author: Labauve, J.

text:
    Patrick McGuigin v. John Ochiglevich.
    One who pleads the illegality of the consideration of a promissory note, sued upon, must clearly establish it.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. Field & Shackleford, for defendant.

      Jf. H. Righior, and Fellows & MiUs, for plaintiff and appellant.

    — On the 18th of February, 1862, the defendant executed his note for one thousand dollars, payable to his own order, and endorsed in blank. Plaintiff, as owner and holder, for a valuable consideration, of the note, brought this suit, wherein the defence set up rests on the allegation that the note was given in payment of work and material supplied for gunboat equipments destined to the use of the Confederate Government, an insurrectionary body, treasonably warring against the lawful authority of the National Government.
    The lower Court held that “ the evidence clearly shows that the respondent was a kind of contractor for this work, and that he used services and goods of plaintiff in the supplies furnished. The contract was not simply immoral, but it was one of a highly criminal character.”
    From the decision thus rendered we have taken this appeal.
    Waiving all questions of fact, dismissing the legal question whether the payment by novation of the original debt for which the note was executed, did not cure any defect of original consideration, we shall address ourselves to the task of showing that, even if defendant can be allowed to allege his own turpitude in avoidance of the obligations of good faith, yet, that the learned Judge a quo has made a hasty and violent application of the familiar maxims of legal ethics enunciated in Art. 1887 of the Civil Code, the operation of which is regulated by the 19th Article of the Code of Practice. The decision to be rendered will be of vast importance, as fixing a precedent for the solution of numberless questions of a kindred nature which have arisen during our late troubles.
    It is not pretended that there is anything inherently immoral or essentially criminal in the art of making sails, or in the act of selling canvas. The trade of sail-making is in itself an eminently useful and honorable one; it is indispensable to commerce, to science, to civilization. A contract to supply canvas and sails involves no patent turpitude, like a contract to rob, to murder, to commit arson, to abet treason, which would be on its face iniquitous, and for the enforcement of which the law grants no action. It is obvious, therefore, that a distinction is to be made between contracts immoral sui generis and those the object of which is to supply, or do something which, innocent in itself, is intended by one or both parties to subserve a purpose reprobated by law or by good morals.

      Now, the case at bar, if it is at all affected by these principles, obviously comes under the second head of the distinction, and the plaintiff is denied all right of action for the recovery of money due on a contract for furnishing legitimate articles of commerce, because they are declared to have acquired an illicit character by reason of their destination, by the purchaser, to an unlawful purpose. The immoral character of the contract does not result from a simple inspection of its terms, but is remotely deduced by a process of reasoning and casuistry involving questions of motive and intention on the part of the vendor, and of knowledge on the part of the vendee. It is the alleged treasonable animus of defendant, known to plaintiff, which is supposed to have tainted the contract with immorality. It will certainly not be pretended that if plaintiff had been ignorant of the purpose to which the defendant destined the goods furnished, he would have forfeited his claim to compensation for their value, because it is only a criminal intention that can vitiate a contract otherwise legitimate and innocent. The whole inquiry, then, in cases of this kind, would turn upon questions of intention, and the investigation assumes a moral and metaphysical character. Attorneys at law become casuists. The Court is converted into a Synod of Theologians. The authority of Locke and Malebranche supersedes the authority of Pothier and Domat, and the judgment of the Court would present a solution of metaphysical problems, not a juridical sentence. It is obvious to what absurd consequences we are led by the doctrine of “ intention ” as taught by the lower Court. Civil magistrates should be content to limit their labors to the investigation and enforcement of civil contracts, and not complicate and confuse their duties by entering the labyrinth of subtleties in quest of hidden “intentions.”
    If the contract at issue in this case led, in its remote consequences, to the perpetration of a crime, there are means provided for the punishment of crimes, and the defendant who proclaims his guilt should surrender himself to the officers of the law. In the meantime, those hands stained with self-asserting treason, should not be lifted in an invocation for the spoils of the crime alleged to have been committed by the very party who meanly pleads his guilt as an excuse for the violation of plighted faith. But we deny that there was any immorality, still less, any crime, in the transaction of this business.
    “The cause is illicit, where it is forbidden by law, when it is contra bonos mores or to public order.” C. C. 1889.
    Now the sale of canvas is not forbidden by law, the making of sails is not immoral, nor is there any thing subversive of public order in the equipment of a vessel. "We must again revolve in the vicious circle of immoral intentions before we can condemn the contract and make the terms of the law fit the facts of the case. There being nothing in the contract contrary to good morals, it can only be avoided as violative of law or public order. This brings up the second branch of the argument, which is equally decisive in favor of plaintiff.

      We contend, that there was in the purposes and motives of the contract no such violation of law as would avoid it. Plaintiff sold the articles in question in the regular course of his business, and the laws in force at the time of the sale not only sanctioned the making of such contracts, but if plaintiff had refused to supply for an adequate consideration, the objects required by defendant,- those laws would have compelled him to supply them. It is the sheerest nonsense to deny the historical and practical existence of the Confederate Government, at the period in question, or-to affect ignorance of the fact, that it possessed not only all the outward characteristics of a de facto government, but all the powers necessary for the execution of its sovereign will within thelimits of Louisiana. The power was for the time supreme and irresistible, and with few exceptions there was perfect submission to its will. The question of legitimacy has nothing to do here. We simply assert what is proven by the record, by the voice of contemporary history, by the general consent of mankind, by the action of foreign governments, by the action of our own Government, that the Confederate Government was in fact a Government. On the 18th of February, 1862, its presence and its power in New Orleans was as complete, as undisputed, and as legitimate as were the presence and the power of the British Government in the town of Castine, Maine, on the 2d September, 1814. There is an exact analogy between the two cases, and the principles settled by the Supreme Court in relation to the legal character of transactions which took place during the British occupation of Castine, are strictly applicable to the legal character of transactions which took place during the Confederate occupation of New Orleans. We refer your Honors to the celebrated and familiar case, the United States v. Rice, 4 Wheaton, 246. We are utterly unable to comprehend how the lower Court could have repudiated principles so clearly settled by Judge Story, and ignored the analogy which forces itself on our understanding. Paraphrasing the language of that illustrious Judge, we hold it to be undeniable that by the fact of secession New Orleans, and its inhabitants, “passed under a temporary allegiance to the Confederate Government, and were bound by such laws, and such only as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them ; for where there is no protection or allegiance, or sovereignty there can be no claim to obedience.”
    It is well settled in law, in reason and jurisprudence, that the validity and effect of a contract is to be determined by the law of the' place where it was made. C. C. 10; C. P. 13 ; Henn. Obligations, VI, (a) 3.
    That the law of a contract is that in force at the time it was entered into. Henn. Ibid, (b) 1.
    We shall close with the following clinching exposition of the correct doctrines of law upon this question, by the great expounder of the British law: .

      “ The true distinction seems to be, that the statute of Henry the Seventh does by no means command any opposition to a king de jure, but excuses the obedience paid to a king de facto. When, therefore, a usurper is in possession the subject is excused and justified in obeying and giving him assistance; otherwise, under a usurpation, no man could be safe ; if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience ; nay, further, as the mass of people are imperfect judges of title, of which, in all cases, possession is prima facie evidence, the law compels no man to yield obedience to that prince, whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favor, and decide the ambiguous claim : and therefore, till he is entitled to such allegiance by possession, no treason can be committed against him.”
   Labauve, J.

The plaintiff claims of the defendant the sum of one thousand dollars, on a note of the defendant, dated February 18th, 1862, payable sixty days from date.

The defence is, in substance, that the promissory note sued upon was made and delivered by defendant to the plaintiff, in consideration of work and labor done and performed by said plaintiff and said defendant, for and on account of sails and other canvas, made and delivered to the Confederate Government, which was then in open rebellion against the authority of the United States; and that the consideration was illegal.

The District Court gave judgment in favor of defendant, and plaintiff took this appeal.

The note sued upon reads as follows :

“$1,000. New Orleans, February 18th, 1862. Sixty days after date I promise to pay to the order of myself, one thousand dollars, value received, with eight per cent, interest, from date.

(Signed) John OohigiiEvich. ”

■ Endorsed: John Ochigeevich, Eeden $4 Ochigeevich.

The following receipt of the plaintiff adduced in evidence by defendant:

“Received, New Orleans, February 18th, 1862, from J. Ochiglevich, his two notes, endorsed by his wife, for sum of one thousand dollars each, payable in thirty and sixty days from date, for value received.

(Signed) P. McGuigin.”

The defendant admits the execution of the note, and the only defence made by him in his answer is as stated above; and it is incumbent on him to show clearly, and not probably, that the consideration of the note sued upon was, as stated in the answer, for work and labor done and performed by said plaintiff and said defendant for and on account of sails and other canvas made and delivered to the Confederate Government,' who was then in open rebellion against the authority of the United States.

The testimony shows that the defendant and plaintiff were working, in the commencement of the year 1862, making sails, canvas, etc., for the gunboats then building for the Confederate Government.

The defendant has produced in evidence many receipts of the plaintiff, all dated in January, February or March, 1862, for different sums, some for work and materials delivered, some on account, some in advance of canvas and labor to be done.

All these receipts have no connection with and no reference to the note sued upon; the parol evidence makes no allusion to it. Must we presume, because plaintiff was working for the defendant in making sails and other canvas for the Confederate Government, that the note sued upon had no other consideration than that? There is nothing on the face of the note, or of the receipt for it, showing that it was given for anything connected with labor, or with the Confederate Government; both the note and receipt say for value received.

We are of opinion that the defendant has failed to prove the illegal consideration as by himself alleged in his answer.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided; and it is further ordered, adjudged and decreed, that the defendant pay to the plaintiff the sum of one thousand dollars, with interest at eight per cent, per annum from the 18th February, 1862, till paid, and costs of suit in both Courts.


source: Caselaw Access Project

author: Ibsbey, J.

license: Public Domain

text:
    James Fallon v. Julien Maury.
    Where blie plaintiff makes out a prima facie case, which, is nob impugned by the defendant, the judgment of the Court a quo in his favor will not be disturbed.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. J. Q. Fellows, for plaintiff. L. Costera, for defendant and appellant.
   Ibsbey, J.

The plaintiff represents that he entered into a contract, with the city of New Orleans, for the constructing of a brick sidewalk, etc., on Galvez street, between Onzegaand Abadie streets, with privilege; and that he was, by the said act, subrogated to all the rights of the city to sue and seize the property fronting on said street, in case of nonpayment of any or all the bills for said sidewalk.

He further represents, that, on the completion of the said work, he received from the City Surveyor a bill, duly comptrolled, dated New Orleans, April 18, 1861, for paving the sidewalk of the street in front of the property belonging to Julien Maury (the defendant described in the petition), amounting to six hundred and seventy-nine dollars and twenty-two cents.

The answer traverses the allegations in plaintiff’s petition, and sets up a special defence, in support of which no proof is found in the record.

The plaintiff having made out a prima facie case, which the defendant has not attempted to impugn.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed; the appellants to pay the costs of appeal.


author: Hyman, C. J.

text:
    Frank Goss v. Citizens Insurance Company.
    Where there are written and printed stipulations in a policy of insurance, the written clause must control, if they are irreconcilable with each other.
    “Where no cause of action is alleged the case will be dismissed.
    APPEAL from the Sixth District Court of New Orleans,

      Duplaniier, J. Durant & Hornor, for plaintiff and appellant. — Plaintiff insured a
    lot of corn from New Orleans to Matamoros, by an open policy, to the extent of $4,600, “ sujeet to twenty per centum average,” all which is inserted in writing in the policy. After fully setting out his cause of action, and that his total loss had occurred by a peril of the sea, petitioner avers that defendant has refused to pay, alleging that the loss did not happen from stranding or collision. •
    The defendant pleaded the exception, no cause of action, and after judgment dismissing the suit, the plaintiff has appealed.
    The objection to our suit proceeds more from the lower Court than the Insurance Company; and the experiment involved in the exception, puts, if sustained, a peremptory quietus to our claim, and absolves us from the payment of a large amount of cost, incident to the trial of such a case on its merits. If our client is without any valid claim on the Company, this mode of proceeding is very advantageous to him, and saves trouble and expense.
    The exception, however, can only be maintained legally, when the faets set forth in the petition, taken as true, oannot be so colocated as to give the plaintiff the right to recover.
    The policy of instuanoe in this case is made part of the petition. The clause we rely on reads as folows :
    “This insurance is declared to be on corn, subject to twenty per centum average. Subject to the war clause, to the extent of forty-six hundred dollars.” These words are inserted, in writing, at the foot of the printed portion of the policy.
    Corn is a memorandum article ; that is, an article excepted from loss. This exception is introduced into the policy under the head “memorandum.” See Phillips on Insurance, No. 1756.
    “ The reason of these exceptions is the great liability of sueh articles to damage from slight causes, insomuch that it is not easy to discriminate damage by ordinary causes from that resulting from the extraordinary operation of the perils insured against,” etc. Ibid, No. 54.
    The memorandum in the present policy, so far as corn is concerned, reads : “It is also agreed, that grain of any kind, and all other articles perishable in their own nature are warranted free from any average, unless it happen by stranding or collision, and amount to twenty per cent.” Now, the lower Judge says, in point of fact, that the policy-on corn subject to twenty per cent, average, is precisely equivalent to an insurance on corn, free from average unless it happen by stranding or collision, and amount to twenty per cent.

      It is difficult to conceive two ideas more inconsistent and contradictory; and yet, here is a learned Judge who pronounces them not only reconcilable but harmonious.
    “The one seems to be but a reiteration oí a portion of the idea conveyed by the other, whilst it leaves to this latter the task of more minutely expressing the intentions of the contracting parties. ”
    The written controls the printed part of the policy, “inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning.”
    Our contract then is, that on a loss on corn, over twenty per cent, average, by any peril of the sea, the Company will pay us. It is true that these words “by any peril of the sea,” are not written in the policy. But they are there printed. ‘ ‘ Touching the adventures and perils which the said Company is consented to bear and take upon itself in this voyage, they are of the seas, fires, etc., etc., and result necessarily from the very essence of a marine policy. The aim and object of an instrument, etc., are essential in construing them.”
    On the other hand, by the “memorandum,” the loss must happen by stranding or collision.
    Our contract is universal, covering all the perils of the seas. The contract made for us by the Judge, is particular, covering stranding and collision, and nothing else.
    By the latter construction, if correct in law, we are deprived of all our rights against the Company, and then the decision should be affirmed. But if this construction be erroneous, the case must be remanded.
    All parts of the policy must have effect given to them. What mean the written words “subject to twenty per cent, average? “Why insert them at all, if it were not to control the effect of the memorandum? If these words had not been inserted, the judgment o f the lower Court would have been clearly correct, and the memorandum would control. But the difference is very great between ccrn under the memorandum clause, and corn subject to twenty per centum average.
    In thus reasoning, we give equal effect to both printed and written clauses. But this is more than just; for “if there is any reasonable doubt as to the meaning of the whole (document), the written words are entitled to have greater effect in the interpretation, than those which are printed; they being the immediate language and terms selected by the parties themselves for the expression of their meaning, while the printed formula is more general in its nature, applying equally to their case ancf to thaLof all other contracting parties on similar subjects and occasions.” 1 Greenleaf Ev., § 278; Robertson v. French, 4East. 130.

      L. Castera and A. Gh'ima, for defendants:

    — 'The contract is one of insurance ; the policy declares it to be on corn, and in the memoranda the following clause is found in printing : “ Salt, in bulk, grain of any kind, etc., are warranted free from any average, unless it happen by stranding or collision, and amount to twenty per cent.”

      Thus, two conditions must concur to bind the underwriters, to-wit: 1. The loss must be the result of stranding or collision; 2. It must be of twenty per cent at least; both of which must be alleged to disclose a sufficient cause of action, and neither of which is found in plaintiff’s petition. We contend that any disclosure of facts falling short of those two prerequisites is fatal.
    Plaintiff lays considerable stress on the sense supposed to be concealed beneath the words in writing .at the bottom of the policy “ subject to twenty per cent, average,” and insists that they were inserted to modify and control the context. We answer with the Judge below1: “It jg
    difficult to come to this conclusion; were these printed, and written expressions in the policy irreconcilable, plaintiff’s appreciation of them would be correct, but such is not the case, they appear to be not only reconcilable, but to harmonize perfectly well; the one seems to be but a reiteration of a portion of the idea conveyed by the other,” etc.
    It will not be denied that the’underwriters cannot be made responsible for any loss or damage arising out of a cause which they have specially excepted from the category of risks assumed by them. Yid. Parsons’ Maritime law 430. Can it be seriously insisted that the Insurance Company, in this ease, meant by the words written at the bottom of the policy to overturn the sense so clearly expressed in the context ? With equal plausibility it might be said that the written words, “ subject to the war clause,” must necessarily have been set down with the intention of controlling some other stipulation in the policy. Plaintiff’s quotation of Glreenleaf Ev. 278, can only serve him very badly, if he has not made out that the printed and the written words are entirely irreconcilable. Alluding to the written words, he asks at page 4 of his brief : “Why-insert them at all, if it were not to control the effect of the memorandum;? For convenience, probably, and to bring at once before the eyes and to the understanding- the principal features of the agreement between the parties. Any unprejudiced mind will be struck at the collateral position in the policy of the two written clauses, and by their easy assimilation to a recapitulation, a reiteration or a synopsis. This interpretation plaintiff would willingly concede in favor of the war clause : can he, with better grace, declare hostility to the brother clause standing close by ?
    The following is taken from a treatise of high authority: “It is, however, often said that written words control the printed part of the policy, because printed forms are made for cases generally, but seldom for any especial case, and that the written words determine the intention of the parties as to the meaning of the policy. This is true to a great extent, but the general rule must be that if the whole can be construed together, SO that the written words and those printed make an intelligible contract, this construction is to be adopted. ” 2 Parsons’ Maritime Law, pp. 53 and. 54. In the case of Qoicochea v. Louisiana Slate Insurance Company, IS Martin’s R. p. 55, Porter, Judge, said ; “The rule that the written part* of the policy should control those that are printed is correct, because the ■written words are the immediate language and terms stated by the parties themselves for the expression of their meaning, etc., but the rule cannot properly receive an application in cases other than those where the written and printed words so contradict each other that the one must yield to the other. We suppose the quotation on page 3 of the learned counsels’ brief is copied from the opinion just cited ; but we do not wonder at their omission of the latter portion which turns so suddenly against the appellant. Vid also C. C. 1943 and 1950. Wallace et al v. Insurance Company, 4 La. 290. Hunter et al v. General Mutual Insurance Company, of New York, 11 La. Ann. 139.
    Let us now look into the principles governing the printed memorandum. Its legal effect is to protect the underwriter from all partial losses. Nothing short of a total extinction of memorandum articles would entitle the insured to turn the case into a total loss. In the case of Biays v. Vhesapeake Insurance Company, 7 Cranch, p. 418, the Supreme Court of the United States said : “It is well understood at the present day, with respect to such articles (memorandum articles) that underwriters are free from all partial losses of any kind, which do not arise from a contribution, towards a general average.” The doctrine of the restriction of the underwriters’ liability by the printed memorandum clause, is carried still further. • Smith, in his treatise on Mercantile Law, says : “ The memorandum is as follows : N. B. Corn, fish, salt, fruit, flower, and seed, are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides and skins are warranted free from average under five pounds per cent.,” and he goes on : “This memorandum protects the underwriter from making good any partial loss whatever upon the class of articles first specified, and any loss under five per cent, on the class secondly specified, unless in either case the loss were incurred in consequence of a general average, or the ship be stranded.” Smith’s Mercantile Law, p, 448, vide, also 1 Phil. Ins., p. 22 and vol. 2, pp. 467, 468, 2 Arnould Ins. 857. Whenever the printed memorandum clause of .stranding- or collision is inserted in the policy their allegation seems to be considered by latest authorities as a condition precedent to recovery. The same author previously quoted, says : “ It seems now to be settled that the phrase is to be read, as if it ran thus : “ goods to be free, etc., unless the ship be stranded,” and then this stranding is to be regarded as a condition. 2 Parsons’ Maritime Law, p. 267. It is unnecessary for the purposes of this exception to enter into any discussion of the second essential condition to bind the underwriter, to wit: damage to the amount of twenty per cent, at least. Suffice it to state that it being a prerequisite to recovery in the present instance, it is not only reconcilable with the printed memorandum but “ harmonizes with it” in the language of the Judge below. Plaintiff’s petition lays no claims to indemnity by reason of any loss arising from the either stranding or collision ; the condition precedent, cause of action is therefore wanting. It is respectfully submitted that the judgment of the inferior Court, sustaining the exception, should be affirmed.
   Hyman, C. J.

This suit is on a policy of insurance.

Plaintiff alleged that a certain quantity of corn had been damaged at sea, sixty per cent., caused by violent winds, high seas, and straining of the vessel on which it was shipped; and that defendant had insured against this damage, by the policy of insurance which he made a part of his petition.

He prayed judgment against the company for the amount for which the corn was insured.

Defendant, by exception, asked the Court to dismiss the suit, on the the ground that the allegations of plaintiff’s petition disclosed no cause -of action.

The Judge sustained the exception and dismissed the suit.

From this judgment, plaintiff has appealed.

The question presented is, can the plaintiff recover on the allegations in his petitions ?

T-n the printed memorandum of the policy, there is this clause: “That 'the assured warranted that grain of any kind is free from any average, unless it happen by stranding or collision, and amount to twenty per cent. ”

The part of the policy in writing is, “that this insurance is declared to •be on corn, subject to twenty per cent average, subject to the war clause.”

The war clause is, that the insurer would not be answerable for any expense, damage or loss, which might occur, in consequence of seizure -or detention, for trade in articles contraband of war.

The plaintiff contends, in order to sustain his suit, that the written must control the printed expression in the policy; and we should so rule,

• did the printed so conflict with the written clauses, as to render them irreconcilable with each other. See 6 New Series, p. 55.

Bach stipulation, whether written or printed, should have effect, unless the giving effect to one would destroy another; and then the printed must yield to the written stipulation.

The written part of the policy is not inconsistent with the printed part.

The company, by the clause in the memorandum, proposed to insure grain against damages that might happen from stranding or collision, should the average damage amount to twenty per cent.

This proposition was accepted by the plaintiff, subject to the twenty per cent, average and the war clause.

There was no proposition made or assented to, by either plaintiff or defendant, that insurance on the grain should be for any other peril of the sea than stranding or collision.

The policy, by being annexed to the petition, controls the allegations therein, and sets forth that the insurance was for different causes of damage than for those for which plaintiff seeks to recover.

Judgment affirmed, with costs on plaintiff.


author: Hvhajt, C. J.

text:
    The State on the Relation of C. Boye & M. L. Duncan et als.
    A Judge of the lower Court has only authority to enforce the judgments of this Court. He cannot , interpret our decision, and enforce different decrees than those rendered by it.
    APPEAL from the Sixth District Court of New Orleans,

      Duplantier, J. Durant <& Hornor, contra.

      G. JS. Schmidt, for relatoi'.-

    — The relator contends that the decree of this Court, “Judgment affirmed with costs,” did not, and could not condemn him to pay the costs of appeal.
    Duncan having been cast on the appeal, should pay the costs of appeal. The law is inoperative. O'. P. 549, 907, 908.
    In the case of Underwood v.' Lacapére, 14 A. 276, Mrs. Bourgeois, having called White in warranty, failed to obtain judgment against him in the lower Court, and appealed. This Court decreed that the judgment be affirmed with costs. Mrs. Bourgeois applied for a rehearing. The Court said: “Upon the question of costs, we perceive no more reason to change our previous judgment. Costs follow the judgment and are to be paid by the party cast. C. P. 549; Bolton v. Harrod, 10 M. 115. As well might it have been contended in that case, as in Boyé’s case, that the defendant in warranty had been condemned by the Su2>reme Court to pay all costs.
    Where a judgment is susceptible of two interpretations, one within,, and the other beyond the power of the Judge, the former must be preferred. Gopley v. Robertson, 6 A. 181.
    Costs are accessory to the judgment as interest to the principal, and t®be paid by the party cast; if the judgment be in favor of defendant, he cannot be condemned to pay them; if against him, he cannot be allowed them. Henn. Dig., new ed., p. 325, No. 2, and authorities there cited.
    The Judge of the Sixth District Court sanctioned and authorized the execution.
    It was proper that an application should have been made to the lower Court for relief. Slate ex rel. Dubois v. Judge, 4 B. 48; Stale ex rel. Babin v. Judge, 10 R. 169.
    In the case of the Slate ex. rel. Peel v. Judge, 19 L. 174, held: “Where a Court, divested of jurisdiction by a suspensive appeal, illegally issues-execution, the prohibition may be directed to the seizing creditor and ministerial officer, without regard to the Judge. But the writ may be directed to the Judge also, if he have sanctioned the execution. C. P. 853, ibid. The writ may issue though there be other means of redress, when the delay of ordinary proceedings would produce an immediate injury, which should be prevented. State ex rel. Dubois v. Judge', 4 R. 48. If,, where the costs of appeal are less than $300, as in this case, the appellee were not entitled to a prohibition, lower Courts would very frequently modify and do away with the decrees of the Supreme Court by their/ interpretations.

      In the present ease it is very evident that the Judge of the lower Court, by sanctioning and authorizing an execution which the final decree of this Court did not authorize, exceeded his jurisdiction. How can lower Courts be effectually prevented from misinterpreting the judgments of this Court, so as to assume that they were meant to be in direct contravention of law, and thus debar a party who relies upon your Honors’ decree from the benefit thereof, unless the writ of prohibition may be forthwith resorted to? It may issue before or after judgment. See Glark v. Rosendo, 5 B, 27.
   Hvhajt, C. J.

Belator asks for a writ of prohibition against Morris L.' Duncan, and also against the Judge of the Sixth District Court of New Orleans, and the Sheriff of the Parish of Orleans, restraining them from exacting. from him the payment of the cost of the appeal in the case styled Morris L. Duncan v. Christian Boye.

Morris L. Duncan sued the relator in said District Court, and obtained judgment for only a part of the amount claimed by him in his petition.

Duncan, believing that he was aggrieved, by not having got judgment for the whole amount claimed by him, took an appeal to this Court to have the supposed grievance in the judgment corrected.

We rendered judgment confirming that of the District Court, there being no error therein.

Belator complains that the Judge of said District Court had decided that Duncan was, under our decree, entitled to the costs of the appeal; that execution had issued from said Court, according to the opinion of the Judge, and that the Sheriff was proceeding- to collect from him this cost.

He avers that our judgment did not condemn him to pay the costs of the appeal.

Respondent Duncan answers by saying that there is not sufficient averment, nor legal cause, for issuing the writ.

We consider that the averments are sufficient, and that there is legal cause for the writ.

A Judge of the lower Court has only authority to enforce the judgments of this Court. C. P. 915. He cannot interpret our decision, and enforce different decrees than those rendered by it.

When he does so, he exceeds his jurisdiction, and the law gives the remedy applied for by relator. C. P. 845 and 853; 19 La. 174.

Our appellate jurisdiction would be nugatory if we had not the power of preventing inferior Courts from reversing our decisions when sent to them to be enforced.

Our judgment on the appeal was, that the judgment of the lower Court be affirmed, with costs.

In a similar judgment, this Court has interpreted such expression to mean that the party cast was to pay the costs of the appeal. 14 An. 278. C. P. 629. Duncan was the appellant and the party cast in this suit. He must, therefore, pay the costs of the appeal.

It is ordered, adjudged and decreed, that a writ of prohibition be issued in the name of the State of Louisiana to Morris L. Duncan, to the Judge of the Sixth District Court of New Orleans, and to the Sheriff of the Parish of Orleans, prohibiting' them from demanding or exacting from Christian Boyé, the payment of the costs of the appeal in the case of Moms L. Duncan v. Boye. Defendants in this suit to pay costs.


text:
    The State v. Jean Defesse & C. Benoit, Surety.
    Where a bond has been forfeited on account of the non-appearance of the prisoner, a subsequent arrest and release on bond does not absolve his first surety until his Anal trial.
    APPEAL from the Second Judicial District Court, Parish of Jefferson,

      Cazabat, J. T. J. & W. 3. Cooley, for defendant Benoit. Hon. Andrew 8. Herron, Attorney General, for the State.
   Labauve, J.

Jean Defesse, being accused of larceny, furnished a bond with C. Benoit his surety in solido, in the sum of one thousand dollars, conditioned that he shall personally be and appear before the Second Judicial District Court to be held at the Court House, in the city of Carrollton, on Monday, the 29th day of February, A. D. 1864, or, if said Court should not be held on the day last aforesaid, then on the first day thereafter the said Court shall be held, then and there to answer unto a charge brought against him for having committed the crime of larceny........and shall not depart thenee without the leave of the said Court, until the final trial and conviction, or acquittal, of the said Jean Defesse.” This bond was executed on the 27th February, 1864.

At May term, 1864, of the District Court, the accused, Defesse, was called upon for trial, and not appearing, nor Benoit, his surety, the bond was declared forfeited, and judgment rendered insólido, against principal and surety, for the amount of the bond,

Subsequently, Defesse having been arrested, tried and convicted by the jury. He was in jail, a new trial was granted to him, and he allowed to give a new bond with another surety for his appearance, and executed this bond accordingly. On the 21st July, 1865, Carrambat Benoit, the surety on the bond forfeited, obtained a rule on the District Attorney to show cause why the judgment heretofore rendered by the District Court, in May 1864, against Defesse and Benoit, on the bond for $1000, should not be declared satisfied, and defendant, Carrambat Benoit, be fully and finally discharged from the liability on account of said bond and judgment, on the grounds that, since the judgment of forfeiture, the said Jean Defesse had appeared before the Court, and had been tried and convicted of the offence; that said Jean Defesse is now before the Court for another trial granted to him, and at liberty under a new bond with new surety for his appearance, etc.

The District Attorney answered that the bond had been duly forfeited; that the judgment had not been set aside upon the appearance, trial, •conviction and punishment of the accused. The District Attorney admits, in his answer, that said Defesse was, at a subsequent term of the Court, rearrested, put upon his trial and convicted; that a new trial was granted, and said accused put under a new bond for his appearance and "trial; but he denies that the said Defesse and his surety are released.

The District Judge dismissed the rule, and Benoit, the surety, took this appeal.

We are of opinion that the Judge a quo did not err. The record informs us that the accused is now under a new bond 'for his appearance before the District Court, to answer the charge, his former trial and conviction, before the jury, and set aside by the Court, is not a satisfaction of the bond. The accused has not been finally tried and convicted or acquitted. Revised Statutes, p. 170 g 60. We think that this case is similar to those in The State v. Frank Brown et als., 13 A. 266; The State v. Julius Schmidt, 13 A. 267.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.


text:
    A. J. Johns, et al. v. G. W. Race.
    Where there is no evidence to show that the wife administered her paraphernal property, alone and separately, it is presumed and considered that the husband administered it; and he is accountable to the succession for all moneys received and used by him belonging to it.
    Where the plea of prescription has not been suggestedin the brief, it will be considered as abandoned.
    APPEAL from the Second District Court of New Orleans, Bermudez, J.
   Labauve, J.

The defendant’s wife, Sarah Ann Johns, married her said husband on 15th August, 1850, and died, leaving- no descendant, on the 13th March, 1853, but leaving for heirs her mother, brothers and sisters, or their representatives. By her last will she had appointed her said surviving husband her universal legatee and executor testamentary. The plaintiffs sue to reduce the legacy to two-thirds, and to annul it for one-third, as the deceased left her mother as her forced heir, and since deceased. They aver that the estate of the deceased wife consisted in the sum of $5,000, received in 1853 by her said husband, as coming from her father’s estate; and in a further sum of $6,000, with interest, coming from same estate, and received by her mother as her natural tutrix; her half in the community of acquets and gains, which existed between her and her said husband ; and two lots and improvements thereon; and in moneys and other personal property. They pray for a partition between them and the defendant of all the property of any kind and description belonging to the succession of defendant’s deceased wife, etc.

The defendant answered by a general denial, denying also the kinship of plaintiffs; but it was admitted afterwards; pleading, at the same time, the prescription of five years.

The District Judge, after having heard the testimony, decided that there was no community; that the defendant could not be charged with the $5,000 received during the marriage, as coming to the wife from her father’s estate; that, so far, then, as the present action is concerned, the plaintiffs could take nothing; that the plaintiffs be recognized as the heirs of Mistress Race, and that the dispositions in the will be reduced to two-thirds of the estate. The Judge concluded by the following decree: “It is further ordered, etc., that, in the present proceeding, there be judgment in favor of the defendant, reserving to the plaintiffs their right, if any they have, to claim one-third of any other property which may come into the possession of the defendant, as heir of his deceased wife, or in whatsoever hands they may be, the defendant to pay the costs. ”

The plaintiffs took this appeal.

The evidence shows that the defendant purchased by public act, passed on the 29th December, 1851, the two lots of ground described in the petition as belonging to the community. This was during the marriage; and it is clear that they belong to the legal partnership which existed between the defendant and his deceased wife. O. C. Art. 2371.

The receipt for the $5,000 reads thus :

“Received, New Orleans, January 26th, 1853, from Mrs. Rebecca Johns, the sum of five thousand dollars, on account of the portion due Mrs. Sarah A. Johns, wife of G. W. Race, from her father’s estate.

$5,000. (Signed) S. A. Race.

“ G. W. Rage.”

There is no testimony in the record showing that Mrs. Race administered her paraphernal property alone and separately; in that case it is considered and presumed that the defendant administered it, and that he received and used himself the said sum of money; and he is now accountable to the succession of his wife for the same. O. O. Arts. 2362, 2363. 6 R. 41. 12 R. 524. 18 L. 434. 14 A. 281.

On the 13th June, 1859, the defendant received from the succession of Mrs. Rebecca Johns, $778 59, on account of what was due his deceased wife, and coming to him as her 'heir ; he is bound to account for the same in the liquidation and partition of the succession.

The plea of five years’ prescription is considered abandoned, the defendant and appellee not having called our attention to the same in Ms brief.

The question is not clearly settled whether, in a case like the present, the disposable portion is two-thirds or three-fourths. In Heirs of Cole v. Cole, Executor, 7 N. S. 414, a case exactly similar to this, this Court decided that the disposable portion was three-fourths. In Heline Barbet v. Alexandre Roth, 14 A. 381, it was decided that the disposable portion was two-thirds, when the testator, having no children, had left a father, mother, or both; but Judge Buchanan, giving a separate opinion, doubted the correctness of the first decision in 7 N. S. 414

The Court below decided that the disposable portion, in the present case, is two-thirds. The defendant and appellee has acquiesced in that part of the decree in this Court in not praying for an amendment on that point, so we have no opinion to express on the question.

We are of opinion that the judgment of the District Court is erroneous, on certain points, and correct on others.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the plaintiffs be recognized as the heirs of Sarah Ann Johns, the deceased wife of defendant. It is further ordered and decreed, that the last will and testament of said Sarah Ann Johns, be annulled, so far as it disposes of more than two-thirds of the property of which she died possessed. It is further adjudged and decreed, the two lots of- ground, described in the petition, together with such improvements as existed on the same at the time of the death of Mrs. Race, be declared to belong to the community which existed between said defendant and his deceased wife; the defendant’s rights to improvements he may have erected on the same since the dissolution of the marriage, are reserved to him. It is further ordered and decreed, that said defendant do account, in the liquidation and partition of the succession of his deceased wife, for the sum of five thousand dollars, with legal interest, from the 15th March, 1853; and for the further sum of seven hundred and seventy eight dollars and fifty-nine cents; reserving to said plaintiffs any right they may have to other property, rights and credits not herein specially mentioned, and belonging to the succession of said deceased, or to the said community. It is further adjudged and decreed, that a liquidation and partition .be made, according to law, of the succession of said deceased wife, and of the eomnxunity which existed between said defendant and Sarah Ann Johns; and that this case be remanded to be proceeded in according to law and in conformity with this decision, and that the defendant pay costs of appeal.


author: HowEun, J.

text:
    Mahon v. Steamer Olive Branch, et als.
    Where goods are delivered in a damaged condition, the burthen is upon the defendant to show that they were not responsible for the oause of the damage.
    Low water is not to be classed among the dangers of the river, which absolve the carrier from his obligation ; and he is held to the most exact diligence in the preservation and delivery of property committed to his oare.
    APPEAL from the Third District Court of New Orleans.

      Fettowes, J. W. W. Sandlin, for plaintiff and appellant. W. S. Sant, for defendant.
   HowEun, J.

Plaintiff claims from the defendants f327, being the alleged damage to forty barrels of apples, shipped on board the Olive Branch, in good order, at St. Louis, Missouri, and “ to be delivered, without delay, in like order, at New Orleans, unavoidable dangers of the river and fire only excepted.”

The answer contains a general denial, and the special defence, that, if the goods sustained any damage, it resulted from causes for which respondents are not responsible.

Judgment was rendered in favor of defendants, and plaintiff appealed.

It is clearly shown that the apples were delivered in a damaged condition, and by the defence as well as the law, the burden is upon defendants to show that they are not responsible for the cause of the damage. 11 A. 48. 6 A. 410.

It appears from the evidence that the shipment was made on 9th September, 1864 ; that on the day after the boat left St. Louis, she grounded on Crawford’s Bar, about 130 miles below, where she put out every pound of her freight, except twelve bales of feed; proceeded to Cairo, and on the way, chartered a small boat to bring her freight to Cairo to be replaced,, on her; that after waiting there three days she proceeded without the apples on her voyage to New Orleans, where she arrived on the 24th September ; that in ordinary navigation the trip is made in six days ; that on the 30th, six days thereafter, the Ida Handy arrived at New Orleans, and delivered the apples in an unsound condition ; that plaintiff warned them under protest, paying the freight, and sold them on the levee, by crying them himself at auction, without giving public notice or notice to defendants ; that about half the apples were in a merchantable condition, and the other half damaged from decay, arising during the delay in transportation.

We think the defendants have failed to relieve themselves from the responsibility for the unusual delay. They do not satisfactorily account for the failure of the small boat, chartered by them to deliver the goods to them on a reasonable time, even if they were justifiable in having all their freight on the bank as was done, and employing another boat, upon which we deem it unnecessary, in this ease, to pass. It was their duty to show that it was impossible for the goods to be replaced on their boat, and that it was necessary for them to prooeed on their voyage without them ; which they have failed to do. Low water is not to be classed among the dangers of the river, which absolve the carrier from his obligation ; (12 A. 783), and he is held to the most exact diligence in the preservation and delivery of property committed to his care. In this instance, we think the temptation presented by the large freights offering at Cairo, at that time, as shown by the evidence, induced defendants to relax that diligence required by law.

The measure of damages, however, is not established to our satisfaction. The agreement between plaintiff and defendants’ agent was, that the apples should be sold to the best advantage, and this is not clearly shown to have been done. It does not appear that they were sold as -well as could have been done. The testimony of^ the purchaser does not enable us to fix the amount of damage. He states what he gave for them, but. also says that about one-half were m&rchantable, and that the week previous such apples were selling for $10 or $12 per barrel. We think, on the authority in 6 A. 801, this branch of the ease, upon which the evidence is meagre and unsatisfactory, should undergo further investigation.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and this cause remanded for a new trial. Defendants to pay costs of appeal.


author: Hsiey, J.

text:
    Ellery et als. v. J. D. Dameron et als.
    Where the proper parties have not been oited the oase will be remanded.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant <& Hornor, for plaintiffs. George L. Bright, for defendants- and appellants.
   Hsiey, J.

The plaintiffs in this case have obtained the confirmation of a judgment by default, against J. D. Dameron and H. E, Bonneval, in solido, who (they represent in their petition) are members of the commercial firm of J. D. Dameron & Co. No judgment is prayed for against the firm, but the plaintiffs pray that the defendants, Dameron and Bomneval, be severally cited to answer their petition, and that, after due proceedings, thattheybeeondemnedin solido to pay them the sum claimed, etc.

J. D. Dameron & Co. have appealed from the said judgment.

Assuming that the defendants composed the partnership of J. D. Dameron & Co., there is no evidence whatever in the record to show that that partnership was a commercial one.

‘Bonneval was legally cited; but no process was served on Dameron, either in person or at his domicile, as required by law ; and of this he very properly complains.

Bonneval admits his liability as a joint obligor with Dameron, and claims that the judgment against him should be reduced one-half. It would, however, we think, be more regular to have both parties before the Court; if the obligation be really a joint one, in accordance with Art. 2080 La. Code, and 3 E. 26, 140; 6 E. 351; 7 E. 181; 10 E. 430; which do not conflict with Brown v. Robinson & Hassam, 6 A. 423, and the matter of O’Flaherty, 7 A. 640; and if the obligation be a solidary one, the ends of justice will be better subserved by remanding the case for legal service of citation of the defendant, Dameron, and for other further proceedings according to law.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be avoided, annulled and reversed, and that the case be remanded to the lower Court, for service of process on Dameron, and for other further proceedings according to law. 906, C. P.

It is further ordered, thatthe plaintiffs and appellees, pay costs of appeal.

Hovranii, J., recused.


author: Labatjve, J. Ilsley, J.

text:
    The State v. The Judge of the Fourth District Court of New Orleans, ex rel. Bellocq, Noblom & Co.
    The right of plaintiff to execute the judgment which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond, given for an injunction.
    APPEAL from the Fourth District Court of New Orleans,

      TMard, J. A. & M. VoorMes, for relators.

    — The only question presented in this Court for adjudication, is whether a final judgment on a rule taken by defendants in execution to compel the. Sheriff to seize property pointed out by them, in preference to property pointed out by the plaintiff in execution is appealable, or whether the remedy is to enjoin this judgment.
    All other questions are waived ; and should your Honor determine, as the District Judge, that an injunction, and not an appeal, is the remedy in such a case, then our application for a mandamus must fail.
    The matter iu contestation before the District Court was at first twofold, to wit:
    1st. The question of legality of a writ of fi. fa., issued in New Orleans by a Deputy Clerk, whilst the Clerk is in attendance ; and 2d. The denial to the defendants in execution of their right to point out property.
    The reasons given by Ms Honor the District Judge, in overruling the first objection, cover the ground so effectually that the defendants waived all further discussion on this point; and they rested satisfied with the decision of the second point, by which their undoubted right to point out property was fully recognized.
    Had the matter rested here your Honors would not have been troubled with this case, unless the plaintiff had, as he intimated in the Court below, taken a suspensive appeal in the premises.
    However, he moved for a new trial, and despite the earnest opposition of the defendant’s counsel, succeeded inhismotion, and finally judgment was rendered effectually and practically, denying to the defendants the exercise of their rights.
    Hence the motion for a suspensive appeal, which was opposed by the plaintiff, on the ground that the case was not appealable on the part of the defendants, although perfectly appealable on her part.
    In refusing the appeal, the District Judge states :
    “The Court being of opinion that the effect of tMs appeal, if it were granted, would be to stay tbe execution of the judgment rendered in this case, and that the only proceeding by which the same can be stayed is by injunction, according to law, the prayer of petitioner is refused.”
    This Court has certainly jurisdiction by way of appeal, if the judgment on the rule be final. The best proof of its finality is that, if suffered .to be executed, away goes the right of the defendant to point out property.; and the property remains in the hands of the Sheriff to be disposed of in due course of time, exactly as if they had pointed it out to the Sheriff themselves.

      But what better proof of its finality, since the District Oourt itself says that the only remedy of the defendant is by way of injunction?
    But even if the judgment be not final, yet, as its execution must inevitably cause an irreparable injury, by the absolute denial of the defendant’s right to point out property in preference to plaintiff in execution, the appeal would attach under C. O. 566. See O. P. 537, 538, 539, 5áO; O. O. 2265.
    Had the defendants proceeded by injunction to defeat the judgment on the rule, the plaintiff would have triumphantly retorted, that we were attempting to try over the same issue in a different form; and furthermore, that whatever had been urged by us previous to the judgment on the rule, could not be subsequently set up by way of injunction. See McRae v. Purvis, 12 A. 86; Meggel v. Lynch, 8 A. 6; and State v. Langton, 6 A. 282; and authorities quoted in those cases,
    So far, this question has been argued on general principles, without reference to the adjudications on this matter. The Supreme Court, upon the strength of the reasons and principles developed in the above argument, have decided formally that the remedy is not by injunction, but strictly by appeal; so that the question, cannot be considered as an open one. Qrampen v. Andry, 4 M. 3M; Dabbs v. Henkins, 3 R. R. 123; Andry’s Ex. v. Fourchy, 7 R. R. 232; Templet v. Marshall, 11 A. 613.
    Nor is it of any consequence that the suspensive appeal on the rule would or not have the effect of suspending the execution on the principal judgment; for, as during that interval of time, the property illegally seized remains in the custody of the law, the party aggrieved cannot possibly be the plaintiff, whilst, on the other hand, the defendants are exposed to suffer loss, apart from the hardship of being all the while deprived of their property.
    But the truth is, that such an appeal does' not have that effect, except as regards the particular property which she illegally caused to be seized, and no further.
    In other respects the plaintiff can proceed with the execution of the original judgment, provided she abandons the unheard of pretension that the plaintiff, and not the defendant in execution, has the prior right of pointing out property for seizure. Now, if the suspensive appeal on the rule does not have this effect, what benefit could be derived from a suspensive appeal?
    We do not wish to interfere in the least with the execution of the original judgment: we are satisfied with it. The plaintiff has a right to issue alias fi. fa. to each and every parish of this State. He is authorized by legislative enactment to do so. The suspensive appeal on the rule, therefore, does not suspend the execution on the original judgment except quoad the property illegally seized in utter violation of the right of defendants in execution to point out property.
    The question as to amount of bond to be furnished for this appeal does not come up on the mandamus. The only question is, whether this case be appealable at all. See, however, our petition for appeal, which is specific and full on this point, quoting O. P. 575; 7 N. S. 352; 16 La. 520; 10 A. B. 345.
   Labatjve, J.

B. Bellocq, Auguste Noblom and Pierre Boy, defendants in execution, in the suit of Mrs. O. Gayarré against them, in the Fourth District Court, state that, on executing the writ of fi. fa., the Sheriff proceeded, at the instance of the plaintiff, to seize property, real and personal, disregarding the debtor’s right to point out property. That a rule was taken upon the Sheriff to restrain him; and that, upon a final trial of said rule on a new trial, the Judge had ordered that the relator’s property, which had been seized, should remain in the custody of the law until the Sheriff should have seized the property, which he refused to levy upon, advertised and proceeded to sell the same. That, from that order, they have applied for a suspensive appeal to this Court, and that the District Judge refused to grant it. They prayed for a writ of mandamus to the Judge to show cause why he should not grant a suspensive appeal. This writ having been issued, directed to the Judge of the Fourth District Court of New Orleans, he has answered in this Court, in substance: That, in the case of Mrs. Gayerré v. Bellocq, Noblom & Co., a judgment was rendered in favor of plaintiff, on the 20th November last, and signed on the 24th of same month.

No appeal having been taken, an execution issued on the. 13th of December, the Sheriff seized the household furniture and real estate of the defendants. That, on a new trial, the following order was rendered:

“It is ordered that the rule be made absolute, with the following' reserve, in favor of plaintiff: That the Sheriff shall seize and sell first the notes pointed out by defendants; and should they prove to be insufficient to pay the claim of plaintiff, with interest and cost, then he, the said Sheriff, shall proceed to satisfy the same out of the property now under seizure, which he shall keep in his possession for that purpose.”

That, from this judgment, the relators have filed a petition, praying for a suspensive appeal, upon furnishing security for cost only.

The Judge continues : The prayer has been refused because the District Court is of opinion that the effect of this appeal, if it were granted, would be to stay the execution of the judgment rendered in the case and that the only proceeding, by which the same can be stayed, is by injunction according to law, and that execution of judgment of Courts cannot be stayed by mere motions and rules. He cites Act of April 9, 1826, amending C. P. Art. 298; Minor v. Bank of United States, 4 R. 490; Clemnet v. Oakey, 2 B. 90.

We are of opinion that the District Judge decided correctly in refusing an appeal.

A final judgment had been rendered, and an execution having issued, the Sheriff seized property, and the defendants in execution pretending that the Sheriff had not proceeded legally, took a rule upon him. If a. party pretends that the Sheriff proceeds illegally in the execution oí his office, the remedy is clearly pointed out by law. O. P. Art. 298; Statute 7th April, 1826, p. 170, $ 9. The right of plaintiff to execute the judgment, which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond given for injunction. 9 A. 301.

The rule is dismissed, at the cost of the relators.

On an Application fob a Rehearing.

Ilsley, J.

The case No. 824 being a mandamus case, no application for a rehearing can be entertained by this Court; and, as the prayer in the petition, in the case No. 859, is for a writ of mandamus, to be issued to the Judge of the Fourth District Court of New Orleans, to show cause (which he has shown) why he should not enjoin the Sheriff of the Parish of Orleans from futher proceedings (in the suit in the said District Court pending, entitled Mrs. C. Sullivan, wife, etc., Bellocq, Noblom & Co.), until the Judge of the said District Court is satisfied of the finality of the judgment, in the case No. 824, and which said judgment is final, the complaint in 859 is dismissed, at the costs of the petitioners, ns no just or useful purpose could be answered by the issuance of the writ of mandamus.


author: Hvman, C. J.

text:
    Widow Bienvenu v. Alfred Vienne.
    Where a person acts in a representative capacity, he cannot be personally bound, unless he makes a stipulation to that effect.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. J. Magne, fot- plaintiff.-

    — 1. The appellant contracted in his own name; and the authorities quoted, as to the rights and duties of tutors, cannot apply.
    2. The agreement entered into was complete before the sale and the ■distribution of the proceeds, and consequently, before it was reduced to writing; therefore, all the authorities about the necessity of consent can.not apply; and the refusal of appellant to sign the annuity contract when, he had pocketed the consideration, cannot avail him. C. C. 1755; 6 Tontlíer, p. 14, No. 23; 4 Larombicre, pp. 239, 242, Nos. 10 and 11; 10 La. 225; Pothier, Obligations, No. 11.
    3. The donation was made on condition, as shown not only by the oral evidence, bnt by the notarial acts; and if the annuity contract were repudiated, the donation should be declared null and void under Article 1484 O. C.

      L. Costera and A. Grima, for defendant.

    — “The tutor cannot borrow for the minor, purchase for him immovables or slaves, or compromise respeetihg his rights, without an authority from the Judge, granted on the advice of a meeting of the family ;” and Art. 34:9 : “ The tutor may accept legacies, donations, and other advantages made to his ward, but he cannot, in any case, dispose gratuitously of the movable or immovable property of the minor or of any part thereof.” Thus far it is shown the defendant as tutor had a right to accept any gratuity, as he did in signing the distribution act herein, one simply beneficial to his children, and he was equally right in refusing Ms consent to the so-called annuity act, which, as it stands, lacks two essential elements to constitute a valid agreement, to. wit: capacity and consent. See C. C. 1772 and 1757, 1759, 1773, 1775, 1791, Cavelier v. Germain, 6 La. 218, also C. C. 251.
    The inferior Court admitted both the act and testimonial proof. Such ruling, we say, is unsupported by law. The instrument or annuity act was inadmissible, the defendant being no party to it. In the case of Lombard v. Guillet <& Wife, 11 M. 453, it was decided that “a party who is named in a notarial act, but whose signature is not thereto, is not bound thereby;” and in 6 New Series, 490, case of Bichv. Maxwell: “Aji incomplete instrument which has notreceived the signature of the parties, is inadmissible in evidence. ”
    Were it admissible in law, still it is insignificant and valueless as to third person not party to it. We further contend that no assistance could be derived from any testimonial proof to explain anything that might have been said before, or at the time of making it, or since. C. C. Art. 2256. In the case of Macarthyv. Commercial Insurance Company, 17 L. 369, the Court said : ‘ ‘ Parol evidence or testimonial proof will not be
    received to show that in case of a donation of a house and lot by authentic act, it was agreed the donor should continue to receive and enjoy during lifetime the rents of the property.” Also Boner r. Molde, 3 Ann. 606. Barthet v. Estebene, 5 Ann. 315 ; Stratton v. Rogers, 11 Ann. 380.
    Had plaintiff been induced to make sacrifice towards the performance on her part, her condition should not be bettered thereby. In the case of Casson <& Wife v. Fulton’s Executors, Casson had made a verbal sale, and received the stipulated price, and promised to make a regular* conveyance, and afterwards^refused to" comply, the Court said : “ It is believed that there are no legal means by which he could be compelled so-to do.” 5 Martin’s Rep. 677-^Besboulets v. Qravier, 1 N. S. 421.
    It should not escape your Honors’ attention, that the parol evidence goes to explain the very distribution act itself. You are naturally lead to look into the character of that act. It is, and it speaks for itself, an .act of distribution; it contains all the^elements of a donation, and is gratuitous and unconditional; 1. It was executed by authentic act (La. Code, Arts. 1523 and 1525); 2. The'gratuity was accepted by the donees (La. Q., Art.-1527, 349).

      Can the party giving, when her liberal intention has received the sanction of an authentic act, come over and undo it?
    We find in Troplong, Don. and Test., <S 72:
    “ Non seulement la donation dépouille le donateur, mais encore elle le dépouille actuellement, c’est-a-dire, qu’elle est incompatible avec tous les nioyens détournés par lesquels le donateur, aprfes avoir donné, voudrait revenir sur sa libéralité, disposer de nouveau de la chose, ou amoindrir les effets du contrat par un repentir tardif. Le repentir n’est pas admis dans la donation. Aussi est-ce un vieil adage de notre droit q 1 e “ donner et reteñir ne vaut. ” It is evident that the contract entered into on the 8th of February, 1860, was, in its nature, gratuitious, whether called distribution or donation; and any attempt to change its nature, whether by extraneous evidence or otherwise, cannot be countenanced by a Court of law.
    In the case of Semple v. Fletcher, 3 N. S. 384, the Court said: “The parol evidence, offered and admitted on the trial, went to prove that there existed a consideration for the conveyance, etc.” This testimony was objected to, op the ground that the donation, by the terms of the act, being a pure and simple one, no evidence could be received to show it was one of a different character. We think the objection a good one, and that the Judge below erred in overruling it. The proof received went to change the entire character of the act. As written, it was 'a donation, purely such. With the testimony, it became a donation remUneratoire.”
    The act of 8th February, 1860, is unambiguous, and without condition or reserve. By its virtue the aggregatio mentis between the plaintiff and the defendant, as tutor aforesaid, received its consecration. If any .agreement was entered into in view of amending that authentic act, it may be binding upon those who went parties to the same. As-.to the defendant and appellant, it is non est. Here, there is no issue of fraud to slacken the rule of Art. 2256 of the Louisiana Code. See d'Aquin v. Barbour, 4 An. 441.
   Hvman, C. J.

Plaintiff proposed to make a partition of the proceeds of the sale of the community property acquired by her and her deceased husband, between her children, on the condition that they paid her a certain amount monthly, as an annuity.

Defendant was father and tutor of some of her grand-children, and he, as their tutor, accepted for them the partition, and received for them the amount of their share.

In the act of partition the proposed annuity was omitted.

He subsequently refused to sign a written contract stipulating for the payment of the annuity, and suit was brought to compel him to pay a part of the annuity (which it is alleged that he owed) amounting, at th® time of the inception of the suit, to $576 00.

The District Judge gave judgment against him for the sum claimed, with interest and costs, and he has appealed.

Defendant acted, when consenting to the partition, and receiving his children’s share in the partition, in a representative capacity; and in no part of the evidence is it shown that he agreed to be personally responsible for any part of the annuity.

It is ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered, adjudged and decreed, that there be judgment in favor of defendant, and that plaintiff pay the costs of both Courts.

Howell, J., recused.


author: Ilsley, J.

text:
    Kearney, Blois & Co. v. Arthur Hauche.
    A party seeking to recover a claim must make his case certain.
    APPEAL from the Second District Court of New Orleans,

      Howell, J. Gr. L. Bright, for plaintiffs. B. Egan, for defendant and appellant.
   Ilsley, J.

The plaintiffs claim from the defendant the sum of one thousand dollars, with interest; and they represent in their petition that, being creditors of E. Ball and Shell for the sum of fourteen hundred dollars, they instituted suit in Mississippi against their debtors, and seized some machinery belonging to them; that their said debtors came to New Orleans and agreed to sell the said machinery to Arthur Hauehe for thirteen hundred dollars.

They further represent that the said Arthur Hauehe agreed to pay, and did pay, one hundred dollars to them, two hundred dollars to Ball, and contracted to pay the balance to them when the machinery would be delivered to him.

That the said machinery was brought to New Orleans and delivered to the said Arthur Hauehe.

In order to substantiate their demand to the balance of one thousand dollars against Hauehe, they produce a witness, who was their clerk at the time of the alleged agreement, who says : “I knew Ball and also the defendant Hauehe. They, together, called at the store of Kearney, Blois &Co., on the 27th March, 1862, for the purpose of settling an account, and the following agreement was then made, verbally: “Mr. Arthur Hauehe pays us one hundred dollars, and pays Mr. E. Ball two hundred dollars on account, for thirteen hundred dollars for machinery sold him, and we guarantee that Mr. Ball will bring said machinery to New Orleans to be delivered to Mr. Arthur Hauehe, or the money paid on account, three hundred dollars, to be, returned to him. The balance of account, one thousand dollars, to be paid to us.” The witness further says, “When I say we and us, I mean Kearney, Blois & Go. I was present with the parties when the agreement was made. I took no part in making the agreement except as a witness. Immediately after the agreement was made, I put it in -writing ; and I think it was drawn up while the parties were present, and read over to see if I was right; but of this I am not positive. Mr. Hauche paid us at the time one hundred dollars, and two hundred dollars to Ball. The two hundred dollars paid to Ball was for the purpose of enabling him to go and bring the machinery here. I forget now where the machinery was at the time, but I know it was elsewhere than in New Orleans. The claim of Kearney, Blois & Oo. on the machinery was for Ball’s indebtedness to them. I think the machinery belonged to Ball. I know of a suit by Kearney, Blois & Oo. against Ball and Shell, somewhere over the Lake. I know nothing of a seizure, of my own knowledge.”

In the cross-examination of this witness, he says : “The contract was a verbal one, and I wrote it down for the purpose of remembering it; and my impression is that it was written in the presence of the parties, but I am not certain. I don’t recollect anything of w hat Mr. Hauche said in relation to the contract. I would not recollect the contract now, if it were not for this agreement. Mr. Hauche, the defendant, was not called upon to sign the agreement, and I don’t think either party was called on for that purpose. The thousand dollars was to be paid in current funds.”

We have transcribed the whole of the testimony of this witness, because it is on that alone that the liability of the defendant to the plaintiffs is sought to be established.

We can perceive nothing in this -testimony, or in the record, to show that Hauche was made aware of any indebtedness by Ball & Shell to the plaintiffs, or of any claim of theirs on the machinery; and he might well have supposed that the plaintiffs were merely the agents of Ball, who, it appears, sold the machinery to the defendant.

Had the plaintiffs intended to secure their claim against Ball, through Hauche, they should have had it explicitly understood that Hauche became their debtor for the amount due them, and Hauche would not then have paid the balance to Ball, instead of paying it to them. We deem the evidence insufficient to charge the defendant with this debt, as the law is well settled that a party seeking to recover must make his case certain. Old v. Fee, 8 M. 14, 455 ; Turnbull v. Martin, 10 M. 419 ; Adams v. His Creditors, 2 R. 27 ; Briggs v. Simms, lately decided. And this rule should be more rigorously enforced in a case wherein an attempt is made to compel a party to make a double payment of the same debt.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be reversed, and that the judgment be rendered in favor of the defendants and against the plaintiffs, with costs in both Courts.

Howsnn, J., reeused.


author: Howell, J.

text:
    T. Gatlin v. B. Kendig.
    The seller, who knows the vice of the thing he sells, and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.
    In this case the action for redhibition maybe commenoed at anytime, provided a year has not elapsed since the discovery of the vice.
    This discovery is not to be presumed; it must be proved by the seller.
    APPEAL from the Eourth District Court of New Orleans,

      Price, J. Simonds & Fenner,-for plaintiff. T. J. c& A. Q. Senvmes, for defendant and appellant.
   Howell, J.

This is a suit to rescind the sal® of a slave, on account of the vice of running away, alleged to have been known by the seller, and not declared to the purchaser ; and the only question presented for our decision is the prescription of one year, set up by the defendant.

The sale was made on the 4th Eebruary, 1858, and the slave ran away in May following. Suit was instituted on 24th March, 1860.

It is clearly shown that the defendant was aware at the date of the sale of the existence of the alleged vice, and under the law it was incumbent on him to prove that, when suit was commenced, more than a year had elapsed since plaintiff discovered that said vice existed at the date of or before the sale. Article 2524 C. C. expressly provides that this discovery is not to be presumed; it must be proved by the seller. See 3 A. 464; C. C. 2505, 2512, 2523. The evidence shows that plaintiff became aware in the fall of 1859, only a few months before instituting suit, that the slave was a runaway when he bought him ; and defendant has offered no proof that this discovery was made at an earlier date. The running away, more than, two months after the sale, and absence for more than one month, did not establish the existence of the vice before the sale, or knowledge in plaintiff.

It is therefore ordered that the judgment be affirmed, with costs.


author: Ljsmsv, J.

text:
    Lorin Chapman v. Thomas E. Matthews.
    Article 2510, of the Civil Code, provides that if the thing,&affected with the vices, has perished through the badness of its quality, the seller must sustain the loss.
    The redhibitory action must bo instituted within a year, at farthest, commencing from the date of the sale
    If it (the thing) has perished by a fortuitous event before the purchaser has instituted his redhibitory action, the loss must be borne by him.
    APPEAL from the Eourth District Court of New Orleans,

      Price, J. B. JSr. Hennen, for plaintiff.

    — Upon the application for a new trial it was insisted, in argument only, that, as no tender had been alleged and proved, the plaintiff could not recover. Plaintiff insists that this case comes -within the exceptions to the rule requiring tender prior to suit, for a rescission. The negro was dead at. the time of the institution of tha suit. “Lex neminem coget ad vana.” The case in 14 A. 401, Lewis v. Morgan, does not conflict with this. The only question in dispute was whether defendant had an agent, at time of institution of suit, to whom tender could have been made. What else Judge Buchanan was, an obiter dictum, and the learned Judge, if he meant to say that tender must be made as soon as the disease is discovered, contradicts himself at top of page 402, where he admits that the right to tender (and, of course, to recover) exists as long as the right of action, i. e. for one year. The only-condition insisted upon is, that the tender must precede the suit, and be made, if practicable. Now, the doctrine contended for by defendant would lead us to an abrogation of the right conferred by the Louisiana Code, Art. 2512, to bring suit at any time within the year; to the common law doctrine, as stated by Kent, 2 vol. p. 470, lec. 39: “If he (the purchaser) elects to pursue- that course (rescind the contract and recover back the money), be prompt in rescinding the contract,” “it must be demanded in a reasonab e time,” say the Common Law decisions: our Code says within a year.

      JR. H. Browne for defendant and appellant.

    — If the statements of the witnesses are to be believed, the facts were sufficient to put any prudent man on his guard, and cause him to make a tender as the law required.
    The reasoning of Mr. Justice Spofford, m the dissenting opinion, delivered .by him in the case of Dixon v. Chadwick, 11 Ann. 216, would seem to touch the very marrow of this case :
    “The well established rule * * * * affords a satisfactory check against fraud, concealment, and the after-thoughts of self-interest. The vendor warned in time, may take back his property and save it.”
    The case of Lewis v. Morgan, cited supra, is directly in point; and it is respectfully submitted that the reasoning of Mr. Justice Buchanan, the organ of the Court, is conclusive, and fully meets the facts of this case.
   Ljsmsv, J.

This is a redhibitory action, instituted by the plaintiff to rescind the sale of a slave named Coleman, fully warranted in the act of sale, and to recover back the price paid for him.

The answer is a general denial.

The verdict of the jury who tried the case, and the judgment of the Court, were in favor of the plaintiff; and the defendant has appealed.

No tender of the slave to the seller was ever made ; and this is urged by the defendant as fatal to the plaintiff’s right to prosecute his present -action.

The sale was made on the 19th June, 1860, and the slave died on the 8th October next following, of the same disease with which he was affected at the time of the sale.

Article 2510 of the Civil Code provides that, if the thing affected with the vices has perished through the badness of its quality, the seller must sustain the loss; and Article 2512 C. C. provides “that the redhibitory action must be instituted within a year, at farthest, commencing from the date of the sale.” The petition was filed on the 3d December, 1860, long after the death of the slave, so that it was impossible to tender him to the seller. The case of Rider v. Wright & Marshall was different from this one, and came within the provisions of Article 2511, which reads thus : “If it (the thing) has perished by a fortuitous event, before the purchaser has instituted his redhibitory action, the loss must be borne by him.”

In the case of Lewis v. Morgan, 14 A. 401, it is not shown that the slave was dead when suit was instituted.

We think, under the circumstances of this case, the want of tender cannot be invoked against the plaintiff to defeat his action, and this ÍS' the only ground relied on.

It is therefore ordered, adjudged and decreed, that the judgment of the-lower Court be affirmed, with costs of appeal to be paid by the appellant.


author: Jones, J.

text:
    William C. Mitchell v. J. S. Simonds, Curator, etc.
    Payment of a debt can be proved by one witness. •
    APPEAL from the Second District Court of New Orleans,

      Thomas, J.. Geo. L. Bright, for plaintiff. Buchanan <& Gilmore, for defendant.
   Jones, J.

This is a suit of Wm. C. Mitchell against J. S. Simonds, Curator of the succession of Thomas J. Pipkin, as the holder of a due bill executed by said Mitchell, on the 15th June, 1864, for the sum of one thousand dollars, and found among the papers of said succession, by said curator, to have said due bill annulled, cancelled and set aside, as the same had been paid while in the hands of said Pipkin.

The curator plead a general denial and a plea in reconvention.

The note sought to be cancelled is in the following words, to wit:

“ On demand, I promise to pay Mr. Thomas J. Pipkin, one thousand dollars, TJ. S. T. notes, it being borrowed money.

N. O., June 15th, 1864. Wm. C. Metohedd.

To be returned at the rate of gold at 190.

Neveatur. Estate of Thos. J. Pipkin. 31st July, 1864.

N. Bubnett, Notary Public.”

The burden of proof of payment is on the plaintiff. Under the law,, payment can be proved by one witness. 1 N. S. 6016, Parnel v. Cal et al. 2 An. 1036, Palmer v. Dinn. But in this case there is one witness, sustained by corroborating circumstances, to prove payment of the due bill sought to be cancelled.

For these reasons, it is ordered, adjudged and decreed, that the judgment of the lower Court be sustained ; the succession to pay costs of appeal.


text:
    A. P. Simpson v. Stephen D. Richardson.
    Where a parfey prays for a trial by Jury, in an ordinary action, before the case is set for trial, it must be granted.
    APPEAL from the District Court of the Parish of St. Helena,
    Martin, J. A. G. Semines, E. P. & F. G. W. Ellis, for plaintiff. J). N. Hennen,. for defendant and appellant.
   Hvman, C. J.

Defendant being sued for the value of the use of a house and garden, filed his answer before the suit was set for trial, praying therein that the case might be tried by a jury. This prayer was refused by the Judge of the lower Court, who tried the cause without a jury, and gave judgment against defendant.

Defendant appealed.

The right of trial by jury was improperly refused.

Defendant having prayed for this mode of trial, before the cause was set for trial, was entitled to it. See Code Practice, Art. 495.

The judgment of the lower Court is therefore reversed, and the case remanded for a trial by jury.

Plaintiff to pay costs of both Courts.


text:
    Bridgeford & Co. v. J. S. Simonds et als.
    Action against the drawer and acceptors of a draft must be made within a reasonable time, otherwise they will be discharged.
    Fraud is never presumed. It must be alleged and strictly proved.
    APPEAL from the Fifth District Court of New Orleans,

      Beaumont, J. B. Egan and W. F. Mills, for defandants and appellants.

      Eggleston & Hart, for plaintiffs.

    — Simonds took exceptions to the introduction of the draft, that he was no party to it, and that there was no proof that Cocke, who drew the draft for plaintiffs, had authority to do so, and that it is not admissible against him. The draft was drawn by Cocke, and accepted by C. & B., which was an affirmance of his authority to draw, and the institution of this suit is a full recognition of his aiithoritjr by the plaintiffs. Besides, the respective answers of O. & B. and S. contain a tacit admission of his authority, and the signatures are admitted, for as much as there is no special denial. Again, plaintiffs had to begin somewhere. They could not heap up all their evidence and throw it upon the Court at one and the same moment. If they failed to prove the indebtment of O. & B. to them, they would lose the suit; but if they proved their demand, they would have to go further, and show fraud, etc., ton the part of S. to hold him liable.
    His answers, as regards Simonds, were rejected by the Court, and plaintiffs excepted.
    The answers, we think, should have been received as evidence of ’simulation against S. It cannot be considered as offering one partner as a witness for or against another, in a matter where both are jointly concerned, and to throw a part or the entire burden of the debt upon one of the partners as such. But the object of the evidence is to establish and fix upon a wrong-doer the charge of fraud, the legal consequence of which is to subject certain property of the latter to the payment of a debt. It is not to fix his liability, as accruing in virtue of his social connection with the witness, but that the liability was incurred independently, and in spite of or above such industrial connexion. In other words, that the responsibility sprung from a wrongful act of the party sued. The offence or quasi-offence of S.' occasioned the responsibility, and not his social relations, or any act growing out' of them towards the witness. Rochdelle v. Musson, 3 M. Rep. 86.
    Again : The effect of this testimony is not to release C. & B. from their obligation to pay the draft which they accepted, for they are irrevocably obliged by their acceptance ; nor is it to fasten on S. a sole or part responsibility for the acceptance in his capacity as partner. The petition charges him as sole owner, and as having been the recipient and beneficiary of the goods sold and delivered. If either was the fact, and he only used his co-defendants, C. & B. ’s names as mere prets noms, to disguise his fraud and enable him to acquire the goods, and convert them to his own use, then he committed a fraud on plaintiff, and a coadjutor in the fraud is a competent witness. It was proposed to prove that C. & B. were nominal owners, and S. was the real one of the store ; that the pretended sale was a sham, and had no legal validity, and to hold S. as well as C. & B., all accomplices in solido. There was no intention to prove a partnership, nor to prove the interest therein of S., nor to establish any right, duty or obligation pertaining to a partnership.
    There was no change of possession after the sale, but the possession was retained by S. This was a fraud. 7 Ann. Rep. 124 ; 7 do. 614. A joint possession by S. & G. & B. would be fraudulent, for in such a case the delivery would not be complete. Wardell v. Smith, 1 Camp. 333 ; Cadogan v. Kennett, Cowper’s Rep. 432 ; Jannan v. Wolleton, 3 Tenn. Rep. 618 ; 7 Tenn. Rep. 82 ; Da.uets v. Smith, 3 M. R. 225, 3 N. S. 24, 2 ib. 13 ; 6 Toullier No. 341, et seq., 9 ib. No. 164. And the party asserting the validity of a sale must prove it. 12 Rob. 95 ; 10 Rob. 369.
    When a sale of personal property has been made, a delivery of the property to the vendor is essential to its perfection, so far as third persons are concerned. C. C. 2456, 2243, 1917 ; 4 Rob. 435 ; 1 Ann. 59 ; 3 Mart. 222, 3, 4.
    There was no list of the. articles sold' made out, or valuation of them. 7 Ann. 124, 5. The frequent change of the name of the owners and style of the firm, painted on the store, the possession of the books all the time by S., and the refusal to produce them in Court when ordered, are all so many badges of fraud and simulation that must ensure the annulment of the sale.
   Howell, J.

This is a suit by the payees against the drawer and acceptors of a draft, dated April 1st, 1861, and payable seven months after date; on which the lower Court gave judgment against the defendants in solido; from which judgment Simonds, the drawer, appealed.

The appellant is discharged as drawer, for want of timely presentment and protest. It is a matter of history, that communication with Louisville, Kentucky, plaintiffs’ residence, was restored in the summer of 1862; and there is no proof of a demand or presentment before the institution of this suit in April, 1864. Action was not taken within reasonable time. Story on Bills, $ 365.

Plaintiffs aver and contend, however, that Simonds, the drawer, was really a partner in the firm of Colton & Baldwin, the acceptors; that the .sale, on 1st July, 1860, of his interest in the preexisting firm of J. S. Simonds & Co., to Baldwin, an employee, was a simulation and a fraud upon his creditors, and that, consequently, he is liable for the amount of the draft.

The evidence does not establish a simulation. There was, according to the proofs in the record, an actual sale and delivery. Simonds withdrew from the establishment, left it to the control of the new firm, and notified plaintiffs of the change, One witness, an employee, states that Simonds continued in the store the same as before the sale to Baldwin; but his testimony is outweighed by that of three others, who had equal opportunities for knowing- the true state of affairs. No motive is shown in Simonds for making a simulated or fraudulent sale in 1860, or for concealing his interest in the new firm. Fraud is not presumed; and it is incumbent on plaintiffs, whose claim originated after the sale thus attacked, to prove, with legal certainly, the allegations upon which they seek to make him responsible to them. We think they have failed to show that he was a member of the firm, with whom they say they contracted, and who are bound to them as acceptors. The preponderance of evidence is in favor of appellant. .

It-is therefore ordered, that the judgment of the District Court against the appellant, J. S. Simonds, be reversed, and that there be judgment in his favor, with costs in both Courts.


text:
    S. Friedlander v. W. L. Cushing.
    Under the general issue defendant can prove that his lessor gave him. permission, to remove from the premises before the expiration of the time stated in the contract of lease, and rent-will only he allowed up to that period,
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. Fellows & Mills, for plaintiff. L. M. Day, for defendant.
   Howell, J.

The defendant has appealed from a judgment condemning- him to pay $640, rent of certain leased premises, from June to November, 1862, and he complains that there was error in allowing rent for the whole of the month of October, as the evidence shows that the plaintiff consented, for him to vacate the premises, whieh are shown, he says, to have .been untenantable.

We find in the record a bill of exceptions taken by plaintiff to the introduction of any evidence, to prove any matter going to show a diminution of the amount claimed in the contract of lease, on the ground that it was inadmissible under the general issue. This objection was well taken as to any evidence tending to change or reduce the stipulated rent; but does not apply to that which goes to prove plaintiff’s consent for defendant to quit the premises before the end of the lease. Plaintiff alleged that defendant had removed without his consent, and the general denial put this at issue. No legal objection was urged to the introduction of evidence upon this point, which, we think, establishes the consent, as contended for by defendant, who, it seems, left the premises on the 12th October; the rent to which date inclusive is $550, for which sum only judgment should have been rendered.

It is therefore ordered, that the judgment of the lower Court be avoided and reversed; and it is now ordered, adjudged and decreed, that plaintiff recover of defendant $550, with, interest from judicial demand, and the landlord’s privilege on the property provisionally seized, and all costs in the lower Court; plaintiff to pay the costs of appeal.


text:
    Wm. Mansell v. C. B. Payne.
    A party receiving an account, and making no objection to it within a reasonable time, admits its correctness, and cannot afterwards legally object to it.
    APPEAL from the Second District Court of New Orleans,

      Whitalcer, J. Benjamin, Bradford & Finney and G. Roselius, for plaintiff. Durant & Homor, for defendant.
   Howell, J.

On the 21st June, 1856, plaintiff, then at Vera Cruz, Mexico, addressed a letter to defendant, in this city, authorizing him to procure twenty-five shares, of $100 each, of the stock of the Southern Steamship Company, paying $2,000 cash, and furnishing a note in plaintiff’s name, at six months, for the balance, $500.

On the 21st July following, he wrote another letter, requesting defendant to increase his stock to fifty shares, issuing a note in plaintiff’s name, at six months, for $1,000, the amount required to complete the cost thereof.

In September of the same year, the defendant transmitted to plaintiff, at Yera Cruz, an account, offered in evidence by plaintiff, showing the receipt, by the former from the latter, of $4,155, at different times, from June 10th to July 25th, and charging plaintiff with $4,000 paid, on 10th June, 1856, on fifty shares of the stock of the Southern Steamship Company, and three small items, leaving a balance in defendant’s hands 'of $88 50, in favor of plaintiff. At the bottom of said account is the following memorandum : “June 10. His note, at twelve months, for $1,000.”

The plaintiff, according to his answer to a subpoena duces tecum, returned to New Orleans in October, 1857, and was, thereafter, in the habit of visiting the office of the company, of which defendant was the manager. On the 17th November, 1857, upon the payment of the note for $1,000, the defendant transferred to plaintiff, on the books of the company, fifty shares of the stock, for which' a certificate was issued, and which, on 19th August, 1858, plaintiff transferred back to defendant, at $67 50 per share, the plaintiff, at the time and since 10th May, 1858, being in the employment of the company.

In 1856 and 1857, the company lost two steamers, constituting about half their capital, which greatly depreciated the value of the stock, some selling as low as $30, the plaintiff alleging that, when the transfer was made to him, it was worth $50 per share, at which price, he says, defendant purchased the fifty shares, and transferred the same to him at par.

He charges defendant with fraud, and claims $2,500 as damages, being the difference between what defendant charged and aotually paid for the stock; and he also claims $1,000 damages sustained in the sale by himself to defendant, in August, 1858.

There was judgment for defendant, and plaintiff appealed.

This suit was instituted in January, 1861, two years and five months after the last transaction between the parties. At what date plaintiff became aware of the facts, which, he says, operated a fraud upon him, does not appear. But, we think, that his possession of the account, rendered to him by defendant for so long a time, without objection; his acceptance of the certificate of stock, whenAssued to him in November, 1857, with the knowledge of the losses of the company and the depreciation of the stock, and his resale to defendant, in August, 1858, of the same stock, amounted to an acquiescence' in the acts of defendant, and that he is now estopped from claiming damages.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.