text:
    A. Ledoux & Co. v. Ann Rucker et al.
    Married women wbo enter into joint and several obligations with their husbands to the Canal Bank are bound by such obligations, under the 23d section of the charter of that bank.
    Married women are not, as a general rule, bound by contracts entered into jointly and severally with their husbands, unless it be shown that such contracts enured to their benefit.
    Where several persons have signed an obligation in solido, they are, interse, debtors each one for his shave. Upon thepayment of the whole debt by one of them, that one is entitled to be subrogated to the rights of the creditor against the others; and so far as the creditor has impaired this right of subrogation he is barred from recovering.
    APPEAL from the District Court of West Feliciana, Penn, J.

      Elmore and King, and T. J. Cooley, for plaintiffs.

      Muse and Merrick, Benjamin and Micou, and Patterson, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

On the 7th of May, 1839, the plaintiff and her husband, with James Leake aod his wife, executed a mortgage in favor of the Canal and Banking Company on a tract of land belonging to James Leake, and on a number of slaves belonging to the plaintiff, Mrs. Rucker, to secure the payment of a joint and several bond given by all those parties to the bank for $6000, being the amount of a loan made to them by the corporation.

On the 6th of June, 1839, the same parties executed a mortgage in favor of the defendants, A. Ledoux &/■ Co., to secure the payment of a joint and several note for $10,000, previously given by them to that firm.

There can be no doubt that the plaintiff's slaves were liable to seizure and sale in satisfaction of the first mortgage, the contract being one which she was authorized by the terms of the bank charter to enter into. The 23d section of the charter is as follows: “ That in all hypothecary contracts or obligations entered into by any individual with or in favor of the said company, according to the true intent and meaning of this act, it shall be lawful for the wife of such individual to bind herself jointly and in solido with him; and in such case, the property and rights of the said wife, either dotal or of any other description, shall be affected by said contracts or obligations: Provided, that the said wife be of the age of majority at the time of entering into such contracts or obligations.” Acts of 1831, p. 54, sec. 23.

The plaintiff’s husband was bound for the whole sum loaned, and she was authorized to bind herself to the same extent. See Bank of Louisiana v. Farrar, 1st Ann. 53.

It must be assumed, for the purposes of the present investigation, that the mortgage granted to A. Ledoux Co. could not have been enforced on the plaintiff’s slaves; the sum which it was given to secure not having been shown to have turned to her benefit.

The bank took out an order of seizure and sale upon their mortgage, in virtue of which they seized and were about to sell the land of Leake, when on the 7th February, 1844, A. Ledoux Co. paid the debt due to the bank, and took a subrogation to all the bank’s rights under their mortgage. Thus, the plaintiffs became the holders of both of the mortgages, which are the oldest upon the property which they affect. Both of them could be enforced upon the land, but only one of them, viz : the bank mortgage, could be executed upon the plaintiff’s slaves.

On the 9th of March, 1844, A. Ledoux Sf Co. obtained an order of seizure and sale upon the mortgage in favor of the bank, in virtue of which they caused the slaves of Mrs. Rucker to be seized; and on the 11th of April following obtained a similar order upon the mortgage in their own favor for $10,000: under which the land alone was seized and sold for $11,466, which was imputed by the sheriff ’s return to the extinction of their mortgage, leaving a small surplus.

Mrs. Rucker instituted the present suit to enjoin the sale of her slaves, alleging that the object of A. Ledoux Co. in purchasing the bank mortgage was to arrest the sale of the land which the bank was about to make, and the application of its price to the extinction of the bank debt. In her pleadings filed subsequent to the sale under the seizure of A. Ledoux Co., she claims, that the proceeds of the land be first applied to the payment of the bank mortgage, and that her slaves be entirely liberated from the operation of both mortgages.

She further charges, that an agreement was made between Ledoux Co., her husband, and one Cotton, by which it was stipulated that the sale under the mortgage of Ledoux Sf Co.- was to be made merely for the purpose of enabling Ledoux Sf Co. to make a good title to Cotton, who was to have become the purchaser for $16,500; and upon the payment of $5000 of the price, the slaves of the plaintiff were to have been liberated from both mortgages. That Ledoux Sf Co. have prevented the contract from being carried into effect, although Cotton was ready and able to perfect it, and actually paid a part of the price; and that Ledoux 8c Co. having themselves purchased and retained the land, they are now bound to release the mortgages as far as they affect her slaves.

Ledoux 8c Co. filed an answer, and converted the proceeding into a suit in the via ordinaria. The court below perpetuated the injunction, and decreed that the proceeds of the sale of the land should be first applied to the extinction of the bank mortgage, and that the plaintiff should be released from all liability upon the note for $10,000. From this judgment Ledoux 8c Co. have appealed.

The alleged contract between Rucker, Ledoux & Co. and Colton, which, it is contended, operated the plaintiffs’ release from liability, is shown to have been an imperfect project of an agreement proposed to be entered into originally by the counsel of the parties, but never authorized or assented to by the defendants. It appears that it was modified on the day of the adjudication of the land, at which time the defendants and Cotton appeared alone to have been parties to it; that it remained unsigned; and that Colton never performed any part of its stipulations, or took any steps to obtain title to the land. The payments, alleged to have been made by Cotton on account of the price, were the -proceeds of a part of the crop growing on the land at the date of the adjudication, which, as we have heretofore held, belonged to the defendants. See Ledoux et al. v. Anderson, 2d Ann. 558; Ledoux et al. v. Cooper, Ib. 586.

The effect of the transfer by the Canal Bank to Ledoux 8c Co. was to unite the two debts in the hands of the same creditor; but the debts themselves remained distinct, and the rights of the creditor under them were different. The acquisition by Ledoux & Co. of the first mortgage did not increase or diminish their rights as second mortgagees. The inscription of the first mortgage affected Ledoux 8c Co. with notice of its existence, and of all legal consequences resulting from its provisions and terms.

The Canal Bank was at liberty to select of which debtor in solido it would demand payment, and upon which property it would enforce its mortgage. But if it had selected to enforce payment from Mrs. Rucker, she, upon such payment, would be subrogated and entitled to exercise those rights which appertain to her position as a debtor in solido with others. By the cession of actions she would be considered in some degree as purchasing the right of the creditor. Creditor non in solutum accepit, sed quodam modo ? Nomen creditoris vendidit.

The law creates a legal subrogation between debtors in solido, because although each is bound to the creditor for the whole, yet the debt is presumed to be common, and it would be inequitable to throw upon one the whole burthen without recourse. This subrogation carries with it a resort to the securities given by each. They are the accessories to the debt, and the debtor more readily binds himself for the whole debt when the law assures him that if forced to pay the whole he will have his full recourse against his co-debtors for their share. Pothier Oblig. No. 521. 6 Toullier, 735. 7 Toullier, 147. Civil Code, 2099, 2157, 2158. Howe v. Fraser, 2 R. R. 424. Of this subrogation the creditor cannot deprive the debtor. Pothier Oblig. No. 275.

If Mrs. Rucker had paid either voluntarily or by compulsion, she would have been subrogated to the mortgage of the bank to the extent of Leake's portion of the debt; and the rank of her mortgage would have been the first. Although bound to the bank for the whole debt, she was on the face of the contract the quasi-surety of Leake, inter se, for his share of the burden, and looked to his mortgage pro tanto to protect her against loss. This right is the legal result of the contract with the Canal Bank as notarially executed and recorded. It was reciprocal. Leake had the same recourse against her for her portion.

There has been an attempt to show that in point of fact Leake and Mrs. Rucker, although debtors in solido to the bank, were inter se not co-debtors in solido, but that Leake was the' principal debtor and Mrs. Rucker his surety. But if this were so, it is not shown that Ledoux Co. had knowledge of this relation; and as second mortgagees, they are only to be bound by the relations between Leake and Mrs. Rucker as it existed on the face of the recorded contract with the Canal Bank, namely, the relation of co-debtors in solido.

The position, therefore, of the parties is this: Ledoux Co. cannot devote the entire proceeds of Leake’s lands to a second mortgage, so as to destroy Mrs. Rucker’s right of subrogation. But on the other hand, Ledoux 4' Co. as second mortgagees of Leake, have a right to enforce against Mrs. Rucker the liability of the property which she mortgaged to the bank for her obligation in solido; provided they give her the benefit of her right of subrogation for Leake’s share. Ledoux 4* Co. being second mortgagees, cannot say that Mrs. Rucker’s property shall bear the whole burden of the Canal Bank debt, nor can Mrs. Rucker say that Leake’s property shall bear the whole of the burden.

The next question is, what is the extent of Mrs. Rucker’s right of subrogation ? Ledoux 4 Co. contend, that if Mrs. Rucker has any right of subrogation, it is only to the extent of one-fourth, because, say they, Leake and his wife, and Rucker and his wife, having bound themselves in solido, are to be regarded as four debtors, and Mrs. Rucker would; therefore, have her action against Leake only for his proportion, or one-fourth.

We concur in this view; and the consequence is, that Ledoux Sf Co., who are to be considered as holding in their hands the price of the adjudication oí Leake’s land, are bound to apply that amount to the payment of one-fourth of the Canal Bank debt; and for the remaining three-fourths are entitled to proceed against the property mortgaged by Mrs. Rucker.

It is proper to add that the insolvency of the other co-debtors in solido is not proved; so that the case is not brought under the operation of that article of the code which provides that if one of the creditors in solido be insolvent, the loss occasioned by his insolvency must be equally shared among all the other solvent co-debtors and him who has made the payment. C. C. 2100.

The evidence does not establish an acquiescence by Mrs. Rucker in the imputation of payment made by the sheriff’s return.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the slaves (together with their increase, if any there be, since the date of the act of mortgage) described in the act of mortgage executed on the 7th day of May, 1839, by James Leake and Mary Leake, and James Rucker and Anne C. Rucker, in favor of the New Orleans Canal and Banking Company, whereof a copy is on file in this cause, be seized and sold to pay to the said A. Ledoux 4" Co. the sum of $4590, with interest thereon until paid, from the 16th day of April, 1843, at the rate of eight per cent per annum, and costs of these consolidated suits in both courts. And it is further decreed, that a certain note, whereof a copy is of record in this cause, executed on the 6th day of May, 1839, by James Leake, Mary Leake, James Rucker and Anne C. Rucker, in favor of A. Ledoux 8f Co. for $10,000, with interest, be declared of no force and effect, so far only as the same purports to bind the said Anne C. sRucker.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    James McLaughlin v. Municipality No. Two.
    Where a municipality of the city of New Orleans commences proceeding's under the act of 1832, for the opening of streets, &c., and the commissioners warn a proprietor of a lot against continuing improvements which he had begun, and he is thereby delayed and damaged by the loss of rents he would have received had he been permitted to finish his buildings, the municipality is responsible to him for the damage sustained, in case the proceedings for opening the street be discontinued.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.
    IkT. M. Cohen, for plaintiff, ex parle.

   The judgment of the court was pronounced by

Preston, J.

On the 29th of April, 1847, the Municipality No. Two of New Orleans commenced proceedings, under the act of 1832, for the opening of Claiborne Street. These proceedings appear to have been abandoned, and on the 4th of March, 1848, the municipality re-commenced proceedings for the opening of the street: commisssioners of assessment were appointed, and made a report of their assessment of benefits and damages to be caused by the opening of the street. Oppositions were filed to the proceedings and to the assessment by several adjacent proprietors, and the case was fixed for trial on the 10th of November, 1848, when the municipality discontinued and abandoned the proceedings a second time.

The plaintiff alleges, that when the proceedings were first commenced he was erecting a dwelling house on the site of the intended street on his private property; that he was warned by the commissioners of assessment not to continue the building, as he would not be allowed damages for any additional improvements ; that he did so, from apprehension of that result, and did not complete his building, which if finished would have rented for $30 a month, amounting to $546 during the time the building was suspended. He alleges, that the defendants have caused him that amount of damage by their proceedings, which they delayed and never carried into effect. He proved the facts, and that amount of damage to the satisfaction of the district court, who rendered judgment accordingly; and we think the evidence preponderates in favor of the amount allowed by the judgment.

The power to take private property for public use is the most arbitrary power known to our constitution; so much so that some have doubted the propriety of having incorporated it in our Constitution and laws at all. However this may be, our Constitution has guarded the exei’cise of the power, by declaring that “vested rights shall not be divested unless for purposes of public utility, and for adequate compensation previously made.”

The mode of exercising this power as to streets, is pointed out by the act of 1832; and the Legislature, considering incidental damages which might arise from delay when the exercise of the power became indispensable, directed that it should be a summary proceeding.

These suits against private rights should therefore be commenced only in case of indispensable necessity, and when the corporations are in a situation to afford immediate and ample indemnity. They should be prosecuted in strict conformity to law and to a speedy termination. The fact of great delay and abandonment of the suit.is prima facie evidence that they were unnecessary; and until fully justified by proof, must subject the corporation to indemnify those who are injured by theta.

The municipal history of this and other cities shows, that these suits are a great burden to the corporations, encourage jobs and speculations, beside often causing great injury to individuals; and we are not disposed to reverse a judgment which may tend to discourage them, unless it be manifestly erroneous.

We cannot conceive any reasonable excuse for the municipality to commence such a proceeding twice, and finally abandon it, after keeping the suffering proprietor in suspense for more than eighteen months, and have no hesitation in pronouncing, that it is legal and equitable tlmt they should pay the actual damages suffered.

The case is entirely different from that of Mallard & Armstead v. The City of Lafayette, in which neither loss nor injury was proved, and in which the claim wore the aspect of a speculation.

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


author: Slidell, J.

text:
    Joseph Lalande v. Breaux and Matherne.
    A charge of two and one-lialf per cent for accepting a draft is consonant to usage and is legal.
    A factor cannot charge a commission of two and one-half per cent for advancing, and eight per cent interest on the money advanced. The charge for the commission is usurious.
    An agreement to pay eight per cent interest on a draft from date if not paid at maturity, is legal and binding on the party promising.
    Usury forfeits the whole interest.
    An agreement to extend a draft for a certain time upon usurious interest, does not forfeit the right of recovering the lawful interest which the draft originally drew.
    Where a planter obtains supplies from a factor,- upon a contract to send the factor his crops for sale, and the'n violates his contract by sending his crops to another person, the factor is entitled to his commissions Upon the value of the crop.
    A written approval of an account upon which Interest is charged at eight per cent, estops the party from disputing that item; but such an assent does not amount to an agreement to pay interest at the same rate thereafter.
    Novation is not to be presumed.
    i APPEAL from the District Court of Iberville. Burke, J.

      T. G. Morgan, for plaintiff.

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

Slidell, J.

The plaintiff was the factor of Breaux and Matherne, who were associated in a partnership as sugar planters. The latter is now deceased. The action is for the recovery, from Breaux and the Succession of Matherne, of the sum of $5507 30, the balance of account, with interest at eight per cent from the 17th February, 1849, at which date the'plaintiff strikes his balance. A right of mortgage for this amount is also claimed upon certain lands and slaves.

A variety of questions have been presented on the part of the defendants; which will be separately considered. The facts pertinent to each question will be stated in connection with the legal conclusion.

It is proper first to dissect the account and ascertain what items objected to are improperly charged.

The plaintiff annexed to his petition an account, (marked A.,) commencing in 1847, aud made up on the 29th March, 1848. It is composed on the debit side of various disbursements for plantation supplies, payments made for account of the partnership, and charges of commissions, interest, &c.; and on the credit side, of items stated as nett proceeds of sugar and molasses shipped by the partnership, and allowances of interest from the date of realization. The charges and allowances of interest are at eight per cent. At the foot of this account, after striking a balance of $339 88 as due the plaintiff, is a memorandum of various outstanding acceptances given by him for account of the partnership, and of their note in renewal for $4000, due 3d February, 1849. In the body of the account is the following item : “To amount of interest on renewal of draft of $4000, $520.” The origin of this item is as follows: On the 4th February, 1847, Breaux and Clermendot, (the latter of whom was soon afterwards succeeded in the partnership by Matherne,) being owners of a plantation and slaves, applied to Lalande, a commission merchant, to transact their business as such; to make them advances and disbursements for plantation purposes, during the year ensuing, to an amount estimated at $1000, and to accept for their accommodation, a draft of Breaux, to the order of, and endorsed by Clermendot, dated 4th February, 1847, and payable at one year. To secure these amounts Breaux and Clermendot mortgaged the plantation and slaves. When the draft was about to fall due the drawers were not prepared to pay the draft, and the drawers gave him in renewal their note of $4000 already mentioned. Whether the plaintiff took up the acceptance with his own funds, or by getting the renewal note discounted, does not expressly appear. The disputed item of $520 is acknowledged by plaintiff’s counsel to be composed of a charge of eight per cent interest, (being interest from the date of the note to its maturity,) two and one half for accepting the draft, and two and one half per cent for advancing its amount at maturity.

We do not consider the charge of commission for accepting illegal. We understand the agreement of the parties at the time the draft was given, to have been, that Lalande should give them the benefit of his name as acceptor, to facilitate them in the negotiation of the draft, and that they should pay it at maturity. A merchant thus lending his name lends something which, in the contemplation of the parties, is valuable and beneficial to the person obtaining it, and involves a risk to the party giving it. By accepting, he makes himself primarily liable to the holder, and incurs the risk of being obliged to advance the money if the drawer does not put him in funds. For thus loaning his credit and incurring the risk of inconvenience at the maturity of the bill, the charge is not unreasonable, and is proved to be consonant to usage. There is a lawful consideration passing between the parties, and nothing which involves usuiy. The charge in this particular case must be considered as assented to by the drawers of the bill, as they signed at the foot of the account A, an acknowledgment of its correctness. See Taylor et al. v. Wooton, 19 L. R. 518. 10 L. R. 299.

But, in our opinion, the charge of two and a half per cent commission for advancing, together with eight per cent interest from the date of the advance, stands upon a very different footing. Names do not alter the substance of things. To agree with a party that you will make an advance of money to him, (or to his creditor, holding his draft accepted by you for his accommodation, in consideration of a commission of two and one-half peí cent, and which draft he has failed to pay,) and that he shall restore first the money, with eight per cent interest from the date of the advance, and besides, a commission of two and a half per cent for advancing, is virtually and substantially to agree to lend him money at an interest of ten and one-half per cent. But, this the law forbids; having fixed eight per cent as the highest rate which can be lawfully stipulated. It must be observed, that this charge of two and one-half per cent for advancing cannot be referred to the trouble or labor of the plaintiff, in conducting the planter’s business. It is not so chai'ged in the account; and it appears on the face of the account, that the factor’s trouble in receiving and selling the crops was compensated by a commission of two and one-half per cent.

We are not informed by the evidence, whether an agreement for eight per cent interest, and .two and a half per cent commission for advancing, was made at the time of making this advance or not. But this is not material. The acceptance and approval by the debtors of the account, was an assent to the charge, and to its payment, by the imputation therein made, of the proceeds of the sales of the crops. The illegality of such a charge, was expressly ruled in Barrett v. Chaler, 2d Ann. 876. See also Taylor v. Wooton, 19 L. R. 518.

But, it is said, that by the imputation of payment, and the acceptance of the account A., Breaux and Matherne were estopped from subsequently contesting it; and counsel rely on the case of Millaudon v. Sylvester, 8 L. R. 267. Poydras v. Turgeau, 14 L. R. 37, &c.

Whatever may have been, under our former laws and jurisprudence, the right or absence of right ,to relief from usurious charges by opening accounts, there can be no doubt upon the point, since the statute of 1844, which declares, that article 2895 of the Civil Code be so amended that the amount of conventional interest shall in no case exceed eight per cent, ¡under pain of forfeitui'e of the entire interest so contracted; and that if any person thereafter shall pay on any contract entered into after the passage of that act,' a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered, within twelve months from the time of such payment. See also Richards v. Fresler, 2d Ann. 265. Haynes v. Cobb, 2d Ann. 364.

With regard to the interest on the $4000, after the expiration of the extension of one year granted upon that debt, we are of opinion that it may be allowed. The original agreement, as shown by the act of mortgage was, that this sum should bear interest at eight per cent after the maturity of the draft, if the drawers did not pay the draft at maturity. This was a valid agreement, and there is nothing to show that there was any agreement at that time, or before the maturity of the draft, to pay in addition two and a half per cent for advancing. Then, the only usury was in the charge of eight per cent per annum, and two and a half per cent commissions for the extension of one year. Of the whole of this usurious interest we deprive the plaintiff. But, this usurious extension for a certain specified time, did not destroy the plaintiff’s right to eight per cent Interest upon the $4000, after the expiration of that time, under the original valid agreement, which was not novated. This is not like the case of a party invoking the aid of the law to give him interest ex mora, when he has violated the law by originally stipulating usurious interest after maturity.

The plaintiff also annexed to his petition an account (marked B.,) which is brought down to the 17th February, 1849, and exhibits a balance of $5507 30, being the amount claimed in this suit, together with eight per cent interest from that date. This account is not shown to have been assented to by the debtors. The only charge for commission for accepting which appears to us .objectionable, is made in these words: “1849. February 3d, note due this day, $4000. Commission for accepting, $100.” This is claimed, ip argument., as commission for endorsing the renewal note. But we have already stated, that it is not proved that the money to take up the $4000 draft was raised by means of the renewal note ; and the inference that it was not, may be fairly claimed by the defendants, from the fact that in the account A. they were charged tyvo and a half per cent on $400,0 for advancing.

The defendants object to a charge of $53 42, as a commission on a certain shipment of sugar, winch the defendants, in violation of their contract, made to another factor. We find the planters in their correspondence, asking the factor to send them plantation supplies, and telling them the state of their crops, and their intention to forward it. If the defendants had fulfilled their duty to their factor, he would have received the shipment, and earned the commission on it. This was one of the considerations for which he agreed to become th.eir factor, and incur liability for them ; and it would be manifestly unjust to deprive the factor of his commissions because of the wilful violation of duty by the principal. A man should not be permitted to take advantage of his own wrong. See Russell on Factors, 164. Thompson v. Packwood, 2d Ann. 624.

The remaining objection is to the charge of eight per cent interest. This is made on the balance of account A- And qn the new items of account B. as they accrued. Interest was also credited to the planters, on proceeds of sales as realized. The charge of interest at eight per pent, on the items lawfully charged in account A., canno tnow be disputed. The defendants are estopped by their written approval of that account. But, their assent to the charge in that account, does not amount to proof of an agreement to pay thereafter interest at the rate of eight per cent, either on the balance of account A., .or upon new items of indebtedness. The law is positive, that conventional interest must be stipulated by a written agreement. See Succession of Durnford, 10 R. R. 495. Barrett v. Chaler, 2d Ann, 875. Mylne v. Thompson, 4th Ann. 210. Harrod v. Lafarge, 12 M. R. 21. 7 L. R. 105.

The proposition that the debt was novated, and the mortgage given to secure the plaintiff, is clearly untenable. Novation is not presumed. The intention to novate must be clear. What stronger evidence could the plaintiff give of his intention not to abandon so important a security than his holding on to the draft ? If the parties had considered the matter otherwise, the draft, which was paraphed to identify it with the act of mortgage, would have been given up to enable the debtors to raise the mortgage. Left in the hands of the plaintiff, it was his voucher that lje had himself paid if at maturity. The pre-existenf obligation must be extinguished, says the code; otherwise there is no novation; if it be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no noyation. C. O. 2183. The case is completely covered by what is said by Pothier, Obligations, § 559 : “ Si depuis la dette eontractée, il a été passé quelque aete entre le créancier et le débiteur, par lequel on aurait accordé un terme pour le paiément, ou par lequel on serait convenu d’un nouveau lieu pour le paiement, on par lequel on aurait accordé au débiteur la faculté de payer á une autre personne qu’un créancier, ou de payer une chose á la place de eelle qui est düe, ou méme par lequel le débeiteur se serait obligé de payer une plus grande somme, on d’en payer une moindre á. laquelle le créancier aurait bien voulu se restreindre; dans tous ces cas, et nutres semblables, suivant nocre principe que la novation ne se présume pas, il faut decider qu’il n’y ,a pas de novation, et que les parties ont settlement voulu modifier, dimineur ou augmenter la dette plutót que l’éteindre pour y en substituer une nouvelle, si elles ne s’en sont pas expliquées.”

We think the district judge was justified by the evidence in concluding, that it was the understanding of the parties, that the plaintiff upon paying the Leftwich claims was to be subrogated to the rights of mortgage, by which these claims were secured. Moreover, the plaintiff was a second mortgagee of a portion of the mortgaged property.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the said plaintiff recover from the said Jacques P. Breaux, and from the succession of Joseph Matherne, in solido, the sum of $4009, and interest thereon at the rate of eight per centum per annum, from the 3d day of February, 1-849, until paid, and costs of this suit in the court below; and that for the sums and interest aforesaid, the said Lalande be recognized as having a conventional mortgage upon all and singular the property described in the act of mortgage, before Hermann, notary, dated 4th February, 1847, whereof a copy is on file in this cause.

And it is further decreed, that the said plaintiff recover of Jaques P. Breaux, and from the succession of Joseph Matherne, in solido, the sum of $919 32, with interest on the sum of $905 49, part thereof at the rate of eight per centum per annum, from the 17th day of February, 1849, until paid, and with subrogation to all and singular the rights of mortgage, conventional and judicial, heretofore held by Mrs. Mary Ann Leftwich administratrix, Joel Leftwich and Margaret N. Lindsay, wife of Eugene A. Sherbourne, arising out of an act of mortgage before Louis Petit, recorder and ex-officio notary for the parish of Iberville, dated 4th June, 1847, whereof a copy is of record in this cause, and arising out of inscriptions of the judgments in favor of said Mrs. Leftwich, Joel Leftwich and Sherbourne, in the record of this cause more particularly mentioned and described,

And, it is further decreed, that the said plaintiff pay the costs of this appeal.


author: Rost, J.

text:
    H. Pedesclaux v. John Diennis.
    A title derived from a judgment of court is not required to be registered under the act of 80th March, 1827, creating the office of register of conveyances for New Orleans.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The judge of the district court decided as follows: “ This is a petitoiy action. The plaintiff claims, by virtue of several mesne conveyances, under one Sarah Jacobs, whose title is a judgment of the late District Court of the First Judicial District of the State of Louisiana, rendered on the 26th June, 1834, in the suit of Sarah Jacobs v. John Marks, her husband.
    “ The defendant claims, by several mesne conveyances, under one Anna Davis, whose title is a sheriff’s sale made on the 22d June, 1844, in execution of a judgment of the late Parish Court of New Orleans, in the suit of Anna Davis v. John Marks, her husband.
    “It appears from the evidence that the property belonged, previous to 1834, to one John Marks, who was separated of bed and board from his first wife,
      Sarah Jacobs, by a decree of the district court. That court referred the parties to a notary for a partition; and by a judgment homologating the partition, the locus in quo was adjudged to Mrs. Sarah Jacobs, as above stated, in 1834.
    “ But John Marks having subsequently contracted a second marriage with one Anna Davis, this second wife sued him for separation of properly, and in execution of her judgment seized this property in 1844 as being still the property of her husband, although it had been decreed to Marks’ first wife, ten years before, and was then actually in possession of Léon Hart, the vendor of the present plaintiff, by a conveyance duly registered in 1836, or eight years previous to the sheriff’s sale in question.
    “The only ground on which the plaintiff’s claim is resisted is, that the title of Sarah Jacobs was never registered in the office of the register of conveyances.
    “ In my opinion that title, being by a judgment of court, does not come within the term “ acts of transfer” contained in the first section of the statute creating the office of register of conveyances, approved March 20th, 1827; and consequently, that the penalty of nullity, as to third persons in case of non-registry, contained in the section fifth of the same statute does not apply to this case.
    “ It is therefore adjudged and decreed, that plaintiff is the legitimate and sole owner of the property described in the petition, being lots 33, 34 and 35 in suburb Pontchartrain, according to a plan of said suberb made by Jancssc, surveyor, dated June 5th, 1809; and that defendant pay costs.
    “ It is further decreed, that the defendant have judgment against Eulalie Galles, as his warrantor, for the restitution of the price by him paid to his said warrantor, being three hundred and sixty dollars cash, and two promissory notes, one for the sum of three hundred and twenty-five dollars, and the other for the sum of thirty-five dollars, dated the 14th May, 1849, and payable one year after date, and also for the costs of this suit.
    “ And it is further decreed, that Eulalie Galles recover of her warrantor, Anna Davis, widow of John D. Marks, one hundred and fifty dollars, with costs of suit.”

      Maurian, ex parte, for plaintiff.
   The judgment of the court was pronounced by

Rost, J.

For the reasons given by the district judge, it is ordered that the judgment in this case be affirmed, with costs.


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    A. Ledoux & Co. v. John Black et al.
    To sever lands from the public domain, their specific boundaries must be so designated by survey, or otherwise, as to enable the court to ascertain them.
    Lands in Louisiana not severed from the public domain under the Spanish Government, may be held by an adverse title, derived from the United States.
    APPEAL from the District Court of Point Coupée, Farrar, J.

      H. A. Bullard and T. J. Cooley and Provosti, for plaintiff.

      Black propria persona,
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. The plaintiffs assert title to a tract of land under an order of survey granted to TJrsin Bouligny in 1796, which they allege has been confirmed and located by the government of the United States.

The defendants claim under a patent in favor of General Lafayette, dated in 1810, for lot No. 3, containing one thousand superficial acres of land pursuant to an act of Congress granting the general a large tract of land to be selected and located under warrants from the secretary of war.

After issue joined, John Hagan, the vendor of the defendants, was, by an amended petition, made a party defendant. He answered, denying generally the plaintiffs’ right to recover any portion of the land, setting up the title derived from Lafayette to such portion of it as he was in possession of, and alleging that the plaintiffs had unlawfully taken possession of another part of the Lafayette warrant No. 3, which was his property, and for which he prayed judgment in reconvention.

Both parties have entered the back concessions, which they also claim in this suit as appendages to the front tracts. The question of title was alone submitted to the district court, all others being reserved. There was judgment in favor of the defendants generally, and of John Hagan in reconvention, on the question of title to the front tracts, and a judgment of non-suit as to the double concessions. The plaintiffs have appealed, and the defendants simply ask the affirmance of the judgment.

Conceding, for the sake of argument, that the claim of the plaintiffs was filed in the land office in the manner required by law before the issuing of the patent to General Lafayette; that it has been confirmed by the act of Congress of the 11th May, 1820; and that the confirmation should be made to refer back to the date of the original title, unless that title or a survey made under it by the Spanish surveyor, in compliance with the order of the governor, will enable the court to ascertain the specific boundaries of the land granted, the location of the warrant under which the patent issued to General Lafayette cannot be disturbed. We have unifovmly adhered to the rule laid down by our predecessors in the cases of Lefebvre v. Comeau, 11 L. R. 323. Slark v. Orillon, 11 L. R. 587. Lott et al. v. Prudhomme et al. 3 R. R. 293. Metoyer v. Larenaudiere, 6 R. R. 139.

In the case of Lott, the court say, referring to the other two, “ We then held that when the boundaries of a confirmed claim are vague and uncertain, and are to be fixed by the operations of the surveying department, or such confirmation is only the recognition of a pre-existing right or claim, and before the survey and location the government sells a part of the land not necessarily embraced within the tract confirmed, the title of the purchaser will prevail.” Let us test the title of the plaintiffs by that rule, and ascertain whether the land now claimed is necessarily embraced within the tract confirmed to them, supposing that such a confirmation has taken place.

There was no survey under the Spanish government, and no possession by the grantee. The boundaries are to be ascertained exclusively by the calls of the requite, and of the order of the governor upon it. Both describe the land as a tract of forty arpents front by forty deep, in the district of Pointe Coupée, en el paraje called the Lagoon of the Raccourci. It is not stated whether the land is to front upon the lagoon or upon the Mississippi river; and as one location would answer the calls as well as the other, the description is perhaps on that ground alone defective. Lafayette v. Blanc, 3d Ann. 59.

But supposing that the front was intended to be upon the river, where is it to begin, how is it to run, and where is it to end ? Whether the words of description used mean at the place called the lagoon or in the vicinity of the lagoon, the starting point of the survey is alike uncertain and the designation of it by the surveyor who located the grant, purely arbitrary, so far at least as it affects the rights of the defendants.

It is said that Dominique and Ursin Bouligny had each a grant of the same extent and in the same neighborhood ; that the grant of Ursin was above and adjoining that of his brother, and that as the grant of Dominique has been confirmed and located, and no objection is made to the location, his upper line must be taken as the lower line of Ursin.

The title of Dominique is not in the record, nor is there any evidence to show that it had a definite location. The title of the plaintiffs does not purport to be bounded by it; and that boundary could not now be assumed to the prejudice of the defendants.

It is further urged, that the claim ofthe plaintiffshaving been duly filed in the land office before the 1st of July, 1808, at whatever time before the report was made, the proof was given in support of it, the land covered by the claim according to Morgan’s survey, was reserved from any disposition by the United States. The survey referred to by counsel was made at the request of Dominique Bouligny, and bears date the 8th February, 1808. It was filed in the land office in support of the joint application of Dominique and Ursin, tobe confirmed to eighty arpents front of land by forty arpents in depth, under the order of survey issued in their favor, and was intended to embrace both grants.

We do not understand the plaintiffs as claiming now under that survey. After having alleged that they possessed as owners under it, in possessory actions instituted by them against some of the defendants and others, and after having recovered judgments restoring them to possession under that survey, they repudiated it, and in 1843 caused another to be made by the surveying department which entirely changes the course and position of the lines; so that while Morgan’s survey only conflicted with the defendants’ title to the extent of eighteen or twenty superficial acres, the conflict under the last survey amounts to several hundred acres. The land department has not passed upon that conflict;- considering it an open question, it is clear to us, and the point seems to be conceded, that the survey of 1843 cannot affect the rights of the defendants. After the plaintiffs and their vendors had claimed, during thirty-five years, the lines of Morgan’s survey, and after they had recovered judgments against the defendants under that location, it would be too much to say that the agents of General Lafayette, when they located warrant No. 3 in 1808, might, with common attention and common intelligence, have ascertained and avoided the location which the plaintiffs themselves disclaimed till 1843. The manner in which the surveys have been changed by the sui'veying department, sufficiently shows that they were from the beginning arbitrary; and we consider it too clear for argument, that the land included in the last survey was not necessarily embraced within the tract confirmed to Ursin Bougliny.

As already stated, the extent of the conflict between Morgan’s survey and the defendants location is only from eighteen to twenty superficial acres; but even to that the plaintiffs have no claim. Under an act of Congress passed on the 28th February, 1806, when the board of commissioners desired surveys to be made, they ordered them to be executed at the expense of the claimant, and parties could in all cases avail themselves of its provisions, and have their claims surveyed. But the act expressly provided, that those surveys, as well as every other survey, by whatever authority heretofore executed, (those of legal and complete titles only excepted,) should be held and considered as private surveys only.

This survey was merely an attempt on the part of the Boulignys to locate their grants. It is not evidence of location against the defendants, and can have no influence on the title of either party. Mackay et al. v. Dillon, 4 Howard, 421.

This case is not unlike that of the United States v. Lawton et al., 5 Howard, 26. The grant in that case was for six miles square of land at the place called Dunn’s Lake upon the river St. Johns. There is no lake on the river St. Johns known as Dunn’s Lake; but there is a considerable lake of that name running parallel with and on an average about five miles distant from it. The Supreme Court thought themselves authorized to conclude, from the object for which the grant was asked, that it was intended to front upon the river, and to be located between the river and the lake. But as the St. Johns, by its meanders, lies opposite Dunn’s Lake for a distance of thirty miles, the land could be located on any portion of that base line which would give the front required. In that case as in this, the difficulty consisted in finding a point at which to commence the survey. From the face of the grant this could not be done, and there was nothing else to refer to. On the ground of uncertainty in the location, the Supreme Court of the United States reversed the decision of the Superior Court of Florida, which recognized the validity of the grant.

Grants made without a specific location like that of Ursin Bouligny were in the nature of floating requites which may be confirmed and located under the authority of Congress, provided the location does not interfere with others previously made in due form of law. We are satisfied that under the grant to Ursin Bouligny the land claimed was not severed from the public domain, and that it was subject to the location made for General Lafayette.

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


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    Same Case — On a Re-hearing.
   judgment of the court, on a re-hearing, was pronounced by

Rost, J.

The plaintiffs have asked for a re-hearing upon the following points : 1st. That Morgan’s survey gave them a location of which they can avail themselves, notwithstanding the survey subsequently made and approved by the surveyor general. 2d. That there was a sufficient descriptive call in the original title of Bouligny.

Under the act of Congress of the 28th February, 1806, Morgan’s survey was a private survey only, unless it was approved by the surveyor general after confirmation. That act provided, that after confirmation the lands should be resurveyed, if judged necessary, prior to the issuing of patents, under the authority of the person exercising the functions of surveyor general, and at the expense of the parties. If, after confirmation, in the case no other survey had been deemed necessary, and the survey made in 1804 had been approved by the surveyor general, it would probably have been evidence of location from its date. But in 1843 another survey was deemed necessary. It was made under the authority of the surveyor general and approved by him. It seems to us clear, under the act of Congress, that the first survey is no longer to be considered as a portion of the plaintiffs’ title. Land Laws, p. 528, edit. 1828.

2d. There was not in the primitive title of Bouligny a sufficient descriptive call. The call would have been answered by a location on the river at any point in the neighborhood of the lake, and equally well by locations on either side of the lake. The location of Dominique Bouligny is purely arbitrary, and cannot avail the plaintiffs.

The re-hearing is refused.


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    Price and Frost v. H. A. Tucker.
    A demand for the performance of a contract, hy a clerk who is a competent witness for the plaintiff, in the presence of another competent witness, is a sufficient patting in default to entitle the party making the demand to the recovery of damages.
    The time for completing commercial contracts is not limited to banking hours. A party has the whole business day to deliver or to pay.
    Where the parties have stipulated a fixed penalty for the non-performance of a contract, the penalty may be recovered.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      T. R. Wolfe, for plaintiff.
    E. A. Bradford, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant, through his broker, Mussina, entered into the following contract with the plaintiffs : “ I have this day purchased from Messrs. Price & Frost, for Hiram A. Tucker, Esq., 1500 barrels full branded mess pork, at $10 per barrel, to be delivered in New Orleans, at Bozant's or Holmes’ inspection, from the loth April to the 1st of May next, at the option of the seller, giving the purchaser five days notice, within the time named, each party to deposit in the Canal Bank, one dollar per barrel, for the faithful performance of his contract, the forfeiture of which annuls the same.

(Signed,) J. Mussina, Broker.

New Orleans. March 27th, 1'849.”

“In lieu of the within named deposit, it is agreed to receive as deposit 170 barrels mess pork, placed in the hands of Schultz, Hadden, Sf Leach.

(Signed,) H. A. Tucker.”

The plaintiffs allege, that Tucker is in default, and has failed to comply with his contract; that he is absent from the State, and that the firm of Millbank Sf Co. were, at the time the contract was entered into, and still are, his agents. This action is brought against the latter in their capacity of agents, to recover the penalty stipulated. The answer admits the contract and the agency of Millbank Sf Co., and avers, that on the 30th April, 1849, he was ready and willing to comply with his agreement, and that the plaintiffs were duly notified thereof, but that they failed and refused to carry out said agreement, and to deliver ,1500 barrels of pork as therein stipulated. He claims the penalty as due to him. There was judgment in favor of the plaintiffs for the pork deposited with Schultz, Hadden Sf Leach, and the defendants appealed.

The case turns upon a question of default. The defendant contends, that there is no evidence in the record to show that he was put legally in default, and that the demand was not made in presence of two witnesses. Patterson, the clerk of the plaintiffs, deposes that he made the demand and tendered the warehouse orders for the pork to the defendant, in presence of Mussina, who also swears to the fact. At a subsequent call of the same witness, Mr. Pres-bury was present. At this, or another call, the witness Martin was also present. This evidence establishes the demand in presence of two witnesses. Godefroy v. Alderson, 4 L. R. 230. Wilbro v. McGillicuddy, 3 L. R. 385. Hyde v. Grigsby, 11 L. R. 240. Baily v. Stetson, 1st Ann. 332.

But, besides this, on these demands, Mr. Millbank promised, without objection, that the money should be paid within banking hours. He made this promise upon the certificate of his own broker, that the bill and orders of the plaintiffs were correct. It is said, he could recall it when he was subsequently apprized that two of the orders, each for 100 barrels of pork, had been refused acceptance. However this may be, the orders were made good during business hours of that day, and the plaintiffs’ agent had no pretext to withhold payment. It is shown, that after this Mr. Millbank offered one of the plaintiffs his check for the amount, but that he refused to take the check, unless he kept the orders in his own possession until the check was paid. It was then arranged that Mr. Presbury, who happened to be in Millbank's office at the time, should hold both the orders and check, till they could enquire at the bank if the check was good. Mr. Frost and Mr. Presbury then went to the City Bank, on which the check was drawn, but found the bank closed. Mr. Presbury then proposed to hold possession of the check and orders, and to give his own check to the plaintiffs, which the latter were ready to accept. When Mr. Millbank. however, returned to the office and was informed of what had passed, he refused his assent to such an arrangement, giving as a reason that the orders were not good, and he could not, get the pork within the time of the conclusion of the contract, at three o’clock. That he, therefore, considered the contract forfeited, and would claim the forfeiture in the hands of Schultz, Hadden Leach. The time for completing commercial contracts, is not limited to bank hours ; nor is there any thing in the form of the contract in this case making an exception to the general rule, that a party has the whole business day to deliver or to pay. The plaintiffs were anxious to be paid before three o’clock, because they required the amount due them to make their bank account good. Their demand of payment as made did not change the original contract.

It is urged, that the judgment should have been for the specific deposit originally made in the Canal Bank, and not for the pork, which was simply deposited to secure the penalty. The first agreement was, to make in .the Canal Bank a deposit of $1500, forfeiture of which would annul the contract. To this deposit, the parties subsequently agreed to substitute a deposit of 170 barrels of mess pork. The first deposit no longer had any existence, and the forfeiture could only attach to the second.

The judgment is therefore affirmed, with costs.


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    William Connery v. W. G. Kendall.
    A party receiving a bill of exchange after maturity is subject to any equities existing, between the original parties.
    A bill of exchange when once paid by the acceptors cannot be again re-issued after maturity so as to bind the drawer.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Penmston and Grymes, for plaintiff.

      B. D. Howard, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant drew a bill of exchange in favor of J. B. Wallace, on Messrs. Galbraith and Greenfield, which was accepted by them. At its maturity they failed to pay the bill. It was protested, and notice thereof given to the defendant, the drawer. After its dishonor the bill was transferred to the plaintiff by the endorser, who sues the drawer. The plaintiff, of course, is liable to any equities between the endorser and the defendant..)

The defendant alleges, that at maturity the bill was partially paid, and as to the balance was renewed by a promissory note drawn by the endorser of the bill and endorsed by the acceptors, which was paid by the acceptors.

Greenfield, one of the acceptors, having been released by the defendant, was offered by him as a witness, and proved, without objection to his testimony, that twenty per cent of the bill having been paid at maturity by Wallace, the City Bank, in which it had been discounted, discounted the note of Wallace with the endorsement of Galbraith and Greenfield for the balance, and gave up the bill. He further stated, that it was agreed between him and Wallace, that his firm were to take up this note ; that Wallace furnished $1420 of the means to take it up, and told witness that if he would take it up at maturity, with this aid, he would release all the parties to the bill of exchange; and he proves that the note was taken up and paid by him.

This testimony is corroborated by the fact that Wallace did pay 20 per cent on the amount of the bill; that a note signed by him and endorsed by Galbraith and Greenfield was discounted in the City Bank, and ghecked for by them in payment of the note given for the balance of the original draft, and that this note was, in point of fact, paid and taken up by Galbraith and Greenfield; or these facts, having b.een sworn to by Greenfield, would have been immediately disproved by the officers and directors of the bank. He is corroborated also by . Galbraith, who, having been released by the defendant, states that his firm had been shipping produce under the direction of Wallace, and that the latter had advanced largely upon it; that their accounts were not liquidated, and that they paid Wallace a thousand dollars after they failed, that is about the time the transactions occurred which are the subject matter of this suit.

We regret that the testimony in a case involving so large an amount, is not more definite and satisfactory; but on the whole, think it preponderates in favor of the defendant, and that we are are not authorized to reverse the judgment of the district court, which is affirmed, with costs.


author: Eustis, C. J,

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    The Commercial Bank v. John B. Foster.
    The Commercial Bank suspended specie payments in the year 1843, and resumed in 1844. A party who had caused notes of the hank to be protested on the suspension of the bank, can recover the interest imposed by the charter as a penalty for suspension only during the time of the suspension.
    A statute must be construed with reference to its object; and if this be inconsistent with the precise words of the statute, the latter must yield to the controlling influence of the will of the Legislature resulting from the whole.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      Rawle, for plaintiff.

      Benjamin and Micou, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J,

This is an appeal by the plaintiff from a judgment rendered on a reconventionnl demand made by the defendant, by which the bank was decreed to pay the sum of $3100, being the amount of certain protested bank notes of said bank held by the defendant, together with ten per cent per annum interest from the dates of the protests of said notes until paid, with costs of protest and suit.

The dates of the several protests are in April, 1843, at which time the bank had suspended specie payments. The bank resumed specie'payments on the 14th August, 1844; advertisements were made in the papers of the fact, and it was known to the defendant at the time it took place.

The argument of counsel has been directed to the error of the judge of the district court in allowing interest at ten per cent on the notes until paid. The judge thought himself bound to allow this interest, under the 20th section of the charter of the bank, which provided, that the bank shall not suspend or refuse payment in current currency of the United States, of any of its notes ; and if it should suspend or refuse, the holder of the note shall be entitled to l'eceive interest, from the time of the suspension until the note shall be paid, at the rate of ten per cent per annum.

The object of this statute was to maintain the standard value of bank notes, which at the time constituted the currency, by imposing a penalty on the bank whose notes should be depreciated by a refusal or delay in their payment on demand. When a bank which had suspended resumed its payments, and its bank notes were paid on demand at its counter, it is obvious, payment of them would cease to be demanded and the notes would resume their functions of circulation as a part of the currency. The object of the statute was then answered, and the penalty imposed could only be exacted for the time the bank was in default. Inasmuch as the moment the value the notes as circulation was attained the bank would have no power to take them up, it seems plain that the bank could no longer, in the eye of the law, be considered as being in default.

We think the construction given to the section of the charter quoted by the learned judge, was too technical, and consequently erroneous. A statute must be construed with reference to its object, to the legislation and system of which it forms a part, in order to ascertain its true meaning and intent; and if its purpose and well ascertained object are inconsistent with the precise words of a part, the latter must yield to the paramount and controlling influence of the will of the Legislature resulting from the whole. 6 Bacon’s Abridgment, verbo Statute, No. 5. The People v. The Utica Insurance Company, 15 Johnson, 380.

In the present case it does not appear that the bank, after its resumption of specie payments in August, 1844, ever had an opportunity of paying any of these notes; they were not deposited after the demand of payment, so that they could be paid with the interest due, and were probably made use of in circulation as money. Only in 1849 was a demand made for payment, which was coupled with a demand for the interest at ten per cent until paid, and it is at the instance of the bank itself that this matter is brought to a decision by a suit of jactitation. A stronger instance of the unjust and disastrous operation of the construction of the section of the charter given by the district court could not be given.

As we do not think that any of the provisions of the acts of the Legislature relating to the liquidation of the banks, affect the right to recover interest between the present parties, although the bank which is plaintiff went into liquidation under these acts, yet as it resumed specie payments in August, 1844, it was no longer liable to pay interest on notes which it was at all times ready to pay. ipjje cjjal.ge 0f costs of protest, allowed by the district judge, is inadmissible, being in direct conflict with the act of 11th March, 1842. Statutes of 1842 p. 230. This act provides, that the costs of protest of this kind shall not be recovered. The judgment of the district court allowing interest subsequent to the 14th August, 1844, and costs of protest, will have to be changed.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed. It is further ordered, that the defendant, John B. Foster, recover from the plaintiff, the Commercial Bank of Nexo Orleans, the sum of $3100, with interest at the rate of ten per cent per annum on $500, part of said sum, from the 15th of April, 1843, to the 14th of August, 1844; and ou the balance, $2600, from the 17th of April, 1843, to the 14ih of August, 1844, at the same rate, with costs of the court below; the costs of this appeal to be paid by the defendant and appellee.


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    The State v. The Judge of the Second District Court.
    Where an administrator has been dismissed, under the act of 13th March, 1837, he cannot .take a suspensive appeal from the order of dismissal, although he may from such part of the judgment as condemns him in pecuniary damages. C. P. 1059.
    Where a general rale of practice has been established by the Code of Practice, it applies to cases which may arise under statutes enacted subsequent to that code, unless the statute repeals the rule prescribed.
    Where an appeal has been granted, in determining whether it be suspensive or not it is the duty of the court so to construe it (if susceptible of such a construction,) as not to involve an attempt by the judge in granting it to violate the law.
    On an application of Mills Judson, for a mandamus, in the succession of Felix Connolly.

      Halsey, for relator.
   The judgment of the court was pronounced by

Slidell, J.

Mills Judson was administrator of this succession. Upon a rule taken by creditors, under the act of Mai-ch 13th, 1837, he was condemned to pay interest on monies not deposited in bank, and was dismissed from office. Soon after, to wit, on the 6th May, 1850, an order was entered in the following words:

“ On motion of Hoffman 8f Halsey, of counsel for Mills Judson, administrator of said succession, on suggesting to the court that he is advised and believes that there is error in the judgment rendered herein, on the rule taken by John M. Bach and John Mitchell, as creditors of said succession, on the 20th day of April last, dismissing said Judson from the office of administrator, and condemning him to pay interest at the rate and for the time in said judgment specified, and that said Judson is desirous of appealing from said judgment, and of staying the execution thereof.

“ It is ordered, that an appeal be allowed accordingly, returnable in the Supreme Court on the 4th Monday of July next, on said Judson filing his bond with , as security in the sum of five thousand dollars, conditioned as the law directs.”

On the 8th May, 1850, Judson filed an appeal bond, in the usual form, with a surety in the sum designated by the order. Subsequently, Judson presented a petition to the district judge, praying for the sale of the property of the succession, in order to pay debts, which he refused. Judson now asks a mandamus.

The article 1059 of the Code of Practice declares, that when an appeal is made from a judgment appointing or removing a tutor or curator of a minor, interdicted, or absent person, or of a vacant succession or absent heirs, or other administrators of a succession, such appeal shall not suspend the execution of the judgment, but it shall have effect provisionally, until the appeal be decided. See also the French text, “ ou ordonnant la destitution ou le déplacement d’un de ces administrateurs.” It is not pretended by the applicant’s counsel, that there has been an express or implied repeal of this law.

The removal of an administrator, when based on misconduct, might well justify the jealousy of the law, arid an apprehension that the estate would be unsafe in his hands during the delay of an appeal. But it is said, that the statute under which Judson was removed, was subsequent to the Code of Practice, and that his case should not be considered as comprehended by it. The terms of the article are unqualified, and we can see no reason why a removal for the particular breach of duty in question should not be covered by it, because the duty was imposed by a subsequent enactment. Judson, though clearly entitled to a suspensive appeal from the money part of the decree, was not, under the article, entitled to such an appeal from the order of removal. But, it is said, the court granted a suspensive appeal as to both, and that the whole judgment thus became temporarily inoperative. Is this the fact? The suggestion of counsel states a desire “ of appealing from said judgment, and of staying the execution thereof;” but the order is that an appeal be allowed, without stating in express terms that it shall suspend the execution of the entire judgment. It is our duty, therefore, under the circumstances, so to construe it (if susceptible of such a construction, which we think it is,) as not to involve an attempt by the judge to violate the law. In deciding the application upon this ground, we are not to be understood as recognizing the position that a suspensive order of appeal, illegally granted, would be binding upon the district judge, especially in a case of this sort, where an administrator who has disobeyed the command of the law with regard to the funds in his hands, desires the court to grant an order, the effect of which would be to put new monies into his hands. See also Byrne v. Riddell, 4th Ann. 3.

Mandamus refused.


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    Dyke and Hurlburt v. Augustus W. Walker.
    Where a party has made a seizure of the property of another, who was protested in consequence of his property being thus tied up, the party making the seizure is responsible for damages, and in assessing the damages, the injury arising from the loss of credit, &c., in consequence of the protest, are not “ too remote” to be considered.
    Lawyers’ fees incurred in recovering property which had been improperly seized in a suit against another person, may he recovered hack in a suit for damages for the illegal seizure.
    APPEAL from the Second District Court, of New Orleans, Canon, J.

      A. N. Ogden, for plaintiff,
    contended: This action is founded on article 2294 of the Civil Code, which declares : “ Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.” The damages allowed by the jury are extremely moderate, and not by any means commensurate with the extent of the injury inflicted by the wanton and reckless conduct of defendant, in seizing their property without any other reason than a mere suspicion that this particular flatboat of hay, among the hundreds afloat in the river Mississippi, might be the one on which his agent had informed him, by letter, he had made a small advance. The testimony of G. W. Cohen and of Thomas Gaff, fully support the verdict of the jury.

      Elmore and King, for the defendant,
    contended: This is an appeal from a judgment on a verdict for damages against the defendant, for having seized in another suit, as is alleged by the plaintiffs, their property “ without any sufficient or justifiable cause.” The evidence shows that Walker had received intelligence that Wasson had purchased for him, at Memphis, a flatboat of hay. That about the time the boat should have arrived at New Orleans, a flatboat of hay did arrive at Lafayette from Memphis. That this was the only vessel of the description which Wasson informed Walker he had purchased, which arrived about that time from Memphis. That upon the arrival of said flatboat, the receiving clerk of the defendant, James Wallace, went on board and enquired who were the owners of the boat. He was told by those on board “ to find out.” He called several times, and the persons on board refused to give him any satisfactory information. He told them Mr. Walker thought the vessel belonged to him, and there might be some trouble about it. But still they would not call on Mr. Walker as requested, or make any explanations. Wallace believed the vessel was the one Wasson had purchased for Mr. Walker, and so informed Mr. Walker. The vessel which Wasson had given the intelligence of having purchased never arrived. It was upon the information of Wallace that Mr. Walker seized the boat. Under this state of facts, Mr. Walker commenced suit in the parish of Jefferson against Owen Legg and Mirk, the apparent owners of the boat and cargo.
    On the 15th of March, 1847, the boat and cargo was seized. It is proved that at the time of the seizure the hay was worth about $20 per ton. After that suit was brought, the present plaintiffs intervened, and claimed the boat and caigo. By consent of the intervenors, the boat and hay were sold on the 9th of April, 1847, before they had been under seizure a month, and the hay brought, at the sale, fifty per cent more than it was worth at the time of the seizure. The intervenors gained the suit and received the proceeds of the said sale. Not content with having received fifty per cent more than they had actually contracted to sell their hay for, they brought the present s,uit for damages.
    The jury, by a process of reasoning known only to juries, construed a positive gain of fifty per cent into a damage to the plaintiffs of six hundred and sixteen dollars and some cents, for which sum they gave their verdict.
    It was contended in behalf of the plaintiffs before the jury, and is so alleged in the petition, that in consequence of the seizure, the plaiutiffs were protested for $2700, and thereby their credit was destroyed, and they greatly damaged. We deny, in the first place, that the evidence sustained the allegation. The boat and hay when sold by the sheriff, brought but eleven hundred and fifty-six dollars and fourteen cents. The hay sold then for fifty per cent more than the plaintiffs had agreed to sell it for at the time of the seizure. How the plaintiffs could have paid $2700 with their boat and hay, even if the seizure had never been made, is a mystery to us.
    It is true there were thirty tons of the bay sold to Burgess at twenty dollars per ton, for which he very improperly and illegally refused to pay. But the hay sold by the sheriff brought more than the whole cargo would at twenty dollars per ton.
    A witness, who styles himself a merchant, miller and distiller, tells us that one of the plaintiffs, Hurlburt, drew a bill, which some bank refused to discount because Dyke and Hurlburt had been protested in New Orleans; but he says nothing about the effect of the protest upon the credit of the firm of Dyke and Hurlburt. He further tells us the only resources of that firm were their credit, and their only business “the adventure” on the river, which consisted so far as we know, of one flatboat of hay. Another witness speaks of one of the plaintiffs being sued for a small debt, and that his property was sold to pay the judgment. Their own witnesses show that their loss of credit was owing to their want of means, and not to the seizure made by the defendant. It is difficult to imagine how the parties could have been injured in a pecuniary sense by the seizure, when they gained fifty per cent profit by it.

      Secondly. We deny that the plaintiffs can recover anything on account of damages so remote and uncertain. The authorities upon this point are too numerous and conclusive to require further argument. Civil Code, 1928, secs. 1 and 2, 2294 and 2304. Pothier on Obi. p. I, chap. 2, art. 3. Sedgwick on Damages, p. 64, et seq. Helery v. Mornet, 11 M. R. 10. Gaulden v. Mc-Phaul, 4th Ann. 80.
    The same rule, as to proximate and remote damages, holds in cases of quasi-contracts and quasi-offences. Hopkins v. Van Winckle, 2d Ann. 143 ; also 4t.h Ann. 80. Lahaye, Code Napoleon, 1151. Notes from Bigot, Préamenu and Delvincourt.
    The evidence shows the defendant had probable cause for the seizure of the boat and her cargo.. That he was not actuated by malice. That the seizure resulted in a benefit of fifty per cent to the plaintiffs. Under these circumstances, we cannot conceive how it is possible for them to recover damages of the defendant. There Was an attempt made to prove damages on account of the -fees paid to lawyers by the plaintiffs in their intervention suit. The proof was objected to; but even if admitted is not sufficient to establish any claim for damages on this account.
   The judgment of the court was pronounced by

Preston, J.

In the spring of 1847, in a suit against Legg and Mirk, the defendant caused to be seized a fiatboat load of hay belonging to the plaintiffs, alleging that it belonged to him. The plaintiffs were in possession of the property seized, and intervened in the suit to claim it. After trial it was decreed to belong to them; and having been sold by the sheriff, by consent of parties, during the pendency of the suit, in June, the proceeds were delivered to them by the sheriff.

The defendant caused the property to be seized on the supposition that it was a flatboat of hay, the purchase of which he had ordered at Memphis by one Wasson. He by no means shows that he made proper investigations to ascertain that the property was his before he seized it. It turned out on trial to be the property of the plaintiffs, with whom the defendant and his agents had no relations, and indeed he shows scarcely any pretext for seizing the property.

The plaintiffs had raised the means of purchasing the hay at Aurora, in Indiana, by having discounted a bill on New Orleans. Their only means of payment was the proceeds of the cargo of hay, or the credit it gave them. The property being in litigation, they could not use these means of meeting their bill. It was prot-sted, and their credit and business broken up. The property of one of them was sold under execution for a small debt. They incurred expenses in New Orleans on account of the seizure of their property.

These consequences were not too remote to be considered by a jury in assessing their damages, for which this suit is brought. The damages were assessed, by the verdict of a jury, at six hundred and sixteen dollars and forty-six cents, and we are unable to say that the damages are excessive.

It is true, that the hay rose in value during the pendency of the suit. This no doubt was considered by the jury, but it was connected with the fact, that the plaintiffs had sold the whole cargo at the market price; had delivered a part, and that the purchaser refused to pay for that part in consequence of the nondelivery of the whole, and probably claimed the rise in the market price of hay as belonging to him, on the whole cargo.

The testimony of Wallace, offered by the defendant and rejected by the court, was evidently hearsay testimony, and was properly rejected, and ought not to have altered-the verdict if it had been admitted.

The testimony of Leeds and Weaver given in the suit between Walker and Legg and Mirk, offered by the plaintiffs and received by the court, is not before us, nnd we cnnuot say that it prejudiced the defendant’s case, or indeed decide any thing in relation to it.

The allegation in the plaintiffs’ petition, that they had been subjected to lawyers’ fees, in consequence of the seizure of their property by the defendant, authorized the court to receive the testimony of Ilir. Bradford, which was objected to by the defendant.

We are of opinion, that the judgment of the district court should be affirmed, with costs in both courts.


text:
    Same Case — On a Re-hearing.
   judgment of the court, on a re-hearing, was pronounced by

Preston, J.

The counsel of the defendant has presented a strong argument in support of his petition for a re-hearing. He quotes the rules of law as to damages resulting from the active or passive breaches of contract as those applicable to the case. In that case, the parties consider, in making the contract, the damages that may result from its breach.

The damages in this case do not arise ex contractu. On the contrary, the defendant eaused the cargo of hay belonging to the plaintiffs to be seized as his property, without any pei'son identifying the boat as his, and without knowing certainly that his agent had bought a cargo for him at all. He kept it from the plaintiffs for several months. He did not give it up until a trial was had. The jux'y no doubt concluded, as has been sti'enuously maintained in this court., that thei'e was no pretext for seizing or retaining it in the sheriff’s custody; and if so, his acts amount to a quasi-offence. The rules of law as to damages gi'owing out of quasi-offences are applicable to this case, and not those as to damages growing out of breaches of contracts. But even in this case, a jury should requix-e certain evidence as the basis of their verdict.

We certainly consider the damages assessed by the jury as high, and would not have assessed them so high on the wi'itten testimony, especially because thei'e is not that specific proof of the amount, which should have been furnished. But the court find themselves precisely in the situation of the late Supreme Court, in the case of Looney v. High, in which the court said: “ In a case like the present, it is extremely difficult to assess the sufferex-’s damages with any degree of correctness or precision, and those given by the jury appear to us very high ; but we have felt great reluctance to expose the parties to the trouble and expense of further litigation by remanding the case for a new trial. In acting on it we have found oux-selves without any certain criterion, and, therefore, have been compelled to coincide with the jui-y.” 13 L. R. 271.

In the case of Henry v. Dufilho, the coux't intimated that if a pax-ty bx-ing an ordinary suit without color of title, it might afford cause for damages. Surely, therefore, if he seize property as his own, without making proper investigations by which he would have ascertained the contrary, he is liable for damages; and these may be inci'eased if he pex-sists in continuing the suit and seizure beyond the time necessary to ascertain certainly that he was wrong in seizing it.

Re-hearing refused.


text:
    Holmes and Swanwick v. Steamer Belle Air and Owners.
    The surety on an appeal bond is liable for whatever judgment may he rendered against the principal, although the judgment of the court of the first instance may he reversed in part in the Supreme Court; and such surety may be proceeded against by motion under the act of 20tb of March, 1839, amending the Code of Practice.
    The plaintiffin proceeding against a surety on an appeal bond, is not obliged to have the execution against the principal made returnable at the longest period prescribed by law, It may be returnable in the shortest legal delay.
    Sureties on an appeal bond are entitled to the benefit of a division, when they have specially asked for it in their answer, unless the plea be met by proof of the insolvency of the co-sureties.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    Rozier, for plaintiffs.

      Frost and Upton, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

When this cause was previously before us, we reverse the judgment of the district court, dissolved the attachment, and gave judgment against the owners personally. The main question now presented is the liability of the sureties in the appeal bond. They contend, that they are not liable, because the judgment from which the appeal was taken was not affirmed. The condition of the appeal bond follows the terms of the 579th article of the Code of Practice. “Now, the condition of the above obligation is such, that the above bound Barclay, and others, shall prosecute their appeal, and shall satisfy whatever judgment may be rendered against them, or that the same shall be satisfied by the proceeds of the sale of .their estate, real or personal, if they be cast in the appeal; otherwise, that 'the said sureties shall be liable in their place.” The question is the same as was presented in Diamond v. Petit, and which then received a careful consideration. Our opinion .upon the point remains unchanged. See 3d Ann. 39.

It is said, however, that, even if the sureties are liable, the plaintiffs are not entitled to proceed against them, by notice under the act of 1.839. The objection is based upon the strict letter of the statute. It is .entitled an act to amend the Code of Practice. Three sections are framed for the purpose of expediting the remedy of the successful litigant against judicial sureties. Sec. 2, 3, 20. The 20th section provides, that in all cases of appeal to the Supreme Court, or other tribunals in this State, if the judgment appealed from be affirmed, the ■ plaintiff may, on the return of the execution, that no property has been found, obtain a decree against the surety on the appeal bond, for the amount of the judgment on motion, after the days notice, which notice shall be tried summarily, and without the intervention of a jury,” &c. This section is amendatory of the 596th article, of the Code of Practice, and should be construed in connexion with it. That article declares, that, “ if on the execution of the judgment of the appellate court, there is not sufficient property of the appellant to satisfy judgment,” &c. The object of the statute being to expedite the remedy against sureties, it would be unreasonable to infer, that there was an intention to discriminate between the case of an affirmance of the judgment of the lower court and a new judgment by the appellate court; the surety being liable in both cases. This would be adhering to the mere letter of the law, without regarding its substauce. The fair meaning of the law-giver is, to quicken the appellee’s reliof against the surety, by taking away the means of delay, which, under the article 596, as construed by the Supreme Court, the surety enjoyed. It had been held in Chalaron v. McFarlane, 9 L. R. 230, that the surety is not bound to pay until all this property, both real and personal, is first exhausted ; while the act of 1839, said the court, in Saulet v. Trepagnier, makes the surety liable on the return of the execution, that no property has been found, without allowing him to show that his principal has property in another parish, &c. 7 R. R. 328.

The writ of ji. fa., which was returned “no property found,” was dated April 14, 1849, and was returnable on the 3d Monday of the ensuing May, viz.: 21st. This was an interval of more than thirty days. It was a legal interval under the stntute, and although it might have been legally made returnable in seventy days, the plaintiff in execution, was under no obligation to adopt the extreme terms. See Statute April 7, 1826, sec. 16.

In the answer of the defendants to the rule, they plead the exception of division under article 3018 of the Civil Code. The doctrine on this subject was considered in McCausland v. Lyons, 4th Ann. 273. The plea has not been met by any evidence of insolvency. The sureties are therefore entitled to the division.

It is therefore decreed, that the judgment be so amended, as to make the said Walton, Sanford, Hartwell, Kidder, and Carman, liable each only for his virile share, to wit, one-fifth instead of the liability in solido, adjudged by the court below; that the costs, however, of the rule upon the said sureties, be paid by them in solido, and that the costs of this appeal be paid by the plaintiffs.


author: Eustis, C. J.

text:
    Same Case — On a Re-hearing.
   judgment of the court, on a re-hearing, was pronounced by

Eustis, C. J.

Having entertained some doubts as to the correctness of the decision in this case, on examining the petition of counsel for a re-hearing, we granted it, and the case has been elaborately argued on both sides. A careful consideration of the authorities and arguments submitted, has justified us in our original conclusions, and we are satisfied of the correctness of the judgment rendered.

The judgment, therefore, of this court remains undisturbed.


text:
    James Hubbell et al. v. Mary Hubbell.
    The code expressly provides that the expenses of a minor shall never exceed his revenues, without the authority of the court upon the advice of a family meeting.
    from the Second District Court of New Orleans. Lea, J.

      H. H. Strawbridge, for plaintiff.

      C. W. Hornor, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs sue their mother and tutrix by nature, duly qualified, for an account of their paternal inheritance. Their father, Julius Hubbell, died the 19th of July, 1837, leaving the defendant, his widow, and five children. It appears by the account she renders, that he left personal property and money belonging to the community existing between them to the amount of $4600.

At the death of her husband she prudently invested it in a house for the common dwelling of herself and children, which she still owns; and the plaintiffs pray a legal mortgage upon the property.

The defendant insists, that she has expended more for the support and education of the plaintiffs than their share in the succession of their father, being one tenth part to each, and renders this probable by testimony, though the plaintiff James shows that he contributed to support the family by his industry, and Mrs. Vinett no doubt did her share of the work of a family in very moderate circumstances. Be this as it may, our code expressly provides, that the expenses of a minor shall never exceed his revenues, without the authority of the court upon the advice of a family meeting; which was not obtained in this case. Barbarin v. Barbarin, 3d Ann. 264. The judge no doubt would have ordered the sale of the furniture left by the father, if the defendant had asked it; but we have no doubt it is for her advantage to retain it, on payment to the plaintiffs, each, of twenty dollars: the tenth of her own appraisement of its value.

The law charges and costs of rendering the account by the defendant were properly remitted. Interest at five per cent should commence to run on the amount of the judgment from the 17th Januaiy, 1850.

The judge gives satisfactory reasons for having refused a new trial as well as a continuance of the case, on account of the absence of the counsel originally employed by the defendant in the suit. She has been fully defended both in the district court and in this court.

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