text:
    The Commercial Bank of N. Orleans v. John Routh et al.
    An endorsement of a note executed by an attorney duly authorized, is binding on the principal.

      Notice of protest addressed to the post office where the endorser usually receives his letters, is sufficient.
    If the second of exchange be accepted, the holder may recover judgment on it, without accounting for the first of exchange.
    APPEAL from the District Court of Concordia, Wilson, J.

      L. Janin, for plaintiffs.

      Stacy and Sparrow, for defendants.
   Judgment of the late Supreme Court:

“ This action is brought upon a protested bill of exchange for $10,876 28, drawn at Natchez on the 25th of June, 1838, by Shipp, Ferriday 8f Co., on Bullitt, Shipp Sf Co. of New Orleans, payable eight months after date, accepted by the drawees, and endorsed by John Routh and Austin Williams, the payees and defendants; these endorsements purport to be made by William Ferriday, as their attorney in fact. There was a judgment of nonsuit below, from which the plaintiffs have appealed.

The only questions which the case presents are: 1st. Whether the defendants had authorized William Ferriday to bind them as endorsers on this bill ? 2d. Whether they have been legally notified of its protest? 3d. Whether the plaintiffs can recover upon the second of a set of exchange, without accounting for the first?

I. The record shows that on the 28th and 29th of Novembei', 1837, Williams and Routh executed special and separate powers of attorney to William Ferriday, of the city of Natchez, giving him the most extensive powers, and among others, “ full power and authority for them, and in their name, or in the name and for the use and benefit of him, their said attorney, or for the use and benefit of, or in the name or names of any other person or persons whatsoever, to make, endorse, draw, accept, and negotiate all promissory notes, bills of exchange, drafts, and other securities, of any and every kind whatsoevei',” dec. These powers were acknowledged befoi'e William Poindexter, a notaiy in the palish of Concordia, who gave up the original acts, which, on the 2d of December-, 1837, were deposited by William Ferriday in the office of H. B. Cenas, a notary public in New Orleans, who had them bound up in his notarial records. Copies of these powers, certified by H. B. Cenas, were annexed to the petition, and interrogatories were propounded by the plaintiffs to each of the defendants, to the following effect, to wit: 1. “Is not the endorsement of your name on the bill of exchange described in and annexed to the foregoing petition, in the hand-wi-iting of William Ferriday, and was not the same William Ferriday duly .authorized and empowei-ed by you to make said endoi-sement?” 2. “ Did you not, in November, 1837, at Concordia, execute and sign your within power of attorney to the said William Ferriday, in presence of witnesses and of William L. Poindexter, notary public ; and was not said power of attorney deposited by the said William Ferriday, by an authentic act of deposit, in the office of Hilary B. Cenas, notai-y public, at New Orleans, dated December 2d, 1837; and does not the annexed copy of said act of deposit of the document deposited, contain a true copy of the power of attorney granted by you to the said William Ferriday, in November, 1837 ?”

These interrogatories were no doubt propounded from an apprehension that the judge below might, as he did on the trial, and properly too, refuse to receive in evidence, copies that were not certified by the notaiy before whom the acts were passed, or by a power who was not the legal custodian of them, or authorized by law to give copies. L. C., art. 2247. In answer to the first interrogatory, Austin Williams said, that the endorsement of his name on the bill sued on, was in the hand-writing of William Ferriday, and proceeded thus: “Whether he was or not duly authorized by me to make said endorsement, is a legal question arising out of the construction of the power of attorney annexed to plaintiffs’ petition, which 1 do not feel myself competent to decide.”

To the second interrogatory, he answered: “I did in November, 1837, I believe, execute a power of attorney- to William Ferriday, as stated in the plaintiffs’ interrogatory, but do not know whether it was or not deposited in the office of Hilary Cenas, a notary public in New Orleans. I have not the original power of attorney, and cannot say whether the copy annexed to plaintiffs’ petition is true or uot.”

There is an admission in the record, that John Routh would make to the first interrogatory the same answer as Austin Williams and that he would answer the second interrogatory in the affirmative.

The district judge considered the answers of Austin Williams as insufficient to prove that he had authorized William Ferriday to make the endorsement on the bill sued on, or to establish the genuineness of the power of attorney of which a copy was annexed to the petition; under this view of the effect of these answers, he excluded, as to Austin Williams, all the evidence offered by the plaintiffs to make out (heir case against him, but admitted it as to his codefendant, Routh.

We think that the judge erred. The answer of the defendant, Williams, to the first interrogatory, is not that explicit and categorical answer required by law. When a party’s conscience is appealed to, he shall not be permitted to screen himself behind evasive answers and technicalities. The great advantage which such a proceeding gives him in establishing his defence, imposes upon him the corresponding obligation of answering fairly and directly. The question put to him was, whether he had authorized William Ferriday to make the endorsement sued on. Instead of answering that he did or did not so authorize him, ho states that this fact, upon which he is required to answer and which is within his own knowledge, must depend upon the construction to be given to the power of attorney annexed to the plaintiffs’ petition. Such a manifest evasion to answer a plain and direct question, might alone authorize us to consider the fact as confessed ; but taking the answer as it is, it at least implies and admits the accuracy of the copy and the verity of the original power of attorney, which his codefendant admitted in a more fair and candid manlier. The powers of attorney which are annexed to the petition, are moreover proven by William L. Poindexter, to have been the only powers executed before him by the defendants; he states that he gave up the originals, which he has since seen in the notarial records of Cenas, from which they could not be withdrawn, and that he compared these identical copies with the originals before they were sent up from New Orleans, and found them correct. Upon the whole, we are of opinion that the powers under which William Ferriday acted, are sufficiently proved, and that they were amply sufficient to authorize him to make the endorsements sued on.

II. On the day of its maturity, the bill was duly protested, and notice of protest was given by the notary of the bank to the defendants, in two letters written to each of them by that officer, and put into the post office of New Orleans : one of them was addressed to Natchez, Mississippi, the other to the “Parish of Concordia.”

It is shown, that both Routh and Williams are residents of the Parish of Concordia; that during the winter, spring and fail months, they live on their plantations on Lake St. Joseph, and near Natchez in the summer; that in 1838 and 1839, there was no post office in that parish, the inhabitants of which received their letters through post offices in Mississippi, on the other side of the river, Fort Adams, Natchez, Rodney, or Grand Gulf; that the Parish of Concordia, as then constituted, was 135 to 140 miles in length, and Natchez nearly opposite the centre of the parish. Several witnesses of the defendants slate, that their residence is only six or eight miles from Grand Gulf, while it is from fifty-five to sixty from Natchez; that Grand Gulf and Rodney are nearer to the majority of the population of Concordia, than Natchez; and that letters addressed to them through the Grand Gulf post office, were received by them. On the other hand, Lafferancline, for many years a clerk in the New Orleans post office, testifies, that letters simply directed to the Parish of Concordia, are always fowarded by that post office to Natchez. Woodson Wren, who was post master of Natchez if! 1839, says, that the Natchez post office is the nearest to the majority of the people, and where the greater part of the inhabitants of Concordia received their letters during the years 1828 and 1839; that there was no post office in Concordia in those years, and the nearest one on the Mississippi side was Rodney, but Natchez was the most convenient and central one for tho Parish of Concordia, the most business place, and the one of greatest resort. He further states, that both the defendants have been in the habit of receiving their letters from the post office at Natchez for the last seven years; that John Routh had a box at tho Natchez post office, in which his letters were deposited, by his request, during the years 1838 and 1839, but that he does not recollect if Williams had a box. We have often held, that when it is shown that an endorser habitually receives his letters through the more distant post office, a notice given through it is good. Bank of Louisiana v. Watson, 15 L. R. 41. Union Bank of Louisiana v. Brown, 1 L. R. 107; and the cases of Mead v. Carnal, and The Mechanics and Traders’ Bank v. Jameson, Dix & Co., decided at this term.

But even could there be any doubt as to the sufficiency of these notices, we think that those addressed to them “ at the Parish of Concordia,” in pursuance of the provisions of the act of 1827, are good. As we said in the case of Duncan v. Sparrow, 3 R. R. 166, this statute requires two formalities: 1st, that the notice should be put into the nearest post office where the protest is made; and, 2dly, that such notice should be addressed to die endorser at his domicil, or usual place of residence. These requirements of the law have been complied with. But it is urged, that the direction “ to the Parish of Concordia,” is entirely too vague, when it is recollected that in 1839, the length of the parish was one hundred and forty miles; this would be true, if there had been any post office in the parish near the residence of the defendants, or if they had lived in any town or village of the parish. 16 L. R. 20. But there being no post office there, it was impossible to direct the notices otherwise than simply to the Parish of Concordia; had they been directed to Grand Gulf or Rodney, however near to Routh or Williams’ houses, those places were not their residence or usual place of domicil, for they are in a different State; so, in the case of Duncan v. Sparrow, the notice was held to be bad, although directed to him at Natchez, the nearest post office to his residence, and that through which he received his letters, because it was not addressed to the place of his residence, «the Parish of Concordia.” L. C. art. 42.

III. To provide against losses and accidents, a set of two or more bills of exchange are usually made out, but provision is made on the face of each bill, that it shall be paid only in case the others are unpaid. It is not to be presumed that a drawee will accept more than one bill of the set. In 13 Peters, 205, Downs v. Church, the same point being presented to them, the Supreme Court of the United States said: “We are of opinion that the plaintiffs are entitled to recover upon the second of the set without producing the first, or accounting for its non-production.” We can come to no other conclusion in this case.

It is therefore ordered, that the judgment of the district court be reversed, and proceeding to give such judgment as should, in our opinion, have been rendered below. — It is ordered, adjudged and decreed, that the plaintiffs do recover of, and have judgment against, the defendants in solido, for ten thousand eight hundred and seventy-six dollars and twenty-eight cents, with interest at the rate of seven per cent per annum from the 28th of February, 1839, tho day of protest, until paid, with costs in both courts.

Same Case — On a Re- he akin g.

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

Eustis, C. J.

The defendants were sued as endorsers of a bill of exchange drawn in June, 1838, by Shipp, Ferriday 8f Co., of Natchez, payable ■ eight months after date, on Bullitt, Shipp Sf Co., of New Orleans, and by them accepted. The plaintiff was nonsuited in the court below, and on an appeal taken to the late Supreme Court, in 1843, the judgment of nonsuit was set aside, and judgment rendered against the defendants in solido for the amount ot the bill, with interest and costs. That court granted a re-hearing. The case has remained since that event on the dead docket. It has recently been placed on the regular trial docket, and has been submitted to us on an argument, in writing, of the counsel for the plaintiff.

Austin Williams is dead, and his succession is not represented; the caso, so far as his succession is concerned, remains in statu quo. The responsibility of Routh is alone the subject of our inquiry.

Tho endorsement of Routh was made under a power of attorney to William Ferriday, and we concur in the opinion of the court, that Ferriday had power to bind, and did effectually bind Routh, by the endorsement. Reynolds v. Rowley, 2d Ann. 894. In relation to the sufficiency of tho notice of tho protest of the bill to Routh, all doubt must disappear before the facts disclosed by the post master at Natchez. There was no post office at that time in Concordia. Rouih was in the habit of receiving his letters, most of the time, at Natchez, and he had a box at the post office there for the reception of his letters.

A question was raised as to the right of the plaintiff to recover on the accepted second of tho'exchange, without accounting for the first. Thero can be no doubt as to the right to recover. Downs v. Church, 13 Peters, 205.

The judgment of the Supreme Court gave the plaintiff seven per cent inters!,. Our impression is, that five per cent is all the law allows.

The judgment heretofore rendered in this case, by the former Supreme Court, be affirmed against John Routh, ábating two per cent of the interest.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    William Calmes, Tutor, et al. v. William Stone and Wife.
    An agreement, in writing, made by an attorney conducting a cause, and within the scope of his authority, is binding upon his client, although the counsel he changed.
    There is nothing so irregular in the court granting leavo tp an attorney to withdraw a commission, for the purpose of having it properly authenticated, as to justify tho rejection of the testimony.
    APPEAL from the District Court of East Feliciana, Stirling, J. July case.

      Muse and Merrick, for plaintiffs.

      J. B. Smith, for defendants.
   By the court:

Preston, J.

This is a petitory action, brought by tho heirs of Mrs. Calmes, to recover a slave named Isabella. They allogo, that the slave was given by their grand-mother to their mother, during life, and to them at her death. They prove it by a single witness, whoso deposition was taken in the State of Misssissippi, under a commission.

The deposition was objected to, on tho ground, that the commission to take it was issued by the deputy clerk of the district court in East Feliciana. An agreement was mado, in writing, by tho greater part of the members of the bar of East Feliciana, to waive this objection. It was signed by the counsel then conducting the defence in this case,- and was, therefore, binding upon the defendants, although they changed their counsel.

The execution of the commission was also objected to, as not being properly authenticated by the Governor of the State of Mississippi. At first, it was not; but the plaintiff obtained leave from the court to withdraw tho commission and testimony, and sent it back to the governor, who then authenticated it in due form. We see nothing so irregular in this ns to justify tho rejection of the testimony.

We have rarely seen a petitory action supported by such feeble testimony. A single witness proves, that the grand-mother of the plaintiffs, at a remote period, in South Carolina, loaned the slave to their father, and, by will, bequeathed her to their mother, during life, and to them, at her death. The slave is not mentioned in the will or inventory of the estate of the grand-mother.

The defendants have held the slave bona fide in this State, under an authentic act of sale, from one Christian, ever since the year 1840. But for the verdict of the jury, we should be compelled to nonsuit the plaintiffs. In consideration of that verdict, on evidence entirely unsatisfactory to us, we think it better to remand the cause, that the plaintiffs, who are minors, may have an opportunity of strengthening their case by other testimony. As to Elizabeth B. Calmes, one of the plaintiffs, there is no appeal, and the judgment must stand as to her. As to the other plaintiffs, the judgment of the district court must be reversed, and the cause remanded for another trial; and the appellees are condemned to pay the costs of the appeal.


author: Eustis, C. J.

text:
    Joseph Monget, Tutor, v. Joseph Penny et al
    Where a husband, without qualification or limitation, joined his wife in signing a promissory note, it will bo presumed, that he intended to bind himself for its payment; and not that he merely authorized her to incur the obligation.
    The maliers of a promissory note, which reads, “I promise to pay,” &c. &c., incur a solidary obligation.
    A father, acting in the capacity of tutor to his minor children, is the representative of the succession of their mother, and as such, the proper party tobe sued for adebt for which she was liable.
    APPEAL from the parish of East Baton .Rouge, Burk, J.

      George S.Lacy, for plaintiff.

      D. D. Avery, and Jrl. B. White, for defendants.
   By the court:

Eustis, C. J.

This action is brought upon a promissory note, signed by the defendant Penny and his Wife, against Penny and the heirs of his deceased wife.

The defendant himself pleaded the general issue, and, as tutor to his minor children, took an exception to the plaintiff’s action.

The case was submitted to the court below, on- the pleadings and on the evidence adduced. The court sustained the exceptions to the action, and dismissed the plaintiff’s petition. The plaintiff has appealed.

It is insisted in this court, that the judgment of the district court ought to be reversed, and an absolute judgment rendered against Penny.

The note sued on is to this effect: Twelve months after date, I promise to pay to the order of Thomas Lilley, two hundred dollars, at the Branch of the City Bank, New Orleans, &c ; signed, Ann M. Penny, Joseph Penny.

It is contended, that in signing this nolo Penny did not bind himself, but merely gave his authority to his wife to bind herself. We are of a different opinion. Penny having affixed his signature to the note without any qualification or limitation, must lie considered as contracting a personal obligation. If he merely intended to authorize his wife to bind herself, he should have so written, according to the uniform usage in such cases. He bound himself, by his signature, as a promissor, and is responsible in solido with his wife on the note. It reads as to him, 1 promise, &c., and does not imply a joint obligation, as if the plural, we promise, was-made use of.

The exceptions made by the defendant in his capacity as tutor to his minor children were, first, that the plaintiff’s claim, being against the succession of their mother, the minor heirs could not be sued by an action against their tutor, and judgment rendered against them, inasmuch as they were beneficiary heirs, and not personally responsible'for the debts of their mother; secondly, that the succession never having been subjected to a judicial administration, and no partition of the same having been made, the plaintiff should have caused an administrator to be appointed, against whom, as the legal representative of the succession, suit ought to have been brought.

We are of opinion, that the plaintiff was not bound to cause an administrator to be appointed to the succession, and that' the defendant, as tutor to his minor children, was the representative of the succession, and as such, the proper party defendant to the plaintiff’s suit.

It is therefore ordered, that the judgment of the district court be reversed, and'that the case be remanded for further proceedings against Joseph Penny, tutor of his minor children; and it is further ordered, that the plaintiff recover from the defendant, Joseph Penny, the sum of two hundred dollars, with interest at ten per cent per annum, from January 1st, 1841, with costs in both pourts.


author: Rost, J.

text:
    Elizabeth and Mary Jane Shields v. Ramon Lafon.
    The retrocession, by the surviving spouse, of property purchased during the community, will, if necessary on account of the debts of the community, be valid. The failure of the heirs to show that there is property to satisfy the debts, raises the presumption that the retrocession was not a volunrary act, but ex causa necessaria.

    The heirs of the deceased spouse cannot annul an act of retrocessioD, made by tbe survivor for the purpose of paying the debts of the community, without tendering the price of the property, and the interest due on it, up to the day of.the retrocession.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      Samuel P. Greves, for plaintiffs.

      George S. Lacey, for defendant.

      A. M. Dunn, for Nephler, warrantor.
   By the court:

Rost, J.

During the existence of the community between the plaintiffs’ father and mother, their father purchased from Francis Nephler, several lots and the improvements thereon, for the pribe of'$4Ú48, for which the purchaser gave his four prommissory notes of $1012 each, secured by mortgage, and payable respectively in 1, 2, 3 and 4 years, froni the 9th day of J anuary, 1830.

The plaintiffs’ mother died in 1833. No steps were taken to open or settle her succession, and on the 17th April, 1834, their father having disposed of some of the lots and accounted for the proceeds thereof to Nephler, and the remaining lots being still entirely unpaid, he went befpre a notary, and, in consideration of the notes he had given, and of the interest which had accrued upon them, made to his vendor, who accepted it, a retrocession of the property. The defendant holds the lot in controversy under this retrocession.

The plaintiffs, in right of their mothef, set up title to one undivided half of the lot, on the ground that the title vested in them at the death of their mother, and that they have never been legally divested of it.

It is in evidence that, at the death of the wife, the community owed many debts, and the plaintiffs have failed to show property to a sufficient amount to satisfy them. This forces upon us the conclusion, that the retrocession to Nephler was not a voluntary act, but was made ex causa necessaria, and on account of the utter inability of the commuuity to pay the price. Under the rule laid down in the case of Chretien v. Richardson, such a retrocession, when made between proper parties, has all the effects of a judgment decreeing a resolution of the sale for the non-payment of the price. 6th Ann. 2.

The property in this case would have returned to Nephler free from any mortgage or claim of the wife, if the retrocession had been made in her life time, the retrocession being inevitable if the vendor required it. The plaintiffs sustained no injury in consequence of the form in which it was made. If the father had been confirmed as natural tutor, and had made it, in that capacity, for the minor’s share, with a view to avoid the expense of litigation, we would undoubtedly have sustained it as an advantageous compromise, involving no alienation of the minor’s property. And as he who, without being a tutor, undertakes to manage the property of minors, subjects himqelf to all the liabilities of the tutorship, there seems to be no reason why acts done by him while thus acting, of which the minors have derived the full benefit, should not also be binding upon them, when third persons have acquired rights under those acts ; however this may be, the plaintiffs have not tendered the price of the land, and the interest due on it, up to the day of the retrocession. This is sufficient to defeat their claim.

Judgment affirmed, with costs.


author: SniDEim, J.

text:
    S. M. Brian, vs. Joel Spencer.
    An endorser, who pays a promissory note, when, inconsequence of an informal protest, he was discharged, obtains no greater rights against the maker than appertained to tlie transferror, by whom it was discounted, and from whom it was obtained. The same prescription is applicable to both transferror and transferee.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Muse and Merrick, for plaintiff.

      W. D. Winter, for denfendant.
   By the courf:

SniDEim, J.

.The note being informally protested, and the endorser being under no legal liability to pay it, cannot be considered in a more favorable light than as taking the rights of the bank with whom the makers had the note discounted. But the bank’s claim as holder of the note, was clearly subject to the prescription of five years, and the transferree of the bank is consequently subject to the same prescription. See Christine vs. Chaney, 5 Ann. 219.

In this case, it is unnecessary to consider whether an accommodation endorser, who has been legally made liable upon his endorsement, and pays the holder as endorser, is subject, as against the maker, to the prescription, of five years, established by the art. 3505, or the longer prescription established by art. 3508.

Judgment affirmed with costs.


text:
    John P. Walworth et al., Trustees, v. Succession of John Snodgrass et al.
    Although an action to subject propcrty>t*o the payment of the debts of the succession, on the ground that the possessor holds under simulated conveyances, should be brought by the administrator, and not by tho creditors of the deceased, yet where the creditors sues both the administrator and the fraudulent possessor, and the administrator adopts the prayer of the plaintiffs against his codefendaut, and asks that the property held by tho latter be restored to the succession and sold for the payment of debts in due course of administration : in such a case, the creditors are competent to sue.
    An answer was filed after the exception had been taken to the plaintiffs* action. Held: In determining* on the exception, the court was bound to take cognizance of the pleadings as „ they then stood.

      APPEAL from the District Court of the parish of Tensas, Richardson, J.

    Montgomery, for plaintiffs.

      Sami. R. Walker and A. N. Ogden, for defendants, contended:
    The suit is one brought on behalf of the succession, by one who shows no right to represent it, and cannot, therefore, maintain the action. The principle has been several times recognized by our courts, that an individual creditor is without right or capacity to exercise rights properly belonging only to the legal representatives of the estate. Vienne v.. Boissier, 10 M. R. 359. Miles Juclson, adm., v. Connolly and Husband, 5th Ann. 400. In support of the same doctrine, we refer to Story’s Equity Pleadings, par. 185, and to 4th Vesey’s Rep. 665.
   By the court:

Eustis, C. J.

The Court of the Tenth District dismissed the petition of the plaintiffs so far as relates to the defendant, John W. Snodgrass, on an exception taken by him to the plaintiffs’ action. The plaintiffs have appealed.

The plaintiffs, being judgment creditors of the late John Snodgrass, whose succession is represented by L. Vincent Reeves, administrator, brought their suit to subject certain property alleged to belong to the succession of the deceased, but to be held by his son, J. W. Snodgrass, under certain fraudulent and simulated conveyances, to the payment of their judgments. J. W. Snodgrass excepted to the action, on the ground that it could only be maintained in the name of the representative of the succession, and so the district judge held. The case of Vienne v. Bossier, 10 M. R. 359, supports the general principle on which the decision rests.

This case is different from that cited, and is somewhat complicated by the fact that the administrator of the succession was made a party defendant to the suit, for the purpose of obtaining judgment against the succession on a judgment rendered against Snodgrass, the deceased, in Mississippi. In his answer, the administrator joins the plaintiffs in their prayer to subject the property in the hands of Snodgrass, the son, to the debts .of the father, and asks that it be restored to the succession and sold for the payment of its debts in due course of administration. This answer was filed after the exception was taken to the plaintiffs’ action. In determining on the exceptio n, the district judge was bound to take cognizance of the pleadings as they then stood. The administrator was then in court, asserting the plaintiffs’ right of action for the benefit of all the creditors. Besides, the party excepting did not ask the dismissal of the petition on the exception being sustained. We think the district court erred, but the plaintiffs ought to pay the costs in the district court.

The judgment of the district court is therefore reversed and the case remanded for further proceedings, the appellee paying the costs of this appeal, and the plaintiffs the costs in the district court.

Application for re-hearing refused.


author: Sdideijc., J.

text:
    Nancy Hooper, Administratrix and Tutrix, v. James S. Rhodes et al.
    A plea of compensation, urged as matter of defence, and rejected by the court, cannot, in a ^ subsequent action, be made the basis of an injunction to restrain an execution on the for'jner judgment.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      George S. Lacy, for plaintiff.

      A. M. Dunn, for defendant.
   By the court:

Sdideijc., J.

This injunction suit is an attempt to renew, in another fonn, a plea 'n compensation which was rejected bythiscourt in Rhodes et al. v. Hooper, 5th Ann. 357, the decree, in which case, Rhodes et 'al. were attempting to enforce by fieri facias when they were arrested by the present injunction.

The district court did not err in dissolving the injunction, so far as it rested upon the alleged right of compensation.

Another ground for the injunction, setup by Mrs. Hooper, was, that she had deposited in the hands of the clerk a sum of money equal to the amount of the judgment obtained by Rhodes et al., in the case cited, less the portions due by them to her by reason of her payment of the Union Bank mortgage, which is spoken of in the decree in that cause, and was the subject of the plea in compensation, which we then refused to entertain.

¥e haye considered the terms of the deposit, the correspondence between the attorneys of the parties, and all the circumstances of the matter as disclosed by the evidence, and are of opinion that it would be improper to disturb the conclusion of the district judge, who thought the judgment creditor was not estopped from issuing his execution for the balance of the judgment, by receiving the amount deposited in court,

Judgment affirmed ; the costs of appeal to be paid by the appellant.


text:
    Ann Ray v. M. Harris et al.
    The conduct and declarations of both parties to a written agreement, may be admitted to prove a fraudulent simulation. Such is also the rule of the common law.
    At the common law, a person who receives property under a fraudulent conveyance, to screen it from the debts of the owner, cannot sustain the conveyance in an action against a subsequent vendee who derives title from a sale by the same owner.
    APPEAL from the District Court of East Feliciana, Stirling, J.

      Stocton and Sawyer, for plaintiff.

      James H. Muse, for defendants.
   By the

court:

Preston, J.

The plaintiff, residing in the State of Mississippi, brings this suit to recover a number of negroes from several defendants. She claims them under a bill of sale made to her by her brother-in-law, Thomas C. Patterson, in Lawrence county, in the State of Mississippi, on the 2d day of August, 1839.

The defendants hold the slaves by virtue of notarial titles, made to them by one O’Connell, in the parish of East Feliciana, in the year 1841; and he derived title by a lilt© act, from the same Thomas C. Patterson, dated the 15th of April, 1841. ‘

The defendants aver, that “the pretended act of sale mentioned in the plaintiff’s petition, if any such exists, was and is a false, fraudulent and collusive act and transaction between the said Patterson and plaintiff, Mrs. Ray, entered into without consideration, and intended to defraud all and every person who has had or might have dealings with one or other of said parties, and the plaintiff ought not, and should not have any action based on said pretended, false and fraudulent instrument.”

This pleading clearly indicated to the plaintiff, that the defendants intended to show that the bill of sale, upon which she relied as the foundation of her suit, was a fraudulent simulation. She took no exception to the answer, and throughout the suit the defendants contested her title on this ground.

The witnesses, as usual in such cases, are numerous; the examination and cross-examinations protracted and tedious; the record is studded with bills of exception, and is extremely confused and voluminous.

We do not deem it incumbent upon us, in this case, to digest and detail the testimony, or even to express an opinion on all the bills of exception. Those which were taken to the admission of evidence to show the acts and declarations, and even the silence and omissions of the plaintiff when she should have acted, and also the acts and declarations of Patterson, her apparent vendor of the slaves, we think unfounded. The defendants are sued by virtue of a bill of sale made in Mississippi many years before the commencement of the suit, and also anterior to their open possession, in good faith, of the slaves, under formal titles made in Louisiana, and derived from the same vendoi. They allege that the title made to the plaintiff', by this vendor, is a false title ; “a pretended title, made without consideration ; a fraudulent title in a word, a fraudulent simulation.

They undertake to show this, and under our laws may do so ; and the conduct and declarations of both parties to the instrument have always been admitted in evidence for that purpose. And we do not believe that, at common law, a fraudulent paper which, after accomplishing its purposes of screening property from the just pursuit of creditors, has slept for years as a nullity, could afterwards be raked up and successfully used for the fraudulent recovery of the property from bona fide purchasers, from the real owner. And, further, that the acts and declarations of the parties to the paper might be given in evidence to show it a fiction, in defence of such a suit. This being established, there is ample evidence in the record, which is manifestly legal and free from other exceptions, to lead us to the conclusion, with the jury and district court, that there should be judgment for the defendants.

The bill of sale purports to transfer from Patterson to the plaintiff, fifteen slaves, wagons and oxen, horses, and stocks of cattle and hogs, household furniture and family utensils, in consideration of eight thousand seven hundred and twenty dollars to him paid. He had just been sued for a largo debt, and the evidence leaves no doubt on our minds that he was embarrassed, if not insolvent, and had, therefore, motives to make an apparent sale of his slaves to his sister-in-law, the plaintiff. It is hardly pretended, that he delivered the other effects mentioned in the bill of sale.

The evidence satisfies us that the plaintiff, Mrs. Pay, was also embarrassed at the time; that she not only had not eight thousand seven hundred and twenty dollars, but no means to make such a purchase. She was a widow woman, kept a boarding house in the interior of the State, not even in a village, was raising her family expensively, and had but little property.

As soon as the sale was made, in Lawrence county, Patterson moved near to her, in' Franklin county, and, we think, kept possession of all the property except a few of the slaves. He soon afterwards moved to Clinton, in Louisiana, and there possessed and sold the slaves. We do not believe that they ran away or were stolen by him, but that he took them away from the State of Mississippi because they were, in reality, his own property.

Patterson claimed hire for the slaves while they were in the plaintiff’s possss- ■ sion. She claimed five hundred dollars from him as a reason for retaining them, but entirely failed to make the efforts to reclaim them when taken away, which would have been made by a real owner.

The evidence convinces us that the plaintiff knew that Patterson had brought the slaves to Clinton, in Louisiana, and that he had sold some and kept others; and that she acquiesced in it three or four years, because the slaves were his, and not hers.

It is inconceivable that she should have placed her daughter at his house, for the purpose of education, at Clinton, knowing that he had stolen, and was in possession of, some of her slaves.

An intimate and confidential intercourse existed between the plaintiff and her brother-in-law, Patterson, and his family, after he sold the slaves in Louisiana, and even to the present time; which is utterly inconsistent with the supposition that he run off her slaves, to her knowledge, and sold them in Louisiana

We have strong reason to believe that this suit is prosecuted, not for her benefit alone, but also for the benefit of Patterson, who sold the slaves in Louisiana, received the price, and under which sale the defendants hold the title and possession of the slaves.

We will not recapitulate the evidence in detail, but will observe generally, that we have rarely had under consideration a suit in which we were more strongly convinced of an attempt to impose upon the court, and deprive honest purchasers of their property, by a false and fictitious sale.

The judgment of the district court is affirmed, with costs.


author: Slidell, J.

text:
    Mary Gale v. Andrew Matta.
    In a contest between the wife, who claims a tacit mortgage on immovable property sold by the husband after the right of mortgage accrued, and parties who claim through the privilege of theliusband's vendor, the circumstance, that the act from which the privilege resulted, wasnot recorded, is fatal to the pretensions of the latter.
    The law gives to the wife a tacit mortgage upon the husband's immovable property, dating from the conversion of her paraphernal funds to his own use.
    Prescription is suspended daring man-iage, when the husband, having sold an hereditary estate of the wife, without her consent, is bound in warranty for the validity of such sale ; and in every case where the action of the wife may be prejudicial to the husband. C. C. 349.
    APPEAL from the District Court of the parish of East Baton Rouge, Burk, J.

      J. M. Elam, for the plaintiff.

      George S. Lacy, for the defendant.
   By the court:

Slidell, J.

This is an hypothecary action, in which the plaintiff, a married .woman, seeks to enforce her tacit mortgage against a lot of ground, now owned by the defendant.

The defendant having denied the existence of the alleged claims of the plaintiff against her husband, James XL Stuart, it is necessary, first, to ascertain the existence and amount of his indebtedness.

In 1843, Mrs. Stuart brought suit against her husband for a separation of property, and to enforce her claims against him for paraphernal property converted to his own use. In her petition, she alleged two items of indebtedness, one for the sum of $1800, for so much money received by her husband from the estate of her father, the other for the sum of $1250, the alleged proceeds of the sale by him of two slaves belonging to her. She obtained a judgment against her husband for $2940. From the evidence now offered, which consists in part of the testimony of the same witness who testified in the plaintiff’s suit against her husband, it does not appear that the amount received by Stuart from the estate of his wife’s father, exceeded $1500. This indeed was the extent of proof as to that item in the previous suit. With respect to the other item of $1250, it appears that such was the price at which the wife obtained the slaves at the probate sale of her father’s estate ; but the price at which her husband subsequently sold them is now shown to have been $700. It appears, therefore, that the true amount of the wife’s claim against her husband is a capital sum of $2200. She collected by fieri facias againsther husband, on the 14th April, 1845, $1222, which left, after the allowance of interest and costs, a balance due on that day of $1235 50. For this amount the law gave her a tacit mortgage upon the husband’s immovable property, dating from the conversion of her paraphernal fund to his own use, which date is prior to the purchase by Stuart of the property now owned by the defendant.

The defendant attempts, on various grounds, to escape the effect of this tacit mortgage.

The lot of ground now owned by the defendant, was bought by Stuart from the syndics of Alfred Gales, an insolvent debtor, in 1838, for $4000, payable as follows, as expressed in the deed of sale : “ $1200 are to be paid to the Bank of Louisiana, in discharge of a bond subscribed by Alfred Gates to said bank; $1600 to Mansker-, and for their liabilities as endorsers on a note due to the Carrollton Bank, for which, the above named amount, the said house and lot are mortgaged ; and the balance of $1200 is payable in one, two, and three years from the day of sale, for which balance, the said purchaser furnished three notes of $400 each.” In 1840, Stuart sold the lot to Nancy M'cGilligan, at the price of $4000, of which amount apart was paid in cash ; and for the residue, the purchaser assumed the payment of various debts due by Stuart, and enumerated in the deed. Among these, were'an amonnt of $800 due to the Bank ofLouisiana, on the 16thApril, 1840, anda note of Stuart, endorsed by A. Matta, and A. Adams, due 26th October, 1840, for $1200, and held by the Carrollton Bank.

In 1843, Nancy McGilligan sold the lot to Matta, the defendant, who has possessed it since that time.

Although the evidence is somewhat obscure, there is perhaps enough'to satisfy the mind, that Matta paid two thousand dollars upon the claims of the Bank ofLouisiana, and of the Carrollton Bank. The debt due to the Bank of Louisiana, which existed in the form of a bond for $2000, bearing date the 16th April, 1833, and signed by Alfred Gates and Andrew Matta, as principals, and James Mansker, as surety, does not appear to have been novated. It had been reduced by partial payments from time to time, and on the 10th April, 1841, W.B.Knox, made a payment upon it of $800. Knox testifies that he made this payment for the benefit of Matta.

The debt to the Carrollton Bank, which Stuart assumed in the deed by which he purchased the lot, in 1838, seems to have been novated. It first existed in the form of a note made by Gates and Malta, endorsed by Mansker and Dewey, dated 27th October, 1836, at 12 months, for $2000. This claim, after passing through various renewals, and being reduced from time to time, appears on the 24th October, 1839, in the form of a note made by J. D. Stuart, endorsed by Matta, Adams and Mansker, for $1200, at twelve months ; and it would seem that Matta took up this last mentioned note, on the 22d October, 1840, with his own means.

Now, the argument is, that the agreement of Stuart to pay the claims of the Bank of Louisiana, and the Carrollton Bank, formed part of the price of that purchnse, and was protected by the vendor’s privilege ; and that when Matta paid the balances remaining due upon those claims, he became legally subrogated to all the privileges of Stuart’s vendor.

Aside from other difficulties which surround the pretensions ofthe defendant, an insurmountable obstacle to his success is found in the fact, that there is no evidence to show that the vendor’s privilege arising from the sale tox Stuart, or the mortgage granted in it, were preserved or made effectual by registry. Whether any registry was ever made or not, it at least appears, that no such encumbrance was of record against Stuart in the year 1840, when he sold to Nancy McGilligan. And it is quite material here to add, that, in a tableau of distribution, filed in the year 1839, by Matta, as the syndic of the creditors of Gates, he makes .the following statement: 1 ‘ The store on Church street was sold to James D. Stuart for $4000 ; but, as that property was specially mortgaged to the Louisiana Bank, for the sum of $12C0, and also to Messrs. Mansker and Dewey, for the sum of $1600, to secure them against their endorsements for that sum to the Carrollton Bank, such arrangements were' made with the purchaser and with the said Mansker and Dewey, and with the said banks, that said mortgages were satisfied, and the notes of said Gates in favor of said banks were taken up; and for the balance of the pi'ice, being $1200, the said J. D. Stuart gave his three notes, agreeable to the terms of the sale.”

It seems to be assumed in argument by the defendant’s counsel, that a distinction can be made between a wife and other mortgage creditors; and it is said, that “ if there were no subrogation, equity, if not law, would forbid the wife’s mortgage from resting upon any property belonging to her husband, until she had paid to another the sum by him advanced for the purpose of discharging the price.”

That under some circumstances a distinction may be made between a wife and a third person, may be true. The case of Dejean’s succession, 5th Ann. 594, cited by the defendant, affords an illustration. But in this case, Mrs. Stuart is separated in property from her husband, and we have been unable to discover any sufficientreasons for arrestingher in the enforcement of her tacit mortgage upon the land in question. Our laws, granting the wife a mortgage, rendering it operative against third persons without registry, and thus sacrificing to her interests the rights of those whom her husband is bound to warrant and defend, may be harsh in their effects, and anti-commercial in their character. But these are considerations of policy which are out of our province.

With regard to the plea of prescription often years, we are of opinion that it cannot be sustained. Prescription is suspended during marriage, when the husband, having sold an hereditary estate of the wife without her consent, is bound in warranty for the validity of such sale; and in every case where the action of the wife may be prejudicial to her husband. Civil Code, 3491. C. N., 2256, Rogron. Poshier, Traite de la Prescription, No. 25.

As co the alleged right of discussion, it is sufficient to say it has not been properly exercised. See Civil Code, 3366, 3016. Robechot v. Folse, 11. L. R. 136.

The district court erred in giving an absolute judgment against the defendant personally. This was not consistent with the provisions of the Civi.l Code and Code of Practice, nor with the prayer of the petition. See C. C. 3363, 3364. &c. C. P. 68, 69. We will give the plaintiff a judgment for the enforcement of her mortgage, according to the prayer of her petition, and for the amount really due to her by her husband.

It is therefore decreed, that the judgment of the district court be reversed. And itis further decreed, that the said defendant, Andrew Malta, do, within ten days from the date when this decree becomes final, pay to the said plaintiff, Mary Gale, wife of James D. Sluart, the sum of $1235' 50, and interest thereon, from 14th April, 1845, until paid, and costs of this suit in the court below; and that in default thereof, the said plaintiff have leave to seize and sell according to law, the real estate described in the petition, and in the act of sale dated 3d November, 1838, by Gates and Matta, syndics to James D. Stuart, whereof a copy is to said petition annexed, together with the buildings and improvements thereon. That in addition to making the usual total appraisement of said laud and buildings and improvements preparatory to such sale, a separate estimate be made at the same time, by the appraisers, of the increased value at the time of the appraisement, which is the result of the brick buildings thereon erected, and a separate estimate of the said land and improvements without said brick buildings ; and that in distributing the proceeds of said sale, the said defendant be entitled to receive thereout, a proportional part for the said increased value by reason of said brick building, and that the other proportional part of said proceeds, be applied to the payment of the plaintiff’s claim. The appraisements so to be made, to be subject to revision by the court below, if either party so desire, upon rule for distribution of the proceeds of sale. And it is further decreed, that the plaintiff pay the costs of this appeal.


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    John McDonogh et al. v. Rice Garland et al.
    The notice to be given to the debtor, of the seizure of property under execution, is no part of the proceedings which a purchaser at sheriff’s sale is bound to heed or examine. It is for the benefit of the debtor in execution exclusively, and may be waived by him without prejudicing the rights of a purchaser, or vitiating his title.
    The object of notice to the debtor is, to apprise him what property the sheriff takes in execution, and of which he claims to take possession by virtue of the seizure.
    APPEAL from the District Court of the Parish of Concordia, Farrar, J.

      Stocton and Steele, for plaintiffs.

      D. S. Stacy, for defendants.

      Shaw, for warrantor.
   By the court :

Eustis, C. J.

The late John McDonogh and Geo. T. Williams Sf Co., of New Orleans, instituted this action, having for its object the annulling of a sheriff’s sale of a tract of land in the parish of Concordia, and having it resold for their benefit. McDonogh was a mortgage creditor, and Williams 8f Co. were judgment creditors, of Bice Garland. The sheriff’s sale was under an execution issued on a judgment against the debtor, rendered and recorded prior to the plaintiffs’ mortgages.

The judgment of the district court was in favor of the purchaser at sheriff’s sale, and the plaintiffs have appealed.

In 1846, the Bank of Louisiana issued an execution on a judgment against Garland and Swayze, directed to the sheriff of the parish of Concordia. Under this execution the sheriff seized Garland's interest in the Bringier tract, as it is called, and advertised it for sale. It was appraised at §8000, and two-thirds of the amount of the appraisement not having been bid, it was re-advertised for sale, on a credit of twelve months, and, at this second offering, L). S. Stacy became the purchaser', for $4500, which he paid.

The question upon which it is understood this case turns, and the only one which has been argued before us, relates to the alleged want of any legal and sufficient notice of the seizure, under the execution, to Rice Garland, the judgment debtor.

The fact is, that notice of the seizure was given by the sheriff to T. W. Curry, who was an agent of Garland for the management and sale of the land, but whose authority to receive notice is not. established. It is alleged in the plaintiffs’ petition, that Garland, on the 15th of January, 1846, gave a power of attorney to William H. Garland and Wm. C. Hamner, of New Orleans, authorizing each of them to represent him in all suits at law. And it appears that, by said procuration, the said agents had, each of them, besides the most general powers, special authority to “ defend suits to judgment, execution, and satisfaction,” and to accept notices in suits and legal proceedings.

It further appears, that Hamner attended the sheriff’s sale, and endeavored to ascertain from the agent of Stacy, who made the purchase, what he would take in advance on his bid.

Tt also appears, that Rice Garland appears by attorney in this suit and denies the allegations in the plaintiffs’ petition. One of those allegations is, that no notice of the seizure was ever given to the said Garland.

It seems, therefore, as far as Garland is concerned, he made no question as to the sufficiency of the notice; nor, under this state of facts, could he be permitted to call it in question in a court of justice. He maintains the validity of the sale ; no collusion is alleged between him and the purchaser, or the plaintiff in execution, or between either of'them; and we are at loss for any adequate ground on which the sale can be set aside on account of the notice.

We have never understood that the notice to be given to the debtor of the seizure of property under execution, was a part of the proceedings which a purchaser at sheriff’s sale was bound to heed or examine. It is for the benefit of the debtor in execution exclusively, and may be waived by him without prejudicing the rights of a purchaser or vitiating his title. Hewitt v. Stephens, 5th Ann. 640. Lewis v. Gordy, Ib. 570.

The object of the notice to the debtor, is to apprise him what property the sheriff takes in execution, and of which he claims to take possesion by virtue of the seizure. Code of Practice, 654, and preceding articles.

The judgment of the district court is therefore affirmed, with costs,

        Judge Rost took no part in this decision, having a remote interest.


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    Pilcher and Rayburn v. James D. Kerr et al.

    íu an action by tbe endorser, against tbe maker of a promissory note, who, at tbe time of its execution, was a married woman, tbe declarations of tbe payee, whilst be was tbe owner thereof are admissible to prove that it bad been given to him for a debt due by the husband of the maker. Held: ft is the setfcledjurisprudence of this court, that the onus of proving that the consideration of a note, made by a married woman, enured to her benefit, is upon the plaintiff.
    Where the maker of a note signed as a married woman, and her husband only joined for the purpose of authorizing her, it is sufficient to give the trausferree of the note notice of her condition; and before he takes the note, it is incumbent upon him to ascertain that her proper estate could be charged with it.
    APPEAL from the District Court of Carroll, Copley, J.
    Selby, for plaintiffs.

      H. Snyder, Short and Parham, for defendant.
   By the court:

Rost, J.

The defendant is sued upon a promissory note made by her, whilst she was the wife of Felix Bothworth, to the order of James D. Kerr, by whom it was transferred to the plaintiffs before maturity.

The defence is, that the note was given for a debt of Felix Bothworth, for which she could not bind herself, and that no part of the consideration of it enured to her benefit. There was judgment in her favor, and the plaintiffs appealed.

We are of opinion, that the district judge properly admitted the testimony of John L. Wilson, to prove the declarations of James D. Kerr, while he was the owner of the note; that it had been given to him for a debt of Bothworth. It is unnecessary to determine whether this evidence makes full proof of the fact, as under the settled jurisprudence of this court, the onus of proving that the consideration of the note enured to the benefit of the defendant, was upon the plaintiffs.

The defendant had signed as a married woman, and her husband had only joined for the purpose of authorizing her. This gave the plaintiffs notice of her condition; and before they took the note, it was incumbent upoh them to ascertain that her proper estate could be charged with it. Brandagee v. Kerr and wife, 7 N. S. 64. Sprigg v. Bossier and wife, 5 N. S. 56. Firemens' Insurance Company v. Julian Cross, 4 R. R. 508. Draugeut v. Prudhome, 3 L. R. 74. Pascal v. Souvinet, 1st Ann. 428. Taylor v. Carlisle, 2d Ann. 579. Perry v. Thompson, 3d Ann. 188. Erwin v. McCalop, 5th Ann. 173. Gaalon v. Matherne, 5th Ann. 495. Patterson & Co. v. Fraser and wife, 5th Ann. 586.

Judgment affirmed, with costs.

Application for re-hearing.refused.


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    Stephen F. Smith v. Moses McWaters.
    The call in warranty is not a dilatory exception, but an incidental demand in the answer, to enforce a legal right of the defendant.
    Calling a non-resident warrantor in warranty, through a curator ad hoc, has no more substantial effect than if he were notified by the defendant; for the judgment against the curator adhoc would not be absolutely binding upon the warrantor, in another State, unless he authorized the curator to defend the suit.
    By the Court: We would not be understood as disapproving of the practice of the appointing a curator ad hoc to an absent warrantor; the power maybe fairly inferred from the articles of the Civil Code and Code of Practice, providing for the prosecution of suits against absentees. Therefore, if a judge struck out a call in warranty of a non-resident defendant, and thereby the defendant lost any substantial advantage, the Supreme Court would remand the case, and have the call in warranty reinstated.
    By a statute of Mississippi, copies of all instruments of writing, which are permitted to be recorded, may be received in evidence. Under this act, a copy of a record is not a copy of a copy.
    The code suspends prescription during minority. It does not except from suspension the prescription of fifteen years. This suspension extends to non-resident as well as to resident minors.
    APPEAL from the District Court of West Feliciana.
    This cause was tried by a jury before Stirling, J.

      James H. Muse, for plaintiff.

      J. A. Patterson, C. Ratliff and Brewer and Collins, for defendant.
   By the court:

Preston, J.

This is a petitory action for a slave named Soney, alias Charles. There was a judgment and verdict for the plaintiff, and the defendant has appealed.

The petition was served upon the defendant on the 15th of October, 1850, unaccompanied by the title upon which the suit was based. On the 5th of December, a judgment, by default, was entered. On the 9th of December the defendant appeared, had it set aside, and craved oyer of the plaintiff’s title. On the 12th it was filed, and notice thereof given to the defendant. The same day the defendant filed his answer, denying the plaintiffs’ title, and setting forth his own. .He alleged, further, that he purchased the slave from Abraham Jones, residing in'Franklin cpunty, State of Mississippi, and called him in warranty, and prayed that a curator ad hoc might be appointed to represent him, which was done,. On the"31st of December, the plaintiff moved the court to strike out that part of the answer calling Jones in warranty, which motion was ordered to be heard. It .was based on the grounds, that the call in warranty came too late, it being in fact and effect, as well as in law, a dilatory exception, and should have been plead in limine litis, and cannot be legally allowed in an answer after a default has been taken.

We do not find in the record a formal order striking out the call in warranty in the answer, but suppose it must have beed made, as a bill of exceptions was taken on the 3d of January, 1851, to the opinion of the court sustaining the motion to strike out that part of the answer.

The call in warranty was not a dilatory exception, but an incidental demand in the answer to enforce a legal right of the defendant. C, P. 362, 363, 378 to 388. C. C. art. 2476 to 2495. But we do not think that substantial justice requires that this cause should be remanded, on account of the error of the court in striking out the call in warranty.

The warrantor resided in another State, and it is not shown, or to be presumed, that he had property in this State. The only substantial effect, therefore, of calling him in warranty, through a curator ad hoc, would have been to give him judicial notice of the suit, that he might defend it if he chose, and if not, to obtain from him all the means of defence in his power. The plaintiff could effect what was equivalent, by giving the warrantor notice of the suit himself, Code 2493, 2494, and thereby accomplish all that could be done, so as to produce legal effects, through a curator ad hoc ; for the judgment against the curator ad hoc would not be absolulely binding upon the warrantor in another State, unless he authorized the curator to defend the suit. As the warrantor lived in a neighboring county of the State of Mississippi, the defendant might have given the notice contemplated by our code, and, also, obtained from him all the means of defence in his power, before he filed his answer in December, 1850, or, at all events, before the trial of the suit in June, 1851.

Our Code of Practice provides for the call in warranty, by service of the petition and citation, on the warrantor, which seems to be the only mode contemplated as to this incidental demand. But we would not be understood as disapproving of the practice of appointing a curator ad hoc to absent warrantors ; the power may be fairly inferred from the articles of the Civil Code and Code of Practice, providing for the prosecutipn of suits against absentees. And we would remand the cause for the purpose of reinstating the call in warranty, if it appeared that the defendant had lost any substantial advantage, which he might have enjoyed, if the call had been sustained. An error of the Court, the effects of which might and probably was remedied by other means, is not a sufficient reason for remanding a cause, after all the delays, expense and trouble of a trial.

The plaintiff relies upon a deed of gift from his uncle, John Cade. He produced a duly certified copy of the record of the deed in Franklin county, in the State of Mississippi. The record was made the 3d of December, 1828. The counsel of the defendant objected, that it was a copy of a copy, and therefore inadmissible in evidence, and took a bill of exceptions to its admission.

A statute of the State of Mississippi, approved the 13th of May, 1837, provides, that copies of all recorded deeds, conveyances, bond^ ments of writing, which are now, or may hereafter, by the be required or permitted to be recorded, shall, when certq whose office the record is kept, be received in evidence in equity in this State, and be as available, without accounting the original, as if the original were there and then prodi Miss. Code, sec. 1, p. 869. We think the copy from the by this act, and not, as contended by the defendant’s counsel deed recorded, when the original has not been lost; ’and, if so, tlif' act of Congress providing for the authentication of records, makes the copy evidence in our courts.

The plaintiff shows possession of the slave by his father for him, while a minor, under this deed; and by testimony identifies the slave sued for, with the one conveyed to him by the deed of gift from his uncle.

The defendant shows a sale of the slave, made to his mother by Abraham Jones, dated the 4th of March, 1836, and possession from that time until the commencement of this suit in December, 1850, and pleads the prescription of five, ten and fifteen years.

The plaintiff, until within the last year or two, was a minor. The code expressly suspends prescription during minority. Article 3488 does not except from the suspension, the long prescription of fifteen years.

The point presented by the counsel of defendant, that our laws suspending prescription in favor of minority, can only avail resident and not non-resident minors, is not sustained by reason or authority, and cannot, therefore, be sanctioned.

The judgment of the district court is affirmed, with costs.


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    New Orleans and Carrollton Railroad Company v. Municipality Number One.
    In authorizing the Mayor and City Council to sell property on perpetual ground rent, the Legislature established a legal destination of the rents, as a portion of the permanent revenue of the city, to enable the municipal authority to exercise its power of police and government. These rents, therefore, cannot be sold under an execution against the municipality.
    from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micow, for plaintiffs.

      Robert Preaux, for defendants.
   By the court:

Eustis, C. J.

This appeal is taken by the First Municipality, from a judgment of the court of the Second District of New Orleans, by which an injunction obtained by the municipality was dissolved, with three hundred dollars damages, for the wrongful suing out of said writ.

The plaintiffs being judgment creditors of the municipality for a large amount, seized certain ground rents due by various persons under execution, the municipality enjoined the sale, and the question is thus raised, whether these ground rents are liable to be seized and sold under the plaintiffs’ execution.

The argument at bar has been directed to two points : first, whether the ground rents can be seized ; and, secondly, whether, if subject to seizure, they can be sold, or must be collected by the sheriff as they fall due, and applied to the payment of the plaintiffs’ judgment.

It is contended, that the ground rents are on the same footing with any other property of the municipality, and, as such, liable to seizure for its debts, and that they are not within the exemption established in Egerton’s case. The land on which the ground rents are established, formed originally a part of the commons of the city. They were sold under the authority of an act of the Legislature of the 17th of February, 1821, which provided, that the Mayor and City Council (three-fourths of said body assenting thereto) might sell, on perpetual ground rent, such part of the landed property as they should think fit, with express stipulation, that the purchaser should never thereafter have liberty to redeem said ground rent by paying the capital thereof.

The original charter of New Orleans, contemplated the existence and maintenance of certain permanent sources of revenue, which were to provide for the expenses of the government, and authorized taxation on real and personal property, to raise such sums as might be necessary to supply a deficiency in said revenues. Act of 1805 § 6 el seq. It is in that sense, and in conformity with the original law, that the statute of 1821, under which the sale of the land was made, mustbeinterpreted. By thisact, we conceive, a legal destination or appropriation of these ground rents was established as a portion of the permanent revenues of the city, to enable the municipal authority to exercise its powers of police and government.

We do not think the present case distinguishable in principle from that of tha Mayor et al. v. Roosevelt, recently decided, 7th Ann. Egerton v. Municipality No. 3, 1st Ann. 435. Police Jury of West Baton Rouge v. Michel, 4th Ann. 84. Hart v. Municipality No. 3, 6th Ann. 571.

We think the court erred in dissolving the injunction against the sale of the ground rents seized under the plaintiffs’ execution.

It is therefore decreed, that the judgment of the district court be reversed, and the injunction granted be maintained and made perpetual; the plaintiffs paying costs in both courts.


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    Municipality Number One v. Steamer Anna No. 2, and Owners.
    The act of the Legislature of 1847, required each municipality of New Orleans, annually, in January, specially to appropriate a percentage of the revenues, derived from the markets and wharfage, to the sinking fund, as established by that act. Held : The rate of wharfage cannot be changed during the year.
    APPEAL from the Justice’s Court of New Orleans, Paul Pecquet, J.

      Robert Preaux, for plaintiffs.

      J. Burmudez, for defendants.
   By the court:

Eustis, C. J.

This appeal is taken by the defendants from a judgment rendered by Paul Pecquet, Esq., one of the Justices of the Peace of New Orleans. It decreed the recovery of the sum of $23 25, being the amount due the municipality for a wharfage tax on the steamer Anna, and the appeal is before us under the article sixty-third of the Constitution, which gives this court the right of determining, in the last resort, on the constitutionality and legality of taxes and imposts imposed by municipal corporations.

It seems that the amount claimed is for wharfage of the steamer, under an ordinance of the general council of New Orleans, passed on the 26th of November, 1850. It is contended that this ordinance is repealed by a subsequent ordinance of the same body, passed on the 12th of June, 1851.

The first ordinance imposes certain rates to be paid by steamers mooring or landing within the incorporated limits of the port, and was to take effect from the 1st of January then next ensuing. The act of 1847, entitled an act to provide for the payment of the debts of the municipalities of New Orleans, provided that each of the municipalities should annually, in January of each year, specially appropriate a per centage of the revenues derived from the markets and wharfage, to the sinking fund, as established by that act. Acts of 1847 § 4.

It seems obvious, that to give effect to this appropriation, the rate of the wharfage cannot.be changed during the year. So far as the ordinance of 1851 changes the rate previously established for that year, it is illegal and must be disallowed.

The recent municipal organization having superseded that under which these ordinances were passed, we deem no further explanation of this subject necessary, than that given in the case of the Board of Liquidators v. the Municipality No. 1, 6th Ann. 21.

The judgment appealed from is therefore affirmed, with costs.


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    Michael Zenor v. Parish of Concordia.
    The Police Jury of tlie parish of Concordia had n right to locate the levee on its present site ; a reasonable regard for the public safety required it, and therefore the plaintiff has no right to complain. Salus populi suprema lex est is the rule.
    from the District Court of Concordia. This was a trial by jury. Farrar, J., presiding.

      Stacy and Sparrow, for plaintiff.

      H. B. Shaw, for defendants.
   By the court:

Preston, J.

In this State, so much exposed to ruinous inundations, the public have the undoubted right, on the' shores of the Mississippi river, to the use of the space of ground necessary for the making and repairing of the public levees and roads. C. C. art. 661. It was the condition of the ancient grants of land on the Mississippi river, and sufficient depth was always given to each tract, to prevent the exercise of the public rights from proving ruinous to the individual.

Speculation and other motives have, in later times, caused the division and sale of some tracts, and entries of others, with large fronts and little depth, in opposition to the general policy of the country. Thus, in the presentíase, the plaintiff has scarcely any depth, with a large front, in a deep bend with a caving bank. The policy of the country and the laws of the land, made for the general safety, cannot yield to cases of individual hardship. Those who purchase and own the front on the Mississippi river, gain all that is made by alluvian, and lose all that is carried away by abrasion. And those who choose to purchase tracts with little depth, in caving bends, expose themselves, knowingly, to total loss, and must suffer the consequences when they occur. They suffer damnum, absque injuria■

The parish of Concordia has been peculiarly exposed to inundation, and therefore the Legislature excepted that parish from the general levee law, passed in 1829. and by the 62d section of the act declared, that the police jury of the parish should have plenary and unlimited powers to make such enactments with regard to roads and levees, within their respective limits, as may be deemed necessary and proper by that body. Bul. and Cur. 760.

In 1848 and 1849 the police jury, in pursuance of these powers, caused to be constructed, in the bend just above and opposite Ellis’ Cliffs, a levee 4 or 500 yards from the bank of the river. It was located by the inspector of levees, and made in pursuance of his recommendation, in these words: “ Its position, with reference to the land owners, can be seen by reference to the map. It will be seen that Messrs. Nelson, Zenor and Hamilton, are the principal sufferers, but this could not be avoided without sacrificing the public good to individual interest. The distance of the levee, from the river, is 430 to 650 yards. It is estimated, from observation of the encroachments of the river at Ibis point, that the proposed levee will remain at least twenty years. When we add to this the importance, nay, the indispensable necessity of such a levee, and the vast interest to be protected thereby, it is hoped your honorable body cannot long hesitate to devise some means to secure the parish from a general overflow, which I cannot but regard as inevitable in ordinary seasons of high water.”

The levee cost the parish from twenty to thirty thousand dollars. No witness says it was unnecessary. All who express an opinion, concur that it is not at an unreasonable distance from the river, considering the history of that part of its bank, and its badly caving character.

If we were convinced, by the evidence, that the police jury had exercised their plenary power in an arbitrary or oppressive manner, we would not hesitate to sanction judicial power in restraining it, as was done in the case of Dufresne v. Haydel and others.

But the evidence satisfies us, that the levee constructed by the defendants was indispensable to the public safety. That the location of it nearer the river, considering the extremely caving character of the bank, would not have justified the large expenditure of upwards of twenty thousand dollars, which the parish was obliged to incur, for this public protection. That the levee proposed in 1847, but never executed by the police jury, was injudiciously located, as proved, among other things, by the fact that seventy yards of it had already fallen in the river, and therefore was properly abandoned, and can have no influence upon this suit. The police jury had a right to fix on the present location, and a reasonable regard for the public safety required it, and therefore the plaintiff has no right to complain. Salus populi suprema lex est is the rule, and in the exercise of it, individuals can claim indemnification only when they are able to show, clearly, that they have been deprived of their rights. It is not shown in this case, and we think there should be judgment for the defendants.

The judgment of the district court is reversed, and that there be judgment in favor of the defendants, the plaintiff to pay the costs in both courts.


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    R. C. King, Tutor v. A. G. Bowen et al.
    Where the whole account has been referred to an auditor, it is error in the court to permit the counsel to divide it and try the case on a portion of it.
    Where a party seeks to homologate the report of auditors, and, in his motion, makes reservations which leave the matters upon which the report is based, vague and uncertain and open to future litigation, a judgment homologating it will be equally vague and uncertain, and should not therefore be rendered.
    Sums paid by a tutor, in the course of his administration, are considered prima facie as proper charges against the minor he represents. Where there are circumstances which cast a suspicion upon his good faith, it is otherwise.
    from the District Court of Concordia, F. H. Farrar, J.

      Thomas P. Farrar, for plaintiff.

      Stacy and Sparrow, for defendants.
   By the court:

Rost, J.

The defendant, Bowen, was removed from the tutorship of the minor, Thomas McAlister, and Rodney C. King, the tutor appointed in his place, instituted the present action against him and James Miller, his surety on his bond, to compel them to account.

The defendants appeared, and Bowen filed an account of his administration, whichhe subsequently amended at various times. In the original and amended accounts, the personal expenses of the minor and those of two plantations in which he had an undivided interest jointly with Bowen, were all included.

By consent of parties, these accounts were referred to Zehelon York, as auditor, to examine and state the same separately. At the ensuing term of the court, the auditor reported, but, by consent, the accounts were referred back to him with authority to take testimony. At a subsequent term of the court, the auditor again reported, and the defendants’ counsel moved to have the report homologated, and made the judgment of the court, reserving, at the same time, the right of Bowen to be allowed the amount charged in his amended account, filed 19th November, 1850 ; and further, stating that the account referred to the auditor, was not his final account, but only his account up to this day of and year , with such errors and omissions as are stated in his amended account, or may be shown hereafter.

The plaintiff opposed the homologation on the ground, that the items charged were either not due, or not chargeable to the minor. On the issue thus made, the court rendered the following judgment:

“ The law and the evidence being in favor of the accountant, A. G. Bowan, itis ordered, that his account embracing the years 1839,1840, 1841,1842, 1843, 1844, 1845, and 1846, be confirmed and homologated in each and every item, except one of $60 for medical services for the year 1839, in voucher number 7, and the sum of ‡9 68 for a box of sperm candles in voucher 58. It is further ordered, that the matters in relation to the other accounts, filed herein by the said Bowen, be continued.”

The motion to homologate with the reservations it contains, leaves every question in the case open for future litigation, and the judgment based upon it, necessarily partakes of its vagueness and uncertainty. It adjudges no specific sum, and instead of homologating the report of the auditor, homologates the amended account of Bowen, while Bowen reserves, by his motion, the right of being allowed the amount charged in his amended account.

The whole account had been referred to the auditor, and the court erred in permitting the counsel to divide it, and try the case on a portion of it only. Such a course is calculated to protract litigation, and might have consequences ruinous to the minor. After the tutor had been removed, he should have rendered his account without unnecessary delay. A knowledge of his entire administration was necessary for a correct decision of the case, and the course which Mr. Bowen has adopted, is calculated to weaken the presumption of good faith ; in consequence of which, sums paid by a tutor in the course of his administration, are considered prima, facie as proper charges against the minor he represents. See the case of the heirs of Frampton, 3 R. R. 286.

It is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law. The plaintiff and appellee paying the costs of this appeal.


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    Elise Delamour v. Augusti V. Roger.
    The circumstance that the plaintiff isa concubine of her copartner, does not deprive h or of an action for the settlement of its ailairs and a participation in profits, derived by capital and labor, which she contributed.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Miles Taylor, for plaintiff:
    First. Partnership is a contract made between two or more persons, to place their money, effects, labor, and skill, or some, or all of them, in lawful commerce or business, with the understanding that there shall be a communion of the profits thereof between them. Story on Partnership, No. 2. Civil Code, 2772. Purdy
      v. Flood, 5 N. S. 629, 630. It may be made between alí persons capable of contracting. C. C. 2773. We have no knowledge of any law or principle of law, by which a single woman is rendered incapable of becoming a party to such a contract. Married women are, in general, incompetent to become so, but the rule with respect to them is' subject to .many exceptions. In all the instances in which this is permitted, it is stated that they are authorized to do so as “ a feme sole,” to use the language of the common law. Story on Partnership, Nos. 10 to 14, C. C. 1779.
    The business which was carried on was lawful and proper. A partnership formed with a view to its prosecution between two men would be perfectly legal, and it is not easy to conceive why it should be any the less so because one of the parties was a female.
    Second. The plaintiff is the joint and equal owner, with the defendant, of all the real estate and slaves, and stock in trade acquired and held in his name, and of the debts due to him. C. C. 2779, 2782, 2824, 2825. C. C. 2836. Richardson v. Packwood, 1 N. S. 290. 4 Skilman v. Purnell, 3 L. R. 497.
    There may be two or more different contracts between the same parties, and one may be valid whilst the others are null and could give no rights.. Now, the defendant says that the plaintiff lived with him in a state of concubinage, and that there was no other cause or motive for their apparent connection. We have shown that there was another cause for that connection, and that it was of a nature that continued to operate upon and influence the parties in such a manner that all their exertions and industry were directed to a common object, that of making the business they were associated in profitable, not only whilst they were separated and lived apart for a year or more in 1831 and 1832, and for about six months in 1836, but during the whole period which elapsed from the time the defendant left the plaintiff in France, in 1844, and when they not only lived apart, but the defendant lived and cohabited with other females. No matter how improper the cohabitation of the plaintiff with the defendant might have been, it could not, under any circumstances, have any. effect upon a separate and distinct agreement of the kind we have shown, with respect to the prosecution of a lawful business, to the establishment and prosecution of which the plaintiff contributed all the pecuniary capital, and furnished at least an equal proportion of the industry, care, attention and economy necessary for its success.
    All the circumstances of the case show the entire validity of the association of the parties in the establishment, and prosecution of a common business. If, however, this admitted of doubt, in the absence of proof to the contrary, “ illegality in a transaction is never presumed; on the contrary, everything is presumed to have been legally done, until the contrary is shown.” 1 Chitty on Pleading, 220. And it is a well founded principle of law, that when an act may have been determined by two motives, one praiseworthy, and the other illicit, it must be considered to have been determined by the praiseworthy one. 2 Delvincourt, p. 203, No. 3. Paillet note g. 1 to art. 1108 of the Napoleon Code. 3d Ann. 239,157, 494.
    But in the present instance there is no room for doubt. The facts show clearly that the association in business had a lawful purpose.
    The defendant’s counsel seem to have confounded this action with another that it has no relation to. He would have it considered as if it were an action to enforce the payment of an obligation, given in consideration of the illicit cohabitation of the parties. But every obligation, founded upon such a cause, is not void. One given in consideration of future illicit intercourse is certainly so. But past cohabitation has been held to be an innocent consideration in England, and where the common law prevails. Chitty on Contracts, ed, 1842, p. 660, 1. The same doctrine is maintained in France. Repertoire du Journal du Palais, vol. 9, p. 743. It is true that.in many cases our courts have refused to enforce notes and other obligations given by men to females, who had lived with them in a state of concubinage, but in every instance it has been upon the ground that there was a want of consideration. We know of no principle which would prevent one who had lived in concubinage with another, from recovering against him upon a cause of action founded on an actual consideraton furnished by her to him. In the only cases which has occurred in our courts, that of Vienne v. Brickie, 8 M. R. 11; and of Ldbanelle v. Decorret, 2d Ann. 546, the right was recognized and enfored.

      Graihle and Handel Hunt, for defendant:
    The allegations of plaintiff show evidently, that the motive or cause of their co-residence was the concubinage. jkg court are of opinion that such was the motive, consideration, or object of the parties, when they first met together, then the peremptory exception filed must be sustained, and there must be judgment for the defendant, L. C. 1887, 1889, 1890, 2026.
    An obligation without a cause, or with a false or unlawful cause, can have no effect. C. C. art. 1887.
    By the cause of the contract, in this section, is meant the consideration or motive for making it, &c. C. C. 1890. 17 L. R. 126. 3 N. £>. 46. 1st Ann. 69. Duranton, vol. 10, No. 367.
    The judgment of the lower court recognizes a universal partnership between the parties. We maintain there was an insuperable obstacle to the formation of such a partnership between these parties. C. C. art. 2805 provides that: “ a universal partnership cannot be created without writing signed by the par. ties, and registered in the manner hereinafter prescribed.” C. C. art. 2817, 2818, 2819.
    C. C. art. 2804 provides as follows: “ Universal partnership shall only be contracted between persons who are not respectively incapacitated by law from conveying to, or from receiving from, each other to the injury of others.”
    C. C. art. 1468 is in the following words : “ Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables it cannot exceed one-tenth part of the whole value of their estate. Those who afterwards marry are excepted from this rule.”
    The spirit of that law is of public order, and to laws of that kind, parties cannot derogate. Every thing done in contravention to a prohibitory law produces no effect, and is absolutely null. C. C. art. 12.
    In a case like the present, parties must be left in the condition in which they place themselves: “ Melior est conditio possidentis,” or “ Porro autem si et dantis et accipientis turpis causa sit; possessorum potiorum esse, et ideo repetitionem cessare, tarn et si ex stipulatione solutum est.” Leg. 8, § de conditione ob turpem, 12, 5.
    If the judgment of the lower court was confirmed it would be the corner stone of a new jurisprudence in favor of concubinage; a premium to the concubine over the legitimate wife. 1. In marriage, the husband is the head and chief of the community property, which he can alienate at pleasure. 2. The wife has no right of action, against her husband, for the purpose of dividing the community property, except in cases of separation of bed and board or of divorce. 3. The legal community is to last as long as the marriage, unless the husband mismanages the wife’s private property. 4. During marriage, the wife could not form a commercial partnership with her husband. 2 L. R. 268. 5. Could she do it with her husband and concubine jointly ?
   By the court:

Preston, J.

The evidence leaves no doubt of the conclusions to which the district court arrived in this case. 1st. That if the parties had been both men or both women, it would have fully established a partnership between them. 2d. That upwards of twenty years ago, in Paris, the plaintiff furnished the little capital with which they began business. 3d. That the plaintiff had contributed equally with the defendant, by her skill and application, to the success of their business. 4th. That the real property in this city standing in the name of the defendant, was purchased with the profits of their business as hair dressers and keepers of a perfumery and fancy store.

The defendant relies on the fact that they lived together during the period the property was accumulating in a state of concubinage, and contends that on that account, the laws give to the plaintiff no action to recover half of the property.

The evidence perhaps justifies the remark of the judge, that the concubinage which was at two periods interrupted a long time by the business, was rather an incident to the business than the reverse.

Bethat as it may, there is a manifest difference between an action for the wages or reward promised in consideration of concubinage, which cannot be maintained ; and a suit for property, the result of capital, industry, labor and economy. The evidence gives this character to the present suit, although the life and conduct of the parties was contaminated by an immoral connexion, the continuance of which was attributable more to the defendant than to the plaintiff.

The casein many respects, is remarkably similar to that of Vienne v. Bickle, 8 M. R. 11. We will not say, with the Supreme Court in that case, that the cohabitation increases the obligation of the defendant, in a moral point of view, of doing justice to the plaintiff, but we have no hesitation in saying, it does not lessen his legal obligation to do so.

The reasonable effect of article 2804 of the Civil Code, is to render the participator in concubinage incapable of recovering, as a universal partner, one half of the property acquired, although her labor may have contributed nothing towards its accumulation; but, when her capital and labor has contributed a full share towards the result, equity'entitles her to half the property acquired.

In addition to this, the defendant, in his numerons letters to the plaintiff, speaks not only of “ our commercial house,” but of “our houses,” “our property” and “our rents,” which he anticipates will be sufficient to support them comfortably in retirement in their old age. Some of these letters are sufficiently particular in description, to establish a legal title to certain properties and slaves asTetween the parties, and even as to third persons, if they had been recorded, and the knowledge that the parties were not man and wife, had been made public.

The possession of the defendant cannot prevail against the frequent and long continued acknowledgment of joint ownership, based upon so much equity. It amounts to a legal title to half the property, supported by an equitable ownership, and no principle of law or morality requires us to reverse the judgment of the district court. «

There was an error (we supposed clerical) in the judgment, in decreeing the whole property to the plaintiff. We have left the case open for the correction of this matter. But as it has not been done, we are obliged to reverse the judgment, at the costs of the plaintiff.

It is decreed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff recover from the defendant one undivided half of the property described in the judgment of the district court, and that the judgment, in all other respects, be affirmed; and that the.plantiff be condemned to pay the costs of this appeal.


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    Joseph Wilson v. H. C. Cammack & Co.
    Defendants chartered a ship from plaintiff, and hound themselves to furnish a full cargo; instead of so doing, they notified plaintiff’ that they considered themselves absolved, and that they would not furnish the cargo. The measure of damage is not necessarily the amount of freight upon a full cargo, hut the damage actually suffered, in view of the state of things which existed at the time of the notification,

      from, the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiff.

      E. A. Bradford and Edward Briggs, for defendants.
   By the court:

Preston, J.

In March 1850, the defendants chartered the ship Loodianah» and agreed to furnish a full cargo of cotton from this port to Liverpool, and pay freight at the rate of seven sixteenth’s of a penny per pound.

The plaintiff stipulated for five days notice of the defendants’ readiness to load, and obligated himself to take the cargo on board in fifteen days. This notice was given on the 26th of March, and, on the 30th, the agents of the plaintiff answered, that they were prepared to receive the cargo as fast as required within the time specified in the charter party.

On the 1st of April, the defendants informed the plaintiff, that they were ready to send the cargo on board, but as the vessel was not ballasted and in a fit condition to receive cargo, they considered the charter party as forfeited by his default, and should act accordingly. On the 2d of April, the plaintiff tendered bond to perform the conditions of the charter party. On the 3d, the defendants answered that they considered the charter party forfeited, and had disposed of the cotton intended for the ship. On the 11th of April, the plaintiff informed the defendants, that he would hold them accountable for his loss, but would dispose of the ship for the best advantage, not being desirous to claim a loss which may be avoided.

He now sues for the whole amount of the freight on a full cargo of cotton, from New Orleans to Liverpool. The defendants plead that the charter party became forfeited by the default and breach of the agreement on the part of the plaintiff, and that they are not liable to him for freight or damages.

The case presents questions of fact alone. We think with the district judge, who has analyzed the testimony minutely, that the evidence preponderates in favor of the plaintiff, and shows that he was ready, willing and able to have complied with the terms of the charter party. If freights had greatly risen, and the plaintiff had refusad to take the cargo at all, or within the fifteen days allowed for so doing, we assuredly, on the testimony before us, would have considered him liable to the present defendants for all the damages they would thereby have suffered; and for the same reason, think them liable to him for the damages he has suffered.

We cannot, however, concur with the district court in giving the plaintiff his whole net freight, nor is it necessary, as urged by the counsel of the defendants, to require from the plaintiff an account of the profits he made by the subsequent voyage, being released from the engagement to Liverpool; though, certainly his last letter to the defendants indicated his intention to do so. As the defendants did not accept his proposition, they cannot call for his compliance with it; and as the plaintiff has not given an exact account of that voyage, we cannot take for granted that it produced nothing.

We think, then, that the damages for the failure of the defendants to comply with their contract, can and ought to be determined by the state of things' which existed at the time they notified the plaintiff that they did not feel themselves bound by it.

They had agreed to pay seven sixteenths of a penny per pound for the freight of the cotton. It is sufficiently shown by the evidence, in fact the plaintiff has filed a document showing it himself, that when the breach of the contract took place, the current rate of the freight of cotton from this port to Liverpool, was five sixteenths of a penny per pound. Therefore, the plaintiff was necessarily subjected to the loss of an eighth of a penny per pound, with five per cent primage, by the terms of the charter party, but not necessarily subject to any more.

We think, from the testimony, 2700 bales or 1,269,000 pounds of cotton, was a fair and reasonable cargo for the vessel.

The loss of the plaintiff calculated from these data, amounted to two thous- and eight hundred and thirty dollars, which the defendants are liable to pay.

The judgment of the district court is reversed; and it is decreed, that the plaintiff recover from the defendants, the sum of two thousand eight hundred and thirty dollars, with interest from this date, and costs in the district court; and that the plaintiff and appellee pay the costs of this appeal.