author: Voordies, J. Spofford, J.

text:
    W. H. Avery v. The Police Jury of Iberville et al.
    There is nothing repugnant to the Constitution in the provisions of the Acts of the Legislature of 1813 and 1814, confering certain powers on the Police Juries in regard to opening natural drains, &c.
    The courts will presume that the power conferred on the Police Jury has been properly and judiciously executed by them, and it is for the party complaining- to show that the making or opening of works was unnecessary or detrimental to such party.
    The court did not err in excluding the opinion of the Civil Engineer as to whether the right fork of a bayou was a natural outlet, or caused by a crevasse, or some sudden eruptionof nature. Whether it was caused by a crevasse or sonic sudden eruption of naturo, it was not artificial.
    from the District Court of Iberville, Robertson, J.

      Geo. 8. Lacey, for plaintiff and appellant.

      Thomas Gibbs Morgan- and A. Talbott, for defendant.
   Voordies, J.

This is a controversy in relation to the right of drainage, in which an injunction was obtained by the plaintiff. He alleges that an ordinance was passed by the Police Jury of the parish of Iberville, on the 23d of July, 1853, to establish a common drain through the point on the Mississippi, opposite the town of Plaquemine, called “ Manchac Point” ; that Thomas Towles, Thomas 8. Billings and Thomas G. Brown, the other defendants, were appointed commissioners to carry the same into effect, with power to remove obstructions to the flow of waters in Bayou Paul or any of its branches, and to open all ancient natural drains; that said bayou is the natural drain of his plantation .and the lands lying above it, hut not of those of the extreme point, opposite the town of Plaquemine, unless accomplished by 'artificial works which would he greatly detrimental to the lands below; that in consequence of canals and drains having been made on lands above his estate, he caused one of the forks of Bayou Paul to he closed, as he had- a right to do, and- dug in lieu thereof a large canal to carry off the waters ; and- that he was ordered by said commissioners to open said fork, which he refused to-do. Heavers that said ordinance-is illegal, the Police Jury having- transcended the powers delegated to them; that if enforced, it will have the effect to throw rapidly all the waters from “Point Manchac” on his lands, so as to overflow and render the same worthless. He therefore prays, that said commissioners he restrained from exercising any of the powers thus conferred upon them by said ordinance, which may he declared illegal.

The answer avers that Bayou Paul, having its source at “Manchac Point,.”’ opposite the town of Plaquemine, passes over the lands of the various proprietors hack and below, and empties itself into Spanish Lake that if cleared of all obstructions, according to said ordinance, it would, be sufficient to drain all the lands above and below, including the plaintiff’s ; that the plaintiff has illegally closed only one of the forks of said bayou on- his land, so as to interrupt the natural flow of the water, to the great damage of all the proprietors, the drainage of whose lands being thereby prevented. They, therefore, pray that the injunction be dissolved ; that the plaintiff he ordered- to remove all obstructions by him placed in Bayou Paul, especially the dam- erected by him across the right fork of said bajrou.

’l'he court below gave judgment in favor of the defendants, and the plaintiff appealed therefrom.

The Police Juries are empowered, under the legislative Acts of 1813 and 1814, “ to cause to be opened in any town, suburb, or other place divided into town lots, or when a point of land on the Mississippi or other water course shall be divided among several proprietors, such ancient natural drains as have been obstructed by the owners of the adjacent lands-; and to prescribe the mode to be observed in that respect; to cause any water course, which is not navigable, to be filled up, for the purpose of carrying the high ways over the same, provided that no injury be thereby occasioned to the neighboring inhabitants ; and whenever an application made by twelve inhabitants of a town, suburb, or other place divided into house lots, or when a point of land on the Mississippi, or other water course, shall be divided among several proprietors, it shall be found necessary 'to dig one or more draining ditches, the said jury shall have power to ordain that the said ditches be dug at the expense of the owners of the lots, and that the expense be borne by a contribution among the owners, to be levied in such manner as the jury shall describe, sewing to individuals or persons aggrieved, the right of complaining of -the making or opening of such natural or artificial drainings, when unnecessa/ry or hurtful to them?'

In pursuance of the powers thus delegated to the Police Jury, the ordinance in question was passed, of which the following are two of its sections, the only ones which we 'consider necessary to be noticed, viz :

“1st. Be it ordained, That there shall be a cut-off canal or common drain, to conduct the waters from the swamps or head waters of the Bayou Paul in “ Manehac Point,” the said canal to commence at the upper swamp and crossing the lower swamp in a direct line, to terminate in the Bayou Paul at its head, in .the field of Messrs. ffourier and Anger, or in the canal of the same. Said bayou or canal shall then be enlarged to a sufficient capacity to carry off the waters until it reactes the bridge at the cut-off road. Said bridge to be lengthened, and the bayou or canal widened and deepened sufficiently to carry the water. Thence the bayou shall be enlarged by cutting off the points when found necessary, and taking straight cuts when advantageous to do so, on account of the bends in the bayou, so far as the point where the line ditch of J. N, Brown enters the bayou — thence the bayou to be cleared and enlarged until it reaches a point where the bayou is of sufficient capacity to carry off the waters without such cutting or enlargement.
4th. Be it ordained, That said commissioners be and are fully empowered to remove all obstructions which may be found to prevent or retain the flow of the waters on the Bayou Paul or any of its branches, as well as to open all ancient and natural di'ains which may have heretofore existed and which may have been obstructed by dams, fences or other obstacles thrown in and across the same.”

It is contended by the plaintiff that such power could not be delegated by the Legislature to the Police Jury. The power of the legislative department of the government is supreme within its sphere. The only restriction to such power is prescribed by the Constitution. We do not think there is anything in the provisions of the Acts in question, which can be considered repugnant either to the letter or spirit of the Constitution. 11 An. 370.

It is also urged, that the ordinance does not fall within the powers delegated to the Police Jury; that it ordains to be drained not onlji a point, but a portion of a bend on the Mississippi upon the other portion, and thus “ inundate a large portion of the immense estate of the plaintiff, condemning the same to perpetual stirility” ; for which no necessity is shown to exist, as required by the statute. Whether such necessity existed or not, it was a matter which belonged to the jurisdiction of the Police Jury, and we are bound to presume that it was properly and judiciously exercised by them. It was, therefore, for the plaintiff to show that the making- or opening- of the projected works was unnecessary or detrimental to him. This he has failed to show.

The other ground of illegality, that the ordinance expropriated the plaintiff and others without previous adequate indemnity, appears to us to be equally untenable.

Our attention has been drawn to several bills of exceptions in the record:

1. We do not think'the Judge erred in sustaining- the objection to the following question propounded by the plaintiff to several witnesses on the stand, viz: “Would not the removal of the dam, in the prong in Avery’s field, have the effect of causing incalculable injury to yourselves, by the inundation of your plantations, and overflowing of other largo and, valuable plantations lying below Mr. Avery V’

The fact sought to be elicited from the witnesses, was neither pertinent nor material to the issue.

2. Neither was there any error in excluding the opinion of the Civil Engineer as to whether the right fork of the Bayou Paul was a natural outlet, or caused b'y a w'evasse, or some sudden eruption of nature. Conceding it to have been caused by a crevasse, or some sudden erruption of nature, it was certainly not artificial.

3. The testimony of William G. Waller was sought to be excluded by the plaintiff, on the ground, that it tended to contradict'the survey and report made by Oaldwell as an officer of the court, which'was inadmissible, especially as the defendants themselves had sustained said report by his testimony, and on that point had made him their own witness. We think the objection was correctly overruled by the Judge. We have not been referred to any law authorizing the exclusion of such testimony.

On the merits, we think the necessity or expediency of the projected work is clearly shown, the principal object of which was to reclaim a large body of land containing about 5,000 acres. In attaining that end, the question arises, will it prove detrimental to the plaintiff ? If so, it is clear that he is entitled to relief.

Bayou Paul, it appears, has its source in a swamp. It runs eastward a distance of eight miles and twenty chains, and empties itself into the Great Basin,” bordering on Spanish Lake. The lands above are drained in a lake and the swamp in which it has its source, and the waters of both flow into it. The fall from the surface of the water in the lake above to the bottom of the “ Great Basin,” is nearly twelve feet. Oaldwell, one of the surveyors, testifies that if the improvements were made as directed by the ordinance, they would be adequate to the drainage of the lands above, but not of those below James N. Brown and K. Me Gamoalc. The cutting of the canals would, in his opinion, shorten the incline plane of drainage so as to throw suddenly below a larger quantity of water than the bayou could contain and carry off, “ This opinion, ho says, is based on the hypothesis that no improvement will be made on the bayou below the lands of MeGa-roak" Then, it may be inferred from this, that the execution of the work as directed by the ordinance, would avoid such a consequence. A careful examination of the evidence in connection with the map in the case, leads us to the conclusion that the plaintiff has failed to show sufficient grounds to entitle him to the relief which he seeks at our hands.

One of the means indicated by the ordinance for the accomplishment of the Works in question, is, “to open all ancient natural drains which may have heretofore existed and which may have been obstructed by dams,” &e. The right fork of the Bayou Paul, closed by the plaintiff’s dam, is shown to have been “ an ancient natural drain,” more direct in its course to the “ Great Basin,” and equally, if not more, capacious than the other fork. It is no sufficient reason for the plaintiff to urge, that the erection of his dam was to prevent the overflow of his estate in consequence of canals which had been dug- on the superior estates. His recourse was against those who had occasioned such overflow. The doctrine in the case of Kilgore v. Grevemberg, 10 An. 689, and the other cases cited, would then be applicable. But we think it is extremely doubtful whether such an effect would have been produced by the alleged canals. Even if it had, it appears to us that the closing of this drain could not have had the effect to avert such a consequence.

It is, therefore, ordered and decreed, that the judgment of the court below be affirmed, with costs.

SAME CASE ON A RE-HEARING.

Spofford, J.

In refusing the re-hearing prayed for in this case, we remark that it will bo the duty of the Police Jury to provide for the exit of the additional waters proposed to be drained through the right fork of Bayou Paul, in such a manner as not to overflow the lands of the plaintiff.

Their attempt to reclaim the swamp at Point Manchac, must not be allowed to bring the waters thence drained in a flood upon the plaintiff’s lands. They must provide against injurious consequences to the plaintiff from their acts, or they will be liable in damages. The decision in this case cannot affect the right of the plaintiff to any legal remedies for injuries hereafter threatened or done to his property by the act or neglect of the Police Jury or others. If any expropriation of plaintiff’s land becomes necessary, it must of course be effected according to law.

Re-hearing refused.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Succession of William Plunkett—On opposition of Perkins, Campbell & Co. and of W. B. McDaniel.
    Where the heirs have authorized the curator to settle up the affairs of the estate out of court, they llave no reason to invoke the penal statute of 188T against the curator.
    l'he allegation by the curator that there Was another heir in existence besides those whose authority he had, will not render his former acts unlawful, and subject him to the penalty of the sta-
    Where a succession is accepted by the heirs purely and simply, the credits belonging to the succession are ¿pso facto and of full right by operation of law divided among the heirs.
    Compensation takes place between a debtor of the succession and a creditor of one of the heirs, to the extent of the portion of such heir in the debt due to the succession by the individual creditor of such heir, and the heir cannot defeat the compensation by a transfer Of his interest in the succession to a third person.
    A creditor of the succession has the means of preventing the injurious effects of the compensation as between the heirs and the debtor of the succession, by demanding a separation of patrimony, by taking out letters of administration in proper time, or by enforcing the collection of his claim against the administrator or executor already appointed.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    Benjamin, Bradford & Finney, and Eager & Dupuy, for opponents and appellants.

      George L. Bright and TP! Christy, for curator and appellee.
   Merrick, O. J.

Beldams, Campbell & Co., assignees of the interest of Joseph PVanlcett, as heir to one-half of his father’s succession, opposed the item of $1,557 71, alleged in the account of the curator to have been paid by him to II. J2. W. Mill, on account of a debt duo him by said Joseph.

The ground of the opposition is, that the alleged payment was made after notice to the curator of the assignment of Joseph Plunlcett's interest in his father’s succession to the opponents.

Twenty per cent, interest is also claimed under the Statute of 1837.

The heirs (and those deriving rights from them and standing in their shoes) having authorized the curator to settle up the estate out of court, have no reason to invoke the penal statute, the violation of which they have induced.

It is clearly established:

1st. That the heirs, by an act under private signature, regulating the mode of pai'tition of the estate between themselves, withholding certain property from sale and partitioning the slaves, authorized the curator to settle up the claims as soon as practicable, designating, in part, the manner in which he should act by recognizing a certain debt of $1,000 against the estate.

2d. That the heirs verbally authorized the curator, in order to save expense, to take the affairs of the estate out of court and to settle up the same.

3d. That William and Joseph Plunlcett authorized the curator, besides settling up the estate to pay their individual debts.

But it is said, as the curator afterwards denied in his proceedings, that these persons were the heirs, or solo heirs of the deceased, he is estopped now from saying that he administered under their directions as heirs. In our opinion, this is an incorrect application of the doctrine of estoppels ; for the plaintiffs cannot recover, except they are heirs, or have the rights of heirs, and it is much more logical to hold that they themselves are estopped from asserting that they were not heirs when they authorized, the acts of the curator than the contrary. Moreover, in the act referred to, partitioning certain property, the heirs say, that they are all the “ known” heirs of the deceased, and the curator, in his answer, merely alleges that he has discovered that there is another, a fourth heir. By this answer, he does not make his former lawful acts unlawful. We see no reason, therefore, to inflict the penalties of the Act of 1837 upon the curator, for the benefit of parties who, through their authors, are in pari delicto.

In regard to the correctness or incorrectness of the decision of the lower court in allowing compensation to diminish the portion of the Hill debt coming to Joseph Plunkett, wo are of opinion that the lower court did not erí. The indebtedness of Hill, personally, to the estate,- was,- exclusive of interest, $3,323 3G. The one-half of Joseph Plunkett, as allowed him by the agreement of the co-heirs in their partition, was more than sufficient to discharge the debt due by Joseph Plunkett to Hill.

Did such compensation take place ? If it did, the' subsequent settl'emeiit by a curator as the agent of the heirs in conformity to law, cannot operate to the prejudice of the curator ; for the whole theory of this branch of the law rests Upon the tacit regulation of accounts as to debtor and creditor between the parties. 7 Toul. No. 343.

If Joseph Plunkett, therefore, was the creditor of Hill for' one-half of $3,323 36, the $1,557 71 which Hill owed him, was compensated, and could not be collected, for it is evident that Joseph Plunkett's assignee could have no greater right than he himself had. Then Hill could not equitably have been compelled to pay to Joseph the whole debt without deducting the amount due by him to' the former, nor could the latter have deprived Hill of his plea in compensation by a transfer of his interest in the succession, and Perkins, Campbell & Co. do not stand in a more favorable position to the estate, than their vendor. Dees v. Tildon, 2 An. 414.

Now, by the death of William Plunkett, Senior, and by the acceptance of his heirs purely and simply, the credits belonging to his succession were ipso facto, and of full right, by operation of law, divided among his heirs. O. O. 2107 ; 6 Toul. No. 752. The principle of law upon which divisibility of debts reposes is said, by the author just cited, to be as ancient as the twelve tables.

He illustrates the manner in which the division takes place as follows, viz:

No. 753. “ II en resulte que si le créancier et le débiteur ont l’un et l’autre laissé plusieurs héritiers, chacun des héritiers du premier ne pourra demander a chacun des héritiers du second que sa portion dans la dette de celui-ci. Supposons la dette de 8,000 fr. Le créancier et le débiteur meurent laissant, chacun quatre héritiers. La créance de chacun des héritiers du premier, la dette de chacun des héritiers du second est de 2,000 fr.; mais ehacundes eréanciers ne peut demander á chacun des débitieurs, et chacun des débitieiirs ne peut payer á chacun des créanciers, que lo quart de sa dette, c’est-á-dire 500 fr., et non 2,000 fr., car cette dette so divise de plein droit contre les quatre héritiers du créancier primitif.” See also Pothier on Ob., No. 300.

The reciprocal relationship of debtor and creditor existed therefore between Joseph Plunkett and Hill, unless there was something in the relation in which Joseph Plunkett stood towards the succession which prevented the operation of compensation. Wo find nothing of the kind in the "record. On the contra ry, the heirs had accepted the succession purely and simply by authorizing the curator to settle the estate under their power of attorney, and more especially by making a partition of the slaves among themselves. C. C. 982, 1180. They are, therefore, forever precluded from saying they were not heirs; that all legal consequences did not flow from their acceptance of the succession, and that compensation as one of those consequences has not actually taken place. C. O. 2203.

Toullier, in another place says : “ The heir represents the person of the deceased. He is, at the opening of the succession, seized of all of his rights, active or passive, which are then confounded in his person, if he is the only heir, and for his virile share, if there are several.

“ The compensation of that which is due to the intestate, with that which is due by the heir, or to the lieir, takes effect of pleno juro at the instant of the death, the period to which the acceptance of the inheritance always refers.” 7 Toul., No. 380.

This doctrine was sanctioned by the Supreme Court in the case of Martin's Heirs v. Orerton, (1 N. S. 580,) and Buard v. Buard's Heirs. 5 N. S., 135.

We think therefore, that the judgment should not only, not be reversed as against the curator, but that it ought to be amended in his favor, so as to relieve him of the twenty per cent, interest decreed against him.

The creditor of a succession has the means of preventing the injurious effect of the compensation as between the heir and the debtor of the succession by demanding a separation of patrimony, by taking out titles of administration or curatorship in proper time, or by enforcing the collection of his claims against the administrator, curator or executor, already appointed. C. C., 1397, 1403.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of .the lower court be so amended as also to relieve and exonerate the said William Christy, curator, from the payment of twenty per cent, interest upon the sum of $3,169 10, from the 29th day of June, 1856, therein decreed, and that said judgment, so amended, be affirmed, the appellants paying the costs of the appeal.


author: Merrick, C. J. Spofford, J.,.

text:
    Henry Keane, (Hugh Kennedy Ex’r substituted,) v. Goldsmith, Haber & Co.
    A contract with the surety of a creditor to indemnify the surety against the consequences of his suretyship is, in its nature, a contract of personal warranty, recognized by Articles 378 and 379, of the Code of Practice.
    A right of action against one who has come under such obligation, accrues to the surety as soon as he has been condemned by a final judgment to pay the creditor, and it is not necessary that ho should have paid the judgment to entitle him to proceed against one who was thus bound to indemnify him.
    APPEAL from the Fourth District Court of Now Orleans, Meynolds, J.

      H. C. MiU&r and F. II. Claele, for plaintiff) and appellant.

      J. A. Boder, for defendants.
   Merrick, C. J.

This suit is brought by the plaintiff as the transferee of Isaac I-Iart upon the following agreement:

“ Keane vs. Eisiier, — Fifth District Gourt of New Orleans.”
“ Wre hereby agree and bind ourselves to protect Hr. Isaac Han’t as surety for Fisher, in the above entitled suit, and desire that Hr. 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 7, 1853:
(Signed) Goldsmith, Haber & Co.”

It appears by plaintiff’s petition, that judgment was rendered against Han't, as surety for Fisher, on the b'ond by this court, for §2,000 and interest; and that Hart transferred the above obligation against Goldsmith, Haber & Go., to the plaintiff.

The defendants excepted to the plaintiff’s petition on the ground that it disclosed no cause of action against the defendants. This exception was sustained. The defendants urge that Han't, as surety, must first pay the debt to Heame before he can acquire a right of action against them, which he can transfer; that suretyship cannot be extended from one person to another ; and that if the transfer was valid, no action could be maintained against the defendants until notice had been given them, according to Article No. 2613 of the Civil Code.

The defendants are not strictly the sureties O'f a surety,- the fide jussoris éollaudatores, of Article '3007, of the Civil Code. The surety of the surety contracts with the creditor for the security of the latter, and on payment becomes ipso facto subrogated to his, the creditor’s, right, besides having his action of mandate or negotiorum gestorum, or de in rem verso against the debtors, according as his obligation has been entered into with the consent, or without the knowledge, or against the will of such debtor. Here the contract is with the surety, to indfemnify him against the cousequences of his having entered into the obligation of suretyship with the creditor, and the very exception taken by the defendants pre-supposes that the contract does hot, in itfeelf, give the creditor a right of action.

Thfe contract is in its nature; one of personal warranty, i-'ecognized by Articles 378 and 379, of the Code Of Practico. The defendants bound themselves to protect Han't fully against the consequences of his obligation as surety to Keane. Han't, according to plaintiff’s petition, has been fixed as surety for Fisher in the sum of two thousand dollars by the final judgment of a court of the last resort. Now the defendants cannot fully protect Hart without paying the judgment rendered against him, or furnishing him with money to pay the same himself. We discover no good reason why Han't could not transfer his cause of action to the plaintiff if he found it his interest so to do. C. C. 1992, 1994; 9 Ann. 468; Art. 2613, of the Civil Code, is for the protection -of third persons, and the only notice the defendants were entitled to previous to the institution of the suit, was the amicable demand, the want of which they have not pleaded.

The judgment of the lower court must be reversed, and the defendants must have an opportunity of traversing the facts alleged in plaintiff’s petition which have been taken as true on the exception.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, that the defendant’s exception be over-ruled, and that this case'be remanded to the lower court, there to be proceeded in according to> law, the defendants and appellants paying the costs of this appeal.

Spofford, J.,.

concurring. I concur in the opinion that the exception should be over-ruled'.

Keane, it is■ trae, has no greater right than his assignor, Bart, had. But from the peculiar phraseology of the instrument sued on, it will be seen that it is a promise of general indemnity. The promisors, Goldsmith, Haber & Oo., covenanting ter protect the promisee, Han't, fully, for resisting a certain suit, including all costs and incidental expenses.

There was therefore, a breach of the agreement so-soon as the liability of Han't was fixed by a judgment, and Goldsmith, Haber & Oo. failed to take his place and satisfy it, including- costs and expenses. That breach gave Han't a right of action. The right of action was veritable, and therefore assignable. It has been- assigned to Keane, the party who, in equity, ought to have the money. Perhaps if Hart himself, had sued, the court might have been called upon to' see that the funds, when collected, should be applied to the satisfaction of the judgment against Hart, in favor of Keane. The rule generally is, that a party suing upon an indemnity against the payment of money merely, must prove payment, or something- equivalent, before he can maintain his action. But upon a promise of general indemnity, a judgment against the jrromisee is evidence in a suit against the promisor, without proof of payment by the promisee. See State v. Kimmel, 8 Watts, 157; Carman v. Noble, 9 Barr, 366; Smith v. Eubanks, 9 Yerger, 20.


author: Merrick, C. J. Spoefokd, J.,

text:
    Succession of John Gilmore, Arabella Baily v. B. Baily, her Husband, Susan Hubbs, Intervenor.
    A judgment signed before a motion for a new trial is- overruled, cannot be considered as having itseifeGt until the motion- is disposed of.
    When the wife’s paraphernal property was sold and negotiable notes taken for the price, payable to-the husband, on which the husband sued the makers, and obtained judgment against them in his own name for the amount of the notes,* it was held that the legal ownership of the judgment was in the liusband-'-that the original notes were merged in and novated-by the judgment, and that the-judg--

      Í raent might be compensated by any debts equally liquidated due by the husband to the judgment debtor.
    The knowledge on the part of the judgment debtor, that the notes on which the judgment was obtained was the property of the wife, would not prevent the compensation from taking place at-any time while the legal ownership of the judgment remained in the husband.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      Joseph Poor, for appellant's:

      Felix R. Brwnot, for appellees.
   Merrick, C. J.

A motion to dismiss the appeal has been filed in this case.

The judgment was pronounced in June, 1855. Before it became final, the appellants filed a motion for a now trial, which was not disposed of- at that time, but submitted'to the court without argument at the February term,.1856,. and the same day it was overruled.

The appellants then applied for a devolutive appeal, which was allowed them, ■returnable to the present term of the Supreme Court.

The judgment appealed from, purports to have been signed on the 15th day of June, 1855, and the appeal bond was not filed until January, 1857, more than one year from the supposed signature to the judgment, and within the year from the overruling of the motion for a new trial.

It was the duty of the District Judge to have considered the motion for a new trial at the same term at which the judgment was rendered, and either to have overruled or granted, the same. But it was irregular to sign the judgment until the motion for a now trial was determined.

We think the judgment cannot be considered as having its effect, and must be considered as suspended until the motion for a new trial was overruled. The neglect of the judge to perform his duties ought not to prejudice the parties who had a right to be heard on the motion. C. P. 557, 558, 563, 913.

The motion therefore to dismiss the appeal is overruled.

The merits of the case present but a single question which arises out of the following state of facts, viz:

John and Mary Gilmore died leaving five children, minoi’S, and an estate ■consisting of a plantation and slaves, &c. Bernard Baihj was appointed in 1841, tutor to the minors Arabella Gilmore, John A. Gilmore, Fmeline Gilmore, Ann Gilmore ami Susan Gilmore. He appears to have married his ward Arabella. She, with the assistance of her husband, in 1849, sold her interest in the succession of her parents, to John A. and Fmeline Gilmore, her brother and sister, the notes given as the price being made payable to the order ■of her husband. She and her husband appear shortly afterwards to have moved to Illinois, where they now reside. Fmeline Gilmore married FT. O. Finley. Bernard Baily failing in collecting the notes at maturity, instituted a suit on thorn in his own name, and recovered judgment in April, 1853, against Mrs. Finley and John A. Gilmore, in solido, wherein the mortgage upon the property sold was recognized.

In May following, Susan Gilmore, wife of Charles Eubbs, filed her petition against Bernard Baily, to compel him to render his account as tutor.

He filed his account. Mrs. Eubbs, Mrs. Baily and John A. Gilmore, filed opposition to the same. Mrs. Eubbs considering the account to show a balance in her favor as stated, to the amount of §1,305 05, besides filing her opposition claiming a large amount, sued out a writ of attachment, which was levied the second day of January, 1854, by attaching in the hands of John D. Balm', James M. Bmnot, attorneys for Bernard Baily, John A. Gilmore and Andreio G. Finley, all mone3rs, rights, credits or property of any kind, which they had at that time or thereafter might have, belonging to Bernard Badly, tutor, or an amount sufficient to pay said Susan Gilmore, wife of Charles Eubbs, plaintiff, in the sum of §1,305 05, and costs.

The curator ad hoc, appointed to represent Baily, anwered the suit of attachment, alleging that the property attached was not the property of Baily, but belonged to his wife for whom he was merely acting as agent.

Mrs. Arabella Baily intervened in the attachment suit, alleging that her husband had no property in Louisiana, and averring that Mrs. Susan Eubbs and her husband had, notwithstanding, proceeded to attach a judgment obtained in the name of her husband, Bernard Baily, against John A. Gilmore and Fmeline Gilmore and husband, Andrew Finley, standing in tho name of her said husband. She further alleged, that her husband was in embarrassed circumstances, and that she had already instituted a suit against him for a separation of property. She prayed for an injunction to restrain her husband from receiving the amount due on the judgment. This intervention was filed 18th April, 1854. Her suit for a separation of property was commenced April 10, 1854, by the appointment of a curator ad hoe, to represent her husband, she representing her and her husband’s residence to be Peoria, in the State of Illinois. She alleged that the said judgment obtained in tho name of hor husband against Mrs. Finley and John A. Gilmore, to he her separate property;— alleged that she was in danger of losing the same on account of an attachment levied on tho same by hor sister, Susan Hulls, and on account of the pretensions of other persons having claims against her husband, and averred that Andrew O. Finley had enjoined the execution of said judgment as the property of hor said husband. She prays that Hulls and wife, and And/rew G. Finley, be cited as parties, and that the judgment against Mrs. Finley and John A. Gilmore, be decreed to be her property, &c. John A. Gilmore and Fmeline Gilmore intervened, and alleged that they had claims against the said Bernard Baily arising from his account as tutor, but that as they have filed an opposition to the same, they are unable to state the exact amount duo them, but it is more than sufficient to compensate the judgment obtained by Berncvrd Baily against them. On tho opposition to the tutor’s account, judgment was rendered in favor of Mrs. Finley, and John A. Gilmore, for $2,047 27, each.

The Judge of the District Court, in the suit of Mrs. Baily against her husband, considering the judgment in tho name of Bernard Baily as her property, dissolved tho attachment, rejected the claims in compensation, and decreed Mrs. Baily to be the owner of the judgment in suit No. 1103.

John A. Gilmore and Mrs. Finley alone perfected their appeal by giving bond. Mrs. Hulls is not before us. The question presented by tho appellants is, did the judge err in holding that the judgment was the absolute property of the wife, although obtained in the name of the husband? Where tho wife permits her husband to administer her parephernal property, wo see no reason why he should not be considered in relation to her commercial paper in his hands as any other agent. He may collect a debt due her and give a valid receipt in his own name. O. O. 2362; 12 Rob. 525. He may treat anote which he has taken on account of her paraphernal property as his. own, transfer it or institute suit on it as owner. Thibodeaux v. Thibodeaux, 19 L. R. 440, arguendo.

Considering then, that Bernard Baily as the agent of his wife, in regard to tho promissory noto which he had taken in his own name, might recover judgment upon them, such judgment must have as great an effect against tho principal as a judgment obtained by any other agent in his own name upon commercial paper belonging to another.

It has long boon settled, that the effect to be given to such judgment upon the question of ownership, is that of the thing adjudged. In Shaw v. Thompson, 3 N. S. 392, tho court said, “ the suit appears to have been brought by the persons having the legal interest in the instrument sued op. Whether they were tho owners or not, was a matter with which the defendant had nothing to do as the judgment here, formed res judicata against any other who might hereafter have claimed an interest in it.”

In the ease of Mitaine v. Ferguson, 18 L. R. 94, the court said that it was immaterial to the defendant, “whether the plaintiff recovers for his individual benefit, or as the agent of another; as the judgment will have the effect of res judicata against any one who might hereafter claim an interest in the note.” See also 4 L. R. 220.

Whatever claim therefore, Mrs. Baily had against John A. Gilmore and Mrs. Finley, was merged in, and novated by the judgment in the name of her husband against them; the mortgage no less than the notes secured by it. Dennistoun v. Payne, 7 Ann. 834. The judgment was no longer the note, and much less the undivided fifth part of the succession of John A. Gilmore.

The consequences growing from the legal ownership of the judgment by Baily, were, that it was subject to bo attached or seized at the suit of his creditors ; he is capable of transferring or releasing it, as well as receiving payment, and the judgment might bo compensated by any debts due by him to either of his judgment debtors, provided the same were equally liquidated.

But nothing prevents a judgment creditor from transferring his judgment to a third person, a fortiori, he may transfer it to his principal and when notified to the debtor, such transfer will be binding upon him. So also the principal may institute his action against the agent who has obtained a judgment in his own name, to compel him to transfer the judgment to him as the equitable owner of the same, and from the date of the notification of the suit, the judgment debtor would, we think, be precluded from acquiring- any rights tending to defeat the claim of the principal, although he might lawfully liquidate any demand he might have against the judgment creditor, and even make payment (unless the judgment creditor should be enjoined from receiving payment) up to the time that the transfer of the judgment should be decreed, and compensation and payment would have their effect.

Eor up to the time that the transfer of the judgment should be decreed, the legal ownership must, under the authorities cited, be held to be in the judgment creditor, and, as a consequence, he may receive payment, and his judgment must be subject to compensation arising from any demand which becomes liquidated before such title has passed out of the judgment creditor by the decree.

The reason of the rule is this: a judgment debtor is not to be subjected to the hazard of a litigation between the judgment creditor and a third party, claiming the ownership of the judgment, which, after all, may prove unavailing ; but he may at once relieve himself by making payment to him who holds the judgment rendered upon the commercial paper, and which has the effect of res judicata against all others. O. O. 2135.

So too, it would be unreasonable to prevent the judgment debtor from liquidating his demand (originating prior to notice,) against the judgment creditor, and obtaining the benefit of compensation taking effect by operation of law, so long as the legal title to the judgment remainsin him. O. O. 2204, 2206, 2207.

But it is said that good faith is the basis of compensation, and that the plaintiff’s brother and sister lenew that the notes were given as the price of plaintiff’s interest in the plantation, and therefore they' cannot be permitted to liquidate a demand against Bailey and compensate his judgment by such liquidated demand, although acquired when his ownership of the judgment was unquestioned.

There would bo much force in this argument if such knowledge could have been in any manner made available to them. On the contrary, it will appear by numerous decisions of this tribunal that a plea, that the note belonged to the plaintiff, would have been utterly unavailing against the action of the plaintiff’s husband on the note. See cases cited under No. 10, Hcnnen’s Dig. p. 183.

It is true, as urged by the appellees counsel, that the wife cannot become a surety for the payment of the debts of her husband, but if she aid her husband in converting her estate into negotiable paper, or cash, so that he can use it without any indorsement or contract on her part, it is her own fault and she must blame herself if he uses such paper or cash in the payment of his debts, and if other people act on the confidence which her own conduct inspires, third persons may presume that the wife intended to rely upon her tacit mortgage, or upon a re-investment of her paraphernal funds in some other way, or that the husband has already transferred to the wife other property in payment. O. O. 2121. As the debtor cannot prevent the husband, or any subscsequent holder, from recovering judgment upon the negotiable paper, payable to the order of the husband, so they ought not to be deprived of such legal consequences in their favor as arise from the judgment itself.

To assume that the institution of the suit by the wife to have the judgment standing in her husband’s name adjudicated to her, was but the resumption of the administration of her paraphernal property, is a petitio principii, which we think we have sufficiently answered, by showing that the original note merged in and was novated by the judgment, and that it became, so far as it concerns the defendants, the absolute property of the judgment creditor, and that it is subject to attachment and seizure, and may be paid and compensated as his. In fine, that such judgment is as much the property of the husband as any other piece of property of which he holds the indicia of ownership. O. P. 548.

It does not appear to us, that the conclusions to which we have arrived in this case, violate natural equity. The plaintiff and her husband have established their domicil in another and distant State, and have doubtless withdrawn their means from Louisiana as far as possible. The husband seems to have carried with him, the money of the plaintiffs’ brother and sister, obtained by him while exercising the sacred trust of guardian. The wife allowed him, while here, the unlimited control of her commercial paper, and suffered it to be declared his, by a court of justice. The decree which we shall pronounce, will merely declare that the judgment, to a certain extent, shall bo compensated as his, and leave the wife the more convenient resort of the courts of her own domicil to enforce the residue of her claims against the husband.

Whether a wife domiciled with her husband in another State can institute an action for the recovery or separation of property in Louisiana by means of a curator ad Hoc appointed to represent him, is a question in which these appellants have no interest, further than to be allowed their credits upon the judgment.

The judgment of the lower court on the contest upon the account, liquidating the amount due by Bernard Baily to Mrs. Finley and John A. Gilmore at $2,047 27 each — signed the 19th day of June — appears to have been acquiesced in by theparties thereto. The judgment obtained by Bernard Baily against them in solido, in suit No. 1103, for the sum of six thousand dollars and interest, as tlierein stated, is compensated by said two sums of $2,047 27, to the extent of four thousand and ninety-four dollars and fifty-four cents, as of June 19, 1856, and the said plaintiff is entitled to be considered the owner and transferee of said judgment in said suit No. 1103, of said Sixth District Court, in and for the Parish of East Baton Rouge, for the remainder due thereon.

It is therefore ordered, adjudged and decreed, by the court, that the judgment of the lower court be so amended as to decree that said judgment in said suit No. 1103, against said Emelina Gilmore, wife of A. O. Finley, and John A. Gilmore, in the Sixth District Court, in and for the Parish of East Baton Rouge, be entitled to a further credit of four thousand and ninety-four dollars and fifty-four cents, as of June 19, 1856, in compensation of the sum of $2,-047 27, due each of said defendants by said judgment against Bernard Ba/ily, and that said judgment in said suit No. 1103, so credited, be decreed to belong to said Arabella Bcdly, and that her right to recover-from her said husband said sum of $4,094 54, be reserved her, and that the judgment of the lower court so amended be affirmed, the plaintiffs and appellees paying the costs of the appeal.

Spoefokd, J.,

dissenting. It cannot be pretended, that when Mrs. Baily sold the paraphernal property to her .co-heirs, the appellants, and the latter gave' their notes for the' price payable' to the husband, that the notes became absolutely his property. He hold them simply in his capacity as administrator of his wife’s- paraphernal estate, or as her mandatory. The appellants, the coheirs, who bought her property and gave a mortgage in Tim• favor to secure the notes payable to her husband, knew that the notes were hers. When the husband sued on them, they kneio that it was in that capacity that he sued, for the husband and wife cannot contract with each other, at least she could not sell her paraphernal property to him, pending the marriage. The judgment was therefore still the wife’s paraphernal property, standing in the name of her husband as her mandatory, and to the knowledge of the judgment debtors.

Eor the purposes of this case, it might be conceded that, so long as she chose to leave the control of her separate estate to him, the judgment debtors eould discharge themselves by compensating against the judgment, their claims against him personally, but surely no longer. She could, at any moment, lawfully revoke his agency, and resume the control of this judgment, as part of her paraphernal estate. Erom the instant she gave notice to the judgment debtors that she had resumed the management of her separate property including the judgment, it seems to me too clear for argument, that the debtors could not bo permitted to 'go forward and liquidate a claim they held against her husband individually, in order to plead it in compensation against the judgment which, in truth and to their knowledge, always belonged to the wife, and of which she had notified them that she had resumed the administration. It strikes me that the opposite doctrine would introduce discord into a system of law which, perhaps, goes further than.any other towards protecting the property of married women, and it would also, in my judgment, be inconsistent with the old and sacred principle that compensation has its basis in good faith.

Now it appears that in April, 1854, the plaintiff availed herself of the legal right to resume the administration of her paraphernal property, and noticed the appellants in the most formal and emphatic manner by judicial proceedings contradictorily with them- claiming the judgment, that she had done so.

It is ncit pretended that the judgment was then in any part extinguished by compensation; indeed, it was legally impossible, for up- to that time the appellants had no liquidated claim against her husband. After she had resumed control of this judgment, confessedly her property, to the knowledge of the judgment debtors, and after she had notified them of the resumption, what right had they to go forward and liquidate an unliquidated claim of theirs against her husband personally, in order to pay her off with it, and thus in effect make her a surety for his debts ?

I think, with the District Judge, that such a proceeding was inadmissible, and that as the judgment was in no part paid or compensated at the date when the wife notified the appellants that she had resumed control of if, it cannot now be compensated by her husband’s debts to them, Which were not liquidated till long after .such notification.

I think the judgment should be affirmed.

Vooeiiies, J., concurs in this opinion;


author: Cole, J. Spofrord, J.,

text:
    State of Louisiana v. Louisiana Savings Company.
    The Act of the Legislature incorporating the Louisiana Savings Company, was not intended to1 create a hanking institution; it conferred no power to issue notes for circulation, and the laws relative to hanking corporations are not applicable to’ such an institution.
    The business of a Savings Company is of such a character that temporary suspension of payment ’ftrhich is almo’st necessarily connected with its organization, and must have been contemplated by the Legislature, cannot be regarded as an absolute cause of forfeiture. A fraudulent suspension of payment or gross negligence in loaning money without sufficient guaranty by which temporary suspension of payment might ensue, would be different.
    From the peculiar nature of the charter of the company, it was hélcb: That the closing of the doors, the cessation of business and the temporary suspension of the company for a few days,' were not sufficient causes for forfeiture.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      K. W. Mo'ise, Attorney General, for the State.

      L. Kunton, • for defendant and appellant
   Cole, J.

(Spoffoed, J., and Vooeiiies, J., dissenting.) On the 3d March, 1856, the Commissioners (or Trustees) of the Louisiana Savings Company, notified the public, they deemed it their duty to place in liquidation the affairs of the institution; that its liabilities did not exceed $50,000, and the assets would realize about $45,000, although they were nominally more. They were induced to do this by a sudden panic, caused by the rumor that the President of the company, William K. 'Gcm'land, would probably he arrested for alleged defalcation as Treasurer of the city of New Orleans, and also by a mistake in relation to the accounts of Garland with the company, he being really their creditor instead of their debtor.

Contemporaneous with this rumor, a large amount of deposits were withdrawn without notice, although a part so taken was upon interest, and previ«us notice might have been required. An open credit with the Bank of Orleans was also suddenly withdrawn without notice.

On the 8th of March, 1836, the public was informed that the institution was then fully prepared to resume business and meet all its engagements, whether for its deposits on time or on call, and that the office would open on Monday, 10th inst.

This institution was thus closed from the 3d to the 10th of March, a period of seven days, and for that time ceased receiving or paying deposits.

On the 15th of April, 1856, this proceeding was instituted by the Attorney General, for the forfeiture of the charter granted by the General Assembly of the State, by an Act approved March 16th, 1854. Session xYcts of 1854, page 163.

The reasons for which the privileges conferred by the charter are alleged to be forfeited are, that by said notice of March 3d, the Directors deliberately and wilfully closed the doors of the institution, refused to receive or pay deposits, announced its insolvenc}1-, and its purpose to go into liquidation; that the “scope and object” of the incorporation were defeated by the said conduct of the company in closing its doors and giving the notice that the end for which the franchises had been granted was perverted, and its corporate franchises had become forfeited by misuses and abuse.

There was judgment in the lower court, decreeing the forfeiture of the charter.

Before entering upon the argument to show that this judgment is erroneous, wo will make some general remarks in answer to some of the reasons which have been urged in its favor.

It is averred, that the misuse and abuse of corporate functions, when they are such as are contemplated by Article 438 of the Civil Code, are sufficient grounds upon which to declare the forfeiture of an Act of incorporation.

This is not denied, but such misuse and abuse must be of that grave character which is intended by that Article.

No wise jurist and no good citizen can pretend that a slight misuse or abuse of corporate functions, is a valid cause of forfeiture; if such a doctrine should obtain, then suits might be instituted against our banks for the most minute variation from rigid canons of correct administration.

Imperfections appertain to humanity, and it is not to be presumed that the lawgiver expected that corporations would be exempt from the general rule; as they are managed by human beings, it is to be supposed that some acts of the Directors may be liable to slight animadversion; but if the dogma of perfection is to prevail, then there would constantly be proceedings instituted for the forfeitures of charters of banks, which would produce depreciation of stock, loss by holders of their bills, a stringency in the money market, and a general financial derangement.

It is also asserted that it is 'a tacit condition of every Act of incorporation, that its scope and designs shall be carried out. We admit this to be correct, but the admission is not to be supposed to convey the doctrine that the scope and design of incorporation must always be perfectly accomplished, otherwise, that forfeiture shall follow. This would again be the adoption of the canon of perfection, which would create the disastrous results just portrayed.

It is suggested that the object of this Savings Institution, is alone to benefit the more humble classes of society, and not its administrators. This eorporation received its charter from the Legislature', and the object of the grant was to advance the interests of the laboring- classes; hut did ever any legislator imagine that all those who applied to he Incorporated, in order to carry out some great work of public amelioration or to benefit a part of tho public, wore-pure philanthropists and expected no personal benefit!

In this age, almost all important operations are conducted bjr corporations. The Savings Institute, like maity other corporate bodies, is intended to benefit-the laboring classes, and also those who conduct it; it is not an eleemosynary corporation; persons may deposit their funds, hut the principal advantage of’ depositing- is to receive an interest on the deposits, and the trustees have the right to expect to be recompensed for their trouble in superintending' its affairs-in the event their operations are successful.

Tt is alleged, that the charter of this company ought to be forfeited, if, after' an important ordeal, it should appear that any part of the entire capital deposited had been lost, or if depositors were not always paid, at the times stipulated, the principal and interest of their deposits; this doctrine is also without any sound legal basis, so far as this institution is concerned, for wo shall demonstrate hereafter, that the very nature of this charter raises the presumption, that this company may not always bo able to meet its obligations, and without being subjected to any penalty therefor.

It is also said that tho assets, two years after the company had boon in operation, were not sufficient to pay ninety cents in the dollar upon its liabilities. Admitting such to have been the case, 3'et it is not shown this was owing to-any fault of the trustees; on the contrary, it is to be attributed to tho costs of keeping up an institution of this kind in tho infancy of its career, and to a depreciation of tho bonds of the city of Now Orleans, twelve of which were-in the possession of the company and estimated in the list of assets at §12,000, although their market value then was about $9,000 ; besides, as tho company had to invest money in these bonds, then as long as it complied with tho requisites of its charter in investing its mono}', and its action was characterized by prudence and skill, forfeiture cannot follow in tho event tho investments, are not profitable.

By tho statement of tho company published March 4th, 1880, tho difference, between its assets and liabilities, exclusive of interest due depositors and house rent, was $1,278 11; add to this, $1,842 00, tho amount tho Directors thought that Garland owed, which, however, lie did not, and it will make $2,820, which, with tho depreciation of the city bonds, was tho total difference between the assets and liabilities of the company on the 4th of March, J880, less house rent, interest on deposits, and whatever amount might ho duo Garland, all of which, however, could not have been much, for if they bad been, the. Attorney General would have established tho amount in the. lower court “When it is remembered that the company had been in existence but two years, this difference between tho assets and liabilities is very little, andfindepondent of the depreciation of tho bonds, it was caused by tho necessary expenditures for such an institution before sufficient interest could accrue to meet them.

It is also, urged, that in order to have resumed business, “ tho Directors must have made good tho deficit in these assets out of their private funds,'’ and that ■ the life of tho company outfit not to he prolonged in order to give the-Director’s an opportunity ta reimburse themselves by anticipated profits for the money they ma)r have advanced it. But certainly the State ought not to act as a cruel tyrant, who invites his friends to a feast only to make their deaths more bitter. An institution of this kind, from its very nature, cannot, for ■throe or four years, realize profits sufficient to meet all its liabilities on demand, and there must necessarily bo for that time an excess of expenses over •profits; if, then, forfeiture must follow for this, where would be the justice or humanity to incorporate an institution which must, from its nature, be unable, if its credit is temporarily destroyed, to meet all its liabilities on demand!

There would be no policy in thus forfeiting the charter either as to the Directors, the public or depositors. It would be a direct injury to the laboring classes, for it would prevent the establishment of similar institutions.

It is also urged, that a judgment of forfeiture “ would involve in losses consequent upon the liquidation, all the depositors and others connected with this institution.” Yet this is only what would always be the case with every Savings Company, if it was obliged, after being in existence but two years, suddenly to wind up its affairs, for, as it is alleged in the statement of the Trustees, “few establishments of this kind have ever earned their expenses within the first three or four years.”

It is also averred, that there was groat carelessness in the manner in which the books were kept, because there were mistakes made as to the Garland account ; but in the lower court there was no attempt to show that the affairs of the company had not been managed with skill, and the Attorney General relied alone in his petition on the notice of the 3d of March. If one mistake proves extraordinary negligence, where is the bank or mercantile house that w'ould escape censure?

It is also objected, that it is not shown, that any inevitable or temporary misfortune occasioned the state of affairs exhibited by the notice of the 3d of March. In answer to this, we would say, that previous to and at the time of this no fice, there was much excitement in the public mind. Mr. Garland had been President of the institution, great confidence had been reposed in him, and when such serious accusations were made against his reputation, it was natural to suppose that ho might have made use of the bonds of the company or its notes, to which he might have had access. This panic caused the Bank of Orleans to withdraw an open credit that this institution had to overdraw, up to S10,000, and depositors withdrew on the 1st of March, 183G, $10,?51 44, without notice, and although a part so withdrawn was upon interest. "Which of our corporations or mercantile houses would not be in the same state as this institution was on the 3d of March, if their credits with the banks, and their friends in different parts of the world was suddenly stopped ?

It is also asserted that it is not established, that the condition of the assets had improved at the time of the trial in the lower court, and that the public avowal of its insolvency has not been rebutted nor withdrawn.

This is answered by reference to the notice of 8th of March, 185G, which announces that the “ institution is now fully prepared to resume business and to meet all its engagements, whether for its deposits on time or on call.”

This is assuredly a rebuttal and withdrawal of the avowal of its insolvency; besides, the petition is based entirely on the notice and not on any subsequent action of the company, and the answer avers that since the notice of March 8th, the company continued to transact business, and to exercise its corporate privileges, and that by said notice of March 3d and the cessation of business, neither the public nor any individual depositor or creditor of the company suffered any loss, and notwithstanding' this averment, the Attorney General did not attempt to contradict it.

Having thus answered some of the arguments in favor of the forfeiture, we shall now proceed to establish that the grounds upon which this forfeiture is demanded, are not sufficient to authorize it.

In order to succeed in this proceeding, the State must establish the violation of a law by the company, which requires the forfeiture on account of the infraction. If no ordinance or statute has been infringed, a tribunal of justice cannot then punish. Courts cannot create laws — their province is to interpret them a.nd ordain their execution; the coalition of the legislative and judicial functions is adverse to our political system, to every republican principle, and to the weal of the people. This corporation cannot then be dissolved, unless it had done that which is forbidden, cither by its charter, by some provisions of law, or which is of such a character and so detrimental to public good, that although there is no positive statute, the nature and essence of corporations demand that forfeiture should follow; but such tacit recognition of the necessity of forfeiture must bo clear to the common sense of mankind and not the sequence of scholastic logic.

Let us first consider the nature of the charge; it is of a two fold character. The first part of it is, that the company closed its doors, or ceased paying and receiving deposits for seven days, to wit, from the 3d to the 10th March. The second part of the charge is, that it was in a state of insolvency.

The first part of the charge is no cause for forfeiture, for the charter has not ordained how many days in the week the institution, must be opened; this, is left to the Trustees, and they could, in their by-laws, have enacted their doors should be open but once a week. If then they couldhave adopted that this as a general rule, then the mere cessation of business for one week, by the notice of March 3d, cannot forfeit the charter.

The closing of the doors for seven days, under the circumstances is not such, a nonlaser, or neglect to exercise corporate privileges, for which the charter ought to be forfeited ; it is not in this case such an abuse of privileges and refusal to complete the conditions on which such privileges were granted, as is contemplated by Article 438 of the Civil Code.

The second part of the charge is, that the corporation was in a state of insolvency. As this alleged insolvency was not evidenced by any overt act, such as a return of “nulla bona," a judgment or oven a protest, the true question for our present investigation is, whether a temporary suspension of payment under the circumstances of this case, is a sufficient ground of forfeiture ?

The rigid rules of our laws relative to banking operations are not applicable to this ca,so ; they relate to offices of discount, deposit and circulation. This institution is not a “bank” in the sense of the statute, and it is clear, that the Legislature did not intend to incorporate a bank; the act authorises a corporation and calls it a corporation and not a bank, and it has no power to issue notes for circulation. It is evident that the statutes, regarding banking corporations, do not govern the case at bar.

When the nature of this institution is considered, temporary suspension of payment appears to be almost necessarily connected with its organization, and if so, it is not then an absolute cause of forfeiture. In order to comprehend its nature, its privileges must be examined. The act of incorporation grants no power besides those common to all corporations, except to receive money, from one dime and upwards, on deposit; to allow interest on it, in accordance with the by-laws of the institution, and to loan the said deposits. No special condition is annexed by the Legislature upon which the privilege is to depend, or for the non-performance of which, the charter is to be revoked.

This company may, in one sense, be considered as necessarily unable to meet, in full, its engagements for a long period after its organization, for it had no funds with which to commence operations — was obliged to hire an office, also officers, and to incur many incidental expenses, before sufficient interest could accrue, from money loaned, to meet its engagements. The busiuess of the company was also of such a character, that temporary suspension of payment must have been contemplated by the Legislature, and by the depositors as incidental to the institution.

The business of this corporation was to receive money on deposit, loan the same, and pay an interest on the deposits. The depositors knew that the corporation had the right, by its charter, to loan its money, and that this was the way for which it was able to pay interest on deposits. These laws might be made with the greatest prudence, yet the company might fail to collect the notes at maturity; violent convulsions in the monetary affairs of the city, might often prevent those who were deemed the most solvent at the time of borrowing the money from meeting their obligations with punctuality; those then, that deposited money with this institution, did it with a full knowledge it was to bo loaned; that money lent, is not always punctually paid, and that temporary suspension of payment appertained almost naturally to this corporation. iSucli temporary suspension of payment must have been contemplated by the Legislature and depositors, as incidental to the corporation, and cannot then be p. sufficient cause for forfeiture.

The principles decided in this case, must not be considered as applying to an institution like this, which should fraudulently suspend payment, for such concjuet might be placed under the provisions of Article 438, of the Civil Code, and considered an abuse of the privileges of the corporation and a refusal to complete the conditions on which said privileges were granted; gross negligence in loaning money without sufficient guarantee, by which temporary suspension of payment might ensue, might perhaps also subject the charter to forfeiture. In this case, the Directors appear to have been actuated by laudable motives in giving the notice of 3d of March, and ceasing their operations. Their conduct does not appear to be polluted with fraud, nor to have been followed by injury to the depositors, for so far as the record shows, no creditor has ever ■ instituted proceedings against the corporation. It ought also to be remarked, that we decide this case on principles peculiar to the nature of the charter of this company.

Considering then, the circumstances of this case, and the nature of the charter, it is evident that the closing of the doors, the cessation of business, and the temporary suspension of payment of this company for a few days, are jiot sufficient cause for forfeiture. Vide People v. Bank of Hudson, 6 Cowen, 217; People v. Washington and Warren Bank, 6 Cowen, 216; State v. Gas Light and Banking Company, 2 Rob. 529; Angel & Ames on Corporations, 745; Revised Statutes, 116, 1, 12.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below, be avoided and reversed, and proceeding to render such judgment as ought to have been rendered by said court, it is, ordered, adjudged and decreed, that the demand of plaintiff be rejected, with costs in both courts.

Spofrord, J.,

dissenting. I take it to bo well settled that the misuse and abuse of corporate functions in Louisiana, as at the common law, are sufficient grounds upon which to declare the forfeiture of an act of incorporation. Indeed such is the express provision of Art. 438 of the Civil Code.

It is also settled, that it is a tacit condition of every act of incorporation, and that the violation of the tacit condition is a ground of forfeiture. The State v. the New Orleans Gas Light and Banking Company, 2 R. 522; Angel & Ame’s on Corp. 510.

Whether a corporation, in a particular place, has violated this tacit condition upon which it was created, is a judicial inquiry, the solution of which depends first upon the object or end of the corporation, and secondly upon the mode in which the corporators have carried out their end, in other words, upon the proven facts of the case.

The object of a savings institution is not to enrich the corporators, or to provide them funds to speculate upon, but to benefit the poorer classes of society.

The preamble of the act in this case, intimates its design, “Experience having proven that savings institutions have been productive of great benefit to the laboring classes, by inducing habits of economy and industry, therefore bo it enacted, &c.

The charter and the by-laws, in this case, show that inducements wore held out to people of small means, to deposit their savings in sums from one dime upwards, with the corporation, upon the assurance that funds so deposited should be secured in the most ample manner; should be returnable on call or at a fixed period, as agreed upon at the time of the deposit, and pay an interest of three per cent, on sums deposited for a time longer than sixty days, five per cent, for a time between three and six months, and five per cent, for a longer period than six months.

It was therefore implied among the conditions of the continuance of the franchises of this company, that they should conduct their affairs with economy, prudence and skill, sufficient to ensure the safety of the entire capital deposited with them as a sacred trust, and to pajr continually, and at the times stipulated in their contracts with depositors, the principle and the conventional interest. Any course of management which, after a fair and reasonable trial, should show that all this was not secured to the beneficiaries of the corporation, would justify a revocation of the grant for misuse, or for a violation of its implied conditions.

And now for the facts. After being about two years in operation under this charter, the directors of the Louisiana Savings Company published, in the gazettes of Now Orleans, the following notice:

“ The Commissioners of the Louisiana Savings Company are constrained to say that, after due consideration, they deem it their duty to place in liquidation, the affairs of the institution. We pledge ourselves that the assets shall be faithfully appropriated.
“ The liabilities of tlio company do not exceed $50,000'- T&ffassots will roa-lize about $45,000, although they are nominally more.
(Signed) R. L. Robektson, President., pro tem.
J. N. Phillips, Treasurer.
New Orleans, March 3d, 1856.”

On the 5th of March, a carefully prepared statement was published', which was intended to assure the public that the insolvency was not so great as admitted by the previous notice. But in this statement, it is now proven by the company, that there was a remarkable error. Among their assets they classed a claim on Win.- IT. Garland, for over-draft, $1,542, which the treasurer testifies was a mistake, and that so far from being a creditor of Garland, the company owed him at that time, in cash, an amount of which is not stated.

The twelve bonds of the city of New Orleans, would seem to have boon put in the list of assets' at $12,000, when it is well known that they never were at par, and the record shows that they had once been pledged to the Bank of New Orleans for a credit of only $10,000. Counting those bonds at their market value, which certainly did not depreciate in the hands of the company, and deducting the erroneous claim against Garland, it appears that the assets of the company were, at the most favorable estimate?, five thousand dollars less than their liabilities to depositors, exclusive of interest, house rent and the balance due Garland. The statement made by the directors on the 3d of March, that the institution was insolvent, is thus proved to have been true, after the more mature examination published on the 5th. This insolvency was not denied in the answer, and it is not pretended that, at any time since, the assets have become equal to the liabilities. Indeed the appellant’s counsel, in his printed argument, has stated that “ The directors must have made good the deposit, in their assets, out of their private funds,” in other words, the corporation borrowed from Peter to pay Paul. This of course, could not change the real pecuniary condition of the company. But the step was taken, after a deliberation of several days, when the directors changed their minds, and concluded that they would rescind their resolution to go into liquidation, and endeavor to resume the corporate franchises which they had for a time, abandoned.

They therefore gave notice that the institution would “resume business, and meet all its engagements, whether for its deposits on time or on call.” Accordingly it is stated, that up to the time of trial in the court below, it had continued to receive deposits and pay claims on demand.

This was relied'on, as the sole reason why the. charter should not be forfeited.

It may be conceded, that if the resolution to go into liquidation on account of the acknowledged inadequacy of the assets to meet the liabilities of the company, was based upon a mistake as to that vital fact, the suspension for a week would not work a forfeiture. But if there was no mistake as to that fact, I apprehend that the company could not be permitted to play fast and loose, to suspend and go into liquidation one week, and then to resume upon a borrowed capital, with the hope of working out of embarassment and real insolvency by fortunate investments or speculations.

And that is precisely what I understand the company contends it had a right to do. Eor it is not pretended that the assets of this company have everequalled its liabilities- It has had a trial of about three years, surely a trial süfficiently long to test its capacity; no showing of any bétteí condition than an ability to pay ninety cents on the dollar, (upon a full statement) has beeri made by the company. Indeed it is argued, in thé printed argument, filed on its behalf, as a reason why indulgence should be extended to it, that a judgment of forfeiture now, “would involve in losses consequent upon the liquidation all the depositors and others connected with this institution.”

xVnd it is not shown that any temporary or inevitable misfortune produced this disastrous result. No depreciation of property is pretended to have occurred. The suspension is now attributed to the panic created by the flight of its President, Ga/i'lamd, for alleged defalcations. But,"at the time, it was attributed to the inadequacy of the assets to meet the liabilities, an inadequacy which it amply proved in this record. There was no mistake as to that fact, and the only mistake the directors made at the time, was that they had a claim on Garland, when Garland, had a claim on them; that is, they supposed the institution to be better off than it turned out to be. The repeated mistakes as to this account, shows that the business was, to say the least, negligently conducted.

After a fair and reasonable trial, I do not think this corporation has shown that it is in a sound and healthy condition, so as to meet the public wants out of its own resources. The commendable liberality of some of the directors, ( who are not individually liable to the depositors,) in loaning- to the company the means to resume payment lor the time being, does not require that its life should bo prolonged, in order to give them an opportunity to reimburse themselves by anticipated profits. An institution whose assets, after two years’ operation, can only pay ninety cents in the dollar to its intended beneficiaries, but real benefactors, is not such a “savings institution” as was contemplated by the Legislature. It fails to satisfy the object of its c'reafio'n, and, in my judgment,- should be dissolved.

I therefore, think the judgment of the Third District Court should be affirmed.

Mi’. Justice Toorhies, concurred in the above dissenting opinion of Mr. Justice Spofford.


author: Buciianan, J.

text:
    Succession of F. M. Prevost—The State, Appellant, Louis Prevost, Appellee.

    (The treaty made in 1853, between the United States and France, confers on Frenchmen, in all the States of the Union, whose laws permit it, the right of possessing real aiul personal property by the same title and in the samo manner as the citizens of the United States, and declares that, in no case, shall they be subjected to taxes on transfers, inheritance, or any others, different from those of citizens of the United States, or to taxes which shall not be equally imposed. Meld: That the succession of a French citizen, who died before the treaty was made, will not be exempted from the operation of the Act of the Legislature of Louisiana, in 1842, imposing a tax of ten per Cent, on successions falling to foreigners.
    APPEAL from the District Court of Ascension.

      J. II. Ilshy, for appellant.

      O. A. Johnson, for the appellee.

       This case was decided in 1855, and on a writ of error, from tlio Supremo Court of the United States, the judgment was confirmed in. See 19 Howard’s Rep. p. 1.

   Buciianan, J.

Jean Louis Prevost, a subject and resident of France, having been recognized as heir of his brother, F. M. Prevost, an inhabitant of Louisiana, the curator of tho succession of the widow of F. Ml Prévost, has rendered Mm an account of the estate of F. M. Prevost, which Ms widow possessed up to hor death. To that account, Jean Louis Prevost has filed various grounds of opposition.

First. — Ho objects to tho item of S3,192 80, charged as a State tax of ten per cent, on successions in this State, Billing to foreigners.. The opponent contends that French citizens are exempted from this tax, by the effect of the consular convention between the United States of America and tho Emperor of the French, concluded 23d of Februai-y, 1853, ratified by tho United States the 1st of April, 1853, exchanged the 11th of August, 1853, and proclaimed by the President of the United States, 12th of August, 1853. The seventh article of Which treaty, is in tho following words :

“In all tho States of the Union, whoso existing laws permit it, so longs and to the same extent, as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing- personal and real property, by the same title and in the same manner, as those citizens of tho United States. They shall bo free to dispose of it as they may please, either gratuitously, or for value received, by donation, testament or otherwise, just as the citizens themselves; and in no case shall they he subjected to taxes on transfer, inheritance, or any others different from those paid by the latter, or to taxes which shall not be equally imposed.”

We have decided in the case of Pufour’s Succession, 10 Ann., 391; that this treaty, eo far as it is inconsistent with our State laws of 1842, imposing a tax of ten per cent, upon successions devolving upon persons resident out of the United States, must bo considered, under the provisions of the second paragraph of tho sixth Article of the Constitution of tho United States, as paramount to, and superseding the said State law. See, upon this subject, the case of Mager’s Succession, 12 Rob. 588.

The present ease however, differs from that of Bvfour in tho essential particular that Prevost died many years before the conclusion of tho consular convention with France, and the right of the State of Louisiana to this tax conse^ quently attached, at a period when French citizens did not enjoy an exemption from the operation of the act of 1842. By the fiction of law le mort saisit le vif, the rights and obligations of the opponent, Jean Louis Prevost, as heir of Francois Marie Prevost, relate back to the death of the latter, which took place on the1 l'8th'of May, 1848, C. O. 984, 936; 3 L. R. 336 ; Ibid 561; 6 Rob^ 504; 9 Rob. 357. Blanchard's■ Succession,- decided at the December term of 1864. The language of the Supreme Court, in the case of Mager, 12 Rob. 588, referred to by the District Judge, contains nothing inconsistent with this view of the law.

There are two other grounds of opposition which have been argued before us, one concerning the valuation of improvements put upon the separate estate of F. M. Prevost during the existence of the marriage community ; and the other, a charge for stock put upon said property by the widoto Prevost after her husband’s death. The decision of the District Judge, upon these points, seem conformable to the facts and the law.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be reversed, so far as concerns the charge made in the curator’s, account of three thousand one hundred and’ ninety two dollars eighty cents, for-' the State fax often per cent, upon the amount of the estate of F. M. Prevost, inherited’ by J. L. Prevost, which charge is hereby sustained; that in other respects, the said judgment be affirmed; that the account of curatorship of the succession of Victorie Gastelain, widow of Francois Marie Prevost, filed by Michael D. Gaudeb, curator, on the fourteenth of Jime, 1854, be approved'and homologated'; and that Jean Louis Prevost, the opponent, pay costs of th&‘ opposition in both courts'.


author: Merrick, C. J.

text:
    Soery & Campbell, for the use, &c. v. E. Friend.

      -X defendant examined'on facts and articles* may answer as to a fact tending to bis defence, when the fact is closely linked to the fact on which he had been interrogated.
    APPEAL from the District Court of Ouachita, Richardson, J.

      McGuire S Rim/, for plaintiffs and appellants.
    Morrison, for defendant.
   Merrick, C. J.

The plaintiffs, as acceptors, have instituted the present action upon an account stated upon a bill of exchange dated Trenton, May 5th, 1853, drawn on themselves at Now Orleans and made payable twelve months after date, to the order of IF. II. Rogers, by whom it was endorsed, for fifteen hundred dollars.

The defendant in his answer, alleges that the draft was given for the purpose of enabling the plaintiffs, who were commission merchants, to raise money after accepting it, by throwing it in the market, and the money raised on it was to be advanced to William II. Rogers, then a merchant at Trenton, La., to enable him to carry on his commercial business, and Rogers was to provide means to meet it at its falling due; that the plaintiffs shortly afterwards failed without having accepted, negotiated or paid said draft, and that the plaintiffs never having advanced anything to Rogers after the receipt of the draft, are fraudulently attempting to collect the same.

The plaintiff, in order to rebut the presumption that ho had funds of the defendant to meet this draft, propounded the following questions to defendant, viz:

1st. “ Did you ever ship or consign any produce, goods, or effects of any kind to Messrs. Soery &. Campbell, of New Orleans ? If so, state when, what. it was, and for what amount ?”

2. “Did you ever deposit any amount of money in the hands of Messrs. Soery & Campbell, of New Orleans, for any purpose whatever? If so, state the amount when it was, and for what purpose ?”

To the first interrogatory, defendant answered: “ I did consign four bales of cotton to plaintiff about January, 1854, but no part of it was intended for the payment of the draft sued on, as it was well understood by plaintiffs and defendant, that W. II. Ilogm's was to provide for the payment of the draft sued on, and not defendant. Plaintiffs paid over to defendant the proceeds of the four bales of cotton, in the spring of 1854, in supplies and in money.”

Answer to second interrogatory. “ I never deposited any other funds with plaintiff except the few bales of cotton, and that was for the purpose of paying for some groceries furnished by plaintiffs to defendant, and in money, as stated in answer to first interrogatory.”

The plaintiff moved to strike out a portion of the answer to first interrogatories, and propounded this further interrogatory, viz:

“ Did you ever have any conversation with either of the plaintiffs in this case in relation to the draft sued on in this case ? If so, when did such conversation take place ? Where did it take place, and what was said about it, and with whom did you have such conversation ?”

To this the defendant answered, “ I did have a conversation with one of the plaintiffs in this case, in relation to the draft sued on, which took place, as near as I can recollect, about the month of Juty, 1854. It took place at Forksvillo, in the parish of Ouachita, The words used in the conversation I cannot remember exactly, but the substance of it was, that I would do what I could to induce W. II. Rogers to ship them cotton for his indebtedness to plaintiff, and that I did not consider myself bound for the draft sued on, and that plaintiff need not look to me for it. He then told mo, that if I had not mentioned it to him, he would not have mentioned it to me, and that if I would ship them, the plaintiffs, my cotton crop of 1854, that no part of it should be applied as a payment on the drafts sued on.”

The District Judge did not err in refusing to strike out all that part of defendant’s answer to the first interrogatories, commencing with the words “ but no part of it,” and ending with the words “ sued on and not defendant.” The object of the interrogatory vras to destroy the presumption that Soery & Ca/mp~ bell had funds of the defendant, out of which the draft was paid by them.

The reason why the defendant did not place the plaintiffs in funds, arising as it did from an understanding- between the parties, was a fact tending to his defence, which was closely linked to the fact on which he had been interrogated. It -was a matter standing- as a partial answer to the supposed liability of the defendant, arising from his neglect to place the drawees in funds. Haynes v. Heard, 3 An. 648.

The defendant has filed an answer, praying that the judgment of nonsuit may bo amended, and that ho have a final judgment in his favor.

We do not think the judgment should be disturbed. It is evident that the draft was drawn by the defendant for some purpose. If he were a drawer for the accommodation of Rogers, as he alleges, he would still be responsible to the acceptors in the event Rogers did not place them in funds. The answer to the first interrogatory does not clearly show ‘that at the time the "bill of exchange was drawn, that the defendant was not to be liable as between himself, and the acceptor for the amount of the bill in the event the principal debtor, Rogers, should fail to furnish the funds which it was naturally expected by all parties he would do. But the defendant has not said, that if Rogers did not furnish the funds, that he himself was not to be responsible for the failure. It appears to us that an accommodation drawer, who relies upon the payee of the draft to furnish the funds to take it up at maturity, must be considered as between the other parties to the instrument, as a principal remitting his funds through the agency of such payee. If the drawer^Would have been responsible to a bona fide holder had the draft been dishonored, we cannot see why he should not, in the absence of all agreement to the contrary, be in like manner responsible to the acceptors who have taken up the same at maturity.

If the defendant relies upon a release or remission of the debt by the plaintiffs, his answers do not establish this with sufficient clearness. They might have been very willing to receive and sell the defendant’s crop as factors, and leave the question of indebtedness for the decision of the courts. O. C. 2200, 2201.

But the draft produced does not appear to have been accepted by the plaintiffs, although they have charged commissions for accepting the same. This circumstance, taken in connection with the defendant’s answers to the interrogatories, creates a doubt whether the draft was over put in circulation. If it remained in the hands of Soery & Campbell until maturity, it is at least incumbent on them to show that the amount of the draft was placed to the credit of Rogers. They could have no claim against Friend, until they had either paid the draft to the holder, or if they retained the same, placed it as above mentioned to the credit of, and thereby paid it to Rogers, the first endorser and payee.

On the whole, we are satisfied that the judgment of the lower court should be affirmed.

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


author: Sfoítord, J.

text:
    E. R. Cory v. A. W. Eddens.
    The Clerk’s certificate being defective, the case was continued by the Supreme Court to enable the Clerk to complete It.
    APPEAL from the District Court of Franklin, Barry, J., presiding.

      T. S. Crawford, for plaintiff.

      W. S. Sough, for defendant and appellant.
   Sfoítord, J.

The plaintiff and appellee has filed a motion to dismiss the appeal in this case upon the ground that the Clerk’s certificate is defective. The Clerk has not certified that the transcript contains “ all the proceedings had, and documents filed, in the cause, and all the evidence adduced on the trial,” hut has qualified his certificate by adding, “ as on file and. of record in this office.”

In various cases, at the last term of this court, we held such a certificate to be defective. Alcock, use, &c., v. McKoin; Barham v. Livingston & Co. See also Nettleton v. Stevens, 6 L. 166; Ib. 303; 12 L. 537; 3 Ann. 592. But we also held that such defects not appearing to be imputable to the fault of the appellant, the cases should be continued to enable the Clerk to complete his certificate. See Act 1839, Revised Statutes, p. 279, sec. 20. A similar order must be made in this case.

Cause continued to perfect the certificate.

It is ordered, that the cause be continued to perfect the certificate of the Clerk of the District Court of the parish of Franklin.


author: Merrick O. J.

text:
    B. C. Peace v. W. H. Head—Wade, Intervenor.
    To enable apai-ty to introduce secondary evidence of the contents of a lost instrument, it will be sufficient if it appear, from all the evidences, that the loss was advertised and the proper exertions made to recover it.
    C. O. 2250. 2259.
    APPEAL from the District Court of Caddo, Cresswell, J.

      Crane & Stitt, for plaintiff and appellant.
   Merrick O. J.

The Articles 2258 and 2259 of the Code relative to lost instruments, do not require that the party offering- secondary evidence of such instrument, shall state m the affidavit, that he has used due diligence to procuie the original. It is sufficient, if it appears from all the evidence, that the loss was advertised and the proper exertions were made to recover the same. The proof of loss which will authorize the introduction of inferior evidence, must depend on the particular circumstances of each case. 7 N. S. 548; 2 Ann. 195. The District Judge was satisfied with those proven in this case, in connection with the affidavit of the intervenor, which stated, among other things, that the instrument was lost, and that she was unable to produce it, and we cannot say that he erred in his conclusion.

Witnesses who were acquainted with Dr. J. Peace's handwriting, prove clearly the existence of the bill of sale from him to the intervenor,. and although there are circumstances which throw a slight suspicion over the title produced, we think the testimony unexplained must conclude the. administrator, as it would have done the intestate.

Judgment affirmed.


text:
    S. A. Leverich v. H. M. Bossier.

      As a general rule, an executor who endorses a bill or note, although he does so as'executor, is per-' sonally bound ; he is. therefore, incompetent as a •witness to fix aliability on a pVior party to it.
    APPEAL from the District Court of Caddo, Oresswell, J.

      Hodge & Austin and Hood & Knox, for plaintiff.

      Grain & Wutt, for defendant and appellant.
   Merrick, C. J.

8. Bossier, of the parish of Caddo, on the 20th January, 1850, drew his draft for $3,300, payable to his own order, twelve months after date, on Messrs. Leverich & Oo., of New Orleans. The draft, after being endorsed, was left with them as accommodation paper, or to cover futur'e advances. Edward J. Walsh, who is alleged in the plaintiff’s petition to hate been the sole person interested in the firm of Leverich & Go., through his agent, during his absence, procured William E. Leverich and Samuel J. Peters, as executors of the estate of J. H. Leverich, to discount the draft for his own benefit, before its maturity; the drawer not being in any manner credited with the proceeds or benefited by the transaction. The executors transferred the draft to Mrs. 8. A. Levw'ich, the widow of J. H. Leverich, deceased, and she has instituted the present action.

At maturity, the notary charged with making protest, certifies, that he demanded (through his deputy) payment for said draft at the office of Mr. William Lwyster, the surviving partner of the late firm of Levwich & Go., acceptors thereof, and was answered by a clerk, that said William Lwyster was not there, and had left no instructions in relation thereto. The notary further certifies, that he left notices of protest with Mr. William Lwyster personally, for the drawer and first endorser, and, at his request, at the office of WilUaen E. Leverich; he left notices with Lwyster, also, for William E. Leverich and Petm's' executors.

The testimony of both William E. Leverich and William Lwyster was taken, and was offered in evidence, the defendants, the widows and heirs of Bossier excepting.

The deposition of W. E. Leverich ought to have been excluded. As a gene ral rule, an executor cannot draw or endorse bills of exchange for affairs aris" ing after the death of the testator, so as to bind the estate. His endorsement, herefore, in such case, binds himself personally, notwithstanding he signs as executor. The witness appeared, therefore, directly interested in procuring a recovery on this paper against the prior parties, and his interest is not equally balanced between plaintiff and defendant. The objection to Luyster's testimony, goes more to its effect, than admissibility.

It is clear that the drawer of the draft was at least entitled to all the rights of drawers and endorsers of strictly commercial paper. It was, therefore, incumbent on the plaintiff to show that the bill of exchange sued on, was presented at the proper place at the maturity of the draft, and due notice of its dishonor given to the' drawer and endorser.

In this we think the plaintiff has failed in her action. She has alleged in her petition, that Walsh alone composed the firm of Leverich & Go., and has proved the same by her witnesses, and, moreover, offered the deposition of Luysteri’ as a disinterested witness. She claimed that Walsh transferred the title to the paper to the executors, which the defendant has endeavored to defeat by an allegation in the answer, that both Imystcr and J. II. Luverieh were members of. the firm of Leverich & Go. In the consideration of the case, therefore, we think we should give the benefit of the plaintiff’s allegation, which is sustained by proof, to the defendant, rather than give the plaintiff the benefit of the defendants’ allegation in -their answer, which the plaintiff has disproved by her testimony. As it is established that Luyster was not the partner of Walsh, who composed the firm of Leverich & Go., a demand upon 'him as surviving partner of the late firm of Leverich & Go., was manifestly insufficient.

The authority cited in case of a demand at the place where a note is made payable in a suit against the make'f or acceptor, is not applicable to the present case. The case of Landry v. Stansbury, 10 L. R. 484, if still law, establishes an exception to a general rule. The present case, while within the general fule, is not covered by the authority of the case cited. See 7 Ann. 493 ; 4 Rob. 276 ; 7 R. 13; 4 Ann. 483.

It is not pretended that any other demand than that upon Imyster has been made. ¥e will, therefore,- render a final judgment in favor of the defendants.

It is ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendants. And it is further ordered, that the plaintiff pay the costs of both courts.