text:
    McDonogh v. Nugent.
    Decisions in Pilque v. Bellomé, 2 Ann. 293, and in McDonogh v. Derbigny, 2 Ann. 95G, affirmed.
    from the Third District Court of New Orleans, Kennedy, J.

      Grivot and Roselius, for the appellant.

      Warfield and Rand, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted an action for the recovery of S>800, alleged to be due by the defendant for the rent of a building, and caused the furniture in the leased premises to be provisionally seized. On a rule taken by the defendant, the provisional seizure was set aside by the district judge, and from the judgment on the rule the plaintiff has appealed.

There is no evidence in the record of the value of the furniture seized, and nothing to show that the matter in contest comes within the jurisdiction of this court. We cannot, on the present appeal, consider the principal aetion, and the amount which it involves. Our inquiries must be confined to the proceedings on the incidental demand, in which the judgment appealed from was a-endered. In that proceeding it was incumbent on the appellant to show that the amount in controversy brought it within the jurisdiction of this court. The .case is not to be distinguished in principle from that of Plique v. Bellomé, 2 Ann. 293. See also McDonogh v. Derbigny, Ib. 956.

Appeal dismissed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Succession of Mann.
    Where,-after judgment on an opposition to an executor’s account, the account is homologated and payment ordered to be made accordingly, the opponent cannot, by a rule taken on the executors to show cause why he should not pay over the balance ascertained by the judgment to be due him, and why, on failure to produce his bank book, he should not be condemned to pay the succession interest at twenty per cent a year on each of the sums belonging to the succession received by him from the dates, of their receipt, recover interest at twenty per cent for any period anterior to the date of the judgement of homologation by which he is concluded.

      Interest cannot be sued for distinctly from the principal. It makes no difference that the interest claimed be allowed as a measure of damages, as in case of interest at twenty per cent a year allowed to successions where the executors fails to deposit money in bank as required by law. Interested mora is, in all cases, the measure of damages.
    from the Second District Court of New Orleans, Canon, J.

      Hoffman uni. Halsey, for the appellant. -

      Roselius, contrá.
   The judgment of the court was pronounced by

Rost, J.

Black, who purchased the succession of Arthur Mann from the only heir, presented a petition to the 'District Court, praying that Martin, as executor of the last will of Arthur Mann, might be cited, and ordered to render an account of his administration of the succession. The petitioner also prayed for general relief. In conformity With the order of the court made on this petition Martin filed Iiis account, to which Black made, at different times, three several oppositions, praying in each for some modifications of the account, aDd also for general relief. Upon the issue thus formed a judgment was rendered sustaining some of the oppositions, dismissing the others, homologating the account as amended, and ordering payment to be made accordingly. This judgment was rendered on the 18th July, 1848, and appears to have been satisfactory to .both parties, as neither has appealed.

On the 6th October, 1848, Black took a rule on Martin to produce in court .the bank-book, if any he had, which he had kept as executor, with any of the hanks of this State, at New Orleans, allowing interest on deposits, and to show the condition of his account as executor as aforesaid; to show cause why he should not pay over to Black, the balance ascertained by the judgment; and why, in default of producing a bank-book, .he should not be condemned to pay to the succession twenty percent per annum interest, on each of the sums belonging to the succession, which he has received, from the respective dates of the receipts of said sums, under the act of 1837.

Martin excepted to the rule that, the whole matter relative to his responsibility as executor had been finally determined and settled by the judgment of the court on the oppositions filed to the account rendered by him; and pleaded said judgment in bar of Black's claim. The District Court sustained the exception for all claims of Black anterior to the date of the judgment; but adjudged the executor to pay ten per cent per annum on the balance of the account from that date. Black has appealed.

One of the first questions settled in the jurisprudence of Louisiana is, that interest cannot be sued for distinctly from the principal. Faurie v. Pitot, 2 Mart. 83. It is urged that the interest in this case is not given as interest, but as a measure of damages. We do not apprehend the distinction. Interest ex mora is in all cases a measure of damages; the rate of it, in particular cases, cannot affect the principal.

The plaintiff in the rale should have claimed the interest in his opposition to the account, and might have done so under his prayer for general relief. We are of opinion that, after the final judgment of homologation, the claim now made by him can only be sustained, from and after the date of the judgment. McMicken v. Millaudon, 2 La. 181. Campbell v. Briggs, 3 Rob. 111.

It is admitted that the amount of the judgment is.not deposited in bank, and .there is nothing in the record to show that it has been lawfully withdrawn. Black is, therefore, entitled to the interest he claims, from the date of the homologation, and, in this respect, the judgment must be amended.

It is, therefore, ordered, that the judgment in this case be amended, so as to allow interest at the rate of twenty per cent per annum, instead of ten per cent, on the sum of $1,639 17, from the 18th July, 1848, till paid. It is further ordered, that the judgment as amended be affirmed, with costs.


author: Slidell, J.

text:
    Ducournau et al v. Levistones.
    Decision in Ditcowrnau, v. Levisiones, 2 An. 245, affirmed.
    Where a suspensive appeal has been dismissed on account of the failure to file the record within three judicial days after the return day, the appellant cannot afterwards take a devolutive appeal from the same judgment.
    from the Third District Court of New Orleans, Kennedy, J.
    for the

      Collens, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The Code of Practice is positive that if the appellant does not file the transcript seasonably, tbe appeal shall be considered as abandoned, and the appellant shall not be afterwards allowed to renew it. C. P. 594, 4 La. 41.

The omission is attributed by the appellant to the fault of his attorney. We stated, on a former occasion, that this could not be recognized as a ground of relief. It is unnecessary to repeat the reasons then given. See same case 3 An. p. 245. Appeal dismissed,.


author: Host, J.

text:
    De Ben v. Gerard.
    Tbe powers vested in police juries and other political corporations must be exercised by ordinances general in their operation.
    Though the stat. of 28 March, 1840, creating a police jury for that part of the parish of Orleans on the right bank of the river, should be considered as vesting the police jury with power So regulate the proportions, directions and repairs of the levees, and so far repealing the stat. of 7 February, 1829, concerning roads and levees, tbe last act remains in force and must govern tbe rights of the reparian proprietors until the powers confirmed by the stat. of 1840 have been legally exercised.
    The object of sec. 16 of the stat. of 28 March, 1840. creating a police jury for that part of the parish of Orleans on the right bank of tbe river, was merely to make the owners of back lots contribute with the front proprietors to the construction and repairs of levees, which afford them all equal protection. It provides at whose expense they shall be made and repaired, bat is silent as to the manner of making them, and as to the place whence the necessary materials are to be taken.
    The property of the banks of rivers is in those who possess tbe adjacent lands, and they have aright to preveufc an unlawful use of them by the agents of the public.
    from the First District Court of New Orleans, McHenry, J.

      Ro~ selius, for the plaintiff.

      Warfield and Rand, for the appellant.
   The judgment of the court was pronounced by

Host, J.

The plaintiff, who is owner of a front lot in the unincorporated village of Tunisburg, enjoined the syndic of the police jury from taking, near the water’s edge in front of his íevée, the earth necessary to repair the levee of another lot in the same village. The police jury intervened as defendants, averred their right to use the river bank in front of the plaintiff’s lot for any purposes of public utility, and to take materials there to erect or repair any levée within the village. They alleged that this right was worth rnore than $300 to them. The District Court perpetuated the injunction, and the defendants appealed.

The motion to dismiss the appeal os the ground of want of jurisdiction cannot be sustained. The evidence adduced by the appellants satisfies us of their right to be heard in this court.

On the merits, we are of opinion that there is no error in the judgment. The act of 1829, concerning roads and levées, prescribes the manner in which levées are to be made and repaired, and designates the place where the earth for those purposes is to be taken. It is alleged that the aet of 1840, creating a police jury for that part of the parish of Orleans situated on the right bank of the river, and defining its powers, has vested the police jury with full power' and authority to regulate the proportion, direction and repairs of levées, and that it abrogates the act of 1829. We are not prepared to say that this is a correct interpretation of Shat aet ;• but, if it should be, it is not shown that the police jury have exercised that power and authority. The powers vested in political corporations must be exercised by ordinances general in their operation. First Municipality v. Blineau, 3 An. 688. Until the power claimed by the defendants has been legally exercised,' the general law of 1829, concerning, roads and levées, remains in full force.

The object of the l&th section of the aet of 1840, was merely to make the owners of back lots contribute with the front proprietors to the construction and repairs of levées, which afford them all equal protection. It provides at whose expense the levées shall be made and repaired, but is silent as to the manner ef making them, and as to the place where the materials required for that purpose are to be taken. The property of the r,iver banks is in those who possess the adjacent lands, and they have the right to prevent an unlawful use of them by the agents of the public.

We are of opinion that this controversy, as it is presented to us, is to be determined by the provisions of the act of 1829, and that, under those provisions, the injunction was properly granted.

Judgment affirmed.


author: King, J.

text:
    The State v. Banton.
    Section 3 of the statute of 6 March, 1819, punishing any person u who shall inveigle, steal, or carry away any slave, so that the owner of such slave shall he deprived of the use and benefit of such slave", creates several offences, and a separate indictment for any one of them would be goodj but they may all be charged conjunctively in one count. Per Curiam: When a statute enumerates several offences, connected with the same transaction, or the intent necessary to constitute such offences, disjunctively, they may all be alleged cumulatively in one count, and in that event must be charged with the indictment conjunctively*
    A nolle prosequi maybe entered upon one count of an indictment, and a judgment be claimed on the remaining counts, even after a general verdict.
    from the First District Court of New Orleans, Me Henry, J»

      Elmore. Attorney General, for the State..

      R. H. Barker, ior the ant.
   The judgment of the court was pronounced by

King, J.

The indictment in this case is founded on the 3d section of the act of 1819. Acts p. 62. The first count charges, that the defendant aided a slave in running away from his master; the second, that, he “did inveigle, steal, and carry away a slave named Joe, the property of Phillip Moore, so that the owner of said slave, the said Phillip Moore, was then and there deprived of the use and benefit his said slave” ¿tc. The jury found a general verdict of guilty. After the conviction, the Attorney General entered a nolle prosequi on the first count. Sentence was pronounced on the conviction on the second count, and the accused has appealed.

It is urged: 1st. That the indictment is defective, because several distinct substantive offences are joined in the same count. 2d. That the entry of a nolle prosequi on the first count after conviction, was equivalent to an abandonment of the entire prosecution, and entitles the prisoner to his discharge.

The statute on which the prosecution is founded declares several offences. Among the number are, stealing, inveigling, and carrying away a slave, so that the owner is deprived of the use of the slave. There can be no question that, under the statute, a separate indictment for anyone of those offences would be good. 1 East. C. L. 402.

The general rule is, as stated by the counsel for the accused, that several distinct offences cannot be included in one count of an indictment; it is subject, however, to numerous exceptions. The rule appears to be well established in relation to penal statutes that, when the statute enumerates several offences connected with the same transaction, or the latent necessary to constitute such offences, disjunctively, they may all be alleged cumulatively in one count, and in that event must be charged in the indictment conjunctively. Wharton, Grim. Law, p. 81, 98. Starkie, Criminal Pleadings, 271.

In the case of Rex v. Middlehurst, 1 Burr. 399, the words of the statute on which the proceedings was based, were, “ assisting in removing or concealing.” It was contended that two distinct offences were created, and this appears to have been conceded. Lord Mansfield said : “ Upon indictments it has been so determined that an alternative charge is not good, as “ forged or caused to be forged”, though one only need be proved if laid conjunctively, as “ forged and caused to be forged.”

In the case of The State v. Price, 6 Halstead, p. 203, an indictment charging that the defendant “ did burn and cause to be burned” a barn &c., was held to be good, under a statute declaring it criminal “ to burn or cause to be burned.” Yet two distinct offences are enumerated in the act, and were charged in the indictment. So an indictment was held good which alleged that the defendant, “ set up and kept a gaming table, and induced others to let at it;” although under the statute on which the indictment was founded, setting up a gaming table was an indictable offence, and the keeping of such a table and inducing any person to bet upon it, another.” Hinkle v. Comm. 4 Dana’s R. 518.

Under a statute against “ shooting with intent to maim, disfigure, disable, or kill,” it was held that the act of shooting was properly charged with all the intents in one count. Angel v. Comm. 2d Va. Cases, 231. In thatcase it was said that “ to shoot only with intent to “ disfigure,” is certainly punishable under this statute; so with intent to maim, with intent to disable, and with intent to kill; and if an unlawful shooting with either of the intents is prohibited by the statute, it necessarily follows that an unlawful shooting with all of these intents is likewise prohibited. The indictment then which charges all these intents must be sufficient under the statute, and it cannot be demurred to on that account. The authorities in support of the position are numerous.” See also 3 Va. Cases, 256. Under the statute declaring it criminal to “falsely make, forge, counterfeit or alter,” the indictment may charge all the offences in one count—“ did falsely make, forge and counterfeit.” 2 Starkie, Criminal Pleadings, 489.

Starkie, in his work on Criminal Pleading, p. 271, says that: “Itisthe usual practice to allege offences cumulatively, both at common law and under the description contained in penal statutes ; as, that the defendant published and caused to be published a certain libel;” that he “forged and caused to be forged” &c.

Under the authorities, which it is needless further to multiply, we think that the charges of “stealing, inveigling, and carrying away,” w'ere properly laid in one count.

The second point presented is elaborately examined in the cases of the Comm. v. Tuck, 20 Pick. 364, and the Comm. v. Briggs, 7 Pick. p. 177, and the reasoning and authorities upon which they maintain the right of the Attorney General to enter a nolle prosequi upon one count of an indictment, and to claim judgment upon the remaining counts, after a general verdict, appear to us conclusive. Judgment affirmed.


text:
    McDonogh v. De Gruys et al.
    ít is the duty of a court having cognizance of a suit on the subject of limits to comply with the provisions of arts. 829, 837 of the Civil Code. No judgment can be pronounced, until the report of the surveyor appointed to inspect the premises, ahd the' plans made by him in execution of the order of savvey, have been brought into court.
    from the Fifth District Court of New Orleans, Buchanan, J.

      At Hennen, for the appellant.

      L. Janin, for the defendants.
   The judgment

of the court was pronounced by

Rost, J.

This purports to be an action of boundary. The plaintiff sets forth his title to a tract of land alleged to adjoin lands of the original defendant, Be Gruys, and prays that the boundaries of their respective possessions may be established. The defendant answered alleging title in himself, and denying the title or possession of the plaintiff to any land adjoining his own. After issue joined, the plaintiff obtained an order of survey, which has never been executed. Be Gruya having subsequently died, his legal representatives Were made parties defendants; they filed an answer denying generally the allegations of the petition, but acknowledging that their Jand was bounded on both sides by lands of the plaintiff. Their prayer was that the suit be dismissed, or if there should be judgment in favor of the plaintiff, that he be adjudged to pay them $10,000, the alleged value of their improvements.

The parties went to trial, without having caused their boundaries to be ascertained and marked by a sworn surveyor, and the court, finding itself unable to arrive at any satisfactory conclusion in relation to them, dismissed the action. The court, at the same time, decreed the defendants to be the owners of the land described in their answer. The plaintiff appealed.

When limits are fixed judicially, it must be done by a sworn surveyor of the State. C. C. 829. It is the duty of the judge who has cognizance of suits on the subject of limits, to appoint surveyors to inspect the premises in question ; the court, on the report, ought to decide according to the titles of the parties and the plans which shall be presented to the court. Art. 837 C. C. These dispositions of the Code have not been complied with. It was the duly of the judge to require the report of the surveyor, and he should not have passed upon the case until the plans made by that officer in execution of the order of survey; were brought into court.

The court further erred in passing definitively upon the title of the defendants. This was not asked by either party, and the uncertainty which prevented the court from determining, the boundaries of the plaintiff’s land must also exist in relation to thatof the defendants’possessions. This case must be remanded.

It is, therefore, ordered that the judgment in this case be reversed, and the case remanded for further proceedings in conformity with the opinion of the* court;, the defendants and appellees paying the costs of this appeal.


author: Eustis, C. J.

text:
    Medd v. Downing et al.
    Money deposited with a'sheriff, under art. 3034 of the Civil Code, as'secuvity for tKe'releasB' of property provisionally seized; must be restored to the depositor-.on the dissolution of tho-seizure.
    from the District Court of Jefferson, Clarice, J.

      Hiestand, for the appellant.
    No counsel appeared lor the defendants.
   The judgment of the court was pronouneed'by

Eustis, C. J.

OFthe I2th of July, 1847, the plaintiff deposited with the defendant Dewees, sheriff of the parish of Jefferson, $325, as security for the release of a raft of timber, which'the sheriff had seized in the suit of Downing v. Russell, which sum was to be restored to him on his giving security according to Ihw, and took from< him a written receipt to that effect. The writ of provisional seizure under which-the raft had been taken was, on motion, set aside, and the raft released from seizure. Medd, the plaintiff, had intervened in the suit of Downing v. Russell, and claimed the raft as his property; but, it being released, there was nothing on which his intervention in that suit could rest, and-ib was accordingly dismissed. Judgment was rendered in that suit for $250 and costs, in favor of the plaintiff Downing,

Medd has sued to recover from Dewees the amount deposited with him as a security for the value of the raft. The district judge dismissed the plaintiff’s petition on the ground that he had failed to show a compliance with the condition of giving security as stated in the receipt, and the plaintiff has appealed.

The amount deposited by the plaintiff in the hands of the sheriff to effect the release of the seizure of the raft must be considered as received and retained by that officer, under article 3034 of the Code, which authorizes the receipt of money by public officers on deposit, in lieu of security, in cases in which security is required to be given. The property having been released from seizure, the sheriff can no more keep the amount deposited than he could recover in an action against the plaintiff had the latter given his forthcoming bond for the raft, instead of having made Ihe deposit.

The defendant Dewees alleges as a ground of defence, that he has seized the money under a fieri facias issued in the suit against Russell; but there is no evidence showing that the money was Russell’s. There is nothing in the bill of exceptions taken to the exclusion of evidence by the district judge.

It is, therefore, adjudged that the judgment appealed from be reversed, and that the plaintiff recover from the defendant, Dewees, the amount of the deposit made with him as sheriff of. the parish of Jefferson, to wit, the sum of §325, with interest from the judicial demand, and costs in-both courts.


text:
    Botts v. Cochrane.
    'The'liabilily of the owners-of any ship, vessel, or other water craftto the owner of any slave illegally carried from one part of the State to another,under the stat. of 26* March, 1835, only exists where the master.of the vessel would be subject to the pains and penalties of the stat. of 13 February, 1816.
    ’The duty, imposed by the stat. of 13 February, 1816, on the master of a vessel who discovers a fugitive slave on board, to land him at the nearest place, is substantially obeyed by landing him at the nearest place where he can be landed with reasonable facility, and in such a mode as may be best calculated to ensure his safe keeping. Ht would be unreasonable to require a captain to stop in the night, and to go on shore in search for a justice or other inhabitant, when, by proceeding on his voyage till daylight he could reach a principal town of the State, where he might provide for .the safety of the slave, and give publicity to his elopement.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Preston, for the appellant.

      Michel and Burns, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

A slave belonging to the plaintiff ran away from him, and secreted himself on board of the defendant’s steamer, -then about leaving the city on a voyage up the river. The boat left New Orleans in the afternoon, and sometime in the evening the slave was discovered by the mate. Early the next morning the boat arrived at Baton Rouge, -when the slave, -who had been confined during the whole night, was placed in charge of the wharf-master, who had him put in jail there, and advertized as a runaway. All the intermediate jails were passed in the night time. The plaintiff recovered.his slave about four months afterwards, receiving him from the jailor at Baton Rouge; and brought this action to recover from the defendant the expenses incurred in searching for .and regaining possession of the slave, and the value of the slave’s time at two •dollars per day.

This claim the plaintiff attempts to maintain under the statutes of 1816 and 1835. The act of 1816 imposed, by its first section, the penalty of imprisonment at hard labor fora terra not^exceeding seven years and not less than three, and a liability for all damages to the proprietor, upon masters of vessels who should, without the consent of the owner, carry a slave out of the ¡átate, or receive him on board with that intent, or conceal him for the purpose of enabling him to make his escape. By the fifth section it was enacted that, if a-master should discover a slave concealed on board his vessel, it should be his duty, if still in the river, or within the limits of the State, to land the slave at the nearest place—au lieu le plus prochain, and there to deliver him to any judge, justice of the peace, sheriff, jailor, or, iu defect thereof, to any inhabitaDt> may sentt0 bis master; and that any master refusing or neglecting to perform what was required in the section should be liable to the same punishment, and the damages mentioned in the first section. By the act of 1835, the liability in damages was extended to the owner of the vessel, for the acts and omissions of the master contemplated iu the act of 18X6.

As the liability of the owner only accrues in cases where the master would be subjected to the pains and penalties of the act of 1816, we will examine the effect of the statute, as though the steamer’s captain were under prosecution, under the fifth section of the act of 1816. If he could not be subjected to imprisonment at hard labor for a term of three years, the vessel’s owner cannot be made liable in this suit.

The statute is highly penal, and is not to be harshly construed. It must receive a reasonable construction, such as will accord with the intention of the legislature. That intention was the protection of the slave owner, and the accomplishment of the restoration of fugitives. The injunction upon the master of the vessel who discovers a fugitive slave on board to land him at the nearest place, is, we think, substantially obeyed by landing him at the nearest place where it can be done with reasonable facility, and in such mode as may be best calculated to ensure his safe custody. It seems to us it would be unreasonable to require the captain to stop in the night, no matter where it might be, and go on shore to search for a justice or an inhabitant, when, by proceeding on his voyage until day-light, he would reach a principal town of the .State, where he would be sure to find the means of providing for the safe keeping of the slave, and giving publicity to his elopement. We cannot resist the conviction that the captain acted in good faith, and, in the exercise of a sound judgment, under the circumstances, for the protection of the owner. No jury, we conceive, would find a verdict upon an indictment against a captain npon such facts; nor do we think ,a court could properly .instruct them that it would be their duty so to find. Judgment affirmed.


text:
    Dawson et al. v. Holbert, Tutrix, et al.
    A donation inter vivos, with a reservation of the usufruct to the donor, being in violation of a prohibitory law (C. C. 1520) is null, and cannot be protected by the prescription of one year*
    The prescription of one year established by art. 1989 of the Civil Code, does not apply to an action to have a simulated sale decreed to be such.
    Where a third person purchases property at a salo under execution, with money furnished in whole or in part by the insolvent debtor, under an arrangement with the latter that the property shall be held by the purchaser as a trustee for the benefit of a child of the debtor, the title of the debtor will have been divested, but in fraud of his creditors. The transaction will be subject to the prescription of one year, established by art. 1989, commencing, not from the date of the sheriff’s deed, but from the time when the complaining creditor obtained a judgment against the debtor.
    Though a plaintiff is authorized, under art. 719 C. P., to issue execution against the surety on a twelve-months' bond, “in the same manner as on a final judgment", and is thus clothed with one of the rights of a judgment creditor of tho surety, he is not really snob within fehe meaning of art. 1989.

      from the Fourth District Court of New Orleans, Strawbridge, J.

      Hornor, for the appellants.

      Collens, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The petitioners allege that they obtained a judgment in 1840, against Summers; that property of Summers was sold, in 1841, under a fieri facias; that Summers became the purchaser, and gave James Holbert as his surety in the twelve-months’ bond ; that, in November, 1841, Holbert made a donation inter vivos of a house and lot to his minor daughter Julia, reserving to himself, during his life time, the usufruct of the property; that the donation is null from its nature, and is also fraudulent and ineffectual against creditors by reason of thefansolvency of Holbert at the time; that afterwards Holbert consented to a sale of the same property under an execution against him at the suit of another creditor, and bought it in by the interposition of Daniel Phillips. The prayer is that, the donation and the apparent title of Phillips be declared null, and that the property be subjected to the payment of the plaintiff’s judgment. The tutrix of the minor and Phillips first pleaded the general issue, and subsequently the prescription of one year. Upon the plea of prescription the court below gave judgment in favor of the defendants; and the plaintiffs have appealed.

As to the donation, we have no hesitation in considering it a nullity. Our Code declares that, “ the donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself.” This is a salutary departure from the Napoleon Code, by which a donor was permitted to reserve the usufruct to himself. The change was dictated by sound considerations of public policy. In the language of the jurisconsults who prepared the amendments to our Code of 1808, (which conformed to the Napoléon Code, see Code of 1808, p. 220, art. 50. Nap. Code 949), “the rerervation of the usufruct in favor of the donor would produce the disadvantage of concealing from the eyes of the public the change of property which had taken place. He who wishes to enjoy, during his life, a piece of property which he destines for another, can give it by last will; and it is not easy to perceive the use of a donation inter vivos with reserve of usufruct.” See amendments to Civil Code, p. 203. Tho donation was, therefore, in violation of a prohibitory law; and such a nullity was certainly not covered by the prescription of one year.

Dismissing therefore entirely the act of donation, we proceed to examine the question of prescription with reference to the title of Phillips under the sheriff’s deed, which was made to him in 1843, under execution at the suit of Maher against Holbert.

Phillips did not take possession under this deed. Holbert remained in possession of the property until his death, which occurred in 1847; and his widow, the tutrix of the minor, has occupied it since. Phillips, whose answers to interrogatories have been offered by the plaintiff's, says that Holbert ceased to have any interest in the property after the sheriff’s sale; that it was sold to him by the sheriff upon a twelve-months’ bond, and that he paid this bond at its maturity; that a portion of the money, with which he paid, he received from friends of the minor, and a portion from Holbert, who stated at the time of handing him the money that it did not belong to him. Phillips further declared that he had made the purchase at the request of the friendsofthe child, in order to save it for her, and not in any manner to benefit Holbert; and that he held himself ready at any moment to pass a title to the child.

There are three views in which this purchase may be regarded. First, As a mere purchase by Phillips, as the friend and agent of Holbert, with his monies and for his benefit; Phillips taking the paper title in his own name, but leaving the possession in Holbert, .ana standing ready to make him the paper title when he should require it. In other words as a mere simulation. Second, As an agreement by which Holbert intended that the property should inure to the benefit of his child, through Phillips as a trustee for her, he furnishing the money, or a portion of the money, to Phillips to pay the sheriff. Third, As a purchase by Phillips in good faith, for the benefit of the minor, with monies furnished not by Holbert, but by the friends of the minor.

Under the first hypothesis we consider the prescription of one^ear inapplicable. The form of the conveyance would be immaterial. A sale effected for such a purpose through the -sheriff, so far as Holbert was concerned, would stand on the same footing as though he had made a conventional transfer in the -ordinary form-of a deed of sale. The case therefore would be one of simulation, and under the principles announced in Cammack v. Watson, and repeated in Wright v. Chambliss, Linderman v. Theobalds, and Hobgood v. Brown, (1 An. 132, 262; 2 An. 323, 913,) article 1989 is inapplicable.

Under tire second hypothesis, the title of Holbert would have been really divested but in fraud of his creditors. The transaction would therefore be subject to the prescription of one year, dating however, not from the date .of the sheriff’s deed, but from the time the complaining creditor obtained a judgment against the debtor. To .ascertain whether in the case supposed prescription has accrued, we must determine the question which has been much discussed by counsel, whether the plaintiffs are to be considered as the judgment creditors of Holbert, at.a period more than a year antecedent to the institution of this suit. We have slated that Holbert became, in 1841, the surety of Summers in a twelve-months’ bond given to the plaintiffs. The defendants contend that when this bond matured the plaintiffs occupied the attitude of judgment creditois of Holbert, .because they had a right under the 719th article of the Code of Practico, to issue execution against Holbert the surety “in the same manner as on a final judgment.” But though the holder of the bond is thus clothed with one of the rights of a judgment creditor, we cannot therefore consider him as really a judgment creditor. When the Code speaks, in article 1967, of creditors whose “debtsare liquidated by a judgment”, and, in article 1989, of a creditor who “has obtained judgment against the debtor,” we must consider the language as used in its ordinary sense. We therefore conclude that the case cannot be properly determinod upon the plea of prescription; and this brings us to the consideration of the third proposition, namely, whether Phillips is to be considered a purchaser in good faith for the benefit of the minor, with monies furnished not by Holbert, but by the friends of the minor.

If we could bring our minds to a conclusion upon this point in favor of the defendants, there would be an end of the case. But .upon this point we are not satisfied, and have determined to remand the case for further investigation. Our reasons for doing so wifi be briefly stated. In the first place, we have not the benefit of the opinion of the district judge. It is possible that he may have entertained doubts as to the bona fides of the transaction, since he did not decide the case upon that ground, but upon the plea of prescription. In the next place the retention of possession by Holbert was an unfavorable circumstance, which raised the presumption of simulation. C. C. 2456. It threw the burden upon the defendants, and called for satisfactory proof of the validity of the sale, and that the parties acted in good faith. Phillips acknowledges' that a portion of the money to pay the twelve-months’ bond, executed by him to the’ sheriff, was furnished by Holberi; and if Holbert’s declaration at the time’ was true, that it was not his money, it would have been i&uefs more satisfactory if it had been' shown from Whom he got it. So also the silence’ of Phillips as to the names of- the friends of the child who furnished him the rest of the money, is suspicious. Those friends might have been named, and then they could have been called to testify. Oh the other hand, it must be acknowledged that Phillips speaks very positively as to- the absence of collusion with liolbert.

Under all the circumstances of this case, which’ involves-the whole fortune of the minor, we have deemed it the safest eourse to remand the cause for a new trial, believing that the good faith or dishonesty of the transaction can be moroele arly ascertained by further evidence.

It is said in argument by the’ defendants’ counsel that the plaintiffs are not entitled to prosecute* this action, bscaas© they had not obtained a judgment against Rolbert before the institution of the suit, and did not make his succession a party. The defendants pleaded no exception to that effect; but went to trial upon the merits and the plea of prescription. Moreover, it appears by evidence introduced without abjection, that during the pendency of this cause’ the plaintiffs became parties to the’ probate proceedings in Holbert’s succession, and were recognized as creditors of his estate.

It is, therefore, decreed that the judgment of the court below be reversed, that the plea of prescription be dismissed, and that this cause fee1 remanded for' a new trial, and for further proceedings according to law'; the defendants paying the costs of this appeal.


text:
    Jacob v. Davis.
    A verbal agreement for the sale of land or slaves is not null. The defect of such a’ contract relates only to the proof; and if one of the parties acknowledges the agreement, or permits parol evidence of it to be given without opposition, it must be carried into effect.
    from the Second District Court of New Orleans, Canon, J.

      Griffon, for the appellant.

      Moise and W. M. Randolph, for the defendant.
   The judgment of the court was pronounced1 by

Rost, J.

This suit is instituted to rescind the sale of a slave, on the ground that he was adicted to running away. It is alleged that he ran away within two montha after the sale made of him by the defendant; that he had not been eight months in the Stats at that time; and that, under the act of 1834, the presumption is that he had that vice at thar time of the sale. The answer is a general denial. There was judgment agaist the plaintiff, as in case of non-suit, and he appealed.

It is admitted that the slave was taken up on the 4th September, after running away, and having been absent four days. He must, therefore, have absented himself on the last day of August. The authentic bill of sale to the-plaintiff bears date the 10th of July, 1847. But the plaintiff has proved by parol evidence that the contract between him and the defendant was made before that date, to wit, on the 87th Juno, 1847, and ibat the slave was then delivered, and came on the plantation of the plaintiff, where he remained untill he runaway.

This evidence contradicts the notarial act of sale, but as it was adduced by the plaintiff himself, he müst take the consecpiences. Our predecessors have repeatedly decided that a verbal agreement for land or slaves, even under the provisions of our Codes, was not null and void. That the defect which such a contract presented, relates solely to the proof; and, if one of the parties acknowledges the agreement, or permits parole evidence to be given of it with-' out opposition, it is the duty of courts of justice to carry it into effect. Bromn v. Frantum, 6 La. 46.

We consider it proved, as the district judge did, that the sale and delivery took place on the 27th of June, and that the plaintiff has not brought himself within the provisions of the act of 1834.

The defendant has asked that the judgment be amended and made final in his favor. This application was not made intime, and cannot, therefore, be granted. Code of Practice, 890. Judgment affirmed.


author: Slideli., J.

text:
    Cordeviolle et al. v. Redon.
    Where a lessee, who had bound himself not to sub-let any part of the premises for moro than one year, sub-lets a part for nine months, covenating to renew the lease on the same terms fro'm year to year for the residue of his own term, the sub-lease is a violation of the prohibition, and will authorize the lessor to demand the reoission of the lease. C. C. 26S<5, 2700.
    The prohibition to sub-let iB always construed strictly against the lessee. Such a prohibition is not personal to the original lessor; bdt, in the absence of any stipulation to the contrary, the whole contract may be assigned by the lessor to a third person.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Bodin, for the plaintiffs.

      It. II. Barker, for the
   The judgment of the court was pronounced by

Slideli., J.

The defendant, by his contract of lease, bound himself not to' sub-lease any part of the premises for more than one year, without the consent of the lessor. He made a lease to Brown Brooks of a portion of the premises for nine months, (taking monthly notes for the rent,) with a covenant to renew the lease on the same terms and conditions from year to year for the residue of his own term, which then had about three years to run. It does not appear that this sub-lease had been rescinded before the institution of this suit. JBy art. 2696 of our Code, the landlord may, by the terms of the lease, forbid the lessee to under-lease. “The interdiction,” says the Code, “may be for the whole, or fora part; and this clause is always strictly construed—cette clause est toujours de rigueur.” The language is taken literally from the Napoléon Code;. and the interpretation which it appears to have uniformly received in France, so far as our researches have extended, is that the prohibition must be construed strictly against the lessee. See Troplong, Contrat de Louage, § 138. Duranton, vol. 7, § 84. Rogron, 1717.

Although the lease to Brown Sf Brooks was not, in direet terms, a lease for more than one year, it was so substantially. So far as Redon was concerned he certainly placed that portion of the premises out of his control for more than one year; nor is there any expression in the lease indicating, that the renewal was to be at the discretion or option of the lessees. The fair interpretation of the lease would seem to make the renewal obligatory on both parties, although new acts would be necessary to be done under the covenant, such as giving notes for the rent of the new terms.

Phe sub-lease was in violation of the prohibitory clause, and this violation gave the plaintiff aright to demand a resolution of the lease. Such is the right reciprocally given to landlord and tenant, if either violate the contract. Civil Code, 2700. If there be any hardship it is of the party’s own making. Having assented to the prohibition, he lias made the contract the law SetvVeen himself and his lessor, and we are not permitted to enquire into the motive of the prohibition, nor whether its breach will injure the plaintiffs.

The lease was madé by the City Bank to Redon, and the plaintiffs subsequently bought the property from the lessors. By so doing they succeeded to the rights of the bank under the contract.- We do not consider the reservation as to consent personal to the bank. In the absence of a stipulation to the contrary, the entire contract was assignable by the lessor.

Judgment affirmed*


text:
    Arnoult v. Deschapelles.
    In air action against the master to recover the value of a slave belonging to plaintiff killed by a slave of defendant, proof that the slave had been convicted of the killing and had been sentenced to imprisonment at hard labor for life, and that a certain sum had been paid for him by the State to defendant, will not relieve the defendant from liability for his offence. The slave having ceased to belong to defendant, he cannot make an abandonment of him; but as the slave is representedby the sum received from- the State, he may exonerate himself by paying over that amount.
    Decision in Hynson v. Meuillon, 2 An. 79S, affirmed.
    from the District Court of Jefferson, Clarice, J.

      Roselius, for the plaintiff.

      Burthe, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is an appeal from a judgment m feyor of the plaintiff in air action instituted to recover the value of the slave Henry, formerly belonging to the plaintiff, and alleged to have been killed by the slave Lezois^ belonging to the defendant.

Our attention has first been drawn to a bill of exceptions taken to the opinion of the district judge, admitting in evidence the record of the conviction of Lezois to prove rein ipsam. But as this evidence is not copied in the transcript, and the plaintiff’s counsel do not rely upon it, it is unnecessary to pass upon its admissibility.

It is proved that the defendant asked his slave Lezois, after Henry had received the wounds of which he died, “ Why did you stab that boy!” and that Lezois answered : “ Because I found him in my cabin, with my wife.”

The district judge was of opinion that the question put by the defendant presupposes the knowledge in him that the act had been committed by Lezois, and gave judgment against him, without taking into consideration the answer of Lezois, or his declarations and those of Ilenrzj, found in the record. Although the evidence is not of the most satisfactory character, yet as it produced conviction on the mind of the district judge, and as that conviction is not manifestly erroneous, we do not feel at liberty to reverse his opinion.

The death of the slave Henry and his value, and the ownership by the defendant of the slavojLeivis, are admitted. But the defendant contends that he is not liable in damages, and is dispensed from making the abandonment authorized by art.. 181 of the Civil Code, because the slave Lewis has been convicted of the crime alleged, on his own declarations and those of Henry, and sentenced to hard-labor for life, in consequence of which he has ceased to belong to the defendant, who has-received from the State $300'for him.

The question, whether under art. 181 of the Civil Code, a party situated as-the defendant is, can liberate himself from the payment of greater damages by abandoning the slave who caused them, while he is undergoing the legal punishment of the offence, came before us in the case of Hynson v. Meuillon, 2 An. 798, and was decided affirmatively. We held in that ease, that a slave confined at hard-labor for a term of years- might be abandoned. In this case, the slave convicted has ceased to belong to the defendant, and he cannot make an abandonment of him; but. that slave is represented by the sum received from the State; and, under the spirit and intent of the article of the Code, the defendant may exonerate himself by paying over this sum to the plaintiff, within three days after this decree becomes final. This appears to us a fair and legal-inference, and a proper extension of the actio noxalis. In this respect the-judgment must be amended.

It is,, therefore, ordered that the judgment of the court below bo amended,, so that if, within three days after this decree becomes final, the defendant pay the plaintiff the sum of $300-, the judgment about to|be rendered shall- be entered satisfied, except for costs. It is further ordered, that the judgment as-amended, be affirmed; the defendant and appellant paying the costs of the-District Court; those of this appeal- to be paid by the plaintiff and appellee.


author: Eusxis, C. J.

text:
    Vionet v. The First Municipality.
    The power to relieve the indigent sick, especially in times of epidemic disease, and to provide for the poor who are unable to labor, is inherent in every municipal corporation.
    The power to relieve the indigent sick, and to provide for the poor who are unable to labor, is is conferred on the municipal authorities of Now Orleans, by stats, of 14 March, 1816, s. 1, and 17 February, 1321, s. 2-
    from the First District Court of Now Orleans, McHenry, J.

      Foulkouze, for the appellant,
    contended that the power to employ physicians was conferred on the authorities of the city of New Orleans by the stats, of 14 March, 1816,. s. 1, and 17 February, 1821, s. 2. The power is inherent in every municipal corporation. Merlin, Jurisp., vol. 36, p. 207. 2 Kent’s Comm. pp. 296—7. Milne v. Davidson, 5 Mart. N. S., 409.

      Preaux, for the defendants.
   The judgment of the court was pronounced by

Eusxis, C. J.

The plaintiff, who is a practising physician, sues the First Municipality for the sum of $550, for professional services rendered the indigent sick of the r iith District of the municipality, during the epidemic of 1847.

The council passed an ordinance, on the 9th .of August of that year, authorizing the aldermen of each district, to select for their respective districts, two physicians and two apothecaries, who were to give aid and provide medicines for the indigent sick during the prevalence of the epidemic. This ordinance was afterwards repealed, the repeal to take effect from the 1st Nov. then next ensuing.

The plaintiff was selected by the aldermen of the district under this resolution, and performed his duty in attending to the sick. The council, by a resolution,.allowed to each of the physicians thus employed the sum of $200 as compensation for their services, which they accepted, with the exception of the plaintiff. The district judge gave the plaintiff judgment for this sum only, and he has appealed.

The district judge was satisfied from the evidence that the plaintiff was entitled for his services to a larger sum than'that given by the judgment, but was not satisfied that the governnment of the municipality had the power to authorize the employment of the plaintiff, or to appropi'iate .the corporate funds to the payment of his claims.

The statutes referred to by the counsel for the plaintiff we think give full power to the mayor and council of the municipalities to relieve the indigent •sick. It is a constituent power, we believe, of municipal corporations to provide for the poor who are unable to labor, and, during the prevalence of an epidemic, there is none the exercise of which is more imperative than that of furnishing medical assistance to those who are unable to procure it themselves.

The provision of hospitals for the indigent sick is within the police power of -cities. T-he power has been exercised by the former corporation of New Orleans, and we believe is admited by all writers of authority to be an essential part of municipal government. 1 Blackstone Cora. 131, 360. Droit Public de Domat, lib. 1, tit. 16, sec. 1, s. 6.

The mode of assistance adopted by the council, of taking care of the indigent sick where they are found, is certainly -not less legal than -congregating them in hospitals.

Finding nothing in the employment of the .plaintiff' for his professional services to which any legal objection exists, the question before us is as to the .amount due him. It would be unjust to graduate the compensation due to the plaintiff by the allowance to the other physicians, unless it were ascertained that the allowance was adequate to the services rendered. That it was is disproved by the testimony of a respectable medical gentleman. Besides the difference of the .extent and population of the districts, and the condition of the streets in the suburban parts, make a great difference in the time and labor required from a physician attending the sick.

The plaintiff was employed without any contract or understanding as to his compensation. He is entitled to recover from the defendant what his services are proved to have been worth. The evidence shows they were worth the sum of $550.

The judgment of the District Court is therefore reversed, and judgment rendered for the plaintiff against the defendants, for $550, with interest from judicial demand, and costs of suit in both courts.


author: Edstis, C. J.

text:
    The Citizens’ Bank v. Dennistoun et al.
    A transaction entered into on documents which are subsequently discovered to be false, is null in toto. In such a case it is immaterial to enquire to what extent those false documents may have been the moving or determining cause of the transaction. C. C- 3048.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J- The facts of this case are stated at length in the opinion of .the court infra.

      Grima, Pierce and Roselius, for the plaintiffs.

      Briggs and .Grymes, for the appellants.
   The judgment of the court was pronounced by

Edstis, C. J.

The defendants, together with several other merchants of ’the city, had claimed a large quantity of cotton, which had been purchased by Vincent Nolté, in 1839. Their claims wer.e contested by the plaintiffs, who asserted a superior right on the same cotton, which was then .held under judicial process. After ineffectual attempts to release the cotton from the custody .o,f the law the parties entered into a compromise. This compromise is in writing, and was concluded and signed on the,8th.of May, 1839.

By its -conditions the suits were lo be .discontinued at the costs of the parties; all ulterior claims resulting from the transactions which were the subject ■of the arrangement were waived ; the rights of the bank to all advances m;ide ■on the cotton w.ete recognized.; .the bank was to discount the drafts of Nolle for the amount due by him to each of the parties, which drafts were to be en■dorsed .by the party with a waiver of ¡protest and notice; the cotton was to be .delivered to the bank to be forwarded to its destination; the debt thus contra-et,ed to the bank was to be paid out of .the .proceeds of the cotton ; and the .parties bound themselves to make good any deficiency, each in his due proportion. The,cotton was delivered to the bank accordingly; ,the drafts were taken,.and .the money paid.

The present action, which was instituted in J842, is to recover from the .defendants the sum of $121,512 53, alleged to be the balance, including interest, .due .on advances .under this arrangement, after crediting them wilh the proceeds of the cotton, less the advances made by the bank to NoltL The cause was tried before a special jury of merchants on two occasions .without the jury in either case agreeing in a verdict, and was finally determined under an ¡agreement, of counsel submitting it to .the judge .of the Fifth District .Court ,of New Orleans, .who had presided at the jury trials. He rendered judgment .against the defendants for $65,004 45, with interest; and from this judgment .the present.appeal is taken by the defendants. The bank in its answer on .the appeal asks for a change in the judgment, giving the whole amount claimed in .the petition.

The defendants admit the advance to them of $92,000 on Nolffs drafts. •They allege that they were .induced to sign 'the.compromise and relinquish their .claim upon the cotton by fraudulent representations made to them, that the cotton upon which they had alien was-pledged to the bank, when in fact the cotton was .no.t pledged to the bank. They claim credit for the proceeds of one thousand bales of cotton, being a part .of two thousand four hundred and ¡seventy-one bales bought by Nolté from Yeatman & Co., and designated as the ¡isotton per John Randolph.

The truth or .falsity of the representations .undor which the defendants eniered into the compromise by which their claims on the cotton were relinquished, rests upon the fact of the acts of pledge in the books of the bank having been executed at the time they bear date, or afterwards, and antedated. The ■district judge did not decide the case upon this .contested question of fact, but settled the accounts between the parties independent of the compromise, allowing the defendants credit for the amount of their advance on the one thousand bales of cotton, on the ground that the bank had no legal possession of that parcel, which-was essential to the validity of the pledge.

The facts in relation to these one thousand bales appear to be as follows: On the 14th of April, 1839, Nolle bought of Yeatman & Co., two thousand four hundred and seventy-one bales of cotton. The purchase was to be considered as for cash, but no money was paid, and the payments were fixed at six different terms, from the 20th of April to the 15th of May, both inclusive. 'The cotton was not delivered. Nolté’s 'broker procured from the cotton press into which the cotton was taken from the landing, three receipts bearing date ■severally the 16, 17, and 18th of April. These receipts, two of which signed by the pressman, and one by his clerk with his authority, acknowledged to have ■received, on the days of the date, from Nolté, the number of bales specified .and marked,.-and to hold them subject to the order of the cashier of the Citizens’ Bank. At all of these dates there is no evidence that the quantity of cotton specified in the receipts was in the press, nor was it weighed or marked. 'The receipts were all false; and were procured by Nolté’s broker, and furnished by the pressman, without any privity or consent on the part of Yeatman Sf Co., to whom the cotton belonged exclusively, to the knowledge of both broker and pressman.

The account sales, giving the weight and total price of the cotton, furnished to Yeatman on the 21st, bears date the 20th, and of the same date is a receipt of the pressman acknowledging to have received the cotton for account of Yealman, which puts this fact beyond all question.

On the 20th, Yealman 8f Co. gave an order on the press for one thousand bales of the cotton, and called the same day to receive the first payment, $25,000. There appears to have been soriie difficulty or delay on the part of Nolté, but the defendants gave Yeatman a check for $25,000 in favo.r of Nolté, ■which was endorsed by him and paid on the 22d. This sum was advanced on the order given by Yeatman cf* Co., was in favor of Nolle or his order, and 'bore the .endorsement of Nolté. On the 25th the suit of the defendants against Nolté was commenced, for the sequestration of the cotton on which they had made advances. It is not proved that the order was notified to the pressman ■before monday, the 22d,¿wd the plaintiffs contend that it was not notified until after this -sequestration. Yeatman had, on the 23d, commenced proceedings against the whole lot of cotton, and was made defendant, with Nolté, in the suit of the Dennislouns. In both of these suits the bank intervened, and claimed the cotton. The intervention in the Dennistoun suit had for its object the setting aside of the sequestration as to two thousand and thirty-seven bales, the sequestrations having covered the whole lot per John Randolph. The petition based the rights of the parties upon advances made to Nolté on the cotton, and its being in their possession, under certain acts of pledge executed by Nolté.

This statement places before us the antagonist pretensions of the plaintiffs and defendants on this cotton, which was delivered to the former under the compromise of which we have spoken; and_we .purpose first to examine the correctness of the decision of the district judge as to the.respective rights of ^le Psrties previous to the compromise.

The petition of the bank charges the advances to have been made tfo Nolté on his two drafts, dated the 17th of April on Baring, Brothers Co., forming an aggregate of ¿C16.80G, to secure the acceptance of which Nolté delivered the cotton, and pledged the same to the bank, as will appear by the deeds of pledge themselves subscribed by said Nolle, and that the advance made by the Dennistouns on the 2Gth, was three days after the cotton was delivered and pledged as aforesaid to the bank.

It can hardly be urged that the possession of Yeatman & Co., who were the owners of the cotton, could be affected by the acts of Nolté, or of his agents. The rights of the bank are derived from Nolté, and he having no claims on the cotton until it was paid for or until the vendors chose to give Mm the control of it by delivery, it follows, as a matter of course, that, by virtue of the receipts above mentioned, the bank had in no sense possession of the cotton.

The argument of the counsel for the plaintiffs is, that Nolté acquired the possession under the order of the 2Qth from Yeatman & Co., and that this possession inured to the benefit of the plaintiffs, in as much as the defendants never gave notice of the order to the pressman until after the sequestration, which took place on the 25th and the receipts in terms asknowledge the possession of the bank. The order is to this effect:

“Messrs. Tilghman & Barnes; Deliver Vincent Nolté, or order, one thousand bales of cotton out of the lot of two thousand four hundred and seventy-one bales, received per steamboat John Randolph, and oblige.

(Signed) “Yeatman & Co.”

(Endorsed) “Vincent Nolte.”

“New Orleans, 20 April, 1848.”

But if notice to the pressman of the order was necessary to give the Dennistouns possession of the cotton, it was equally necessary for Nolté to give notice in order to give him possession of it. No such notice was given by Nolté, and, according to the argument, the possession remained in Yeatman 8f Co. up to the time of the sequestration by the Dennistouns, in which the pressman were made defendants. The possession of the original owner was uninterrupted and not changed until that event, and the bank never had possession until the cotton was given up under the compromise.

The right of the Dennistouns to hold the cotton adversely to the bank under article 3214 of the Civil Code being thus established by the advance and the possession, we find that this right was abandoned in favor of the bank under the compromise. The questions raised as to the validity of the compromise must necessarily be determined; for, if it be valid, the bank retains its paramount claims secured by it; and if the compromise be set aside, the parties must be restored to their original rights as they existed previous to and independent of it.

The article of our Code just quoted, which provides for the security of the commission agent or consignee for Ms advances on goods consigned to him, requires that the goods should be delivered to him, or, in a case of this kind, to use the words of the article, that they be at Iiis disposal in his stores or in a public warehouse.

Questions concerning the symbolical delivery of merchandize are so important in their consequences upon (he operations of commerce that, inasmuch as there is no necessity for it, we must not be understood as deciding that under the evidence in this case the delivery was perfect ts> either of the parties. The bank hold under the possession of the Dennistouns, and have no rights under Yeatman adverse to the defendants. They took the cotton, without any subrogation, under the compromise, to the claims of Yeatman against the defendants;- and they cannot now contest the possession under'which they hold,- without showing a superior right to it anterior 'to the compromise. It, therefore, does-not become necessary to determine on the perfectness of the possession by the defendants, under the order for the one thousand bales, previous to the sequestration, under which the whole lot was taken and delivered to the bank.

It will be seen by tbe petition of intervention of the bank in the sequestration suit of the Dennistouns that, its claims to the cotton was based upon the' delivery and pledge of the two thousand and thirty-seven bales, “ as will appear by the deeds of pledge themselves, subscribed by said Nolle,'” to use the language of the petition. These acts of pledge, which are before us in the originals, purport to have been executed, on the 15th, IG&h and 17th April, respectively.

Nolté, who- was examined as- a witness under a commission in tire city of Trieste, states that these acts of pledge were altogether an afterthought, and were all signed together at his rooms, on Sunday, the 21st, the day intervening, between the advance of the $¡2,500, on the 20th, by the Dennistouns, and the notice to the pressman on monday, the 22d. As to this fac£- of the- antedating, of these acts, counter testimony has been offered. We have stated- that this cause had been tried before two- special juries without any result, and from the complexion, of the whole evidence, we take it that this point was the obstacle. The district judge so considered it, and, under the view of all the difficulties which it presented, has given his opinion fully upon it, though he did not decide the case upon the point. Having presided at the two contested trials, and having heard the witnesses, some of whom were twice examined in open court, his opinion upon the issue of fact, whether the acts were antedated or executed at the time they purport to be, is entitled to great weight, and we should not be justified in overlooking it and acting on our own, unless that opinion was evidently erroneous.

The principal argument presented by the.plaintiffs against the effect of Nolte’s evidence is that, he is unworthy of belief, in consequence of the frauds he-committed in these transactions, and the levity and discreditable manner in which his testimony is delivered. Indeed the district judge states expressly that this evidence, taken by itself, would be unworthy of the slightest attention. An extract from his opinion will give his reasons not so much for believing Nolté, as for believing the fact of the pledges having been antedated to be as stated by the witness.

“In various other particulars, moreover, the evidence given by Nolté is directly contradicted by respectable witnesses. But it so happens that the portion of Nolté’s deposition which gives a date to the pledges of the cotton in question, different from the dates upon theirface, is very remarkably corroborated by tbe appearance of the pledges themselves. They are not in the regular pledge book of the bank in the order of their dates, but are upon loose sheets of paper,, wafered into another pledge book, which was not regularly opened until many months after the date which the pledges purport to bear. All the other pledges given to the bank by its customers are filled up in printed blank forms, bound up together in a book, and follow each other in regular rotation. The series of (hose printed pledges filled up and signed by the customers of the bank, is tin-interrupted in this volume, before, at, and after the dates given to the pledges-*n question. Why, then, were those pledges- not in their proper place in the volume? A plausible, and apparently the only plausible, answer is that furnished by Nolté's evidence, to wit, that the pledges in question were not executed at the bank where the book was kept, nor'on a day when the bank was open for business, but were in reality executed at Nolté’s lodgings, and on a Sunday. Besides this singular appearance of the instruments themselves, I cannot shut my eyes to the fact that Nolté did not alone sign them. They were signed by Perrault, the cashier, and by two witnesses, clerks of the bank. Why was not Perrault examined as a witness in this cause, to rebut NoUé’ff evidence on this point? One of the clerks has been examined, and his evidence does not contradict that of Nolté upon this point. He recollects signing papers at Nolté's rooms, but cannot say whether they were pledges or not. The witness recognizes his signature, but cannot say from his recollection at present, precisely where or when he signed. All is doubt and uncertainty. This uncertainty may very easily exist in the mind of a person who has had no other connection with an instrument than to attest the signature of a contracting party, especially after a lapse of many years; but I again must ask, why was not Perrault examined ? Ilis connection with the affair was too intimate to permit us to doubt that he has a recollection of it, and that he can' give Nollé’s story the most emphatic contradiction, if false. I do not, however, consider it necessary to decide this very difficult question' of fact, upon which no less than two juries have hung already in the cause.”

The force of this statement, it must be conceded, it is difficult to resist, and of its truth and accuracy we think there can- be no doubt. In scrutinizing the conclusions which the district judge felt himself bound to adopt, we have carefully examine^ every well ascertained fact connected with this transaction in all itsbearings and consequences, without having found any which are in conflict with that testified to by Nolté, of the antedating of the acts of pledge. No explanation is attempted to be given of the fact of the pledges not being i'n the' regular books of the bank in the order in whieh the several dates would place-them, and without such explanation upon what hypothesis can their being outr of their proper place be accounted for, except on that which this testimony and the attending circumstances concur in establishing?

There are two additional facts which, in reference to' this' enquiry, may not be unimportant. On the trial of the rule in Dennistoun’s case, taken by the' bank in order to bond the cotton, Perrault, the cashier, was examined as a witness for the bank, and makes no allusion to the acts of pledge although the-petition of intervention, as we have seen, was- based upon the acts of pledge. He says, “on being shown the two drafts marked G and H, they were paid' to Mr. Nolté as an advance on the cotton pledged to the bank ; previous to the money being, advanced as above stated, the policies and receipts were transferred to the bank; in making the- advance the bales were averaged as weighing four-hundred and twenty pounds, without making any estimation of the actual-weight; and to arrive at the amount the bank advanced, it was valued at ten cents; part of the cotton was shipped on the Diadem; witness cannot recollect whether the bank issued orders for the shipment of the cotton or not; but that he generally issues orders for such shipments.”

A close examination of the aets of pledge in the book of the bank, has satisfied us that three at least, and- iu all probability four, of them were signed a$ the same time. Ink of the same consistency and the same pen were evidently made use of by the person signing them, and his handwriting bears intrinsic signs of their being written at the same time and without interruption.

The law on the subject of compromises has been properly stated by the counsel for the defendants. The provision of our Code that a compromise entered into on documents which have been since found to be false, is null in loto, applied to the facts disclosed and the judicial proceedings which the compromise was entered into in order to terminate, is fatal to its validity. To what extent these pledges may have been a moving or determining cause of the compromise, we do not think it material to inquire. The defendants, it is not proved, knew that the pledges were false and antedated. The law gives no effect- to compromises on false documents, and hence the formal' and positive enactment on the subject.

The counsel for the defendants contend that if the compromise be declared void, the defendants are entitled to the nett proceeds of the one thousand bales of cotton which the bank has received, instead of their advance of ¡$25,000-allowed by the district judge, and also to a credit for the commissions1 in Liverpool, which now stand in the account of the bank as a charge against them.

We must restore the defendants to the rights they had under their sequestration. If the bank took the cotton and sold it, it is but just' that the proceeds received should be for account of those who had a superior right to it. The defendants have not asked to be credited with its value here, but are satisfied with the nett proceeds of the sale in Liverpool. The allowance of the nett proceeds of the one thousand bales appears to be a necessary result of the statu quo, to which our decision on the compromise restored both parties.

The evidence authorizes the allowance of the commissions, on the same principle. Had the cotton been left to its original destination under the consignment on which the advance was made, it would have gone to the defendants’ house in Liverpool, and the commissions would thus have been saved to them.

The compromise fixed the rate of interest at seven per cent. Had it not been for the compromise there is no reason to believe that the defendants would have made the ioan from the bank, and there is no ground on which a rate of interest higher than the legal rate can be allowed.

As the defendants have shown no legal ground on which the balance of the advance by the bank, after deducting the proceeds of the one thousand bales of cotton and the commissions on the sale, was retained, they must pay interest ex mora from the judicial demand. The proceeds of the cotton and commissions are to be calculated at the value of the pound sterling by the act of Congress of 1842.

It is, therefore, decreed that the judgment of the District Court be reversed? and it is ordered, that the plaintiffs recover from the defendants, in solido, the-sum of $44,133 43, With interest from judicial demand; the plaintiffs paying the costs of this appeal, and the defendants those of the District Court.

       The counsel for the appellants prayed for a re-hearing, urging: That tho source of the 3049th article of our Code is found in the. law 42, title 4, of the 2d book of the Justitian Code, and reads as follows : “ Si ex falsis instrumentis transactiones vel pachones inito fuerint, quamvis jusjurandum de his interpositum sit, etiam eiviliter falso revelato, eas retractan prseeipimus : ita demum, ut, si de pluribus causis vel capitulis eredem pachones sen transactiones inito fuerint, illa tantummodo causa vel pars retractetur, qute ex falso instrumento composito convicta fuerit: aliis capitulis firmis manentibus : nisi forte etiam de eo, quod falsum dicitur, controversia orta decisa sopiatur.”
      Brunnemann, in his commentary on this law, uses the following language ; “ Si quando ex falsis instrumentis judicatura sententia lata retractatur, utique etiara transactio, quando scilicet falsis instrumentis persuasus quis transegit, retractan potest etiamsi sit jurata. Sed id de iis capitibus tantum intelligendum, in quibus alter falsa instrumenta produxit, nisi sint connoxa.” Yol. 2,. p. 130.
      Duaren, commenting on the title in the roman digest, De Transactionibus, says, at page 83 of his works: “ Dolus etiam probandus est, quemadmodum metum probandum esse* diximus. Non enim sufíicit protestan, aut dicere coram magistrate se dolo adversarii inductum esse ad trausigendum nt ipsa rescindatur transactio, sed eum probari oportet dolum. Et hoc generaliter verum est.”
      • Godfred, in his noto on the 42d law of the Code; remarks: Ce Jurata transactio eatenus rescinditur, quatenus prsetextu falsorum instrumentorum facta est.”
      The modern writers are equally clear and unanimous on the subject. Article 3049* has been litorally transcribed from the 2055th article of the Napoleon Code. Toullier states the rule thus: <c Du reste, les transactions suivent la loi commune relativement a-l’erreur de fait, q‘ui les annulle ainsi que les autres conventions, lorsqu’ello a 6té la cause principal© du contrat. Les articles 2055 et 2056 en offrent des exemples.” Yol, 6, no: 72.
      It may, perhaps, be said, that the rule of the roman law has not been adopted in the modern Codes, without considerable modifications; and that the Louisiana Code formally and distinctly declares thatu a compromise entered into on documents which have since been found false, is null in toto” Now in what does this rule differ from that of the romon law? Simply in this, that instead of annulling the compromise only so far as it was produced by documents which have since been discovered to have been forged, and maintaining itso far as it is unconnected with themrit is annulled in toto. The article of our Codo has not subverted'the wholo doctrine on this subject, by providing that it is altogether immaterial whether the compromise was mad© in consequence of the forged instruments or not. The law does not deal in mere abstractions, and, therefore, it is of no importance whatever whether the acts of pledge in the present case were antedated or not, unless the defendants were induced thereby to propose and execute the compromise.The provision of the Code lays down the familiar rule that fraud taints and vitiates all contracts. What is the evident meaning and import of the words of the Code “ on documents, &c.” ? No other than this, that the compromiso must have been made in consequence of, and with reference to, documents which have since been discovered to be false or forged ; in other words, that these must have been the principal, if not the sole, motive or inducement for making the compromise. Inordorto invalidate a compromise on the ground of fraud or error, the same rules of law apply which would govern with reference to any ether contract. One of theso rules is, thatli fraud as applied to contvacts, is the cause of an error bearing on a material part of the contract created or continued by artifico, with a design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other.” C. C. art 1841. The rule with regard to error is similar. C. C. art. 1835-6. We do not contend that, under art. 3049 of the Code,, it is necessary to show that one of the parties was conusant of the falsity or forgery of the documents; for, even if both parties were ignorant of the fact, and acted in good faith, the compromise would nevertheless be null in toto. But on different grounds ; if one of the parties was aware of the forgery, the contract would be annulled on the score of fraud ; if not, on that of error.
      Such was the view of the subject presented to tbe Council of State, by Bigot-Préameneu, when the 2055th article of the Napoléon Code was under discussion: “ Il a toujours été de régle qu’une transaction faite sur le fondement de piéces alors regard des comme. vraies, et qui ont ensuite été reconnues fausses, est nulle.. Celui qui voudrait en profiler, serait coupable d’un délit, lors méme que dans le temps du contrat il aurait ignoré que la piece était fausse, s’il voulait encore en tirer avantage lorsque sa fausseté serait constaté©.
      Mais on avait, dans la loi romaine, tiré ,de ce principo une conséquence qu’il serait difficile d’accorder avec la nature des transactions et avec l’équité. On suppose dans cette loi que dans- une transaction il peut se trouver plusieurs chefs qui soient indépendans, et auxquels la piece fausse ne soit pas commune. On y décide quo la transaction conserve sa force pour les chefs auxquels la piéce fausse ne s’applique pas.
      Cette décision n’est point admise dans le projet de loi. On ne doit voir dans une transaction que. des parties eorrélatives; et lors memo quo les divers points sur lasquéis on a traite sont indépendans quant á lour objet, il n’en est pas moins inceitain, s’ils ont été indépendans quant á la volonté de contractor, et si les parties eussent traité séparément sur tous les points.
      On efit moins risque de s’écarter de l’équitc, en décidant que celui contre lequel on se serait serví de la piéce fausse aurait l’option, ou de demander la nullité du contrat en en-tier, ou d’exiger qu’il fút maintenu quant aux objets étrangers á la piéce fausse ; mais la régle générale que tout est corrélatif dans une transaction, est cello qui résulte de la nature de ce contrat; et ce qni n’y serait pas conforme ne peut étro exigé par celui méme contro lequel on s’est serví de la piéce fausse.
      And in the report made by the tribune Albisson, on the same occasion, we read:
      “ Mais il est d’autres cas oti ello est cnticrement nulle, ou tout au moins snjettc u rcscision; et co sont ceux qui peuvent faire ancantir un jugement en dernier ressort, auquel l’artiele 2052 assimile la transaction.
      Telle est, d’apres la disposition do Particle 2055, la transaction faite sur pieces qui out été depuis reconnues fausrss. Dol d’une part, erreur de I’autre: un accord qui n’ aurait pas d’autres elements no saurait subsister; aussi le projet lo déclare-t-il entibrement nul.”
      Again the tribune Gillet said :
      “ Ainsi les jugcmants définitifs sont annnlés lorsqu’il y a ou falsification des pieces, ou retention malicieuse de cellos qui pouvaient éclairer la decision : les mémes eireonstances dolvent done faire annuler la transaction.”
      We contend that, it is very material to inquire to what extent the pledges have-been the moving or determining cause of the compromise. If the pledges exercised no material influence on the minds of the defendants in making the -compromise, they cannot now-claim its nullity because the pledges were antedated.
      ■It is shown-by the evidence introduced by the defendants themselves, before the-Commercial Court, several days before the compromise was proposed by them, that they knew perfectly well that the cotton had not been delivered to the bank, and that, therefore, the acts of pledge were not worth the paper on which they wore written. Possession is of the essence of the contract. C. C. art. 3119. As the pledges, then, were absolutely and radically null and void, for the want of delivery and possession of the cotton attempted to be covered ‘by them, how can it be pretended that they could be rendered still more so .by being antedated % No degree of nullity of a pledge is imaginable beyond that resulting from the absence of possession. The parties so understood it, for the compromise was not made on the pledges ; no mention of, or allusion to them, is made either in the propositions for a-compromise, or in the contract itself. Re-hearing refused.


text:
    Michoud et al., Executors v. Marquet et al.
    Where part of a flock of sheep, purchased at a succession sale, die within three days thereafter .of a disease proved to have been incurable, the vendor must bear the loss. C. C. 250S. ,In such a case the sale cannot be rescinded, but .the price of the sheep which have died should be deducted from the price of the flock.
    from the Distriot Court of Assumption, Randall, J.

      Mathiat and Soulé, .for the appellants,

      llsley, for the defendants.
   The judgment of the court was pronounced by

King, J.

A part of the consideration of the note sued upon in this .action was a flock of sheep, of which thirty-eight are shown to have died within three days after the sale, of a disease which the witnesses say was incurable. The vendor -must sustain the loss of those which perished. C. C. art. 2508. The witnesses state that the disease was contagious, and extended generally through the -flock, but no other deaths are shown to have occurred. The judge should only have allowed a credit for §49 40, the actual loss proved.

The judgmentof the District Court is therefore reversed, and judgment rendered in favor of the plaintiffs, and against the defendants, in solido, for §453 60, with eight per cent interest from the 4th of April, 1846, until paid ; the appellees paying the costs of this appeal, and the appellants those of the court below.

      Tho purchase was made at a sale of property belonging to the succession of Girod. R.


author: Slidell. J.

text:
    McAuley v. His Creditors.
    One who purchases,¡at a sale of the assetts of .a bank made by commissioners .appointed to liquidate its affairs, a note made by an insolvent, will acquire no.greater-right against the •than the bank had at tho time of the sale.
    A creditor of an insolvent has-a right ito require the production in court of the bank-book of syndics the syndic to enable him to ascertain-tbe state of the insolvent's affairs.
    from the District Court of the First District, Buchanan, J.

      Byrne, for the appellants.

      Roselius, contrá.
   The judgment of.the court was pronounced by

Slidell. J.

The appellants, S. Smith & Co., having purchased two notes of the insolvent, at a sale made by the commissioners of the assetts of the Exchange and Banking Company, obtained an order on the syndic to show cause, ion.a certain ,day, why he should not pay them the amount allowed by .the .provisional tableau filed by the syndic on the 21st July, 1841, and also that he produce in court at the ,saKie time his .bank-book as .syndic. (On the day named, the syndic appeared, and answered to the rule, that the dividend due .on the notes was .paid to the bank before the tableau of distribution was filed .and homologated; that the slaves mortgaged to secure the notes .were pur.chased by the bank, and the price retained on account of the mortgage: that afterwards the surplus was paid by the bank to the syndic, and employed in paying other privileged .claims, long before the appellants became the holders of the notes; that the payment and settlement were made in conformity with the tableau of distribution duly homologated by the-court;-and that he has received no funds to deposit since the filing-of the tableau. Wherefore he prayed to be dismissed.

Upon hearing the district judge discharged the ¡tule;, and the plaintiffs In the ride'have appealed.

The .tableau.proposed the distribution of the proceeds of sale of four only, out of five, of the slaves secured by the mortgage, and recognized the bank as a,mortgage creditor. The bank had bought .these four slaves .at the syndic’s sale, and retained the price in its hands. This tableau was homologated long’ before the appellants bought the .notes. The appellants.acquired .no better right against the syndic than the bank had at the time of the sale oj the notes by the commissioners; and it is obvious that -the bank .could not have pretend,ed to make the .syndic liable for monies which it had not paid to him, but .retained iu.its own bands.

But .that portion of the rule of the appellants which called .upon the syndic .for the production of his bank-book appears to have been disregarded iby the syndic, and to have been overlooked by the court. The appellants had a right to the .inspection..of the bank-book. One of.the five slaves which were mortgaged to secure the notes held by the appellants had .been sold, as stated in the tableau, to another purchaser, who had neglected to comply with the terms of sale. The proceeds of the sale of this slave not being in hand at the time of filing-this tableau, are not comprehended .in the distribution ordered by it, and cannot therefore be claimed under the tableau. But the appellants had a right to know whether the price had been subsequently received by the syndic ; and the inspection of the syndic’s bank-book was one of the means a 1-lowed to the creditor by the statute for obtaining that information. The entire discharge of the rule appears to us, therefore, erroneous.

It is, therefore, decreed that so much of the judgment of the District Court as rejects the claim of the appellants to the proceeds of the sale of the four slaves, Reuben, Carey, Hannibal and Washington, be affirmed; and that, in other respects, the said judgment be reversed ; and that this cause be remanded to the court below with instructions to the said court to compel, by due proceedings, the production in court of his bank-book by the syndic, so that the same may be inspected by the appellant; the appellee paying the costs of this .appeal.


author: Rost,, L

text:
    Larue v. Hampton.
    Where a party to a written instrument acknowledges therein that certain machinery had been .famishedby the'Other party, but the acknowledgment does not enumerate the articles, parol evidence is admissible to prove what articles were furnished. Such evidence is merely explanatory of the acknowledgment; and goes neither against nor beyond it.
    from the District Court of Terrebonne, Randall, J.

      Beatty, for the plaintiff.

      Cole., for the appellant.
   The of the court was was pronounced by

Rost,, L

On the 16th of December, 1845, an agreement was entered into in writing between the plaintiff, Larue, and Hampton, the defendant, by which a retrocession was made of certain landed property acquired by Larue from Hampton, on which there was a steam-saw mill, which had been destroyed by lire, while in the .possession of Larue. The act states that Larue retrocedes to the defendant .the boiler .and engine, and all other parts of the machinery purchased of him, which were not destroyed by fire. The plaintiff reserves the use of the dwelling house, kitchen andjyard till the 1st of March, 1846, and that of a circular saw mill erected by him on the place, till he could saw the logs he had, after which he was to surrender the mill to the defendant, until he gave him entire possession, on the 1st of March, 1846. At the foot, of this agreement is .found the following acknowledgment:

“I do acknowledge that.omthe 1st day of March next, when my lease is out on the saw mill, that John La-rue is to have the machinery that he has put to the saw mill, with the shed, as I shall have no further claim on the same. JDated the 7th January, 1846, and signed] “ Noah Hampton.”

The plaintiff who has delivered the land now sues for the restitution of the machinery mentioned in this acknowledgment.

The defence is that the mill was retroceded to the defendant, with the Innd on which it is situated; .that the paper sued on is no contract, and that imposes no .obligation on the defendant to deliver the machinery .to which it refers; that the defendant never meant to make a donation to the plaintiff. The District Court gave judgment for the machinery, and §5400 damages. The defendant has appealed.

On the trial below, the defendant’s counsel took a bill of exceptions to the opinion of the court allowing the plaintiff to introduce parol evidence to prove what portion of the machinery had been furnished by him. This evidence was properly admitted. The defendant having acknowledged that a portion of the mrchineryhad been furnished by the plaintiff, and the acknowledgment being silent as to the enumeration of the articles, they could only be ascertain-e(^ by parol evidence; that evidence is merely explanatory of the acknowledgment, and goes neither against nor beyond it.

On the merits, the judgment is clearly right. The acknowledgment of the defendant explains the previous agreement, and interprets it, as we would have interpreted it, if the acknowledgment had never been made. The evidence in relation to the amount of the damages is conflicting, and we adopt the conclusions of the district judge.

The plaintiff has asked that the judgment be amended and rendered in his favor for the full value of the machinery, instead of the machinery and damages. We believe the judgment as it stands has done justice between the parties. If the plaintiff wished to be indemnified, for the time employed in litigation, he should have asked damages in another form.

Judgment affirmed.


text:
    Segond, Agent, v. Roach.
    Though the defendant in an action on a lost note allege, under oath, that the note was a forgery, the testimony of witnesses will be admissible to prove a presentment of the note and her acknowledgment of its genuineness. In such a ease, plaintiff will not be restricted to proof by witnesses who saw the defendant sign the'act, or who know it to be her signature because they have frequently seen her write and sign her name, or by experts or comparison-of writing. Art. 325 C. P. is an exception to the general rule of evidence, and must not be extended beyond those ordinary eases to which it clearly applies.
    PPEAL from the District Court of Ascension, Randall, J.

      Augustin and Duffel, for the plaintiff.

      R. A. Upton, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

A former action had been brought upon the note which forms the basis of the present suit, but the parish court-house was destroyed by a conflagration, and with it the note. The petition alleges the destruction of the note, and also states the consideration for which the defendant gave it—goods furnished to her. In her answer she asserted that the note was a forgery, and accompanied the plea by her oath. At the trial the plaintiff offered two witnesses t,o prove a presentment of the note to the defendant, and her acknowledgment of its genuineness. To the admission of such evidence the defendant objected upon the ground, that, as the defendant had pleaded the forgery under oath, the plaintiff could only be permitted to prove its genuineness, either by witnesses who had seen the defendant sign the note, or who could declare that they knew the signature to be hers, or by experts or comparison of writing, ns established by the Civil Code- The 325th article of the Code of Practice declares that: “ If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts, or by a comparison of writing as established by the Civil Code.”

This article was considered in the case of Plique v. Labranche, which wa3 an action against an indorser who disputed his signature. The' note was in existence. Evidence to prove the Verba! acknowledgment of Labranche that the endorsement was in his handwriting was offered by the plaintiff, objected to bj the defendant, and received by the court below. Upon appeal' it was held, Martin, J. acting as'the organ of that court, that the evidence was inadmissible.

The article of the Code, thus interpreted, is in derogation of the general law of evidence, and must, therefore, be strictly construed. It must not 6® extended beyond those ordinary cases to which it clearly applies, and which alone are to be considered as contemplated by the lawgiver. But the case before us is out of the ordinary category. Here the note has been destroyed ; a circumstance not presented in any of the cases cited.

But the defendant argues that, even where the note has bee» destroyed, it is still,possible to meet the inquisitions of the Code of Practice. This is true! but it is not the whole truth. The holder of a lost note might perhaps have the good fortune to find witnesses acquainted with the party’s handwriting, who had seen the note before its destruction, or persons competent to act as experts who had seen the note. But it is obvious that, in most cases, the owner would be put at disadvantage by the destruction of the note. The range of his evidence would be much circumscribed. He would be restricted to witnesses who had seen and examined the note before its destruction, while in cases where the instrument existed and could be produced, he would have the range of the entire parish for experts, and' of the whole State, or Union, or foreign countries, for witnesses to prove the handwriting. We cannot strain the rule of the Code to a case thus out of the ordinary category, and where the ends of justice might be defeated by limiting the plaintiff to a class of witnesses who perhaps could not be found. There was, therefore, no error in the ruling of the court below.

On the merits, the case stands thus : The plea of forgery is met by the testimony of two witnesses, whose character has not been impeached'. They prove the presentation of the note to the defendant after its maturity, and her recognition of its genuineness. They prove also that goods furnished to- her plantation were the consideration of the note, and that the objection made by her to paying it when presented, was her belief that it had been already paid. Facts sworn to by other witnesses corroborate the statements of these two-witnesses. This testimony the jjury believed. It satisfied them that the note was genuine, and they found a verdict for the plaintiff. The district judge refused a new trial. Although this court has the power to reverse the verdict of a jury, it is a power we will not exercise except where the verdict is manifestly erroneous; which we cannot say is the case in the present instance.

The exception to the capacity of the plaintiff was properly overruled.

Judgment ajirmed.