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    Lyon v. Fisk et al., Executors.
    A testator bequeathed five thousand dollars to one of his clerks, as a gratuity for his faithful services; by a subsequent will he bequeathed to the same person, twenty-five hundred dollars. A few hours before his death, on being asked whether one of the wills should be destroyed, he directed both to be kept, in an action by the legatee to recover both legacies : Held, that the declaration of the testator is conclusive against the presumption that the second will was intended to revoke the first j and that, under art. 1686 of the Civil Code, the plaintiff is entitled to recover both legacies.
    Where the laws and jurisprudence of a country are reduced into the form of a Code, without any clause of repeal, as was the case with the Code of 1808, the rule of interpretation must be, as in cases of successive statutes, not to favor a repeal by implication, unless in case of manifest repugnance.
    Art. 185, tit. 2, book 3, of the Code of 1808, which declares that, “posterior testaments which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different, must be considered as embodying the provision of law 21, tit. 1, of the sixth Partida, which declares that, where two wills have been made, the legacies in both, either for pious purposes, or to the relations and friends of the testator, shall be valid; and art. 1686 of the present Civil Code, being copied verbatim from art. 185, of tit. 2, book 3 of the Code of 1808, must be considered as having the same meaning as it. The construction of art. 1686, cannot be affectedby the repeal of the Spanish laws after the promulgation of the new Code.
    APPEAL from the Second District Court of New Orleans, Canon, J. The plaintiff sued the executors of Abijak Fis/c, to recover the sum of $7,500, bequeathed tohim'by the deceased, $5000 having been left to him by a will dated 27 Nov. 1843, and $2,500 by a subsequent one, executed the 30 April, 1845. The defence was that the first will was revoked by the second.

      The first of these testaments contains the following provisions : “ I give to the Hon. Charles Watts $5,000. I give, devise and bequeath the snm of $5,000 to Joseph H. Lyon, at present one of my clerks, as a gratuity for his faithful ■services. I give, devise and bequeath to the City of New Orleans, my house at the comen of Custom-house and Bourbon streets, on condition that it shall be applied to the keeping of a library for the use and benefit of the citizens of the said city, and to be used for no other purpose. The balance of my estate I give, bequeath and devise to the children of my brother Alvarez Fisk, viz : Stewart Wilkins, Alice, Fdivard, and Isabel, to be shared equally, those who are twenty-one years of age to come into possession immediately. Those who are under that age shall have their portion securely placed at interest, or invested in stores producing an income, favorably located in this city, by my executors, tmtil they are twenty one years old, when possession may be given to them. I appoint my nephew Stewart Willcins Fisk, and Hon. Charles Watts, as executors of this my last will and testament.” This will concludes with a recommendation to his executors to employ Joseph II. Lyon, as clerk in settling up his estate, on account of his knowledge of his property and of his debtors, and with a statement that he estimates his estate at $300,000, at least.
    The second will is in these words: “In the first place let all my debts be punctually paid, if there are any existing at my death. Secondly, to Mr. Joseph H. Lyon, my faithful clerk, I give, devise and bequeath $2,500. Thirdly, to the free schools of the Second Municipality of New Orleans, I give, devise and bequeath $5,000, to be used for the benefit of said school by the aldermen of said Second Municipality. Fourthly, to my brother Alvarez Fisk, I give, devise and bequeath the residue of my fortune, both real and personal, for his sole use and benefit. It is with reluctance that I give my brother Alvarez so large an amount, who already has so large a fortune for his children. I nominate and appoint my brother Alvarez Fisk, and the Hon. Charles Waits, as executors of this my last will and testament, requesting them to employ my said clerk, Joseph II Lyon, to aid them in this matter.”
    The plaintiff introduced witnesses to prove that it was the intention of the testator that the plaintiff should receive both legacies. This evidence was objected to, but admitted by the lower court, subject to exception. Dr. Meur testified that, he had been in attendance on the testator for several days, when the latter asked him “ how long he thought he would survive. Deponent stated to him not more than two or three hours, upon which deceased ordered his servant to take from his armoire his frock coat, and to hand him a paper that was in said coat; upon which Mr. Alvarez Fisk aided in searching for it, and upon getting hold of the paper said: “ This is Abijah Fisk's will — what shall I do with it? Shall I destroy it?” Abijah Fisk replied, “ No : keep it; the other’s in the bank. Keep both.” The witness further stated that, he “ had heard Fisk state that Lyons was a very competent clerk, and did the business of two clerks.” Jones, another witness introduced by the plaintiff stated that, during a spell of sickness under which the testator suffered between July and November, 1843, the latter told him that he had left the plaintiff but $5000, and that he deserved more. Watts, one of the executors, was also sworn as a witness for the plaintiff. He testified that, “ Lyon acted rather as a partner than as a clerk in the management of the business of Fisk; that Lyon managed his business, both while he was present in New Orleans and during his absence; that during the last four or five years of his life the testator was in bad health and absent during the summer, and tljat, during the whole of that time, Lyon, had the principal management of his business; that a year or two previous to the time when Lyon was engaged, the testator had employed a clerk at a salary of $5000, who remained with him only five or six months. "Witness understood from the deceased that, the highest salary he had ever given to Lyon was $2500 a year.
    There was a judgment in favor of the plaintiff for the amount of both legacies, with interest from the date of the demand of payment made of the executors. The latter appealed.

      Elmore and W. W. King, for the plaintiff.
    Art. 1686 of the Civil Code declares that, “ posterior testaments, which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatable with the new ones, or contrary to them, or entirely different.” There being no express revocation in the last will, the legacies in both must stand. Nor is there any tacit revocation. The presumption of law is against any such intention on the part of the testator. There is the strongest proof, that he did not intend to revoke the first will by the last. Civil Code, arts. 1705, 1708. Dalloz, on the subject of the revocation of prior wills by subsequent ones, says, vol. 11, p. 174, § 5: “ The contrariety and incompatibility of testamentary dispositions has not been, and cannot be defined by law; it is for the magistrate, to whom it appertains to decide upon them, by a comparison of the expressions in the different wills, and the appreciation of the peculiar circumstances, to ascertain the intention of the testator.” See, to the same effect, 6 Toullier, No. 318. 30 Merlin’s Rep., verbo Róvocation de Legs, p. 30, Brussels ed. These authorities establish the admissibility of the testimony; being admitted, it proves beyond all doubt, that it was not the intention of the testator to rovoke his former will by the last.
    Though tho evidence of witnesses should be excluded, the plaintiff would be entitled to recover both legacies. The wills bear, on their face, evidence that it was not the intention of the testator to revoke the first legacy by the last. The first legacy was a gratuity for the faithful services of the plaintiff, as clerk of the testator. Such a legacy is a remunerative donation. 5 Toullier, no. 186. Pothier, Don. Rémun., nos. 601, 607. In the case of Fox v. Fox, 2 Rob. 292, it was held, that a legacy, “in consideration of long and faithful services renderod” by the legatee to testator, was a remunerative donation. In the case of the Succession of Cucullu, 4 Rob. 398, it was decided, that a legacy, “in recompense of services he has rendered me (the testator), and the particular affections I bear him,” was, in consequence of the latter clause, a mixed legacy. Had the latter clause been left out, the first would have constituted a remunerative legacy. These authorities show that the legacy to the plaintiff was a remunerative legacy. Such legacies are regarded by the law with peculiar favor. Civil Code, arts. 1500, 1510, 1513. 5 Toullier, 196. This being the character of the legacy to the plaintiff in the first will, no motive could have operated upon the mind of the testator to change it.
    The second legacy does not manifest any such desii-e to change the former legacy.
    The continued regard and affection of the testator for the plaintiff, up to the time of his decease, is evidenced by his wills; why then, after several years of additional service, during the testator’s protracted illness, should he have desired to diminish the amount willed to the plaintiff, by one-half? The inference is just the reverse, and this inference is also strengthened by the language with which he concludes his bequest to his brother. He says: “ It is with reluctance that I give my brother, Alvarez, so large an amount, who already has so large a fortune for his children — inheritance to whom, morality, honesty, education, industry and frugality, is far richer than gold.”
    "We have already quoted art. 1686 of the Civil Code, to the effect that posterior wills revoke only those dispositions in prior wills which are incompatible with, contrary to, or entirely different from, the dispositions of the last will. This principle has been repeatedly acted on by our Supreme Court. See Sarce et al. v. Dunoyer’s Executor, II La. 220. Succession of Bowles, 3 Rob. 31. Tournoir v. Tournoir, 12 La. 19. Article 1036 of the Code Napoléon is to the same effect. Dalloz, in thellth vol. of his Jurisprudence of the Nineteenth Century, p. 174, § 6, chap. 9, sect 1, art. 2, says: “We have already said, in chap. 7, § 4, that the willing of one sum of money is not incompatible with, nor contrary to that of the same sum willed, by a prior testament, to the same person. So it was pronounced by the Court of Turin, Feb. 24th, 1807. The same solution should apply in the case where the second testament contains a legacy of a greater or less sum than that contained in the first testament; the legatee can exact both.”
    Merlin, in his Rép. verbo Legs, see. 4, § 3, no. 22, says: “When a testator wills, many times, the same thing, to the same person, is the same thing due many times ? It is necessary to distinguish whether the legacy has for its object a thing certain (un corps certain), or a quantity (une quantité). A thing certain, though willed many times to the same person, is only due once. * * * When the same quantity is willed many times to the same person, it is necessary to distinguish whether the legacies are contained in the same will, or in different wills. In the firat case, the legacy is due but once, unless the testator has intended to multiply them, which must be proved by the legatee. In the second case, the presumption is, that the deceased intended to will, many times, the same sum, but the heir may destroy this presumption, by proof to the contrary.” In his additions to the above, volume sixteen, after referring to the Roman law, he continues thus: “ That is to say, the heir is not dispensed from paying the sum willed as many times as there are instruments in loriting containing the legacy, unless he can establish, not by simple conjectures, but by proper evidence, that the testator intended to make but one legacy.” After quoting article 1036, of the C. N., he proceeds to say: “ It is evident that if, after having, by a first testament, willed to Paul the sum of ten thousand francs, I will him again the same sum, by a second testament, which does not expressly revoke the first, the two wills are not incompatible nor contrary; they should both receive full execution, unless my heir, or universal legatee, has some means of proving that my intention was to make Paul but one legacy.”
    Both of the above authors cite the case of De la Twrbic v. Murialdo. The plaintiff, in that case, recovered three different sums of money, left him in three separate testaments, made at different times.
    It was contended, in the lower court, that the legacy to the plaintiff, in the first will, was revoked by the clause in the last will, constituting Alvarez Fisk universal or residuary legatee. On this subject, Dalloz says, vol. 11, p. 175, § 9, chap, ix, sec. 1, art. 2: “If, after having made a particular legacy (in a first will), the testator institutes another person universal legatee (in a second will), there is no revocation; for a particular legacy is far removed from being incompatible with an universal legacy; the law charges the universal legatee with the payment of particular legacies.” He refers to many authorities. See also Merlin, Rép. verlo Révocat. de Legs, § 2, Additions. 31 Sirey, 2d part, 306. 33 Sirey, '2d part, 494. Sarce et al. v. Dunoyer's Executor, 11 La. 223. Tournoir v. Tournoir, 12 La. 19.
    The opposing counsel rely upon the case of Compton v. Prescott's Executor et al., 12 Rob. 65, to show that a residuary legatee is not an universal legatee. The authority of this case is directly against the defendants, in their endeavor to establish a distinction between a residuary and an universal legatee, in a case like the one before the court. But, if it did establish the principle contended lor, it is difficult to concede how a residuary legacy should have a greater effect in annulling a pi'ior special legacy, than an universal legacy — how the willing oí a portion should have greater effect than the willing of the whole to the same person. Dalloz declares, vol. 11, p. 175, sec. 10, that, “ a particular legacy, whether made before or after a general legacy to a different person, is not revoked by it.” Pie refers to various authorities. He says further, in sec. 3.1, that there is no identity between sums of money willed successively, to many persons, by different testaments. See also Merlin, Rép. verlo Révocat. de Legs, no. 22. The counsel for the defendants attempted, in the lower court, to draw a distinction between art. 1686 of our Code and art. 1036 of the Code Napoléon. The distinction between the two Codes is fanciful; it is a distinction without a difference.
    In discussing the subject of the revocation of legacies, we have made no use of Duranton or Toullier. The doctrines of Duranton have been condemned both by the courts of France and of our own conntiy. See Sarce et al. v. Dunoyer's Executor, llj La. 293. Those of Toullier have been commented upon and severely condemned by Merlin and Dalloz. Merlin, Rép. verlo Ré-vocat. de Legs, § 2, add. 1, no. 22, reviews with great severity no. 643 of 5th Toullier. The latter author constantly confounds the Roman law with the present French law. No two systems can be more diametxucally opposed. Dalloz, vol. 13, chap. 9, séc. 1, art. 2, p. 173, § 2, says that “the Roman,law did not admit of the simultaneous existence of two testaments : a testament was destroyed by the making of a posterior testament.” “ But now,” he adds, “ under art. 1036 of the Code Napoléon, the law is different — posterior testaments, which do not expressly revoke preceding ones, revoke, in the former, only those dispositions contained in them which are incompatible with, or conti'axy to, the last.” Such is also the law of Louisiana.
    We have thus shown that the legacy to the plaintiff in the first will was not revoked by the second : 1st. By pai'ol testimony, which pi'oves cleai'ly that such was not the intention of the testator: 2d. By the intrinsic evidence of the wills themselves: 3d. By legal authorities, which establish that, a particular legacy in a subsequent will does not revoke a particular legacy to the same person in a prior will: 4th. That constituting an universal legatee, by a subsequent will, does not revoke a particular legacy in a former will.. In conclusion, we would call the attention of the court to art. 1706 of the Civil Code, which prescribes that, in cases of doubt, such a [construction is to be given to testaments as to give effect to all of their dispositions, rather, than one in which they can have no effect.

      Prentiss and Finney, for the appellants.
    The last will operates a tacit revocation of the first; and the legacy in the second will is a substitute for the legacy in the first. By the Roman law a posterior testament always annulled.a prior one, without any express revocation. Our Code has changed the Roman law, and provides, in art. 1686, that “ posterior testaments, which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.’’ It follows then, that all dispositions in the first will, “ incompatible with,” “ contrary to,” or “ entirely different from,” those contained in the second, are revoked. Let us test by this article the case before the court. Ahijah Fislc’s last will contains a complete disposition of his whole estate, moveable and immovable : 1st. It directs payment of all testator’s debts: 2d. Bequeaths to plaintiff a legacy of §2,500: 3d. Bequeaths to the free schools, &c. 5,000 : 4th. Bequeaths “ the residue” of testator’s fortune, both real and personal, to his brother, Alvarez. The word “ residue” here evidently has reference to the three preceding clauses of the same instrument. It is the complement of those clauses, and was manifestly intended to make up, in connexion with them, a disposition of all the testator’s property. It cannot be construed as referring to the first will, and meaning only “ the residue” after satisfaction of the dispositions of that will; because that disposes also of the whole estate, and if its dispositions are first satisfied, there will be nothing left upon which the second will can operate, and of course no “residue” at all. Is then the second will “incompatible with,” “contrary to,” or “entirely different from” the first ? The ready answer is, the whole of the testator’s property is disposed of in the last will, and its disposition is “ entirely different” from that contained in the first. The plaintiff is entitled, under the second will, to a legacy of §2,500; all the rest of the ostate is disposed of to persons not named in the first will.

      We admit plaintiff’s right to §2,500, but he demands in addition., §5,000, under the first will. To this we answer, there is nothing out of which to pay this legacy; the estate is otherwise disposed of by a posterior testament; and that, too, by dispositions in the language of the Code, art. 1686, “ entirely different” from those in the prior will by which plaintiff claims. It will not be denied that, if this §5,000 had not have been bequeathed in the first will, it would go to Alvarez Fisk under the second. Is notthen, the disposition of the second will in this respect, “ entirely different” from that of the first ? In other words, is not a bequest of §5,000 to Alvarez Fisk, “ entirely different” from a legacy of the same money to Joseph II. Lyon ? But plaintiff relies upon certain French authorities in relation to the construction of article 1036 of the Code Napoleon, and also upon a decision of tho Supreme Court of this State, in the case of Sarce et al. vs. Dunoyer’s Executor, 11 La. 220. The old French law followed the Roman; and posterior testaments always annulled and revoked prior ones. Domat, 2d part, book 3d, tit. 1, sec. 5, arts. 1 and 2. Under the Code Napoleon, a new construction arose. Art. 1036 of that Code enacted that posterior wills revoked the dispositions of prior ones, only so far as the former were contrary to or incompatible with the latter. A majority of the French commentators have decided, under this article, that an universal legacy in a posterior will does not revoke or annul particular legacies, nor even legacies under an universal title, contained in a prior one. This is undoubtedly now the doctrine of the French courts, although Duranton and others oppose it, and hold to the old .Roman rule. The authorities may be found referred to in Dalloz, Die. de Jurisp., Révocation des Testamens, art. 2, s. 2, nos. 73, 74, 75. The decision of the Supreme Court in Sarce et al, v. Dunoyer’s Executor, was made wholly upon the faith of the French authorities, and under the erroneous impression, expressed in their opinion, that the corresponding article ot our Code, 1686, was entirely similar to the article 1036 of the Code Napoléon. Such, however, is not the case. The French article does not allow a posterior will to revoke the dispositions of a prior one, except where it is contrary to or incompatible with such dispositions, &c. The framers of our Code have copied the French article verbatim; -but they have not merely copied it, they have added to it the words, “ or entirely different.” Now, a judicial tribunal will always seek some meaning in the language of the law-maker. If the construction of a law has been well settled by judicial decisions, and the legislator or law-giver, in re-enacting it, adds to it another provision, it is to be presumed that such new provision is intended to limit, modify or extend, in some way, the effect of the previous law. The court is bound to seek a meaning, rather than leave the new clause barren. It would not be decorous to suppose the lawmaker would do so vain a thing as to attach a new provision to an old and well settled law, without any intention of changing its operation and effect. Our law-makers, taking the Code Napoléon for the basis, constructed our own system. They adopted art. 1036, and added the words “or entirely different.” “What did they mean by this new phrase ? We think it is evident they intended to enlarge the revocatory power and effect of posterior testaments. By the old civil Jaw posterior testaments always revoked prior ones, whether their dispositions were incompatible or not. By art. 1036 of the French Code, posterior testaments revoke prior ones, only so far as they are incompatible with, or contrary to them. Now the framers of our Code either intended by the additional clause, to extend the revocatory power of posterior testaments, and go back a step nearer to the Roman law, or they meant nothing. They retained all the revocatory provisions of the French article, and added a new one embracing an extensive class of cases, to wit, all those dispositions of posterior wills “ entirely different” from the dispositions of prior ones. This new phrase was intended to embrace other dispositions than those “ incompatible with or contrary to” each other, or it is mere tautology. Many subtle distinctions had arisen under the French article. Dispositions “ entirely different” had been adjudged to be neither incompatible with, nor contrary to each other. We may reasonably suppose our law-makers intended to avoid these subtilties, and we invoke the provision they have inserted for that purpose. We say that Abijah Fisk, by his last will, disposed of his whole estate (with the exception of §2,500), in a manner “ entirely different” from the dispositions of his first will; and that consequently, under our Code, the last testament revokes all such dispositions, even though they should be held valid under the French law.
    But wo contend that the second will is a total revocation of the first, even under the principles of the French law, and in full accordance with the doctrine laid down by the Supreme Court, in Sarce et al. v. Dunoyer’s Executor. The utmost extent to which the authorities cited on the other sidego, is, that an universal legacy in a posterior will does not revoke or annul particular legacies in a prior will. The ground taken is that such universal legacy is not contrary to or incompatible with particular legacies; that the universal legatee takes the whole, or universality of the estate, subject to all charges of debts and legacies, even legacies under a universal title; that the universal legatee stands as the instituted heir, and is bound to fulfil the wishes of the testator; and that it is of his

      very quality, that lie shall pay all legacies and charges. We admit, therefore, that if Alvarez Fisk is the universal legatee, his institution as such in the second will, does not, according to the French authorities upon the Code Napo-léon, revoke or annul the legacies in the first will, whether they bo particular or under universal title.' Whether the addition to the language of the corresponding article of our own Code, authorises a different construction here, has been already argued. But we will now attempt to show that the .residuary legatee in this case is not a 'universal legatee, nor even alegatee by au universal title, but simply a particular legatee, and no more bound to pay the legacies of the first will than the plaintiff himself. Our Code, art. 1599, defines an “ universal legacy” to be “ a testamentary disposition, by which the testator gives to one or several persons, the whole of the property which he leaves at his decease.” The same definition, is given in substance in the corresponding article ofthe Code Napolóon. The universal legatee (when there are no forced heirs) is seized of right, by the decease of the testator, of the effects of the succession. C. C. 1602. He is bound to discharge all the legacies, &c. C. C. 1603. It is also a wall settled principle of the French law that an universal legatee has the right of accretion.
    Now let us test by these rules, whether the residuary legacy to Alvarez Fisk, be an universal legacy or not. The testator, after directing tire payment of his debts, makes three bequests: 1st. $2,500 to plaintiff as “his faithful clerk.” 2d. §5,000 to “the Free Schools,” &e. 3d. “The residue of his fortune, both real and personal,” to his brother Alvarez. This last, or residuary legacy, is clearly not an ■universal legacy : 1st. Because it is not a testamentary disposition ofthe "universality’ of thegoods of the testator, but only of what shall remain after the payment of the two particular legacies of $2,500, and §5,000; in other words, of a part of his goods, only. 2d. Alvarez Fisk, as residuary legatee, wus not seized, upon the death ofthe testator, of all thegoods of the succession, but they went to the testamentary executors. This, the plaintiff’himself acknowledges by claiming his legacy of the executors, and not of Alvarez Fisk, as universal legatee. 3d. The residuary legatee, in this case, is not bound to pay the previous legacies; he has nothing to do with thorn; they must be demanded of the executors, and the residuary legatee himself must claim his legacy in the same manner.
    Suppose no executors had been named, or those named had refused to accept, would the residuary legatee have been seized of the whole of the goods of the succession, and entitled to the possession? Clearly not; it would have been necessary for the court to have appointed a dative testamentary executor, whose duty it would have been to pay the debts and legacies. But such a necessity could not exist if the residuary legatee was also universal legatee; for in such case, as we have already shown he would have- been, upon the death of the testator, seized of all the goods, and charged with all the debts and legacies.
    This matter is not open for argument. It has already been settled by this court. In the case of Compton et al. v. Prescott et al. 12 Rob. 56, this very question arose, and the capacity of the plaintiffs to sue turned entirely upon it. The court, in that case, decided directly and expressly, that residuary legatees were not universal legatees, and, consequently, not entitled to the right of accretion ; but that all lapsed legacies went to the heirs at law. This is conclusive of the present case, for if the residuary legatee iu the last will, is not a nnivei-sal legatee, then he cannot be held bound to discharge the legacies of the first will. He takes the “residue” after fulfilling tho dispositions of the last will, wholly unincumbered by the disposition of the first; the bequest of that “ residue” is a disposition of it “ contrary to, incompatible with, and entirely different” from, tho dispositions of the first will; therefore, according to art. 1686 of our Code, it revokes and annuls such previous dispositions.
    Here we beg to call the particular attention of the court to arts. 3 699, 1700, 1701 and 1702 of tho Civil Code. Art. 1699 abolishes the right oj accretion, except in case of a legacy made to several conjointly, &c. Art. 1702 provides that, “ except in the cases prescribed by the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not boen willing to accept it, shall devolve upon the legitimate heirs. These articles fully maintain the decision in the case of Compton's Heirs v. Prescott et al., without resorting to the reasoning of the court. Nothing can be clearer than that, under our Code, (whatever it may be under the French,) lapsed legacies do not go to the residuary legatee; but, by virtue of art. 1702, devolve upon the legitimate heirs. The residuary legatee then, under our Code, wants one of the essential qualities of a universal legatee under the old civil law, to wit: that of “ accretion of lapsed legacies.”
    Had the two legacies in the last will lapsed, by inability or unwillingness of the legatees to take, what would have become of them? They would have been a portion of the succession “remaining undisposed of,” “because the legatee had not been able, or had not been willing to accept it, and would accordingly have devolved upon the legitimato heirs.” The residuary legatee, then, under our Code, is clearly not an universal legatee in the sense of French commentators, for he has not the “ right of accretion,” which right is, in the view of those authors, of the very essence of an universal legacy, and a correlative of the liability of the liability of the universal legatee to pay the particular legacies of a prior will.
    .. Again, the fact that art. 1702 has abolished the right of accretion goes far to sustain our view of the construction of art. 1686, and to show that our lawmakers intended to make, in regard to this subject, a radical change of the French Code. But there is still another view of this case which will show that, it would be destructive to the intentions of the testator to construe the residuary legacy in this case, as a universal legacy; for, if the residuary legacy in the second will be decided to be an “universal legacy,” then the court must also decide that, the residuary legacy to the children of Alvarez Fisk, in the first will, is equally an universal legacy. Now the French authorities, on which the plaintiff relies, all concur in the opinion that a universal legacy in a posterior will does not revoke or annul an universal legacy in a prior one; but that the two universal legatees concur, and take the estate between them. 5 Touillier, no. 646, &c. By such a construction then the children of Alvarez Fisk would concur with him and be entitled to one half of the estate, would clearly be in utter violation of the intentions of the testator.
    We might rest here; but we will go a step farther, and show that the residuary legacy in this case is not even a legacy under a universal title, but is a legacy under a particular title, and consequently subject only to the rules applicable to to that title. It is true, in the case cited from 12 Robinson, the court, in deciding that the residuary legatees were not universal legatees, calls them legatees under an universal title. In this we think the court erred. The question whether they were legatees under an universal or particular title, was of no importance in the cause, and the point was probably not considered. The legacy under an universal title is defined by art. 1604 of the Civil Code, to be “that by which a testator bequeaths a certain proportion of the effects which the law permits him to dispose of, as one half, a third, or all his immovables, or all his mo.venbles, or a fixed proportion of all his immovables, or all his moveables.” Now, under this definition, a residuary legacy may, or may not be a legacy under an universal title, according to the nature of the previous bequests. For example: if a testator bequeaths one-fourth of his goods to A, one-fourth to B, and the “ residue” to C, the residuary legacy is one under an universal title; because it is a certain proportion of his effects, to wit, one half. If, however, he bequeaths a house to A, a certain sum of money to B, and the “residue” of his goods to C, this disposition clearly does not come within the definition just quoted of “ a legacy under an universal title, for this residuary legacy is not of any “ certain proportion,” or aliquot part of his effects, nor of any “ fixed proportion” of all his immovables, or all his moveables.”
    There is another test. A legatee under an universal title must always share something with the other legatees. He has a “certain proportion.” But in this case there are two legacies to be first paid; one of $2,500, the other of $5,000. Now if the estate shoirld only amount to $7,500, the residuary legatee would get nothing. He has, therefore, no certain or fixed proportion of the effects; and consequently his legacy cannot be called a legacy under an universal title. Art. 1618 of the Civil Code provides that “ every legacy not included in the definition before given of universal legacies and legacies under an universal title, is a legacy under a particular title.'’ The residuary legacy then to Alvarez Fisk is a legacy under a particular title, and under art. 1598 of the Code, has effect according to the rules established for particular legacies. If this reasoning be true, then the will of Abijah Fisk disposes of his whole estate by legacies under particular title, which disposition is “contrary to, incompatible with, and entirely different” from, the dispositions of the first will.
    It will hardly be urged that a legatee under a particular title, in a posterior will, is bound to pay all the particular legacies'of a prior will.
    The case, then, stands thus: The testator, after payment of his debts, has bequeathed to Alvarez Fisk, under particular title, all his “fortune, both real and personal,” except $7,500. By a previous will, he had made an “entirely different disposition” of his effects. "Which disposition shall stand ?
    Not an authority has been, or can be cited, which will sustain the dispositions of the first will against those of the second, upon any other ground than that the second contains an universal legacy, and that an universal legacy, in a posterior will is not incompatible with particular legacies in a prior one, and does not, therefore, revoke them. This was the only ground of the decision in the case of Sarce v. JDunoyer, and constitutes the basis of all the French authorities. But in this case we have shown that there is no universal legatee in the last will, and consequently that none of the authorities cited by plaintiff are applicable to the case. We come to the conclusion, then, in regard to this point, that the last will of Abijah Fisk, being a complete disposition of all his estate, revoked and annulled, in tolo, his prior will, under which plaintiff claims.
    We will now briefly consider the last point, to wit: Is the bequest to plaintiff of $2,500, in the last will, a substitution for the legacy of $5,000 in the first, or are the two cumulative ? We admit the general rule to be (though with much opposition of authority,) that legacies to the same person by different instruments, are, prima facie, cumulative; but wo contend that there are exceptions to this rulo, and that the rule itself gives way to the intention of the testator, if it can be fairly gathered from the provisions of the instrument. The exception is, that when a second legacy is given for the same cause, it is not to be considered a double legacy, but a substitution. This is directly decided by Lord Hardwicko, in tho ease of the Duke of St- Albans v. Miss CarolineSBeauclerc ct al., 2 Atkyns, 640 Tho decision is based entirely upon the civil law. That great judge, after laying down various rules of construction, says: “ The commentators on the civil law agree that, when another legacy is given for the same cause in different instruments, there shall not be a double legacy.” Now, in this case, the testator gives the first legacy to plaintiff “ as a gratuity for his faithful services;” ho bequeaths the second to him as his “faithful clerk.” The cause, or consideration, of the second legacy is clearly the same as that of the first. In each one the legacy is intended as a mark of the testator’s regard for the faithful services of his clerk, and, under the rule laid down by Lord Hardwicks, cannot be construed as a double legacy.
    But the instruments show upon their face, that the second legacy was intended as a substitution. In the second will he makes a disposition of his whole estate entirely difforent Rom the first. By disposing of all his goods in in the second will, be indicates his intention to annul tho first. It is manifest he inserted in the second the dispositions of the fust which he desired to retain. In tile first will he bequeathed to the Hon. Charles Watts 85,000, and constituted him one of his executors. In the second will he again constitutes him executor, but omits the legacy. If he thought it necessary to re-institute him executor, ho must have supposed it equally necessary to reitorate his legacy of 85,000, if ho intended him to take it. By not doing so, he has clearly indicated his intention that this legacy of $5,000 should not stand. Again, in the first will, he bequeaths a house and lot to the city of New Orleans, lor the uses of learning. In the second will ho omits this bequest, but gives $5,000 to the free schools. It can hardly be doubted that in making the last bequest, he intended it as a substitution for the first. In the first will he bequeaths $5,000 to plaintiff, for his “faithful services.” In the last one, he does not notice or refer to this bequest, but bequeaths him $2,500, as his “faithful clerk.” It cannot be doubted that the last legacy was intended in lieu of, and as a substitution for the first. It is clear that the testator intended in his last will to contract his previous liberality towards strangers. He omits entirely the legacy to Judge Watts, though he still retains confidence enough in him to constitute him again his executor. He changes his donation to the public of a house and lot of great value, to a moderate bequest of $5,000; and reduces the legacy to his clerk, the plaintiff, from $5,000 to $2,500.
    Should any doubt exist as to the testator’s intention, we invoke in our favor art. 1710, C. C., which provides, “ that where there is doubt, tho legatee takes only the smaller quantity.” Jn this connexion we also cite the case of Robo-nam’s heirs v. Ttobonam’s executors. 12 La. 73. 1 Toul. nos. 641, 643.
    Some parol evidence was taken at the trial, but it is hardly worthy of notice. Dr. Meux. testified to some expressions of the testator, while in extremis, indicating a wish that both wills should stand. These expressions were too vague and uncertain to be entitled to any weight, even if important. Bufthey are of no importance. The two wills cannot both stand, because their dispositions are entirely different. The wish of the testator to that effect, however solemnly made, could avail nothing, unless clothed with the solemnities of a testament. The testimony, besides, was clearly illegal, and was excepted to below, and the exception is insisted on here. 2 Atkyns, R. 372. 1 Greenleaf’s Ev. 382. 11 John. R. 212. 2 Roberts on Wills, 10-27. The evidence of Jones, as to the testator’s intention to make a large provision for plaintiff, is equally irrelevant and pointless. It need only be noted, that the conversation between witness and testator took place before either of the present wills were made; so that whatever were originally the intentions of testator, he certainly abandoned them.

      Benjamin and Micou, on the same side.
   The judgment of the court was pronounced by

Rost, J.

On the 27th of November, 1843, Abijdh Fisk made an olographic will containing the following legacy: “ I give, devise, and bequeath the sum of $5000 to Joseph II. Lyon, at present one of my clerks, as a gratuity for his faithful services.” On the 13th of April, 1845, this testator made a second will, in which he leaves the plaintiff another legacy, couched in these words : “ In the first place, let all my debts be. punctually paid, if there are any existing at my death. Secoudly, to Mr. Joseph H. Lyon, my faithful clerk, I give, devise and bequeath $2500.” Two or three hours before his death, the testator being in the full possession of his mental faculties, and remarkably collected, ordered his servant to hand him a paper that was in his coat-pocket, upon which Alvarez Fisk, his brother and residuary legatee, aided in searching for it, and, upon getting hold of the paper, he said: This is Abijah Fisk’s will; what shall I do with it? shall I destroy it? The testator replied: "No, keep it; the other is in the bank; keep both." Both were accordingly kept, and duly probated after the death of the testator. The plaintilf now seeks to recover the amount of the two legacies, and his claim is resisted by one of the executors, upon the ground that the legacy in the last will was a revocation of the legacy contained in the first. Judgment was rendered in his favor in the court below, and the defendants appealed.

Article 1686 of the Civil Code, under which the only question presented by this controversy is to be determined, is in these words: “ Posterior testaments, which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.”

A vast number of authorities, taken from the commentators on the Roman rand French laws, and from the decisions of the English courts, have been adduced on both sides, in support of the opposite interpretations put upon that article by the counsel. Analogies and distinctions drawn from those sources, would be entitled to much weight, if our own positive legislation had not, so far as it bears upon this controversy, placed the meaning of that article beyond all reasonable donbt. It is true that in Rome, and in France before the adoption of the NapolSon Code, Lhe rule on this subject was, “ Per secumdum testa-mentum wfirmaiur primum.” It is now universally admitted that, the law should establish no presumptions but such as are certain and infallible ; and that the presumption of the Roman law that, second wills are intended to revoke the first, was often contrary to truth; and, while on this subject, it may be observed that no case can be imagined, in which that presumption would do greater violence to truth than in the present. The last words of the testator — do not destroy that will; keep them both — leave nothing for that presumption to rest upon; and, under art. 1708 of tho Civil Code, that circumstance is the best possible evidence of his intention.

But the ascertainment of the intention of the testator, is not necessary to the decision of this case. The law 21st, tit. 1st, Partida 6th, expressly provided that, where two wills had been made, the legacies contained in both, either for pious purposes, or given to the relations or friends of the deceased, should remain valid. It was a vexed question among commentators, whether, under an exception to the general rule, similar legacies were both valid under the Roman law. Under the Spanish law, says Gregorio Lopez, there can be no doubt of their validity. Tene ergo menti istam legem Partitarum expressé decidentem, legata primi testamenti deberi. Gregorio Lopez, on the law already cited. Such was the rule when, in 1808, the civil laws of Louisiana were revised and embodied in the old Code. In that Code is found, on the subject of the revocation of wills, the article which has since been transferred into the Louisiana Code, under number 1686. As was observed in relation to article 2412 in the case of the Bank of Louisiana v. Farrar, ante p. 49, that article contains no clause of repeal, and does not purport to make any change in the legislation of the country. It must therefore be considered as the embodiment of the laws and jurisprudence in pari materia, existing at the time.

"Where the revision and formation into a Code of the laws and jurisprudence of a country is effected without a clause of repeal, as was the case with the Code of 1808, we hold the rule of interpretation to be, as in cases of successive statutes, that the law does not favor a repeal by implication, unless the repugnance be quite plain; that tho Code must be confined to repealing as little as possible of the preceding laws ; that although a disposition of the Code may seem repugnant to some of those laws, that disposition must, if possible, have such construction, that it may not be a repeal of those laws by implication. We hold that the same rule is to govern, wdiere different powers given by the former laws and by the Code may well subsist together. Dwarris on Statutes, 4th Law Lib. p. 31.

The disposition of the Spanish law, giving to testators the power to make bequests to their friends by two different wills, may well subsist with the powers given to testators by the Code, and must therefore be viewed as explanatory of its meaning and intent. Such was the contemporaneous interpretation of those dispositions of law.

In the year 1819, two learned jurisconsults were appointed by law to translate into English that portion of the laws of the Partidas, which was considered as still in force. They inform us in their preface, that they translate no oilier; and the law 21st, of the tit. 1st, of the 6th Partida, already adverted to, is found entire in their translation, 2 Moreau & Carleton’s Part. p. 969.. That law and art. 1686 were both in force, from 1808 until the promulgation of the new Code. The disposition of the Spanish law was then repealed ; but that repeal could not, and did not affect the legal intendment of the article of the Code. If, notwithstanding that article, the two legacies would have been valid before the repeal took place, the testator in making them now has not violated the law, and it is the duty of his executors to pay them both.

Judgment affirmed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Avery et al. v. Lauve et al.
    itn express authority is necessary in order to bind another by the execution of a promissory note.
    A partnership may be contracted to take effect at a future time, or upon certain conditions.

      APPEAL from the Commercial Court of New Orleans, Watts, J.

      C. A. Jones, for the plaintiffs. Sigur and Bonforcl, for the appellants,
    contended that the defendants were not bound by the note, citing Atwood v. Mun-nings, 7 Barn. & Cress. 378 (14 Eng. Com. Law Rep. 42). Oreenslade v. Dower, Ibid. G35 (14 E. C. L. R. 106). Dickinsons. Valpy, 10 Ibid. 128 (21 E. C. L. R. 41). Bramah v. Roberts, 3 Bing. N. C. 963 (32 E. C. L. R. 404). Emly v. Lye, 15 East. 7. Hill v. Bannister., 8 Cowen, 31. Lloyd v. Rreshfield, 2 Carr & Payne, p. 325 (12E. C. L. R. 149).
   The judgment of the court was pronounced by

Slidell, J.

This suit is .brought upon a promissory note of the following ■tenor :

“ Dolls. 504 55. Cincinnati, Sept. 2, 1845.

Six months after date, the Steamboat Belle Creole and owners promise to pay Avery, Wayne & Co., or order, five hundred and four dollars, fifty-five cents, for value received in building materials furnished said boat, payable at'the •counting house of Omer Lame, New Orleans.

For the steamer Belle Creole and owners,

Dimitry & -Plaisent.”

The petition is based upon the note which it recites, and refers to as annexed. It charges that Dimitry fy Plaisent were, at the time of drawing said note,' part owners, agents of the other owners, and also officers of the boat, and fully ‘authorized to act in the premises; that the defendants were owners of the boat when the note was made, became by such ownership commercial partners, and are liable in solido, upon the note. They pray judgment for the amount of the note, interest, damages, costs of postage and of protest. The petition contained no count or charge for goods sold and delivered. There was a prayer for general relief. Dimitry fy Plaisent were not made defendants. 'The answer of the defendants was a general denial.

Thus the issue in the cause was, whether the defendants were liable upon the note. There was strictly speaking no issue, whether the defendants were liable upon a contract for goods .furnished. In this view of the pleadings, the question before us is, notwhether the plaintiffs shall ultimately lose the price of any materials they may have furnished, but whether an action can be maintained against the defendants on this .note. Now it appears from the evidence that, Dimitry Sf Plaisent had no express authority to bind the defendants by note. They-are shown to have had authority to expend §24,000 in building a boat, and to draw bills of exchange for that amount on Omer Lame, one of the defendants ; it also.appears that Lame has accepted and paid bills to that amount; and that the subscription of the stockholders was made in Louisiana, where they lived, by their respective notes each for his share; and that the cost of building the boat was §37,900, being a large .excess over the limit.

But it is contended that, though there was no express authority to make notes •to bind the stockholders, yet that, as owners of a steamboat, they were by the express provisions of pur Civil Code, commercial partners, and that the signer's <of the note on behalf of the boat and owners, being partners, imposed a partnership liability upon the defendants. Our Code in enumerating what classes of partnerships are commercial, includes “ such as are formed for carrying personal property for hire in ships, or other vessels.” Now, if it be conceded for the purposes of argument; (for we express no opinion upon the point,) that .owners of steamboats would have the right to bind each other for supplies furnished to the boat, or for other matters appertaining to the boats’ business, in the form and with the peculiar liabilities of bills of exchange and promissory notes, yet here a case is presented to us, where, under the impex-fect evidence, the building of the boat seems to appertain to the foundation of the partnership, and involves inquiries as to the conti-ibution of the members to its capital. The partnership seems, at the time when the note was made, to have been in the process of formation; or, at least, the relative position of the partners towards the partnership is, under the evidence, indistinct. It is contended by the defendant, and not without plausibility, that the facts proved at the trial are equally consistent with the supposition, of an intention on the part of the respective defendants .to become partners in the business to be carried on pi'ovided .certain things were done, as with that of .an existing partnership. Societas coix-i potest v,el ex te.mpore vei sub conditione. Dig. Lib. 17, tit. 11, pro Socio. "Volúntales etenim legitime contrahentium omnimodó conservandax sunt, •Code, Lib. 4, tit. 37.

A person may agree to become a partner with others at a future time, provided cei-tain things are done, or certain conditions accomplished; and, if others of the pax'tners enter into contracts in the mean time, to hold all liable upon .such contracts would be recognizing as effectual an unauthorized agency. Cases of this sort, arising from the preliminary steps for establishing a partnership, involve questions of great nicety; for in contemplation of law the partnership liability commences from the time the parties have agreed to act together for the .common purpose, and preliminary acts are not always binding upon all connected with the .contemplated association. See the doctrine on this subject, and its qualifications, as more fully .stated in the case of Dickinson v. Valpy, 10 Barn, & Creswell, 128, and in Story on Partnership, § 150, &c.

The evidence before us in this case is very imperfect. The partnership .agreement, or subscription-paper, is not before us, nor the power of attorney under which Dimitry & Plaiscjit went to Cincinnati to superintend the building .of the boat. The eviden.ee is also vei-y vague, as to what took place between those agents and the plaintiffs. It may be also, though on this point, by reason .of the imperfect state of the evidence, we do not expi-oss any opinion, that some of the defendants may have gone farther to incur liability than others; as for example, Lawoc, who appears to have been actively concei'ned in the boat’s affairs, as regards the business .at New Orleans,

The coui'.t below has condemned all these parties in solido. We are unable to coincide in that decree, under the testimony before us; but as the obscurity of the case, as to matters of fact, appears by the record to be in some degree attributable to t.he defendants as well as to the plaintiffs, we think the ends of justice will be best answered by remanding the cause. In doing so, we will allow the plaintiffs to amend their pleadings, if they think proper, by declaring on the original consideration of goods furnished, as well as on the noté, and the defendants respectively to answer further in the ¿ause.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that this cause be remanded for further proceedings according to law, and with leave to the plaintiffs to amend their pleadings, and to the defendants respectively to answer further; the costs of this appeal to be paid by the appellees.


author: Rost,- J.

text:
    Michel v. Dolliole.
    Á promise to purchase an immovable or slave, not reduced to writing, and unaccompanied by delivery, is void. C. C. 2255, 2415, 2437.

      APPEAL from the District Court of the First District, Buchanan, J.
    /. Morel, for the plaintiff. Duvigneaud and Dufour, for the appellant.-
   The judgment of the court was pronounced by

Rost,- J.

The plaintiff seeks to recover from the- defendant the sum of $550, under the following circumstances, The defendant is the sole testamentary executor, and the universal legatee, of the late Joseph Prieto, under a will which was probated on the 37th of February, 1838. One of the dispositions of that will is as follows :

Je donne et legue une somme de $500, qui devi'a étre employée par mem exécuteur testamentaire a obtenir la liberté de mon neveu Louis, fils de ma soeur Madelon

The will further provides that this, and other sums bequeathed by the testator, for the purchase and emancipation of his slave relations, shall be placed at interest, to accumulate until the executor can succeed in accomplishing the object of the legacy. The plaintiff alleges that she is the owner of the slave Louis ; that the defendant, in his capacity of executor, offered her for the slave the sum of $500, which she refused; and subsequently, after interest had accumulated on said sum, she agreed with the executor to let him have the slave for $550 ; that the executor, without any good cause, and to her great damage, as well as to the prejudice of the slave’s legal rights, refused to comply with his agreement; whereupon she put him in default. She prays that the defendant, in his capacity of executor, be adjudged to pay her the sum of $550, for the price of the slave Louis, and that he be enjoined to accept the act of sale of said slave. The defendant’s answer contains a general denial, and a prayer for general relief. On the trial in the court below, the counsel for the defendant not being present, the case was tried ex parte, and the judgment of the court was, that the plaintiff recover of the defendant the sum of $550, the price by him agreed to he paid for the slave Louis, and the further sum of $50, as damages, and costs. From this judgment the defendant has appealed.

Dhe only material question in this cause has not been noticed in argument; but as it is clearly put at issue by the answer, we consider ourselves bound to decide it. Did the defendant make an agreement with the plaintiff, to pay her the sum of $550, for the slave Louis? The case was tried ex parte, and, as is usual in cases of judgments by default, the judge should have admitted none but legal evidence in support of the allegations of the petition. We have looked in vain through the record for legal evidence of the agreement under which thef plaintiff claims. Art. 2437 of the Civil Code provides that, a promise to sell amounts to a sale; but, to have its effect, either between the contracting parties, or with regard to other persons, it must be vested with the formalities prescribed in'art. 2415, in all cases where the law directs that the sale be committed to writing. Art. 2415 is-in these words : “ All sales of immovable property, or slaves, shall be made by authentic act, or under private' signature. All verbal sales of these things shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.” The only exception to the rule laid down in these articles, is contained in article 2255, which provides that, a verbal sale of immovable property, or slaves, is good, as well against the vendor as against the vendee, who confesses it, when interrogated on oath, provided actual delivery has been made of the immovable property, or slaves, thus sold.

It is not pretended that actual delivery of the slave Louis was made to the' plaintiff, and therefore, no promise to purchase, not reduced to writing and signed, was binding upon him in law. The only evidence adduced in support of the promise is, that contained in the act putting the defendant in default^ and the declaration of Lucatel, the notary who drew up that act, that all the facts are to his personal knowledge as they are therein stated. Those facts consist of certain declarations alleged to have been made by the defendant at the time, and which form no part of that which the notary was called upon to record and certify. Proof of verbal declarations is not satisfactory evidence, when the party offering it had it in liis power to obtain written evidence of the substance of those declarations. In this case the proof results from the testimony of a single witness, whose evidence is unattended with any corroborating circumstance whatever, and the contract attempted to be enforced exceeds in amount the sum of $500. Civil Code, art. 2257. That evidence would be insufficient in any case, even if parol evidence could be considered as admissible' to prove the agreement sued upon. Moreover, the agreement entered into-between the defendant and the husband of the plaintiff without authority shown, had it been in writing, was not binding upon her. She could not therefore put the defendant in default, until she had notified him of her intention to avail herself of it; and as, at the time she gave that notice, the slave was lying dangerously ill, there would have been nothing unreasonable in the defendant’s-refusal to accept the sale, till he was restored to health. In his condition, he was not worth the price demanded for him.

It is therefore ordered that the judgment be reversed-, and that there be judgment in favor of the defendant', for costs in both courts.


author: Smdei/l, J.

text:
    Robinson v. Quarles et al.—Quarles et al. v. Robinson.
    Action against a partnership to recover the proceeds of merchandize shipped to one of its members, before its formation, for sale on account of tlie shipper.' It was alleged that the" partnership subsequently undertook to sell and account for the shipment; and on the trial plaintiff produced letters written in the name of the partnership acknowledging the receipt «f the merchandize. Defence that the letters- were written by the partner to whom the shipment was made; that the acknowledgments wore ftandalent and not binding on his co-partner, who was ignorant of them: Held that, after the production of the letters, the burden of proving fraud was on the defendants.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      F. B. Conrad, for the appellant Robinson,

    cited Story on Partnership, p. 161, § 108. Collyer on Part. pp. 290, 296-8. Gow on Part. 56, 78, 79, 80.

      Eggleston, eontrá,
    cited Civ. Code, art. 1841. Story on Part. pp. 150-160, 165, 188-90, 196-7, 202, 225, 235. 10 La. 416. 13 La. 488.
   The judgment of the court was pronounced by

Smdei/l, J.

The question in these consolidated cases is, whether Quarles, Spring & Co., a commission house at New Orleans, are chargeable with the amount of a shipment, made before the formation of the firm, to Quarles, one of the partners. This old shipment was made in the spring of 1840, by the plaintiff, a merchant living in Virginia. In the fall of 1840, Quarles & Spring, who composed the new house, called personally on the plaintiff in Virginia, informed him of the new partnership, and solicited a continuance of his business. He became their correspondent. In his first letter he asks them about the old shipment, and hopes they will soon send him an account of sales. In his next letter he advises a new shipment, and again inquires about the old one. Of both these letters the defendants acknowledged the receipt, and expressed the expectation of soon making sales of the old shipment, explaining the difficulties which occasioned the delay in its sale. Several subsequent letters of the plaintiff’s reiterated inquiries as to the old shipment, the defendants neglected to reply, and, at length, after an interval of eighteen months from the commencement of the correspondence, Spring, in the name of the house, informed him that they had nothing to do with Quarles’ business. The sums for which the plaintiff drew drafts, and their acceptance and payment by the defendants, are circumstances which harmonize with the assumption of the responsibility for the old shipment by the new house. The defence is that, the correspondence between the plaintiff and defendants was conducted by Quarles; that the acknowledgments thus made are not binding on the house; that Spring was ignorant of them; and that Quarles has committed a fraud upon the firm, and is alone responsible to the plaintiff.

The defendants, by their interviews with Robinson and their commercial association, mutually recommended each other to him as worthy of confidence. The old consignment was a matter in the same line of business for which the present firm was formed, the letters written by Quarles, in the name of the firm, expressly acknowledged the old consignment as being under the charge of the new house; and the other attendant circumstances accorded with this representation. The evidence, though circumstantial, is cogent, that the correspondence was known to Spring. If he had not authorized, but on the contrary disapproved, this blending of the former business with the new business, or if the property was not really in the possession of his firm, it was his duty promptly to repudiate the responsibility, and advise Robinson to that effect* Eighteen months elapsed, a long correspondence intervened, and drafts much beyond the direct shipment to Quarles, Spring Co., were paid, before the position was assumed which has given rise to this controversy.

But even if it should be conceded that, under the correspondence and the attendant circumstances, the firm would still not be bound, if there was fraud an the part of Quarles, and ignorance on the part of Spring could be supposed' consistently with the evidence, still it is clear that the burden, after the production of the correspondence and the other proofs to which we have referred, would be thrown upon the firm, to prove such fraud. This the defendants have not proved.

It is therefore decreed that in these consolidated causes the judgment of the court below be reversed; and it is further decreed that the said Poiteaux Robinson recover of the defendants, Quarles, Spring SfCo., and of Francis Quarles & James W. Spring, members of said firm, in solido, the sum of $1932 10, with interest from the 19th December, 1845, and- costs in both eourts.

Note. — The following cases, decided during the period embraced by this volume, presenting only questions of fact, have not been reported : Schnaufer v. Simon; Good v. McIntyre; Jarvis v. Spring; Greiner v. Prendergast; Townsend v. Chandler; Elken v. Wyndham; Nichols v. Her Husband; Hitchcock v. North; Bornet v. David; Walton v. Pratt; Yoe v. Pratt; Kendig v. City Bank; Hanna v. Commissioners of Exchange and Banking Company; Gilmore v. Destrihan; Lambeth v. Freeman; Kinlock v. Dinn; Nivet v. Benit; Mitchell v. Tarlton; McCord v. Cable; Roy v. Debergue; Plique v. Bellomé; Wellington v. Wellington; Jones v. White; Miller v. Thompson; Weaver v. Fisk; Aymes v. Haydel; Barker v. York; Succession of Asbridge; C. Fuselier v. Robin; B. Fuselier v. Robin; Haulon v. Bonnafon; Gary v. Beall; Adlé v. Metoyer; Mason v. Alexander; Brigham v. Lambeth; Stone v. Brice; Sims v. Baker; Copley v. Moore; Copley v. Lewis; Sims v. Scott; Hammett v. Davis; City Bank v. Barker; Fink v. Lewis; Johns v. Horst; State v. Exchange and Banking Company; Fazende v. Hogan; Smith v. Mississippi Marine and Fire Insurance Company; Perrault v. Dupart; Ilsley v. McCerren; Boykin v. Curell; St. Yves v. Reiné.

The cases of Durell v. Palfrey, Green v. Lippincott, Cayetano v. Holbrook, and of the Succession of Lombard, determined during the same period, are not-reported, damages having been allowed in each for a frivolous appeal.


author: Voorhies, J. Slidell, O. J.,

text:
    Block v. Bannerman et al.
    The Act of 15th March, 1847, which declares, that no citizen of another State shall hereafter be arrested in this State, at the suit of a resident or non-resident creditor, except in cases where it shall be made to appear, by the oath of the creditor, that the debtor has absconded from his residence, applies to the citizens of this Union only — not to the citizens of foreign States or countries. Canal a/nd Sacking Co. v. Schroeder & Co., 7 Ann. 615.
    An arrest will lie for damages for any injury sustained by the plaintiff, either in his person or property. Wilder v. £ush> 7 Ann. 657.
    The contract of a passenger with the master is not for mere ship room and personal existence on board, but for reasonable food, comforts, necessaries, and kindness.
    The owner of a vessel is liable for the tortious acts of the master committed whilst in his service and within the scope of his authority.
    A captain is a quasi magistrate, on board his ship at sea, and may, within certain limits enforce and justify orders which in port would expose him to censure, to civil responsibility and to punishment. Slidell, 0. J.
    SUdell, 0. J., and Spofford, J., dissented from the majority of the Court on a question of fact.
    case was tried by a jury before Reynolds, Judge of the Fourth District Court of New Orleans.

      Roselius and Gaither, for plaintiff.

      Durant & Horner, for defendants.
   Voorhies, J.

This is an action to recover damages, alleged to have been sustained by the plaintiff in consequence of the tortious acts of the defendant, Bannerman, as master of the ship Imperial, on board of which the plaintiff embarked at Liverpool as a cabin passenger for Mobile, on the 16th October, 1854.

The plaintiff alleges in his petition, that during the voyage, Bannerman wantonly and unlawfully, broke open his portmanteau and his other baggage, whereby they became wholly lost to him ; that he allowed the plaintiff’s person to be stripped of his ordinary apparel and clothing, and during the voyage repeatedly allowed the plaintiff to bo outrageously assaulted, maltreated and insulted by persons on board of said vessel; that these robberies and assaults were committed with the connivance and by the authority of Bannerman; that Bannerman, -without any justifiable cause, unlawful^ and maliciously committed a brutal assault and battery upon him; that the goods and clothing thus taken away from him, were worth $300 ; and that, from the other causes, he has sustained damages to the extent of $2,500. He further alleges that the other defendant, James Bead, is part owner of the Imperial, and for the aforesaid causes is indebted to him in solido with Bannerman, in th.e said sum of $2,800; and that the defendants are about to leave the State permanently, without leaving in it property sufficient to satisfy his demand. Wherefore he prayed for a writ of arrest, and that judgment be rendered in his favor against both of the defendants in solido for the sum claimed in his petition.

In the affidavit accompanying the petition, it is sworn by the plaintiff, that the debt and damages claimed in his petition arc really due him ; “and that he verily believes that the said defendants arc about to depart from the State permanently, without leaving in it sufficient property to satisfy his demand,”

The arrest was accordingly granted and the defendants held to bail.

A rule was taken by the defendants, at an early stage of the proceedings, to set aside the arrest on the following grounds, viz :

1st. Because no writ of arrest is allowed in such a case.

2d. That the affidavit was insufficient, as it was not made to appear that the defendants had absconded from the place of their residences.

3d. That it was not true in stating that defendants were about to depart permanently.

4th. Because plaintiff could not swear positively to the amount of damages.

5th. That the defendants not being citizens or residents of Louisiana, cannot be arrested under the affidavit made in this case, they being residents of Scotland and citizens of Groat Britain.

Oth. That the damages laid are excessive.

The District Court considered these grounds insufficient and discharged the rule.

The case was then submitted to a jury who found a verdict in favor of the plaintiff; and from the judgment thereon rendered the defendants have appealed.

The first questions presented for consideration relate to the sufficiency of the affidavit on which the arrest was founded. The two principal grounds upon which the appellants relied to maintain the rule, were, first, that the affidavit was informal in this particular, that it did not appear by the oath of the affiant that the defendants had absconded from their residences; and secondly, that the defendants were exempted from being arrested, under the laws of Louisiana, upon a demand arising ex delicto. We consider the principles involved in both of these questions as having already been settled in the cases of the Canal Bank v. Scroeder, 7 Ann. 615, and Wilder v. Bush, 7 Ann. 657. See C. P. 214. The other grounds urged, involving the merits, were equally untenable.

The record shows that Bloch's demeanor toward the passengers, the captain and his crew, was uniformly courteous and polite during the entire voyage. That about three weeks after the vessel had sailed captain Bannerman broke open his trunk in presence of the passengers, repeatedly called him a confounded thief, assaulted and kicked him out of the cabin, and compelled him to remain in the steerage during the remainder of the voyage. Some of the German passengers stripped him of all his wearing apparel, except his shirt, in presence of the cabin passengers and of the officers of the vessel, and also took away from him all his other effects; so that, during the remainder of the voyage, he was compelled to wear, without ever changing, a course suit of clothes, which he procured on board. One of the witnesses deposed that he was as badly treated by the sailors as he had been by the captain; that they drenched him with water one evening whilst asleep on deck, disturbing no one nor violating any order of the ship; and, upon starting up from his sleep and running, they continued to pursue him and drench him with the hose and only ceased after he had descended the gangway leading to the cabin; that this was done either by the order of the captain or of his mate. There is no proof in the record of any just or legal cause to justify the conduct of the captain. It is, however, the opinion of some of the members of this court, that the record discloses circumstances relating to the.conduct of Blooh, which are entitled to our favorable consideration in mitigation of damages. After the most careful examination, I regret that I have been enable to concur with them in this view. It has been held “ that the contract of a passenger with the master is not for more ship room and personal existence on 'board, but for reasonable food, comforts, necessaries, and kindness.” 3 Mason 242. The violation of such a contract by the master necessarily implies his liability to respond in damages commensurate not only to the extent of the actual loss sustained, but to the excessive bodily suffering- and mental anguish to which ho has exposed the passenger. The rules which must be adopted as our guide in the assessment of - damages in cases of this kind, are to be found in Article 1927 et seq. of the Civil Code, and also in the numerous decisions of this court on that subject. Considering all the circumstances of the case, I do not think that the jury exceeded the discretion reposed in them by law in the assessment of the damages; consequently I should have desired that their verdict should not be disturbed. But the opinion of two of the members of the court is, that the damages are excessive and should be reduced to the sum of one thousand dollars and to this I have reluctantly assented.

The principle of law that the owner of a vessel is liable for the tortious acts of the master committed whilst in his service and within the scope of the employment of the latter, may be considered as well settled, and no longer an open question. See 4 L. R. 243. 5 ibid 433. 6 ibid 319. 1 ibid 537. 7 Ann. 337. 1 Dallas 184.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendants in solido said siim of one thousand dollars with legal interest from judicial demand, and costs of the inferior court, the costs of appeal to be paid by the plaintiff and appellee.

Buchanan, J. and Ogden, J., concurring in this opinion.

Slidell, O. J.,

dissenting. The damages claimed in the petition are laid at three hundred dollars for the plaintiffs’ clothing and other goods, and twenty-five hundred dollars for the assault upon his person. Those damages have been allowed in full, they are certainly high. I would not, however, he disposed to disturb them, (except, perhaps, as to the value of the clothing and goods,) if there was no fault on the part of the plaintiff. But I have not been able to bring my mind to that conviction; and as I am dissenting from the verdict of a jury on a question of fact, it is proper I should state my reasons. In doing so, let me observe in the outset that of twenty witnesses on whose evidence the cause was tried, six only (two for defendant and four for plaintiff,) were seen and heard face to face by the jury, the residue having been examined under commission. I may therefore with regard to the principal portion of the evidence consider myself as having as good an opportunity of estimating its weight as the jury had.

It appears from the evidence, that the ship Imperial, commanded by Banner-man, loft the port of Liverpool with five hundred and seventeen steerage passengers, besides six in the cabin. There was a physician on board to attend to the emigrants, a large portion of whom were Germans; and it was agreed that the plaintiff Bloelc, should have a cabin passage free of charge, in consideration of services to be performed by him in interpreting between the doctor and the passengers, Block speaking both German and English. The mate of the vessel deposes that Block had volunteered to go with him when he served out provisions to the passengers, and was in the habit of calling up those who could not speak English, to receive their provisions. That about a fortnight after leaving Liverpool, Block proposed selling the provisions to the passengers, he to receive the money and give the witness half. This conversation he reported to the captain. Subsequently one day when the captain was standing on deck, conversing with a cabin passenger named Woodworth, three German steerage passengers came aft to speak to the captain. Woodworth who had resided in Hamburgh and was familiar with German, deposes that these passengers complained to the captain “ of Block having received money from them for salt provisions, which had been placed on board by their agent, and which therefore belonged to them; whereupon the captain called Block to him and asked him the reason for so doing. He answered that if he received money from the German passengers for his interpreting, that it was nothing to him. Block also acknowledged having received money, at the same time stating that if it had been a much larger sum he would return no part of it. The captain then ordered Block to open his trunk, and Block refusing to do so, the captain sent for the carpenter to open it; to the witnesses’ knowledge he did not take any thing out of it. Defendant did not see the trunk again until some time afterwards he saw Block taking it out of the cabin, at the same time Block remarked to the captain that he was going to give the portmanteau to the passengers, but would hold him, the captain, responsible for it. Heard the captain give the order to Block to go out of the cabin. Block refused to comply with the request.”

Murphy, the mate, also swears that the passengers complained to the captain as stated by Woodworth, and that the captain opened his trunk to search for the money to return it to the passengers.

Gregory, an other cabin passenger, also testifies to the fact of the complaint to the captain by the passengers, and its truth is corroborated by two other witnesses for the defendants and by the testimony of three of plaintiff’s own witnesses. And Crawford, the ship’s carpenter, also testifies that he heard Bloclc acknowledge he had received money from the steerage passengers for the provisions.

There is therefore irresistible evidence that the steerage passengers complained to the captain of Bloch’s having committed a fraud upon them; and there is also evidence which, with the aid of the corroborating evidence of the complaint adduced to the captain, satisfies my mind that Bloclc had taken advantage of his position as interpreter to get money wrongfully out of the steerage passengers.

Now this conduct, in my opinion, justified the captain in ordering him out of the cabin. His cabin passage was promised in consideration of services to be by him performed, whereby the health and comfort of ignorant and necessitous emigrants was to be promoted. Bloch’s conduct was the very opposite of his duty, violated his contract, and justified the captain in refusing to let him remain in the cabin.

But if the above conclusion be well foúnded, it surely goes very materially in reduction of damages. It shows that Block had turned his employment to an unworthy and dishonest purpose, and suggests a good motive for the opening of the trunk, a desire to do justice on the spot, to the poor and ignorant people whom Bloch had deceived. Let it be remembered that a captain is a quasi-magistrate on board his ship at sea, and may within certain limits enforce and justify orders which in port would expose him to censure, to civil responsibility, and to punishment. See Abbott, edition of 1850. Boulay Paty, Tit. iv. 3 Kent. 184. 8 Carrington & Payne, 454. Emerigon (Meredith) p. 153.

I by no means suggest however, an entire refusal of damages, although there is a conflict of evidence respecting the circumstances of the assault by the captain and his knowledge of the indignity practiced by the crow, my conclusion from the evidence is unfavorable to the captain on these points. I am not satisfied that a resort to force was necessary to exclude Bloclc from the cabin, nor that the captain .enforced proper discipline for the protection of his person and effects. That protection he clearly did not forfeit by the unworthy conduct by which he forfeited his right to remain a cabin passenger.

I am unwilling to affirm the verdict for the whole amount, and think on the contrary that the damages allowed by the juiy should be materially reduced, and that below the amount allowed by the majority of the court.

Spofford, J. I concur in this opinion.


author: Voorhies, J.

text:
    Block v. Maxwell.
    The obligee of a bail bond which has been forfeited, may proceed against the surety by rule. 0. P. 235.
    By the Act of 1826, all writs of fieri facias, issued by the clerks arerequired to be made returnable in not less than thirty nor more than seventy days.
    The condition of a bail bond which declares that the debtor “ shall not depart from the State of Louisiana, for the term of three months, without the leave of the court,” conforms to the statute and the additional stipulation, “otherwise he shall pay,” &c., is merely the consequence which the law attaches to the breach of the condition of the bond, and cannot impair or add to its legal effect.

      The departure of the principal in a bail bond from the State, within three mo1 the, is a violation of his bond, and the return of a writ of fieri facias against him, unsatisfied, fixes the liability of his surety.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Roselius and Gaither, for plaintiff.

      Durant & Horner, for defendant.
   Voorhies, J.

A writ oi fieri facias issued on the judgment in this case, against-the defendant, Bannerman, on which the Sheriff made the following return, viz: “ After diligent search and inquiry, the defendant could not be found, and after a further demand made of P. Maxwell, security on defendants’ bond, and of Messrs. Durant & Horner, attorneys of defendants, and of plaintiff, no property found.”

On this return, a rule was taken by the plaintiff on P. Maxwell, to show cause why he should not be condemned to pay the amount of the judgment against Bannerman, in consequence of the forfeiture of his bail bond.

Maxwell filed an exception, averring, first, that the plaintiff had no right to proceed by rule, but must proceed by citation, &c.; second, that Bannerman had not been put in default, &c.; and, thirdly, that plaintiff had no right of action, because the bond was a nullity and the writ illegal.

In his answer to the merits, he urged among other grounds of defence, that he was not bound, because an illegal condition had been inserted in the bond without his knowledge or consent, namely, “ that the surety will pay the debtand because the object of the arrest, which was to secure the appearance of the defendant in the main suit, had been achieved, he, the defendant, having always been actually or, in law, constructively present in court.

On the trial, the rule was made absolute, and Maxwell, the defendant therein, has appealed.

The exception, in our opinion, was properly overruled. This case comes clearly within the purview of the Article 235 of the Code of Practice, as amended by the Statute of 1839.

The objection that the execution should have been made returnable in seventy, instead of forty-five days, is untenable. By the Act of 1820, all writs of fieri facias issued by the clerks, are required to be made returnable in not less than thirty, nor more than seventy days. The third ground of exception has .already been considered in the other case.

The other objections urged by Maxwell, we think, are equally untenable. The condition stipulated in the bail bond is in strict conformity with the statute ; it declares, that the debtor “ shall not depart from the State of Louisiana for the term of three months, without the leave of the court.” The additional stipulation, “ otherwise he shall pay,” &c., is merely the consequence which the law attaches to the broach of the condition of the bond, and cannot impair or add to its legal effect.

A fortnight after Captain Bannerman's release on the bail bond, he went to Mobile, and from thence to Liverpool. His departure from the State, within the throe months, in .violation of his bond, and the return of a writ of fieri facias against him unsatisfied, fixed the liability of Maxwell, the surety. In Lindly v. Hagens, 11 R. R. 204, the surety on a precisely similar bail bond, was ruled to show cause why he should not be condemned to pay the judgment against the defendant, on the allegation that a writ of fieri facias had been "returned nulla hona, and that the condition of the bond had been broken by the departure of the defendant, Hagens, from the State, within three months írom its date. The defendant in the rule showed that Hagens, the principal, was present in open court upon the trial of the suit, and there and then surrendered himself in discharge of his bail, and continued to remain within the jurisdiction of the court. It was urged by the surety, that if Hagens had been at any time temporarily absent from the State, no damage or injury had thereby accrued to the plaintiffs, and that the bond contained stipulations not authorized by law. The court said : “ It is obvious that the plea, that Hagens had surrendered his person in discharge of his bail, cannot avail the surety, because, since the promulgation of the Act to abolish imprisonmont for debt, no officer had any authority to take him in custody on such surrender.”

As we have reversed the judgment in the other case in favor of the piincipal in the bond, it follows as a necessary consequence, that the surety is entitled to the same relief.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that the plaintiff recover of the defendant, Peter Maxwell, the sum of one thousand dollars, amount of the judgment rendered against Donald Bannerman, principal in the bond, together with all costs; the plaintiff, Bloch, to pay the costs of appeal.


author: BucnAjSAif, J.

text:
    A. Ledoux v. E. Durrive.
    One of several sureties who has paid the debt, will not be entitled, under Article 8O0T of the Civil Code, to an action for contribution against liis co-surety, when, at the time of such payment, the co-surety himself was under no legal obligation to pay the debt.
    In an action against two sureties judgment was rendered against the plaintiff; he appealed as to one of the sureties, and the judgment was reversed. The surety paid the money and brought this action for contribution against the defendant, his co-surety, under Article 3027 of the Civil Code. Held: No appeal having been taken against the co-surety, and the judgment in his favor having become final before the payment, he is not liable.
    The Louisiana State Bank sued Ledoux and Durrive on an obligation of suretyship; there was judgment against the bank and it appealed, but as to Ledoux alone. The judgment was reversed: Ledoux paid the money and brought this action against his co-surety, Durrive, for contribution. Durt'we plead the judgment of the Louisiana State Bcmh v. Ledoux <& Durrive as res judicata. Held: The judgment of the District Court in favor of the present defendant, (Durrive,) and against the Louisiana State Bank, perhaps, does not amount to a technical bar of the present action. To have that effect, it should have been rendered in a suit between the same parties and for the same cause of action. But that judgment makes proof against those who were parties to the action, and those claiming through or under such parties, of the truth of what was decided ' thereby.
    from the Second District Court of New Orleans, Lea, J.

      D. H. Hennen, for plaintiff and appellant.

      Hlmore & King, for defendant.
   BucnAjSAif, J.

The plaintiff and defendant were co-sureties of one James Duplessis, in a bond given to the Louisiana State Bank, in the penal sum of twelve thousand dollars, conditioned for the faithful performance, by said Du-plessis, of the duties of note clerk in said bank. -The principal in the bond proving to be a defaulter to an amount exceeding the penalty of the bond, the plaintiff paid said penalty in full in satisfaction of a judgment entered up against him at the suit of the bank, and has instituted the present action, demanding six thousand dollars of his co-surety, being one half of the amount paid, as a contribution due by defendant towards the discharge of a common liability.

The defendant pleads, first, the general issue; secondly, a judgment in his favor in a suit instituted by the bank on the bond; and, thirdly, a certificate of discharge under the Bankrupt Act of Congress.

This action is based upon the Article 3027 of the Louisiana Code, which is as follows : “ When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties, in proportion to ihe share of each ; but this remedy takes place only when such person has paid in consequence of a suit instituted against him.” The terms of this article presuppose a joint liability to a common obligee, which has been discharged by one of the joint obligors. Two opinions have divided the French jurists as to the foundation of the recourse which is given to the surety'who has paid the debt, against his co-sureties, for a contribution, or proportionate reimbursement. When the Article 2033 of the Code Napoleon (from which our Article 3027 has been copied) was under discussion in the legislative body which created that Code, these two opinions were stated as follows, by two of the members : “La caution qui paie, est subrogee (said the Senator Treilhard,) aux droits du créancier: la caution peut done exerccr contre les cofidéjusseurs, chacun pour leur part, les droits que le créancier exercerait lui-méme s’i'l n’ótait pas payé.” And the tribune Chabot observed : “ Celui des fidéjusseurs qui paye la dette, fait réellement l’afifaire de ses cofidó-jusseurs, en métne temps qu’il fait la sienne et cello du débiteur, puisqu’en payantil libére ses confidéjusseurs, commeil se libére lui méme, déla dette, qui leur était commune á tons. II cst done équitable, puisqu’ils profitent tous du paiement, que chacun d’eux en supporto sa part.”

The learned Troplong decides (Traité du Cautionnement, No. 421), that both opinions are admissible — that there is both a legal subrogation in favor of the' surety who has paid, according to Articles 1251 of the French Code, (which is identical with our Article 2157,) and an equitable action upon the quasi-contract negotiorum gestorum, as recognized by Pothier, Traité des Obligations, No. 446. According to either view, the party from whom contribution is demanded, must have been himself under a legal obligation to pay, at the time payment was made by him who demands the contribution.

The defendant’s plea of res judicata avers that he was under no such obligation; that when payment was made by Ledoux, it had already been judicially decided, that Durrive was not indebted to the obligee of the bond, subscribed by Ledoux and Durrive, as sureties of Duplessis. The plea is in the following-words : “ And respondent further answers and says, that some time in the year 1844, the Louisiana State Bank commenced suit against James Duplessis, Amcvron Ledoux, and this respondent, in the First Judicial Dictrict Court, said cause being numbered on the docket of said Court No. 23,558, being the same cause in which the Louisiana State Bank recovered judgment against the plain-tiffin the present suit, which judgment is the pretended foundation of plaintiff’s right to recover from respondent in the present suit. Shovys, that he and plaintiff were sued by the Louisiana State Bank upon their bond executed as surety for said James Duplessis, and that after full hearing and argument there was a final judgment in said cause in favor of respondent, which judgment he pleads as res judicata in the present suit.” The evidence in the cause shows that the suit mentioned in this plea, was instituted in October, 1844; that judgment was rendered in said suit, on the verdict of a jury, in favor of the defendants, Ledoux and Durrive, and against the defendant, Duplessis, on the 7th January, 1848.”

It is admitted of record, that no appeal having been taken from the judgment in favor of Edward Durrive within the year, said judgment became final and conclusive ; that an appeal was taken from the judgment in favor of Le-doux, on which appeal said judgment was reversed, and judgment was rendered by the Supreme Court, at the December term, 1848, against Ledoux, and in favor of the Louisiana State Bank, for twelve thousand dollars, with interest and costs. It is further proved, that said judgment was satisfied by Ledoux on the 28th December, 1848, by the payment of twelve thousand dollars to the Cashier of the bank.

The judgment of the First Judicial District Court in favor of the present defendant, and against the Louisiana State Bank, perhaps does not amount to a technical bar of the present action. To have that effect, it should have been rendered in a suit, between the same parties, and for the same cause of action. But that judgment makes proof against those who were parties to the action, and those claiming through or under such parties, of the truth of what was decided thereby. Now both Ledoux himself, and the bank under whom Ledoux claims in this suit, were parties to the action in which the judgment in question was rendered. The cause of action in suit No. 23,558 in the First Judicial District Court, was a debt by contract of suretyship, claimed to be due to the plaintiff, the Louisiana State Bank, by Durrive and others; and the judgment in the suit “ for the defendant, Durrive,” decided that nothing was due on the contract by Durrive to the bank — that there was no obligation, on the . part of Durrive, to pay the bond sued on. That decision has taken away the foundation of the present action; for the payment of the bond by Ledoux could not, thereafter, be considered as relieving Ledoux and Durrime from a common burden, which is the sole valid ground of a claim for contribution. Story’s Equity, No. 492.

Our opinion upon this point, renders it unnecessary to examine the effect of the discharge in bankruptcy, which has been also pleaded in bar of- this action.

Judgment affirmed', with costs.

Rehearing refused.