text:
    Hughes, Valette & Co. v. Waldo & Hughes.
    Whore a party purchases an interest in a commercial house, entitling him 11 to an equal undivided onc-third interest aud ownership, and to all stock of merchandize, hills receivable, and debts in book accounts on hand, due or owing to tho firm on a given day, (over and above the payment of the liabilities of said firm/’) he is responsible for the debts of the house existing at the time of purchase. C. C. 2782.
    Tho phrase “ over and above their liabilities ” does not exclude responsibility from those liabilities.
    PPEAL from tho Fifth District Court of New Orleans, Eggleston, J.

      Durant & Iiornor, for plaintiff and appellee. Collens <& Woolridge, for Passman aud appellant. Geo. L. Bright, for R. L. Hughes.

   Buchanan, J.

By notarial act dated September 1st, 1856, Henry Passman, for the benefit of his minor son, who, says the act, “ has been acting in tho capacity of clerk in the hardware and ship chandlery store of Waldo <& Hughes, and assisted in taking an account of stock on the 1st day of July, 1856, and being acquainted with the general business and affairs of the said firm, and is consequently fully aware of the amounts of goods, moneys, bills receivable and book accounts belonging to the capital stock of the said firm, as well as with their liar bilities,” paid into the capital stock of the firm of Waldo & Hughes, the sum of six thousand dollars, and agrees to take upon himself all the legal responsibilities of a member during the minority of the said Frank Passman.” — “ It being well understood and agreed between the said Charles H. Waldo, Robert L. Hughes, and Henry Passman, that payment and receipt of the six thousand dollars, as aforesaid, into the capital stock of the firm hereinafter instituted, shall entitle the said Henry Passman to an equal undivided one-third interest and ownership in and to all stock of merchandise, bills receivable, and debts in book accounts on hand, due or owing to the said firm of Waldo & Hughes, under the provisions of their said act of copartnership, on and from the first day of July, 1856, (over and above the payment of the liabilities of the said firm).”

Tho parties to the said notarial act, Charles H. Waldo, Robert L. Hughes, and Henry Passman, then proceed to establish themselves partners in the general hardware and shipchandlery business, under tho firm of Waldo <& Hughes, for the term of three years, beginning tho first of July, 1856, and ending tho first of July, 1859. ,

The indebtedness of the firm of Waldo & Hughes to Morgan R. Hughes, assigned to plaintiffs, arose from a loan of money by tho latter to the former, on the 24th of June, 1856, and the account of Morgan R. Hughes, on the books of Waldo & Hughes, was balanced on the 1st of July, 1856, the balance to credit of Morgan R. Hughes, on that day, being exactly the amount of said loan.

The only question in this case for our decision is, whether Henry Passman is liable for this balance.

It is contended by the counsel of defendants, that the engagements of Passman in the contract recited above, were entirely prospective, and contemplated a liquidation of the affairs of the old firm, and an investment of the nett proceeds of the old concern, as the share of Waldo c6 Hughes in the new one; that the terms of the contract do not imply an assumption, on the part of Fassman, of the liabilities of the old firm. This argument seems to be founded upon the somewhat ambiguous phrase “ over and above the payment of the liabilities of the said firm.”

But we are unable to understand that phrase as exempting Fassman from a share in those liabilities. The contract is certainly retrospective in its operation. It bears date the 1st September, 1856, but takes effect two months earlier, namely, the 1st of July. The preamble informs us, that a general balance has been struck on the 1st of July; that the accounts of the firm are well known to Fass-man ; and that, from the same date, he has an equal interest with the other contracting parties, in the balances of accounts due the firm, as well as in all their other assets. The phrase “ over and above their liabilities,” does not exclude responsibility for those liabilities. It rather seems to recognize the anticipation of profits to result from the partnersnip, which, says Art. 2182 of the Code, is of the essence of this contract; and to guard against the very pretension that is now urged on behalf of Fassman, to divide those profits, without a deduction of outstanding liabilities.

It was clearly intended, that the contracting parties should enter into the partnership upon a footing of perfect equality; but it would disturb that equality, and would give to Fassman a manifest advantage over Ms copartners, to say that he is entitled to a share in balances of book accounts of the firm, when those balances are to the credit of the firm, and that he has no interest in those balances that are to its debit. This would be unfair, not only to the other partners, but to the creditors of the firm. For the property of the firm is the common pledge of its creditors; and this construction of the contract under consideration withdraws one-third of that pledge from their reach.

We do not consider this a case for damages, as prayed for by appellees.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    Henry Keane (Hugh Kennedy, Testamentary Executor, substituted) v. Goldsmith, Haber & Co.
    ■Where an insolvent has given an unjust preference to one creditor over the others, it is for the syndic to bring an action to annul the contract by which such preference is obtained.
    A person not a creditor cannot complain.
    An executor is authorized to collect claims until the estate is closed, or he is discharged.
    from the Fourth District Court of New Orleans, Price, J.

      H. C. Miller and T. II. Clack, for plaintiff and appellee. J. Ad Rozier, for defendants and appellants.
   Land, J.

The plaintiff sues as the transferree of Isaac Hart, upon the following agreement:

“ Keane v. Fisher — Fifth District Court of New Orleans.

“ We hereby agree and bind ourselves to protect Mr. Isaac Hart, as surety for Fi-sher, in the above entitled suit, and desire that Mr:Hart should defend himself against this suit, and if necessary, take an appeal to the Supreme Court, and we bind ourselves in solido to protect him, fully including costs and all incidental expenses.

New Orleans, April 7th, 1853.

(Signed) Goldsmith, Haber & Co.”

The following statement of facts is taken from the opinion of the District Judge:■

“ Plaintiff instituted suit in the Fifth District Court, against W. P. Fisher & Co., for fraud, under the 10th section of the Act of 1840, and the defendant, Fisher, was arrested. Isaac Hart became surety on a bond, in the sum of $2000, for the release of Fisher.

Fisher was convicted by the verdict of a jury, of the fraud, and condemned to pay the amount of plaintiff’s claim.

“ The conditions of the bond -were violated by Fisher’s leaving the State, without the consent of the court, and plaintiff took a rule on Hart, the surety, to make him liable for the amount of the judgment. This rule was made absolute to the extent of $729, with interest and costs, and dismissed as to the remainder of the judgment. From this judgment plaintiff appealed, and on a hearing in the Supremo Court, the judgment was reversed and I-Iart condemned to pay plaintiff $2000, with legal interest from date of the decree, 2d of April, 1855, and costs of the rule in both courts.

“ Before Hart’s liability was fixed as surety on the bond given in the case of Keane v. W. P. Fisher Co., Goldsmith, Haber & Co. on the 7th of April, 1853, executed their obligation in solido to hold Hart harmless as surety for Fisher, and bound themselves to protect him, I-Iart, fully including costs and all incidental expenses.”

The present suit was formerly before this court on the appeal of plaintiff, and is reported in 12th An. 560. And is now before us on the appeal of defendants, who contend :

First. That Isaac I-Iart never transferred to the plaintiff the obligation sued on.

Secondly. That Hart has never paid any portion of the judgment recovered against him by plaintiff, and that until the payment of said judgment, Hart can have no cause of action against them.

Thirdly. That if said obligation was over transferred to plaintiff, it was in fraud of the creditors of Hart, who was insolvent at the date of the transfer. And,

Fourthly. That Hugh Kennedy is no longer executor of the estate of Keane, and has no authority to represent his heirs.

I. There is no written evidence of any transfer, and the parol testimony on the subject is somewhat contradictory as to the nature of the transfer. A part of the testimony goes to show that the obligation was delivered to Keane, upon conditions, or events, which have not happened ; another part shows that the transfer was pure and simple, for the exclusive benefit of Keane.

Isaac Hart was examined as a witness in the cause, and was fully cognizant of the character of plaintiffs demand, and has made no opposition thereto. His knowledge and acquiescence will preclude him from gainsaying the validity of plaintiff’s title, and a payment, therefore, by defendants to plaintiff, will be valid and protect them against the pursuit of Hai-t, upon the obligation in controversy.

The acquiescence of Hart is a strong corroborating circumstance to show an unconditional transfer to the plaintiff. In view of the relation of creditor and debtor existing between the plaintiff and Hart, and of all the facts detailed iu evidence, we are satisfied of the verity of the unconditional transfer to plaintiff.

II. It has already been decided between these parties, that a right of action lies on the obligation before payment of the judgment by Hart. 12 An. 560.

III. We fully concur with the District Judge on this ground of defence, who says, “ If Hart has given an unjust preference to one creditor over the others, it is for the syndic of Hart to bring an action to annul the contract by which the preference is obtained. O. 0.1965. But defendants cannot complain of such transfer, as it is not shown that they are creditors of Hart.

IV. On this point, we also concur with the District Judge, who says, “ The succession of Henry Keane is not closed, nor has the executor been discharged, and until he is discharged, it is competent for him to collect the claims due to the estate.”

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.

Re-hearing refused.


author: Buchanan, J.

text:
    Taylor, Hadden & Co. v. M. Simon.
    Whoro a party receives back a draft given by liim in payment, upon an agreement to replace it by an equivalent, no novation takes place if he fails to do so.
    The prescription of five years alone is applicable to a case like the present.
    from the Fifth District Court of New Orleans, J.

      R. N. Ogden and J. D. Augustin, for appellees. J. B. Cotton, for appellant.
   Buchanan, J.

This suit grows out of an item of $100 credited by plaintiffs, merchants in New Orleans, to defendant, a merchant in the country, in account current; which credit was for a city acceptance of a draft drawn by a planter in the country to order of defendant, and by him endorsed and delivered to plaintiffs in settlement. The acceptance thus endorsed had between six and seven months to run to maturity, at the time of its transfer and delivery by defendant to plaintiffs. In the interval, the acceptor failed, and the defendant received it back from plaintiffs, upon an agreement that the former would furnish the latter, in its place, something of equal amount that was available, or pay the money at the maturity of the draft. Had defendant replaced the draft by an equivalent, this would have operated a novation, as between plaintiffs and defendant, of the debt of which the endorsed draft was the evidence ; but having failed to do so, the draft still remained the property of plaintiffs; and by the effect of the agreement, the contingent liability of defendant, as endorser, was converted into an unconditional and absolute liability, like that of an acceptor, to pay the draft at maturity to plaintiffs, as holders. Although the return of the draft by plaintiffs to defendant, was noted in the bill-book of the former, no counter-entry was made in the account of defendant; neither was there any equivalent furnished, nor was the amount of the draft paid at maturity. The evidence of these facts is positive aud uncontradicted. We are, therefore, to consider plaintiffs as the holders of defendant’s acceptance, matured the 4th October, 1853. The subsequent balances of account stated, and settlements made between the parties, although good prima facie evidence between the parties, of payments in full to the dates of such settle'ments of all previous obligations, must yield to the proof of error, caused by the omission of a book-keeper to make a counter-entry in account-current, and perpetuated by subsequent changes of book-keepers.

The defendant has pleaded the prescription of three years for open accounts, under the statute of March 5,1852, p. 90. But we are of opinion that the prescription applicable to this case is that of five years for bills of exchange and promissory notes. C. C., Art. 3505. But that prescription is not pleaded ; and if it were, could not avail to bar this action, citation having been served four years and eighty days after the maturity of the draft.

Judgment affirmed, with costs.

Cole, J., absent.


text:
    Judd Linseed and Sperm Oil Company v. Alfred Kearney.
    Where the buyer refuses to accoiit goods, the seller is not obliged to let them perish on his hands, and run the risk of the solvency of the buyer.
    Whore tho vendor, however, buys the goods offered for sale, or any part thereof, either directly or indirectly, or where, by an arrangement made by him or his agents, competition at tho sale of tho goods is prevented, he thereby forfeits his right to recover the deficiency in the amount of the sales.

    from the Fifth District Court of New Orleans, Eggleston, J.

      Durant & Hornor, for plaintiffs and appellants. Geo. L. Bright, for defendant and appellee.
   Land, J.

The defendant purchased from the plaintiffs one hundred and fifty barrels of oil, to be forwarded from New York, in shipments of thirty barrels each, at the price of seventy-eight cents per gallon, payable three daj's after the arrival of the vessels at this port.

The defendant paid for, and received the first shipment of thirty barrels, but failed to pay for the remaining' shipments, amounting in the aggregate, to one hundred and twenty barrels.

The agents of the plaintiffs, Vredenburg & Co., in this city, refused to deliver to the defendant the 120 barrels of oil, without a previous payment of the price, and after notice to the defendant, caused the oil to be sold at public auction. At the sale, the oil was adjudicated to L. L. Smith, of the the firm of Smith, Cooper & Co., at the price of fifty-five and five-eights cents per gallon.

This suit is brought to recover the sum of fourteen hundred and sixty-two 9-100 dollars, the difference between the invoice price, and that at auction.

It has been held, that if the buyer refuses to accept of the articles sold, tho seller is not obliged to let them perish on his hands, and run the risk of the solvency of the buyer. And that, on the neglect or refusal of the buyer to come, in a reasonable time, after notice, and pay for, and take the goods, the vender lias the right to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales. White v. Kearny, 9 R. 501. And it was also held, in the same case, reported in 2d An. p. 641, that when by the breach of tho contract, the merchandise was thrown upon the plaintiffs hands, he became the trustee of the defendants to manage it, in good faith, and with reasonable diligence. The plaintiffs, therefore, have a right to recover, unless that right has been lost or forfeited.

The defendant contends that the sale at auction, was an absolute nullity, or at least deprived the plaintiffs of their right to recover from, him the difference between the purchase price, and the price at the auction sale.

The evidence discloses the facts, that Mr. Smith purchased the one hundred and twenty barrels of oil, upon an understanding with Mr. Vredenburg, the agent of the plaintiffs, that if he, Smith, should want thirty barrels, he should have them. He says in his testimony, “ previous to the sale, Mr. Vredenburg came to me and wanted me to buy the whole of the oil, provided it was sold under a certain price. I objected to this, because I wanted to buy a part for my own account. Mr. Vredenburg appeared so anxious that I should buy the whole that I consented, and we compromised about it; the understanding was, that if I wanted thirty barrels I should have them.”

It also appears from the testimony of this witness, that he received thirty barrels, and the remainder was received by Vredenburg & Co., by virtue of the sale at auction.

The testimony of Vredenburg shows, that the purchase of the oil by him, was ratified by the plaintiffs, as a purchase on their own account.

Upon the principle, that the plaintiffs were the agents of the defendant in the sale of the oil, they were without capacity to purchase the whole, or any part of it, either directly or indirectly, and having violated the legal relation existing between themselves and the defendant, they may be justly held to have forfeited their right to a recovery in this action.

The evidence shows, that Vredenburg & Co., were willing to give sixty-two and one-half cents per gallon for the oil, and having, by an arrangement with Smith, purchased it for 55g cents per gallon for account of plaintiffs, it is evident that they have not acted toward the defendant with that care and diligence which the law requires at the hands of every agent or mandatary.

We, therefore, hold, in a case like this, wherein the vendor buys the goods offered for sale, or any part thereof, either directly or indirectly, or wherein, by an arrangement made by him, or his agents, competition at the sale of the goods is prevented, that he thereby forfeits his right to recover the deficiency in the amount of the sales.

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


author: Merrick, C. J.

text:
    Daniel J. Dohan v. J. M. Wilson.
    A disease making its appearance within fifteen days after the sale, is presumed to have existed on tho day of sale, the slave not having been in the State eight months.
    It is incumbent on defendant to rebut this presumption.
    from the Second District Court of New Orleans, Morgan,

      Chilton & Perkins, for plaintiff and appellee. Moise <& Randolph, for defendant and appellant.
   Merrick, C. J.

This is an action brought to reoover the prie-e of two slaves sold by the defendant to the plaintiff, alleged to have died of the eholera.

The negro women were delivered under the sale, on the evening of the 21st of January, 1854, to the plaintiff, and taken to his plantation in the Parish of Ten-sas, where they were received on the 23d, apparently in good health. On the 25th, they were employed in picking cotton, and on the 2Gth, they were taken violently ill with the cholera, and subsequently died. On the 30th, the disease made its appearance among the other negroes on the place, and the first one attacked died the next day after, being taken. Eight or nine other cases immediately followed, and the disease disappeared from the plantation after the negroes had been made to abandon their houses, and disperse and encamp in the woods and other parts of the plantation.

The disease having made its appearance in fifteen days after the sale, is presumed to have existed on the day of sale, the slaves not having been eight months in the State.

This presumption defendant has attempted to rebut by proving that the slaves had not been sick for some time previous to the sale; that they walked the day of sale a mile to the steamboat landing; that they were apparently well and i'll fine spirits when taken on board of the boat; that there had been no cholera in the slave yard of defendant from the 28th November, 1853, to the 28th Pebruai’y, 1854; that the slaves appeared to be well on the 23d, and even picked cotton on the 25th of January. Defendant contends that it is thus made probable that the sickness of the slaves originated during their removal, or after they arrived at their new home.

In this state of the case, however, it must be observed, it is not shown that cholera was not prevailing to some extent in the city, and the defendant’s physician, who visited the establishment almost every day, while he says positively, there was no cholera there in November and December, 1853, will not so state as to January, and only gives it as his impression that there was none. Defendant’s clerk, and the owner of one of the slaves are, however, positive that there was no cholera in the slave yard in January.

The plaintiff has not contented himself with relying on the presumption of law in his favor. He has shown that there was no cholera in the Parish of Tensas at the time of the arrival of these negroes, and that there had not been any since 1851, and the physician and overseer give it as their opinion, that it was brought there by these negroes from New Orleans.

. One of the plysicians called as a witness by defendant, was the one having charge of the slave yard, he is of the opinion that cholera does not lie dormant in the system so long as three days; the other, Dr. Moss, will not undertake to say that it may not exist in a latent state for eight days.

Now the proof makes it sufficiently certain, that these slaves did not take the cholera in the Parish of Tensas, for there was no cholera there, and had been none since 1851, and when it had prevailed as an epidemic on a certain plantation in 1851, it is shown how it was carried there by the removal of negroes from a plantation in another part of the State, where it was prevailing.

Then, did the negroes take the disease on the way ? If it be assumed that they did, it destroys defendant’s theory, because it shows that the disease was in a latent condition in the systems of the slaves from the 22d of January to the 26th, a period of four days; for the slaves had the same healthy appearance when received in Tensas, as when delivered in New Orleans. If the disease existed in a latent condition at one period, it might have also at the other.

It seems, therefore, that it was upon the defendant to show that there was cholera prevailing on the steamboat, or at some point through which the slaves passed, where they might have taken the disease, particularly as it is shown by defendant’s witness that every winter and spring, there were sporadic cases of cholera in the city. The fact that another slave of plaintiff was taken sick on the 30th and died next day, does not disprove the presumption of law. He had then been exposed to tho disease, perhaps for four days.

It is urged that, if the defendant had made it possible that the slaves did not have the cholera at the time of the sale, and that if anything more than a probability is required to overcome the presumption created by the statute, it never can be overcome.

This may be true as to cholera, until medical men have a more certain knowledge of the causes and origin of the disease. The fault lies in the statute, and the nature of the proof in this case. The defendant has not rebutted the presumption, fortified by facts as it is, proof amounting to a legal certainty. A mere probability is not sufficient. See Landry v. Peterson, 4 An. 96.

We cannot, therefore, say that the District Judge erred in his conclusions, and tho loss must fall upon defendant under the statute.

Judgment affirmed.


text:
    Cohn & Bruen v. L. Levy.
    A lease mado by a third party and defendant, is properly rejected when offered in evidence in a suit, as between a plaintiff not a party to the lease and defendant. And so is testimony tending to prove facts not alleged.
    On an allegation of a written lease, no evidence can be offered to prove one by parol.
    An amendment should be presented before going into trial.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    _£jl Durant c6 Hornor and C. V. Jonle, for plaintiff and appellants. Win. H. Hunt, for appellee. J. B. Cotton, for Shaw & Co., Intervenors.
   Land, J.

The plaintiffs alleged that the defendant was indebted to them, in the full sum of $733 31, for rent of store No. 94, St. Charles street, in this city, as shown by the account, and act of lease annexed to and made a part of their petition.

They further alleged, that the defendant had abandoned the premises, absconded, and left the State, and prayed for, and obtained a writ of provisional seizure, which was executed on the property of the defendant, found on the leased premises.

Various creditors of the defendant intervened in the suit, and claimed to be paid by preference out of the proceeds of the property provisionally seized.

On the trial, the plaintiffs offered in evidence the act of lease annexed to their petition, to tho introduction of which, the intervenors objected, on the ground that it was a lease between other parties, and not the plaintiffs and defendant— the objection was sustained, and thereupon plaintiffs’ counsel moved the court to allow him to amend his pleadings in the language of the bill of exceptions, “ not with the view of changing the nature of the suit, but to throw out the said written lease,” which amendment was refused by the court upon objections made by inter-venor’s counsel; after which, plaintiffs counsel offered D. Bidwell, a witness, to prove the correctness of the account referred to in the petition, and annexed thereto, and to prove that novation of the old lease had taken place, and a verbal lease was passed between said D. Bidwell, agent, sometime subsequent to the said written lease — to which, also objection was made, and sustained by the court, and thereupon the plaintiffs took a hill of exceptions to these various rulings.of the District Judge.

There was no error in the rejection of the testimony offered by plaintiffs, first, because the act of lease annexed to the petition, was a contract between one Newman PeswcensJcy and the defendant; and secondly, because the other facts which the plaintiff sought to prove, were not alleged in their petition.

The plaintiffs having alleged a written lease, could not offer evidence of one by parol. Fisk v. Cannon, 1 N. S. 346. Delogny v. Smith, 3 L. 420. Nicholls v. Creditors, 9 R. 476.

The plaintiffs did not present their amendment before going to trial, and under the circumstances of this case, it was not improperly rejected. Dabbs v. Hemken, 3 R. 123.

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


text:
    Succession of M. Cardona.
    Where an usufruct of community property is constituted by last will in favor of the wife, and there are no descendants, the usufructuary is compelled to give security according to Art, 552 C. C., unless it has been dispensed with by the terms of the will.
    PPEAL from the Second District Court of Now Orleans, Morgan, J.

    Al G. é C. E. Schmidt, for executor and appellant. Clarke <& Bayne, lor ]£. Cardona.

   Buchanan, J.

The testamentary executor is appellant from a judgment upon an account of administration. An examination of the record has not satisfied us that there is any error, to the prejudice of appellant, in the conclusions of the court below. The appellee, widow in community of deceased, asks us for an amendment of the judgment in her favor in two particulars.

1. By charging the executor with $776 05, mentioned in the inventory as being' in the hands oí the executor. This sum appears to have been allowed in the judgment upon a former account. In that account, the executor charged himself with $174, cash in his hands per inventory, and the judgment of the court on the account, increased that charge, by $600, making in the aggregate about the sum mentioned.

2. The appellee asks, that it be decreed that she have the possession as usufruct, uary under the will of her husband, of the sum of $2825 15, which the judgment of the court below declares to be due to the minor nieces of the testator, by the executor.

This amendment should be allowed. All the property comprised in the inventory of the deceased, is admitted to belong to the community between himself and his surviving wife, the appellee. The will of deceased provides as follows : “ To my said wife I give and bequeath the usufruct and life enjoyment of all the prop erty I may have at my death, for and during the term of her natural life, on con. dition that she shall continue to provide for the support and education of my two nieces, Esperanza and Agadida Grace, living at present with us.”

By another clause of the will, the testator institutes his said two nieces as his universal legatees. The evidence shows that Mrs. Cardona has supported and educated her husband’s nieces since his death.

By another clause in the will, a sixth interest in the testator’s estate is bequeathed to a minor named Charles Matthews, son of Ann Anderson, aged about two years, subject to the widow’s usufruct.

The executor argues that he is not bound to hand over the net proceeeds of the estate of the testator, to his widow, unless she gives security, according to Art. 551 of the Civil Code. Succession of Pratt, 12 An. 451.

The usufruct of Mrs. Cardona is not a right under the first section of the Act of 1844, page 99, relative to community property; because her deceased husband, although he left neither ascendants nor descendants, has disposed, by will, of his share in the common property. He has done, however, what the law would have done, had he made no will; he has reserved to his widow a life estate in his property. This is then an usufruct constituted by last will (C. C. 532,) and the usufructuary has not been dispensed with the obligation of giving security, by the terms of the Act by which the usufruct is established, (C. 0. 552.) As the estate of which the usufruct is given, has been liquidated, and converted into cash, the amount of the security to be given must be twenty-eight hundred and twenty-five dollars and fifteen cents, the balance in the executor’s hands, after the payment of debts, as shown by his account. The will directed the sixth part, bequeathed to the minor Charles Matthews, to be invested in real estate by the testamentary executor. But this has not been done, because, as the executor represents, the said minor’s share only amounting to a sum of four hundred and seventy dollars and eighty-five cents, cannot be invested in the manner proposed by the testator. For the same reason, it cannot bo ordered to be thus invested by the usufructuary. Neither of the three minors mentioned in the will, are represented in these proceedings.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, that the testamentary executor pay over to the widow Cardona, appellee, the sum of two thousand eight hundred and twenty-five dollars and fifteen cents, the amount allowed by the said judgment to the minors, legatees of the decased, Matthew Cardona, upon the said widow Cardona executing, and depositing in the Fourth District Court of Now Orleans, a bond in favor of the Judge of the said court, and of his successors in office, with security to the satisfaction of said court, in the sum of eleven hundred and seventy-seven dollars and fifteen cents, conditioned according to Art. 551 of the Code, to secure the eventual rights of the minor Esperanza Grace, also a like bond, in the like amount, to secure the eventual rights of the minor Agadida Grace; also, a like bond, in the sum of four hundred and seventy dollars and eighty-five cents, to secure the eventual rights of the minor Charles Matthews; that, in other respects, the judgment of the District Court be affirmed, and that the succession pay the costs of appeal.


author: Cole, J. Mereick, C. J.

text:
    R. Waterhouse v. R. A. Bourke, Administrator.
    Property found among that of the deceased is properly inventoried among his effects.
    The true owner thereof can claim the proceeds only of sales of his property made hy an administrator in good faith.
    Having neglected to claim his property both before and at the time of the inventory, there was nothing to prevent the administrator from selling them according to law. If the requisitions of law, in malting the sale, were not complied with, the creditors alone would have recourse against the administrator, if they suffered by his unlawful act. The owner of the property would have no right to complain, particularly when he suffered no damage thereby.
    PPEAL from tlic Second District Court of New Orleans, Morgan, J.
    _ljL Benjamin, Bradford & Finney, for plaintiff and appellees Chilton & Harrison, for defendant and appellant.
   Cole, J.

The plaintiff, who is a citizen of Texas, deposited with the late R. W. Powell, of New Orleans, certain Texas “ red back” bonds, or notes, for which he holds the following receipts :

New Okleans, May 23,1850.

R. Waterhouse, left in my care a lot of Texas red back bonds, amounting to, say $53,083, nominally, which will be delivered to him or his order.

R. W. Powell.” (Signed)

“ February 6,1852. — -Received, also, nine hundred and ninety-one of the above bonds or notes of Texas, deliverable as above.

R. W. Powell.” (Signed)

Powell died on the 18th of September, 1855, and his succession was opened in the Second District Court of New Orleans, on the 15th December, 1855, when the defendant, R. A. Bourke, was appointed administrator.

The inventory taken on January 30th, 1856, contains the following statement:

“ Two packages of bonds of the Republic of Texas, found in the tin-case of R. W. Powell, delivered by Mr. Girault, one of which containing in notes of various denominations $991; and the other, containing $3,128, comprising a total sum of $4,119, which not having been 'presented within the time prescribed by the laws of Texas, the whole amount is without present value by limitation of those laws — no value.”

About the 21st of February, 1856, R. P. McMasters, a broker of New Orleans, applied to the defendant and offered to purchase these bonds. Defendant at first declined selling them at private sale, but afterwards, having conferred with his counsel, agreed to sell, and did sell and deliver them to McMasters, on the 21st day of February, for twenty cents on the dollar.

Previous'to this sale, Bourke had applied to McMasters for information respecting the value of this script, and had been informed by him that it was prescribed and of no market value; and McMasters further testifies, that it was of no market value at the time he purchased from the defendant, and that his only motive for buying it, was that he had an order from Texas to buy it, for a person who was indebted to the government as security of a defaulting officer, and could use it in paying the indebtedness. But for this fact, McMasters says, he would not have bought it.

It is further testified to by the counsel of defendant, that he informed Bourke that he could not legally sell this script, as administrator, at private sale, but that as it was worthless, and he might never again receive an offer for it, it would be the best policy to sell it, and thereby save twenty cents in the dollar to the sue-cession, which otherwise would be lost; and that then he could apply to the' court by petition, slating the special facts, and obtain an order of sale, under which the title of McMasters might be legalised.

Accordingly, in April 1856, an order of sale was made, and on the 11th day of July following, the script was sold by the Sheriff.

Up to this period, no claim or demand had ever been made by Waterhouse upon the defendant for this script, and the only information he had received, was from L. H. Gardner, formerly employed by the firm of Powell & Co., of which R. W. Powell was a member. Gardner was present when the tin-box containing Mr. Powell’s private papers was opened, in order to be inventoried. There was a package of “ red backs,” Texas bonds, found in this tin-box. Gardner testified that he told Mr. Bourke, that whilst he was in Texas, he called upon Mr. Water-house in relation to the business of the debt he owed to Powell <& Hopkins. Mr. Waterhouse produced two receipts for the “ Texas red back bonds,” as a proper credit on the debt, the payment of which he claimed. That he then stated to Mr. Bourke, he believed these bonds were the property of plaintiff, and that he believed them to be the same, the receipts of which he saw in the hands of Mr. Waterhouse.

It further appears, that “red backs” were redeemed in June, 1856, at 76 cents on the dollar, at Washington, but it does not appear that Bourke knew this fact, or that indeed it was known to any except speculators.

McMasters says, it was known when he bought of Bourke, in February, 1856, that the creditors of Texas wore supplicating Congress to pay all the debts of Texas, but McMasters did not reveal this fact to Bourke.

On the 12th of May, 1857, plaintiff instituted this suit, in which he prays that Bourke be ordered individually, as well as in his capacity as administrator of the succession of R. W. Powell, to deliver said bonds deposited as aforesaid, to petitioner, or in default thereof, to pay him $4,074, their present value.

There was judgment in favor of the plaintiff against the succession of R. W. Powell, for $914 85, the amount paid to the administrator by McMasters for the bonds, which sum is to be taken out of the assets of the succession by preference and privilege over every other person. It was further decreed, that the plaintiff recover from the defendant, individually, $2,217 89, the difference between the price given by McMasters and the value of the bonds as proved upon the trial.

Defendant has appealed.

There is a bill of exceptions to the exclusion by the court, of the testimony of J. M. Chilton and the cross-examination of McMasters.

The testimony of Chilton ought to have been admitted, except as to that part containing the communications of Bourke to him.

The cross-examination of McMasters was also admissible, for this as well as the testimony of Chilton, tend to show the good faith of Bourke in disposing of the bonds.

We are of opinion that Bourke ought only to bo held liable in his administrative capacity for the amount received by him and put upon his tableau, as the proceeds of the sale of the bonds.

It is clear that he acted in perfect good faith, and even admitting that the sale to McMasters was illegal, still plaintiff cannot raise this objection, because he does not sue as a creditor of the estate, but claims a special deposit made with the deceased in his lifetime.

It does not appear why this deposit was made, and it appears singular that the bonds should have been left for so many years with Powell.

Gardner, indeed, testifies that plaintiff produced to him in Texas, the two receipts for the bonds, as a proper credit on the debt, the payment of which Gardner claimed as due to Powell <& Hopkins.

This testimony is not explained, and it leads to the conclusion that plaintiff considered these bonds as compensated by his debt. However this may be, there was certainly great neglect in plaintiff to permit the bonds to remain so many years with Powell, if the latter had no offset against them, or did not hold them as collateral security.

Powell is now dead, and it is impossible for his administrator to explain the cause of this long deposit, and the claims that the deceased may have had against the bonds.

The facts of this case establish that the bonds brought as much as they would, if the order of court had been first obtained for their sale.

Defendant had the right to put the bonds upon the inventory as the property of Powell. He found them among his papers, and the testimony of Gardner was not of such a nature as to authorize Powell’s administrator to consider the bonds as the property of plaintiff.

Art. 1099 of the Civil Code, instructs the Judge or Notary, to “make mention of the effects and property which are claimed by third persons, as having been intrusted to the deceased to keep on deposit, consignment, or otherwise, all of which must be estimated with the effects of the succession, though they can be taken out of the inventory, if Ihe claim to them is established.”

These bonds were not claimed by plaintiff'; he made neither before nor at the time of the inventory any demand for them.

There was nothing then to prevent the administrator from selling them according to law. If he erred in not following in their sale the requisitions of law, the creditors of the estate may have their recourse against him, if they have suffered by his unlawful action, but plaintiff not being a creditor can only object under the circumstances of this case, and hold the administrator liable, in the event he had no right whatever to sell the bonds.

If he had the right to sell, then the neglect to follow the strict formalities of law incumbent upon administrators, cannot be complained of by him, particularly when he suffered no damage thereby. Plaintiff, with a bad grace, invokes the enforcement of the most rigid principles of law, when his own laches has produced the difficulties, and when the administrator acted in good faith for what he believed, under the advice of counsel, to be for the best interests of the estate.

The succession of Powell was opened in December, 1855 ; McMasters purchased the bonds about the 22d of February, 185C, at which time, the period for a sale of all the effects had not only arrived, but had passed, for more than a year had expired from the opening of the estate. The administrator was not bound to wait any longer to see if any one would claim the bonds.

Even supposing that plaintiff has the same rights as creditors of the estate, for recovery of damages for selling illegally these bonds, still he can recover none, for he has not suffered any. He obtained as much by the private sale, and the attempt to cure the illegality by the public sale, as if the order of court had first been obtained for their sale.

Besides, if this script, in consequence of the failure of Congress to act, had remained of no value, the defendant could not have withheld from plaintiff what he received for it. It -would seem, then, that if ho could not he benefited by the continued want of value of these bonds, that he should not suffer by their accidental increase of value. C. C. 2291; V An. 487; 12 La. 124; C. C. 2489 ; 5 An. 550 ; 3 An. 381; 2 La. 69; C. C. 2421; 17 La. 281; 6 La. 452 ; C. C. 1140.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Oourt be amended as follows, to wit: that that part of the judgment which decrees that plaintiff shall recover judgment against the defendant Bourlce, individually, for $2,211 89, be avoided and reversed ; and that there be judgment in Bourlce’s favor against the individual demand against him, and that the judgment so amended be affirmed, and that plaintiff pay the costs of appeal.

Mereick, C. J.

I concur in this case on the ground that the rule of damages was the market value of the bonds when sold by the administrator, in February, 1856. It does not appear that their market value at that time exceeded the price received by the administrator.


text:
    Samuel Locke v. Mackinson & Murphy.
    When a party takes accounts from his debtor to be credited if collected, otherwise to be returned, with full power to settle them in any manner lie can, taking a note on time for an account, it operates no novation and no payment.
    from the Fourth District Court of New Orleans, Price, J.

      G. A. Breaux, for plaintiff and appellee. M. M. Cohen, for defendants and appellants.
   Merrick, C. J.

Plaintiff sued on an open account and obtained a judgment in the lower court for the sum of four hundred and forty-one dollars and thirty-eight cents, with five'per cent, from September 23d, 1855, against the defendants in solido. From this judgment Murphy has appealed.

“ The grounds of defence are : 1st, payment; 2d, novation; 3d, that by taking the note of J. B. Stiles c6 Co. in settlement of the account due defendants, plaintiff has made the debt his own.”

The proof shows that the accounts of Stiles & Co. were taken conditionally ; if they were paid, they were to be 'credited ; if not, they were to be returned and the Clerk, of plaintiff to whom they were delivered, was authorized to settle the matter in any way he could.

Here was no payment and no novation. Neither did the taking of a note at twenty days after date, under the power granted in this case, make the plaintiff responsible as defendant’s agent, under the authorities in 16 La. 150 ; 12 Rob. 428 and 6 An. 763. When he could not obtain payment of the note, he was, by the agreement, authorized to return it.

The answer praying for damages as for a frivolous appeal, was not filed in time. 7 N. S. 657 ; 14 La. 288, 391.

Judgment affirmed.


author:
Buchanan, J.
     Land, J.,

text:
    Thomas Edwards, Curator, v. R. C. Ballard.
    Although no real action would He in Louisiana for lands situated in Mississippi, yet a suit brought to recover the proceeds of those lands, from a defendant domiciliated in Louisiana, would fall within the jurisdiction of our courts.
    In a question of location, the only authorized evidence is a survey made by proper authority.
    The plea of res judicata is without force, unless the object demanded in the former suit was precisely the same as that demanded in the action pending.
    The prescription of one year does not bar an action en declaration de simulation.

    Good faith is essential to the acquisition of property by the prescriptions of five and ten years.
    PPEAL from the District Court of the Parish of Madison, Farrar, J.

    XA A. F. Steele, for plaintiff and appellant. Snyder & Sparrow, for defendant.
   Buchanan, J.

This is an action for the recovery of lands and slaves, and their fruits, alleged to belong to the succession of Silas Lillard, administered by plaintiff, and alleged to be in the possession of defendant, by virtue of simulated conveyances from Lillard. The cause was tried by a jury, who found a verdict for defendant. Plaintiff has appealed.

The plaintiff asked for a new trial, on several grounds :

1st. That the court had erred in ordering certain portions of plaintiff’s petition to be stricken out, and in refusing to permit testimony to go to the jury in relation thereto.

The petitioner alleges that Silas Lillard, deceased, of whose vacant estate plaintiff is curator, made two simulated sales of movable and immovable effects, to the defendant, Ballard, for the purpose of defrauding Lillard’s creditors, he, Lil-lard, being then insolvent; that one of those simulated sales was made at Natchez, Mississippi, on the 18th February, 1840, and the other in Concordia parish, Louisiana, on the 28th April, 1840. Various allegations are made of facts tending to show the simulation alleged ; and the petition concludes by a prayer for judgment in favor of plaintiff against defendant, for the value of the property conveyed (by the two sales alleged to be simulated) by Lillard to defendant, and which has been alienated by defendant; and also for the hire of slaves and profits of lands so conveyed, which are now in defendant’s possession; and for the present value of the slaves of Silas Lillard now in defendant’s possession, and for general relief.

The portions of this petition which the District Court, on defendant’s motion, ordered to be stricken out, were those relating to the simulated sale of property in Natchez, of the 18th of February, 1840, and to a quit claim conveyance of said property, by defendant, to Lillard’s widow.

The grounds of the motion to strike out were, that the allegations of the petition in question had no connexion with the prayers of the petition, nor is any thing asked of defendant, based or depending in any way upon said allegations ; that neither the property mentioned therein, nor its value, is demanded, nor could said property be demanded of defendant in this action.

The plaintiff, on the trial of the cause, after the order to strike out, offered evidence in support of the allegations in question, which being rejected by the court, a bill of exceptions was reserved.

The order to strike out the allegations of the petition, appears to us clearly erroneous. The allegations have a direct bearing upon the prayer of the petition. The defendant is a resident of Madison parish, in this State, in which parish this suit was brought, and the defendant personally cited. And granting- that no real action would lie in Louisiana for lands situated in Mississippi, we do not find the plaintiff’s demand to be of that nature.

Instead of the petition claiming property situated in Mississippi, it seems to claim at the hands of plaintiff, the proceeds of property in Mississippi, which has been disposed of by defendant, and which he had acquired by the conveyance of the 18th of February, 1840. As to the place when that conveyance was made, we do not suppose, nor do we understand the counsel of defendant as maintaining, that this would affect the jurisdiction of our courts.

Another bill of exception was taken by plaintiff to the admission of the deposition of II. 0. McEnery. • The objection made to this testimony and overruled by the court, was, that the statements of this witness could only be legally proved by a survey and map of township No. 7, of range 7 east.

Wo think this objection should have been sustained. The witness was offered to sustain the allegation of defendant’s answer, that the largest and most valuable portion of the land sold by Lillard to the defendant, on the 28th of April, 1840, was included within the limits of the Curry & Garland, or Bringier grant. His testimony was, that being Register of the land office at Monroe, in October, 1843, when public lands, including the township in question, were offered for sale under a proclamation of the President of the United States, the witness had been instructed by the Commissioner of the General Land Office, to withhold that township from sale, as being included in the Bringier claim. This appears to us a question of location, of which the only authentic evidence was a survey made by proper authority.

The defendant has pleaded the exceptions of res judicata, and of prescription in bar of this action.

The plea of res judicata is based upon a suit instituted by plaintiff against defendant, about two years prior to the institution of the present suit, and the verdict of a jury rendered in said suit about three months before the institution of this suit.

The object demanded in that suit, was not the same as that demanded in the present. The plea of res judicata cannot, therefore, be sustained. Civil Code, Art. 2265.

The prescription pleaded is that of one, of five, and of ten years.

The prescription of one year, does not bar this action, which is the action en declaration cle simulation Cammack v. Watson, 1 An. 132 ; Erwin v. Bank of Kentucky, 5 An. 4 ; see also 8 An. 453 ; 10 An. 20 ; 11 An. 265.

The prescriptions of ten and five years, pleaded by defendant, are those by which the property of lands and slaves is acquired by the possessor, who holds by a just title.

Good faith is an essential to the acquisition of property by this prescription. C. 0. 3445. But bad faith is expressly charged in the petition. C. C. Arts. 3414, 3415.

The counsel for defendant refers us to the provision of the Code, Art. 3447, that good faith is always presumed in matters oE prescription. But the same Article permits bad faith to be alleged and proved against the party in possession.

It is, therefore, adjudged and decreed, that the verdict and judgment < f the court below, be set aside and reversed ; that this cause be remanded for a new trial according to law, and to the principles enounced in this decision; and that defendant and appellee pay costs of appeal.

Land, J.,

dissenting. Separate actions may be cumulated in the same demand or suit, unless one of them precludes, or is contrary to the other. O. P. 148, 149.

It has been held that an action of nullity may be cumulated with a petitory action.

Such is this suit; the plaintiff has cumulated an action of nullity with a peti-tory action. He sues to annul a sale of land and slaves, on the grounds of fraud and simulation, and to recover the property conveyed.

Re cannot succeed in the petitory action, unless he also succeeds in the action of nullity.

Prescription has been pleaded to both actions, and if the plea is good, it disposes of the whole case.

The act of sale was executed, and the defendant was in possession of the property conveyed, more than ten years before the commencement of this suit, and has remained in possession ever since.

The revocatory action is prescribed by one year, to be computed from the time the creditor has obtained judgment against his debtor. C. C. 1980.

The action of nullity or rescission of contracts, testaments, or other acts, is prescribed by five years. O. O. 350V.

All personal actions are prescribed by ten mars, unless prescribed by a shorter period. O. C. 3508.

The action to annul the sale in this cause, is one of the three mentioned, i. e. a revocatory action, an action of nullity, or a personal action.

In whatever light it may be viewed, it is prescribed by one, five or ten years.

As the plea of prescription bars the action of nullity, and as the plaintiff cannot succeed in the petitory action cumulated with it, without annulling the sale ; in other words, without succeeding m both demands, the judgment should be affirmed.

The defendant cannot be deprived of his defence to a personal action by its cu-mulation with a real one.

Mebkick, C. J., concurred in this opinion.


author: Cole, J. Meerick, C. J., Lastd, J.,

text:
    State of Louisiana v. Meshac Ross.
    The State has the right to appeal, provided it is limited to the class of cases found in the precedent, to-wit: those where the indictment has been quashed before a trial, or held bad upon a demurrer j and where it purports to charge an offence punishable with death or imprisonment at hard labor.
    Prosecutions must be by indictment or information ; and the State has the right to choose either mode, but cannot prosecute by both at the same time.
    After prosecuting under an indictment which has been ignored, the State is not barred, in new proceedings, from selecting indictment or information, as provided by the Constitution.
    from the Tenth District Court, Parish of Carroll, Farrar, J.

      James Nolan, District Attorney, and E. Warren Mo'ise, Attorney General, for State. Short & Parham, and Jones <& Dougherty, for defendant and appellee.
   Cole, J.

The 1st of October, 1858, tho Grand Jury of the Parish of Carroll, returned into court ignored, a bill of indictment, which charged the defendant with manslaughter.

The same day, after this action of the grand jury, 'the District Attorney flled an information, charging the defendant with manslaughter.

Tho court ordered the information to be spread upon the minutes, and a warrant of arrest to issue.

The following motion to quash the information was then filed by the counsel of the accused:

“ And now, on this, the 6th day of October, 1858, comes the said Meshac Ross, who is under arrest by virtue of an information by the District Attorney, on behalf of tho State, on a supposed charge of manslaughter, and says that this honorable court ought not to have, or maintain any action or jurisdiction on said information, because the said District Attorney, on behalf of the State, at the present term of the court preferred the same charge before the grand jury, who were empanelled and sworn to inquire in and for the body of the said parish by way of indictment, who informed this court by the return thereon, that tho said indictment was not found, which action on the part of the attorney for the State and the said grand jury, precludes the District Attorney from filing an information for the same supposed offence. 'Wherefore, ho asks the judgment of this honorable court on said information, and that the same may be quashed, and the accused may be discharged without any further plea on his behalf.”

To this motion the District Attorney filed the following demurrer :

“ And now comes the District Attorney, who prosecutes in behalf of the State of Louisiana, and says, by reason of anything alleged in defendant’s motion, the said State is not precluded from filing said information, and holding said party to answer thereto. Wherefore, the court is asked, whether by reason of the action of the grand jury, as set forth in defendants plea, the State be precluded from proceeding further on said information.”

The District Judge sustained the motion of the accused, and ordered the information to be quashed.

It thus appears that the information was quashed for the reasons given in the motion of the accused, after the court had ordered the information to be filed.

And it was not quashed because the District Judge had not consented to have the information filed.

The decision of this cause cannot then depend upon any supposed want of consent on the part of the District Judge to the filing of the information.

After the information was quashed, upon motion of the District Attorney, in open court, an appeal was granted to the State.

The defendant has moved to dismiss the appeal upon this among other grounds, that there is no law authorising the State to prosecute an appeal upon an indictment or information.

Art. 62 of the Constitution of 1852, vests this court with jurisdiction over ‘‘ all criminal cases on questions of law alone, whenever the offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding three hundred dollars is actually imposed.”

Under the Constitution of 1812, the Supreme Court of this State had no jurisdiction in criminal matters.

The Legislature of 1843 created a Court of Errors and Appeals in criminal matters, with “jurisdiction of all questions of law arising in the progress of any prosecution for violation of any penal law of the State, where the punishment may be death or imprisonment at hard labor.” Sess. Acts 1843, p. 69.

The Court of Errors in the case of the State v. Jones, hold that the State was authorised to appeal from a judgment quashing an indictment. 8 Rob. 575.

The Constitution of 1845, vested the Supreme Court with jurisdiction in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed.”

The only difference between this Article and Article 62, of the Constitution of 1852, is that in the latter the appeal exists, whenever the offense charged is punishable with death or imprisonment at hard labor, whilst in the former, it lies wherever the punishment of death or hard labor may be inflicted.

Under the Constitution of 1845, our predecessors exercised jurisdiction over an appeal by the State from a judgment quashing an indictment. State v. Cheevers. 7 An. 40.

Under the Constitution of 1852, this court has entertained jurisdiction of appeals by the State from judgments quashing indictments. State v. Hendry, 10 An. 207. State v. Ellis, 12 An. 391.

In none of these cases does the question of the right of the State to appeal appear to have been raised, except in the State v. Jones, tried before the Court of Errors, and in the Slate v. Ellis, decided by this court under the Constitution of 1852.

If it had not been the intention of the framers of the Constitution of 1852, to have granted in certain cases to the State the right of appeal, they would have worded differently Article 62, for they knew that appeals by the State had been sustained by the Court of Errors under the Act of 1843, and by the Supreme Court under the Constitution of 1845. Instead of this, however, they construe this Article, which vests this court with jurisdiction in criminal matters, to express almost identically the same idea, as the corresponding Articles in the Act of 1843, and Constitution of 1845, except that in the Act of 1843, there was no appeal in the case where the punishment was fine alone.

It is true, it is a recognised principle of the common law, that no person shall be twice put in jeopardy of life or limb for the same offence. This principle is also adopted in the Constitution of the United States, and governs offences against the United States. Amendment to Constitution United States, Art. 5.

An accused has not, however, been put in jeopardy of life or limb, when he has not even been tried before a jury, but when the indictment or information has been quashed before his case has been submitted to the jury.

It has been objected that the State cannot appeal from the decisions,of its own courts. There does not appear to be any reasou why the State should not be entitled, as a private individual, to an appeal from one of her inferior courts to a superior tribunal.

We concur with the opinion expressed by this court, in the State v. Ellis, that there is no objection to the right of the State to appeal, “ provided it is limited to the class of cases found in the precedents, to-wit: those where the indictment has been quashed before a trial, or held bad upon a demurrer, and where it pur•ports to charge an offence punishable with death or imprisonment at hard labor.”

It is objected that the Legislature have not provided a mode of prosecuting an appeal on the part of the State from judgments of the inferior courts in criminal matters. This court cannot, however, be divested of jurisdiction by this Legislative omission. If it could, then it might also he deprived of its jurisdiction in civil cases, by the neglect of the Legislature to direct the manner of appeal in civil affairs. Suitors would thus loso a constitutional privilege.

The conclusion would be different, if this Article had ordained that the appeal should be taken in a mode to be provided by the Legislature, for then the Article would not have conferred the full right of appeal until the Legislature had acted and provided the manner of appeal. The motion to dismiss the appeal must therefore be overruled. Upon the merits, the action of the District Court in quashing the information has been assigned by the District Attorney in this court, as error.

The material question is, whether the District Attorney, at the same term of court, and on the same day that the grand jury had ignored the indictment, could file the information, after this action of the grand jury. Art. 103, of the Constitution of 1852, provides, that “ prosecutions shall be by indictment or information.”

The State can select either mode, but caunot prosecute by both at the same time.

After, however, it has prosecuted by indictment, and the grand jury not being satisfied by sufficient evidence, or for other causes, have not found a true bill against the accused, it is the same as if the matter had never been before a grand jury, and' the District Attorney, in commencing new proceedings, has the right to select indictment or information, as provided by Art. 103.

As there can be no doubt that the District Attorney could thus prosecute the accused at the nest term of the court, we can see no reason why he should not be permitted to do so at the same term that the grand jury have ignored the bill, if he fears that the crime would be prescribed before the next term of court, or for other good reasons.

It is, therefore, ordered, adjudged and decreed, that the order of the District Court, quashing the information be set aside, that the information be restored to its full force on the records of said court, and that the prosecution under the information be allowed to be proceeded with, and that this cause be remanded to the lower court for further proceedings according to law, and that the costs of this appeal be paid by appellee, and the costs of the lower court abide the final decision of the prosecution.

Meerick, C. J.,

dissenting. The District Attorney cannot file an information as a matter of fight. It must be filed with the consent of the court first obtained.

It was, in my opinion, within the discretion of the District Court to give such consent even at the same term at which the grand jury had “ignored” an indictment for the same offence. But then, the court might have required some showing before it gave the consent, and in the absence thereof, it might have refused.' If the information were improvidently filed, it might order the filing to be erased and the previous order rescinded. I see nothing in this case, which shows an erroneous exercise of the discretion vested in the District Judge.

Had the information been accompanied with affidavits, it might have presented a different case.

I think the judgment of the District Court ought to remain undisturbed.

Lastd, J.,

also dissenting. The District Attorney preferred to the Grand Jury, of the Parish of Carroll, a bill of indictment, charging the defendant with the crime of manslaughter.

After hearing the evidence, they returned the bill into court with this endovse-men! upon it, “ bill not found,” signed, T. M. Tucker, foreman of the Grand Jury.

On the same day, the 1st of October, 1858, the District Attorney presented to the court an information against the defendant for the same crime charged in the bill of indictment, which was filed, and ordered to be entered on the minutes, and which afterwards was quashed on the motion of defendant, and the State appealed.

This case, therefore, conies before us without either an indictment or information against the defendant, and his counsel has filed a motion to dismiss the appeal for the want of jurisdiction in this court.

Prosecutions can only bo carried on by indictment or information. There can be no prosecution by indictment without the finding of a grand jury. There can bo no prosecution by information without the consent of the court first obtained. Acts of 1855, sec. 1, p. 151.

In this case the grand jury refused to find a bill, and the court refused its consent to a prosecution by information after hearing the parties.

Whether the party charged, should be put upon his trial either by indictment or information, is a question necessarily involving the consideration of facts, of which, this court has no appellate jurisdiction.

No appeal lies from the refusal of a'grand jury to find a bill upon the evidence before them. Nor will an appeal lie from the refusal of a District Judge to give his consent to a prosecution by information.

The judgment quashing the information, is proof conclusive, that the filing was only pro forma, and was not preceded by the consent of the court, to a prosecution in that form, — but that the Judge withheld his consent until the defendant could be heard, and then refused it.

This court is, therefore, without jurisdiction of the case, in my opinion.


author: Cole, J.

text:
    Heirs of Wm. Wilson v. A. H. Smith—B. Fontenelle v. the same.
    An ex parte decree ordering property to bo inventoried is only prima facie evidence of title in tlie decedent.
    The appointment of a curator to tlie estate of an absentee is authorized by Articles 50, 52 and 53 C. C.
    from the District Court of the Parish of Plaquemines, Rousseau, J.

      Filleul, Coxe & Beaux and Collins, for plaintiffs and appellants. Penrose, for defendants.
   Cole, J.

In 1809, a sale was made of a tract of land in the Parish of Pla-quemines, to T. B. Robertson and William Wilson, who are described in the deed as residents of New Orleans. Wilson did not sign the act of sale. Isaac T. Preston purchased the undivided moiety of Robertson, and sold it in 1847 to PI. L. Smith, who took possession of the property, then in a state of waste, aud made, at his own expense, many improvements thereupon. During this time nothing was known of Wilson.

In 1853, II. L. Smith instituted a suit against Wilson, and obtained an attachment upon affidavit of his belief that Wilson resided permanently out of the State of Louisiana; and claimed a large amount of money against him as owner of the undivided moiety of the said land, for the expense of the improvements aforesaid, and the enhanced value thereby of the land.

The suit was dismissed by the District Judge, and the judgment was affirmed by this court. See Smith v. Wilson, 10 An., 257.

In 1826, one Catherine Wilson presented a petition to the Court of Probates, for the Parish of Orleans, in which she represented herself as widow, and lately the wife of William Wilson, deceased, of the Parish of Orleans, and averred that the only property to which he had a claim in his lifetime, was situated in the town of Ayre, Scotland, being an unliquidated claim upon the succession of an uncle, named Wilson, late of the said town. She prayed to be appointed tutrix of her minor child, Mary Ann Wilson, the issue of her marriage with Wilson, and his only heir. She was appointed.

In 1856, Evelina German, widow of George Hearsey, tutrix, and other persons presented a petition to the Second District Court of New Orleans, in which they represented that the minor child, Mary Ann Wilson, died previously to her mother, and that the latter inherited her succession, and became through her daughter the heir of William Wilson, her husband; that they are the next of kin to Catherine Hearsey, the widow of said Wilson, who is deceased; that Wilson left certain property in the Parish of Plaquemines. They prayed for an inventory of the property of William Wilson, deceased, and to be recognised as his heirs.

The inventory was ordered, and petitioners were recognised as the sole and legitimate heirs of William Wilson; the decree also ordered them to be put in possession of his estate.

The only evidence offered, appears to have been the affidavit of one Lucinda Abbot.

The inventory, comprising the undivided half of the tract of land sold to Wilson, and no other property, was approved and homologated.

On the 18th of June, 1855, in accordance with petition to that effect, B. Fon-tenelle, was appointed curator of the estate of William Wilson, an absentee, by the Second District Court for the Parish of Plaquemines.

The heirs of William Wilson, and, also, Fontenelle, curator, respectively claiming titles to the undivided half of said land, sued defendant, Mr. Smith, before the said District Court of Plaquemines, for a partition of the land. The two suits were consolidated. The judgment non-suited the heirs of Wilson, and ordered that the curator of the absentee be maintained as such, authorised to proceed with his demand in-partition against Mrs. Smith, and to administer agreeably to law, the portion of said land which in the suit for partition, may be allotted to William Wilson, the purchaser thereof, for any person who may hereafter show a just title thereto. Sess. Acts 1855, p. 1. C. C. Arts. 50 to 57. The heirs of Wilson have appealed.

The decree of the Second District Court of New Orleans, recognised Evelina German and others, as heirs of William Wilson; but it does not necessarily follow that they are the heirs of William Wilson who owned land in Plaquemines.

Before they can carry into effect the decree ordering them to be put into possession of the property of Wilson, so as to claim, as owners, the land, they are obliged to establish, when their right is contested, that this land belonged to the Wilson whom they represent.

The ex parte decree ordering the inventory of this land as their property, is only prima facie evidence of title, and not conclusive when the title of their ancestor is contested.

In this suit, the heirs of Wilson have failed to prove themselves to be the heirs of the Wilson who owned the land in Plaquemines. If they can get satisfactory evidence of their heirship to the Wilson who was the owner of this land, then the judgment cannot defeat their claim.

The judgment as to Fontenelle was correct. Wilson, the absentee, has not been heard from for over ten years, and there are no known heirs to his estate, residing in the State. It will be his duty, under the judgment, to have the property of the absentee sold according to law, and to pay the funds into the State Treasury, as in cases of vacant successions, after the payment, according to law, of the debts of Wilson ; and thus, in the language of the judgmeut, the portion of the land coming to Wilson, will be administered for any person who may hereafter show a just title thereto, and the heirs of Wilson can claim the funds from the State, if they hereafter prove themselves to be the heirs of Wilson who owned the land.

It is objected by the appellants, that Fontenelle obtained letters of curatorship to the estate of William Wilson, and is commissioned as curator of the absentee. There is nothing illegal in this form of appointment. The 50th Art. of the Civil Code, authorises the appointment of a person “ to administer the estate” of the absentee. O. C. Arts. 52, 53.

Appellants also aver that William Wilson is not an absentee, and there is no proof of his existence.

The act of sale to Wilson, although it is not signed by him, raises the presumption of his existence at the epoch of its execution.

Robert Johnson, testifies that he has resided in the Parish of Plaquemines since 1824, that he knew a person residing in the parish by the Dame of William Wilson, from 1824 to 1832. This Wilson resided on the land now in contestation. In 1832, Wilson told him he was going to Texas, and left the place.

It is established, that he once existed, and there is no proof of his decease, and Art. 50 of the Civil Code provides, that when a person possessed of either movable or immovable property within the State, shall be absent, or shall reside out of the State, without having appointed somebody to take care of his estate, a curator shall be appointed by the Judge of the place where the property is situated, to administer the same.

Judgment affirmed, with costs.

Voorhies, J., absent.


text:
    J. P. Barrière v. A. A. Peychaud.
    Where a party permits a broker to act as principal, in effecting a compromise with his debtor, on a promissory note, and is notiiied of the broker’s act, without repudiating his authority at once, he is bound by the compromise entered into between the debtor and broker.
    The agent is a competent witness to provo acts done within the scope of his authority; his liability for damages for falsely representing himself as agent, is an objection to his credibility.
    APPEAL from the Fifth District Court of Now Orleans, Eggleston, J.

      J. Magne, for plaintiff and appellant. G. LeGardeur, for defendant and appellee.
   Cole, J.

Plaintiff institutes this suit, as the holder of a promissory note for •153500, subscribed by A. A. Peychaud, to the order of and endorsed by P. A. HSbrard, dated 14th July, 1856, and payable six months after date, duly protested for non-payment. He prays for judgment against Peychaud, the maker.

The answer avers, that defendant, finding himself, in consequence of the failure of HSbrard, in which he was deeply involved, unable to pay his just debts, called upon all the parties who held notes, drawn and endorsed by himself aud HSbrard, submitted to them a statement of his affairs, and offered to surrender to them at once all the property he possessed, or to pay them thirty per cent, on the whole amount due by him, as drawer or endorser aforesaid, in notes at one, two and three years, bearing six per cent, interest, and secured by the endorsement of Pierre Deverges for one-third, of Claude Forstall for another third, and of Louis Deloche for the remaining third.

That the parties refused the proposed surrender, and accepted the thirty per cent, in full payment and satisfaction of their claims against respondent.

There was judgment for defendant, and plaintiff has appealed.

The principal question is, whether J. M. D. Gauthier was authorized to act as agent of plaintiff in accepting the thirty per cent.

The note sued upon had been purchased by Gauthier, who is a broker, for plaintiff, and as the latter did not wish his name to be known in the transaction, he requested Gauthier to represent him in the matter of the insolvency of HSbrard & Peychaud, and he told Gauthier that everything he might do would be well ; and that he might do as he pleased, just as if the note was his.”

The evidence of Gauthier fully establishes, that he was empowered to agree to the compromise. The notes which were to be substituted for the original one have been tendered to plaintiff, but he has refused to take them. Defendant has deposited the notes in bank for the benefit of plaintiff.

The conduct of plaintiff creates the impression, that he was willing to allow Gauthier to represent him until the other creditors had consented to the compromise, and then, that he intended to deny the agency of Gauthier, and seek to collect the whole amount of his debt.

If plaintiff can succeed, it would certainly work a great injustice to the creditors, who were parties to the compromise, and also to the endorsers of Peychaud. For the former consented to the release, without doubt, upon the supposition that all who held notes drawn and endorsed by himself and HSbrard had agreed to the compromise, and that the property and future exertions of Peychaud would be devoted to the payment of thirty per cent, only upon those debts; and the endorsers, Deverges, Forstall and Deloche, doubtless, were influenced by the idea, that the property and labors of Peychaud would suffice to guaranty them from loss, by being responsible for thirty per cent., although they might not be, if any particular creditor should be paid in full.

Gauthier is a competent witness, to prove acts done within the scope of his agency. The objection, on the ground of his liability to actions for damages and the costs of this suit, if he falsely represented himself as agent, goes simply to his credibility. 1 Gtreenleaf on Evidence, $ 416 ; Phillips, vol. 1, p. 52 ; 1 An. 399; 4 An. 409 ; ibid, 540.

Independently of the testimony of Gauthier, there is also corroborating evidence. On the 19th January, 1857, two days after the note sued upon had been protested, the plaintiff addressed a letter to the defendant, in which he stated that he was the holder of the note, and if defendant had any arrangement to propose by the 24th inst., which would be satisfactory, he would accept it; if not, that he would be obliged to resort to legal measures to obtain payment of the note.

To this letter, in which plaintiff asserts his title to the note, and menaces with a suit after the expiration of five days, the defendant answers, upon the 19th January, the same day it was received, as follows :

“ Monsieur:

En réponse á votre lettre de ce jour, je me hate de vous dire que l’arrangement que j’ai fait, il y a quelque temps, avec mes créanciers, embrasse le billet dont parle votre lettre, et qui se trouvait en la possession de Mr. J. M. B. Gauthier; ce der-nier a, comme tons les autres créanciers, accepté les propositions que je lui ai faites, et dont le réglement doit se faire incessamment. Veuillez, done, voir Mr. Gauthier a ce sujet.”

This letter announced to plaintiff, that Gauthier had acted as owner of the note, and entered into an arrangement in relation to it. If Gauthier were not so authorized, it was his duty to have repudiated the agreement as soon as he was notified of it. He did not do so; he is, therefore, presumed to have ratified it, and is bound by it.

The evidence of Gauthier establishes that he entered into the compromise.

There is also an act of compromise in writing, in which certain creditors agreed to take thirty per cent, in notes, signed by Gauthier and other creditors.

The character of the creditors who consented to the compromise and passed acts of release, shows that this compromise was advantageous for the creditors. There are releases in the record of the original debts for notes given, according to the compromise, by the Mechanics’ and Traders’ Bank, the Branch of the Louisiana State Bank, the Louisiana State Bank, the Bank of Louisiana, and A. Car-riére.

Gauthier did not, then, act adversely to the interests of his principal, but for his advantage.

The agency of Gauthier is then proved by his parol testimony, and by the conduct of plaintiff in relation to the answer sent by defendant to the letter of plaintiff.

There is also the compromise in writing, signed by Gauthier.

Plaintiff, however, contends that parol testimony ought not to have been allowed to show in what capacity Gauthier signed the act of compromise.

It was properly admitted ; the object of the testimony was not to vary or contradict the terms of the agreement. The agreement purported to be signed by .Gauthier ; the parol evidence, which showed that he signed it as agent of plaintiff, did not vary or contradict the signature of Gauthier. It was simply explanatory of the capacity in which he signed it.

The mere signature to an act of compromise does not prove that the party signed as principal; he may have signed as agent, and he ought to be permitted to prove it, except in such particular cases as may be prohibited by law.

The objection, that the agreement was a voluntary respite, and as such, required the concurrence of all the creditors, is without force in the present case; for this agreement was merely a compromise between a debtor and some of his creditors, with which the respite laws of Louisiana have nothing to do.

Judgment affirmed, with costs.


text:
    Low & Whitney v. Proctor & Thomas.
    The record not disclosing any interest in the garnishee, in the result of the suit between plaintiils and defendants, he is considered a mere stake-holder, and not entitled to demand service of the interrogatories taken out by plaintiils.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    xi- Mott & Fraser, for plaintiffs. V. F. & J. B. Cotton, for defendants and appellants.
   Land, J.

This suit was commenced by attachment, for the recovery of $619 38, and James Turner was made a party garnishee, who, in answer to the interrogatories propounded to him, says : “ In the months of February and March, I received for, and on account of Proctor & Richardson, of Rockport, Indiana, sixteen hogsheads of tobacco, all of which I sold on the 27th day of February, 1858, for the sum of $1488 92. Five hogsheads I also still hold for Proctor <& Richardson, and are now worth about $550. I do not know whether the Proctor, of the firm of Proctor & Thomas, of TelringtoD, Kentucky, is the same man who is of the firm of Proctor é Richardson, of Rockport, Indiana, or entirely different persons.”

The answer of the garnishee raised a question of identity of person between plaintiffs and defendants. The evidence satisfied the District Judge, that Proctor, the partner of Thomas, was also the partner of Richardson, and he rendered judgment against him for the amount claimed in the petition, with privilege on the property attached.

The plaintiffs afterwards took a rule on the garnishee, to show cause why he should not pay the amount of the judgment, interest and costs against the defendants. The rule was made absolute, and the garnishee has appealed.

The plaintiffs caused a commission to issue for the purpose of taking testimony, to prove the identity of- the defendant, and the existence of the debt; and the garnishee contends that the testimony was improperly received, because the interrogatories and notice to cross the same, were served only on the curator ad hoc, appointed to represent the defendant, and not on himself.

The counsel for the garnishee, has furnished us with no authority in support of the position on which he relies for a reversal of the judgment. The record does not disclose any interest in the garnishee, in the result of the suit between plaintiffs and defendants, and he was, therefore, a mere stake-holder, and not entitled to demand service of the interrogatories taken out by the plaintiffs.

When the rule was taken on the garnishee to show cause why he should not be condemned to pay the judgment rendered against the defendants, he had an opportunity of raising the question of identity, contradictorially without the plaintiffs, which, however, he declined to do.

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


author: Cole, J. Cole, J.

text:
    Rose & McCarthy v. Whaley & Edwards.
    In an attachment suit, the garnishee has the right, even after the interrogatories have been taken pro confcsso, to ask of the court, at any time before judgment, that the order taking the interrogatories for confessed may be set aside, and that he may bo allowed to answer. And it is within the sound discretion of the court, and also its duty, to grant the request, if the ends of justice would be thereby attained.
    ■Where the garnishees answer that they have no property, the court is without jurisdiction.
    from the Third District Court of New Orleans, Duvignaud, J. PPEAL from the Third District Court of New Orleans, Duvisnaud, J.

      Hyams, Labatt & Jonas, for plaintiffs and appellants. A. Viavant, curator Hyams, Labatt & Jonas, for plaintiffs and appellants. A. Viavant, curator ad hoc. Clarice & Bayne, for garnishees. ad hoc. Clarke & Bayne, for garnishees.
   Cole, J. Cole, J.

Plaintiff brought suit by attachment against Whaley & Edwards, Plaintiff brought suit by attachment against Whales/ & Edwards, as non-residents, and garnisheed Wright, Allen db Co., Coleman, Button <& Withers, G. S. Hawkins, and Oalcey <& Hawkins. as non-residents, and garnisheed Wright, Allen S Co., Coleman, Button & Withers, G. S. Hawkins, and Oalceu <& Hawkins.

The two first failed to answer within ten days, and an ex parte order was entered, talcing the interrogatories for confessed.

No judgment was entered against the garnishees for any sum of money.

After this order had been entered against Wright, Allen <& Co., and before any service had been made, even upon the curator ad hoc of the defendants, they appeared and asked that plaintiff show cause why the order taking the interrogatories for confessed avainst them should not. he set aside.

After hearing' of the application, the court rescinded the order, and allowed the garnishees to answer.

A similar order was made in behalf of Coleman, Button & Withers, and their answers were also filed. The answers of both of these parties showed that they had in hand at the time of the garnishment, or at the time of their answers, no property of the defendants.

The case was subsequently called and fixed for trial, and tried on the 13th December, 1858, as between the plaintiff and the curator ad hoc, the garnishees not being then before the court. The District Judge, being of opinion that he was without iurisdiction. dismissed the plaintiffs’ petition.

The only question in the case is, whether the court erred in permitting the garnishees to answer, after the interrogatories to them had been taken for con--fnccorl

Tli ft ftmivf. flirl nnf. app

The object of garnisheeing is to know whether a party has funds in his hands belonging to another, against whom plaintiff cither has or expects to get judgment ; so that, after ho has obtained judgment, he may also obtain judgment against the garnishee, for the amount of his judgment against his debtor, or for as much as there may be funds in the hands of the garnishee, due or belonging to •f lift rlfthf.np

Until the creditor has judgment against his debtor, he cannot' have judgment against the garnishee, for the latter is not indebted to the creditor, but to his /Iftllf.ilP

The mere order of court taking the interrogatories for confessed, before a judgment has been obtained by the creditor, cannot, then, absolutely benefit him, and is not an order which he can in all events enforce against the garnishee, for if the creditor does not succeed in getting a judgment against his debtor, the order taking the interrogatories for confessed will not profit him.

As then the creditor cannot get judgment against the garnishee, until he has obtained it against his debtor, the object of the law in forcing him to answer within a certain time, will be effected if he answers any time before judgment be rendered against the debtor.

The garnishee has then the right to ask of the court, at any time before judgment, that the order taking his interrogatories for confessed may be set aside, and that he may be allowed to answer. And it is within the sound discretion of the court, and also its duty, to grant the request, if the ends of justice would be thereby attained.

It is objected, unless a party be entitled to show, by the silence of the garnishees, that they tacitly admit having property of the defendant in their hands, the plaintiff cannot proceed to put the cause at issue, because the defendant is only in court by the attachment of his property.

In answer to this we would remark, that when a party is proceeding against an absentee, the silence of the garnishees to answer within the specified time, and the order taking the interrogatories for confessed, are sufficient to raise the presumption that they have funds in their hands, and thus to maintain the jurisdiction of the court, until they have answered, denying the possession of any funds; and even after this, if their answers can be proved to be untrue.

As the garnishees in this case answered that they had no funds or property, and as their answers were not contradicted, the District court was without jurisdiction. Prosens v. Mason, 12 L., p. 16 ; Elder v. Rogers, 11 An. 606, 10 M. 630 ; Caldwell v. Townsend, 5 M., N. S., p. 308.

Judgment affirmed, with costs of appeal.