text:
    H. Keane v. W. P. Fisher & Co.
    A sale is not divested of its character as a cash sale by a delivery before payment.
    Where a vendor who sells goods for cash consents that the purchaser may ship them before payment, he can not hold the purchaser liable for disposing of the goods before payment, under the 10th section of the act of 1840, entitled: An act to abolish imprisonment for debt.
    Where the usage proved is not in conflict with the law, the court may call the attention of the jury to it.
    A dormant partner need not be joined in an action by the ostensible partnership.
    APPEAL from the Fifth District Court of New Orleans, Buehanan, J.

      Race & Foster, for plaintiff;
    Counsels for defendants have most mind of the court from this issue, by ingeniously endeavored to divert the quoting the following authorities, viz : 6 Cowen, 118, Ohapmanv. Lathrop, 6 Wend., 8, Lupin v. Marie, and 22 Wend., 664, Bussell v. Minor. Do these authorities fairly meet the issue tendered? They go to the point, that if there is a condition precedent to a sale, the delivery of the goods does not pass the property, and if the condition precedent should be waived by the vendor, then the ownership in the property would pass by delivery, and an action of trover would not lie. But was there any condition precedent in the sale in the case at bar, or any waiver of any such condition? Certainly not. We sold in accordance with the general and well known custom of trade in this city, for cash, and fully delivered the goods into the custody of the defendants, not upon condition that they should first pay us the mone3r, but upon condition that they would pay it when demanded, whether that be the next minute, hour, day or week. According to the custom of our merchants, all sales of merchandise are considered to bo for cash, unless there has been a positive agreement to the contrary. Was there any such agreement in this caso ?
    “ Known customs enter into and form a part of the contract without any mention being made thereof.” 6 Pick., Loring v. Gurney. “ Customs arc sometimes allowed to prevail, contrary to the rules of common law, etc.” 9 Wend., 349 Wilcox v. Wood. A question of fact, and of custom, is one properly for the jury; also the question as to what constitutes a credit sale. 1 Story R., 43 ; Forester v. Boar Aman. The antiquity of the usage is of no importance, 12 Pick., 428. Thompson v. Hwmilton. See also, 2 Pet. 148 ; 6 Pet. 715 ; and 6 Dauce, 382, Wallace v. Bradshaw.

    The difference between the common law and our special statutes is very obvious. The doctrine contended lor by Mr. Hunt, with so much zeal, cannot be maintained in the interpretation of the 10th section of the Act of 1840, for this. It conflicts with the letter of the law, and besides, would render the statute useless and inoperative. There never could a case arise under the act; if that be the correct construction. If in order to constitute a cash sale, the payment of the price and the delivery of the goods must be simultaneous, what is the meaning of the following extract from the 10th section of said law of 1840 ? “ Or shall purchase property for cash, the delivery whereof shall bo made to him, and then shall sell or dispose of the same without paying his vendor, or shall remove the same beyond the reach of such vendor, or shall conceal or cover the same in any manner so that his vendor cannot render the same liable, etc.” “Any of such facts shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved.”
    How can a purchaser of goods have time and opportunity to sell, dispose of, remove beyond the reach of his vendor, or conceal, or cover, in any manner whatsoever, merchandize purchased for cash, when the payment for them was simultaneous with their delivery ? Do your Honors not perceive that such an interpretation violates the plainest rules of construction and interpretation, as laid down in our Civil Code, 13 to 20.

      Bandell Hunt & J. Ad. Lozier, for defendants :
    Supreme Court of New Jersey, June term, 3 853, Steioart & Mettler v. Scudder.

    1. A commission merchant in New York receiving a parcel of corn, with orders to sell for cash, sold it to a person, at the time of sale, in good credit. The sale was made on Monday, and the price was called for on the succeeding Friday, but not paid. On the next Monday, it became known that the purchaser had failed. The loss was held to fall on the commission merchant, notwithstanding an attempt was made to set up a usage in New York, that where a sale is made for cash, the purchaser has three or four days to pay the money.
    2. A usage to control or interpret contracts, must be known, certain, uniform, reasonable, and not contrary to law.
    8. Semble. — That such usage as was set up in this case, was unreasonable and illegal.
    Another case in our favor is to be found in 8 Vermont, p. 252, Bliss v. Arnold, Leggett and Laphami. The usage set up and sworn to by the witnesses was, “ that the purchaser for cash takes the article into his possession and to his own store, for the purpose of examination, and to collect the cash, which he is to pay within a few days. The usual time of collecting cash payments in New York, with commission merchants, varies from twenty-four days to a week succeeding the sale. It is our belief that it would be difficult, if not impossible, to conduct cash sales on any other principle. In New York there must be some confidence between man and man in dealing; and to require cash at the very moment of delivery, would impede and interrupt much the merchant’s business.” To this the court says, “ In all sales for cash, the money must be pakL when the property is delivered.”
    It is wholly inconsistent to claim that a sale for cash, means a sale ón a credit of a week or ten days.
    We cannot believe there is any such custom recognized as law, and we find a decision of Judge Gardner, directly opposed to any such custom, as binding on the person who entrusts property to a commission merchant. On the subject of customs, they must bo certain, must be proven and construed strictly.-— 1 Bl. Oom., 75, 76.
    Where a salo of goods is made to be paid for in cash, or securities, and a delivery is made without payment, and without any demand of the price, or securities, the delivery is absolute, and vests title in vendee. Evidence of a usage that in such sales, the vendor retained his lien, until the conditions of the sale were complied with, was rejected, because such a usage would be contrary to law.
    A custom of trade, to the effect, that on a sale of goods for cash, they are delivered to the buyer, without payment or demand of payment, and after a few days a bill of the goods is sent to the buyer, and the price demanded, and in the meantime the seller retains a lien on the goods for the price, and that such a delivery is conditional, is contrary to law and invalid. — Smith v. B. Ligue et al., B. Sandf., 203.
    A general usage, the effect of which is to control the rules of law, or which contradict a settled rule of commercial law, is inadmissible. The clear and explicit language of a contract may not be enlarged or restricted by proof of a custom or usage. The indiscriminate resort to testimony of usages and customs of trade, to control the construction and the results of contracts, is liable to dangerous abuses; and such testimony is to be admitted with great caution. —Hone v. The Mutual Safety Insurance Oo., 3 Sandf., 137.
    This court, in Bonham v. Overton, Ohism & Go., 6 Ann., p. 765, clearly discountenance the usage set up, and do not consider it certain, frequent, general, and long established.
    Braud (30), Poloy (33), and the other witnesses of plaintiff, testify, “ that the custom in sales of sugar is to send in the bill the day of sale or the day after, and send for the money two, three or four days after, according to circumstances (33) — some extend the time to ten days. Agwr, who sold the sugar, says (page 23), “ The bills for sugar are always sent in on the day of the purchase, but the demand for payment is delayed for two, three or five days.”— This is his idea of the usage of trade. This alleged usage is uncertain and vague. The clear and explicit language of the contract cannot be enlarged or restricted by this usage set up, and moreover it is invalid. Agwr reposed trust and confidence in Fisher, and therefore the sale was made on credit.
   Slidell, 0. J.

The plaintiff alleges that W. B. Fisher & Go., a commercial firm doing business at New Orleans and composed of W. P. Fisher, a resident of New Orleans, and King, a resident of St. Louis, purchased of him forty-five hogsheads of sugar for cash, but have failed to pay the price stipulated, and have disposed of the same, so that the plaintiff cannot now make the merchandize liable for the payment of his claim, and have incurred the pains and penalties of the Act of 1840. The arrest and condemnation of Fisher was prayed for, and a judgment against the firm. Prom a judgment in conformity with the prayer of the petition, Fisher has appealed.

The proceeding is based upon the 10th section of the Act of 1840, which roads as follows: “That if a debtor, &c., shall purchase property for cash, the delivery whereof shall bo made to him, and then shall sell or dispose of the Same without paying his vendor, or shall remove the same beyond the roach of such vendor, or shall conceal or cover the same in any manner, so that the vendor cannot render the same liable, any of such facts shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved.”

By the 13th section, when a defendant is found guilty of defrauding a creditor, in the manner mentioned in the 10th or 11th section, the court may condemn him to be imprisoned for a period not exceeding three years, &c.

The first and most important question to be considered is, whether this was a cash sale, as contended by the plaintiff, or a credit sale, as contended by the defendants.

The only witness personally cognizant of the circumstances of the sale, was a clerk of the plaintiff, who made it. Ho says, the sugar, which consisted of two lots, in all forty-five hogsheads, was sold for cash, and Fisher made no objection .to the terms at the time. On cross-examination, he says : “ Fisher told me the river was frozen up at St. Louis, and asked me if Keane was quick with his bills. I told him I.thought not. He asked me if I could not wait a few days. I told him Mr. Keane was not quick with his bills; that he let them run a few days. Fisher wont on and looked at the lot, and said he would take the sugars. He then gave mo his name and the name of the boat on which he wished them shipped, that is, after he had looked at another lot and had taken both lots. I then went on and had the sugar weighed immediately. I followed Fisher's instructions, and shipped twenty-seven hogsheads (being one lot) oil the Iowa, and I think I gave Fisher the dray receipt for the same. The Iowa, I think, was bound for St. Louis. When Mr. Fisher asked me my terms, I told him cash. Mr. Fisher then asked me if I could not give him a few days; he told me his reason for asking for a few days, was that the river was frozen up. 1 told him that Mr. Keane was not quick with his bills, that he generally allowed them to run five or six days. W e then passed to the other lot of sugar, and Mr. Fisher said he would take the whole forty-five hogsheads.”

An attentive consideration of this testimony has brought us to the same conclusion to which the jury came, that is, that the sale was a cash sale, and that no agreement was made by the seller, which would have prevented him from demanding payment at any time after the delivery. The purchaser did not ask a stipulation for delay; his question upon being, told the sale was cash, assumed that the bill would be so made out, and the inquiry was whether the seller was in the habit of collecting his bills quickly. If suit had been brought for the purchase money the day after the sale, and the vendee had pleaded by way of exception, that the suit was premature, could the exception have been sustained ? Clearly not; the facts would not have furnished an essential element of a dilatory exception, an agreement for delay.

That a sale is not divested of its character as a cash sale by a delivery before payment, is obvious, although it is true the seller is not bound to deliver before payment.

The evidence is quite full to the effect that sugar is usually sold for cash, and is usually delivered before payment, the seller sending his bill afterwards; this course however being considered a mere act of courtesy and not of right. We do not see anything in this usage inconsistent with the law of sale as enunciated in our Code; and the Statute of 1840 recognizes such a course of business by the clearest implications. Indeed, if to constitute a cash sale the payment of the price and the delivery of the goods must be simultaneous, the clause of the statute for the protection of vendors, would be idle and inoperative.

The only serious difficulty wo have had in coming to a conclusion to affirm; the verdict in this case, arises from the fact that the vendor consented that a part of the goods should be shipped by the purchaser before payment. It seems to us that the plaintiff cannot hold the purchaser under the statute for thus disposing of those goods before payment, when he has himself assented to such disposition. But with regard to the residue of the sugar, the lot of IS hogsheads, there is nothing aside, from the above circumstance, to take the case out of the statute, and we do not think the rights of the vendor as regards that lot, can be affected by the waiver of them with respect to the other.

Although the District Judge refused to charge the jury in the precise words suggested by the defendants’ counsel, we think his charge as given was in substantial accordance with law, was not calculated to mislead the jury, and gave the defendants the benefit of the agreement suggested in the defendants’ application, if the jury should think such an agreement proved. In saying to the jury that the usage of merchants as to sales of sugar on the levee, in this city, was to bo regarded as a guide for their decision, the court no doubt alluded to the usage of which wo have already spoken. This usage not being in conflict with law, the court did not err in directing the attention of the jury to it, and the language used in doing so, was not calculated to induce the jury to give the usage an undue consideration in estimating the act and understanding of the parties.

Under the pleadings and proceedings in the cause, the finding of guilty of fraud is clearly referrible to Fisher, the only party arrested, and the only party whoso punishment was prayed for.

The presumption of fraud which the statute raises from the fact of buying for cash and disposing of the merchandize without paying the vendor, has not been satisfactorily disproved by other evidence.

It appears that one Sierra had a joint interest with Keane in certain sugar adventures, of which this was one. This fact appeared at the trial from the testimony of a witness. But as it also appeared that the business was done wholly in Keane's name, Sierra's interest being dormant, we think the court did not err in telling the jury the plaintiff might recover in his own name. See Norman v. Gillett, 2 Taunton, 325 ; Collyer, on Partnership, 394.

Judgment affirmed with costs.

Application for re-hearing refused.


source: Caselaw Access Project

author: Slidell, O. J. Ogden, J., Buchanan, J.

license: Public Domain

text:
    Augusta Insurance Company v. Samuel Packwood.
    Citation to appear, or an actual appearance in court, is indispensable to affect the rights of a party by judicial proceedings, except in the case of creditors, where the law has declared public advertisement of notice to them to oppose an account, equivalent to citation.

      Sanrmel Pacl&wood and his wife Mice, changed their residence from Louisiana to New York in 1836, where they continued to remain until the de^ath of the wife in 1840. While they resided in New •York, the husband sold the property, which is the subject of this controversy, to Stewart, who agreed to pay in annual instalments, and gave his six notes for the purchase money, and stipulated for the privilege of canceling the sale at any time before the final payment of the whole purchase money, upon a proper allowance of indemnity to the vendor. After the death of the wife the property was reconveyed to the vendor, in consideration of the return of the six notes which had been given for the price. It was admitted that the property when sold by Paclmoood, was a part of the ■community. The heirs of Mrs. Pachwood claimed that the re-acquisition of the property enured in part to their benefit, while Pachwood maintained that it enured to him alone. Held:

    1. The notes having been received by Pachwood in New York, where he and his wife were domiciled, and being there in his possession after her death, whether a half interest in those notes vested in the wife’s heirs — Quiere ?
    2. The decision of Packwood's succession, 12 Rob. 869, on the subject of the rescission of the sale from Pachwood to St&ioaH affirmed.

      Z. On the death of his wife Pachwood ceased to represent- rthe community. He took the title in his own name and for his individual account. If the heirs of his wife had any claim, it was not against the property, but against Pachwood, to compel him to account for their funds converted to 1ns own use.
    4. To effect a rescission ot fhe sale so as to replace parties in the same position as if a sale had never been made, the parties to the sale and the rescission should be the same. Per Slidell, C. J., Qcm/p-~beU, J., and VoorMes, J., concurring.
    The stipulation which is proved to have existed, securing to the purchaser the privilege of canceling the sale at any time before the final payment of the purchase money, upon proper allowance of indemnity to Pachwood, the seller, did not render the contract null. The right to cancel the sale depended upon a proper allowance of indemnity to Pachwood; and this was not a potestative condition. Per Ogdon, J., Bicchanan, J., concurring.
    The plantation and slaves in Louisiana, it is admitted, continued to belong to the community, notwithstanding the removal of the husband and wife to New York. The notes for the purchase money represented the price of the property, and the community must be considered as entitled to the price, as being owners] of the property sold. If the price had been paid before the death of the wife, the husband might have disposed of it as he pleased, but as it remained unpaid, the heirs had the same right to the price that they would have had to the property if it never had been sold; and as the consideration of the retrocession to Pachwood was the canceling of all the notes, constituting the whole price, he must be considered as having undertaken to represent the heirs of his wife, and as having their title reinvested as well as his own. Ogden, J., dissenting, jSuchaeicvn,

    J., concurring in the dissenting opinion.
    The dissolving condition when accomplished, operates a revocation of the obligation, and places matters in the same state as though the obligation had never existed. C. 0. 2040.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      0. Roselius, for plaintiff and appellants :
    The great and important question before alluded to, recurs, what was the effect of the retrocession of the property by Stewart to Paclmood so far as the rights of the community are concerned ?
    I confidently contend that by the retrocession of the property on account of the inability or failure of the purchaser to pay the price, the parties were replaced in the same situation as if the sale had never taken place, and the property reverted back to the community, to which it is conceded it belonged when the sale took place..
    The principle upon which this rule is founded is familiar. Article 204ft of the Code provides that—
    “ The dissolving condition is that, which when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.” The next article provides that—
    “A resolutory condition is implied in all commutative contracts, to take effect in case either of the parties do not comply with his engagement; in this case the contract is not dissolved of right, the party complaining of the breach of the contract may either sue for its dissolution, with damages, or if the circumstances of the case permit, demand a specific performance.”
    And Article 2539, reiterates the rule with regard to the contract of sale — ■
    “ If the buyer does not pay the price, the seller may sue for the dissolution, of the sale.”

      jn the*case of Powers, Tutrix, etc. v. The Ocean Insurance Oompamj, 19 L. R. 30, tho Supreme Court say—
    “By tho effect of tho implied resolutory condition in her sale on credit, to Frederich, the plaintiff was restored to the possession and ownership of tho property, as if no sale or transfer had taken place.”
    This was an action on a policy of insurance alleged to be avoided by the salo of the property insured. There had been such a sale, but the purchaser being tinabio to pay for the property, made a voluntary retrocession of it to the vendor. Judgment was rendered in favor of tho plaintiff. The rule is, “ genene-raliter resotutio Jit ex tunc.”
    So in the case of Mortee v. RoacVs Syndic, 8 L. R. 88, Judge Martin delivering tho opinion of the court, observes—
    “A sale is a synallagmatic contract which imposes on the vendor, tho obligation of delivering the thing sold, and requires of the vendee the payment of the price. In the case of reciprocal obligations, the party who does not perform his part of the engagement, cannot avail himself of any rights resulting to him from the contract; consequently, the other party may demand the rescission of the contract from the defaulting party.
    “Tho insolvent debtor, not having paid the price, was not the absolute owner of the slaves; and his right to the property was, therefore, not indefeasible.
    “The cession or surrender of the insolvent debtor’s rights, for the benefit of his creditors, could not and did not, change the character and nature of those rights. They remained the same; for the debtor could only cede the rights ho had, and in the condition they were at the time. What was conditional and defeasible in his hands, did not become absolute and indefeasible in the hands of his creditors. The plaintiff did contravene the order staying all proceedings against the person and property of the insolvent, by exercising his rights against tho syndic.
    “ Tho slaves in controversy, not being the absolute property of tho ceding debtor, and his defeasible rights to them being annihilated by the rescission of the sale, it follows they make no part of the property surrendered; and their price cannot bo diminished, or they in any manner held liable by tho Syndic of the insolvent’s estate for the costs and charges of the concurso

    The most satisfactory exposition of the whole doctrine as to the effect of the dissolution of the contract of sale on account of the non-payment of the price, is found in the works of Troplong. In his commentaries on the Napoleon Code, (1654,) he says:
    Paríons des effets de la résolution.
    651. La résolution replace los parties dans l’état oú elles se trouvaient avant la vente.
    Il suit de la que le vendeur doit reprendro la chose franche, libre et exempte do toutos les hypothéques et autres charges dont l’acheteur l’avait grevée pendant sa jouissance; car la résolution s’opéro ici ex causaprimeevá et antigua, et ex necessitate pacti impressi in ipsa reí ti'aditione. J’ai exposé cette thóorie dans mon commentairo sur los Hypothéques.

    Toutefois, le vendeur doit exécuter les baux faite sans fraude parl’acquéreur. La régle do l’art. 1673 trouvo ici son application. Elle est trop juste pour ne devoir pas étre acceptéo par anologie.
    052. De vendeur a droit de répéter contre l’acheteur tous les fruits per$us. C’est la decision de Neratius.
    “ Logo fundo vendito dicta, ut si intrá. certum tempus pretium solutum non sit. res inempta sit; do fructibus, quos interim emptor pereepisset, hoc agi in-intelligendum est ut emptor in eos sibi suo quoquo jure perciperet. Sed si fun-dus revamisset. Aristo existimabat venditori de his judicium in emptorem dan-dum esse: quia nihil penés cum residere oporteret ex re in guá fidem, fefellis-set.”
    O’est aussi ce que dócident Julienus et Paul dans les lois 7 §§ 1 et 12, Dig. Pe condiat. causa data non secuta.

    La raison en est que la résolution du contrat produit un effet retroactif, et que l’acquéreur, dépourvu de bonne foi et refusant do remplir ses obligations, manque d’un juste titre pour fairc ses fruits siens.'
    Que si le vendeur avait ropu une partie du prix, il devrait en teñir compte á l’acheteur, il devrait inéme faire raison des intéréts de cette portion du prix, sans prejudice, néanmoins, des domtnages et intéréts qui pourraient étre dús par ce dernier. En effet, le vendeur ne pout reteñir les intéréts, puisqu’il re-couvro les fruits. Il ne doit pas non plus préféror los intéréts du prix au fruits de ia chose; car la resolution, laisant tomber la vente, entrame dans le méme néant le prix et les intéréts qui sont l’accossoire du prix. A la vérité, il serait presque toujours plus avantageux pour le vendeur de toucher des intéréts au denier vingt que de rentrer dans los fruits qui, en général, no dépassent pas trois et demi pour cent. Mais, en demandant la resolution, il doit en subir les conséquences, il n’est pas possible que la vente soit tout á la fois annulée et productive d’intéréts de prix.
    Au resto, la possibilité qu’ont les juges de eondamner l’acheteur en des dommages et intéréts peut offrir le moyen do venir au secours du vendeur et de rétablirle niveau entre les fruit et les intéréts.”
    In the case of Fulton v. Her Husband, 7 R. R. 75, the Supreme Court expressed its opinion on the question whether the rescission must necessarily be sued for, in the most explicit terms.
    “The re-transfer made to the plaintiff, in 1835, by Morrison, cannot be viewed in the light of a purchase made during the marriage. He voluntarily did that which his vendor could have obtained by bringing against him an action to rescind the sale, on account of his failure to pay the price. The land became the property of the petitioner, in the same manner, as if the sale to Morrison had been judicially rescinded ; and she hold it by the title which she had before her marriage, as though no sale had been made. It therefore now belonged to the community.
    See also, 12 Toullier, p. 318, No. 195.
    The most recent and conclusive authority on this point is that of Felicia Chrétien v. John &. Richardson et al, 7 Ann. p. 2, et seq. This case was most elaborately argued and kept a long time under advisement. The whole subject is reviewed by the court with great care, and although Chief Justice Eustis dissented, it will be seen that that dissent was in relation to a question which does not arise in the present case, i. e. whether an extra judicial rescission or retrocession can effect the rights of creditors who have acquired mortgages on the property retroceded. It is also to be observed that the closest analogy exists between the cases so far as the form of the contracts and the substantial facts are concerned. In that case as in this the rescission or retrocession was in the form of a sale. In that case the part of the price which the purchaser had paid was compensated by the revenues he had received; in this case Stewart has not paid one dollar, except nine thousand one hundred and fifty-seven dollars and twenty-eight cents which T J. Pachwood, Stewart's co-proprietor, who carried on the plantation, received out of Stewart's portion of the revenues of the plantation, and the sum of four thousand one hundred and ninety-two dollars and fifty-five cents, which was paid by Lambeth dc Thompson, likewise out of Stewart's share of the proceeds of the sale of the crops of the plantation, under the garnishment in the attachment suit before alluded to. So that it appears very clearly that all the money which Samuel Pachwood received from Stewart formed a portion of the nett revenues yielded by the plantation, and the whole of which belonged to Pachwood on the retrocession of the property. The learned counsel for the appellee endeavored to give a different coloring to the state of facts than it really presents, by asserting that “ in addition to these payments, Stewart deposes, that Pachwood having obtained a judgment against him for a part of the price, it was agreed that he should pay to Pachwood §2,800, and execute a sale of the plantation to him, and that Pachwood should return the notes given for the price.” But the gentlemen seem to have forgotten that this sum of twenty-eight hundred dollars was agreed to be paid by way of compromise, on account of six thousand dollars which Stewart had received and retained out of the revenues. Pachwood's letter to Donaldson refers in the most explicit terms to this fact. In that letter, be it said, en passant, Mr. Pachwood not only evinces considerable diplomatic skill, but also a correct understanding of his legal rights. He seems to have known very well that on the retrocession of the property, Stewart was bound to account for all the revenues he had received from it.
    I might swell the number of authorities on this subject to an almost indefinite extent, for all the writers agree that on the retrocession of the contract on account of the non-payment of the price, all the parties must be replaced in precisely the same situation as if no sale had ever taken place; and that on the retrocession of the property the purchaser is obliged to render an account to the vendor of the fruits which he has or ought to have received. But I shall content myself by calling the attention of the court, in addition to the authorities already cited, to what Marcadé, the ablest and clearest of all the commentators of the Napoleon Code, says on the subject; vol. G, p. 292, Article 1066 of the French Code :
    “ Quant aux effets de la resolution, ils consistent, on le congoit, á remettre les dioses au méme état que si la vente n’avait pas eu lieu (Art. 1183). En consequence, l’acheteur doit restituer lo bien avec les fruits s’ii y en a eu, ainsi qu’une indemnité pour les degradations qu’il a pu causer. De son cóté, le ven-deur doit rcndre la portion de prix qu’il aurait regue, ainsi que los intéréts quand on lui restitue des fruits. On objecterait en vain que si l’art. 1052 oblige l’achetour á payer les intéréts de son prix quand la chose est frug'ifére, la loi n’en dit point autant du vendeur, et qu’il n’y a point, en eífet, analogie entre les deux cas. L’analogie, au contraire, nous parait complete, puisqu’il s’agit, d’un cóté comrne de l’autro, de ne pas laisser á la méme personne les fruits du bien et les intéréts du prix, et que le vendeur ne doit pas plus s’enri-chir au prejudice du vendeur. Et lo vendeur ne pourrait méme pas reteñir ou se faire payer les intéréts, en abandonnant les fruits k l’acheteur; car cos fruits sont rarement aussi considérables que les intéréts, et puisque les choses doivent étre mises au méme état que s’il nty avait pas eu vente, ce sont done les fruits du bien qui appartiennent au vendeur et non los intéréts du prix. C’est avec raison qu’une décision contraire a été cassée par la Oour Supréme (Oassat. d’une arrét de Lyon, 23 Juillet, 1834-, Dev. 34, 1, 620).”
    In opposition to this view of the subject, the learned counsel for the defendant rely on “the authority of the docision already made in this cause in 12 R. R. 26G, and on the reasoning of Judge Bullard, then the organ of the court.”
    Notwithstanding the respect which I entertain for the memory of that able Judge, candor compels me to say, that the decision given by him in the Paelc-wood, case is by no means calculated to add to his judicial fame; and I am sure that I am not hazarding- much in afflx-ming that no court, in which lawis administered as a practical science, will ever be deluded by the specious tissue of sophistry by which the ingenius Judge attempts to support his decision.
    Let us, for a moment, subject the reasoning of the learned Judge to the test of examination. He states his argument as follows:
    “ It is contended that on the canceling of the sale to Stewart by Paelcwood, the property reverted back to Paclmood in the same manner as if it never had been sold. But it must not be forgotten that, at that time, Mrs. Paelcwood had been dead several years; that Paelcwood no longer represented the community, much less the heirs of his wife, and could not, without their consent, reinvest in them a title to one-half the property, which they assert belonged to Mrs. Paelcwood before her death.”
    “ There is no doubt that, in cases of retrocession, properly speaking, the effect is to reinvest the title as if no alienation had taken place. But that presupposes that the capacities of the contracting parties remain unchanged. Now, according to the pretensions of the heirs of Mrs. Paelcwood, her right to one-half of the notes, representing the price of the plantation, become, on her death, irrevocably vested in her heirs; and we repeat that Paelcwood ceased to represent a community, and the heirs of the wife.”
    Now, is it not obvious to .the most ordinary understanding, that the -whole of this reasoning proceeds upon scpetilio prineipii ? The learned Judge assumes that there was no retrocession, properly speaking, and then gravely concludes that the title was not reinvested, as if no alienation had taken place. But why was there no retrocession, property speaking ? We are told, because Paelcwood had ceased to represent a community and the heirs of his deceased wife. Let me ask, in what capacity Paelcwood acted when he sold the plantation to Stewart? Surety, as the representative of the community which existed between himself and his wife. And is it not equally indisputable that, at the date of the sale, the plantation and slaves formed a part of that community ? If these two facts are undeniable, is it not self-evident that if no sale had been made to Stewwrt, or to any one else, during the lifetime of Mrs. Paelcwood, the plantation and slaves would have belonged to the community ? That such would have been the case no one will or can deny. Then, what is the difference with regard to tho character of this property, resulting from the fact of no sale having been made during the existence of the marriage, and of an alienation and re-trocession, which replaces the parties and tho property in the same situation as if no sale had ever taken place? But we are told bjr the learned Judge, that Paclcwood no longer represented tho community ; but it is obvious that, whether he had the legal right of representing the community and tho heirs of the wife or not, he did, in point of fact, assume that right in consenting to the rescission of the contract of sale of community property ; and tho only parties who can question the exercise of that power have ratified his act by claiming a title to the property under it.
    Again, it is said that on the death of Mrs. Paclcwood, the notes which Stewart had given for tho price of the'plantation became the property of Samvuel Paclc-wood, according to the laws of New York; and that, therefore, in returning these notes as a consideration for the retrocession, he gave that which belonged to him individually. Hence it is argued, with apparent sincerity, that the property which was received for these notes necessarily belongs to him. The fallacy of this argument is as apparent as that which we have just examined.
    Promissory notes are nothing more than evidence of a debt. Now, the canceling of the contract of sale from Paclcwood, as the representative of the community, to David Stewart, of the plantation and slaves in question, produced the same effect as if the notes had never been given, and as if no debt had ever been contracted. What, then, becomes of the quibble that the notes formed the consideration of the retrocession? The misapplication of words cannot change the nature and substance óf things. By virtue of the retrocession the notes given by Stewart for the price of the plantation are considered, in contemplation of law,- as never having existed. Quod nullum est nullum producit effectmm.

    It is next urged that there is an error lying at the very foundation of the position assumed by the plaintiff’s counsel. It is assumed by him that there was ■ a simple rescission of the sale, by agreement, between the vendor and vendee— that there was what the French lawyers call a désistement. The evidence in the cause shows this assumption to be entirely erroneous. The sale was consummated by a delivery, and Paclcwood received on account of the price, under attachment proceedings, the sum of $4,192 55 from Lambeth & Thompson, and $9,157 27 from T. J. Paclcwood. In addition to these payments, Stewart deposes that Paclcwood, having obtained a judgment against him for a part of the price, it was agreed that he should pay to Paclcwood $2800, and execute a sale of the plantation to him, and that Paclcioood should return the notes given for the price,
    This objection has already been anticipated in another part of this argument. It has been shown that Stewart never paid one cent on account of the price, except from the nett revenues yielded by the plantation during the time he remained the owner of it; and that it was agreed by way of compromise that he should pay the sum of $2800 on account of the six thousand dollars which he had received and retained of the revenues. It has also been shown that the rule of law is clear that on the retrocession Btewarrt was bound to account to Paekwood for all the nett revenues. In this respect there is not tho slightest difference between the case of Ghrétien v. Bichwrdson and that now before the court.
    It is next insisted that the consequences contended for only flow from the rescission of the contract when it has been judicially pronounced, either by suit or exception. Tho same objection was made and overruled in the case of Ghrétien v. Bichardson. It is plain that the construction which the counsel for the defendant gives to Article 2041 of the Code, is neither warranted by tho language employed by the law-maker, nor does it harmonise with general principles. As a general rule, to which there are a few exceptions, a party may be compelled to do by the judgment of a court of justice, what he is not only at liberty, but morally bound to perform voluntarily. But it is unnecessary to argue this point, because it -was not only expressly decided against the position assumed by the counsel for the defendants in the case of Ghrétien v. Richardson, but also in Power’s tutrix v. The Ocean Insurance Company, and in Fulton v. Her Husband, before cited. It must, therefore, be considered a settle point in our jurisprudence.

      Can the learned gentlemen be serious when they say, “if then the community sold, then there would be no clesistament de lávente, because the vendor no longer existed, and the desisiemertt can only take place between the contracting parties?” So that by the dissolution of the marriage by the death of one of the spouses the community vanishes? — there is no longer any community? If this be so, then surely all the protracted litigation with which our courts have been crowded for the purpose of settling communities after their dissolution has been an idle farce. But to bo serious, it is obvious that the word community like that of succession, very often signifies the property of which it is composed, and until that property has been distributed among those who are entitled to it, the community, in that acceptation of the term, continues to exist. But what advantage can possibly be derived from a mere verbal criticism? What difference can result in the application of the doctrine of rescission of contracts or retrocession of property from the fact, whether the community, in the teschnical sense, still existed or had dissolved prospectively by the death of the wife ? In the latter case the rights of the wife are vested in her heirs, in the same'manner and to the same extent as previous to her death they were vested in herself, with this single modification, that during her lifetime those rights were, to a certain extent, a mere expectancy, but by her death they have become absolute and certain in the hands of her heirs.
    The ground on which the whole doctrine of rescission of contracts restsis well expounded by Judge Martin, in the case of Martes v. Roach, Syndic, 8 L. R. 83, already cited. In the language of that great jurist, I say, the plantation and slaves were not the absolute property of Stewart, and his defeasable right to them being annihilated by the rescission of the sale, they have never ceased to belong to the community — or, if the counsel of the defendant prefer the phraseology — since the death of Mrs. Pachtoood, they have always been the joint property of Samuel Packwood and the heirs of his wife. He has succeeded, by a most erroneous judgment, to deprive some of those heirs of their just rights; but I am sure that this honorable court will not enable him to deprive the present plaintiff of its rights.
    There is but one moro objection which I deem it necessary to notice. It is said that the heirs of Mrs. Paehwood were not bound to warrant Stewart's title, and therefore they cannot set up any pretention to the title of the property on its retrocession. Nay, the eloquent counsel for the defendant, exclaim— “ Would they not have laughed to scorn any claim made against them as vendors? and if so, how can they possess the rights which the law gives to vendors alone?” What relevancy this discussion has to the case before the court is not so very apparent. It will be time enough to discuss and decide the question of warranty when it arises; for that question, whether it be decided in one way or the other, cannot exercise the remotest influence on the proper decision of the question before the court. But suppose it was otherwise, is it not somewhat strange that gentlemen learned in the law should boldly assume a position so utterly untenable on the plainest principles of law ? When the heirs of Mrs .Paehwood accepted the community of acquets and gains which had existed between their ancestor and her husband, they became liable for the payment of one-half of all the community debts. Now suppose Stewart had been evicted from the plantation by a paramount titleafter the death of Mrs. Paehwood, and the acceptance of the community by her heirs, would they not have been responsible to him for one-half of the price paid by him ? No, say the learned gentlemen, such a claim would have been laughed to scorn! But I apprehend that they might have laughed as much as they pleased, but they would have discovered the application of the adage rira bien qui rvra le der-nier. Wo are gravely told that they would not have been bound to warrant Stewart's title because after Mrs. Pachwood’s death, her husband inherited the notes or money representing the price. But what effect could that produce on the legal rights of Stewart growing out of the contract of the sale of community property situated in Louisiana? This contract, although entered into in New York, was of course governed by the real statute of Louisiana. By that law warranty is of the nature of the contract of sale. On whom is that obligation imposed? On the vendor? Who was the vendor of the plantation to Stewart? It was Samuel Paehwood, acting as the head and master of the community, and by the acceptance of that community after its dissolution by the death of his wife by her heirs, those heirs became as much vendors as if their names had been inserted in the contract of sale itself; and of course they subjected themselves to all the obligations imposed by the contract _ Who may have received the price or what may have become of it is perfectly immaterial. Whether Samuel Paclcwood threw it into the Mississippi or squandered it in any other way, cannot release the heirs of his wife from the obligations incurred by them by the acceptance of the community. Nor is it of any importance whether the notes belonged to him at the death of his wife, or whether these notes were a part of the community before her death or not. It is obvious that the source of the obligations of the heirs of Mrs. Paclcwood is the contract of sale, and will it be seriously contended that those obligations could be extinguished or modified quoad Stewart, by the direction that might be given subsequently to the proceeds of the sale, whether by the operation of law or by the aid of other parties without the consent of Stewan't ?

    I have thus far argued this case on the hypothesis that the community of acquets and gains continued after the removal of Paclcwood and his wife from Louisiana, in 1836, so far as the property then acquired was concerned, and that it was dissolved only with regard to future acquisitions, as decided by the old Supreme Court in the case reported in 12 Robinson’s Rep., 359. But such I humbly conceive is not a correct exposition of the community law of Louisiana.
    The community of acquets and gains is the creature of the law of Louisiana, and is entirely unknown to the legislation of every other State of the Union. The law regulating it is a real statute operating immediately and directly on the property itself, and can of course have no extra territorial effect. On w'hat ground, then, can it be contended that the interest of the wife in the community property, can be divested by the removal of the spouses from this State? To say, that although the community is dissolved, by that removal as to all future acquisitions, but that it continues to exist as to the property acquired during their residence in this State, and that the husband as the head of the community, retains the right of selling such property, is a gross and palpable fallacy. The community, w'hich had its inception by the effect of a real statute, from the moment the parties moved into this State, naturally ceased to exist from the time when their removal from Louisiana exempted them from the dominion of its laws. From that period, the legal partnership W'as dissolved, and the property acquired during its continuance, was held by the spouses in common, subject to the payment of the community debts. The power of the husband to sell the community property is given to him by the law's of this State, as an incident to the community, and it must therefore necessarily be limited to the duration of the community. That this is the correct view of the subject seems to me to be too clear to admit of a doubt. If so, w'hat becomes of the argument that the notes given by Stewart w'ere Samuel Packwood!s individual property ?

      Benjamin & Micou and Bradford and Hennen, for defendants.
    The third question which arises in the cause is the effect of the retrocession made by Stewart to Paclcwood. It is contended by plaintiff that this retrocession places the plantation in the same condition as if it had never been sold, and that it became again the property of the community which owned it when it was sold.
    It might be sufficient to rely on the authority of the decision already made in this cause in 12 Rob. Rep.; 366, and on the reasoning of Judge Bullard, then the organ of the court. But that decision is so strenuously impugned by the opposing counsel, that we deem it our duty to offer such further arguments in its support as have been suggested by our examination of the cause.
    It is to bo observed that the sale by Packwood was made by consent of his wife: that it w'as made in New York: that the price was there received by the husband with the w'ife’s consent, w'hilst both husband and wife were domiciled in New' York, and that at the wife’s death the notes which formed the consideration of the purchase, were in the husband’s possession in New York, and, by the law' of that State, were his personal and exclusive property. But admitting, for .the sake of argument, that these notes were not the separate and exclusive property of Packwood at his wife’s death, and that one-half of them belonged to her succession, it is perfectly clear that they formed no part of her Louisiana succession; that their situs was in New York, and that Packwood'cannot be called on in Louisiana to account for the administration of his wife’s New York estate. The domicil of his wife having continued in New York for four years before her death, that w'as the proper place for the opening of her sue-cession and. that was the principal administration, the administration in Louisiana being merely ancilla/ry: this principle is familiar and was fully recognised in the case of Gramllon v. Richards, Exr., 13 L. R., 297, where the authorities are cited.
    If this principle be correct, it follows, that even on the supposition of Mrs. Paclewood’s having died in the ownership of the moiety of the notes, the only right of an heir is to require of Samuel Paclewood in New York, to render an account of her half of the notes. If he has used her half in acquiring the possession or ownership of property, which belonged to a third person at the date of her death, he may be responsible for the conversion of her assets to his own use; but, surely, it cannot be pretended, that the title to the property so acquired enures to the heirs of those assets. It is not believed that a case can bo found in the books, in which it has ever been contended that real estate purchased by a trustee, vests in the cestui que trust, ■ for the mere fact of the trustee’s using trust funds in making the purchase. Paclewood had no right to acquire real estate for the heirs of his wife — to invest their assets in a plantation and slaves; and if he had taken a reconveyance in their names, his act would have been utterly null and void, as made without a semblance of authority. How, then, can it be protended, that in acquiring title in his own. name for his individual account, he really bought for them ; and still further, how can it be pretended, for a moment, that after the title was recorded in his name and he had conveyed to third persons, innocent and ignorant of the facts, they can be divested of their title, in favor of an heir, who may choose to say, that ho adopts Paclewood's act in taking- the retrocession, and elects to consider it as couvejdng a title to himself?
    But, independently of these considerations, there is an error lying at the very foundation of the position assumed by the plaintiff’s counsel. It is assumed by them, that there was a simple rescission of the sale, by agreement, between vendor and vendee — that there was what the French lawyers call a “ désistementThe evidence in the cause, shows this assumption to be entirely erroneous. The sale was consummated by a delivery, and Paclewood received an account, of the price, under attachment proceedings, the sum of $4,192 65 from Lambeth & Thompson, and $9,157 27 from T. J. Paclewood. In addition to these payments, Stewart deposes, that Paclewood, having obtained a judgment against him for a part of the price, it was agreed that he should pay to Paclewood $2,800, and execute a sale of the plantation to him, and that Paclewood should return the notes given for the price.
    So far, then, from a simple rescission of the sale having been agreed on, Stewa/rt gave Pachwood a transfer of the plantation and a sum of $2,800, in addition to the amounts recovered from the garnishees, as a consideration for the return of his notes. It is an utter perversion of facts and of the plain meaning of language, to call an agreement of this kind, a simple rescission of a sale, which replaces the parties in the same position, as if a sale had never been made. The Code, art. 2040, defines the resolutory condition as that, which, when accomplished, operates the revocation of the obligation, “ placing matters in the same state as though the obligation had not existed.” But the art. 2041 provides as follows: “ A resolutory condition is implied in all com-
    mutative contracts, to take effect, in case either of the parties do not comply with his engagements — in this case the contract is not dissolved of right. The party complaining of the breach of the contract, may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.”
    The contract between Stewa/rt and Faclewoodv/as not dissolved at all, neither of right,, nor by agreement, but there was a re-sale for a new consideration, different from that of the original sale.
    This point is discussed by Pothier, with his usual lucidity, in his treatise “ Des Fiefs.” By the feudal law, the lord of the manor was entitled to a certain duty on all mutations of property, which, under the customs of Paris and Orleans, amounted to one-fifth of the price, and was called “profit de quint.” A question, therefore, frequently arose between the Seigneur and the vassal, ‘ whether or not there had been a real mutatioD. Pothier in this treatise discusses the question whether there was duo to the Lord this profit de quint when the vendor took back the property, because the vendee had not paid. The solution of this question evidently depends on the fact, whether there was a simple rescission of the former sale — a mere annulling of the first contract— or whether there was a new contract of sale by the original vendee to the original vendor. He says, then, after laying down the rule, that on a simple rescission of the original sale, the duty is.not due:
    “Pour que le vendeur, qui rentro dans son heritage, ne doive pas un nou-veau 'profit, il faut qu’il y rentro prétisément pour le máme prix gu'il I’a vendu; car, si la convention qu’il a cue avec l’acheteur pour y rentrer, contient quel-que difference dans les conditions avec le premier contrat, cette convention, des lors, ne peut plus passer pour un simple désistement de ce premier contrat, mais elle formo un nouveau contrat de vente qui doit opérer un nouveau profit.”
    But there is still another difficulty, which plantiffs will find insurmountable, in the attempt to apply their doctrine of retroactivity, in this case. There can he no retroactive effect, unless the parties to the sale and its rescission he the same, and in the same quality. Now, Samuel Paahwood, in his sale, according to the theory of plaintiffs, acted as head of the community, and sold for the community. But, at the date of the re-sale, there existed no community, and it is, therefore, impossible that there could be a retroactive effect. Take the case of any two parties, instead of that of husband and wife; they sell for notes — one dies — the other purchases the property hack in his own name from vendee. Can any one pretend that the heirs of the deceased became joint owners, by virtue of this purchase by the survivor in his own name, even admitting him to have wrongfully converted his. deceased partner’s share of the price to his own use for the purpose of obtaining the re-sale? Clearly, not! and if authority be w’anted on this point, PotMer again comes to our aid:
    “ Mais si le vendeur avait cédé ou legué la créance du prix á un tiers, et que l’acheteur abandonnait a ce cessionaire ou légataire l’héritage pour étre quitte du prix de la vente, cette convention serait une nouvelle vente qui opérerait un nouveau profit. Oar cette convention ne pourrait passer pour un désistement du premier contrat de vente, ce désistement ne pouvant se faire qu’entre les parties contactantes.” Pothier loco citato.
    If then the community sold, then there could be no désistement de la vente, because the vendor no longer existed, arid the désistement can only take place between contracting parties.
    The right of rescinding a sale for non-payment of the price can only exist in the party having a right to demand the price. Now if it be once admitted (and this whole branch of the argument proceeds on this admission), that there was a real sale to Stewao't by Paahwood and that Paelmood was in lawful possession of the notes at the death of his wife, it is quite obvious that his wife’s heirs had no right to demand the price from Stewart. Then how is it possible that they who could not ask Stewart to pay the price, can become owners of property which was only given up by him because he was in default for the payment of that price. As the judge below well puts it in his reasoning, were the heirs of Mrs. Paahwood bound towards Stewart as his vendors — could he have exercised any claim against them in the event of eviction ? Would they not have laughed to scorn any claim made against them as vendors? and if so, how can they possess the rights which the law gives to vendors alone ?
    Both on reason and authority we consider the former decisions in this controversy as unimpeachable and rely confidently on the affirmance of the judgment in favor of defendant.
    See case, No. 2,872, Johnson v. Weld, decided 26th April, 1853.
   Slidell, O. J.

(VoonniES, J., and Campbell, J., concurring.)

I have doubts whether, under the circumstances of the case, the notes having been received by Paahwood in New York, where he and his wife were then domiciled, and being there in his possession after her death, a half interest in them vested in her heirs. Assuming, however, that such an interest, vested in her heirs on her death, grave difficulties remain.

I concede that this matter is not res judicata against Mrs. Morton. But this very subject of rescission of the sale to Stewart, has been solemnly decided by the Supreme Court, after elaborate argument, in the case of Paahwood's succession, 12 Rob., 369; and to overrule their decision, upon the faith of which parties have acted and rights have been acquired, is a very grave thing and ought not to be done unless that decision be manifestly erroneous. This I am not prepared to say. To effect a rescission of the sale, so as to replace parties in the same position as if a sale had never been made, the parties to the sale and the rescission should be the same. But on the death of his wife, Paclmood ceased to represent the community, and he did not even profess to represent it or the heirs of his wife, but took the title in his own name and for his individual account. Even if he had taken the title in the name of himself and his wife’s heirs, it would have been an unauthorized act, and not binding on them. But, I repeat, he did not do even that. He took the title to himself, and the recourse of his wife’s heirs against him, if any they have, is to make him account for their funds converted to his own use.

I understand the opinion of Mr. Justice Ogden, as conceding the title was not in the heirs, unless they chose to adopt and ratify the unauthorized action of Pachwood. But if they could so adopt and ratify, ought their election under the circumsiances to retroact so as to defeat the title previously acquired by White and Trufant ? It seems to me it should not.

I am therefore of opinion that the judgment should be affirmed.

Ogden, J.,

dissenting, with whom concurred Buchanan, J. The material facts which gave rise to the important questions presented in this suit, may be found stated at length in the reported cases of Succession of Alice Packwood, 9 Rob. Rep., 438 ; Succession of Packwood, 12 Rob. Rep., 334, and Morton et al. v. Packwood et al., 3 Ann., 170.

The present .plaintiffs are the assignees of the rights of Mary and Ann Paah-wood, wife of George 0. Morton, and one of the heirs of Alice Paclmood. She was one of the parties in the case referred to of Morton et al. v. Packwood et al. In that suit she, in conjunction with her co-heirs, all children oí Alice Pachwood, sot up a claim against the defendant, their father, to recover seven-tenths of an undivided moiety of a plantation called Myrtle Grove, and slaves, in the parish of Plaquemines, alleged to belong to the community which existed between their father and mother. The claim was resisted by a plea of res ju-dicata, which was sustained in regard to all the plaintiffs except Mrs. Morton, and her assignees have now revived the suit for that portion of the one undivided moiety of the property to which she would be entitled if it is held to belong to the community. The grounds on which the claim in this case rests, are the same in every respect as those which are made the basis of the claim heretofore set up by the co-heirs of Mrs. Morton, and which was decided adversely to them in the case referred to of the Succession of Packwood, decided in 12 R. R.

The plaintiffs allege that Paclmood and wife were married in the State of Connecticut, and in 1804 they removed to the State of Louisiana, where they resided until 1836, when they removed to New York, and while residing there Mr. Paclmood died in 1840. That while they resided in Louisiana, they acquired a large property, all of which belonged to the community. That, on the 23d of May, 1840, Paclmood sold the property in controversy, belonging to the community, to David Stewart, of Baltimore, for $100,000, payable in six equal instalments, for which notes were given. It is averred this sale was simulated, and did not change the title to the property. It is further alleged that if it was a real sale, the property reverted to the community by virtue of a retrocession of the property to Paakwood, ma.de by Stewa/rt on the 27th of July, 1843, in consideration of the return of the six notes which he had given for the price.

Oliver & Truefant, purchasers of the property from Paakwood, since its retro-cession to him by Stewart, and the other heirs of Alice Paahwood, are made defendants in the suit, and several grounds of defence are set up, which we shall notice in the order in which they are presented.

The first, is the plea of res judicata, which it is* attempted to sustain, by showing that in 1844 some of Mrs. Morton's co-heirs presented a petition calling on PacleiBOod, as executor of his wife, for an account; which account was rendered and duly advertised. That an opposition was made to it by the other heirs, on the grounds of the present action, and that the opposition was overruled, and the judgment overruling it sustained by the Supreme Court, on appeal. Mrs. Morton was not cited in those proceedings; she was in no manner a party to them; and her rights could not be in any manner affected by the judgment homologating the executor’s accounts. It is contended that the executor had a right to consider Mrs. Morton constantly in court as regarded all proceedings conducted by the counsel of Paakwood, because his counsel were also the agents and counsel of Mrs. Morton, and instructed not to oppose his claims. I am not aware that such a purely constructive presence in court, as that would be, has ever been held to constitute a person a party to a suit. The principle is well settled that either a citation to appear or an actual appearance in court is indispensable to affect the rights of a party by judicial proceedings, except in the case of creditors, where the law has declared public advertisement of notice to them to oppose an acccount equivalent to citation. The plea of res judicata is entirely unsupported.

The next ground of defence is that of estoppel. It is urged that if the circumstances do not justify the plea of res judicata in its technical sense, yet the plaintiffs, as assignees of Mrs. Morton are estopped from asserting this claim, because the adverse rights of Samuel Paakwood were set up by her agent, with her consent and direct approval. To sustain this branch of the defence, counsel have called our attention to throe letters in the record. The first is a letter from Mrs. Morions husband to Henry Lockett, Esq., dated 17th October, 1840, in which he says that at the request of his father-in-law, Samuel Paclmood, he encloses him a power of attorney from Mrs. Morion and himself, to represent them in the division of the estate, and makes enquiry whether his wife is entitled to half of certain bank stock of Mr. Paakwood, and to any monies deposited in bank, previous to his wife’s death. A reply to that letter is written by Loakett <& Miaou, as follows:

“We find that some of the other heirs of Mrs. Paakwood who have a common interest with you, have employed separate counsel, and that questions are likely to arise between them and Mr. Paakwood in the settlement of the estate. As we are specially engaged by Mr. P., you will perceive that the acceptance of your procuration might involve us in the representation of opposing interests; Mr. L. would, therefore, prefer that you should send a power to some other person.”

On the 5th December, 1840, Mr. Morton replies :

“Your favor of 28th ult. has been received, and I duly appreciate the motives of honorable delicacy under the influence of which it was written. This only serves to confirm me in the selection of you, Mr. Loakett, as the agent of Mrs. Morton, and I beg, therefore, that the power may be executed according to my original instructions. I beg to add, that it is the wish of Mr. Paokwood you should act, and that neither Mrs. Morton nor I will, in any event, allow our relations to Mr. P. to assume a hostile attitude in the case, or our action or interest to come in conflict with his.”

Under these instructions, Henry Loehett presented his petition to the court on the 17th March, 1841, praying the recognition of Mrs. Morton as heir, and of himself as her agent; and a judgment was entered accordingly on the 31st of the same month.

Lockett & Mieou also acted as the attorneys of Samuel Paokwood as executor of his wife, and on their petition as such, an inventory of the succession was ordered, and made on the 24th December, 1841. On the making of this inventory, Henry Loeliett appeared as agent of Mrs. Morton, and signed it. The inventory did not contain any reference to the .Myrtle Grove plantation, or its crops; and on this ground Dorsey & Neville, representing two other heirs, protested against it. But Mrs. Morton did not join in the protest, and the inventory was homologated by a judgment of the court.

These are the material facts from which it is urged that it would be contrary to equity and good conscience for Mrs. Morton to set up a claim to this property against Oliver & Truefant, who, it is said, had a right to suppose when they became the purchasers of the property that, from these acts of Mrs. Morton and her husband, they did not pretend to any claim whatever on the property. Considering that, when the above letters were written, the retrocession of the property from Stewart to Paokwood had not been made; considering that the right now set up, if existing, is purely the creature of the law, I am at a loss to comprehend why the willingness of Mrs. Morton, at the instance of her father, to employ for herself the same counsel employed by him, should involve her in the loss of her rights, by the silence and inaction of herself or her agents. These pleas being disposed of, it remains to consider the question of title presented by the facts, as before stated.

There is no evidence whatever of the deed from Paoimood to Stewm't being-simulated. The stipulation which is proved to have existed, securing to the purchaser the pi-ivilege of canceling the sale at any time before the final payment of the whole purchase money, upon a proper allowance of indemnity to Paokwood, the seller, did not render the contract null. The right to cancel the sale depended upon a proper allowance of indemnity to Paokwood, and this was not a potestative condition. Touillier, vol. 6, 497. Duranton, vol. 2, No. 30. The last and most important question in the cause, is the effect of the act of retrocession made by Stewm't to Paokwood. The case decided in 12 Rob. R, is direct on this point, and if the decision is correct, it settles the controversy. The learned Judge, now deceased, who was the organ of the Court when that decision was made, uses the following language: “There is no doubt that in cases of retrocession, properly speaking, the effect is to re-invest the title, as if no alienation had taken place; but that presupposes that the capacities of the contracting-parties remain unchanged. Now, according to the pretensions of the heirs of Mrs. Paokwood, her right to one-half of the notes, representing the price of the plantation, became, on her death, irrevocably vested in her heirs; and we repeat that Paokwood ceased to represent a community and the heirs of his wife.” From these premises, is it a legal conclusion that the retrocession did not have the effect which it is admitted by the Court it would otherwise have had, of reinvesting the title, as if no alienation had been made ? As Paokwood, at the death of his wife, was still in possession of the notes given by Stewart for the price of the plantation, the heirs of his wife were seized, immediately on her death, with the right to an undivided moiety of those notes, unless the fact of the removal of the residence of Packwood and wife to New York is to be considered as producing a difference in the rights of the parties, but I cannot see why such an effect should be produced. The plantation and slaves in Louisiana, it is admitted, continued to belong to the community, notwithstanding the removal; the notes represented the price of the property, and the community must be considered entitled to the price, as being the owners of the property sold. It is true that if the price had been paid, and had gone into the hands of the husband, before the death of his wife, he could have disposed of it as he pleased, and would have owed no account to the heirs; but as the price remained unpaid, the heirs of the wife had the same right to the price that they would have had to the property if it had never been sold.

When Packwood sold the property, although as head and master of the community, he had a right to soil it, even without the consent of his wife ; yet he sold it for her as well as for himself, because it was common property. If she had been living when the sale was canceled, on account of the non-payment of the price, Packwood would have been considered, in the ey e of the law, representing his wife, as partner in community, in the act of retrocession as well as in the original sale ; but the wife died before the retrocession, and her heirs became immediately seized of her rights. Why should a different effect be produced, because the moiety of the price then belonged to the heirs instead of to the wife? Under that change of circumstances, without the consent of the wife’s heirs, Packwood was perhaps incompetent to make the contract of rescission ; but as only half of the price of the property belonged to him, and the consideration for rescinding the sale, was the canceling of all the notes constituting the whole price, he must be considered as having undertaken to represent the heirs of his wife, and as having their title re-invested, as well as his own. By claiming the property, the heirs ratified the act. The legal consequences of the rescission of the sale, which fix the character of the title to the property, seem to me to bo entirely independent of the right of Packwood to represent the heirs of his wife. If it be one of these consequences of a rescission of the sale, on account of the failure of the purchaser to pay the price, to replace the parties in the same situation as if the sale had never taken place, it follows that the property, when retroceded to Packwood, must be considered as held by the same title as that by which he possessed it, at the date of the transfer to Stewart, which was a title in community.

On this subject, Touillier, in his Treatise on Obligations, says, that rescissions and even dissolutions of contracts, for a cause, going back to the origin of the agreement, are not considered as alienations properly so called, but rather as a return to thp former ownership which has not ceased to exist, or was only suspended. This principle he applies to the case of a dissolution of a sale for want of payment of the price, which he says is a cause going back to the origin of the contract, as the sale is always made under the condition expressed or implied, that the price shall be paid. See Touillier, vol. 4, Nos. 639, 648 and 660. Table 3, Contracts et Oligations conventionable.

The article 2040 of the Civil Code, declares that the dissolving condition, when accomplished, operates the revocation of the obligation, and places matters in the same state as though the obligation had not existed. Packwood had a right to claim the dissolution of the salo, by virtue of that dissolving condition, implied in all commutative contracts, and the effect spoken of in Art. 2040, as necessarily results from an agreement to rescind the sale for that cause, as from a judgment decreeing the rescission. Fulton v. her husband, 7. R. R., 75; Martee v. Roach’s Syndic, 8 La. R., 83 ; Power, Tutrix, v. Ocean, Insurance Company, 19 La. R., 30 ; Chrétien v. Richardson, 7 Ann. R., p. 2; Touillier, 12 V. No. 195.

It is contended by defendant’s counsel that the contract between Packwood and Steioart .was not a rescission of the sale, but a re-salc for a new consideration : that a sum of $2,800, in addition to certain sums recovered by suit, together with the property, was given by Stewart to Packwood, as a consideration for the return of his notes. Stewart had enjoyed the revenues of this plantation from the time of the sale, in 1840, until July, 1843. These revenues he was bound to return, as one of the effects of his failure to pay the price, and the consequent rescission of the sale. The evidence satisfies me that all the money paid by Steward formed part of the revenues received by him from the property; and from a letter of Packwood to his counsel, it is evident that the $2,800 was paid only as compromise or settlement of the amount thus due by Stewarrt. The argument which has been urged, that, at most, Packwood could only be viewed in the light of a trustee for the heirs of his wife, having used their half of the price in procuring the retrocession from Stewa/rt, assumes that it was a purchase of the property from Stewart, when according to my opinion, it was merely an act reinstating PacJcwood in his original title. His vendees were hound to ascei’tain the nature of that title, at the date of the transfer to Stewcm't, and they incurred only the same risk which every purchaser, under our system of community incurs, as the title to property of the community is generally taken in the name of the husband alone, it being, in my opinion, the legal effect of the rescission of the sale to Stewart to place the title where it originally was in the community, the title of the heirs of Mrs. Packwood must he considered as a legal and not merely an equitable title ; but if it were properly to be regarded as an equitable title only, Oliver & Truefant were not purchasers without notice, as the deed to them, on its face, discloses the existence, in my opinion, of such a claim.

I conclude that the plaintiffs are entitled to recover the property claimed in their petition; and that the judgment of the Court below ought to be reversed and the cause remanded, to settle the question of rents and profits.

Buchanan, J.

I concur in the above opinion of Justice Ogden.

Re-hearing refused.

      This sale and reconveyance is made for and in consideration of the sum of one dollar, and of the return and delivery to him, the said Da/oid Stewart, of six promissory notes amounting to one hundred thousand dollars, recited and mentioned in the aforesaid act of sale from the said Sa^mel Pack-wood to the said David Stewart; the receipt of which said sum and the delivery to him of the aforesaid notes, the vendor hereby acknowledges. Extract from conveyance of Stewart to Pachwood, of the 9th October, 1843.


author: Buchanan, J. Slidell, O. J.

text:
    A. P. Bethea v. Govey Hood.
    Arbitrators, before examining the difference to them submitted, shall take an oath before a Judge of Justice of the Peace, to render their award with integrity and impartiality in the cause. C. O. 8078. Parol evidence is incompetent to eke out an award, deficient in the essential formality of an oalh or the arbitrators.
    APPEAL from the District Court of the Parish of Carroll, Perkins, J.

      Drew, Bonner & Short, for plaintiff, cited 2 M., 305. Selby, for defendant and appellant;

      The plaintiff sues upon what he calls an award, written by his counsel, (testimony so written would bo rejected, 10 M. R., 441; 7 N. S., 321,) which would give Hood his own property, stable, notes, accounts, books and assets, connected with the stable, and make him pay all the debts connected with the stable, in the name of A. P. Bethea, or otherwise; and pay the plaintiff one hundred dollars a month, from Dec. 1840, till October 13th, 1852, and 8 per cent, interest upon the total amount, $3340, since Oct. 13th, 1852.
    Under the pleadings, the award only was admissible in evidence, and the District Court erred in admitting' the parol proof. 9 L. B., 174. 3 L. R., 348 and 350. 3 N. S., 180. The submission only authorized the arbitrators to say what Bethea's services should boa month, since or from the year 1850. The award is null, because: 1st: The arbitrators were not sworn. L. 0. 3078, and 3086. 3 M. R., 317. 9 M. R., 204. 15 L. R., 424. La. or Gireiner’s Digest, p. 182 et se/i. 2d: The defendant was not notified of the time or place of the meeting of the arbitrators, and had no opportunity of introducing his proofs, &c. L. C., 3077 and 3080. Had the arbitrators heard any evidence, called the parties before them, or even attempted a statement upon which to base an award it might have occurred to them to consider whether Bethea, with his family, lived all the time without receiving anything from Hood. 16 L. R., 362. 3d: The arbitrators exceeded the powers submitted to them. Greiner’s Dig., p. 182 et seq.

    The testimony of Wagnon is much relied on by plaintiff, that when the award was read to them: “ Hood said it was all right,’ and Bethea said it was all right, and each treated in Shavetail.” Proof of such declarations are the weakest of all kinds of testimony, under any circumstances. 13 L. R., 418. 11 L. R., 137. 9 L. R., 410-562. 6 Ann. R., 763. This is also for more than $500, for $3340, and the testimony of one witness is insufficient to establish it. L. C., 2257, and this witness had been one of the arbitrators; and at the time it does not appear that Hood know of the irregularities, that it was necessary that they be sworn, and that they had not been sworn, nor of the effect of them. 12 L. R., 465-12 ; R. R., 152.
   Buchanan, J.

This is a suit to render executory an award of arbitrators. The defendant opposes the said award on the following grounds of informality :

1st. That the arbitrators were not sworn.

2d. That the defendant was not notified of the time or place of the examination of the matters submitted.

3d. That the arbitrators decided without having any evidence or»testimony.

4th. That the arbitrators have exceeded their powers under the submission. The first, third and fourth of these grounds of objection are sustained by the evidence; but for the purpose of this decision, it is only necessary to notice more particularly the first.

Neither the submission nor the award make any mention of the arbitrators having been sworn; and two of these arbitrators, being called by plaintiff as witnesses in the case, testify that they were not sworn.

The want of this formality is fatal to the award. The Civil Code, article 3078, requires that arbitrators, before examing the difference to them submitted, shall take an oath before a Judge or Justice of the Peace, to render their award with integrity and impartiality in the cause. This article is copied literally from the Code of 1808, p. 422, Art. 13. Harrod v. Lewis, 3 Mart. Rep., 318. The case of Talcott v. McKibben, 2 Martin, 298, does not conflict in the least with this provision of the law. That was a case left, by consent of parties, and an order of court entered upon such consent, to five merchants named in the order, whose report was to be made the judgment of the Court. And even in that case, although from the language of the decision it might be inferred that the oath of referrees, under the circumstances, was not material, yet we find from the argument of the counsel as reported, that the report itself stated that the rcferrees were “first duty sworn.”

The counsel of the plaintiff in argument has urged upon the attention of this Court the evidence of one of his witnesses, that defendant had acknowledged the correctness of the award. But we do not understand the merits of the controversy between those parties to be before us. This action is not an appeal from the award of the arbitrators. 0. C., 3096. And it seems to be settled in the case of Sharky v. Wood, 5 Robinson, 326, that parol evidence is incompetent to eke out an award, deficient in the essential formality of an oath of the arbitrators.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that this suit be dismissed at cost of plaintiff in both Courts, without prejudice to the rights of the parties in asserting their original demands against each other according to law.

Slidell, O. J.

The action is brought upon an award of arbitrators'; the sum claimed under the award is $3340, with eight per cent, interest from 13th October, 1852. The defendant resisted the action upon the grounds, that the arbitrators were not sworn, that he was not notified of the time or place of examination, that the arbitrators heard no evidence, that their decision was unjust and exorbitant, that they have allowed him no credits, had no statement of the mode in which they arrived at their conclusions, and had exceeded their powers. There was judgment in favor of the plain tiff for the amount claimed, and the defendant appealed.

In argument here the validity of the award has been questioned on several grounds, a portion of which only I proceed to notice.

The agreement for arbitration is in these words: “¥e the undersigned do hereby agree to appoint two disinterested persons to say what A. P. Bethea shall receive per month for keeping the livery stables known as A. P. Bethea’s, and also for attending to other business which he had in his care. Should the two first persons not agree, then the said persons may call on the third person, and whatever they may determine, we the undersigngd agree to abide by, from the year 1850 to the present day, 13th October, 1852.

(Signed) Govey Hood,

A. P. Bethea.

The award bears date on the same day, and is as follows :

“ The undersigned arbitrators, to wit: John Bighter, appointed and selected by Govey Hood, in pursuance of the above submission, and Ha/milton JD. Wag-non, appointed by A. P. Bethea, after consultation, could not agree. We then selected Robert N. CJampbeTl, according to the above submission, and thereupon proceeded to award as follows: Govey Hood is to take the stable with all the property belonging thereto, and is to have all the book accounts, notes and assets, connected therewith, and the said Hood is to pay, and is hereby made responsible for all costs made by the stable for all purposes connected therewith, cither in the name of A. P. Bethea or otherwise. And the said Hood, is further awarded to pay to said Bethea, the sum of one hundred dollars per month from the first day of January, 1850, up to the thirteenth day of October, 1852. Said award is made as cash at this date. And should the said Hood fail to pay cash, then this is to bear 8 per cent, interest from this date. This done, and this pro-ces verbal made, this 13th day of October, A. D. 1862.

(Signed) John Rigetee,

H. D. Wagnon,

R. N. Campbell.

It is obvious, from a comparison of the agreement and award, that the referees exceeded their powers. They were to say what Bethea should receive per month for keeping the livery stable and for attending to other business which he had had in his care. The general expressions, “ whatever they may determine we the undersigned agree to abide by, from the year 1860 to the present day, 13th October, 1862,” cannot, in themselves at least, be considered as enlarging the purpose of the submission, so as to cover all matters in dispute between the parties. But the arbitrators have gone much further, have closed the entire accounts of the establishment, and while they restore its exclusive possession to Mood, make him answerable for all liabilities connected with it, either in the name of Bethea or otherwise.

The difficulty presented by this stretch of power on the part of the arbitrators is increased by'a consideration of testimony, which was received without objection at the trial, respecting their proceedings, by the nature of the transactions between these parties so far as they have been developed by the evidence, which is certainly very meagre, and by a fact apparent on the face of the award.

We gather from the evidence oral and documentary, that Hood, being the owner of the livery stable, had employed Bethea to carry it on, whether as a mere agent or as a partner does not appear. This state of things seems to have lasted nearly two years, and must have involved extended accounts of receipts and expenditures. The arbitrators disposed of the whole matter in a brief consultation on the day of the submission. They heard no testimony, are not shown to have examined any accounts, nor to have received any explanations, or heard any formal discussions from the parties or their counsel. Disagreeing, they named and sent for an umpire, Campbell, who says he knew nothing about the matter until five minutes before he acted; that the only question seemed to be, how much wages plaintiff should receive ; that the;f took no evidence in his presence; that at the time of the arbitration, Mood sat at the door of the stable, and Bethea was walking in the stable, but he could not say whether Mood knew what they wanted with him, Campbell. Another of the arbitrators says neither Mood nor Bethea knew what the arbitrators were doing, nor what was the difference between him and his co-referee. ’

There is a precipitancy and looseness in these proceedings, which leaves our minds dissatisfied with the conclusions of the referees; and the difficulty is much enhanced by a consideration of the very unusual circumstance of a person being employed for so long a time in such a capacity without any payment on account for his services.

It is true there is evidence of oral admissions by the defendant as to the correctness of the award; but this testimony is weakened by the consideration of the amount involved, and that the referees themselves could not have had a very accurate acquaintance with their duties or the subject matter, since they had to apply to a third person to write the award, not knowing how to do it.

On the whole, I am not able to come to a satisfactory conclusion as to the merits of this controversy, and therefore concur in the reversal.


author: Slidell, C. J.

text:
    Marshall & James v. Fall & Co. and Fall & Wilson.—Schaffer, Roberts & Co., Third Opponents.
    The transitas of goods is not atan end when they are in the hands of an agent for transmission to the vendee, and on the insolvency of the vendee, the vendor may retake them, although they may have been attached by a creditor of the vendee.
    There were two suits brought by the plaintiffs, one of which was for only $157 and interest. Held: considering the manner in wich the parties thought proper to try them in the Court below, virtually consolidating them, the motion to dismiss as to one of the suits should not be entertained against the appellants.
    PPEAL from the Second District Court of New Orleans, Reynolds, J.

      M. M. Oohen, for plaintiffs. Eanvner and Hays, for opponents and appellants :
   Slidell, C. J.

Schaffer, Roberts & Go. have appealed from the judgment dismissing their third opposition.

It appears the goods were sold in Philadelphia, by S. R. & Go. to Wilson, a resident of Texas, and were shipped, by a bill of lading dated October, 1852, by S. R. S' Go., marked W. L. Wilson, Marion, Texas, and consigned to M. B. Gooper & Go., of New Orleans. After their arrival in New Orleans, in December, 1852, Marshall & James brought suits by attachment against J. N. Fall & Go. and Fall & Wilson, of which houses Wilson was a partner, and garnisheed M. B. Oooper & Go. Thereupon 8. B. S Go. filed a third opposition and asserted their right of stoppage in transitu.

The insolvency of Wilson is, wo think, satisfactorily shown, independently of the testimony of Waul, to which exception was taken.

So far as the evidence informs us, M. B. Gooper S Go. were nothing more than agents for the transmission of the goods to the vendee. It cannot therefore be said that the transitas was at an end, and that the right of stoppage had terminated. See Kent’s Com., vol. 2,-p. 544. Smith’s Mercantile Law, 452; Hipp v. Glover, 15 La. 464. Cross on Lien’s, 369.

There are two suits brought by the plaintiffs; one of which is only for $15Y with interest. But considering the manner in which the parties have thought proper to try them in the Court below, virtually consolidating them, we think the motion for dismissal as to one of the suits should not be entertained against the appellants.

It is therefore decreed that the judgment of the District Court, dismissing the opposition of Schaffer, Roberts S Go., be reversed, and that the goods in the hands of the garnishees, M. B. Gooper &. Go., comprised in the bill of lading of the shipment by said Schaffer, Roberts & Go. to said M. B. Gooper S Go., be relieved from the garnishment of the plaintiffs, and that as to said plaintiffs the said opponents have leave to retake the said goods; the costs of said opposition in both Courts to be paid by the said plaintiffs.

Application for re-hearing refused.


author: Voobuies, J.

text:
    L. E. Simonds, Testamentary Executor of Cresswell, v. Mrs. John B. Byrne et als.
    Parol evidence, if objected to, cannot be received to prove title to a slave.
    A judicial admission by an universal legatee can in no manner whatever affect or impair any rights which may be acquired by legacy under a particular title.
    O. C.. 2255.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe & Singleton, for plaintiff.

      J. Ad. Hosier, for Mrs. Gresswell:

    The verbal sale is clearly proved by the testimony of Wise and Mcm'tin, and actual delivery of the slave was made previous to the death of Gresswell. Martin informs us that “ he was hurrying Gresswell to make a bill of sale, but he said it made no difference, tho slave had been sold, and the sale was good without it.” The sale was perfect. 0. 0. 2255. A price was agreed on, and actual delivery made. Tho sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for tho object and the price thereof, although the object has not yet been delivered, nor the payment made. C. 0. 2431.
    The words, “ with regard to the seller” clearly indicate, that a verbal sale of an immovable, as between the partios, is valid. As to third parties, the case is different. Widoio Byrne could object, in ordinary cases, to the introduction of testimonial proof. But here we see, by her answer, that she herself sets up a verbal sale. The universal legatee admits the fact. Who, then, has the right of insisting on the rejection of parol proof? Surely, not the executor of the vendor; and the slave sold, it is unnecessary to add, not being • a party to the suit, and for other reasons too obvious, has no right to contend that a written instrument of sale should have been executed. (Before the institution oi this suit Sarah Gresswell had been recognized as universal legatee, and been put in pos session of the succession) — See Commentaries of Troplong on art. 1583, C. N. The case of Morgan v. McGowan, 4 M. R., 209, quoted by the lower Court, has no application whatever to the suit now before this Court.
    The parol sale of an immovable is not void, either under the old or now Code; if a party acknowledge the agreement, or permit parole evidence of it to be given, it will be enforced. A contract is to be considered abstractly free from its form, — the instrument which is the evidence of it; the one is the nut,tho other the kernel. The writing is resorted to, in order to perpetuate the remembrance of the contract, but it is not of its essence. The Civil Code, 310 and 241, requires every covenant tending to dispose of a slave to be written. But it does not avoid a covenant, since it provides, that if a covenant be denied, its existence shall not be proved by parol; a negative pregnant with tho affirmative that it may, by the admission of the party in the pleadings in his judicial confession, etc. Wells v. Hunter, 5 N. S., 119; 4 La., 22; 4 Ann. 39.

      H. B. Genas for Mrs. Byrne.

   Voobuies, J.

The testamentary executor of JElihu Gresmell, deceased, sues for the recovery of a slave named Roger Sumner, alias George, as belonging- to the succession of the testator, “whoso last will and testament ordered freedom to be given to all slaves belonging to him at tho time of his death.”

The defendant sets up title to tho slave in dispute under an alleged verbal sale, accompanied by actual delivery, from Blihu Gresswell, made to her sometime previous to his death; and avers that she has over since been in possession of said slave as sole owner.

This case comes up upon a bill of exceptions to the opinion of the District Court, ruling out parol evidence to prove title to the slave George, as averred in the defendant’s answer. We do not think the District Court erred in rejecting the evidence. It is clear to our minds that this case does not constitute one of the exceptions recognized under the general rule laid down in Article 2255 of our Code.

It is equally clear to our minds, that the judicial admissions of a universal legatee can in no manner whatever affect or impair any rights which he acquired by legacy under a particular title.

We are not prepared to say that the District Court erred in refusing to grant a new trial on the grounds urged by the defendant and warrantor.

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

Re-hearing refused.


author: Campbell, J.

text:
    State of Louisiana v. Wm. Gates.
    The record of conviction should show that the jurors who tried the issue were sworn.
    Where the jury was sworn, and that fact can be proved, the record of the lower Court may be so amended as to supply the omission; and thus completed, it may, under a writ of certiorari, be laid before the appellate Court.
    APPEAL from the District Court of the parish of Madison, Bichao'dson J.

      Isaac E. Morse, Attorney General, for the State. 8taoy, Short & Barham, and Boselius, for defendant.
   Campbell, J.

This appeal is prosecuted from a judgment sentencing the appellant to imprisonment at hard labor.

Among other matters of error, it is assigned as ground for the reversal of the judgment, that it does not appear of record that the jury on whose verdict the judgment was rendered were sworn.

It is doubtless true as contended by the Attorney General, that whatever is alleged in arrest of judgment, must be such matter as would have been sufficient on demurrer. This is the general rule; but it necessarily has relation 'alone to such matters of law as are apparent on the record of the indictment, and cannot be so extended as to exclude, after judgment, an assignment of error for reversal (not in arrest) based on matters appealing on the record of conviction, which record must contain, in substance at least, a statement of the whole proceedings.

A material objection, says Mr. Ohitty, 1 Or. L., 752, to the record of the judgment will be sufficient to procure its reversal.

We think that the record of conviction is defective, in not showing that the jurors who tried the issue were sworn. The original entry on the minutes enumerates the jury; but does not state that they were sworn, and'this material fact cannot be supplied in a criminal case by the presumption of omnia rite acta, but should appear upon the record itself. Beale v. Campbell, 1 How. Miss. 24; Irwin v. Jones, ib., 494; 2 Blackford’s Reports, p. 272. See also the forms of records of conviction at the assizes, to be found in the appendix to the 4th Blac. Com., in each of which, after the recital of the names of the jury, is added “who being elected, tried and sworn,” etc.

If the jury were regularly sworn, and the Cleric omitted to make the entry on the minutes, it would have been within the province of the Court in the ex-ereise of an inherent power, to have directed, upon proper suggestion, that the minutes should he so corrected as to conform to the facts which really existed; 'for it is well settled that whenever errors or omissions in ministerial acts in. criminal proceedings, are satisfactorily shown, they may be amended at any time; and it has even been held that it is no objection to the amendment, that it was intended to supply an omission which occurred when a different Judge presided. 1 Ch. C. L., 335, 6 ; 1 Saund., 249, v. 1; 4 East., 175, State v. Folke, 2 A. 745.

If the jury were sworn, and that fact could be proved, the record of the Court could have been so amended as to have supplied the omission; and thus completed, it might, under a writ of certiorari, have been laid before us on the appeal.

The judgment of the District Court is therefore reversed, and the case remanded for a new trial.