text:
    Goodman and Son v. William Allen et al. Lexington Fire Insurance Company v. Same.
    The surety on a forthcoming bond for property which had been attached is not liable on a rule taken against him, without a ji. fa. against the principal in the bond having been returned unsatisfied, or, at least, until the principal has been put in default for the failure to produce the property bonded.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      R. Mott, for plaintiffs, contended:
    This is an appeal from a judgment against M. Greenwood, as surety on a bond given by John Carroll, the intervenor. The questions presented for the consideration of the court are few and, we think, simple: The steamboat New Plampshire was attached for damages in destroying a flatboat; no motion was made to set aside the attachment; but the defendants answered to the merits, and John Carroll intervened, and claimed to have become the owner of the boat after-' the damages had been done the plaintiffs. Plaintiff replied that Carroll’s title was simulated and fraudulent, and made for the purpose of defeating their claims; that he was an officer of the boat, and knowing to the whole transaction, &e. After the intervention had been filed, Carroll asked leave of the court to bond the boat, which he was .allowed to do, on giving bond to produce the boat to meet the judgment of the court, &c. Greenwood was the surety on that bond.
    When these cases came on for trial, the counsel for the plaintiffs and intervenor agreed to submit the case to the court on the testimony on file. The result was a judgment for the amount claimed in favor of the plaintiffs, against the defendants, nothing being said about the intervenor; the judgment, in terms, neither affirming his claim nor dismissing it; and as there was, in fact, no showing in his favor, it is probable that the court considered the intervention in his name as a farce. On these judgments execution duly issued, and after due legal proceedings, was returned nulla bona by the sheriff, the return day having

      ' A rule was taken on Greenwood, the surety on the bond, to show cause why he should not pay the amount of the bond; to which he filed a written answer, setting up as defences: That Carroll, the intervenor, was dead before the case was tried; that the court had not decided the case as to Carroll, the intervenor; and, that the original attachment, being for damages, was illegal, and thei’efore the surety on the bond was not liable.
    The rule was made absolute; the defendant thex-eon appealed; and it is now for your honors to say whether the proof of Carroll’s death has been established, and if it has, whether the judgment of the court against the defendants, with privilege on the property attached, was not all that was necessary. The only testimony offei’ed to show the death of Carroll was that of one of the defendants to the suit, which was rejected. The intervenor appealed at the trial, by his counsel, and the judgment of the court px-ecludes him from further action in the premises.
    The plaintiffs think that the right to have the attachment set aside was personal to the defendants; and as they acquiesced, the intervenor could not appear to set it aside, and much less could his surety do so, even before answer or judgment in the case. See cases of Myers v. Perry, 1st Ann. 373. Bringier v. Griffin, 2d Ann. 156. Code of Practice, 344.

      Hunton and Bradford, for defendants, contended:
    The plaintiffs in these suits having attached the steainboat New Hampshire, John Carroll brought suits to enjoin their proceedings against the boat, which he alleged to be his property. Tlxe court ordered all these suits to be consolidated, and directed the boat to be restored to John Carroll, on his giving bond for $3200, with Moses Greenwood as his surety, to abide the further order of the court.
    The plaintiffs having recovered judgment against the oi'igirial defendants, with privilege on the property attached, took a rule on Moses Greenwood, as surety, to show cause wiry judgment should not be given against him for the amount of his bond. From the judgment against him on this rule the defendant has appealed.
    The defendant excepted to the rule on the following grounds: 1. That the attachments in said suits issued on claims for damages ex delicto 2. That the defendant became surety for John Carroll, and that no judgment has been rendered against his said pi’incipal; nor can any of the proceedings herein had be binding on the legal representatives of said John Carroll, who died on the 1st of Januaxy, 1848, befoi'e said proceedings were had; nor on defendant, as his surety The death of John Carroll is shown by the testimony of W. Allen. This testimony was improperly rejected. These cases were not submitted till 12th Mai’ch, 1850, and the judgment of the court is entirely silent as to the claim oí John Carroll. But these claims were presented in the form of separate and independent suits, which must be decided before the bond of Carroll can be forfeited. The case of Jones v. Lawrence is not in point. 4th Ann. 279. 3. That the said rule is irregular and premature. The bond states that John Carroll, as principal, and Moses Greenwood, as surety, “agree to abide by the order of the court, and, under the same, are responsible for the safe return and restoration of the steamboat New Hampshire to abide the further order of the court.” No infraction of the condition of this bond has been shown.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs in these suits having attached the steamer New ‘Hampshire, John Carroll brought suits to enjoin the proceedings against the vessel, which he alleged to be his property, and not the property of Allen and others, the defendants in attachment. The court ordered all the suits to be consolidated, aud directed the vessel to be restored to Carroll, on his giving bond in the sum of $3200, conditioned for the safe return of the vessel to abide the further orders of the court in the suits. A bond was accordingly given by Car•roll, with Greenwood as surety.

judgment was rendered in favor of the plaintiffs, with privilege on the property; which judgment, although it does not in express terms decide the claim of ownership asserted by Carroll,-may, for the purpose of our present inquiry, •be considered as a judgment against him upon that claim. A fieri facias was issued against the defendants in attachment, to wit, Wm. Allen, George T- Allen and Jacob Forsyth, and was returned nulla bona. The plaintiffs then took a rule upon Greenwood, the surety of Carroll, to show cause why he should not be condemned to pay the plaintiffs the amount of the bond. Various grounds of exception and defence were set up by the defendant in the rule; one of which was, that the rule was irregular and premature.. We understand the practice in case of bonds of this nature to be, that the creditor cannot ask judgment by rule against the surety, without a fi. fa. against, or, at least, a putting in default of the principal. No call, by fi. fa. or otherwise has heen made upon Carroll for the restoration of the vessel or the payment of the bond.

It is therefore decreed, that the judgment of'the district court be reversed, and that the rule.be dismissed as in case of non-suit; the plaintiffs paying costs in both courts.


source: Caselaw Access Project

author: Rost, J. Preston, J.

license: Public Domain

text:
    T. O. Kearney v. D. H. Holmes. D. H. Holmes v. T. O. Kearney.
    A clerk iu a large dry goods store frequented by female customers, while ladies were in the store, engaged in a quarrel with another clerk and drew on him a revolver without there being any necessity for such violence, Held: that such conduct justified the employer in discharging him.
    Where a party has used the process of courts for the sole purpose of vexing and harrassing the defendant, without any reasonable hope or expectation of recovering any portion of the sum claimed, such party becomes liable to the other for damages, even though the suits thus brought were merely ordinary civil suits.
    APPEAL from the Second District Court of New Orleans, Lea, J.

    The judgment of the district court was in favor of Holmes against Kearney, for two hundred and fifty dollars damages on the reconventional demand of Holmes.

      C. Redmond, for the plaintiff,
    made the following points on the reconventional demand of Holmes: As to the action in damages, consolidated by consent with this, although Holmes has obtained a judgment for $250, we cannot bring ourselves to the conviction that our duty to the appellant requires argument thereon. We deem it sufficient to observe, that the two first suits were for damages for breach of partnership agreement; that the 'defendant was put under oath, and all but admitted a legal contract, though qualified by the declaration that the promise made was not positive, but conditional, on the respondent’s withdrawal from business, a design which was defeated by the French Revolution. That the first suit was discontinued because defendant refused to wait the return of a commission, and that in the others defendant moved for a non-suit.
    In any of these cases defendant might have introduced his evidence, and have obtained a final judgment had he thought proper to do so. He might have availed himself of his own answers to interrogatories, had he deemed them available as evidence to terminate the litigation. On this subject, we beg leave to refer the court to Mr. Budd’s testimony, and to the extracts from Mr. Griffith’s letters, a witness, who was in possession of the partnership agreement, but who refused to testify in a quarrel between mutual friends.'

      Benjamin and Micou, for defendant, contended:
    The plaintiff instituted four successive suits against defendant, without shadow of claim, and upon causes of action merely pretended and fictitious. To thefourth suit, defendant replied by claiming, in a separate action, damages for this malicious prosecution and annoyance. This demand was consolidated with plaintiff’s suit, by consent, and tried as a reconvention.
    It is impossible to discover even an excuse for the plaintiff for his repeated and pertinacious demands. The defendant had acted towards him with the greatest forbearance and liberality, and no single fact or circumstance was proved by the plaintiff tending to support his demands.

      We are sure that this court can find no fault with the judgment of the court below, except that the damages awarded to the defendant are much less than he sustained; and we are confident that, if he had not refrained from demanding an amendment of the judgment in his favor, it would have been granted by this court.
   The judgment of the court (Preston, J., dissenting in part) was pronounced by

Rost, J.

The evidence in the record satisfies us that the plaintiff, so far from exercising his legitimate legal rights in his numerous suits against the defendant, has used the process of courts for the sole purpose of vexing and harrassing him, without any reasonable hope or expectation of recovering any portion of the sum claimed. The fact that he agreed to take less wages from the defendant than he was receiving in another house, has no weight with us. It may not have been optional with him to remain in that house, and he may have had many motives for making the change, besides the belief that he was to become the partner of the defendant. We are of opinion that the judgment .should be affirmed in both cases.

Judgment affirmed in both cases, with costs.

Preston, J.

dissenting. The plaintiff sues for five hundred dollars, alleging that he was employed by the year by the defendant as superintending clerk in a large dry goods store; that he was dismissed on the 13th of December, 1848, without cause; for which reason he claims wages to the 1st September, 1849, when he alleges his term of service was to expire, in consequence of an arrangement to become a partner of the defendant in his business.

The defendant denies that he employed him by the year, but by the month; alleges that he had sufficient cause to dismiss him, and admits that half a month’s salary was due to him, which he has tendered.

The plaintiff has rendered it probable, by the testimony, that he was employed by the year, but has not furnished such conclusive proof that we should be obliged to differ with the district c.ourt even on that point. But even if he was employed by the year, the defendant has shown sufficient cause for his discharge.

• The defendant kept a large dry goods store, which was much frequented by female customers. At nine o’clock in the morning, and while some ladies were actually in the store, a quarrel took place between the plaintiff and another clerk under his direction, whom he struck, and on whom he drew a revolver, compelling him to retreat, producing great confusion in the store, and frightening the ladies very much.

The plaintiff has not shown any absolute necessity for such violence, in order to protect his own person or the person or property of his employer, which alone could have justified it. Nothing would sooner and more certainly destroy the custom of a dry goods store, the resort principally of females, than a reputation for broils with deadly weapons in the very place and hour of business. Even in this place, the resort of men alone for business, if an officer of the court under our control, should, during the session of the court, resort to blows and draw a revolver on another, without an absolute necessity to protect his person from violence, we should be compelled to dismiss him for the first offence, however great the provocation.

The testimony, therefore, justifies the defendant in having discharged both the clerks; and being justified in so doing, the plaintiff was not entitled to wages afterwards, even if he had been employed by the year. The defendant tendered the wages actually due, and offered the plaintiff, as a present, five times the amount. The money tendered still remains in court subject to his order. Judgment was, therefore, very properly rendered in favor of the defendant and for his costs, and we all concur in affirming it.

With this suit is consolidated one by Holme# against Kearney for a thousand dollars damages, in which he alleges that Kearney had instituted four suits against him, well knowing that he had no legal claims, but maliciously and wantonly to vex and harrass him, and to impose upon him charges, inconveniences and expenses; that he never would permit his false and - pretended claims to be adjudged, but as soon as the suits came up and were called for trial, discontinued them, or suffered non-suits for the mere purpose of beginning new suits for the same pretended and false demands. He alleges that he had incurred expenses and suffered damages by the wanton conduct of the defendant to the amount of a thousand dollars, which he claims.

The rule of law is the- same in relation to a claim for damages for a vexatious suit, as for a malicious prosecution. No action lies for suing a civil action, when the plaintiff fails, unless it be alleged and shown to be malicious and without probable cause. White v. Dingby, 6 Mass. Rep. 435. Vandouzer v. Lenderman, 10 John. Rep. 106. 1 Salk. Rep. 13. 1 Bos. & Pull. 205.

It requires a strong case of malice, and want of probable cause to support a suit for a malicious prosecution; because, if on the failure of every prosecution, the accuser was subjected to damages, it would entirely discourage the prosecution of real offenders. So in a suit for damages on account of vexatious civil suits, a strong case of mere malice and entire want of a cause of action ought to be shown, or parties would be deterred from entering the courts of justice, although they really believed their complaints to be just. On the -contrary, our courts should be open to every person to enter without fear, if he believed he had a just complaint, however unfounded it might be.

Our lqte Supreme Court in the case of Escurial v. Daboval, so often before it, manifested strongly their repugnance to allow damages really suffered against a party who thought he was exercisibg a legal remedy; and I do not recollect in this State any successful suit for damages claimed on account of vexatious suits, where the party commenced by petition and citation alone, although it has been different where the parties resorted without cause to the extraordinary remedies of arrest, attachment, sequestration or injunction.

In England, the! plaintiff who. failed in his suit, was amerced in costs for his false clamor, but they embraced only what were strictly the expenses of the. suit, and not the money expended by the party himself, nor compensation for his own time. It was only when knowing that he had no cause of action or complaint, and acting entirely from malice, he vexed the defendant with suits, that the plaintiff was liable to damages.

The rule is the same in our jurisprudence. Costs are allowed the defendant, if the plaintiff fails in his suit, and nothing more, if in good faith the plaintiff believed he had a cause of action. Ill-will in the commencement and prosecution of the suit, is not alone the malice contemplated by law to render the plaintiff responsible; for there is often ill-will and'bad feeling in the prosecution of just suits. It is the malice which is composed of bad feeling united to a knowledge in the plaintiff himself that he has no just cause of action, which renders him responsible in damages for vexing the defendant with unfounded suits. In a word, the plaintiff must act in bad faith; for until then the doors of justice should be open to all, although their feelings may be bad,' and their complaints in reality groundless. ' .

Let us apply these principles to the facts of this case, which though singular, are easily subjected to their test, so as to arrive at a just conclusion. In the first suit, Kearney claimed damages for the violation of an alleged verbal agreement with Holmes to give him an interest in his mercantile establishment as a partner, after the 1st of September, 1849, and for wages until that time. When the case was called for trial, the plaintiff’s counsel was engaged in trying a suit in another court. He solicited the defendant’s counsel to continue the cause, which was refused. Thereupon, the counsel testifies, he was obliged to discontinue the suit and to pay the costs. It was discontinued on the 9th of May, 1849, and by an extract of a letter from a Mr. Griffith, in London, dated the 27th of that month, it appears the plaintiff had been corresponding with him, in the hopes of obtaining testimony to support his suit. It is evident from the extract that he had not obtained testimony which he expected, and discontinued his suit, when forced to trial, as well without evidence as without counsel.

The suit was immediately re-commenced, and in doing so, interrogatories were propounded to the defendant. The answers have been mislaid, but the interrogatories themselves indicate to us that the plaintiff really thought he had a cause of action against the defendant. He also sent a commission to London to examine Mr. Griffith as a witness; but he refused to testify, excusing himself on the ground that both parties were his friends, and that he did not wish to loose the friendship of either. An extract of a letter from Griffith to the plaintiff, induces us to think that the latter did expect testimony from Griffith to support his suit, but his commission was never returned.

Further, it is so improbable that Kearney should have quit an employment of $1500 a year, for a monthly employment which would amount to but $1200 a year, as alleged by Holm'es in his answers, that I readily yield to the conclusion that Kearney thought he had some other claim upon his employer than mere monthly wages, although it may not have been so.

This suit, I suppose, was either discontinued or that a judgment of non-suit was entered, though the record does not show what disposition was made of it. The counsel for the plaintiff in the suits, testifies that both were brought and prosecuted in good faith, and that if Griffith was within the reach of the court, he would not hesitate to prosecute the claim again, and he bases the opinion, as he states, upon letters from Griffith which he has seen.

The plaintiff in those suits and defendant in this, then changed his attorney and brought suit only for the balance of a year’s salary after his discharge as clerk. A non-suit was entered in the absence of the plaintiff and his new counsel. But the former attorney proves that he was summoned and attended as a witness; that a suit on trial was terminated sooner, and that of Kearney called earlier than was expected, he and his counsel being in the office of the latter waiting for the trial, and that this third misfortune very much annoyed the present defendant. It was one which sometimes occurs in the courts, and we have not the slightest reason to believe that he and his attorney intentionally absented themselves that the non-suit might be entered.

The suit was immediately re-commenced for the balance of the year’s wages and has been tried on its merits. Although we have come to the conclusion with the district judge that Holmes was justified in dismissing the defendant as clerk, yet I am sure that he was sincere in believing the contrary. His interest and feelings swayed his judgment and induced his error. Moreover, he believed that he had a good cause of action. The evidence renders it almost certain that he thought he was engaged by the year. He left an employment of $1500 a year for the services of the plaintiff, where he was to receive each month what Would amount to but $1200 a year. It was almost impossible for him to consider the latter employment more precarious than that which he left. He occupied, too, a station in the store as superintending clerk, which experienced witnesses think was inconsistent with the hypothesis that he was employed by the month. ^

The defendant has been unfortunate in the plaintiff’s employment and in his suits, as well as imprudent. And I have no doubt has indulged in angry feelings growing out of disappointment, which'has betrayed him into errors of judgment ; but I see no evidence of bad faith on his part. The large amount demanded for damages has some tendency to show it; but that is a custom so common with litigants for unliquidated claims, that it is not conclusive against him. I cannot concur in the judgment against him for damages.


author: Slidelx., J.

text:
    Benjamin Porter v. A. Ledoux & Co.
    The omission of a party to reply to a letter will not he considered as sufficient evidence of an admission contradicting or varying a written agreement.
    APPEAL from the Fourth District Court of New Orleans, Slrawbridge, J.

      Rozier and Hays, for plaintiff, contended,
    upon the question of evidence decided by the Supreme Court: As to the letter of the defendants, of course they cannot make evidence for themselves. Weave completely-strangers to the matters therein set forth. The defendants could only establish these matters by proper evidence. The letter was introduced merely to show the fact that such a letter was written, and received by plaintiff, after the plaintiff had attempted to get possession of the leased premises. It could not be used for any other purpose.

      Elmore and King, upon the same point, contended:
    The judge of the district court decided this case upon the evidence, in favor of the defendants. Unless clearly erroneous, his judgment ought not to be disturbed. The plaintiff’s action is for damages for the violation of a contract of lease on the part of defendants. The answer of defendants states clearly the grounds of defence on the merits.
    It was understood between the parties, that if the agent of the defendants had leased the plantation before the plaintiff arrived at the place, the contract was to be annulled. This is proved by the letter of the defendants, dated April 2d, 1847, to the plaintiff. The testimony of Filliiol proves the letter was delivered. The defendants having m^de the necessary affidavit, the plaintiff was bound to produce the letter, or account for its non-production, under penalty of having taken as confessed the allegations contained in the affidavit. C. P. 140. The plaintiff having received the letter, and never having replied to it in any manner, was a tacit admission of the truth of its contents. A party who remains silent when he should speak, will not be allowed afterwards to open his mouth. Meuxv. Mbrtin, 5th Ann. 107. Freemans. Savage, 2d Ann. 269. Pills v. Shubert, 11 L. R. 288. Story on Agency, p. 247 to 255. Flower v. Jones 7 N. S. 144. 2 Starkie on evidence, 16, 20.
   The judgment of the court was pronounced by

Slidelx., J.

On the 19th of March, 1847, the defendants, by a written contract, leased to the plaintiff, a resident of Monroe’in the parish of Ouachita* certain premises, which are described in the lease as “ the buildings which are on our plantation on the Ouachita river, known as the Bry plantation, together with sixty acres of the front land,” for the sum of $120, payable on the 1st of January, 1848. It was stipulated in the lease, that if the lessee should use more land than the sixty acres, he should pay for the same at the rate of two dollars per acre. The lessee covenanted to keep the buildings in good repair. There was also a clause that “ if Ledoux 8f Co. should rent the balance of the lands belonging to the said plantation, the said Porter obligates himself to cede the use of the cotton gin, after he has done ginning his own cotton, to the person who shall have taken the said lands, to gin his own cotton, should he require it.” The lease contained no other covenants or conditions, and was signed in duplicate by the parties. In the month of March the plaintiff embarked at New Orleans in a steamboat for Ouachita, taking with him various agricultural implements, furniture, plantation supplies, and some slaves, and disembarked at the Bry plantation towards the close of March. Upon going upon the estate, he found another person in possession of the premises, under a lease obtained from Filhiol and King, the agents of Ledoux Sf Co. in Ouachita, a day or two,previous. He demanded possession from the occupant, but was refused. He had a conversation soon after with Filhiol, in which he complained of the disappointment. Subsequently to this, it would seem, but at what precise date in the month of March does not appear, Filhiol transmitted to him a letter from Ledoux Co., the contents of which Filhiol was unacquainted with. The plaintiff, after incurring some inconvenience and expense, established himself on other lands in Ouachita, and in the following year brought suit against Ledoux 4" Co. for damages for the breach.of the contract. The defendants admitted in their answer the execution of the lease, but averred that in the negotiations which preceded it, and which were conducted by Ledoux, one of the firm, it was stated to the plaintiff that they had an agent near the plantation, who might perhaps have rented it, and it was agreed that if it was already rented the contract with the plaintiff was to be of no effect. That besides the lease, which was signed, there was another instrument prepared, embodying such a proviso, and that when Miltenherger, the other partner, signed the lease for the firm out of Ledoux's presence, he being ignorant of the conditional arrangement, omitted to have the other paper signed.

The district judge considered the fact as sufficiently proved, that the letter of Ledoux 4* Co. reached the plaintiff, and we concur in that conclusion. It may also be inferred from the evidence, that he received it a few days after his unsuccessful attempt to get possession under the lease.

The letter was as follows: “Dr. Porter, Monroe, Ouachita. Dear Sir, We leased you our Bry plantation with the condition, as you will recollect, that it was not already leased by Mr. Grammont Filhiol, when we had requested to rent the said property for us. We had prepared the lease for you to sign, ns also a writing providing for the above conditions; when you • ame to the counting-house, our Mr. Ledoux, who had made the agreement with you, was absent, and the lease was handed to you, but not the proviso. We hear that the property had been rented previously by Mr. Filhiol. We are sorry to say that the contract we had made with you becomes null and void. Your’s respectfully, A. Ledoux & Co.

There is no evidence that the plaintiff ever answered this letter. His silence was considered by the district judge as proving that the declaration contained in the letter was true; and on this ground judgment was rendered for the defendants. The parties had signed a written agreement which contains no such condition as is asserted in the letter; and certainly the evidence, which, by interpolating an important condition, is so materially to qualify a written contract, absolute in its terms, ought to be very cogent and conclusive. The maxim gwi facet consentiré videtur, is one Which, in questions of evidence, ought to be applied with careful discrimination and with caution. See Greenleaf on Evidence, § 197, et seq.

It is true, that when parties who have had dealings together meet face to face, and one asserts a claim, the natural impulse in the mind of the other would be to deny it, if he believed it unfounded. In most cases, the denial would be distinct and immediate; and so a reasonable inference of its truth might be drawn from the party’s silence. But even where the declaration is so made, and tho person addressed has the opportunity of replying at once and on the spot, it would be dangerous to permit parol proof of his silence, when a right in derogation of a written contract is verbally asserted to destroy or qualify his apparent rights under such contract. If caution be necessary in inferring acquiescence from silence, in the case of declarations made by one interested party to another, face to face, it is still more so where the declaration is made by letter.

There is a class of cases where it is a man’s clear duty to reply, — as where the matter is in re agenda, or where the previous relations of the parties have been such that the interest of the person writing may suffer detriment, or his future conduct be influenced by the other’s silence. But where, as in this case, the plaintiff had a written contract, which had been defeated by the act of the defendants, when they in their letter declared the matter closed and the agreement null, and did not even ask a reply, it seems to us to be going too far to say that the plaintiff, by not answering this letter, is to be considered as admitting the truth of their declarations, and that his lease, absolute on its .face, was intended to be conditional.

Judgment reversed, and cause remanded for a new trial; defendants paying costs of appeal.


author: Eustis, C. J.

text:
    Ann W. Jeter v. Rosalie Deslondes.
    Where property was secured to the wife in Vir'ginia by deed of trust and it is subsequently removed to Louisiana by the husband, it cannot be sold on execution for the husband’s debts.
    Where slaves have been settled upon the wife'by deed of trust in a State whore such settlements were valid and vested the property in the wife, there is no law which requires such a title tobe rocordt'd^Jlion the slaves are subsequently removed to Louisiana.
    APPEAL from Jjüe Fourth District Court of New Orleans, Skrawbridge, J.

      R. C. McAlpin, for plaintiff, contended:
    Plaintiff owned, in her own right, a valuable real estate in the State of Virginia, where she resided till within a few years last passed; that her husband owned a large number of slaves; that from losses in trade, he became embarrassed and was-obliged to sell property to pay his debts; that plaintiff consented that her husband should sell her land to pay his debts, upon the condition that he would convey to her by means of a trust deed a number of slavos equal in value to her land. The trust deed was made, executed and duly recorded in the proper office in the State of Virginia. Her husband sold her land, and with the proceeds paid his debts; and she took possession of the slaves named and conveyed in the deed of trust. That plaintiff and her husband removed to the State of Louisiana, bringing with them the slaves in the deed of trust mentioned; that a judgment was recovered against her husband, in the parish of Jefferson, in favor of — Mayo; that a ji. fa. was issued to the sheriff- of the parish of Orleans, who seized and sold the two slaves sued for. Plaintiff instituted her suit for the two slaves against the defendant, who purchased them at the sheriff’s sale. In her petition plaintiff claims the two slaves as her own separate property, an$ makes protest on the trust deed under which she claims.

      The defendant, in her answer, claims the slaves by virtue of the sheriff’s title to her.
    Plaintiff on the trial offered the trust deed as evidence of her title; which was admitted by the court. She claims to own the two slaves sued for, by virtue of the trust deed duly executed and recorded in the State of Virginia; that the consideration given by her for them was full and valuable; and that the transaction was lawful and bond fide.

    The only legal point raised in the district court against the introduction of the trust deed, was, that it was not authenticated according to the requirements of the judiciary act of Congress of 1789.
    In answer to that objection it may be remarked, that the deed is not, nor does it purport to be a judicial record; and therefore it does not fall within the province of that act of Congress.
    The trust deed' was not recorded in the State of Louisiana; and it is contended, that as it cannot be assimilated to a mortgage, it need not be recorded. It was not made to secure the payment of money; but to convey title in the only way that it could be done to a feme covert at common law. The naked fee or title by the deed vested in the trustees; the equitable title and usufruct vested in the plaintiff. The plaintiff, with her husband, some few years after the date of the deed, removed to Louisiana and brought with them the two slaves sued for. By the proof they are clearly identified as being named and conveyed in the deed. The legal possession was in the plaintiff, and not in the husband. They lived together; and it is believed to be a well settled principle of law, that where two or more are apparently in the possession of property, the law gives him the possession who has the right. It was a perfect alienation, according to the lex loci contractus, and would not be subject to the debts of the husband there, and, by comity, will be protected here.

      H. Griffon and C. S. Reese, for defendant and warrantor, contended:
    The plaintiff and her husband, who were formerly residents of Virginia, removed to this State with several slaves, and have resided in the parish of Jefferson for several years. J. E. Mayo, of New Orleans, became the creditor of plaintiff’s husband, obtained a judgment against him, and issued an execution, under which two slaves in his possession were seized and sold to the defendant.
    After the sheriff’s sale had taken place, the plaintiff brought this suit to recover the two slaves from the defendant, who was a purchaser in good faith, having no notice of her claim; and she alleges title in herself, under a conveyance from her husband by a deed of trust executed in Virginia, but never recorded in this State.
    The slaves were decreed to be her property, and the defendant has appealed. The deed of trust was offered in evidence on the trial of the case. Whatever may be its effect as between the parties under the laws of Virginia, which are not proved, we contend that as regards third persons it can have no effect whatever, ns it has not been recorded here. See 4 L. R. 54, and the case of Tillman, Trustee, v. Drake, 4th Ann. 16, on which we rely as conclusive on this point.
    The two cases quoted, (11 L. R. 333 and 337,) have no analogy whatever with the present one; as in both of them it was alleged and proved, that the slaves seized never belonged to the party against whom they were seized, as his property; and in this case, on the contrary, the plaintiff herself alleges that the slaves seized and sold formerly belonged to her husband.
    To give effect to such a deed against third persons in good faith, would tend to encourage fraud, especially under the circumstances of the present case, where the plaintiff and her husband stood by, never urged their claim, and suffered the property claimed by her to be sold, and only commenced this action some time after the sheriff’s sale. The deed was in their possession in this State years before the slaves were seized. They never made it public; they kept it in their power to use it or not, as might best suit their purposes; the slaves remaining in possession of the husband, who obtained credit on account of the property of which he is the apparent owner.
    We respectfully pray, that the judgment appealed from be reversed, and rendered for the defendant, with costs in both courts.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment of the Court of the Fourth District of New Orleans, by which the plaintiff recovered two male slaves of about sixteen years .of age each. The plaintiff is a married woman, residing in the parish of Jefferson. She removed to this State from Virginia, where she was married, bringing with her the slaves in dispute. It appears by a deed of trust executed in Virginia on the 15th day of March, 1843, the two slaves, with .other property, were conveyed to trustees residing in Virginia, for her exclusive benefit. By the said deed it was provided that the plaintiff should have, use, and possess the said slaves, their increase and profits, separately and apart from her husband, as completely as if she were an unmarried woman. This conveyance was made by her husband, but for a fair equivalent in real property transferred by her for his benefit. We are not aware of any legal objection to the validity of this dee.d under the laws of Virginia. It was not made to secure the payment of a debt, but for the purpose of conveying title to the wife in the only way that it could be done to a married woman at common law. The slaves were proved to have been in her possession until they were purchased here by the defendant, on the 14th June, 1849, under an execution issued on a judgment obtained against the husband in this State.

The plaintiff having been in possession of the slave's, under a title which conveyed and transferred the legal as well as the equitable interest in them from her husband, and the wife being authorized to possess and own property in her own right, it is clear that her ownership and possession cannot be disturbed under an execution against her husband. We are not aware of any decision of our courts by which titles to slaves brought into this State by the person to whom the title conveys them, are required, to be recorded.

The case cited from 4th Ann. 16, we consider not applicable to the present case. Judgment affirmed.


author: Preston, J.

text:
    Joseph Wilson v. George L. Broom.
    A merchant in New Orleans instructed his agent in Thomaston to ship him lime at a certain limited price. The agent accordingly made a shipment on the 25th of October, and gave advice of it, by letter dated 31st of the same month. The vessel did not Lave until the 3d ofNovember. When the vessel arrived .in New Orleans, the merchant refused to take the lime, upon the ground that he had not been duly apprised of the shipment: Held: That the advice was duly given, and that the merchant was bound for the loss which occurred in a sale made in consequence of his refusal to accept the shipment.
    Where a party has contracted for a certain article at a fixed price, and improperly refuses . to accept the article when offered to be delivered to him, he is liable for the loss sustained in a sale of the article. That loss will be the difference between the price agreed upon and the amount of the sale; and the amount of the loss may be fairly ascertained by a private sale at the market price of the article.
    from the Second District Court of New Orleans, Lea, J.

      John Winthrop, for plaintiff.
    D. N Hennen, for defendant.
   The judgment of the court (Slidell, J., dissenting,) was pronounced by

Preston, J.

On the 19th of September, 1848, Samuel Broom, á merchant of New Orleans, being in New York, addressed a letter to William R. Keith, of Thomaston, which, after some remarks on the lime trade between that place and New Orleans, contained the following clause: “If you could manage with the captains to deliver lime at New Orleans for $1 05, payable on delivery there, and no cargo to exceed 1500 barrels, and always confine it to 1000 when you can possibly do so, you might then exercise your own judgment, and operate for more or less number of cargoes as circumstances would warrant. For my account, $1 05 must include your commissions and all other charges, and payable when delivered in New Orleans.”

On the 2d of October, 1848, Mr. Keith acknowledged tiler eceipt of the letter, and stated that he was trying to agree for'a few cargoes to leave a month hence. On the 25th of October, 1848, he shipped at Thomaston a cargo of 1441 barrels of lime on the plaintiff’s vessel, for which the captain gave-a bill of lading, engaging to deliver it to Samuel Broom in New Orleans for $1 05 a barrel, free of charges. On the arrival of tho lime in this port, Broom 'endorsed on the bill of lading, “cargo not received,” and refused to receive it on the ground that Keith had not complied with his instructions. In a letter to Keith, dated the 13th of November, 1848, he stated, as his reason for not receiving the cargo, that Keith had not advised him at the time of engaging the cargo of his having done so, and that he enclosed the bills of lading, dated the 25th of October, only on the 31st of that month. ■ ■ •

It is not shown when the cargo was purchased, and is therefore to be presumed about the time of shipping it, and although the bills of lading were filled up the 25th of October, the vessel did not sail until the-3d of November. No unreasonable delay in giving notice of the engagement of the cargo is proved, and the bills of lading were transmitted several days before the vessel sailed, and were received, no doubt, before her arrival in New Orleans. No violation of express instructions are proved; no negligence as to such as might be implied; and no damage was caused to the defendant by the acts of his agent, Keith, much less by those of the. plaintiff.

The defendant only countermanded his order for the cargo of lime by a letter dated at New Orleans, on the 29th of October, which could not have been received at Thomaston until after the vessel had sailed on the 3d of November! He therefore took the risk of the market. Had it proved favorable, no one can doubt that he would have received the cargo; and if the master had sold it at a profit, could have recovered the amount. He must therefore bear the loss. It is proved that the master, after putting him in default, sold the cargo at the market price, and that there was a loss of $533 17.

In the case of White v. Kearney et al. 2d Ann. 639, it was held that the loss or gain in such a case was fairly ascertained by a private sale at the market price of the article.

It is therefore decreed, that the judgment of the district court be reversed; and that the plaintiff recover from the defendant five hundred and thirty-three dollars and soventeen cents, with legal interest from the 9th of May, 1850, the judicial demand, and costs in both courts.


author: Rost, J.

text:
    Adam Frederick v. Etienne Brulard.
    One may prescribe for property beyond the true limits of his land by thirty year’s possession. C. C. 848,
    A mistake in running a division fence neither destroys or confers a title.
    APPEAL from the District Court mf Plaquemine, Rousseau, J.

      J.Foulhouze, for plaintiff.

      L. Lombard, for defendant.
   The judgment of the court was pronounced by

Rost, J.

In 1806, while the tract of land owned by the plaintiff belonged to the widow Martinez, and the adjoining tract, now owned by the defendant, belonged to one Binaud, the surveyor, Barihélemy Bajón, made surveys of both and established the division line with the assent of the two proprietors. The marks referred to in those surveys, as showing the . position and course of that line, are not shown to exist at this day.

In 1811, Mrs. Martinez acquired Binaud’s tract of land, and sold it to Constant in 1830, according to Bajón's ■ survey. The defendant claims under Constault. The tract surveyed in 1806, as the property of Mrs. Martinez, was sold at the probate sale of her succession in 1832, and is held by the plaintiff under that sale.

The line under which the defendant is in actual possession by inclosures, encroaches about two degrees upon the plaintiff’s land, according to Bajón's survey; and this action is brought to recover the land thus possessed by the defendant beyond his title.

The defendant has pleaded the prescription of thirty years. There is no doubt that one may prescribe beyond his title, provided it be by thirty year’s possession. C. C. 84S. But the evidence in this case did not satisfy the district judge, that the possession of the defendant under his present limits had continued during that length of time; and as he heard the witnesses and had a better opportunity of judging of the degree of credit to which they were entitled than we have, we cannot say that he erred.

It is urged, that the division fence under which the defendant possesses, was placed where it is by the mutual consent of the previous owners of the two tracts of land. All the sales of both tracts refer to the original lines, as represented in Bajón's surveys; 'and there is nothing to show the intention of any of the proprietors to change the division line. Under that state of facts, the consent alleged, if it was given, was clearly in error of the rights of the owner of the tract now held.by the plaintiff, and would consequently fall within the principle on which it has been held more than once, that a mistake of this kind neither destroyed title nor conferred it. Broussard v. Duhamel, 3 N. S. 11. Babineau v. Cormeer, 2 N. S. 666.

We are of opinion that the boundary line represented in Bajón's survey has not ceased to be the true division line between the two tracts. But as that line has been obliterated, and must be again marked out before the plaintiff can be put in possession under the judgment, the case will have to be remanded for that purpose.

It is therefore ordered, that the judgment be amended so as to read as follows;“It is ordered that there be judgment in favor of the plaintiff, and that he be put in possession of the land claimed by him, in conformity with the division lines in the surveys made by BartMlemy Bajón on the 15th of April, 1806. And it is further ordered, that this cause- be remanded- for the purpose of establishing that line by actual survey; the costs of the district court to be paid by the defendants, and those of this appeal by the plaintiff


text:
    C. M. Chamberlin v. R. W. Milbank & Co. et al.
    Where a party who has advanced money Upon a hill of lading, which he afterwards has íéá' son to believe is a forgery, permits the supposed forger to raise means from a third persoU to reimburse the advances made, and the bill of lading proves to he a forgery, it will he regarded as a fraud upon the third person, by which the party who made the advance will not he allowed to benefit himself.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      B. D. Howard, for plaintiff.

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

Rost, J.

The plaintiff claims from the defendants the delivery of a note of hand, subscribed by one Martam, deposited by him with John D. Marsh, and avers that the order he gave the defendants, R. W. Milbank Sf Co., on Marsh for said note was obtained by fraud and without consideration. The case is before us on the appeal of R. W. Milbank Sf Co.

One Thomas P. Hoey, a stranger in this city, employed the firm of R. W. Milbank Sf Co. as his merchants, and delivered to them a bill of lading for fifty bales of cotton, or thereabouts, upon which they advanced to him at different times about nine hundred dollars. After these advances had been made, the clerk of Milbank Sf Co. drew their attention to the striking similarity of the handwriting in the bill of lading and in the letters received from Hoey by the house, intimating the probability that the bill of lading was a forgery. The witness Overton examined the letters and the bill of lading with Milbank, who exhibited them to him, and states that he came to the conclusion, to which the house had previously come, that the bill of lading was forged. This and the non-arrival of the cotton within a reasonable time induced Milbank to call upon Hoey, to get him to refund the advances he had received; which he promised to do in the course of the day. Hoey then applied to the plaintiff for a loan, offering him as security a mortgage on slaves in Texas, and the transfer of the bill of lading in the possession of Milbank Sf Co. On that security, the plaintiff agreed to let Hoey have the proceeds of the note now sued for, if he could discount it. On the evening of the same day, Milbank again saw Hoey, who told him of the contemplated arrangement with the plaintiff. They then called together on the said plaintiff, who confirmed the statement of Hoey, and told Milbahk that, it being then late on Saturday, he would ascertain whether he could discount the note, and give him a definitive answer on the following Monday. They then separated, but Milbank returned soon after, and told the plaintiff that he could use the note itself, and wished an order on Marsh for it, which the plaintiff agreed to give. Milbank again left the office and sent for the order by Otto Klemm, one of his friends, to whom it was delivered. Klemm has testified that on the morning of that day, Milbank told him that the cotton had not arrived, and that he was determined to have the money or security for the advances made to Hoey. He stated to him, at the same time, that he had misgivings that the bill of lading was forged, and that Hoey had no cotton.

The order upon Marsh was countermanded before it had been presented, and a demand of the note made. A few days after this transaction Hoey left the city. The bill of lading proved to be a forgery, and the cotton never arrived.

It is admitted, that the bill of lading then in the possession of Milbank Sf Co., and which they had every reason to believe a forgery, was to be transferred to the plaintiff, to secure the loan he was to make. Milbank Sf Co. concealed from him their apprehensions and the facts upon which they were based. They acted in such a manner as to produce in the plaintiff a belief of what was false, or, what comes to the same thing, an ignorance or disbelief of what was true; and by this continued silence induced him to believe that the security was ample, and created the error under which the order for the note was given. It is an inflexible rule of law, that error founded on -su'ch a cause invalidates all contracts; and it should be particularly enforced in commercial transactions, if, as was said by an eminent judge, the law of commerce is the law of honor. C. C. art. 1841, par. 1, 2, 5, 6, 8,

The judgment is affirmed, with costs.


text:
    Greenbury Dorsey v. His Creditors.
    Certain mortgages had been recorded against the insolvent after his failure. The syndic made a sale and applied for a certificate of the mortgages against the property in the insolvent’s name. The recorder of mortgages gave a certificate including the mortgages subsequent to the failure. Held : That the mention in the certificate of the subsequent mortgages might be regarded as surplusage ; and that under the circumstances, the syndic had no right to take a rule against the recorder to raise the mortgages nunc pro tunc.

    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    This case came up on a rule by the syndic of the insolvent against the recorder of mortgages.

      G. B. Duncan, for plaintiff.

      Elmore and King, for defendants.
   The judgment of the court was pronounced by

Rost, J.

In the course of last year the syndic in this case obtained an order of courtto sell a town lot forming part of the property surrendered by the insolvent, G. Dorsey, at the time of his failure, in 1826. The sheriff obtained from the recorder of mortgages, and read at the time of the sale, a certificate of the mortgages standing in the name of Greenbwy Dorsey down to the day of sale.

That certificate shows judicial mortgages recorded against Dorsey after his failure, and arising from debts subsequently contracted. The purchaser refuses to take the property, on account of the apparent mortgages existing upon it, and the syndic has taken this rule upon the recorder of mortgages to show cause why he should not give a certificate nunc pro tunc, as of July 10th, 1850, annulling the whole of those mentioned in his first certificate, and give one showing the mortgages, if any, on the property as against the syndic Richard Rdf.

The defence is, that the recorder never was applied to for a certificate of the mortgages existing in the name of the syndic; that he was not informed of the facts mentioned in the rule, but was simply called upon to give a certificate of all the mortgages standing in the name of Dorsey, which he did in the manner required by law; that the syndic is authorized to raise all mortgages affecting the property surrendered, and has no pretext to sue the recorder of mortgages to compel him to do so.

The rule was made absolute at the cost of the estate, and the recorder has appealed.

This controversy originated in a mistake of the sheriff and the syndic. Instead of the certificate of mortgages which they procured, they should have applied to the recorder for a certificate showing the mortgages standing in the name of Dorsey down to the day of the surrender, by which he was divested of his title to the lot about to be sold. We do not, however, think the error material. The certificate adduced at the safe shows, that there. Were no mortgages existing in the name of Dorsey until long after the surrender; and the mention of the judicial mortgages recorded against him after that time may be considered ns surplusage.

The argument of the plaintiff’s counsel implies the admission that the certificate of the recorder can give life to mortgages which did not previously exist ; and the object of the rule is, to compel him to give a new certificate annulling all those mortgages. It would be doing a vain thing to compel him to annul what has no existence. The syndic is authorized to raise all mortgages existing in the name of the insolvent; and we are not aware that any can exist in hi3 own: if there can be any, the recorder has never refused to certify them.

It is therefore ordered that the judgment in this case be reversed, and that the rule be discharged, With costs in both courts.


text:
    The Widow Poree v. Alexander Bonneval.
    Where a house and lot are sold at auction, after advertisement, the vendor is not hound by representations made by the auctioneer on the stand, unless they are ratified by the vendor; the advertisement being the only' representation by which he is hound.
    The second section of the act of 21st March 1850, forbidding an auctioneer to authorize any person to act as his substitute, does not prevent an auctioneer from employing a crier, provided the auctioneer superintends the sale in person.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      L Magne, for plaintiff,
    made the following points which were deduced from an elaborate examination of the case, and of the authorities:
    The testimony of defendant tending to prove, by parol evidence, a verbal representation made by the auctioneer, pending the sale of immovable property, and where, besides, better evidence exists, cannot be admitted. ■ In support of this position he relied upon C. C. arts. 2584, 2415, 2256 and 2586. Macariy v. New Orleans Canal and Banking Company, 8 R. R. 105.
    The evidence adduced shows conclusively that the representation complained of, and on which the defence hinges, was true, and was tacitly acknowledged to be such by defendant himself when he examined the house. At all events it was true, in the opinion of the auctioneer who made it.
    Such a representation not having been embodied in the advertisements which preceded the first sale, not having been even proclaimed, but having only been made by the auctioneer in a low voice, as an answer to a question put to him, could not be considered as a condition of the sale; whence it follows, as is proved by the advertisements, that the two sales were made on the same conditions.
    The representation complained of was not the act of plaintiff; was not made by her advice or consent; was not ratified by her, and, as an irresistible consequence, cannot affect her. Besides, such a representation is not binding upon the parties. C. C. arts. 2990, 2586. Noll Co. v. Oakey, 19 L. R. 18. Nott 4' Co. v. Bank of Orleans, 19 L. R. 22. Layton et al. v. Iiennan, 3d Ann. 1. 8 R. R. 102.
    Apparent defects or vices do not affect contracts; and vague expressions, loose praises of the thing sold, are mere matter of opinion, and, as such, are not binding. C. C. arts. 2497, 2491. Pothier, Vente, No. 208. Domat, t. 1, p. 188, No. 11; p. 189, No. 12. 10 Duranton, No. 116. There is neither error nor fraud according to our law.
    Were parties permitted to annul contracts on such light and frivolous grounds, no transaction would be attended with security. Litigation indeed would be the only result of such a state of affairs. And society, the stability and prosperity of which repose on the respect due to law and solemn obligations, would be seriously injured. C. ‘-jC. arts. 1835, 1836, 1837, 1838, 1841, 2583, 2584 and 2585. 6 Toullier, NiV55. Pothier on Obi., No. 18. 2 Delvincourt, 459. Pothier, Vente, No. Troplong, Vente, Nos. 526, 554, 3 Tapia, Febrero Novissimo, p. 189, No. %,

      The sale a la folie endúre was legally made in the presence and tinder the control of the auctioneer. Act of 25th of March, 1844, p. 60,
    6?. Lt Gardeur, for defendant.
   The judgment of the court was pronounced by

Preston, J.

From the 30th of May to the 15th of June, 1850, the plaintiff advertised for sale, through the instrumentality of R. Vignie, an auctioneer of this city, a lot of ground on Moreau street, describing it, and a house on it thus described: “together with the three story brick house, containing on the ground-floor a large store room; on the second story, a large parlor and dining room, with a corridor; in the third story, three bed rooms and a closet, a kitchen containing nine rooms, the yard paved with flagstones, the roofs covered with slate.”

On the 15th of June, the property was accordingly cried at auction; the defendant was the last and highest bidder, and it was adjudicated to him for the price of $3720.

He immediately examined the property and appeared satisfied. He took the titles to the property and had them examined by a notary to assure himself of their validity; but finally refused to comply with the terms and conditions of the sale; was put in default, and duly notified that the property would be re-sold on his account. It was again advertised for thirty days from time to time by the auctioneer, and on the 29th of August, 1850, was adjudicated to E. Girard for $3425.

The plaintiff sues the defendant for $415 90, the difference between the price of the first and second adjudications, including the expenses.

The defendant admits the adjudication to him, but resists the demand on the grounds: 1st. That the. property was adjudicated to him as having undergone repairs and being in perfect tenantable order, whereas it had not been repaired for several years, and was in a most miserable and untenantable situation. 2d. That at the re-sale, declared upon by the plaintiff, the property was not, as at the former sale, proclaimed to have undergone repairs and to be in perfect order. 3d. That the re-sale was not a public sale at auction, as contemplated and required by law.

The claim against the defendant is made under article 2589 of our Code, which authorizes the second sale, on the failure of the defendant to pay the price of adjudication without sufficient cause, and renders him liable for the deficiency of price, the property having sold for less at the second than at the first sale, and for all expenses incurred subsequently to effect the second sale.

There were no fraudulent and fictitious bids by the vendor or her agents to deceive the bidders at the auction, and therefore the opinion and decision of the Supreme Court of the United States in' the case of Veazie v. Williams et al., 8 How. 134, on that subject, so strongly relied upon by the plaintiff’s counsel, is not directly applicable. He contends, however, that this case is analogous in principle, if he has made out, by evidence, his first and second grounds for not complying with the adjudication.

The evidence to establish the facts relied upon in support of those grounds is that of Mr. Ferret and Mr. Murphy, that the crier for the auctioneer stated, on the stand, that the property was li enbon etat," which he construes into good repair, and that of other witnesses that it required repairs. The evidence was objected to, but admitted by the court, probably that in case of appeal, if this court should think it admissible, we might examine its effects — a wise course in cases tried without juries where the rejection of the evidence is doubtful and its reception occasions but little delay or inconvenience to the court.

We, however, think the evidence in this case should have no effect. It is not pretended that the vendor directed the auctioneer or his crier to make any representation as to the state of the house; and even if we suppose an engagement contracted beyond the authority given by her, she is not bound by it, unless expressly ratified by her, which is not alleged or proved. Code, art. 2990. She had advertised the premises for two weeks, for the express purpose, no doubt, of inducing persons to view them and judge for themselves. Her representations in her advertisement or other writing were the only representations by which she was bound. This court so expressly held in the case of Layton's Executors v. Hennen, 3d Ann. 1. The court said: “If the description was indefinite, the purchaser should have addressed his inquiries for further information to the executors, (vendors) who alone were authorized to give it. The advertisements are binding upon both the vendor and the purchaser, and neither parly can insist on any thing which was said by the auctioneer at the time of the sale, in any respect varying or adding to the printed conditions or the description of the object offered. The information, in the pi'esent instance, was asked of the auctioneer, in whom the law recognizes no authority to give it, and who is not shown to have been authorized by the executors to furnish it.”

The same principle had been adopted by the former Supreme Court in the case of Macarty v. The New Orleans Canal and Banking Company, 8 R. R. 102, and on the other hand, in the case of Nott & Co. v. Oakey, and the same against the Bank of Orleans, it was held, that the purchaser was not bound by conditions different from those advertised, although proclaimed in a loud and audible voice from the stand at the commencement of the sale, it not being shown, as in the present case, that the new conditions were heard by the purchaser. 19 L. R. 18 and 22.

The counsel of the plaintiff raises another fatal objection in law to the defence on the first grounds. The state of the premises was apparent to any person disposed to purchase. The advertisements were made to direct the attention of buyers to a personal inspection of the buildings. Courts cannot recognize the folly of buying without seeing the premises, because they are sold at auction or afford indemnification for the loss which results from such imprudence. Our Code, art. 2497, declares that apparent defects, that is, such as the buyer might have discovered by simple inspection are not among the number of redhibitory defects. Pothier amplifies the subject in a manner strikingly applicable to the present case. Pothier, Vente, No. 207. “ On ne repute pas vices rédhibitoires ceux qui quoique considérables, peuvent facilement s’appercevoir; par example, ce n’est pas un vice rédhibitoire pour un cheval, s’il est boiteux, s’il est aveugle, &c.; nipour une maison, si elle torribe en ruine; parceque ces vices pouvant facilement se connaitre: l’acheteur est préshmé en avoir eu connaissance, et avoir bien voulu acheter la chose avec ce vice et par consequente n’avoir souflert aucun toil, nam volenti non fit injuria; et quand méme il ne 1’aurait pas connu, il ne serait pas encore recevable á se plaindre du tort qu’il souffre de ce contrat; car c’est par sa faute qu’il le souffre; il ne tenait qu’a lui d’examiner la chose avant que de 1’acheter, ou de la faire examiner par quelqu’un s’il ne s’y connissait pas lui méme: ou un tort qu’une personne souffre par sa faute, n’est pas un tort auquel les loix doivent subvenir; les loix n’étant pas faites pour entretenir la negligence: damnum quod quis, culpá suá non sentit, non videtur sen-tire.”

Besides these legal points so fatal to the defence, we concur with the district court, “that to allow an'adjudication at public auction to be set aside in consequence of a few loose words spoken by an auctioneer, of such indefinite meaning as the words en bon etat, would be likely to introduce an element of uncertainty in relation to public sales which would be detrimental to the public interest; and further, the evidence leaves the question of fact whether the hoúse was not in a good state of repair so doubtful, that we could not reverse the judgment on the ground that it was untenantable.”

The plaintiff advertised the property for the second sale precisely as advertised for the first, and for the reasons given, the defendant cannot complain that plaintiff did not make representations at this sale which she did not authorize before, and which he says were untrue.

The defendant lastly contends, that the second sale is not binding upon him, because not made by an auctioneer. A licensed auctioneer advertised it; attended at the St. Louis Exchange, the public place designated in the advertisement on the day of sale, superintended the sale, entered the adjudication on his sales book, and gave to the whole all the sanction and advantage which his presence and authority could give. The only objection is, that he employed a person to perform the merely ministerial duty of crying the property. There is no complaint that it was not cryed long and loud enough by the person usually employed by him, as capable, no doubt, of puffing the property as himself, so as to render it probable, in the words of the code, that no higher bid would be offered.

The second section of the act of 1850, forbidding an auctioneer to authorize any person to act as his substitute in making an auction sale, and requiring him, in all cases, to make in person the sales advertised by him, we think was complied with by attending and superintending the sale in person, and that directing his crier to perform the merely ministerial duty of crying the property was not a violation of the prohibition of the statute. For if so, the auctioneer could not direct his clerk on the spot to enter the' adjudications in the sales books or his servants to scatter the advertisements and lithographs among the bidders.

We know that the act of 1850 was passed to prevent persons from holding a license as auctioneer, as a mere sinecure, selling out' the business to others and delegating unauthorized persons to perform the whole duties, producing much confusion and disorder in the treasury department of the State, and irresponsibility in the auction business. The statute was intended to remedy and not to produce inconvenience and evils, by the strict interpretation for which the defendant contends.

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


text:
    Master and Wardens of N. Orleans v. Ship M. Hawes et al.
    The actof March 31st, ISOS, authorizing the harbor-master aud wardens, when called wpon, toproceedto the survey ofvessels and damaged goods, imposes neither a toll nor tax of any kind whatever, and is not unconstitutional; and, where'services are performed under the act, the obligation to pay for them is one of contract."
    APPEAL from the Fourth Justice of the Peace of the parish of Orleans,

      Derbesi J. P. Barton and Soule, for plaintiffs.

      Hite and Gaither, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken by the defendants from a judgment rendered against them for the sum of forty-five dollar's in the court of the Fourth Justice of the Peace of New Orleans. The plaintiff filed in the court below an account against the ship, her captain and owners, on which the suit was brought. The first item of this account is, for fees for services rendered as surveyors of the ship whilst in a damaged condition, $35; the second is, for ordering, directing and attending the sale of damaged copper, hawsers and rope, taken from the ship, at public auction according to law, $10.

The appeal is taken under the 63d article of the Constitution, which gives the right of appeal to this court, without reference to the amount in dispute, in all cases in which the constitutionality or legality of any tax, toll or impost of any kind or nature whatsoever shall be in contestation.

The question first to be determined is, as to the right of the parties defendant to appeal. The offices of harbor-master and port-wardens of the port of New Orleans were organized by the act of March 31st, 1805. By an act of the 8th of March, 1841, the first section of that act and all other acts providing for the office of harbor-master were repealed, so far as they related to the creation of said office; but the rest of the original act of 1805 remained in force. Under the 11th section of that act, the plaintiffs’ claim against the defendants is asserted. The section provides “ that the said master and wardens or any one of them shall, if called upon by the person commanding any ship or vessel arriving from sea, inspect the manner in which the hatches of such ship or vessel were secured, previous to the opening thereof for the purpose of discharge, and shall be present at the opening of the same, and shall upon every such survey certify under his hand how the said hatches appeared to him; for which certificate he shall be entitled to two dollars, and for every duplicate thereof, to one dollar; and the master and wardens,' or any two of them, shall be surveyors of damaged goods brought into the port of New Orleans in any ship or vessel, and, with the assistance of one or more skillful carpenters, shall be surveyors of any damaged vessel and any vessel deemed unfit to proceed to sea; and they shall, upon every such survey, certify under their hands how the vessel so surveyed appeared to them, and shall cause entries to be made in a book to be kept for that purpose in their office; and for each certificate and entry they shall be entitled to two dollars, and for every duplicate thereof, to one dollar; and the said wardens shall severally be entitled, for their services as surveyors of damaged goods or vessels, at the rate of two dollars and fifty cents per day: and further, it shall solely belong to the said master and wardens, or any two of them, to order and direct the sale of damaged goods by public auction, giving notice of such public sale at least two days before, in French and English, in two newspapers published in this city, and at least two of said wardens shall be present at such public sale, and shall certify to the truth of the account of sales of the auctioneer by whom such damaged goods shall be sold; and for such attendance and certificate shall be entitled to the sum of ten dollars.”

This statute, which was passed by the Legislative Council of the former terri tory of Orleans, like all laws emanating from that body, bears the stamp .of its origin. The language is plain, simple and appropriate. It provided for the police of the port, and for the appointment of a harbor-master, port-wardens and pilots; assigning to them such duties as were properly to be exercised under the local territorial authority. It received the sanction of the Congress of the United States, and must be considered as having the authority of a law of the United States.

The section which we have quoted is one sentence; the sense appears to be continuous and uninterrupted, and qualified throughout by the proviso at the beginning. The said master or wardens, or any one of them, shall, if called upon by the person commanding any ship or vessel arriving from sea, inspect &c., be surveyors &c., certify &c.: and further, it shall solely belong to said master and wardens, or any two of them, to order and direct the sale of damaged goods by public auction. We take this to mean that they have the sole right to order and direct the sale of damaged goods by public auction in the case provided in the section; that is, when called upon by the person commanding any ship or vessel arriving from sea. This construction gives us a wise law; one strictly constitutional, and necessary in a sea port for the protection and guide of masters of ships, who are called upon in cases of accident or disaster to exercise great discretionary power as to the property confided to their care. Abbott on Shipping, 365, 367, cases in notes. The construction that would isolate this provision from its controlling clause would give a power to this class of officers over the property accidentally, and from misfortune within their reach, sent to our shores under the safeguard of the Constitution, which we know from the cautious and wise legislation of the late Council of the territory, never would have been conferred knowingly by that body, or have received the sanction of the general government. Such a construction we cannot for a moment admit.

The statute presents solely a matter of contract; neither a tax, a toll, nor an impost of any kind or nature whatsoever purports to be imposed or is in contestation between the parties. The amount in dispute not exceeding three hundred dollars, this court has no jurisdiction of the case.

The appeal is therefore dismissed, with costs.


text:
    L. C. Morris, Syndic, v. Widow H. E. Williams.
    Under the act of March 29th, 1826, and the act of February 20th, 1817, the court is authorized to appoint the sheriff syndic of an insolvent succession, where no one duly qualified has applied for the administration; and his official sureties are bound for his acts as syndic.
    To enable creditors to annul a judgment obtained by the wife against the husband, they must allege and prove they were creditors at the time the judgment was rendered, and that it was obtained by collusion in order to defraud them of their recourse upon the husband’s property.
    Where the husband has paid debts of the wife separated in property from him, and it appears from the evidence he had no means, while she possessed a large and productive property, it will be presumed that he paid her debts out of her funds, and not out of his own.
    from the District Court of.East Baton Rouge, Burk, J. G. S.

      Lacey and D. I). Avery, for plaintiff.'

      J. M. Elam and T. G. Morgan, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 30th of June, 1842, Mrs. Henrietta E. Williams obtained a judgment of separation of property from her husband, John C. Williams, and for $20,100, as the amount of her paraphernal rights and costs; and on the 1st of October, 1842, caused his plantation, called Arlington, in the parish of East Baton Rouge, with his slaves, to be sold by the sheriff of the parish, and purchased the same for $68,290. There were apparently mortgages on the properly to the amount of $67,000, and the sheriff left the whole amount of the price of the adjudication in her hands, to satisfy the same and her judgment to the extent of the balance.

John C. Williams died in 1846, and she renounced his succession. He left, however, benificiary heirs; but they did not administer upon his estate. In 1847, a meeting of the creditors was called to appoint syndics to administer it as an insolvent succession. The widow, and another creditor whom she has since paid, alone appeared and presented their claims, but did not appoint a syndic. On the return of the proceedings to that effect, the court by order appointed the sheriff syndic.

On 29th of March, 1849, he instituted the present suit against Mrs. Williams : 1st. To set aside the sheriff’s sale to her of her husband’s property, and to recover the plantation and slaves, and thoir revenues since 1842; alleging that the sale was illegal on various grounds. 2d. To annul the judgment in favor of Mrs. Williams against her husband for informalities, and because it was rendered for more than was due to her, alleging that in fact nothing was due to her. 3d. He alleges, in case these judgments and sale should be maintained, that the mortgages, for which the price of the adjudication was left in her hands, were fictitious ; that nothing was really due upon them ; and that she had not paid and never would be compelled to pay anything on account of them.

Wherefore he concludes, that he is entitled to recover the property or the amount of the adjudication, with interest from its date, for the benefit of the succession of Williams; and prays judgment accordingly.

The defendant excepted to the suit, that the act of 1826 gave the court no authority to appoint the sheriff the syndic of an insolvent succession ; and that its administration was otherwise provided for by the Civil Code. The 7th section of the act directs a meeting of the creditors, to appoint syndics when no one will administer upon an insolvent succession ; and further, that the proceedings shall in all respects confornrto the proceedings prescribed by that act and the act of 1817, for the administration of property surrendered by an insolvent debtor to his creditors. The 29th section of the act of 1817 expressly provides, that in case the meeting of the creditors fail to appoint a syndic, the court shall authorize the sheriff to perform the functions of syndic. It is said, a large amount of funds may come into his hands, for which he has given no security. We think his official sureties would be bound for any defalcation, because the money would come into his hands in his official capacity. The creditors, too, might have prevented the danger of loss, by administering themselves. Besides, the act of 1837 requires the deposit of the money in bank. The exception was, therefore, properly overruled.

In the progress of his suit, the plaintiff abandoned his claim, to set aside the adjudication and sale of the plantation and slaves made by the sheriff to Mrs. Williams. But he still insists, that the creditors of Williams have a right to annul the judgment against him in favor of his wife, because nothing was due to.her, and of course to reduce it to the amount actually due to her.

They have that right; but in order to annul the judgment it is incumbent on them to allege and prove, that they were creditors at the time of the rendition of the judgment; and further, that it was obtained by collusion, in order to defraud them of their recourse upon the husband’s property. It was so expressly held by the late Supreme Court, in the case of Brossac v. Ducross, 4 R. R. 336, and in other cases, in which decision we fully concur.

In the present case there are no allegations of fraud and collusion in obtaining the judgment of separation, or as to the amount, or that the claims of the creditors of Williams’ succession existed before its rendition. Some judgments were offered in evidence, which probably grew out of transactions with Williams previous to' the judgment in favor of his wife. But, for the want of allegations in the petition to justify their admission, they were rejected by the court. With proper and timely allegations, the defendant might possibly have shown, that, like the judgment in favor of Waterman and Wood, they had been satisfied. They were, therefore, properly rejected as evidence; and we cannot inquire into the validity of the judgment rendered in 1842, in favor of the defendant, against her husband.

The plaintiff next alleges, that the mortgages upon the plantation and slaves, for which the price of the adjudication to her was left in the hands of the defendant, were but nominal and fictitious, and were never paid by her.

He has proved beyond a doubt, that a large mortgage, lor $25,000, in favor of James McCalop, was given as collateral security for endorsements; that he was never subjected to liability on account of his endorsements; and that the mortgage was cancelled without anything ever having been paid to him by the defendant. The plaintiff has proved, further, that a large mortgage, in favor of Lee Hardesty, was somewhat of the same character, and that there was due upon it but $1264 at the date of the adjudication of the property to .Mrs. Williams.

Calculating the principal, interest and costs of all conventional and judicial mortgages upon the plantation and slaves, including the judgment in favor of the defendant, the aggregate actually due at that date, of the adjudication of the property to her, and which has since been paid or still incumbers the property, amounted to about $51,290, and must have left a surplus of the price in her hands amounting to about $15,736 beyond what was necessary to extinguish her own claim and all mortgages anterior to the adjudication.

The plaintiff contends, that the judgments anterior to that of the defendant were paid by Williams himself, who had ample means; and that the wife should not be credited with them. He proves, that the payments made during the life of Williams, were, in point of fact, received from him. Nevertheless, as the debts were assumed by Mrs. Williams, we have no doubt that the payments were made with her means, through the instrumentality of her husband.

The evidence in the record shows, that the ample means of the husband referred to were an unprofitable saw-mill in the State of Mississippi, wild lands in Arkansas and Texas, and elsewhere, in large quantities; such property raises the presumption, rather, that he exhausted and wasted his means in wild and ruinous speculations, than that he applied them to the payment of his wife’s debts, who had a productive plantation and slaves mortgaged to her creditors.

We would have yielded much more readily to the supposition, if it had been alleged as matter of defence, that he took out of her annual crops the surplus of the price of adjudication after paying the real incumbrances, and used it in these ■wild speculations, instead of paying his own debts, for which his widow is now sued. As, however, she has neither alleged nor proved that she paid over the surplus to her husband, it is due to his creditors, and with legal interest from the day of the adjudication of the property to her, because it produced fruits and revenues.

The beneficiary heirs have protested against the prosecution ,of this suit for their benefit. It is strictly, therefore, a suit by a syndic for creditors; and it is the duty of the court to notice the fact that the creditors have not appeared personally. But one appeared in pursurnce of the public call for a meeting of creditors. He claimed a hundred dollars, on a note which Mrs, Williams now holds. It was supposed the suit was prosecuted for the benefit of Waterman and Wood ; but it appears that their judgment was satisfied by Williams himself, in 1844. In rendering judgment against the defendant for a very large sum, we provide against useless expense and incumbrances on her property.

It is, therefore, ordered that the judgment of the district court be reversed; and it is adjudged and decreed, that the plaintiff, in his capacity of sheriff and syndic of the insolvent succession of John C. Williams, do recover from the defendant, Henrietta E. Raoul, the sum of §15,736, with legal interest from the first day of October, 1842, and with costs in both courts. It is further decreed, that this judgment shall not be recorded or executed until a call upon the creditors of the succession of John C. Williams, to make their claims known, as pointed out in article 1126 of the Civil Code; nor until a tableau of distribution is filed and homologated, as directed by article 1169 of the Code. The homologation and order to malee payments, to be obtained after legal notice of ton days to Mrs. Williams and the beneficiary heirs of her husband, to make opposition to the same if they choose. Execution may then issue for the amount of this judgment in this case, but to be satisfied by paymentof the debts and costs ordered to be paid by the homologation of the tableau of distribution.


author: Slidell, J.

text:
    Francois Jure v. Natale Balletin.
    A constable bad seized a slave upon which there were prior special mortgages for more than Ins value. On the day of sale, the mortgagee made a verbal consent to the silo upon the condition, that the constable should hold the proceeds until other property included in the same mortgage was discussed. Held : that as the judgment debtor did not consent to this arrangement, the sale was invalid, although the other property, when sold, actually more than paid the mortgagee.
    Where property seized on execution is not sold, because the sum bid does not exceed the amount of prior special mortgages, the seizure is not thereby released. If the property ho real, the rents are to be collected by the sheriff and applied to the execution ; or if it bo slaves the judgment creditor may arrange to be subrogated to tlie rights of the mortgagees.
    APPEAL from tlie Third District Court of New Orleans, Kennedy, J.

      Janm and Taylor, for appellant.

      T. W. Collens, C. Dufour, and Beauregard, lbr appollees.
   The judgment oí tlie court was pronounced by

Slidell, J.

On the 15th August, 1850, a slave named William Diggs vraa seized by the constable of a justice’s court in New Orleans, upon several writs of fieri facias issued against Balletin. Afterwards Juré, who had a conventional mortgage for §2000 upon this slave and other property, executed by Balletin in 1849, and recorded in that year, obtained an order of seizure and sale. Under the writ of seizure and sale, the sheriff levied upon tho mortgaged property, including the slave, but did not take him out of the custody of the constable until the 21st September, 1850. On that day, while the slave was still in the custody of the constable, the constable sold the slave under the writs in his hands, for §305 to Rieffel; but before executing a deed or making delivery to Rieffel, the sheriff took possession of the slave. The mortgaged property, with the exception of the slave, was subsequently sold by the sheriff under the writ of seizure and sale, and produced an amount more than sufficient to pay Juré’s mortgage. A rule was then taken by Balletin upon the sheriff, the various creditors who liad levied under fieri facias upon the slave, and Rieffel the purchaser, to show cause why the adjudication to Rieffel should not be declared null and the levies inoperative, and why the slave should not be delivered by the sheriff to Ballelin. There was judgment in the court below against Ballelin, and he has appealed.

It will be observed, that the owner seeks to sot aside an adjudication which is not yet consummated by payment of the price and delivery; and the opinion which we are about to give, is to be considered as limited to the case before us.

When the adjudication was made by the constable for a price of §305, there was an anterior conventional mortgage upon tho property for §2000 in favor of Jure. By art. 078 of the Code of Practice, it.is made the duty of the sheriff (or constable) in case of sale of land or slaves, to procure a certificate of mortgages and read the same before the bidding commences. If there be antecedent special mortgages and the bidding exceeds them, the property may bo sold; the purchaser retaining their amount in his hands, and paying the surplus of price. Art. 083. But if the price offered by the highest bidder is not sufficient to discharge the antecedent special mortgages, there shall be no adjudication, says art. 684, and the sheriff' shall proceed to seize other property of the debtor, if there be any.

Thus it appears that the sheriff’s power to sell, depends upon the bid overrunning the amount of antecedent special incumbrances; and consequently it has been frequently held, that if property bo sold at judicial sale for a price bolow such incumbrances, the adjudication is invalid. See McRae v. Chapman, 10 R. R. 67.

But it is said that in this case Juré, the prior incumbrancer, was present at-the sale, and entered into a verbal agreement with the constable, by which he assented that the slave should be adjudicated, the money to be held by the constable until the residue of the property mortgaged should be sold by the sheriff'. This agreement may be considered binding upon Juré, and would estop him from afterwards molesting the purchaser; but it cannot bind Ballelin, who was not a party to the agreement, and had made no consent that the constable should sell the property except in accordance with the requisitions of law. We are, therefore, of opinion that Ballelin is entitled to have the adjudication, which has not been consummated by payment of tho price or delivery, declared invalid. We should perhaps, however, liavo sustained tho adjudication, if Jure had made an agreement with the constable before tho day of sale, to waive his right as mortgagee and look merely to the proceeds of sale, and seasonable notice of such agreement had been given to Ballelin. Without such notice, he had a right to expect that no one would bid over §2000 for a slave which was worth, according to the appraisement, only §400, and consequently that no sale would be effected. He had then no notice to attend the sale and protect his interest from sacrifice.

It is said that Ballelin is still further entitled to have the seizures by the constable declared inoperative, and the slave restored to him. The argument is, that when no bid could be got over the antecedent incumbrance, the seizure fell: a proposition which the appellant deduces from the language of article 684, already cited, “ there shall be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.”

We cannot assent to the proposition, that the seizure is determined ipso facto by the failure to obtain a bid exceeding an antecedent incumbrance. Such a doctrine is not directly enunciated in the code, and it is obvious that in many cases it would work a serious injury to the creditor, for whose benefit the right of seizure is created. Take the case of a house seized under ji. fa. When the sheriff has seized it, it remains, says art. 658, sequestered in his custody, and he may receive the rent from those who occupy it. Suppose when the day of sale arrives, the amount of an antecedent special mortgage is not reached, is it not a hardship to the creditor to cut him off at once from the further rents? Again, in case of slaves, although the sheriff is forbidden by the code to hire them out, yet non constat, that the creditor, when he finds that they will not bring the price of an antecedent special mortgage, might not be able to make some arrangement to take up such mortgage and acquire a subrogation. We do not say that the defendant may not, on application to the court, have the seizure quashed, if no just cause to the contrary appear; but we think that the seizure is not to be considered as expiring ipso facto.

It is proper to add, that in this case there is an additional reason for refusing to restore the slave to Balletin, in the fact that when the sheriff took the slave out of the constable’s possession, the creditors made further seizure in the hands of the sheriff, and the sheriff’s writ has been satisfied by the sale of the other mortgaged property.

It is therefore decreed, that the judgment of the district court be reversed; that the adjudication of the slave William Diggs to the said Rieffel be declared •invalid and set aside; that the sheriff, upon payment of his lawful charges, restore the said slave to the constable of the Court of the Fourth Justice of the Peace of the parish of Orleans, that the same may be sold under the writs from said justice’s court, which, on the 15th of August, 1850, were levied upon the said slave; and that the cost of the rule taken in this cause by said Balletin, and the costs of this appeal, be paid by the said Rieffel.


author: Rost, J,

text:
    Widow J. Lombard v. Charles A. Jacobs.
    Where a slave was unsound, and so unlit for the ordinary uses for which slaves are purchased, it could not he supposed a party would have purchased him if he had known his true condition; the sale should he annulled, and judgment given for the price, with interest from the date of the sale. C. C. 2496,2451.
    APPEAL from the Second District Court of New Orleans, Lea, J.
    The judgment of the district court was as follows: “This suit is brought for the rescission of the sale of a slave sold by defendant to plaintiff, and for the reimbursement of the price, on the ground that said slave was sold as a good axeman, and sound in health; whereas, petitioner alleges that he was not a good axeman, was feeble in body, and somewhat idiotic, at least at intervals. The answer admits the sale for the price alleged, viz. $675; but denies generally all the other allegations in said petition contained. The bill of sale contains the usual guarantee against the vices and maladies prescribed by law; no reference is made to the capacity of said slave as a wood chopper. The only question then is, whether the evidence establishes facts sufficient to justify a rescission of the sale, under the guarantees established by law.
    “The evidence on this point is somewhat contradictory. I am convinced, however, that the slave was at the time of the sale, and long anterior thereto, 'afflicted with a chronic nervous malady, (the precise nature or cause of which it is impossible to determine,) affecting both mind and.body to such an extent as 'to render him utterly worthless; that this disease produced great bodily weakness and periodical imbecility; that he was unsound at the time of the sale, and so unfit for the ordinary uses for which slaves are purchased, that it cannot be supposed that the plaintiff would have purchased him had- he known his true condition. See Civil Code, 2496, 2451. Also, 2d Ann. 67. The sale was made on the 12th February, 1850, for the price of $675.
    “The court having duly considered this case, for the reasons assigned in the written opinion of the court this day delivered, and on file, it is ordered, adjudged and decreed, that there be judgment in favor of the plaintiff, Azclie Zeringue, (widow Lombard) and against the defendant, Charles A. Jacobs, decreeing, 1st. That the sale of the negro man named Joe, made by defendant to plaintiff on the 12th of February, 1850, be rescinded and annulled, and said slave restored to defendant. 2d. That said plaintiff' do have and recover of said Charles A. Jacobs, the sum of six hundred and seventy-five dollars, with interest thereon at the rate of five per cent per annum, from the 12th day of February, 1850, till paid; and costs of suit.”

      J. Marnier, for plaintiff.

      J. S. Halsey, for defendant.
   The judgment of the court was pronounced by

Rost, J,

For the reasons given by the district judge, it is ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.