text:
    Morton et al. v. Packwood et al.
    Where the matters at issue in an opposition by the heirs of the wife to an account presented by the surviving husband as executor, are the right of the heirs to a certain interest in a plantation and slaves alleged to he community property, and the simulation of a sale of the property made by the husband before the dissolution of the community, the judgment rendered thereon may be pleaded as res judicata to an action by the heirs against the husband personally for' a partition of the same property alleged to be owned by themselves and the defendant, and for a judgment recognizing their rights to an undivided portion of it and declaring the simulation of the sale made by the husband. The fact that the proceedings on the opposition were against the defendant as executor, and that the opposition was to jiis account as such, will not prevent the judgment from being set up as res judicata, on the ground that the demands in the two cases were not made by the parties in the same quality. Per Curiam: The law giving a preference in the administration of successions to those who are interested in them, it generally happens that the administrator, either as heir or creditor, has an interest adverse to that which he represents. His individual interest is litigated in the account which he presents, and on which his claim, as heir or creditor, is exhibited; in the eye of the law he is= personally a party, though his personal rights h’ave been asserted in his representative Capacity; and if one having an adverse interest malte- an issue on the claim, any judgment rendered on it will be binding on both parties.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J. The facts of this case are stated- at length in the opinion of the court infra.

      Roselius, Prentiss and Finney, for the appellaúts.
    The exception must be determined by art. 2265 of the Civil Code. The quality of one' of the parties is not the same in these two suits. In the first Packwood appears neither in, the pleadings nor in the judgment in his personal quality, but always in his representative quality, as testamentary executor of the will of Alice Packwood, deceased. The original petition filed By two of the present' plaintiffs, simply calls upon him in his representative capacity, to render an account of his administration. He responds in the samó' quality, and avers his readiness to account. He then, still acting only in his representative quality, presents his' account, prays that it be homologated, and' that he be discharged from further' responsibility “ as' executor.” To this the original plaintiffs object, and oppose' the homologation on the ground, principally, that there was property belonging to the succession of Alice Packwood, not embraced in the account, for which the executor was responsible, and they pray that “the executor” (not Samuel Packwood in his individual quality,) be Ordered to account therefor. The judgment of the court below was in accordance with the pleadings. It decreed nothing against Samuel Packwood personally, but only that, as executor, he should amend the account of his administration. From this judgment Samuel Packwood appealed. The case will be found reported in 12 Rob. 234, and the' judgment of the court is in these words : “It is therefore ordered and decreed that the judgment of the Court of Probates be reversed; and it is further ordered that the opposition, so far as relates to the Union Bank stock be maintained, and that in all other respects it be overruled and rejected;' and that the account rendered by the executor, being thus amended, be approved and homologated ; that the opponent pay the costs of appeal,” &c.
    The error of the court below arises out of the accidental fact, that the executor of the will of Alice Packwood, and the joint owner of one undivided half of the plantation and slaves in controversy, happen to be one and the same person. But though the same party or person naturally, they are wholly distinct in their legal quality. Samuel Packwood, executor, &c.,hasno mor'erelation to Samuel Packwood personally, than Paul has to Caius. Suppose the executor had not been the joint owner of the property in controversy, and this action for a partition had been instituted against a third person, could the decision in the case of Packwood's succession have been pleaded as “ res judicata?" Clearly not. Such an exception would have been overruled at once. But where is the difference ? Samuel Packwood, and Samuel Packwood, executor, affe two different legal persons, as much as two natural ones. A representative stands in the place of that which he represents, not for himself. Packwood represented the succession of his wife Alice. The question in the suit with him was, the extent of his accountability as such representative, not his personal accountability-' as claimant of property in his own right. The question of his personal right to the' property in controversy arose collaterally, in discussing his duty and liability as executor. He was in that matter a third person, and in no wise affected by the decision. He was personally no more bound by it than Stewart, who itis not pretended was a party. The exception of “ res judicata” is “ stricti juris," and will not be allowed unless it is imperative. See 10 Toullier, nos. 143, 157, 213. 13 Duranton, no. 502. Cloutier v. Lecompte, 3 Martin, 481. Merrier v. Sterling, 5 La. 472. West v. His Creditors, 1 An. R. p. 365. “ The filing demanded” is not the same. The thing demanded here is the partition of certain property alleged to be owned jointly by plaintiffs and defendant. The thing demanded in the former suit was an account from the executor; the thing adjudged, was the accountability of the executor, and nothing more. The judgment homologating his account, settled the extent of his liability in that capacity, and nothing further. The title of the heirs to the property of their ancestor is not derived from the executor, and cannot be affected by a decree homologating his account. Suppose the account rendered had been homologated withoút opposition; would that have precluded the heirs from suing for property not embraced in the account 1 It is true the question of title to the property in controversy arose on the trial of the opposition, hut it was not the real point in controversy. The real point was, the accountability of the executor. Now an executor may be accountable for goods which do not belong to the succession, for instance, where they are are found among the goods of the succession, and not claimed by the true owners. So on the other hand he may not be accountable for goods Jbat do belong to the succession, as When they have not come into his possession, and are beyond his control. A judgment therefore that the executor is not bound to account to the heirs for certain property claimed by them, is not a judgment that they have no title to it as heirs, but only that the executor is not responsible for it. Their actual title is not the thing adjudged.

      W. H. Hennen, for the defendants.
    I. The thing demanded was the same. The opposition was a suit, in which the opponents were plaintiffs, and the executor, defendant; and if the judgment of homologation, rejecting the opposition, possess the requisite identities with the present action, it will have the force of res judicata ; for it matters not in what form of action or proceeding, whether by petition or exception, or intervention, the question may have been presented, if the same question, once judicially decided between the parties, be again agitated, it is sufficient to create the presumption resulting from the thing adjudged, and forms a complete bar. Pilque v. Perret, 19 La. 328. The exception of res judicata estops, whenever the same question recurs between the same parties even under a different form of procedure. Exceptio rei judicatas obstat, quoties inter easdem personas eadem quasstio revocatur ve! alio genere judicii. L. 7, § 4, ff. De Except, rei. judie. 44, 2. And see Succession of Durnford, 1 An. R. 93.
    From a comparison of the petition in this case with the opposition to the executor’s account, it is clear that in each the thing demanded is the same, to wit: that the undivided half of the plantation and slaves should be recognized as belonging to the community. It was pretended in the lower court, that the thing demanded is different, because in the one case the thing demanded was, that the executor should account, while here, the thing demanded is that a partition be made of the property. The plaintiffs ask now for their portion of an estate of which they pray the partition ; they asked then that the whole of that estate should be recognized as belonging to a succession of which they were heirs; the right which they claim now is embraced in the right they claimed then ; and the right claimed in the first suit having been passed upon must conclude the right claimed in the second. “ C’est méme un principe génóral que toutes les ibis qu’on demande par une seconde action quelque par-tie d’un tout qu’on avait domando par une premiere, la chose demandée est
      censée la méme, soit qu’il s’agisse d’un corps certain, d’une quantité, ou d’un droit incorporal. Par exemple, j’ai echoué dans la demande de la propriété d’un fonds ; j’en demande l’usufuit par une seconde action, fondée sur la méme cause. Je suis repoussé par Texceplion de la chose jugée. Ma seconde demande était renfermée dans la premiére; car l’usufruit est une parlie du fonds.” Toullier, t. 10, p. 201, nos. 146, 147. In like manner, Duranton, after giving several illustrations from the roman law, says: “ Dans tous ces cas, la chose demandée actuellement etant comprise dans la premiére demande, elle a par cela méme été jugée, et il est né du jugement l’exception rei judicatte,” t. 13, p. 489. no. 463.
    It is true that in the opposition nothing was said of the things attached to the plantation, the horses, cattle, &c.; and that the opponents only demanded the revenues from 1840 to 1846. But this is not such a difference as destroys the identity of the thing demanded. For these things were either attached to the plantation and so formed a part of it,- or they are but the fruits which have since been produced by the thing itself. “Si la premiére demande n’est que d’un seul corps, tout ce qui en faisait partie au moment de la demande, quand méme il en serait separé lors de la seconde, tout ce qui en est provenu, comma les fruits, les arbres coupés, le croítdes animaux, les enfans mis au monde par une esclava, tons lesaccessoires, tout ce qui en dépend par accession, alluvion ou autrement, est censé avoir été compris dans la premiere demande.” 10 Toullier, p. 203. no. 151. If the thing producing has been decided not to be the property of the claimant, it is clear the thing produced cannot be ; for it is the owner’s. The ownership of the plantation and slaves having been settled in the opposition, it ought not to be again brought in question : for this ownership, it appears to us, is the thing demanded within the meaning of the law. Et quidem ita definiri potest, toties eandem rem agi, quoties apud judicem posteriorem id quaisitur, quod apud priorem quaesitum est. L. 7, § 1. ff. De except. Rei Judie. 44, 2.
    II. The cause of action is the same. “ Que faut-il done entendre par la cause de la demande, causapetendi? car le mot est un peu vague. II importe beaucoup d’on determiner le sens précis. C’est, dit Neratius, la cause prochaine de Taction, causa próxima actionis, et non pas l’espéce ou le genre d’action qu’un plaideur choisit pour demander en justice la chose qu’il reclame; car deux actions difí'érentes peuvent avoir la méme cause; la méme cause peut produire plusieurs actions. Si la chose demandée est la méme, la seconde action, quoique différente de la premiere, doit done étre repoussée par Texception de la chose jugée, si elle est fondée sur la méme cause.” Toullier, p. 213, no. 161. Toullier illustrates this distinction by an example from the roman law, which may however arise under both our own and the french Code. The redhibitory action and the action quanti minoris are each founded on (he defects or vices of the thing sold, by which its utility is either impaired or wholly destroyed, and which if the purchaser had known,- he would have purchased at a less price or not at all. By the redhibitory action the purchaser demands the dissolution of the sale, the return of the price, and, in some cases, damages; while in the action quanti minoris, he demands only the return of part of the price, the sale itself still remaining valid. Yet by the roman law, after bringing the action quanti minoris, the vendee could not bring the redhibbitory action. “ Cette seconde action, quoique d’une autre espeee, quoique les conclusions en soient difí'érentes,- n’en doit pas moins étre repoussée par ¡’exception de la chose jugée, car Tacheteur ne fait que changer d'action, action-em- mutat. La cause de la seconde action, causa próxima actionis, est la méme que celle de la premiére. Ce sont les vices rédhibitoires, les vices cachés de la chose vendue, que le vendeur est tojours censé avoir connus et qu’il doit garantir. Da question á juger dans la seconde action est done la méme que la question jugée dans la premiére. Da ehoso vendue a-t-elle des vices cachés que le ven-deur doive garantir ? Cette question a déjtx été jugée. Ibid, no. '163.
    By the cause of action then is meant, the immediate facts or circumstances on the proof of which the party’s right of recovery depends. In the former suit the cause of action was the facts which it was necessary for the opponents to prove in order to make good their opposition. These were, jkst, that they were the heirs of Mrs. Packwood: second, that the plantation and slaves belonged to the community : and third, that the sale from Packivooct to Stewart
      was simulated. And what now is the cause of action on which the plaintiffs base their present action ? They allege, first, that they are the heirs of Mrs. Packwood; secondly, that, the plantation and slaves belong to the community; and thirdly, that the sale from- Packwood to Stewurlvms simulated. The test given by the common law doctrine of estoppel; which is the same in most points as our exception of res judicata, shows the identity of the cause of action very clearly. “ A verdict, says Starkie, for the same cause of action between the same parties is absolutely conclusive. And the cause of action is the same when the same evidence will support both actions, although the actions may happen to be founded on-different writs. This is the test to know whether a final determination in a former action is a bar or not to the subsequent action, and it runs through all-the cases in the books both in real and personal actions.” Starkie’s Evidence, part 2, sec. 64. Thus a judgment in trespass will be a bar toan action of trover for the same taking. 2 Bl. R. 831. And in the case of King v. Pice, 7- Johnson, 20, which was an action- of assumpsit for certain slaves, to which a former action of trespass for the same slaves was pleaded in bar, the court said: “What is meant by the same cause of action is, where the same evidence will support both the actions, although they happen to be grounded on different-writs. The plaintiff below brought an action of trespass for the taking of these slaves, and failed: and now he waives the tort and brings assumpsit upon the same proof. It was shown that the foi-mev verdict was upon the merits of the claim, and upon the ground that the plaintiff had no right to the slaves. If he had no right against the defendant for the taking of these slaves because he had no right of property, he had no right without further and different proof to the value of those slaves.” And in this case, if the plaintiffs had no right of action to compel Packwood to account for the plantation and slaves because they did not belong to the community, they have no right without further and different proof to an action of partition of the same plantation and slaves. But it is clear that the proof on the petition in this suit cannot be different-from that given on the opposition; the cause of action therefore in each is the same.
    III, There was an identity of parties. To show-this,-we have but to compare the opposition with the petition in the present suit.
    IV. The capacity of the parties is the same. Of the capacity of the plaintiffs there can be no question; they opposed the account in their capacity of heirs to Mrs. Packwood; and they sue now in the same capacity and in the same right: The only question, then, relates to the capacity of the defendant, Packwood. In the opposition, he was the executor of the succession, whilst, in the present suit, he appears in his private capacity, as the detainer of property, in which the plaintiffs claim an interest. It is therefore urged that his capacity in the two suits is different. It is true that, in the first suit he was executor, and that in the second he is not; but it is also true that he appeared in the first suit, and resisted the opposition in his individual capacity, and that he appears now and resists the claim of the plaintiffs in the same capacity.

      A. Hennen, on the same side.
    The only question before the court arises under the plea of res judicata. Art. 2265 of the Civil Code, copied verbatim from the Code Napoléon, must give the rule of decision. The article of the Code Napoleon is borrowed from the roman civil law. See Band, lib. 44; tit. 2, De Exceplione Pci Judicata?. Pothier’s Pand. lib. 44, tit. 2. Pothior on Oblig. nos. 851,910. 10 Toullier, nos. 143,259. 13 Duranton, nos. 446:528. Merlin, Rep. uerio-Chose Jugée. Mulenbruck, Doctrina Pand., no. 153. 13 Donellus, 390, Comm. lib. 22, cap. 5. 7 Leyseri,-Meditationes ad Pand. 637. Sirey, Code Annoté, ed. 1847, art. 1351.
   The judgment of the oourtwas pronounced by

Eustis, C. J.

The plaintiffs sue as the heirs of the late Alice Packwood, wife of the defendant, who died in the city of New York, in 1840, claiming to be recognized as the owners of seven-tenths of an undivided moiety of a plantation situated in the parish of Plaquemines, with the slaves thereto belonging; they pray for a partition of the same, and for an account of the revenues and profits received by the defendant, since the 27th of July, 1840. There was an exception of res judicata on the part of the defendant, which was overruled as to one of the plaintiffs, but sustained as to the rest, who have appealed. The defendant on the appeal, insists on the affirmance of the judgment.

The final decree which is pleaded in bar of .the plaintiffs’ suit was rendered by the Supreme Court, in Dec. 1845, on an appeal from the Court of Probates of New Orleans, in the case entitled the Succession of Packwood, Samuel Pack-wood, Executor, appellant, which is reported in 12 Rob. 335. The defendant was the testamentary executor of his deceased wife, and filed his account of executorship in the Court of Probates of .New Orleans, under whose authority he acted, and prayed that the same might be homologated. Two of the heirs opposed the homologation on the ground that the executor had not accounted for the undivided half of the .plantation and slaves, which is the subject of the present suit. They charge that a simulated sale had been made of it to David Stewart, that it was afterwards retroceded to the defendant, and that the retro-cession inured to their benefit; .but that if it did not, the defendant, as executor, would still be bound to account to them for the price, to wit, the sum of $100,000; they allege also other grounds of opposition to the account; they pray that the executor may.be ordered to account for the revenue and crops of 1840, 1841, 1842, 1843, which exceeded $20,000 each year, and that the executor be ,ordered to credit the succession, and charge himself, with all the sums enumerated and set forth in the opposition, and to account .for the property and assets described therein, and be condemned to pay twenty per cent damages on all sums received by him and not deposited in bank according to law.

The opposition was tried, and evidence received,pro et cow., in relation to the sale from the defendant to Steivart, and the .transfer¡by the .latter to the .former of the half of the plantation and slaves, and the Court of Probates decided that the sale was simulated, and that the plantation and slaves was the common property of his deceased wife and the defendant, and that the same must be accounted for by the executor, as community property; that the proceeds of the crops of 1840, 1841, and 1842, to wit, $54,320 84, be placed to the credit of the account as assets of the community, and that of 1843 be also accounted for as community property. The decree rejected certain items charged in the account, and established certain shares-of bank stock as also belonging to the community. On the appeal, the judgment of the Court of Probates was reversed, the opposition, so far as related to the bank stock, was sustained ; but, in all other respects, was overruled and rejected, and the account rendered by the executor thus amended, was approved and homologated.

The authority .of the thing adjudged, takes place only with respect to what was the object of the judgment. The thing demanded must be the same, the demand must be founded on the same cause of action, the demand must be between the same parties, and formed by them against each other in the same quality. Civil Code, 2265. In reference to the two suits before us, the counsel for the plaintiffs contends that two of those requisites did not concur, that ;he parties did not form their demands in the same quality, and that the thing lemanded is not the same in both suits. In the present suit the defendant is sued personally as joint owner with the plaintiffs, and it is true that the thing lemanded is a partition of the property alleged to be owned jointly, and an aq;ount of the revenues received by him since the death of his wife; but there s a question which stands before that of partition, and that is that of ownership, md the plaintiffs have expressly asked for the court to decree that the said Hamuel Packwood, render an account of the revenues which he has received rom said property since the 27th of July, 1840, and that they be recognized as intitled to seven-tenths of the undivided moiety of said plantation, slaves, &c., and of the revenues proceeding therefrom. Without establishing the fact of joint ownership, it is obvious, under the allegations of the petition, that no step would be taken by a court towards effecting a partition, and the real issue of ownership cannot be considered as subordinate to the demand in partition, nor •can it be so rendered by any form of action in which the claims of the plaintiffs may be presented. We consider that the basis of the present suit is the establishment of the joint ownership of the plaintiffs of .their share of a moiety •of the plantation and slaves and the revenues thereof, without which there could be no judgment rendered in their favor. The simulation of the sale •from Packwood to Stewart, is charged as in the opposition to the executor’s account, and the cause of action appears identical with the grounds taken •therein, so for as relates to the plantation and slaves.

It is contended that the thing demanded was an account from the executor, and the thing adjudged was the accountability of the executor, and nothing more; and, though it is conceded that the question to the title to the property •in controversy arose in the trial of the opposition, that it was ¡not the real point in controversy. Our impression is otherwise ; and whether we consider the evidence adduced, the arguments of the learned counsel engaged in the cause, •or the opinions of the court of the first instance or of the last resort, the rights of the plaintiffs as affected by the sale to Stewart were fully examined and adjudicated upon, and the form of the final decree was the consequence of the form in which the plaintiffs thought proper to present their pl.ai.ips. It negatived the obligation of the executor to account far the one-half of the plantation and slaves and their revenues, as well as for the price, and repelled the allegations concerning the character of the side to ,Stewart, of which it recognized the validity.

It is correctly stated that the proceedings in the Court of Probates ¡a tin •former suit were against Samxiel PacJewood, the defendant, as executor of fhf last wil.l of his deceased wife, that his account was filed as executor, and that ,the opposition was framed to it as the ac.cpunt of the executor, and that wjtl reference to it, as such, the decree of the Supreme Court was rendered. It-ii contended that this defe.ats one of the requisites necessary to establish res judicata viz: that the demand between the parties mus.t be in the same quality. Thii objection it wi]l be necessary to consider in reference to the mode of propepd jng in the settlement of successions, which had its origin in the Spanish law, am which is still continued under the provisions of our Codes.

The law giving a preference in the administration of successions to thos who have .an interest in them, it generally happens that the administrator, b he an heir or a creditor, has an ipfere.st adverse to those which he represent! His individual interest is litigated in the account or tableau which he present! in whi.ch his claim as heir or as creditor is exhibited ; and, if a party having a| adverse interest make .an issue on the claim thus exhibited, and that issue b tried, we have never heard it questioned that both parties were bound by th judgment rendered. Most successions have been settled in this mode, a.n there is generally no other written evidence of their adjustment than the accour rendered by the administrator or .executor, which becomes a judgment b| being homologated after due proceedings had. On oppositions to the accopn rendered, matters which are necessary to the liquidation of the successions-the debts of heirs to the successions, the amounts to be collated as well thoi of the administrator as of other parties, are generally litigated and closed byl final judgment. In such cases it is obvious that the person representing the succession is personally a party in relation to his individual claim, which he presents for judgment. Every party in interest is a party plaintiff and defendant' — -a plaintiff for what he claims, and a defendant for what he opposes. The mass, or succession, in the contest is passive and represented in law, but the real parties are the litigants. In this case, on the opposition, the present plaintiffs were the actors, and represented their interest in the succession of the deceased, and, so far as related to what they demanded from the defendant, were the plaintiffs calling upon him to restore to the succession what belonged to it; it was the suit of the succession against him, and he was the defendant. On the contrary, in his claim for commissions paid for the collection of rents, which was an item of the account, he was the plaintiff and the heirs made themselves defendants to it, and represented the succession. The defendant was in court as executor, and maintainedhis individual interests as presented and adjudged of record in his personal quality. The course pursued by the ounsel who were charged with the important trust of settling the respective i-ights of their clients, is that which has been adopted, we may say almost universally, and has been settled long since by our jurisprudence. We do not consider that it is at all material that the appearance and acts of the defendant were in his capacity of executor. His personal rights were asserted and determined upon. Had he been adjudged to account for the plantiffs’ interest in the plantation and slaves, to restore it to the community, with its revenues, the judgment would have bound him, and could have been enforced against him. Being once a party to the record, it would have been a vain form to have required him to appear personally against himself. Rather than to require such a thing the law authorizes him to assert at will his personal rights in his representative capacity. We apprehend that such is the usage observed in the settlement of successions, under the direction of courts of Chancery. When an executor is called upon to account, and he is a creditor, or an heir, or has claims on property in his charge, and asserts those claims, and, on adjudication, they are maintained after litigation in relation to them by competent parties, we are not aware that the judgment rendered can afterwards be drawn in question on the ground of the representative capacity in which the party asserted his rights. On this point we have not been furnished with any authority from that system of jurisprudence, with which ope of the learned counsel who argued this cause is so familiar.

Nor is the fact to be overlooked that the learned counsel who have been engaged at different times in the litigation of this succession, which has called forth so much learning, research, and ability, have themselves adopted of their own choice this mode of fixing responsibility on the defendant; and, in accordance with the uniform practice which we have stated, the same parties, on a mere statement of debts for which an application was made by the executor to sell property, litigated in the Court of Probates, and on the appeal, the right of the community to the sum of $14,747 — the judgment was against the plan-tin', that the executor should sell unless the heirs should make provision for the debts. The finality of this judgment the plaintiffs’ have not impugned ; on the contrary, an acquiesence in it may be inferred from the consent decree which was rendered on a rehearing. Succession of Packwood, 9 Rob. 446. We had occasion to examine tho practice on this subject in one of the first cases that .camp before us, and our views w.ere thep in accordance with those which a further consideration has satisfied us to be correct. Succession of Dumford, 1 Annual Rep. ¡9g,

No question having been made as to the jurisdiction of the court, we think there is no difference in principle between a litigation in this form and a judgment for .a sum of money, and the title to, or interest, in real property, where the parties sele.et this mode of determining it.

We think the causa petendi — the ownership of the plantation and slaves, and the consequent claim to its fruits and reyenues, were the real point of controversy in the original litigation, and that Samnel Packwood was personally a party to it in .the eye of .the law, although in the court of the first instance his personal rights were asserted in his representative .capacity.

As the cause before us has been argued with great care, and as every thing which affects the authority of res judicata is of the greatest moment, we have thus given our views in relation to the several points as they have been presented in argument. But there is one fact which removes the apparent difficulty as to Packwood's being a party in a representative capacity only,in the original suit, and that is, that the appeal was made and taken by him in his personal capacity, in the name of Samuel Packwood. The appeal bond is in his name, .and given personally with his sureties, in the sum of $150,000, conditioned that Samuel Packwood shall prosecute his appeal and shall satisfy whatever judgment shall, be rendered against him, &c.

In relation to the authority of res judicata under our jurisprudence there can hardly be any material difference of opinion. It is in the application of the rules that .controversies arise, and it'must never be lost sight of that, whatever may be the hardship of any particular case, the principle itself must be maintained in its integrity as one of the great conservative elements upon which society reposes for its security and welfare.

Judgment affirmed,


source: Caselaw Access Project

author: King, I.

license: Public Domain

text:
    Florance v. Bachemin et al.
    The admission in evidence of a record of the proceedings in another action, will not be considered as introducing in evidence the testimony upon which the judgment on those proceedings was rendered.
    A judgment rendered on the confession of a father in favor of his children, is not evidence against third persons. Per (Juriam: A father cannot he heard as a witness for or against his child. C. C. 2260.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Micou, for the appellant.

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

King, I.

Florance obtained a judgment against Jacques Bachemin, which was executed upon several lots of ground of the debtor. At the sheriff’s sale the property seized was adjudicated to Jacques Bachemin and Theodule Bachemin, children of the judgment debtor, who refused to pay the price of adjudication, on the ground that they had a mortgage on the property superior to that of the plaintiff in execution, and for a sum exceeding the amount of their bid. The sheriff proceeded to readvertize the property for sale, whereupon the purchasers took a rule upon him and upon Florance, to show cause why a. title should not be made to them of the property adjudicated. In their application for the rule they allege, that a judgment has been rendered in their favor for $3995 88, against their father and natural tutor, Jacques Bachemin, recognizing a tacit mortgage in their favor for that sum, which mortgage originated on the 25th of June, 1833. Other averments were made, which it does not become important to notice. On the day fixed for the trial the counsel of Florance was absent, and the rule was set down for a later day, when the counsel of Florance again failed to appear. In his absence the counsel for the plaintiffs in the rule proceeded to a trial, which resulted in a judgment making the rule absolute, and ordering the sheriff to execute a deed to Jacques, and Tkeodule Bachemin, for the property adjudicated to them. Florance moved for a new trial, on the following grounds: 1st. That he was not notified of the continuance of the rule, and that his counsel was unable to ascertain the day assigned for its trial, although he had examined the minutes of the court for that purpose. 2d. That testimony adduced on the trial was illegal and inadmissible. 3d. That the parties had no right to-proceed by'ruler or to suspend a sale by such proceedings. The motion was overruled, and Florance has appealed. The conclusion at which we have arrived upon the second ground urged by the appellant will render it unnecessary'to consider the other points presented.

The plaintiffs’ offered in evidence the record of the suit in which they obtained a judgment against their father and natural tutor, upon the confession of the latter. That judgment fixed no date at which the father became the debt- or of his children, or at which the tacit mortgage of the latter attached, and was obtained subsequently to the judgment in favor of Florance. The record of a former suit between Bachemin, the father, and Florance, was also offered in evidence. It is only by an examination of' the testimony used on the trial of those causes, and on file in the records, but not separately offered as evidence, that the claim and tacit mortgage of the plaintiffs’ can be fixed at a date anterior to that of the judgment obtained by Florance. The testimony upon which the judgments in those proceedings were rendered formed no part of the records offered, and did not become evidence between the parties to this cause by the introduction of those records. Baptiste v. Soulié, 13 La., 268. Nor could the testimony upon which the judgment in favor of the minors was founded have been received or considered in this cause by the judge if it had been separately offered, being the confession of the father, who cannot be heard as a witness for or against his child. C. C. art. 2260.

In the absence of this, which is the only testimony relied on to fix the date of the tacit mortgage, the judgment of the District Court is unsupported by evidence. Justice, in our opinion, requires that the cause should be remanded.

Itis therefore oi'dered that the judgmenit of the District Court be reversed. It is further ordered that the cause be remanded fora new trial, the appellees paying the costs of this appeal!


author: King, J.

text:
    Succession of Sinnott.
    A legatee of the usufruct of the only immovable property of a succession, though under a particular title, must he considered as an universal legatee of the usufruct, and his obligations in regard to debts to which the immovable is to contribute must be governed by the rales relating to legatees under au universal title; and where property is encumbered by a mortgage created by the testator, even were the devise of the usufruct to be considered a special legacy, the heir would not be bound, in the absence of any express provision in the will to that effect, to discharge the mortgage. C. C. 1631.
    from the District Court of Jefferson, Clarke, J.

      Wilde and Micou, for the appellant.
    No other counsel appeared in the case.
   The judgmentof the court was pronounced by

King, J.

William Sinnott died leaving the following will:

“ It is my wish and desire, and I hereby authorize and empower my executor hereinafter, named to emancipate according to law, and as soon as may be after my decease, my mulatto slave boy named Thomas; and 1 give, devise, and bequeath to the said boy Thomas, all my estate, real and personal, of whatever nature or kind, including my house and lot situated on Camp street, in the city of New Orleahs. It is my will and desire that my wife Jane Moore Sinnott shall have the use of my house and lot aforesaid, and of the rents to arise therefrom, during her life. I institute the said mulatto boy Thomas my universal heir. I hereby appoint Isaac Phillips, of the city of Lafayette, executor of this my last will, and detainer of my said estate, for the purposes hereinafter expressed ; and I do hereby revoke and annuli all former wills, if any, by me heretofore made, declaring this to be my only and last will.”

The boy Thomas, who was the natural son of the testator, and who was acquired upon the express condition that he should be liberated as soon as it could be legally done, was emancipated in conformity with the directions of the will, and the executor was appointed his tutor. The only remaining property of the deceased was the house and lot on Camp street, mentioned in the will, and this was encumbered with a mortgage created by the testator to secure a debt of about $400, which debt appears to be the only one now due by the succession. A family meeting of the minor advised the sale of this property for the purpose of discharging the debt; whereupon Phillips, in his capacity both of executor and tutor, took a rule upon Jane Sinnott, the widow of the deceased, and legatee of the usufruct, to show cause why the lot should not be sold in conformity with this advice. To this rule she answered : That she was a special legatee of a usufruct of the lot for her life, and that the minor, Thomas, was the universal heir or legatee ; that consequently her interest in the succession could not be sold to pay the debt, until his share had first been discussed. The rule was made absolute, and a decree rendered for the sale of the property, from which Jane Sinnott has appealed.

The appellant contends: 1st. That having a particular legacy she is entitled to be paid in preference to the minor, who is a universal legatee, 2d. That the usufructuary is not bound to pay the debt of the testator, even though it be a mortgage debt on the property upon which the usufruct is constituted. 3d. That although the whole property is subject to the debt, yet, between the particular and the universal legatee, the share of the latter is first to be discussed, before touching the former ; and that the testator, by creating a usufruct upon the property, has, in effect divided it into two distinct parts or estates. i

In support of these positions the appellant relies on the 1627th, the 575th, and the 578th articles of the Civil Code. The first of those articles declares that particular legacies must be discharged in preference to all others, even though they exhaust the whole succession. The second provides that, “ the j usufructuary on a particular title is not bound to pay the debts for which the I estate is mortgaged; if he he compelled to- pay them,-he has his action against 1 the owner, subject to the provision's ctntalned in the title of donations inter vivos and mortis causa." This article is a literal 6opy of the Gllth article of the Napoléon Code, which has received an interpretation from the french tribunals in a case in which the question now raised was presented, and under circumstances very similar to those of the present suit. It was there held that the usufructuary of the only immovable property of the succession, although under a particular title, is to be considered as the universal legatee of the usufruct, and-that his obligations in regard to the debts to which the immovable'was to contribute were to be governed by the rules in relation to legatees under an universal title. Jurisprud. du Code Civil, vol. 5, pp. 101, 104. This construction appears to us to be reasonable, and consistent with tlíó' remaining dispositions of the Code upon the saltie subject.

In the' present instance the only property of the deceased, after the emancipation of his child, whom he was bound to liberate, was the house and lot in question. Although, by the terms of the bequest, the appellant appears to be a legatee ünder a particular title, she is in reality the universal legatee, the usufruct extending to all the property of the testator. The rights of the parties are to be governed by the 578th' and 579th articles of the Code, under which the appellant may advance the sum necessary to discharge the debts of the succession, to be returned without interest at the expiration of the usufruct. Failing to do so lihe' heir may cause the property to be sold for the payment of the debts.

But even if the’ devise to the appellant were considered to be a special legacy, the heir would not be bound to discharge the mortgage on the property created by the testator, there being no express provision in the will to that effect. Civil Code, art. 1631.

The judgment of the District Court is therefore affirmed with costs, without prejudice to the right of the appellant to advance the sum necessary to pay the debts of the succession, under the dispositions of articles 578 and 579 of the Civil Code.


author: Rost, J.

text:
    Brown et al. v. Union Insurance Company.
    Objections to the forms of proceedings, made for the first time after appeal, will be considered as having been waived, where the party by whom they are set up can suffer no injury thereby.
    Though the neglect of the corporators to re-appoint officers may, in certain cases, suspend the existence of the corporation, it cannot be thus extinguished to the injury of its creditors. Per Curiam: A corporation never can dissolve itself so1 as to defeat any of the just rights of its creditors.
    Where the members of a corporation neglect to appoint officers to the injury of its creditors, the court will appoint a manager to windup the company.
    Prescription will bar any proceedings, commenced by a creditor of a corporation, under the provisions of sec. 13 of the stat. of 20 March, 1839, by propounding interrogatories to a stock-holder to ascertain if he waS'not indebfced'to the corporation, where more than ten years had elapsed since the maturity of the last instalment due on the stock before the institution of the proceedings. C. C. 3508.
    The presumption of payment, which the law raises in cases of prescription releasing from debt, is juris ei de jure. In such cases the debtor is not required to produce any title, nor to he in good faith. C. C. 3494, 3496.

      The rule that where a contract containing reciprocal and synallagmatic conventions continues to he executed by one of the parties, the other cannot refuse to execute his part, under the pretext of prescription, though those conventions be only accidental, forms no part of the law of prescription either under the Code Napoleon, or the Code of this State.
    Where no period was fixed by the charter of an incorporated company for the payment of a portion of the subscription for each share of stock, but the directors were authorized to call in the amount at such time and in such proportions as they might see fit, a creditor of the company who wishes to enforce payment of the balance so due,'must resort to a direct action. The liability of a stock-holder for this balance cannot be enforced by proceedings authorized by sec. 13 of the stat. of 20 March, 1839. In such a case as no period was fixed for the payment of the balance due on the stock, no prescription can accrue against an action by a creditor of the company.
    Where a share-holder in an incorporated company, not inhibited by its charter from dealing on credit, resists an action instituted to compel him to contribute to the payment of a note issued by the company on the ground that it was not authorized to issue notes, he must al. lege and prove that the note was given for purposes unsanctioned by, and prejudicial to, the share-holders, and that the holder was apprized of those facts when he took the note, or that he received it after maturity.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The facts-of the ease are fully stated in the opinion of the court infrd.

      Barthe and Collins, for the plaintiffs.
    The corporation was not dissolved. See Aug. and Ames on Corp., ch. 22, s. 3, pp. 735-6. The company were authorized to issue notes. Ibid. ch. 7, § 7, 8, p. 208, 242. 4 Rob. 517. 14 La. 511. IS La. 405. 19 La. 405t 11 Rob. 336. 2 Rob. 579. 8 Rob. 244. 10 Rob. 440. 14 Wend. 20.

      Benjamin and Micou, for the appellant.
    The record shows that the execution was issued on the 29th January, 1847. Bullitt was cited as garnishee on the 24th February, and answered on the 2d March. The execution was returned by the sheriff on the 15th March, 1847, as follows: “Defendants could not be found to demand the amount of this execution; I therefore return the writ, nothing-made.” Judgment was rendered against Bullitt, on the 30th November, 1847, consequently when the judgment was so rendered there was no execution in the sheriff’s hands. The service of garnishment is a seizure under execution. The garnishee is bound to pay to the sheriff, and such payment discharges the debt; but if the sheriff has no writ, he has no power to receive, his seizure is at an end, and the garnishee could obtain no release by paying money into the sheriff’s hands. This has been repeatedly held. Rothschild v. Ramsay, 2 La. 280. Cochrane v. Bank of TJ. S. 11 Rob. 64. When a seizure has once been made the sheriff is not to bring back the writ on the return day, but is authorized to keep it until the seizure is made effectual by sale or otherwise; consequently, the return of the writ, is considered an abandonment of the seizure. Catlett v. Black. 1 Rob. 540. The moment the writ is returned into court, the authority of the sheriff ceases. Raboteau v. Valeton. 11 Rob. 219. The garnishment in this case was, therefore, at an end when the sheriff returned his writ, and all subsequent proceedings were erroneous and void.
    The next ground of defence is that, before the proceedings against the garnishee, the defendants in the suit, the Insurance Company was dissolved, and was no longer in existence. See Slee v. Broom, 19 Johns. 475. Briggs v. Penraman, 8 Cowen, 387. 1 Hopkins’ Ch. R. 301. If the corporation was dissolved no execution could have been legally issued, and no garnishment served.
    Pi-ocess of garnishment is merely a seizure of the credits of the defendant. It has been repeatedly held that no such process can issue, unless execution be in the hands of the sheriff'. Simpson v. Attain, 7 Rob.. 500. Raboteau v. Vale-ton, 11 Rob. Catlett v. Black, 1 Rob. If the writ is returned, the seizure falls. Cochrane v. Bank of U. S., 11 Rob. 64. The garnishee is not permitted to represent the defendant. Although he may be aware that a good defence exists, the garnishee has no right to present that defence to the court. Harman v. Boring, 10 Mart. 568. Kimbaliv. Plant, 14 La. 511. Bee v. Palmer, 18 La. 405. He is regarded as a mere stake-holder; the plaintiff and the defendant are the litigants. He can set up no plea whatever, unless it be for his own protection, and not an interference with the merits of the plaintiff’s demand. The counsel of the plaintiffs assert and rely upon this very principle, when they assume that the garnishee in this case cannot build a defence upon the nature of the debt, on which his judgment was rendered. Hence, a defendant is a necessary party in a garnishment. To make a court, there must be judex, actor et reus — to support a garnishment, there must be plaintiff, defendant and garnishee. The correctness of these principles, as applicable between natural persons, will not be questioned ; are they not equally applicable to corporations? The latter are merely civil or artificial persons, having certain capacities and functions while they exist; but these capacities and functions cense when the corporation itselfhas ceased to exist. Representatives must be created, or claims against the corporation cannot be prosecuted. If the law of the land has not authorized the courts to appoint such representatives the legislature must interfere, as it has dope by repeated statutes for the liquidation of the banks. The necessity for such representation is the same with corporations, as with natural persons. In both eases the mercy of the law forbids the confiscation of property which has no protector. Eadem ratio, eadem lex. On this point, we think it necessary to cite but one authority, because that is of the highest character: “for there is no pretence to say, that a scire facias can be maintained, and a judgment had thereon, against a dead corporation any more than against' a dead man.” Story, J., Mumma v. Potomac Company, 8 Peters’ Rep. 286.
    It is pretended, however, that this doctrine places it in the power of a corporation, by voluntary dissolution, to delay creditors. This mistake arises from the neglect to distinguish between a garnishment, and a direct suit against stockholders. Upon the dissolution of the corporation, the action against the stockholders individually is the remedy which the law allows. Hence they have a direct interest in maintaining the corporation, so long as a dollar remains in its fisc to pay creditors ; because the moment the corporation has ceased to exist, the creditors have no recourse except upon the corporators. The case of Cucullu v. The Union Insurance Company, 2 Rob. -577, is cited in opposition to this principle. When that case is properly examined, it supports, instead of weakening, the position we have assumed. It was not alleged in that case that the corporation had ceased to exist, nor was any exception taken to the right of the plaintiff to .his execution and garnishment. Consequently, the point which we now make, was not before the court; yet what was the language of the court on the subject? “We are further of opinion, that whenever the stock-holders neglect or refuse to elect directors, to manage its affairs, and keep it in operation, or elect persons who will not call in stock to pay the debts which may have been contracted, the creditors will have an action to compel them to pay.” Although the question of the kind of action was not before them, it is obvious that the judges had in mjnd a direct action. It is true that the case arose by a garnishment, but as no exceptions were filed, there was no necessity of drawing the distinction between that and any other form of action.
    But it may be asked, if we admit that the creditor has his direct action, why should he not have his process of garnishment? It is because the garnishee cannot defend or inquire into the merits of the main action, that the' corporator has the right to demand a form of suit, in which he can make such defence.
    The next point to be considered is whether,.if the process be admissible, a case was made out for judgment against the garnishee. The garnishee, if held at all, is held merely as the debtor of the corporation. The theory of the process is that a credit of the defendant is sequestered, and applied to the debt due to the plaintiff. If the defendant could not himself recover from the garnishee, by a direct action, the plaintiff cannot, by seizure, enforce the payment. Could the Insurance Company recover from Bullitt the sum of 534,5 0 0, alleged to be due by him to said company ? This question is to be decided by reference to the charter. It provides that five dollars should be paid at the time of subscribing; twenty-five dollars, by promissory notes, payable at periods from thirty days to six months from the time of subscription ; and the remaining twenty dollars at such time, and in such manner as the directors should direct. The charter bears date on the 7th March, 1636; the books were required to be opened before the 1st of April of that year; and all the payments required on fixed days, were due and payable within the year 1836.

      The unpaid portion of the stock was thus divided into distinct portions — one payable on a certain day, without any action of the board of directors, and the other portion depending wholly upon a call to be made by the board. For the first portion, it is certain that the corporation had a direct action against the stock-holder, from the maturity of the instalments. The neglect to give a note, would have been no defence; because, after the term had expired, the money was due upon the subscription, as it would have been upon the note. It is equally certain that the corporation could have had no action for the last portion, without a formal call of the board. That call must have been made by a resolution .equally binding upon all,the stock-holders, before any one of them could be sued.
    In the late case of Purton v. New Orleans and Carrollton Railroad Company, this court expressed the opinion, that the liability of stock-holders to pay upon a call, was not an absolute liability; that the call was an uncertain event, and might never be made — the dies incertus of the civil law — the uncertain event of the Code, which makes the promise a conditional one. As this condition never happened the obligation neverbepame absolute, and the company has not, and never had, an action for the twenty dollars promised upon a call. Hen.ce, for this twenty dollars of the stock, as the defendants could not recover it, the plaintiffs in execution cannot enforce its payment by garnishment. .
    Twenty-five dollars remain of the original subscription, payable by instalments in 1836. The process in Rus case was served in 1847- More than ten years had elapsed from the maturity of the demand, before the institution of a suit. If the corporation had instituted a direct action, .the prescriplion of ten years would have been a complete bar to the demand. C. C. art. 2508.

      Barthe and Collins in reply.
    As to the new ground, raised for the first time .at this late period, to wit: “ that when the judgment was rendered against the garnis.hee .there w.as no execution in the sheriff’s hands,” the fact is, indeed, as stated ; but there are, in .connexion with it, other facts which the court will consider. 1st. The fi. fa. was issued on the 29th January, 1847, and a few days after, whiledt was still in the hands of the sheriff, the interrogatories were served upon Bullitt, who answered them, and against whose answers a .traverse was entered, and with whom an issue was made up, while said fi. fa. was still out. The trial of this Issue was delayed ; and during this delay the .sheriff erroneously made the return which is now relied on by the garnishee. 2d. This is the first time that the objection i$ urged. The act of 1839 appears to require that the interrogatories should be,propounded upon the issuing of a fieri facias; but, after answer and confession, or judgment against the garn.ishée, the law provides another process to recover the funds in his hands : “The court shall order him forthwith to deliver up said property, or pay such sum, to the sheriff; and a copy of said order, with the receipt .of the ■sheriff endorsed t,hereon, shall be delivered tp said third person, and shall bo decreed equivalent to a receipt from the debtor himself.” After judgment against the garnishee, (no objection having been previously made in consequence of the retan of the fi. fa.,) there is no longer any necessity, under this provision, for the original fi. fa. to remain in the hands of the sheriff. Itwould not enable him in take any measures against the garnishee or his property, nor to compel said garnishee to pay agreeably .to the order of court. If the garnishee refuses, tifi.fa. must, after proper proceedings, be taken out against him individually. What interest then can he have in requiring the original fi.fa. to be kept by the sheriff? Is not the judgment of the court and the receipt oil the order ,a full safeguard to him, specially provided for by law? And if he has no interest, — if he cannot be affected by it, why should he be permitted to exercise the right of refusing to pay on such a ground ? It is a general prim ciple that technical exceptions, based upon errors and omissions of form in proceedings, are cured when parties proceed to trial without urging them. The garnishee has in this case virtually waived all such grounds ; and being fully protected incase of payment, he should not, we think, be permitted to take advantage, at this late stage, of an accidental return made by tire sheriff.
   The judgment of the court, was pronounced by

Rost, J.

The late firm of Hermogene Brown Co., obtained, before its 1 bankruptcy, a judgment against Ihe Union Insurance Company, upon a prorais- ij sory note, subscribed by that institution to A. St. Clair, under whose endorse. X ment-the firmjield it. After Ihe bankruptcy of said firm, the assignee caused ■ this judgment, together with accounts, notes, and bills receivable belonging to it, to be sold at public auction, and Alfred Boisblanc, became the purchaser. He caused an execution to issue, and the sheriff finding no property of the defendants’ to seize, Boisblanc presented a petition, under the provisions of the act of 1839, stating that he had reason to believe that Outkbert Bullitt of this city was indebted to the defendants, and praying that the said Bullitt be ordered to answer on oath the following interrogatories. 1st. Are you not a subscriber to, or stockholder in, the Union Insurance Company ? If so, for how many shares 1 Is it not for one hundred shares that you are a stockholder ? 2d-Have you ever paid said stock in full ? 3d. Have you ever paid more than $5 on each share of said stock ? If yea, how much more, and when ?

The garnishee having been ordered to answer, filed an exception, alleging that the defendants, formerly a body corporate, have not, since the year 1839, transacted any business or had any office, directors or officers; that they have long since forfeited their corporate functions, and among them that of appearing as a party in courts of justice; that said functions have been resumed by the State, and the corporation has to all intents ceased to exist; that the judgment of the plaintiffs was obtained upon a note of hand, drawn by the president and countersigned by the secretary of the company; that said company was organised and empowered to act only as an insurance company, and not to give notes or monied obligations; and that the stockholders of said company are not bound, nor can they be garnisheed, for such obligations. That no execution could issue against .the defendants who were' no longer in being, and that the attachment made in his hands, as well as the execution, are illegal and void.

The garnishee reserving the benefit of these exceptions answered the interrogatories in substance, as follows: In 1836, I subscribed for a number of shares in the Union Insurance Company. That number is shown by other evidence to be one hundred. I did not pay the stock in full; according to my recollection, only the cash payment of $5 per share was paid. He farther alleged that, notwithstanding his subscription, he was not a debtor to the company, and could not be held as garnishee, because he had long since abandoned his stock and ceased to be a stockholder; and because farther, any action of the company against him was barred by the prescription of ten years. The charter shows the shares to have been of $50 each; and upon the rule taken against the garnishee, and the traverse filed by Boisblanc, the court below considering that the said garnishee was indebted to the defendants in a larger amount than that claimed from him, gave judgment against him for the amount of the judgment, interests and costs. The garnishee appealed.

In the argument before this court exceptions have been taken, for the first time, to the form of the proceedings. The garnishee went to trial in the court below without urging them, and as he can suffer no injury by reason thereof, we must consider them as having been waived.

The first ground of -defence is that, before the proceedings against the garnishee were had, the insurance company was dissolved, and the defendants jn the suit no longer in being. The charter, granted in 1836, gives the corporation a duration of thirty-five years. It has not been avoided by the legislature ; and we take it to be the settled rule that, although the neglect of corporations to reappoint their officers may, in certain cases, suspend their existence, they cannot be thus extinguished to the injury of .creditors. Angelí and Ames on Corporations, new edition, p. 735, 736, oh. 27, sec. 3. Ibid p. 599. The case of Slee v. Broom, cited by the counsel for the appellant in opposition to this principle, was exceptional, and, as Chancellor Kent observes, a decision for the sake of the remedy and in favor of the creditors. The charter of the company in that case provided that creditors should have a direct action against the shareholders, .after the dissolution of the corporation only. The action was brought by a creditor, alleging the dissolution, against a shareholder; and it was very properly determined that, as the shareholders had done every thing in their power to dissolve the company and to consider it as dissolved, the court, for the sake of giving the remedy to the creditor, would also consider it in that light. 19 Johnson R. 475.

A corporation never can dissolve itself so as to defeat any of the just rights of its creditors. In this case, the officers once appointed are required by the charter to continue in office until others are elected, and, if they should die, absent themselves, resign, or refuse to act, and it was made to appear that the shareholders neglected to appoint others to the injury of the creditors, we would, on a proper case being made out, feel ourselves authorized to order the appointment of a manager in the interim, for the purpose of winding up and putting an end to the concern. This appointment would in no wise differ from, that of receiver, which our courts frequently make to settle the affairs of insolvent banks and partnerships. In the case of Carlan v. Drury, 1 Ves. and B. 154, involving the question of the neglect of the managers of the association of the Bankside Brewery to act, the Lord Chancellor said: “This court is not to be required on every occasion to take the management of every play-house and brew-house in the kingdom. But if the case justified the interference of the court, it may appoint a manager in the interim, for the purpose of winding up and putting an end to the concern. If a case of delinquency was clearly made out, I do not hesitate to declare the court would act. But there must be a positive necessity for the interference, arising from the refusal or neglect of the committee to act.” Under the equity powers vested in our courts and the imperative command of the law that, in cases not provided for, the judge shall proceed and decide according to equity, they might adopt a similar course, if it became necessary to prevent a failure of justice.

The next ground is that, the Insurance Company could not recover from the garnishee the sum alleged to be due by him for stock, and that the attaching creditor can only exercise against him the rights of the company. The charter divides the subscription into two distinct portions. The first is composed of the $5 paid at the time of subscribing, and of §25 more which were to be paid on each share by instalments fixed by the charter, and all falling due within the year 1836. The other portion is composed of the other $20, for the payment of which no period is fixed, the directors being authorized to call it in at such time and in such proportions as they might see fit. The $25 to be paid at fixed periods were due to Ihe'corporation, and formed part of the assets out of which its liabilities were to be satisfied. To the extent of that debt, the garnishment must be sustained, unless it is barred by lapse of time, as alleged by the garnishee.

More than ten years had elapsed from the maturity of the last instalment beforo the institution of these proceedings against him. Art. 3508 of the Civil Code provides that, all personal actions except those enumerated in the title of prescription, are prescribed by’Ten years, if the creditor be present, and by twenty years if he be absent. The french text is: lí Tonics les actions personnelles généralement quelconques.” The disposition is as universal as language can make it. -

The directors of the company had their choice either to consider the stock as forfeited on the non-payment of the instalments at the periods fixed by the charter, or to sue for those instalments. They neglected to act in the matter. Supposing this neglect to have originated in fraudulent motives on their part and that of the shareholders, the creditors of the company were not remediless; they might have caused the company to be administered, and the calls necessary to pay them to be made and enforced.

The prescription which operates a release from debt does not require that the debtor thould produce any title, or that he should be in good faith. The neglect of the creditor alone operates the prescription. . When he is pregent, and his silence has continued ten years, the law presumes payment; that presumption is juris et de jure; and the statement of the garnishee in this case that, according to his recollection, only the cash payment of §5 per share was made, will not avail against it. Civil Code, arts. 3494, 3496. Good faith not being required for this class of prescriptions, the relation which existed between the garnishee and the defendants can be no obstacle to it. It was formerly maintained by Dunod and other civilians, that when there is in a contract reciprocal and synaliagamatic conventions, as long as the contract is executed by one of the parties, the other cannot refuse to execute it on his part, under the pretext of prescription, even if those conventions should only be accidental. This was called the rule of correlatives. An attempt was made to have it inserted in the Napoleon Code, but it failed; and the rule forms no part of the law of prescription, either in France or with us. We must hold, therefore, that the relations of parties, under a contract or a charter, do not affect the general law on this subject. Troplong, Prescription, voí. 2, no. 534.

For the §20 remaining on each share, the company had no action against the garnishee without a formal call, made-upon all the shareholdes equally, and then only for the share due by him. His liability to third persons for this portion of the subscription, cannot be enforced by the process of garnishment. They must resort to a direct action. Purton v. New Orleans and Carrollton Rail Road Company, ante p. 19. As no term was fixed for the payment of it, it is manifest that no prescription has accrued.

It has also been alleged as a ground of defence, that the company was not authorized to issue promissory notes. This plea; as made, would not avail the garnishee even in a direct action. The company is authorized by the charter to make all contracts, to establish by-laws, to insure, and to settle, adjust and pay all losses, according to their own rules and regulations. Its charter contains no inhibition to deal on credit; and if the garnishee meant to insist that the note was given for purposes unsanctioned by it and prejudicial to the shareholders, those facts ought-to have been alleged and shown; and he should further have alleged and proved that Iiermogene Broion Sf Co. were apprized of them when they took the note, or that it was received by them after maturity. Hill v. Manchester and Salford Water Works Company. 2 B. and Ad. 544.

For the reasons assigned, it is ordered that the judgment in this case be reversed. It is further ordered that the attachment made in the hands of Culh~ bert Bullitt be dissolved, and that there be judgment in'his favor, with costs in both courts. It is further ordered that the rights of the seizing creditor in a direct action be reserved.


author: King, J. King, I.

text:
    Riley et al. v. Hart et al.
    The production of letters showing that finos had been imposed on a mail-contractor by the post-office department for failures to deliver the mail in time, that department having the right to remit the fines on a proper showing, is not sufficient evidence that the fines have been paid, to authorize a judgment for their amount against a sub-contractor through whose fault the fines were incurred.
    The right of action on a contract, made by a government mail-contractor with the owners of a steamer, to convey the mail, is not prescribed by one year. C. C. 3499. Such a contract cannot bo considered one of affreightment.
    from the Fourth District Court’af New Orleans. Strawbridge, J.

      O. M. Randall, for the plaintiffs.

      Lockett and Goold, for the appellants.
   The judgment of the court was pronounced by

King, J.

The plaintiffs sue as owners of the steamboat Douglass, to recover from the defendants compensation for carrying the mail between New Orleans and Bayou Sara. The defendant Hart pleaded the prescription of one year, and a failure of the plaintiffs to perform their contract. He also claimed in reconvention, a sum which he alleged he had been compelled to pay for fines imposed by the post-office department, in consequence of the failure of the plaintiffs to deliver the mails punctually. The district judge awarded to the plaintiffs compensation for nine trips of the boat, after deducting the flues incurred in consequence of the neglect of the plaintiffs, and the defendants have appealed. The plaintiffs in their answer ask that the judgment be amended, so as to allow them the entire sum claimed.

It appears from the evidence that the defendant Hart was a contractor with the government for the transportation of the mail between New Orleans and Bayou Sara, and employed the steamboat Douglass to carry it weekly, from November, 1843, to the first of March following, at the rate of $86 a trip, going and returning. Early in January, 1844, after nine weekly trips had been performed under this contract, the Douglass was bought out of the trade, by the steamboat Harry of the West, and the plaintiffs employed the Harry of the West to perform the unfinished part of their contract. The mail was actually carried upon the latter boat until the 1st of March, 1844. The defendant Hart was no party to this arrangement; btif, on the contrary, when he heard that the Harry of the West was to be substituted for the Douglass, expressed his dissatisfaction. He had a strong objection to the Harry of the West, in consequence of a personal hostility which existed between himself and the commander of that boat. He expressed a want of confidence in the commander, and declared his apprehensions that if the execution of the contract were confided to him it would not be punctually performed, and that he would be subjected to fines. After much persuasion however, and the strong assurances of one of the owners of the Harry of the West that he would himself superintend the performance of the contract, and be answerable for its faithful execution, Hart finally assented that the mail should be carried on that boat; but upon the condition that it should be carried without charge, and that the officer then in command should be removed if he proved unfaithful; and, on his part, he agreed that he would run no other boat in opposition to the Harry of the West while the contract lasted. As the contractor for the transportation of j the mail, he had the right to insist on its being carried on the boat of his own) selection, chosen with reference to its safety and the character of its officers. Both his contract with the government, and his duty to J;he public, required that he should provide a punctual and secure conveyance for the mail. When the plaintiffs ceased to transport the mail on the boat selected lor that purpose, right to treat the contract as at an end; and, when he assented to the substitucommanded by an officer in whom he had confidence, the defendant Hart had the tion of another boat, with a different commander, to complete the contract, he was at liberty to impose such further terms and conditions as he deemed necessary to ensure the faithful performance of his obligation to the government.

It is true that one of the owners of the Harry of the West states in his testimony, that he was paid by the plaintiffs for carrying the mail under a contract to that effect; but it is not shown that the defendant Hart was aware of such a contract between the plaintiffs and the Harry of the West. So far from assenting to such payment, it is shown that this witness was the person who acted in behalf of the Harry of the West in effecting the arrangement with Hart; that the permission to carry the mail was obtained at his urgent solicitation; and that “he agreed to carry the mail for nothing, provided Captain Hart would put on no opposition boat.” The Harry of the West has made no charge against Hart, and there is no charge on the books of that boat relating to the transportation of the mail. The evidence renders it more than probable that a part of the consideration of the contract between the Douglas and the Harry of the West, by which the former withdrew from the trade, was, that the latter should carry the mail during the unexpired time for which the Douglass had agreed to carry it; and the witness who states that a compensation was paid for this service, must have considered that, under this contract, the Harry of the West has been remunerated by the owners of the Douglass in the withdrawal of the latter from competition. If this be not the explanation of his testimony, then, the witness appears to have received compensation for services which he agreed to perform without reward. But whatever may have been the contract between the owners of the Douglass and the Harry of the West in regard to payment for this service, Hart is not shown to have known ofit, and is not bound by it. He finally acquiesced, however, in the substitution of the boat selected by the plaintiffs to completé their undertaking, and upon terms advantageous to himself, and cannot complain that the contract has been violated, or avoid paying the plaintiffs for the services actually rendered by them.

We think that the judge erred in charging the plaintiffs with the fines alleged to have been imposed, for failures to deliver the mail seasonably. Letters have been produced showing that the fines were imposed by the post-office department at Washington, and this is the only evidence relied on to show that they have been paid. It is known that the department is clothed with the power both to impose fines upon'mail-contractors for delinquencies, and to remit them upon a proper showing. Under these circumstances, the bare production of a letter notifying a contractor that he has been fined for a failure to deliver a mail, cannot be deemed sufficient evidence that the fine has been paid. In this respect the judgment must be amended, reserving to the defendants the right to claim the amount of these fines, upon making proof of their payment.

The prescription of one year, pleaded by the defendant Hart, does not, in our opinion, apply to a contract like the present, which can, in no sense, be considerod a contract of affreightment. Civil Code, art. 3499. The contract was one for carrying the mail, and its character is not changed by the fact that the transportation was by water, instead of being by land.

Where the answer of an appellee praying for an amendment of the judgment is not filed uni til the day fixed for the argument of the case, no amendment can be made. €. P. 890;

Same Case — On a Re-hearing.

a re-hearing in this case, the opinion of the court was pronounced by

King, I.

Our attention has been called to the fact that, the answer of the appellee praying for an amendment of the judgment appealed from, was-not filed until the day fixed for the argument. The delay within which he is permitted to ask this change had then expired. C. P. 890. Instead of the decree heretofore rendered, Qne must be entered merely affirming the-judgment appealed from. Judgment affirmed.


text:
    Erwin v. The Commercial and Railroad Bank of Vicksburg.
    Negotiable notes can be attached only by taking actual- possession of them, or by seizing them in the hands of a third person who holds them for the use of the defendant in attachment.
    An attachment will be set aside where there is either no previous order authorizing it to b© issued, orno affidavit of the facts necessary to authorize the granting of an order, or no bond as required by law. C. C. 239, 243, 245.
    from, the District Court of Madison, Curry, J.

      Amonetl and Bemiss, for the appellant.

      A. Pierse, Stacy, Sparrow, Snyder and Tliornas, for the defendants and garnishees.
   The judgment of the court was pronounced by

King, J.

In June, 1842, the plaintiff commenced this action claiming from .the defendants 3510,000. He alleged that Parham was indebted to the defendants, prayed for an attachment, and that Parham be made a party as garnishee, and ruled to answer the interrogatories annexed to the petition. On the writ which issued the sheriff returned, that he had posted up a certified copy of it at the door of his office, and served another on Parham personally. Par-ham appeared, and, in answer to the interrogatories propounded to him, stated, that he executed several notes, negotiable in form, payable to the order of J. M. Wall, but knew not where they were; nor by whom they were owned; that, in 1839, Wall deposited three of these notes with the defendants, as collateral security for a debt which he owed them; and that he was not aware of being Indebted to the defendants. No further action was taken in this suit until the 28th of March, 1844, when the plaintiff filed a supplemental petition, in which he repeats the allegations of the original petition in regard to the indebtedness of the defendants, and their domicil in Mississippi, and avers that Wall and Johnson are largely indebted to them. He concludes with a prayer that the defendants he .cited; that general writs .of attachment issue; that Wall and Johnson be made parties, as garnishees, to the suit, and ruled to answer certain interrogatories propounded to them. No order was made upon this petition, no affidavit was appended to it, and no bond was given by the plaintiff. The clerk, however, issued a writ of attachment, upon which the sheriff returned that that he had seized a note of Culbertson1 s, on file .in the suit of the Bank v. Culbertson, and all the interest of the bank in that suit. Citations also issued which were served on the defendants, by being posted up at the courthouse door, and upon Wall personally. Wall answered the interrogatories propounded to him, but these it will not become necessary further to notice. The district judge .rendered a judgment for the amount claimed in favor of the plaintiff, and against the garnishees Parham and Wall, reserving to the latter the right of discharging their indebtedness in the notes or currency of the defendants; and the plaintiff has appealed. The defendants and garnishees .ask for the dissolution .of the .attachment, and the dismissal of the action.

It has been repeatedly held that,.in proceedings .under attachment, negotiable notes can only .be seized by taking actual possession of them, or by attaching ■ them in the hands of a person who holds them for the use of the debtor. 14 La. Rep. 451. Ib. 514. The mere service of copies of the petition and attachment on Parham would not have had the effect of attaching the debt, even if his answers had disclosed that the negotiable notes by which it was evidenced were owned by the bank. But bis answers, which are uncontradicted, negative the fact of his indebtedness to the defendants. If the bank continued to hold the notes which were deposited three years previously, which is not shown, they were-only held .as collateral security. Under the first writ of attachment the defendants were clearly not brought into court by the seizure of their property, and they made no appearance; that proceeding failed altogether. The writ was returned, and never afterwards acted upon.

If it be conceded, for the purposes of this inquiry, that there was a seizure under the second writ of attachment, that proceeding was so defective as to involve its entire nullity. The writ issued without the authority of a previous order ; the plaintiff made no affidavit of the facts necessary to authorize the granting of an order, and the bond required by law was not furnished. Any one of these omissions would have been fatal to the proceedings. C. P. arts. 239, 243, 245. Although the plaintiff terms his petition a supplemental petition, he in reality instituted a new and distinct proceeding, in which he prayed for attachment and citations to the defendants and garnishees. He did not rely upon the writ originally issued, and cause a further seizure to be made under it; nor did he ask merely to make an additional party garnishee, but resorted to a new attachment. The original writ was entirely abandoned ; and, in taking out his new attachment, it was necessary that it should have been accompanied with all the formalities necessary to give it validity as a separate and distinct proceeding. Neither the oath, the order, nor the bond upon which the first attachment issued, can be called in aid of the second. They were given in a different proceeding, to obtain a writ the further execution of which was abandoned. 38 La. 484. 12 Rob. 227.

Other irregularities have been suggested, which it becomes unnecessary to consider. The defendants were not brought before the court, and no valid judgment could have been rendered against them or against the garnishees. The record furnishes no grounds for remanding the cause.

It is therefore ordered that the judgment of the District Court be reversed, and that the plaintiff’s action be dismissed as in ease of non-suit; the appellant paying the costs of both courts.


author: Eustis, C. J.

text:
    Union Bank of Mississippi v. Ellis et al.
    Parol proof of a fact of which written evidence must exist, as of a mortgage, is inadmissible.
    from the District Court of Carroll, Curry, J.
    Browder, for the appellants.

      Prentiss and Finney, for the defendants.
   The judgment of. the court was pronounced by

Eustis, C. J.

This is an action against Turner R. Miller and Arm~ strong Ellis, on two promissory notes, which they signed as sureties, with Andrew Ellis as principal, for $4,000 each, in Jackson, in the State of Mississippi. There was judgment for the defendants, and the plaintiffs have appealed.

The defendant Miller admitted that he signed the notes, but alleged in his answer that the consideration for which they were given had entirely failed, The notes were payable to the Mississippi Union Bank, and were not negotiable. The plaintiffs, on the trial of the cause, objected to the admission of parol evidence offered by Miller to prove the existence of an encumbrance on the property for which the notes were given, to wit, an outstanding mortgage. As the evidence of that fact must exist in writing, we think the parol evidence ought not to have been received, Other evidence of the same sort vyas also admitted, which ought to have been excluded; and the indefinite character of the whole renders it not safe for us to determine as to the rights of the parties plaintiff, and one of the defendants, Miller, As the evidence stands, we think the genuiness of the signature of Armstrong Ellis is disproved. If it has been forged, the effect of the forgery upon the obligation of Miller, will remain to be examined hereafter.

The judgment appealed from in favor of Armstrong Ellis, is affirmed: that in favor of Miller, is reversed j and the cause so far as relates to him, remanded for a new trial; the plaintiff and Miller, each, paying one-half the posts of this appeal,


author: Slidlll, J.

text:
    Perry v. Thompson.
    A due bill executed by a married woman, without tbe authorization of her husband, will not be binding on ber, where the .consideration for which it was given is not shown to have inured to her benefit.
    from the District Court of Carroll, Curry, J.

      Stacy and Sparrow, for the appellant.

      Be-miss and Thomas, for the defendant.
   The judgment of the court was pronounced by

Slidlll, J.

The plaintiff is the holder, by transfer long after maturity, of a due bill signed by the defendant, a married woman, without the authorization 'of her husband. Under the evidence, we are not satisfied that the defendant received for the note, such a consideration inuring to her benefit, as would authorize us to hold her bound by this contract.. .

Judgment affirmed.


author: Slidell, J.

text:
    Copley v. Routh.
    Where farther time has been allowed to an appellant to bring up the transcript, bat it is not filed within the time thus allowed, and no further extension is obtained, but the transcript is subsequently filed, the appeal must, on motion, be dismissed. C. P. 833, S84, 885.
    from the. District Court of Concordia, Gurry, J.

      Stockton and Steele, for the appellant,
    contended that the transcript might be filed at any time before a certificate was obtained that it had not been brought up, citing 7 La. 350. 10 La. 502.

      Stacy and Sparrow, for the defendant,
    moved to dismiss the appeal, citing 6 Rob. 69. 7 La. 277. 8 La. 206. 14 La. 203, 292. 16 La. 50. Davis v. Hood, 2 An. R. 453.
   The judgment of the court was pronounced by

Slidell, J.

By the order of appeal, it was made-returnable in New Orleans on the second monday of January, 1847. The transcript was not filed until the 24th of March, 1847. On the 12th of February, 1847, upon application of the appellant, further time, to wit, ten. days, was granted to bring up the transcript. The time so allowed having expired, and no new order of extension having been granted, the appellee, on the 23d of March, 1847, filed a motion for dismissal.

This motion must be sustained. Independent of other considerations, the neglect of the appellant to obtain a further extension after the time granted by the order of 12 February, 1847, is fatal. C. P. 883, 884, 885. Palfrey v. Winter, 8 La. 206. Vancampen v. Morris, 6 Rob. 79. Pond v. Horton, 7 La. Rep. 177. Appeal dismissed.

      The order of 12 Feb. 1847, was made “without prejudice to the rights of the opposite party.”