text:
    William Brown et al. v. Stephen Roberts.
    The surety on a tutor’s bond cannot require that payments made by the latter to his ward, shall be imputed to the amount that may be due upon the bond, on a breach of its conditions. The doctrine of imputation of payments does not apply to such a case.
    Where the tutor makes a surrender of his property, and the parties in whose favor the bond was executed, consentto, and vote for its sale on terms of credit, such sale is a granting of time, which will have the effect of discharging the liability of the surety.
    from the District Court of the Parish of East Baton Rouge, Beale, J.

      A. M. Bunn, for plaintiffs. T. G. Morgan, for defendant and appellant.
   Merrick, C. J.

The present action has been brought upon a tutor’s bond, signed by the defendant in 1833, as surety for Moses Brown, dative tutor to the plaintiffs, then minor children of William Brown, deceased.

The bond was given for $1,168. In 1848, the plaintiffs’ brought suit against Moses Brown for a settlement of the tutorship accounts, and recovered judgment in the sum of $4,185 70. Shortly afterwards, Moses Brown made a surrender of his property to his creditors. At the meeting of creditors, the plaintiffs, William Brown, Octavius Brown, since deceased, and the plaintiff George IClinepeter, representing his wife, voted for the sale of the movables for cash, the slaves one-fourth cash, and for the residue, a credit of one year, and the land on a credit of one and two years.

The heirs of William Brown received, on the tableau of distribution of Moses Brown’s syndic, the gum of fifteen hundred dollars.

Judgment having been rendered against the defendant for the amount of the tutor’s bond, $1,168, and legal interest from 19th of February, 1853, he has appealed, and made the following points in this court:

1st. That he has the right to impute the payment made by the syndic to the satisfaction of the bond on which the appellant was surety; and,

2dly. That the appellant was discharged from his obligation as surety, by the acts of plaintiff in according time to Brown, the principal obligor.

I. The doctrine of imputation of payments has no application to a tutor’s bond in a case like the present. The tutor’s bond is collateral to the administration of the tutor during the entire tutorship. So long as the tutor does his duty and makes payment where payment is required, no cause of action arises upon the bond. It would, therefore, be absurd to impute payments to an obligation depending upon a condition which had not happened.

The collateral obligation upon the bond takes effect only where the tutor neglects or refuses to do his duty, or make payment, and it covers the refusal to pay the last dollar to his wards become majors, as well as the first, and where the bond is given for the tutorship of several, to the last minor who arrives at the age of majority as well as the first. All payments made by the tutor or his representatives to all or any of his wards, are but a performance of his obligation of tutor. A refusal to pay any final balance, to all or any of his wards, gives rise to an action upon the bond, for such refusal becomes a bi’each of a condition of the bond.

Where a tutor, being appointed to several minor heirs, gives but one bond, that bond is as much forfeited by a refusal to pay over to the last minor, arriving at the age of majority, as it would be if the refusal had been made to each heir. Por the breach of a single condition gives rise to an action of indemnity upon the bond, to the extent of the loss, whether that loss be sustained by one or all of the minors. But the surety on the bond can only be held responsible to the extent of the smn specified in it, and if the loss be sustained by several of the heirs, they must adjust between themselves the portions to which they are entitled.

As between the surety and the minors, he cannot contest the right of any one to recover upon the bond to the extent of the indemnity due him. But when the whole bond has once been exhausted, whether by suits seriatim upon the same by the minors, as they arrive at the. age of majority, or otherwise, the surety is discharged.

II. The second ground made by the appellant, presents some difficulty, as there are contradictory decisions on the very point in controversy. The plaintiffs’ counsel relies upon the case of Leger v. Arcenaux, 5 Bob. 514, decided at Ope-lousas in 1843, and the defendant, upon the cases of Lobdell v. Nephler, 4 La. 294 ; McGuire v. Wooldridge et al., 6 Bob. 50 ; and Peacocke v. Chapman, 8 An. 81.

The Article of the Code relied upon by defendant, is the opposite of Article 2039 of the Napolean Code, and declares that the prolongation of the term granted to the principal debtor, without the cpnsent of the surety, operates a discharge of the latter. O. 0. 3032.

The plaintiffs’ counsel relies upon the reasoning of the court in the case of Leger v. Arcenaux, to the effect, that by the surrender, the claim is no longer upon the debtor, but upon the net proceeds of the sale of the jn’operty ceded. And that the sale of the property for cash might have been injurious to the surety • &c.

This reasoning is not entirely satisfactory. By the surrender, it is true, that all proceedings against the insolvent are stayed. But the rights of the creditors attach upon the effects surrendered, and the term of payment is really prolonged, whenever, on the vote of the creditor, the effects of the debtor are sold on time. Bor on payment of the principal debt by the surety and subrogation, he could not obtain reimbursement until the credit sales had fallen due. The term then is really prolonged. If the surrender be looked upon simply as a mode of execution, the result would be the same. In the case of Peacocke v. Chapman, 8 An. 87, the giving of time consisted in consenting to a sale of property seized upon execution upon a twelve month’s credit. It was urged in that case, without effect, that the twelve month’s sale upon an execution, (being one of the modes of collecting a debt,) did not operate even a novation of the original debt, and could not, therefore, be considered as affecting the contract or prolonging its term.

Suppose, immediately after having procured the sale of the property of the insolvent on time, the plaintiffs had instituted suit upon the bond against the surety, could he not, the surety, say to them, “ you seek to bind me under more onerous conditions than my principal, for though you hold a legal mortgage upon the land and slaves to secure this debt, you have virtually deferred its payment for one and two years, and now you demand of me the amount in cash,” thus violating Articles 3006, 3030 and 3032 ? It seems to us, there would be much force in the reply, and, on the whole, we think, the case of Lobdell v. Nephler the best sustained by reason and authority. Still it cannot be disguised, that where a debt was only partly secured, as in this case the creditor would be placed in a a dilemma; for if he sought to secure the entire debt by procuring favorable terms of sale, lie would lose the security, and if he should suffer the sale for cash, he might lose the portion of the debt not secured, by the sacrifice of the property.

Giving the defendant, however, the benefit of our conclusions on this branch of the case, it will only occasion a small reduction of the judgment. For, as the condition upon which the bond was to become exigible has happened, the indemnity due the remaining' ward, must be paid in full, leaving to the plaintiffs to adjust their rights among themselves.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and we do now order, adjudge and decree, that the plaintiffs do have and recover judgment against the defendant for the sum of one thousand and eiglity-three dollars and eighteen cents, with legal interest thereon, from the nineteenth day of February, 1853, until paid, and that the plaintiffs pay the costs of appeal, and the defendant those of the lower court.


source: Caselaw Access Project

author: Merrick C. J. SrorroRD, J. Buchanan, J., Mkrkick, C. J. Buchanan, J.,

license: Public Domain

text:
      W. B. Scott v. G. C. Bogart and S. Toby.
    A cessio bonorum in this State is not a peremptory bar to a suit upon a judgment rendered contradictorily with, the ceding debtor in anothor State after the cession has been acceptedhoro, even though the debt upon which the foreign judgment was obtained was put upon the debtor’s hilan.
    In those States where tho common law prevails, when a commercial firm is sued, it is necessary that process should be served on each member of the firm, and. effect will not be given in ouv courts to a judgment there rendered against one of the members who was not served with process and made no appearance in the suit.
    from the Fifth District Court of New Orleans, Eggleston, J.
    /. for and Durant á Hornor and & Martin, for defendants.
   Merrick C. J.

The majority of the court adopt the opinion prepared in this case by Mr. Justice Spofford before his resignation. It is as follows :

SrorroRD, J.

This suit is based exclusively upon a judgment purporting to have been rendered in tho Court of Common Pleas for the city and county of New York on the 2d October, 1855.

Both defendants excepted to the suit, upon the alleged grounds that on or about the 17th Feb. 1855, they made a cessio bonorum, to their creditors and obtained a final judgment of discharge in the Sixth District Court of New Orleans, where the present suit was brought; they further alleged that plaintiff’s claim was put on their bilan, and that one of the plaintiff’s being a resident of New Orleans had notice thereof.

The exceptions were sustained and the suit dismissed by the District Judge, who says he felt constrained to this course by the authority of the case of the Northern Bank of Kentucky v. Squires, 8 An. 318.

But there is a peculiar feature in this case which the District Judge appears to have overlooked. x

The suit is upon a foreign judgment. The plaintiffs do not seek to recover upon the original cause of action, but upon the judgment in which it has been merged. This judgment was obtained long subsequent to the Louisiana cession and the alleged discharge there under. If this discharge was a bar to the original demand, they should have pleaded it in the New York court where that demand was litigated.

A Louisiana cession is not a peremptory bar to a suit upon a judgment rendered contradictorily with the ceding debtor, in another State, after the cession has been accepted here, even though the debt upon which the foreign judgment has been obtained was put upon the bilan.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, the defendants’ exceptions overruled, and the cause remanded to be proceeded in according to law, the costs of this appeal to be paid by the defendants and appellees.

Buchanan, J.,

dissenting. The opinion of the majority of the court appears to me to overrule the case of Northern Bank of Kentucky v. Squires, 8th An., in which case I concurred, and have seen no sufficient reason to doubt the correctness of the doctrine therein contained.

I am of opinion that the Judgment of the District Court should be affirmed.

Same Case — On a Re-iiearing.

Mkrkick, C. J.

On a reexamination of the record of the case before the Court of Common Pleas of New York, offered in evidence in this case, we cannot find that any process was served upon the defendant, George C. Bogart. Toby ans- * wered the suit, but only for himself. It seems to us, therefore, quite clear, that the New York judgment could not bind Bogart, particularly as the plaintiffs, under their New Orleans name, were parties to the insolvent proceedings, and were bound by the decree homologating the deliberation of the creditors discharging Bogart from liability. C. C. 2173; Gurlie v. Flood, 11 Rob. 166; 5 An. 501.

It is urged that we are bound to presume that the proceedings in the Court of Common Pleas were regularly conducted according to the maxim, omnia pree-sumunter rite esse acta.

We think it would be carrying the doctrine of presumptions too far when invoked to defeat a solemn judgment of our own courts with the proper parties before them in order to give effect to a foreign decree.

It is again urged that the service upon one partner must be held sufficient to bring both into court. But the common law prevails in New York, and it is necessary under the common law that process should be served upon each member of a commercial firmmoreover, the domicil of Bogart, Williams & Co. was New Orleans and not New York. Walworth v. Henderson, 9 An. 339.

In regard to the defendant, Toby, the case is different. He was a party to the suit in the Court of Common Pleas. He went into bankruptcy in February, 1855, after the suit was commenced against him in New York. The creditors voted a discharge, which was filed and homologated in April, and the decree was finally’signed on the first day of May, 1855, discharging Bogart and Toby from all the debts placed on their bilan, which included the debt in controversy.

This judgment was doubtless binding upon the plaintiffs, for they were cited by their New Orleans name, B. H. Thorne <& Co., and were parties to it. At this time the New York suit was still pending, and this final judgment of a competent court might have been pleaded in bar of that suit. The courts of New York were bound, under the Constitution and laws of the United States, to give it its effect. It was a' defence which would have been as availing as the plea of payment or set-off. Rut this defence was not pleaded, and the cause in New York was continued until October, 1855, when it was tried and a judgment rendered against Toby and Bogart.

As to Toby, who was a party, the original cause of action was annihilated and merged in the judgment. In the place of the debt, Toby became bound by a judgment which, by the Constitution and laws of the United States, was as obligatory upon him in every other State of this Union as in the State of New York. Const. U. S. Art. 4, sec. 1; Act of Congress 26th May, 1190 ; Mills v. Duryee, 7 Cranch, 481, (2 condensed 578,) Hampton v. McConnell, 3 Wheaton, 234, (4 condensed R. 243,) 7 An. 334.

The question is then presented in the conflict between the two decrees upon the same subject-matter, one discharging the debtor and the other decreeing him to pay the same debt, which shall prevail ? It seems to us, that the one last rendered must have effect, for it was in the power of the defendant in the last suit to have pleaded the former one in bar, and not having done so, he must be presumed to have waived his plea of res judicata. By the judgment, which absorbs the defence he might have made, he becomes indebted to his creditor by a new title.

Our judgment must be set aside as to G. C. Bogart1 and the judgment of the lower court affirmed in regard to him.

It is, therefore, ordered, that so much of the decree heretofore rendered by us as reverses and avoids the judgment of the lower court as to the said George C. Bogart, be set aside, and that the judgment of the lower court, sustaining his exceptions, be affirmed, and that the judgment of this court as to the other defendant, Simeon Toby, jr., overruling his exceptions and remanding this cause for further proceedings remain undisturbed, and it is further ordered, that the plaintiffs and Simeon Toby each pay one-half of the costs of the appeal.

Buchanan, J.,

dissenting. I dissent from so much of the decree on re-hearing as condemns the defendant, Toby, for reasons given in my dissenting opinion upon the first decision of this appeal.


author: Merrick, C. J.

text:
    In the Matter of the New Orleans Draining Company—L. Surgi v. C. Roselius, Receiver.
    Where a rule was taken on the opposito party to have the expense of making a “ plan” taxed as costs, and the defendant did not except to the form of proceeding, but ausvvorcd to the merits, and testimony was taken without objection, it was the duty of the Judge to decide upon the merits of the controversy; and that which ought to have been pleaded as an exception in the court below cannot be assigned as error on the appeal. Although the amount allowed was a large one, there being no witness who estimated the value of the work at less than the amount allowed by the Judge, he could not have fixed upon a smaller amount, without acting arbitrarily and disregarding the testimony.
    from the Third District Court of New Orleans, Duvignaud, J.

      C. Redmond, for plaintiff in rule. C. Roselius, in
   Merrick, C. J.

The appellant, as receiver of the above named company, assigns two grounds of reversal, as error in the judgment of the court below:

I. That the proceeding by rule, under the pretext of taxing costs, is radically wrong — the plan, for the making of which the appellee claims compensation, was not made in the course of judicial proceeding, or by order of court, and that whatever claim the applicant may have, it constitutes no part of the costs of court, and cannot be taxed as such.”

The defendant in the rule did not except to the form of the proceeding, but answered to the merits. Testimony was taken without objection, and the case submitted to the Judge a quo. It was then his duty to decide upon the merits of the controversy, and that which ought to have been pleaded as an exception cannot now be successfully assigned as error. Buchert v. Richer, 11 An. 491.

II. That the amount awarded by the judgment of the District Court is unreasonable, and not warranted by the evidence.”

The sum allowed for a “ plan,” $1600, is certainly a large sum for this sort of work. But there is no witness who estimates the value of the plan at less than the sum allowed by the Judge. He could not have taken any smaller sum as the basis of his judgment, without acting arbitrarily, and disregarding the testimony.

Judgment affirmed.


author: Cole, J. Meerick, O. J.,

text:
    Peter Marcy et al. v. Sun Insurance Company of New York — Richard Salter v. same, and Hyde & Mackie v. Crescent Mutual Insurance Company.
    Where the insurance is against river risks, and it is shown that the loss was from a peril of the river, and a possible cause is specified, it being also shown that the vessel was sea-worthy, the plaintiff (the insured) has done all in his power and has made out his case.
    The liability of the insurer, except so far as limited by the policy, must be judged of by the nature of the property insured, the risks to which it was subjected, and the natural accidents to which it is liable
    Where the vessel is sea-worthy, and there is no suggestion and proof of fraud, the plaintiff is not bound to establish the identical cause of the loss, but may show a possible cause.
    from the Sixth District Court of New Orleans, Cotton, J.

      T. Gilmore, P. E. Bonford and C. Roselius, lor plaintiffs. M. M. Cohen, Randall Hunt and J. A. Maybin, for defendants.
   Cole, J.

Plaintiffs claim the amount of insurance of a certain dock, known as the “ Old Dry Dock.”

• On the 19th of March, 1855, the dock being employed in its usual and legitimate business in the Mississippi river, opposite the city of New Orleans, was sunk for the purpose of taking in a ship for repairs. The workmen, not being able to raise her as usual, caused the ship to be withdrawn, and efforts to be made to raise her.

These attempts to save the dock were unsuccessful; she sunk and became a total loss.

This cause was heretofore before us, and was remanded for a new trial, on account of an exception to the charge of the District Judge. It is reported in 11 An. p. 749.

The case was submitted to the jury upon the same evidence as at the first trial, and they having been instructed in conformity with the principles decided by this court, rendered a verdict in favor of plaintiff for the amount claimed. Defendant has appealed from the judgment thereupon.

The principal difficulty in this case is as to the cause of the loss of the dock.

It is insisted that the cause of the loss must be shown, otherwise that the insurer cannot bo held liable.

This proposition does not appear to be correct, when carried to the extent contended for by the defendant.

The insurance is against river risks ; when, then, it is shown that the loss was not caused by a land, but by a marine peril, that the vessel was sea-wortliy, and a possible cause of the loss is specified, the plaintiff has then done all in his power.

The perils are not only above, but also below the water.

When the loss takes place without apparently being produced by the violence of the winds and waves, or some external cause, all that the insured can do is to establish the vessel to have been sea-worthy.

The liability of the insurer, except so far as limited by the policy, m*ust be judged of by the nature of the property insured, the risks to which it is subjected, and the natural accidents to which it is liable.

A dock moored to the wharf is not exposed to the same dangers as a steamer making distant voyages : the former is not so much in danger of collision, of snags and many other perils that might be enumerated ; and the plaintiff must be supposed to have insured against the river risks to which she would be most liable ; the insurers must also be considered to have had them in their view when they signed the policy.

It is true that the burden of proof is upon the plaintiff to make out his case ; but the proper rule of evidence is, that when a party insures against perils, all of which cannot be seen or known, that the loss shall fall upon the insured, when it proceeds from a cause not known or that might have existed, but which is not satisfactorily proved, on the presumption that the vessel was not seaworthy. But if this presumption be rebutted and it be shown that the vessel was staunch, strong and in a seaworthy condition, and there is no suggestion and proof of fraud, then the plaintiff is not bound to prove the identical cause of the loss, but may show a possible cause. For as the defendant undertook to insure against perils below the water as well as above, it was then well known to the contracting parties that a loss might occur which could not be explained, and all that the insured could do would be to prove the vessel was seaworthy. If this were not so, the insurer would be paid for insurance against perils above and below the water, whilst he would only in certain cases be liable for losses from accidents above the water. If such had been the intention of the insurer, it ought so to have been explained in the policy.

Such appears to have been the opinion of this court in the case of Snethen v. Memphis Insurance Co., 3d An. p. 474.

In that case the action was upon a policy on merchandize loaded on a barge in tow of a steamer.

The barge was suddenly discovered to be leaking badly and sinking, on the second day after the departure from St. Louis, on the way to New Orleans.

No specific cause could be given for the accident, as that the barge struck a snag or sand-bar, or incurred any other evident casuality. One of the witnesses conceded, however, that an external peril might occur, and sufficient to cause the sinking of a boat, without being observed at the moment. ' '

The court gave judgment for plaintiff, on the ground that the testimony established the barge to have been seaworthy at the commencement of the voyage, that accidents proceeding from perils of the river, might occur to produce a leak and eventually a loss, without being at the moment perceived, and that some such peril must have been the operating cause of the loss of the barge.

In Dupeyre v. Western Marine and Fire Insurance Co., 2 R. 458, the court said, when a vessel is lost in consequence of some of the perils insured against, the presumption is in favor of her seaworthiness, and it is incumbent upon the underwriters to show that this warranty has not been complied with ; but when, as in the present case, a loss occurs which cannot be ascribed to stress of weather or to any accident which might by possibility have produced it, the fair and natural presumption is, that the vessel was defective and not seaworthy, and the burden of proving that, in fact, she was seaworthy, is then thrown on the insured.” 1 Philips on Insurance, 308, 324.

In the case at bar the evidence establishes the dock to have been seaworthy, and the weight of the vessel taken in not to have exceeded the capacity of the dock.

A possible cause for the loss is also shown.

The manner of sinking a dock is to open the valves, and when the desired quantity of water is obtained, the valves are closed ; the water is then pumped out and the dock rises with the ship. The docks have sinking and discharging valves.

One of the witnesses thinks that if one of the valves had been open her twelve pumps could not have relieved her.

The greatest risk of the dock was the sinking and raising.

There are parcels of drift-wood running round in the Mississippi river, and driven by changeable currents. Sometimes when the valves are open for the purpose of sinking a dock, the chips of wood get into the valves and choke them so that they cannot be shut down, and the consequence is that the water continues to rush in. One of the witnesses testifies that he knows of no other cause of the sinking of the dock than this.

Defendant contends, however, that this is an ordinary every day risk, and that he cannot be considered to have insured against ordinary but only extraordinary perils.

It may be said of almost every risk, that it is an ordinary one, but at the same time, a vessel meets with accidents from them only occasionally.

The entrance of a small quantity of chips into the valves might be deemed an ordinary peril, but the flowing in of a sufficient number to prevent the valves being closed and to cause the dock to sink, must be considered an extraordinary peril. If not, docks would constitute stock of very little value, for it would be an ordinary every day risk, that the valves would become choked up, and that the docks would sink.

When the nature of the dock is contemplated, it was just as much an extraordinary peril that she should be sunk by chips entering the valves, as that a steamer should be sunk by striking a snag. There are snags in many places in the Mississippi river and boats may be sunk by them, but they are often escaped or passed over in safety ; so the valves of docks are liable to be filled with chips so as to render it impossible to close them, but to effect this, the current must be in a direction towards i.he valves, and the chips must be of a certain size and umber.

The ease of Millaudon v. New Orleans Insurance Co., 4th An. p. 16, is not an-tagonistical to the opinion of the court in this case.

The court there decided that the insurers will not be responsible where the sugar and molasses are covered by an ordinary fire policy, and the loss is occasioned by an explosion of the steam-boilers used in the manufacture of the sugar. The court remarked, that so far as relates to the insurance, they were unable to distinguish a loss occasioned by the explosion of the boiler, from that caused by the breaking or derangement of any other part of the machinery.

In the case at bar, the possible cause of the loss is not a derangement of the machinery of the dock, hut the action of external causes in a violent and unusual manner upon the valves of the dock, by which they were prevented from closing and the dock was sunk.

This cause was tried before two juries, who, after having weighed the testimony, and the latter under instructions directed by this court, have decided in favor of plaintiff. The evidence is of such a nature that we would not feel justified in interfering with their verdict.

Judgment affirmed, with costs.

Meerick, O. J.,

concurring. This case having been remanded for a new trial, the District Judge charged the jury in conformity with the views expressed by the court on the former appeal. 11 An. 148.

The jury found a second time for the plaintiff, and from an examination of the testimony I am unable to say that- it is unsustained by the proof. I, therefore, concur in this decree.

Voorhies, J., absent.


author: Buchanast, J. Cole, J., Merrick, C. J.,

text:
    James J. Weems v. Peter R. Ventress.
    Where it is stipulated, in an act of sale, that the note given for the price, shall remain deposited with the parish Recordor, until a certificate of non-mortgage is furnished, its possession by the plaintiff, is prima, fade ovidence, that it was delivered to him by the depositary after a certificate furnished.
    If the plaintiff came into possession of the note improperly, the defendant’s remedy would have been by injunction, not by anappoal from the order of seizure and sale.
    Where a note boars interest from maturity, the interest begins to run from the day of payment specified, without allowing for days of graco.
    Parties against whom executory process is issued for an amount which exceeds in some particular tho sum shown to be due by tho documents filed, ought to address themselves to the Judge who issued the order, to have tho error corrected, instead of making such error the pretext for an appeal involving vexatious delays.
    PPEAL from the District Court of the Parish of Iberville, Beale, J.

      S. Mathews, for plaintiff and appallant. Barnard <& Pope, for defendant.
   Buchanast, J.

This is an appeal from an order of seizure and sale upon a note given for the price of a sale, protested for non-payment.

The defendant assigns for error on the face of the proceedings :

1st. That the act of sale stipulates that the note on which this order has issued, shall remain deposited with the parish Recorder until a certificate of non-mortgage is furnished.

The plaintiff annexes the note to his petition for seizure and sale. His possession oí the note is prima fade evidence that it has been delivered to him by the depositary, (the parish Recorder,) after a certificate furnished. If the plaintiff has come into possession of this note improperly, this would be the ground of an injunction, not of an appeal from the order of seizure and sale.

2d. That the order of seizure and sale allows interest from the 15th of April, 1858 ; while interest should only have been allowed from the 17th, the date of protest.

The act of sale declares the price to be payable, a portion in cash and the balance in six equal and annual instalments, for which the vendee has executed his six promissory notes, “ with interest from and after maturity, at the rate of eight per cent, per annum till paid, and said notes are all dated this day, and payable respectively on the fifteenth of April of the years 1858,” &c. By contract, therefore, as well as by law, (Acts 1855, p. 352,) the interest ran upon this note from the day of its maturity, the 15th of April, 1858.

The case of Cumming v. Archinard, 1 An. 280, relied on by defendant, was decided under the old legislation of Louisiana, according to which interest only ran, in the absence of a contrary stipulation, from the day of protest of a note. See also the case of Andrews v. Rhodes, 10 Rob. 52.

3d. That the order of seizure and sale improperly allowed four dollars costs of protest, for which the record furnishes no warrant. ,

Since this assignment of errors, the record has been completed upon the application, regularly made, of the appellee; and an amended copy of the protest, with the notarial fees ($4) endorsed, has been certified to us by the Clerk of the District Court.

Upon this point, it is not out of place to observe, although unnecessary for its • decision, that there are some very sensible suggestions in the dissenting opinion of Judge Preston, in the case of Nichols v. Grice, 6 An. 446, (quoted by appellant,) to the effect that parties against whom executory process is issued for an amount which exceeds in some particular the sum shown to be due by the documents filed, ought to address themselves to the Judge who issued the order, to have the error corrected, instead of making such error the pretext for an appeal, involving vexatious delays, and it may be great pecuniary loss to a creditor in pursuit of a just debt. In fine, this is a case where the maxim applies, de mini-mis non curat lex.

"We decline to allow damages for a frivolous appeal, as asked by the counsel of appellee, for the reason that the record, as it stood when the assignment of errors was filed, did not exhibit the notarial fees of protest and notices.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Cole, J.,

concurring. If the nature of days of grace be considered, it is clear that when a note bears interest from maturity, the holder is entitled to interest upon the days of grace.

The elementary writers upon bills of exchange and promissory notes state, that days of grace were probably originally introduced by the usage of merchants, in the first place, to enable the acceptor of a bill, the more easily to make payments of his acceptances as they became due, which, as the payments were all to be made in gold and silver, might sometimes, from the occasional scarcity of the precious metals, become a matter of no small difficulty and embarrassment; and in the next place, to point out to the holder, what time he might reasonably grant to the acceptor for such payment, without being guilty of laches, or endan-goring Ills right of recourse, upon the ultimate non-payment of the bill by the acceptor, against the other parties thereto.

The usage, which was at first probably discretionary and voluntary on the part of the holder, became afterwards a right, and was also applied to promissory notes. Story on Notes, sec. 215 and note. ,

The origin of days of grace was then not to diminish the obligations of the debtor, and to enable him to have the use of money, without interest, for a certain time after the bill or note became due, but it was to facilitate Mm in procuring the means to liquidate it by the granting of a certain time, which varies in different commercial countries. Story on Notes, g 217.

The note is really due, when the days of grace commence, for they cannot begin until it has matured upon its face. When, then, as in the case at bar, the notes bear interest after maturity, the interest runs from the time they mature upon their face, and not from the time they are made to mature by the days of grace.

The money is understood to be loaned for the length of time accorded by the days of grace beyond the time specified in the note, and it is not to be supposed that the debtor is to have the use of the money for this additional time for nothing. The days of grace were not accorded to diminish the force and effect of the original contract, to lessen the rights of the creditor, or to enable the debtor to have the money for this additional time, without paying interest.

In Ogden v. Saunders, 12 Wheat., pp. 213, 312, Mr. Chief Justice Marshall, discussing this subject as applicable to promissory notes, says :

“ The usage of banks, by which days of grace are allowed on notes, payable and negotiable in bank, is of the same character. Days of grace, from their very term, originate partly in convenience and partly in the indulgence of the creditor.

By the terms of the note, the debtor has, to the last hour of the day on which it becomes payable, to comply with it; and it would often be inconvenient to take any steps after the close of day.

“ It is often convenient to postpone subsequent proceedings till the next day.

“ Usage has extended this time of grace, generally, to three days, and in some banks to four. This usage is made a part of the contract, not by the interference of the Legislature, but by the act of the parties.

The case cited from 9 Wheat. 581, is a note discounted in bank. In all such cases, the bank receives, and the maker of the note pays, interest for the days of grace.

“ This would be illegal and usurious, if the money was nbt lent for these additional days.

“ The extent of the loan, therefore, is regulated by the act of the parties.”

In a case quoted by Kid, in his work on bills of exchange and promissory notes, p. 125, the reporter said :

It was also observed, that it had been uniformly the custom of the Bank of England, the bankers, and the principal merchants in the city, to make allowance for the three days in discounting these notes ; and that if they were not to be allowed, that practice must be illegal, and they must all have incurred the penalties of usury.”

In the banks of New Orleans, it is customary in discounting notes, to charge interest for the days of grace.

The reason why interest is due upon the days of grace is, that although by commercial law the bill or note may not be demandable for a certain time after its apparent maturity upon the face thereof, yet that it did really become due at the time designated in the obligation, but by a tacit contract between the parties, the money is considered to be lent for the additional number of days accorded as days of grace in the country where the bill or note is made and payable.

Art. 2206 of the Civil Code declares: “ The days of grace are no obstacle to the compensation.”

This Article evidently considers the debt to be in fact due, when it becomes so upon its face, otherwise compensation could not take place, for it can only exist between two debts equally liquidated and demandable. 0. 0. 2205.

Article 2206 clearly makes the distinction between the debt demandable upon its face, as matured, but not demandable according to commercial law, and it considers that the right of a party to plead compensation ought not to be defeated, because, although th'o note appears to be due and demandable upon its face, it is really not so, on account of the extension of time granted for the benefit of the debtor.

When the note matures upon its face, it is in reality due; but by the tacit contract between the parties, an extension of time is granted. But although this is understood at the time of the execution of the obligation, yet the note becomes due at the time specified in it; and by the tacit contract, the consideration of the obligation, is loaned for the additional time of the days of grace, so that it, in fact, becomes demandable at the time of expiration of the second or tacit contract. As then, it is due when the second contract tacitly begins, this is the reason why compensation can be plead as provided by Article 2206.

Article 1931 of the Civil Code declares, that in contracts, stipulating a conventional interest, it is due without any demand, from the time stipulated for its commencement until the principal is paid.

In Keith, curator, &c., v. City of New Orleans, this court said, “ The obligation of defendant bore interest upon its face, from date.” It was not necessary, therefore, for a protest in order to make it carry interest.

If, in the case at bar, no interest were allowed for the days of grace, defendant would then have the use of property, bearing fruits and revenues, without paying' their equivalent, which is represented by interest.

I concur in the decree.

Merrick, C. J.,

dissenting. I cannot think that the promissory note payable to order, matured, so as to bear interest, before the expiration of the last day of grace. Acts 1855, p. 47, sec. 6, and p. 352 ; Story on Promissory Notes, sec. 215, and note 1; Ohitty on Bills, ed. 1849, p. 521; McDonald v. Lee’s Administrator.

And as I see no reason to overrule the case of Cumming v. Archinard et al., 1 An. 280, I am unable to concur in the decree in this case.


author: Buchanan, J. Merbick, C. J.,

text:
    Benjamin Wade, Sen. v. C. W. Newton & Co.
    Where defendant, in liis answer in the cause, which was sworn to, responded substantially to the in* terrogatories propounded in plaintiff's petition — Held: to be sufficient.
    PPEAL from tire Pifth District Court of New Orleans, Eggleston, J.
    Xi. Emerson <& Huntington, for plaintiff. Whitaker S Fellows, for defendants and appellants.
   Buchanan, J.

The plaintiff sued the three partners of a commercial firm, which has dissolved, for the balance shown by an account-current, which was made part of his petition. The petition concludes by a prayer, “ that the defendants may be cited to answer hereto, and ordered also to answer the annexed interrogatories on oath, within the legal delay, and that in due course of law they may be condemned,” &c.

Annexed to the petition is the following- interrogatory : “ Are you not indebted to plaintiff, as set forth in the above petition and account annexed, in the sum of $9,245 20 ? And is not said amount now due and owing ?”

No order of court was made for the answering of this interrogatory ; but a copy of the petition and a citation were served upon C. W. Newton <& Co., “ by leaving the same in the hands of Wade, Jr., a member of said firm.”

C. W. Newton, one of the defendants, filed his seperate answer to the petition, containing a distinct and circumstantial denial of the indebtedness alleged in the petition and account-current annexed thereto; which answer was signed and sworn to by the said defendant Newton.

The plaintiff and appellee objects that the answer of Newton, although it negatives the interrogatory, is not what is required by Article 349 of the Code of Practice, inasmuch as it was not offered as an answer to the interrogatory, but as an answer to the petition. We consider this answer sufficiently formal. It responds, not only substantially, but categorically, to the interrogatory propounded. That interrogatory is itself a portion of the petition, and refers to the allegations of the petition. It probes the conscience of the defendant, as to the truth of those allegations.

Two witnesses were offered by plaintiff on the trial; one of them being one of the defendants, and a son-in-law of plaintiff; the other, a person who had been book-keeper of the firm of C. W. Newton & Co., which had been dissolved, and was insolvent. The testimony of these witnesses does not, in our opinion, invalidate the sworn answer of the defendant.

Plaintiff relies upon a rendition of the account-current to himself, in the name of the firm ; but it is clear, from the evidence, that Newton was not privy to such rendition of account. It appears that the credit of $10,000 upon that account, for two items of $5,000 each, paid Henderson é Peale and John Watt <& Co:, was first given, upon i¡he books of the concern, to Benjamin Wade, Jr., who was one of the partners. The entry was afterwards changed, and the name of Benjamin Wade, Sen., (the present plaintiff,) was substituted for that of his son.

Both Huntington and Cooling (the witnesses of plaintiff) prove, that this change of entry on the books was made without the privity or knowledge of Newton, and that the account was also rendered without his knowledge.

The plaintiff has attempted to prove, by the witness Cooling, an acknowledgment on the part of Newton, that this $10,000, amount of two notes, (or drafts as they are called in this testimony,) was a loan from plaintiff to the firm. But Cooling’s testimony on this head is very vague, and the theory that the said notes were a loan to the firm, is inconsistent with other facts proved by this witness, as well as with other evidence. On the whole, the plaintiff has utterly failed to discredit the sworn answer of the defendant, Newton.

The articles of copartnership of C. W. Newton & Co. are given in evidence by defendant, from which it appears that Benjamin Wade, Jr., was to furnish, as his contribution to the capital of the partnership, the sum of thirteen thousand dollars cash, or Us equivalent. This contract of copartnership is by notarial act, and dated the seventh day of April, 1851, it being stipulated that the partnership shall be considered as having commenced on the first day of the same month. The two documents held by the plaintiff and spoken of by his witnesses, are promissory notes, one signed by B. Wade, Jr., dated 7th April, 1857, payable to the order of C. W. Neieton & Co., eighty-five days after date, for the sum of five thousand dollars, value received, and endorsed C. W. Newton <& Co. aud Henderson & Peale; the other signed C. W. Newton & Co., dated 1st of April, 1857, payable to the order of B. Wade, Esq., on .the first day of January, 1858, for the sum of five thousand dollars, with interest at six per cent, per annum from date, value received, and not endorsed.

Both these notes are proved to be entirely written and signed by Benjamin Wade, Jr., and the evidence leaves no doubt in our minds that they constituted a portion of the capital furnished by said Wade to the partnership stock of the firm of C. W. Newton & Co. One of them appears to have been negotiated to a party named Henderson <& Peale, and to have been guaranteed by the plaintiff and taken up by him ; the other to have been negotiated to plaintiff directly. There can be no doubt that the plaintiff cashed these notes for the honor of his son, although the latter used the name of the firm of C. W. Newton & Co. in signing one note, and endorsing the other. Their joint amount is $10,000, which added to $3,000 for which Benjamin Wade, Jr., was credited, cash, on the books of the concern, makes precisely the sum which he was bound to contribute to the capital of the partnership.

Tile plaintiff cannot, in justice to his son’s partner, Newton, or to the creditors of the insolvent concern in which his son was a partner, be allowed to reclaim, in this form, the amount which he may have advanced to his son, to set him up in a business which has proved unsuccessful.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and that there be judgment against plaintiff and in favor of the defendant and appellant, C. W. Newton, with costs in both courts.

Merbick, C. J.,

dissenting. I do not think the answer to tho petition sworn to by defendant, an answer to the interrogatories on facts and articles. In my opinion the case ought to be remanded, to enable defendant to put in more formal answers.


text:
    B. B. Lockhart, Administrator, v. J. J. Wall, Administrator.
    There is no law which renders an administrator personally liable for a debt of his intestate, on his mere neglect to comply with an ex parte order of the Clerk to file his account.
    PPEAL from the District Court of the Parish of Livingston, Wilson, J.
    jtA. W. JE. Walker, for plaintiff. C. J. Bradley, for defendant and appellant.
   Merrick, C. J.

In 1855, the defendant, as administrator of Samuel Patterson, deceased, having $521 38 to distribute to the creditors, filed a tableau of distribution.

The privileged claims, including the $1000 allowed by law to the widow and minor children amounted to over $1200.

The mortgages exceeded $4000, and ordinary claims were $1419 69. The plaintiff was classed as a mortgage creditor by tacit mortgage for $300. This tableau of distribution was homologated by the Clerk June 7th, 1856.

On the 12th day of June, 1857, the defendant filed a second account and tableau of distribution, wherein he showed (after certain payments) a balance of $824 63, which he prays might be applied to the payment of the privileged debts. The widow filed an opposition claiming to be paid, by preference to all other debts, the sum of one thousand dollars. The opposition was sustained by the District Court. From this decree the administrator, in the month of May, 1858, took an appeal returnable to the present term of this court.

In July the plaintiff filed his petition and obtained an ex parte order from the Clerk upon the defendant to file an account of his administration within ten days after notice, allowing an additional day for each ten miles his residence may be from the court-house. The plaintiff had, two or three days previously, also caused a notice of the order of the Clerk homologating the account of 1855 to be served upon the defendant. This notice did not purport to be a copy of the order itself, but was a notice apparently composed by the Clerk addressed to the defendant. The Sheriff, in his return, after stating the manner in which he served the notice, certified further, “ That the said Wall did not inform me at the time of service whether he had sufficient funds on hand to pay the claim referred to in said notice or not, but stated he did not think said claim ought to be paid in preference to the rest of said claims due by the estate.”

After the delay fixed by the Clerk in his ex parte order had expired, the plaintiff instituted the present action to make the defendant personally liable for failing to file the account, and for failing to inform the Sheriff whether he had funds to pay the debt.

The judgment of the lower court was in favor of the plaintiff for $300 and five per cent, interest from 3d September, 1855, but refused him an execution until he had previously filed a bond with the Clerk, conditioned that the defendant should not be damaged by any judgment which this court might render in the matter of the succession of Patterson already referred to.

Defendant appeals.

"We are not aware of any law which renders an administrator personally liable for the debt, on his mere neglect to comply with the ex parte order of the Clerk to file his account, and as the law has not denounced the penalty claimed, we cannot maintain this ground as the basis of the action.

So far as it concerns the notice of the Clerk’s order homologating the account, it may be observed, that the plaintiff was as fully advised of the condition of the estate as the defendant, and it is quite evident that this notice was not served for the purpose of ascertaining the condition of the funds in the hands of the administrator. If this had been the object, it could have been much better attained on a simple motion. Phil. Rev. Stat., p. 2, sec. 3. It seems to us it could have no serviceable object but to entrap the defendant by auy incautious reply he might make to the Sheriff charged with serving the notice. And on such a reply, it seems he has been condemned to pay this debt, when from both accounts rendered by him, which are unopposed by the plaintiff, it appears that the funds in the hands of the administrator are insufficient to pay the privileges, and that the plaintiff has no claim in virtue of any decree to any part of the same.

We must, therefore, look into the proceedings, and see if the defendant has become personally bound for this debt. We suppose this-proceeding to be commenced under Articles 1053, 1054,1055,1056 and 1057 of the Code of Practice. An examination of these Articles shows, that the judgment there spoken of is one regular in form against the administrator, condemning him at least to pay the debt in the due course of administration. Now, the order of the Clerk homolo-gating the account is not a judgment in the sense of those Articles. The only proper subject of the order was the sum of $521 38j, which the administrator was ordered to distribute in effect to the privileged creditors. See Hickman v. Flenniken, 12 An. 268. There was no decree against the administrator to pay over any other sum of money to the plaintiff or any one else ; for the Clerk was without judicial power to do more than homologate the account. As, therefore, the defendant held no judgment ordering the administrator to pay him any sum of money, the notification of the Clerk’s order homologating the account was an idle ceremony which could not produce the serious results ascribed to it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there be judgment on the present demand in favor of the defendant as in case of non-suit, the plaintiff paying the costs of both courts.

Yookiiibs, J., absent.


author: Land, J. Meerick, O. J.,

text:
    Mrs. Aglaé Bringier, Administratrix, v. Martin Gordon, Administrator.
    The evidence of a single witness to establish acknowledgements of indebtedness on the part of a deceased person, is held to be the weakest species of evidence known to the law, and will be received with disfavor. Such cvideuce hold in this case to be insufficient to defeat the plea of prescription.
    An action for the recovery of money loaued is prescribed by three years. #
    from the District Court of the Parish of Ascension, Duffel, J.

      I. H. Bsley, for plaintiff and appellant. Durant <& Hornor, for defendant.
   Land, J.

This suit is instituted by plaintiff, as administratrix of the succession of M. D, Bringier, and in her own individual right, to recover from the succession of II. B. Trist the sum of one hundred and twelve thousand four hundred and ten dollars and twenty-one cents, with interest, at the rate of eight per cent, per annum, from the 15th day of May, 1849.

The suit is' founded on a notarial act of mdebtment in the sum of twenty thousand dollars, and on numerous promissory notes given for principal amounts, and the interest thereon, forming, as it were, throe classes of securities.

First. The notarial acknowledgement mentioned.

Secondly. Promissory notes given for principal amounts.

Thirdly. Coupons or interest notes upon the whole amount of indebtedness, including the twenty thousand dollars acknowledged in the act.

The defendant pleaded a general denial, and the prescription of three, five and ten years.

It is sufficient to say, that all the promissory notes were prescribed by the lapse of five years, prior to the commencement of this suit, in July, 1851, and that plaintiff seeks to avoid the effect of this plea by proving an interruption of prescription as to some of the notes, and a renunciation as to others in June, 1850, by a specific acknowledgment, and afterwards, in 1854, by a general acknowledgment of II. B. Trist.

The evidence offered consists of the verbal admissions or acknowledgments of the deceased, to a single witness, made at a particular time and place, when the deceased and witness were alone.

The impossibility of contradicting a witness, under such circumstances, and his entire immunity from temporal punishment for false swearing, have induced the courts to receive such testimony with disfavor, and to declare it the weakest species of evidence known to the law. Succession of Segond, 1 R. 112; 10 L. 355 ; 2 R. 299 ; 6 A. 163.

The rule is general, and so well founded in reason and justice, that the high character of a particular witness cannot be permitted to form an exception to its general application.

To prevent frauds and perjuries, the Legislature, in 1858, passed an Act forbidding absolutely the introduction in evidence of the verbal acknowledgments of persons deceased, in cases of this kind. Acts of 1858, p. 148.

Independently of this statute, we have no hesitation in deciding, upon the authority of the previous decisions of this court, that the testimony on which plaintiff relies is insufficient to avoid the plea of prescription filed in this case.

The prescription of ten, and not five years, under Article 3508 of the Civil Code, is applicable to the debt of twenty thousand dollars acknowledged in the notarial act.

This debt became due in March, 1847, and was acknowledged by H. B. Trist in a subsequent act, in 1848, to be still due and owing, and was not therefore prescribed at the date of service of citation, in this case, in August, 1857.

This debt by agreement in writing bore interest at the rate of nine per cent, per annum. But as the interest was separated from the principal, and separate notes given therefor, up to the 1st of May, 1849, and these notes have been prescribed, interest can only be allowed from the 15th of May, 1849, at the rate of eight per cent, per annum, as claimed in the petition.

In addition to the notarial acknowledgment and promissory notes, the plaintiff also sues on a receipt for the sum of six hundred dollars, dated 8th of February, 1844, signed by II. B. Trist.

This receipt is only the evidence of an advance, or loan of money, and the action for its recovery is prescribed by the lapse of throe years. O. 0. 3503. Its consideration tos proved by parol.

The judgment of the lower court was in favor of the plaintiff, for the sum of twenty thousand dollars, acknowledged in the notarial act, with interest at the rate of eight per cent, per annum from the 15th of May, 1849, and for the sum of six hundred dollars, with five per cent..interest from the 17th of April, 1852, and rejected all the other claims of plaintiff, on the plea of prescription. This judgment is correct, except so far as it condemns defendant to pay the six hundred dollars mentioned in the receipt, and interest thereon.

It is, therefore, ordered, adjudged and decreed, that, so far as the judgment of the lower court condemns the defendant to pay the sum of six hundred dollars, mentioned in the receipt, and interest thereon, it be reversed, and that said claim be rejected, and that said judgment be, in all other respects, affirmed, with costs in both courts.

Meerick, O. J.,

concurring. Considering the large amount in controversy, I concur, although I think the testimony of a single witness may be sufficient to show the interruption of prescription, where it occurred previous to the recent statute.

Voorhies, J., absent.


author: Buchanan, J. Buchanan, J.

text:
    W. A. Underwood v. F. Lacapère—L. Rush, P. C. Bourgeois and J. R. White, Warrantors.
    In a sale of a slave mother and her infant child, where it appeared hy the evidence that the child was only sold with the mother on account of its tender age, and added nothing to the value of the mother — Held: That the vendor was not liable in warranty for the value of the child, which his vendee badbecn compelled to pay as warrantor in a subsequent sale of both mother and child.
    Costs follow the judgment, and an exception to the rule cannot be made in the case of a warrantor called in to defend the title of his vendee, and who is decreed not to be liable for the return of any part of the price he had received.
    from the Second District Court of New Orleans, Morgan, J.

      C. Dufour and Beatty & Bush, for Mrs. Bourgeois, appellant. Johnson t& Denis, for White, appellee.
   Buchanan, J.

The main question presented by this appeal is, whether Mrs. Bourgeois is entitled to any money judgment against her warrantor, White, on account of her slave boy, William, her vendee having been evicted, and having obtained judgment against her for his estimated value at the time she sold him.

When White sold the boy to Mrs. Bourgeois he was an infant but six weeks old, and was sold together with his mother Peggy for the sum of eight hundred dollars. But the evidence shows that the child -was of no appreciable value at that age, aud, instead of enhancing, really diminished the then value of the mother. The inference is, that no part of the eight hundred dollars was paid by Bourgeois for the child, but he was acquired for nothing, being inseparable from his mother, who was sold for eight hundred dollars. Between four and five years afterwards, Bourgeois sold the hoy, William, and his mother, Peggy, for one thousand dollars. At this time, the boy is estimated to have been worth two hundred and fifty dollars, and the mother seven hundred and fifty.

Lacapére, Bourgeois’ vendee, upon being evicted of the boy, was, therefore, entitled to recover of Bourgeois, in warranty, two hundred and fifty dollars, the price which he paid.

But Bourgeois having paid nothing for the boy to White, the author of his title, can recover nothing as his price.

It is true, the vendor whose vendee is evicted, is bound, not only for the restitution of the price, the fruits, &c., recovered by the real owner, and the costs of suit, but also for the damages when the vendee has suffered, if any, besides the price that he has paid. O. 0. 2482. But here no damages are proven. Bourgeois has only had to refund the two hundred and fifty dollars which she received for a boy who cost her nothing. We adhere to the rule established in the case of Burrows v. Peirce, 6th An. 298, that the loss of profits by reason of an accidental increase in value of the property sold, after the sale, is not recoverable by the evicted vendee, in the recourse upon his warrantor. And the fact, that the vendee of a slave has afterwards sold him for a higher price than he gave, does not, upon eviction, authorize him to recover the difference from his vendor, as damages.

The District Judge, therefore, properly ruled that no claim had been established against White, either for a price, or for damages.

Judgment affirmed with costs.

Same Case — On a Re-heaeing.

Buchanan, J.

The institution of two separate petitory actions, at different periods of time, one for the slave woman, Peggy, and one for her child, — the mother and child having previously passed, by several distinct conveyances, for one price in each conveyance, without a separate estimation of the relative value of each, — has produced a complication in the facts, which gives some color to the complaints made by the warrantor, Mrs. Bourgeois, in her petition for re-hearing.

We have, therefore, accorded the re-hearing, and have carefully reconsidered the ease in all its bearings. It results from our researches, that Mrs. Bourgeois having purchased the woman, Peggy, and her infant child from White, for eight hundred dollars, and having, some years thereafter, resold the same woman and child to Lacapére, for one thousand dollars, was sued in warranty for the woman alone, and cited her vendor, White, in warranty in the same suit. Mrs. Bourgeois was condemned, as warrantor, to pay Lacapére seven hundred dollars, but neglected to have judgment entered up, upon her call in warranty.

Perhaps she was unable to do so, White being only in court, in that suit, as an absentee, by a curator ad hoc appointed by the court to represent him. Whatever may have been the reason, the fact is that there was no judgment upon that call in warranty. Subsequently, Mrs. Bourgeois was cited a second time in warranty of Lacapére’s title ; but this time, to the child of Peggy alone, which had not been sued for in the first suit. She cited her vendor, White, to warrant her also in this suit. White was served personally with citation and joined issue. Judgment was rendered against Mrs. Bourgeois in this suit, for two hundred and fifty dollars, the , estimated relative value of the child at the time of the sale from Mrs. Bourgeois to Lacapere ,1 and there was judgment in favor of White upon the call in warranty of Mrs. Bourgeois, the court being’ of opinion, under the evidence, that the child possessed no appreciable value at the time of the conveyance by White to Mrs. Bourgeois. This judgment was affirmed by our decree already pronounced herein. And wo are unable to perceive that we have wronged Mrs. Bourgeois by that decree.

In this suit, nothing was in controversy but the child, although it is true that child constituted one of several objects which had passed by the same conveyance. But it appears from the evidence, that the child added nothing to the value of the other article sold, the mother, at that time. It was necessarily included in the conveyance, however, because the humane provision of our law is imperative, that the slave mother cannot be sold separately from her offspring of tender age.

But it seems from the’statements of the petition for re-hearing, that Mrs. Bourgeois settled her claim against White in the first suit out of court, and received from him for the woman Peggy the same amount, seven hundred dollars, which she had been condemned to pay to Lacapere. Nothing of this appears in the record; but we take the statement of counsel to be correct. If so, it is possible that Mrs. Bourgeois will have a remedy for further indemnity against White. For it is now decided, contradictorily with White, that the whole of the price paid by Bourgeois to White ($800) was for the woman Peggy alone. And it may be argued, that in the first suit, Mrs. Bourgeois could not have recovered more than $700 from White, because she had only been condemned to pay $700. But that now, having been condemned to pay an' additional sum of more than $100, she has an additional claim for the balance of the price by her paid. We throw out these observations without expressing a decided opinion. But we are clear that we cannot give Mrs. Bourgeois relief at this time, and with the proofs before us.

Upon the question of costs, we perceive no more reason to change our previous judgment. Costs follow the judgment and are to be paid by the party cast. C. P. 549 ; Bolton v. Harrod, 10 M. R., 115.

Let our former judgment remain undisturbed.

Yooimnss, J., absent.


author: Cole, J.

text:
    State v. James Reonnals.
    Where a gun was taken by the accused in another Scate, its sale in this State might be proof, not of a larceny here, but that the original taking was felonious. Its sale here would not be in violation of any law of this State ; and a party cannot be tried here for a crime committed in another State.
    On an indictment for embezzlement, the jury cannot find the accused guilty of a breach of trust.
    Where the jury have written their verdict upon the indictment, but it is recorded differently, the verdict as written by them shows what was then* meaning and intention.
    PPBAL from the District Court of the Parish of East Feliciana, Haralson,

    J., presiding. N. F. Kernan, for the State. D. B. Sandford, for defendant.
   Cole, J.

The accused having been found guilty of breach of trust, was sen-fenced to imprisonment at hard labor in the penitentiary for one year, and has appealed.

In relation to the bill of exceptions, motion for arrest of judgment and other defences it is sufficient for our present decision to say, that if the gun were taken by appellant in the State of Mississippi, the sale of it in Louisiana might be proof, not that he committed larceny in the latter State, but that the object of his taking it in the former was to steal it.

The mere sale of the gun in Louisiana would not be in violation of any law of this State.

If any crime against the rights of property were committed, it must be supposed to have been perfected in Mississippi; it cannot be conceded that the gun was taken without the permission of the owner in Mississippi, and that the intention to steal it was only conceived and perfected when it was sold in Louisiana.

If the gun had been loaned to the accused in Mississippi and he had returned it, and afterwards took it in presence of the owner, without his consent, but without any objection on his part, defendant would then have apparently committed a trespass and not larceny.

The subsequent sale of the gun in Louisiana would, however, tend to show that the intention in taking it was to steal it, and, in absence of other proof, it would be more proper to suppose that the intention to steal was perfected at the time the gun was taken, than after the accused had passed into another State. It is to be supposed that when he left the borders of Mississippi with the gun, that the intention of stealing it had been already formed and perfected. If so, the accused cannot be tried in this State for a crime committed in Mississippi.

The indictment charges him with having embezzled a gun, and the jury found him guilty of a breach of trust. The verdict is not responsive to the charge.

It is true that the verdict was recorded differently, being as follows :

“ We, the jury, find the accused guilty in manner and form, as he stands charged in the indictment,” but the indorsement upon the indictment is as follows : “ We, the jury, find the accused guilty of breach of trust, and recommend Mm to the mercy of the court.”

This shows what was the intention of the jury, and the verdict ought not, under such circumstances, to be sustained. This case is not covered by section 83 of the Act relative to criminal proceedings. Phillips’ Dig. p. IIS.'

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside and the judgment of the court thereupon be avoided and reversed, and that a new trial be granted to appellant, and that this case be remanded for further proceedings according to law.

Voobhibs. J., absent.


author: Buchanan, J.

text:
    Ann Cahill, Wife of Conway, v. Catharine Connelly, Administratrix and Tutrix.
    Two lots adjoining each other were sold at public auction according to a figurative plan exhibited at the time, and referred to in the acts of sale which were executed, pursuant to the adjudication ; this plan represented an alley way running across the rear of both lots — Held: That although the sale conveyed the soil of the alley, ■which was requisite to malee out the depth given to the lots in the title, a right of way was established in the alley as a servitude-
    from the Fifth District Court of New Orleans, Eggleston, J.

      Budd & Lambert and E. Bermudez, for plaintiff. M. M. Cohen, for defendant and appellant.
   Buchanan, J.

This is a dispute about the right to use an alley in the rear of the two houses owned by plaintiff and defendant respectively, and which front on Julia street, at the corner of Philippa, in the city of New Orleans. The alley is three feet wide, and runs across the two lots of plaintiff and defendant. It has a gate opening upon Philippa street. Both the lots, with the buildings thereupon, belonged to the estate of Mrs. Bannister, and were sold at a probate sale of her effects, according to a plan which was exhibited at the public auction, and referred to, as annexed, in the acts of sale executed by a Notary Public, in conformity to the adjudications. That plan is in evidence, and a number of surveyors, examined in relation to it, have not been found to agree in regard to its indications ; some being of opinion that the alley was intended to be figured as a common alley, while others were o£ a contrary opinion.

The plaintiff is the owner of the lot which is furthest removed from Philippa street, and is, of course, at the bottom of the alley. The defendant is bounded laterally by Philippa street, and is, of course, at the entrance of the alley. The latter has closed up the alley on a prolongation of the line which, upon the plan, divides the two lots ; which line, we have observed, stops, upon the plan, at the alley, and does not cross it.

It appears to us that, as was remarked by one of the witnesses, the depth given to the two lots in the titles, is conclusive of the question before us. That depth is the same in both cases, namely, sixty-five feet seven inches. But that depth cannot be had, without including, for both lots, the middle of the alley, which is three feet. Both titles, then, conveyed the soil of the alley ; and the reference in the titles to the figurative flan of Dunbar, which depicted the said space of three feet, as a passage of communication from lot number two (plaintiff’s lot) to Philippa street, constitutes a title to a servitude or right of way to Philippa street, in favor of lot number two.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Voorhies, J., absent.


author: Merbick, C. J.

text:
    Charles H. Davis, Husband, v. Tennessee Robertson, Wife.
    There may be cases in. which the husband ought not to bo allowed interest on debts of the wife paid by him, as where the payment has been fraudulently deferrod by him for the purpose of injuring her ; but where the debt has been paid in good faith, the interest, as an incident of the debt, is chargeable to the person who owes the same.
    By giving the husband the administration of her paraphernal property, the wife relieves herself of her portion of the marriage charges.
    In the absence of proof of the wife’s seperate administration of her paraphernal estate, it will be presumed to have been under the management of the husband.
    from the District Court ot the Parish of East Baton Rouge, Wilson, J., presiding.

      A. M. Bunn, for plaintiff. T. G. Morgan and & Matheios, for defendant.
   Merbick, C. J.

This case was brought to liquidate the sums due the community by the seperate estate of the defendant. The community was dissolved by a suit for a separation of bed and board instituted by the plaintiff against the defendant, and was renounced by her by an act in due form.

Since the institution of the present suit, she has departed this life, and her heirs have been made parties. The eases of Robertson v. Davis, 9 Ann. 268, and Kelly v. Robertson, 10 An. 303, were connected with this litigation.

In the lower court, the case was referred to an auditor, to state an account between the parties. Both parties filed oppositions to the account, which was amended, and a judgment was rendered in favor of the plaintiff for the sum of $25,312 09, and five per cent, interest thereon, from the 15th day of May, 1858, until paid. The present defendants appeal.

Eight items of the auditor’s account, amounting to the sum of $14,466 41, and the sum of $3,398, allowed by the District Judge, in addition to the auditor’s account, (a total of $17,864 41,) are contested before this court. • 1

I.The first three items opposed, are the amounts of interest paid on the separate debts of the wife. Her heirs contend, that as the husband had the benefit of the estates of the wife, which were under • his administration, it was his duty; as an usufructuary, to keep down the interest; that he ought not to be permitted to enjoy her estates, and allow interest to accumulate upon her debts.

Possibly, there may be cases in which the court will refuse to allow the husband interest, where it was evident that payments are fraudulently deferred for the purpose of injuring the rights of the wife. But where'debts are paid in good faith, the interest must be considered as but an incident of the principal obligation which it follows, and chargeable to the person owing the debt.

If the property of the wife was under the administration of the husband during the community, so was also his own property, and she had the right to one-half of the community on its liquidation, had she chosen to accept it. By giving the husband the administration of her paraphernal property, she relieved herself from her portion of the marriage charges. 0. 0. 2366, 2409.

II.The account paid the Picayune for subscription to that paper, and $42 96, were admitted before the auditor, and cannot be contested in this court. '

III.It is next objected, that the District Judge erred in allowing $1,705 for ameliorations made upon the defendant’s plantation, during the existence of the community. There is some conflict of testimony on this branch of the case. Taking the doctrine of this court, as settled in 4 Rob. 278, 6 Rob. 508, and G An. 634, as the rule governing the case, it will not enable us to say that the District Judge erred in his estimate.

IV. There is no ground to suppose that the decree in the suit of Tennessee Robertson against the plaintiff, 9 An. 268, awarding her the administratration of

her paraphernal property, can have the effect of the thing adjudged, so as to deprive the plaintiff of the horses and mules, belonging to the community. For although she alleges that she owned thirty mules, &c., at the same time, and in the same petition she averred, that there were twenty horses and mules belonging to the community. The latter were not transferred to her separate estate by the decree. And the same must be said of the new wagon, carriage, and household furniture. She had injoined the defendant from disposing of the community, and these very effects are mentioned in the inventory, caused to be taken by her, as as property of the community.

V. Defendants are charged with 1,100 bushels of corn and 50 acres of plant cane taken possession of when the deceased resumed the administration of her paraphernal property.

It is contended that her heirs ought not to be charged with this amount, because plaintiff must have received an equal amount when he commenced to administer the plantation, and that the one ought to compensate the other.

This view seems equitable, and, as we shall give the plaintiff the benefit of one-half of the crop of 1849, and the proof is uncertain as to the corn and plant cane that year, we shall deduct but one-half of these two items. The consent of the wife to use the corn and plant cane does not deprive her of the right to require compensation.

VI. The plaintiff was married to the deceased in July, 1849. The proof is, that the crop upon her plantation was then half made. The plantation was under the charge of the defendant, W. J. Sharpe, as overseer.

The deceased, in her suit for separation of property, filed in 1852, and sworn to in order to obtain an injunction, alleged that the crops upon the plaintiff’s cotton plantation in West Feliciana and her separate plantation, for the years 1849,1850 and 1851, belonged to the community. Subsequently, however, she amended her petition, and alleged that the crop of 1849, on her plantation, did not belong to the community. The District Judge allowed the plaintiff one-half of the crop of 1849.

There would be no difficulty on this branch of the case, but the testimony of the plaintiff in another case is produced, in which he says the management of the property was given him in January, 1850. But in another place he says, he frequently transacted business for the plantation in 1849, and it is shown that he had five or six of his own negroes engaged in taking off the crop, and it is not shown that the deceased exercised any control over the place after her marriage, until her suit for separation, and such appears to have been the opinion of this court in the suit for the separation of property. 9 An. 269.

As the property was not shown to be administered by the wife, separate and alone, it must be considered as under the management of the husband. O. O. 2362, 2375, 2376.

Had the crop been held separate, the deceased would have been bound for her proportion of the marriage charges. The debts contracted during this period were community, and we cannot say that the Judge erred in holding one-half of the crop of 1849, as community; but certain expenses incurred in making the crop, must be deducted. The aifiount should be $2,806 40. For example, one-half of the overseer’s wages should be deducted, as the plaintiff has credit for the same in another form.

YII. The auditor allowed $7,456 77, being eight per cent, to compensate plaintiff for hires, advantages and damages. This sum is sought to be justified, on the ground that plaintiff is entitled to be paid the hire of the mules belonging to the community, and to indemnify him for the damages sustained by the injunction, which prevented him from disposing of the effects of the community and paying the debts.

He alleges, in argument, that more than $5,000 interest has accrued on two of these debts, while he has been kept from making the assets of the community available. The injunction continued from the 15th day of January, 1852, to April 3d, 1854. The assets of the community amounted to $15,876 40. But a portion consisted of the claim due by the separate estate of the deceased to the community, and we do not suppose the injunction deprived the plaintiff of available means of more than $12,000, including the horses and mules. We think $2,119 99 will cover the special damages.

We cannot concur in the estimate made by witnesses for the hire of the mules.

The community was dissolved on the 27th day of November, 1856, and from this date, the sums due by the deceased to the community, exclusive of $2119 99 allowed as damages, should bear interest at five per cent., instead of the large sum allowed by the judgment of the lower court. The answers of the deceased to interrogatories of Kelly, Frazier <& Co., ought to have been excluded.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and we do now order, adjudge and decree, that the plaintiff do recover and have judgment against said William J. Sharpe, Mrs. Leodocia R. Sharpe, widow of O. P. Davis, Mrs. Elizabeth J. Sharpe, wife of Samuel Matthews, and Ernestine R. Davis, a minor, represented by Richard A. Stewart, her under-tutor, each for their virile share of the sum of seventeen thousand nine hundred and ninety-three dollars and eighty-one cents, with legal interest on the sum of $15,873 72, from the 27th day of November, 1856, until paid. And it is further ordered, that the plaintiff pay the costs of this appeal, and the defendants the costs of the lower court.

Yoorhies, J., absent.


text:
    U. H. Dudley v. T. W. Tilton.
    A proprietor has no.right to alter the elevation of the banquette before his house in the city of New Orleans, without having first obtained the consent of the municipal authorities.
    The violation of a right to the use of property is sufficient to maintain an action without proving damages.
    from the Third District Court of New Orleans, Duvignaud, J.

      Benjamin, Bradford & Finney, for plaintiff. E. H. Durell, for defendant and appellant.
   Cole, J.

The petition of plaintiff, a resident of the city of New Orleans, represents that he is owner of a lot of ground situate in the square bounded by Canal, Rampart, Common and Philippa (now Dryades) streets; that in the year 1836 he erected on said lot a three story brick dwelling-house, which he has since occupied with his family as his domicil, and that in front of the house he laid down a banquette or sidewalk, in pursuance of the city ordinances, according to the grade adopted by the city and to the lines given by the city surveyor, and upon a level with the sidewalk in front of the adjoining houses.

He further shows that defendant having become the owner of the adjoining lot, which forms the corner of Canal and Philippa (now Dryades) streets, is about to elevate the banquette or sidewalk in front of his house, and to lay down a banquette ten inches or thereabouts above the level of the sidewalk of petitioner, and is now at work in making the elevation ; that the sidewalk so raised immediately adjoining that of petitioner, will be a serious impediment as well as constant annoyance in the path of petitioner on his way to and from his dwelling-house, as also a public obstruction and nuisance ; that the sidewalks in front of petitioner’s house cannot be raised to a corresponding level with the projected sidewalk of defendant without much cost and serious damage to the dwelling of petitioner, which -was built upon an elevation corresponding to the existing level of the sidewalk and street in front; that the defendant has no legal authorization to raise the level of his sidewalk, and in so doing he is acting in violation of the rights of petitioner as well as of the public.

He prayed for an injunction to restrain the defendant from raising the level of hi? sidewalk during the pendency of this suit, and after due proceedings that it be made perpetual and for damages.

There was judgment perpetuating the injunction and ordering the defendant to take up the sidewalk, and to erect it agreeably to the level and grade to bo given by the City Surveyor.

Upon the trial the plaintiff did not attempt to prove that the action of defendant in the premises had or could cause him any injury, or that it was either a public or private nuisance, and the only questions in the case are, whether defendant has the right to change the level of his sidewalk without permission from the proper authority, and if he has not, whether plaintiff, as a citizen of New Orleans, has the right of action to inhibit him from doing it.

The following1 ordinance was approved the 6th of October, 1815, and is to be found on page 13 of a “ General Digest of the Ordinances and Resolutions of the Corporation of New Orleans,” published in 1831:

“ Whenever any banquette, counter-banquette, or footway is to be repaired or made anew, no person shall make any alteration in the order established for the lineation or leveling of the said foot-way or banquette and counter-banquette, unless specially authorized by the Mayor and Oity Council; and under the obligation that the owner or tenant of the house in question, shall, if necessary, apply to the City Surveyor, to receive from him the lineation and leveling to be observed in the execution of said work.”

In Leovy’s compilation of “ The laws and General Ordinances of the city of New Orleans,” an ordinance is found which describes and fixes the duties of the Surveyor of the city, and makes it his duty to furnish the Common Council with all the plans, estimates and other information appertaining to his department, which the Council may require, and “ to give the lineations of all the streets of the city, as well as the lineations and grades of the sidewalks, wharves, levees, bridges and streets, in accordance with the ordinances of the Common Council.”

• It is admitted by defendant, that “ such is now, and such has ever been the duty of the City Surveyor; and at no time has he had the power to establish, in accordance with Ms own discretion and good judgment, the grade of either street or banquette.”

It appears to us to be immaterial whether or not the Act of 1815 is repealed by the ordinance of May 21,185V, which repeals all ordinances or resolutions passed prior to the consolidation of the city, in 1852, of a general nature, and not contained in Leovy’s compilation of the laws and general ordinances of the city of New Orleans.

It is clear that the levels of the banquettes of the parties to this suit were fixed prior to the repeal of the law of 1815, if it has been repealed ; and it cannot be admitted that a private citizen has the power to alter the elevation of the banquette before his house, without being authorized by the public authorities.

If a private citizen can do this in the absence of any prohibitive ordinance, it must be by an inherent right in the citizen to do whatever is not forbidden.

When, however, one places himself within the limits of a municipal corporation, he cannot exercise what might be deemed an indefeasible prerogative beyond the bounds of government and population, if the possession and use of such right might destroy that of citizens to the use of public things. O. C. 479.

Article 444 of the Civil Code declares, that public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation.

“ Things which are for the common use of a city or other place, as streets and public squares, are likewise public things.” C. C. 445.

“ Things which belong in common to the inhabitants of cities and other places, arc of two kinds : Common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common, such as the streets, the public walks, the quays, &o.” 0. C. 449.

As the streets are common property, every citizen may be considered in a certain sense as a proprietor thereof, and no particular citizen has the right to interfere with the level and elevation of the streets, without the permission of the majority of the inhabitants through their representative, the municipal corporation.

If one citizen has the right to elevate his sidewalk five inches, another may raise his ten or twenty inches, or another may depress his a certain number of inches ; in fact, there would be no limit to the changes that might be made in the level of the banquettes. Every proprietor might have his at a different elevation from that of any other, so that it would be impossible to traverse the streets with convenience, pleasure or safety.

We conclude, therefore, that defendant has not the power to alter the level of his sidewalk without permission from the municipal authorities of the city of New Orleans.

The only question that remains is, whether plaintiff, as a citizen of New Orleans, has the right of action to inhibit defendant from changing' the level of his sidewalk, on the ground that it is a violation of his rights.

When the rights of property are interfered with, the proprietor is not bound to prove damage in order to maintain his action against a trespasser. Each of the inhabitants of a city has as much right to the use of a street as a proprietor has to that of his private estate.

Each citizen has then the right of action to prevent a proprietor from changing the sidewalk before his house, because it is a violation of his right of property in the use of the sidewalk that a private citizen should have 'the authority to alter the level of the sidewalk without permission from the municipal government.

In Allard et al. v. Lobau, 2 M. N. S. p. 319, Judge Porter, "being the organ of the court, in speaking of public things and the use thereof, said: “ The use thus granted to each individual, of the things just mentioned, by the public, who are the owners, appears to us to confer the right of enjoyment in as full and complete a degree as that which would be derived from the concession of a private proprietor, on soil that belonged to him. If there is any difference we are unable to perceive it, and in either case we conceive, that if the party on whom this privilege is conferred, or to whom this use is accorded, be obstructed in the exercise of it, he is'well found in considering it as a private injury; for it ¡^events him from enjoying a personal right.”

In this case the court also held, that an Act of the Legislature punishing criminally the violations of the rights of the public to certain common property, did not take away the right of action of a private individual in a civil proceeding.

It is not necessary that plaintiff should have suffered actual damage, it is sufficient to maintain his action that defendant proposes to violate his rights.

The 296th Article of the Code of Practice provides, that “ injunction or prohibition is a mandate obtained from a court, by a plaintiff, prohibiting one from doing an act which, he contends, may be injurious to him, or impair a right which he claims.”

Art. 298 of the Code of Practice also declares, that the injunction must be granted when the defendant is in the act of building or constructing some work, tending to obstruct a place of which the public has the use.”

When a person without authority is changing, or proposes to change, the level of the sidewalk in front of his house and make it higher than that of his neighbors, he may be said to obstruct a place of which the public has the use.

In Akin et al. v. Bedford et al., 5 N. S. p. 501, Judge Porter, delivering the opinion of the court, said, that “ a party may always claim the aid of the laws of his country to prevent a wrong, which, if inflicted, he could claim damages for. These laws would be lamentably defective if they could not prevent injuries as well as punish them.”

It is clear that a violation of a right to the use of property is sufficient to maintain an action without proving damages, for if a citizen can interfere with -the established order of a street in one way, he could in another, and the citizens are not obliged to wait until damage is done, but they can resist at once the assumption and usurpation of the right by a private individual to interfere with' the order of property, the use of which belongs to the public in general.

If they could not do this, then individuals might make such alterations as would materially impede the commerce of the city and injure the trade of merchants. They could so change the levels of the sidewalks as to prevent persons from passing without great inconvenience, and they could thus injure the trade of a merchant very essentially before the action could be brought.

Even if a party should prove that his alteration was not a public injury, this would not justify him, for he assumes to effect that good by the usurpation of a right; and the citizens are interested to thwart the illegal assumption of authority which may produce so much evil if allowed in general.

In McDonogh v. Calloway et al., 7 Rob. p. 445, the court held, that an injunction “ is as effective in inforcing a right as in preventing a wrong or injury.”

In Herbert v. Benson, 2 A. p. 771, the court held, “ that public places within the limits of a corporation cannot be appropriated to private use, and that individual corporators, as well as the officers of the corporation, have the right to prevent sucli appropriation, and to sue for the demolition and removal of building's erected on them by individuals.”

In Bruning v. New Orleans Canal, 12 An. p. 543, this court said, “ we are not disposed to say, because the decision of this cause does not require it, whether the initiative in the abatement of the nuisance of an obstruction of the -public highway is exclusively reserved to the City Council, or whether proceedings might not be commenced for that purpose by individual citizens who were aggrieved by the nuisance. But we assert, without hesitation, the right of any citizen so aggrieved to an action in damages againstthe offending party.” Durant v. Riddell, 12 An. 146.

According to the first and third laws of the 22d title of the 3d Partida, any individual may forbid the erection of a house or other edifice in public places. "Vide Mayor, etc., of New Orleans v. Gravier.

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

Voorhies, J. absent.


text:
    Sowle & Ward v. C. W. Pollard & Co.—G. W. Helme, Defendant in rule.
    The Art. 0. P. (as amended) which requires a delay of ten days before an execution shall issue, in the first district, is in the interest of the defendant and for the purpose of protecting his right to a suspensive appeal. C. P. 624 ; Acts 1843, p. 40. This right he may at any time waive, and a valid execution may issue immediately. C. P 567. If he suffers the delay for a suspensive appeal to ' expire, the premature issuance of an execution does not oven give him the right to enjoin.
    The appellees allowed interest in this case during the delay occasioned by the appeal.
    PPEAL from the Third District Court of New Orleans, Duvignaud, J.

      F. Perrin, for plaintiffs. H. H. Taylor, for defendant in rule and appellant.
   Merrick, C. J.

The controversy in this case grows out of a rule relative to the distribution of certain funds made upon sundry executions.

The plaintiffs and appellees held one of the executions issued on the first day of December, 1857, upon a judgment signed November 20th, 1857.

The appellant G. W. Helme, held two judgments, one signed the 20th and the other the 27th of November, 1857. On these he issued his executions, the one December 3d, 1857, and the other December 10th, 1857.

The funds in the hands of the Sheriff being sufficient to pay the two judgments rendered November 20th, 1857, the controversy is really between the plaintiffs and G. W. Helme, the appellant.

.On the question whether the execution issued and levied on the 10th day of December, is not superior to that issued on plaintiffs’ judgment and levied on the 1st day of December, 1857, two days before the delay for taking a suspensive appeal had expired, the appellant contends that one creditor cannot claim the benefit of a priority of seizure, unless he complies with the rules of practice relative to the issuing and execution of the writ, and that a party who violates the law, by issuing an execution before the delay has expired, ought not to derive any advantage from this attempt to obtain a preference over the other creditors ; privileges from seizures being slricti juris.

To this the plaintiffs and appellees reply, that the objection ought not to be listened to, as coming from the appellant; because he stood by and saw the property sold under this execution with others, and being a third party he cannot now question the regularity of the proceeding and take advantage of the inadvertence of the Clerk and the plaintiffs.

The Article of the Code of Practice, as amended, which requires a delay of ten days before an execution shall issue in the first district, is in the interest of the defendant, and for the purpose of protecting his right to a suspensive appeal. C. P. 624; Acts 1843, p. 40.

This right the defendant may at any time waive, and a valid execution may issue immediately. O. P. 567.

For this delay does not in any manner affect the public order, and as the defendant may voluntarily satisfy the judgment by payment, so also, it would seem, he may ratify an execution issued prematurely, by giving up property for seizure upon if, or voluntarily standing by and seeing the same sold under it. See Conner v. Copeland, 3 An. 452, 9 An. 309.

The premature issuing of execution is a mere irregularity, which the defendant may have corrected within the delay for, or after he has taken his suspensive appeal; but if ho suffer the delay to expire, it does not then even give him a right to an injunction. Dayton v. The Commercial Bank of Natchez, 6 Rob. 20 ; Morgan v. Whiteside, curator, 14 L. R. 280. See also 1 Rob., 497; Legget v. Potter, 9 An., 309 ; Hatch v. English., 12 Rob. 136.

filie execution was not, therefore, void, because issued before the delay had expired, but it became valid by the expiration of the delay, there being no attempt on the part of the defendant to correct the irregularity.

As the first execution of C. W. Helme is ordered to be paid in full, it is a matter of indifference to him whether it is ordered to be paid first or second in rank, and the question does not arise whether one creditor can gain an advantage by his premature seizure, over another creditor who has issued his execution and made his seizure upon a judgment bearing the same date, at the earliest day allowed by law for the same.

For in this case the plaintiffs’ execution, if it had been delayed two days longer, would then have been seven days in advance of G. W. Helme’s second execution. It must, therefore, be held to have acquired its validity at least concurrently with G. W. Helme’s first execution and seizure, and to take precedence of the execution and seizure made seven days afterwards. The court did not, therefore, err in giving the first two executions preference over the second.

The appellees have prayed an amendment of the judgment in this case, so as to award them interest on their judgment pending the appeal.

As the delay has been occasioned by the appellant, the appellees seem entitled to the correction, and we will order the distribution as of this date, as between the appellant and appellees.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to award to Sotole & Ward the sum of thirteen hundred and forty-two dollars out of the sum to be distributed, instead of $1210 21, and that the amount awaided G. W. Helme upon his execution in his cause, No. 11,941, be reduced from $1416 17 to $1284 37, and that the judg ment so amended be affirmed; the appellant paying the costs of the appeal.

Yookhies, J., absent.