embarked their money in the common undertaking. The certificates are in a printed form, filled up with tire names of the plaintiffs and the amount of shares, acknowledging payment of the first instalment, and signed by the president and secretary. At foot is printed the by-law above stated. The acceptance of the certificates in this form is a tacit acquiescence in, and submission to, the by-law; and became the law between the plaintiffs and their fellow stock-holders. When the plaintiffs adressed a letter to the board, in 1834, asking indulgence, they expressly acknowledged the rights of the corporation to forfeit the stock,, and appealed only to the liberality of the directors.

We know of no rule of law which forbids stock-holders to form with each other a convention of this nature. It is not forbidden by the terms of the charter, and certainly cannot be held to be against publio policy. The necessity of prompt and punctual performance of this duty by stock-holders, in order to accomplish the corporate objects for which they have associated, had suggested the specific; grant of power to boards of directors which is found in so many charters; and» although the silence of the law-giver in a jrarticular charter, is a strong argument against the implication of such a power as an incident to the administration of the corporation, it is no reason for frustrating the wishes and agreement of the stockholders themselves.

Regarding this question then as one of contract, have the plaintiffs presented an equitable claim for relief. They have clearly assented to the agreement, in common with their fellow-stockholders, that they would lose, for the benefit of the rest, all instalments paid, in case of failure to pay any future instalment. This agreement was framed with a prudent view to the success of the common enterprize, that so the corporation might be enabled to accomplish the purposes of its charter, and shelter itself from sacrifices, in case of emergency, by the prompt obedience of its members to a call for funds. The other stockholders did their duty ; the plaintiffs failed to perform theirs, were confessedly in default, and, after a lapse of several years, without a tender of performance at any period of this long interval, ask to bo placed upon an equal footing with their associates in the distribution of assets, which, but for the punctuality of those associates, might now have no existence. If there be a power in the court to relieve a parly, under such circumstances, from a penalty for his default, stipulated by himself, it is at most a power resting in the sound discretion of the court, and not to be exercised unless the penalty appear excessive, and the court have also the means of decreeing a just compensation for the breach.

. We are of opinion that the present case is not one in which we could relieve the plaintiffs, with the certainty that we would not be doing injustice to the punctual stockholders. The penalty, in reference to the nature and object of the contract, does not' appear to us excessive or unjust; and the plaintiffs are therefore left to those consequences of their own default, to which they agreed to submit themselves.

It is therefore decreed that, the judgment of the court below be reversed, and that there be judgment in favor of the defendants, .with costs in both courts.


text:
    Layton et al. v. Chalon et ux.
    Where one, who had sold a tract of land in another State, with a warranty of title, by an act regularly recorded according to the laws of that State, acting under the impression that the sale did not convey the legal title, and with a view to defraud his vendee, sells the same land to a third person, who takes possession of it; but, by the lexrei sii<e, the original vendee could not have been evicted in an action by such third person, and his intrusion on the land, being a trespass which the original vendee might have prevented, giving him no claim against his vendor under his warranty, and there being no evidence of any damage to the first vendee by the acts of his vendor to which any definite value could be fixed, the first vendee cannot recover against his vendor either the value of the land, or damages for involving him in litigation by his fraud.
    A member of the bar of a State in which the common law prevails may be examined as a witness, to prove whether a party, under the circumstances of his case, could recover in any action in that State.
    from the First District Court of New Orleans, McHenry, J.

      Preston, for the plaintiffs,
    relied on art. 2294, C. C.

      Schmidt, for the appellants.
    To maintain this action, plaintiffs must establish: 1st. That they have been evicted, from land sold to them, by the defendants, or by those' whose title defendants are bound to warrant. C. C. 2476, 2478, 2493, 2494, 2495. Murray v. Bacon, 7 Mart. N. S. 272. Kempv. Kemp, 2 La. 244. Bessy v. Pintado, 3 La. 490. Keene v. Ciarle, 8 La. 117. Bonnabel v. First Municipality, 3 An. 699: 2d. The quantity of the land sold, of which they have been evicted, and its value. C. C. 2490, 2535 to 2538: 3d. That plaintiffs had, previous to the commencement of suit, been put in default as to the warranty of title. C. C. 2493, 2494. Not one of these requisites to maintain then-action has been proved. Again, warrantors are not liable for the tortious acts of third persons. If plaintiffs have been evicted, it has been by a tort. See FIopleins v. Van Wiclele, 2 An. 143, as to the applicability of art. 2294 C. C.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

The defendants, Chalón and wife, by public act, before Carlile Pollock, a notary public in New Orleans, dated the 1st of December, 1819, sold to George Sheriff, a tract of land situated on Pearl river, in the State of Mississippi. The tract was composed of forty arpents front, by forty in depth, was called Cabanage Latanier; and, on the 25th of January, 1827, Sheriff sold the upper half of the tract, consisting of twenty arpents by forty in width, to Robert Layton, deceased. This sale was made by deed, and both instruments appear to have been recorded in the county of Hancock, where the land was situated.

The heirs of Robert Layton, who are the plaintiffs in the present suit, complain that Chalón and wife, notwithstanding this sale of the land to Sheriff, in 1819, again sold the land, on the 15th of June, 1847, to David R. Wingate. The allegation is that, Chalón and wife, having been advised by Wingate that the notarial act in favor of Sheriff did not transfer to him the legal title, and combining with said Wingate to defraud the heirs of Layton, conveyed the whole of the tract to him by deed duly acknowledged and recorded; that Wingate took possession under said deed, and holds the part conveyed from Sheriff to Layton.

The defendants sold to Sheriff under a warranty of title, and Sheriff warranted his title in his deed to Layton. The executor of Layton, on Wingate’s alleged possession of the land, applied to the sole legatee of Sheriff, who had died in the mean time, to defend the title; but she, having no property, could only transfer to the plaintiffs her right of warranty against Chalón and wife, which purports to have been done by deed, of date the 19th of October, 1848. On these facts the plaintiffs have brought their action against the defendants, claiming, in the right of Sheriff, by reason of the breach of warranty, the value of the land, and damages to the further amount of $5000 for involving the plaintiffs in litigation by their frauds &c. The plaintiffs recovered judgment for $514 50, as being the value of eight hundred arpents at seventy-five cents an acre, and the defendants have appealed. The plaintiffs have also asked that the judgment of the District court be amended, by rendering the defendants liable for the amount paid by Layton for the land, and exemplary damages.

The plaintiffs principally rely upon the testimony of Mr. Henderson, a gentleman of the bar, who has been extensively engaged in practice in Mississippi. We infer from his testimony that, Layton’s heirs could not have been evicted on Wingate’s title, in an action of ejectment, the only remedy resorted to at common law, in that State, for trying the title to land. The possession of Sheñff would have been available to Layton’s heirs, and the action would have been barred by lapse of time. In a court of equity, Wingate’s claims, founded on a fraud, as the plaintiffs themselves have alleged, would not have been heeded. McGill v. McGill, ante p. 262.

However we may be disposed to censure the defendants conduct in making the conveyance to Wingates we are at la loss to discover any ground upon which we can make them liable to the plaintiffs. No eviction could have been legally cauS®d by the conveyance to Wingate. Plis intrusion on the land was a trespass, which the heirs of Layton could have prevented, and which gives them no claim against their vendor, under his warranty. Cockerell v. Smith, 1 An. 1. 2 Pothier, Conj ti'at de Vente, § 93. Hopkins v. Van Wickle, 2 An. 143.

And if we consider the plaintiffs as having a direct recourse in warranty against the defendants, the title Which Wingate obtained from them, affording no warrant for disturbing the possession of the plaintiffs, and his intrusion on a part of the land being unlawful aud without the sanction of any judicial authority, their claim under the warranty is equally unsupported. There is no evidence of any damage caused to the plaintiffs by the acts of the defendants, to which any definite value can be fixed.

It is therefore ordered, that the judgment of the District court be reversed, and judgment rendered against the plaintiffs, as in case of non-suit, with costs in both courts.


text:
    Crane v. Lewis, Sheriff
    An attachinent will lie, in an action "by fclie purchaser against the vendor; of a Slave, alleged to have absconded from the plaintiff and to have returned to the vendor; who harbored him and refused to give him up, to recover the value of the slave, and of his services during' his detention, and damages for expenses incurred on demanding him and for counsel fees. Per Curiam: The retention of the slave was a violation of the contract of sale; and the responsibility thereby incurred is not diminished or destroyed by an outrage, perhaps a; crime, being added to it.
    Where a rule has been made absolute against a sheriff, in consequence Of the insufficiency of the surety on a bond given for tho release of property attached, adjudging him to be bound to the plaintiff in the same manner as the surety was bound, an action willlie against him on the return of a ft. fa. against the principal unsatisfied.
    from the Fomth District Court of New Orleans, Strawbridge, J.

      J. N. Lea, for the plaintiff.

      JR. Hunt and Chymes, for the defendant, appellant.

      JMJarr, for the appellant, Wright.

   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

On. the 13th of March, 1848, Henry Crane, residing in the city of New Orleans, brought a suit by attachment in the Fourth District court of New Orleans against J. C. McGrew, a resident of the State of Alabama. Under the writ of attachment, the sheriff seized certain negroes belonging to McGrew, which were delivered to him, on the execution of a bond to the sheriff by McGrew, with Rhodes, Wright S¡- Co., as his sureties. On the 14th of June, 1848, the plaintiff obtained judgment against the said McGrew for the sum of one thousand and twenty dollars, with interest from date, and a fi. fa. having been issued on this judgment, Was returned “no property found.” The present suit is brought against John L. Lewis, the sheriff of the parish of Orleans, to malee him liable to pay said judgment, with costs, on the ground that the sureties taken by him on the bond as aforesaid were not solvent and sufficient, and that the plaintiff objected to the said sureties beingreceived, and caused a rule to be' taken, as the law provides, against him, the said sheriff, on which he the said sheriff was adjudged tobe bound to him, the said plaintiff, in the same manner ad feé said surety Would have been bound. There was judgment in tlio District 'court against the sheriff, and he has appealed.

On the part of this appellant, it is assigned for error: 1st. That the attachment, under which the bond set forth in the record was taken, was illegally and ■improperly issued, in a case where by law no such writ or process could issue', ^nd that the said plaintiff was entitled to no benefit from said writ, and consequently to no benefit from the bond taken under it. 2d. That no such judgment 'as was pronounced by the Court against this appellant, on the rule taken by the •plaintiff, ought to have been rendered against him; because if the bond had been 'adjudged good and sufficient, the plaintiff would have no remedy upon it, and 'ought to have none against this appellant.

The point presented in argument, on which this assignment is founded, is, that the original action of Crane against McGrew was to recover damages for ‘a tort, and that no attachment could legally issue in such a case, under the decision of this court in the cases of Prewitt v. Carmichael, 2d Annual, 943, Swagar v. Pierce, 3 An. 435, and Holmes v. Barclay, ante, p. 63.

It therefore becomes necessary to consider the nature of the action originally instituted by Crane against McGrew. The plaintiff alledged that McGrew was indebted to him in the sum §1200, for that the said McGrew, by his attorney in fact, Robert Anderéon Harris, on the 6th of July, 1846, sold to him, the plaintiff, ■a certain slave, named Neio, aged about 24 years, for the sum of §550, the receipt of which was acknowledged. That said slave, in the month of November; 1847, absconded and returned to his 'original master, who received, and has since harbored him, and has refused and'still refuses to deliver him up. That the petitioner went to the trouble and expense of travelling to the residence of said McGrew, in Alabama, in order to effect the restitution of his slave, but the defendant refused to deliver him up, and still retains him in his possession. For which reasons, the plaintiff charges that the defendant is indebted to him, not only ih the value of said slave, alleged to be $900, but for the hire of the slave, during the period of said detention, which the plaintiff estimates at $120; and also for his travelling expenses, loss of time, and counsel fees incident to the suit, all of which are special damages growing out of said unlawful and wrongful detention of said slave, and which amount to $180.

It appears by this petition that the defendant McGrew had not only broken hid contract with the plaintiff, but committed a tort in harboring and depriving him of the services of his slave; but we do not understand that his responsibility incurred by the former is diminished or merged by an outrage; perhaps a crime, being süperadded to it. By the contract of sale warranty against eviction is implied, and, although it is true, as a general rule, that the right of the person evicting fehould have existed before the sale, yet evictions proceeding from the act of the Vendor himself at all times gives rise to the action of warranty. In this case the retention of tlr§ slave by thb vendor was a violation of the obligation contracted by the contract of sale, prosstare servum habere licere.

. There being sufficient allegations in tire petition to sustain the action ex c’ontractn’, we think the ‘Court Would not have set aside the attachment on the grounds now presented against itá legality, had they been urged on a motion to dissolve it; The evidence taken in the original case is not before us; but, from the judgment itself, it is evident that the sale was considered as the basis of the action, for the judgment rendered in the case decrees the sale to be rescinded, and tire opinioi! bf the judge in Writing contains the grounds on which it was rescinded.

We therefore conclude that the judgment against the appellant, John L. Lewis, is not invalid, for the reasons assigned for error.

The district judgo, in rendering judgment against tho sheriff, gave him direct recourse against McGrew, the principal in the bond, and C. P. Wright, by whom the bond was signed in the name of Rhodes, Wright Co, as surety. Wright also took an appeal, and has assigned for error substantially the same ■ grounds which have been noticed. It is stated in the printed argument of Iris counsel that, the only question at issue before the court is, tho liability of tho surety in a bond given for tho release of tho property which has been illegally attached. This point having been disposed of, nothing remains but to affirm the judgment of the District court. Judgment affirmed.


author: Súdele, J.

text:
    Stanbrough v. M’Call.
    "Where an order of seizure and sale, issued for the amount of a noto secured by mortgage and containing tho pact da non alienando, is enjoined by a third person, alleging himself to be the owner of the pu-operty mortgaged by a purchase since tho date of the mortgage, who after a judgment rendered against Mm in tho first instance, protracts tho litigation by repeated appeals, such third person cannot avail himself cf the time which elapsed while tho plaintiff was thus judicially restrained from prosecuting his action, as part of the period necessary to extinguish the note by prescription. Par Cilriam: One who, under tho pretence of rights which have been adjudged to be unfounded, unlawfully uses the process of a court to restrain another in the prosecution of a right, cannot avail himself of the delay, which his own wrong has occasioned, to defeat that right.
    One to whom a note belonging to a succession has been transferred, by the Curator, irregularly, and to the detriment of the creditors or heirs of tho deceased, will ho considered as a trustee for them, but his possession of the note, as holder, will enable him to sue, for the purpose of arresting prescription.
    from the District Court of Madison, Selby, I.

      Thomas, Snyder, Bemiss and Stacy, for the appellant.

      Stockton and Steele, for tho defendant and opponent.
   The judgment of tho court was pronounced by

Súdele, J.

The plaintiff has been endeavoring, for seven- years, to enforce his rights as a mortgage creditor upon a tract of land. In this protracted litigation he was at first opposed by Collier, represented by Stockton, as his counsel; and subsequently, by Stockton, in his own right.

This suit was commenced in 1842, by an order of seizure and sale, upon a note which fell, due in January, 1842, and which, with two others, was given by M’Call to his vendor, David Stanbrough, curator of the succession of Jesse I-Iarper. To secure these notos M’ Call gave a mortgage, with a covenant de non alienando. Notice of the order of seizure and sale was served upon M’Call. Collier obtained an injunction against the execution of the order of seizure and sale, alleging that he was himself tho owner of all tho notes, having purchased them at a sale by the marshal of the United States; and also that, Josiah Stanbrough had no title to the note, because David Stanbrough, the curator of the succession of Harper, and who was the payee of the note, had no authority to transfer it. In that controversy thero was judgment in favor of Josiah Stanbrough, which was affirmed by the Supreme Court of this State, in 1843; and by the Supreme Court of the United Stales, in 1848. In that litigation, Stockton was the attorney and counsel of' Collier. See this case as reported in 6 Rob. 433, and 6 Ploward, p. 14.

In 1846, Stockton brought a suit, in his individual name, against David Stanbrough, curator, in which, after reciting that the curator had possession and claimed the ownership of the two other mortgage notes, and was proceeding upon them by order of seizure and sale, he alleged that he, Stockton, had become the owner of the three notes, by assignment from Collier, in 1843; that M’Call was insolvent, and that the land was his only security for the debt. Upon these allegations Stockton obtained an injunction, arresting the execution of the writ of seizure and sale obtained by the curator.

After the final decree, in 1848, by the Supreme Coiiirt of file United States in favor of Josiah Stanbrough, and before any mandate or decree of the Supremo Court of the State, restoring the jurisdiction of the District court with regal'd to Collier’s case, had been recorded in the District court, Stockton appeared in the present suit, by third opposition, and presented a new obstacle to the prosecution of the order of seizure and sale, obtained in 1842, and which had been suspended during seven years by tho injunction obtained by Collier. The grounds alleged in tho opposition are, that Stockton had become the owner of the mortgaged promises by the purchase from Compton, in January, 1847, who purchased from M’Call in January, 1842; that the note, upon which the order of seizure and sale was obtained, was extinguished by prescription; and that David Stanbrough, curator, had no authority to transfer the note. There was judgment in favor of Stockton; and from that judgment the plaintiff prosecutes the present appeal.

From the facts which we have stated it results that, from 1842, down to at least 1848, the plaintiff was judicially restrained from prosecuting his suit; and this restraint, from September, 1843, must be considered file personal act of Stockton. For although he acted at first only as the counsel of Collier in the injunction obtained by him, Stockton became, by the assignment of Collier, the real plaintiff in injunction, and must be considered, from the date of tho assignment, as the true party who prosecuted the suit in the court below, who took a suspensive appeal to the Supreme Court, and afterwards carried the cause by writ of error to the Supreme Court of the United States. If. Collier had not arrested the plaintiff in the execution of the order of seizure and sale, and Stockton, succeeding to his rights, had not continued this judicial restraint, the plaintiff would, years ago, have obtained a sale of the land and received its proceeds. Tho question then presents itself whether one, who, under pretence of rights which have been adjudged to be unfounded, has unlawfully used the process of a court of a justice to restrain another in tha prosecution of a right, can avail himself of the delay which his own wrong has occasioned to defeat that right? An affirmative answer to this proposition would involve principles shocking to reason and natural justice. It is equally repugnant to authority.

It has been said, in argument, that, in the prescription liberandi causa, good faith is not required. As the general rule, this is true. C. C. 3515. The man who knows that, he has not paid a debt may plead prescription. In doing so, he offends good conscience; yet the law,, acting upon considerations of public policy, forbids the creditor to put him on his oath, and compel him to declaro whether the debt has been paid or not. But the rulo has its exceptions. Thus, if having confidence in my debtor, I hand him the evidence of my debt, in order that he may attempt to collect it from other parties who are also bound to me, and my debtor should-take advantage of my confidence and withhold it from me, upon false pretences, until the “delai liberatoire” had elapsed, he would not be permitted to escape, upon the pleaof prescription, becauso, by his own wrong, he had prevented me from, acting. See Nougior, Des Lettresde Change, vol. I, p. 61. See also Troplong^ Prescrip. § 646.

The rule that, he who thus paralizes the right of another shall not benefit by. his own act to prescribe against that right, is not peculiar to our own jurisprudence ; but, as it has its foundation in reason and justice, we find it adopted as a principle of equity in England and in the, United- States. In; Putney v. Warren, 6 Vesey, 73, it was held that where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances and for a length of time, which deprives his adversary of his legal-rights, the court of equity considers that it should itself supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded, claim has deprived his adversary. See the East India Co. v. Cumpron, 11, Bligh. 158 &c. Story’s Equity, vol. 2, 1526.

The ,appellee questions the validity of the transfer of the note by David’ Stanbrough, curator, to Jesse Stanbrough, who endorsed it to the plaintiff, on, the ground that it was the property of a succession, and that no judicial authorization for the transfer has been proved. If the transfer was made irregularly, and to the detriment of the, creditors, or heirs of the succession, the plaintiff-would be deemed a trustee for them; but his possession, as holder, would certainly enable.him to act, for the purppse of-arresting prescription.

In order that the opponent may be protected from any further disturbance by, the succession of Harper, if he should think proper to pay the debt, and that the, proceeds of the mortgaged property, if sold, may go to the party really entitled to, them, we.will malee provision in our decree.

It is decreed that the judgment of the court below, upon the opposition ot Stockton, be reversed; that the plaintiff have leave to proceed in the execution of the order, of seizure and sale; that the proceeds of the sale of the mortgaged property-, described in the plaintiff’s petition be brought by the sheriff into court, fordistri-. button, contradictorily .with the succession of Jesse Harper, upon due notice given to the proper representative of said- succession; and that, if the said Stockton. desires to pay the amount of the mortgage, claim, ho. may deposit the same in court, subject to the order of the court, to be rendered contradictorily with said-succession of Jesse Harper. And it is further, decreed that, said Stockton pay the qosts of this appeal-; and, that the costs oí the opposition in the court below, be, paid by the plaintiff.

      This opinion was pronounced in March, but suspended by the application lor are hearing. In March, alltho judges wore present.


author: Slideux., J.

text:
    Same Case—Application for a Re-hearing.
    Where a.mprtgago contains the pact.cie non alienando, one, who subsequently purchases the. property from the mortgagor, cannot claim to he in any better condition than his vendor, nor can he plead any exception which the latter could not. Any alienation in violation of the pact da non alienando is null, as to the creditor.
    Where a creditor, whoso claim is secured by mortgage, may proceed against the same person by a personal action or by executory proceedings, the institution of proceedings viá execuliva will interrupt the prescription running against the personal action -, and this interrupt iion is continuous, preserving the personal action while the excutory proceedings are being prosecuted; and vice versa. And wliore the mortgage contains the pact denon alienando, a purchaser from the mortgagor, subsequent to the mortgage, will he considered as standing in the place of the mortgagor, and as subject to the same liabilities.
   ON an application for a rehearing, made in this case by Steele, for the oppo-i. nent, the judgment of the court (King, J. absent,) was pronounced by

Slideux., J.

A.n application for a rehearing has been made in this case, in which, among other points presented in his first brief) the appellee particularly insists upon the considerations, that he stands as the vendee of Cqmpton, who had no participation in the. injunction, and was at no time a party to the proceedings ; and that the attempted exercise of the hypothecary right had no effect upon the right of personal action for the. debt. The doctrine is invoked that when mortgaged property has passed into the hands of a third person, the interuption of the personal action against the debtor does not interrupt the prescription with regard to the third possessor; and, reciprocally, that the interruption of the hypothecary action does not interrupt the prescription of the principal.

The correctness of the doctrine, in ordinary cases, may be conceded. But the, circumstances of the present qase, are peculiar. In addition to the professional and personal connection of Stockton with this case, during the protracted delay which is now invoked for the purposes of prescription, there is a feature in the, case which is decisive against his right to avail' himself of his newly acquired character as the vendee of Compton, and to treat the personal and hypothecary rights as distinct and-independent.

We have already shown that Stockton was fully- acquainted with the antecedent conveyances and mortgages. They were not only-recited in the deed from Compton, but in the pleadings in the case; and, indeed, the appellee conceeds his entire, acquaintance with the titles, and disclaims any-benefit which ignorance could confer- , Now the mortgage from M’ Call contains, as stated in our previous opinion, the covenant de non alienando. The language is, ‘thereby confessing judg-, ment in favor of said J. Stanbrough, curator, as. aforesaid; for the said sum of money, to be paid with interest as aforesaid, and covenanting not to dispose of said lands to the prejudice of this mortgage.”

The effect of-- this covenant has been frequently- considered, although never, as we believe, with reference to the particular point now under consideration.

In Nathan v. Lee, 2 Mart. N. S. 33, it was-said that a mortgage creditor, who acts on a mortgage which contains in his favor an agreement of the debtor, not to alienate, is not bound to pursue a third possessor by tho action of mortgage,, but may have the hypothecary property seized; vid executivd, as if no change had taken place in its possessors; because any alienation or transfer made in, violation of the pact de non alienando is, ipso jure, void, as it relates to the creditor. To consider such a pact as entirely nugatory, and unavailing, would be contrary to a fundamental rule in the construction of contracts and statutes—that full effect should be given to all thpir-prqyisions, whenever it can be done without falling into absurdity. Judge Martin also said in that case that, the effect of the pact de non alienando was not impaired by the provisions of the Civ. Code ofl808. The strong language which he uses as to the effect of the pact, is supported by the Spanish authority to which he refers. Febrero observes: “ En virtud de este pacto es nula la enagenacion, y se contempla la cosa hipotecada en poder del, deudor para el fin expuesto, según queda sentado en el num. 68.” And in the section-referred to,he says; “Y se previene que contra este no pasa el derecho do exocutai', aunque proceda de sentencia declarada en coza juzgada, y la obligación son personal ó real; excepto que intervenga el pacto referido, que entonces como no se transfiere su dominio M tercero poseedor, ya sea por titulo oneroso ó lucrativo, antes bien es nula la enagenacion, so contemplan los bienes enagenados de esta forma como existentes en poder del deudor principal y verdadero, porque esta poi ningún acto, ni contracto puede debilitar, ni deteriorar la condición de su acreedor. ” Febrero, Adicionado, Librería de Escribanos, part 1. ch. 7, §4, nos. 89, 68.

In Donaldson v. Maurin, 2 La. 39, the eífect of the pact was again considered ; the case of Nathan v. Lee, was affirmed; and it was also hold that its effect was not impaired by the repealing act of 1828. It was considered as springing, not from legislation, but from the agreement of the par-ties. “It is an universal principle,” said the court, “that effect must be given to all the parts of a written contract or agreement, and meaning to all its stipulations and phrases, unless such a construction leads to absurdity.” “It is also a general rule that, .owners of property must be presumed to know the titles and the encumbrances under which they hold.”

In Murphy v. Jandot, 2 Rob. 378, the court said : The mortgage to J'.andot contains the clause de non alienando, and consequently no transfer of the property would effect his right to proceed summarily against it, as if still belonging to the mortgagor. So in The Gas Bank v. Allen, 4 Rob. 389; Dodd v. Crain, 6 Rob. 60. Ducros v. Fortin, 8 Rob. 167.

Hence, then, it results that, Stockton, holding under M’Call and well acquainted with his title, is estopped by the pact de non alienando from claiming a better condition than his author, and pleading an exception which M’Call could not have pleaded. Let us see then whether, under the circumstances, M’ Cull. could assume the grounds which Stopkton attempts to occupy, and assert that the debt and mortgage wore extinguished by prescription.

By the pact de non alienando, M’ Call was forbiidden to alienate to the. prejudice of the mortgage; the plaintiff was entitled to proceed by seizure and sale, as though he had not sold; and did so proceed, and gave him notice.. Can a mortgagor in possession (and, by virtue of the pact, M Call is deemed still: in possession,) protend that proscription runs against the debt itself, while the creditor is exercising tho accessary right of mortgage. This question may be. answered in the language of D’Argentrée. “Sed de Ms actionibus qua; se habent pose, ut accessorioe et principalis, ut personalis ethypothccaria, justa dubitatio esse, posset, nisi exprossó de eo esset constitulum, 1. fin. C. do Annal. Except., quó traditur una contestatione aut citationo in alteró, fieri in utraque interruptionem. Sed etsi in isto est aliquid, tamen in eo non sunt omnia. Nam cum hoc sic staluitur, preesupponitur personalem et hypothecariam adversus eandem personam competeré, et ideó alteram alteri disjunctam accessoria ex causó debitó eadem, et. si diversa! qualitatis obligationes sunt. §ecus accidit, cúm personalis in personó obligati aut hosredum resedit, et hypotheca in extraneum est translata, quo ensu dubium non est, utramque per principalem esse; unde evenit, ut prcescriptionis-. témpora non sint eadem- Ideoque apparet mutatione persona! mutari prescription-urn conditionos ot extraneum de facto, suo non tenería sed in rem persecutionem esse, et quee advorsfrs cum actio intordatur, non esse amplius accessoriam ad; personalem. Quare hoc casu censeo quod interruptum ftterit adversfrs principalem, extraneo nonobesse, cujus aliudjus et causa est et posse ex capite suo preos-. criptionom perficere,” Art. 266, p. 1160., no. 9; cited in Troplong, Prescrip., &ote to no. 659.

Applying these principles to, the case before us,, the prescription of the personal action Was interrupted by the hypothecary proceeding, the creditor being competent to exercise both of these against the same person, by virtue of the pact de non alienando.

, This reasonable rule is sanctioned by the Code, from which, as we have seen) D’ Argentine derived it. “Qui obnoxium suum in judicium clamaverit, et libelInm conventiomis ei transmiserit, licet generaliter nullius causas mentionem habentem, vel unius quidem specialiter, tantummodo autem personales actioneS) Vel hypotheearias continentem, nihilominus videri jus suum omne earn in judicium deduxisse, et esse mtelrupta temporum curicula: cum contra desides homines et sui juris contemptores odiosos exceptiones opposite sunt.” Code, lib. 7. tit. 4Ó.

The rule harmonizes with the theoiy of prescription, Which has its basis in the presumption of renunciation on the part of him who neglects his rights, and Which presumption cannot be entertaiiied against a party who is struggling to collect a debt, and is not sui juris conl&mptor.

The interruption then created by the institution of one spábies of action must also be considered as continuous, and as preserving the personal action while the hypothecary action is in course of prosecution. To this effect is the language of Dunod, who, while he sanctions the general rule invoked by the appellee, recognizes the exception in a case like the present. L’ action personelle intentée contre le débiteur, n’empeche pas le tiers possesseur de l’hypothóque de la prescrire; et vioissim, quoique 1’ exercise de l’une conserve l’antre lbrsqu’oiles concourent dans un memo sujet; pnreequ’en ce dernier cas elles sont jointos et acceesoires Tune á 1’autre, au lien qu’au précédent olios sont principales et indópendantes. Rehearing refused)


text:
    Stanbrough, Curator v. M'Call.
    Decision In Stanbrough v. M’Call-, ante p. 324, as to prescription) affirmed.
    from the District Court of Madison, Selby, J.

      Bemiss, for tM plaintiff.

      Thomas, Snyder, Stocktmi and Steel, for the defendant and third opponent, appellant.
   The judgment of the court was pronounced by

SniDEim, J.

The plaintiff obtained, in July, 1846, an order of seizure and sale upon the two last of the three notes mentioned in the ease of Josiah Stanbrough against M’Call, ante p. 324. These notes fell due in 1843 and 1844» In August, 1846, Stockton enjoined the execution of the order of seizuro and Sale, alleging ownership of the entire series of notes, by assignment from Collier-. In October, 1846, judgment was rendored dissolving the injunction; and from that judgment Stockton took a suspensive appeal to this court, whose decree; affirming the injunction, became final in 1S48. See 3 An. p. 390. It does not appear that the decree of the Supreme Court has yet been recorded in the court below.

In April, 1848, while the execution of the order of seizure and sale was thus' suspended by the action of Stockton, he interposed a new obstacle to the prosecutioii of the plaintiff’s proceedings, alleging, as a third opponent, that he ílaá bought the mortgaged premises, in 1847, from Compton, who had bought then! from M'Call, the mortgagor; that the two first of the three notes were extinguished by prescription; and that the hypothecary right of the plaintiff had ceased to exist. For a more minute recital of the facts we refer to the case above mentioned, ante p. 324. There was judgment upon the third opposition in favor of the plaintiff, and Stockton has appealed;

For the reasons assigned in the case of Josiah Stanbrough v. M’Call, we aró of opinion that the prescription, which was not complete when the order of seizure and sale was obtained, was suspended during the .judicial restraint provoked by Stockton himself.

Judgment affirmed'.

      This opinion was delivered in March; hut as it refers to the ease of Josiah Stanbrough v. M’Call, ante p. 321, which was suspended hy a rc-hearinsr, and in which a second opinion was pronounced at this date, the present case has been delcrrod until that of Josiah tSlanbrough could be reached in order of time. R.


text:
    The First Municipality v. Manuel.
    The ordinance of the Gí-cncral Council of the First Municipality of New Orleans, of 28 Nov.; 1843, imposing a tax on all retailers of soda-water, with the exception of apothecaries, iá not illegal nor unconstitutional; nor will the fact that the party had paid for a license as á confectioner; exempt him from liability for the tax.
    APPEAL from the decision of a justice of the peace in New Orleans. Thd appellant resisted payment of the tax on the grounds: 1st. That it was illegal and unconstitutional. 2d. That having obtained a license as a confectioner, hU could not be Subjected to another tax for retailing'soda-Water, or any other article in the line of his business.

      Preaux and Morel, for the plaintiffs.

      Schmidt, for the appellant;
    cited Const: art. 127.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

This is an appeal taitón from a judgment of a justice of the peace of New Orleans, by which the amount of a tax, and the price of a license, were adjudged to be dire by the defendant, by virtue of an ordinance of the General Council of New Orleans, imposing Said tax bn the retailers of soda-water in the city, with the exception of apothecaries.

We think this ordinance is not illegal, but is warranted by a fair construction of the act of the 12th of January, 1842, entitled “ Ati act explanatory of the powers of the General Council of the city of New Orleans.”

Judgment ajjirmecL


author: Rost, X

text:
    Soubiran v. Rivollet.
    Where it is shown that the succession of a deceased husband would not have defrayed the ex» penses of its administration; and that he died, in a state of absolute destitution;liis surviving wife cannot be made responsible for any portion of his debts, under art. 2387 O. C., oh proof that she took possession of certain old trunks and their contents, which the evidence renders it highly probable contained nothing but papers and old clothes, which she offered, to return. Per Curicmx If the succession could not have defrayed tlie expertise of its dd-Ministration; she was not bound to have it administered.

      from the Second District Court of New Orleans, Canon, X

      t)uvigneaud, for the appellant,
    cited C. C. 1074, 2381, Bui. & Cur. Dig. *810. Chabot, des Successions, vol. 2 p. 108. Diet, du Droit Civil, vol. 6, p. 56; 'arts. 28, 29, 35, 38. Ibid. vol. 2, p. 225, arts. 563 to 573.

      Biron, on the same ■side.

      Latour, for the deféndant.
   The judgment of the c'oifrt (King, X absent,-) was pronounced by

Rost, X

The plaintiff, who is a creditor of the late Jean Marie Rivollet, seeks to make his widow responsible for the debt, under art. 2387 C. C. The answer contains a general denial; and averment that the defendant has neither 'concealed nor made away with any of the effects of the community; but that; after the death of her husband, as a conservatory measure, and in the presence bf witnesses, she took possession of two old trunks and their contents, which she is ready to deliver to any person authorized to receive the same. The District 'court non-suited the plaintiff, and he has appealed.

The allegations that the defendant has 'corícealed ’or ihade aVay with the effects bf the succession; are entirely unsupported by evidence. ít is p'roved, on the other hand, that Bivollet lived separate from his wife, and was, at the time of his death, in a state of absolute destitution. His brother had to pay his funeral expenses, and the person, in whose house he lived, has against him a claim for rent and attendance, which she considers as lost. This testimony makes it highly probable that the two trunks, of which thé deféndant took charge, contained nothing but thé papers and old clothes which shé offers to return. If, as we believe, the succession would not have defrayed the expenses of administration, the defendant waá not bound to have it administered.

■Judgment affirmed'.


author: Slidell, J.

text:
    Florance v. Nolan et al.
    Where a debtor is insolvent to the knowledge of his creditor, who receives from lnm\ in payment of an 'antecedent debt, goods upon which he has no privilege as vendor, the preference is an illegal one. O. 0.1965 to 1989.
    from the Fourth District Court of New Orleans, Strwivbridge, S'.

      Benjamin and Micow, for the plaintiff.

      Preston, for the appellant, Ogdyker.

   The judgment of the court (King, I. absent,) was pronounced By

Slidell, J.

It is ilnnecésary to decide the question préseiited By thb appellant; whether the landlord had a privilege, upon the goods removed by purchasers, for rent not due at the time of removal.

The'action does not rest simply upon the assertion ‘of a privilege, but is also & revocatory action under the provisions of art. 1965 et seq. of the Code. It i& satisfactorily proved that Nolan~was insolvent, to the knowledge of the appellant; hnd, although there may have been no moral fraud, the receiving of that portion ’of the goods upon which the appellants had not the Vendor’s privilege, in payment bf an antecedent debt, was an illegal preference.

'Judgment affirmed'.