author: Labattve, J.

text:
    No. 1626.
    William McWillie v. John Perkins, Jr.
    A party lias a right to move for a new trial within three judicial days from the rendering of the judgment, notwithstanding the judgment may have been previously signed; provided, the Court has not adjourned before the expiration of the three days.
    A judgment is inchoate during the dolay allowed to move for a new tana); and the signing thereof pre vious to the expiration of that delay will not make the judgment final.
    A judgment granting a new trial is an interlocutory order trom which no appeal lies.
    APPEAL from the District Court, Parish of Tensas, Farrar, J.

      Sparrow & Montgomery, for appellant.

      Thomas P. Clinton, for appellee.
   Labattve, J.

In this case, on tho 14th November, 1867, the Court below rendered a judgment which was signed before the expiration of three days. On the 16th of same month and year, the Court rendered an order, as follow's:

“In this case the judgment rendered, having been signed before the expiration of three days, and the Court being of opinion that the judgment, as signed, was improperly rendered, it is ordered by the Court, ex-officio, that the judgment be set aside, and the case tried d? novo.”

To this ruling of the Court, plaintiff took a bill of exceptions, and he appealed from said decision.

As the law stands now, any party has the right, within three judicial days, to move for a new trial, notwithstanding- the judgment may have been prematurely signed, unless the court had adjourned sooner. C. P. Art. 558; Statutes 20th March, 1839, p. 164, Sec. 10; 5 N. S. 244; 4 An. 561. 6 An. 251.

The record shows that the court was in session 22d November, 1867, and that the judgment could not have become final before three days, by the adjournment of the court. It is well settled that a judgment is inchoate until the expiration of the delay allowed to apply for a new trial, and it is but then that the signature of the Judge can make it final. A judgment, granting a new trial, is interlocutory and not final, operating only a postponement or a continuance; it does not cause an irreparable injury; therefore no appeal lies in this case. C. P. Art. 566; 9 L. 161; 15 L. 521; 2 An. 964; 3 An. 217; 12 An. 87. We consider the case now pending below on a new trial, and it must take its course. The reversing of the order granting a new trial, could not have the legal effect of restoring the original judgment, which is open and not subject to our action.

The appeal is dismissed, at the costs of the appellant.


source: Caselaw Access Project

author: Idsdet, J. InsnEV, J. Hyman, C. J.

license: Public Domain

text:
    No. 51.
    Thomas Edwards, Curator, v. Rice C. Ballard.
    The character of an action is determined by the prayer of the petition for judgment.
    The action en declaration de simulation is one of revendication, and has for its object to have the contract declared judicially a simulation and nullity.
    An action to recover the price >f property old, where the vendor alleges that the sale was a simulation, is one sounding in damages, and is prescribed against by the lapse of one year. O. O. 3501.
    No prescription lies against the United States.
    APPEAL from the District Court, Parish of Madison, Farrar, J.

      Alex. T. Sleele and B. O. Stockton, for plaintiff.

      Alonzo Snyder, Ed. Sparrow and II. M. Spofford, for defendant.
   Idsdet, J.

This is the second time this case comes before this Court; the first appeal, reported in 14th Annual, p. 362, having been taken by the plaintiff from a judgment against him, and the last, by both parties from a verdict and judgment in favor of the plaintiff and against the defendant, for the sum of one hundred thousand dollars.

This Court, in its opinion rendered on the first appeal, considered the action as one “for the recovery of lands and slaves, alleged as being in the defendant’s possession by virtue of a simulated sale from Silas Lillard,” of whose vacant succession the plaintiff is the curator, and the Court said that the prescription of one, five, and ten years did not bar the action, which was en declaration de simulation.

The defendant contends that the Court misapprehended the true nature or character of the plaintiff’s action; that it was not one for the property, or to have the sale attacked, declared a simulation, but one in which a money-judgment exclusively is prayed for, and that the action is a mere personal one, or one sounding in damages.

By the decree of this Court in the first appeal, the case was simply remanded to the District Court for a new trial, the Court below being instructed to apply certain legal principles; but nothing in this decree precluded a re-examination of all questions presented which are still open. Marigny v. The Union Bank, 5th Rob. 366, and also, in 12 Rob. 283; Pepper v. Dunlap, 5 An. 200; Millaudon v. Davis, 17 An. 97; Marcadé, Vol. 5, 386.

In order to determine the character of an action resort must be had to the prayer in the petition for judgment. 10 La. 109; 1 Rob. 109; 10 An. 157; and also the prescription applicable to it. 12 An. 357, and 13 An. 609.

The action en declaration de simulation is an action to have a contract declared judicially a simulation and a nullity, to remove a cloud from the title, and to bring back, for any legal purpose, the thing sold to the estate of the true owner. It is essentially one in revendication and never of condition. The present action, tested by the prayer of the petition, lacks the essential features of an action eh declaration de simulation. The prayer does not ask that the sale be declared simulated and null, it only asks for money, the value of Dillard’s property alleged to be held by simulated title, by Ballard since 1840.

The action en declaration de simulation might have been resorted to by the plaintiff for the largest part (more than 19-20 of the whole property) as that was in the possession of Ballard and of Mrs. Lillard, his alleged particeps fraudis, when this suit was brought, for the plaintiff says that a considerable portion of the lands, which he values at §132,000, was conveyed by Ballard to her without any consideration, as her part of the spoils, and to seal her lips. To that part of the lands, conveyed by Lillard to Ballard in detached parcels, which Ballard sold to Mrs. Lillard, the vendor, Lillard, never had any title at all, for in his act of sale to Ballard, the title is stated to be in the United States, against whom no perscription lies.

Whether that circumstance caused the resort to the present action for a money-judgment is perfectly immaterial. Our action is confined to the case as it is now presented to us; and we deem the pleas of prescription, under the pleadings, a bar to the plaintiff’s present action, which we deem a personal one, if not one for danrages. See articles 3501 and 3508. O. O.

A suit growing out of the sale from Lillard to Ballard, passed on 28 th April, 1840, had been instituted by the present plaintiff against the defendant; but that suit did not interrupt prescription, as it was voluntarily discontinued by the plaintiff. C. C. 3485; Denniston v. Rist, 9 An. 464; Smith v. Gibbons, 6 An. 684.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment of the District Court annulled, avoided and reversed; and it is futher ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the defendant, Rice O. Ballard, or his succession, and against the plaintiff and the vacant succession of Silas Lillard, and that the said vacant succession pay all costs of suit in both courts.

On Rehearing.

InsnEV, J.

A rehearing was granted in this case on the petition of the plaintiff’s counsel.

He has not contested any statement of law or fact in our original opinion, but he now urges that his oase should be taken out oí prescription, because he asserts that Ballard was a depositary of property owned by Lillard’s creditors, and that no length of time can give a valid title when the original title was to him as a trustee.

This is not a suit for the recovery of a deposit, nor is it a suit for any specific property. It is an action for money, and we are greatly aided in determining the nature and classification of an action like the present one by the decision of our predecessors in the case of Nouvet, Syndic, v. Bollinger et al., 15 An. 293. We quote the language of that decision“The plaintiff claims that the insolvent, Ballelin, made a donation of the slave Ellen Shockley to Mrs. Bollinger (who had full knowledge of his insolvency) in order to place her beyond the pursuit of creditors, and avers the nullity of, the act of donation, whether, deemed 'fraudulent or not. The plaintiff also avers that said slave has disappeared from the possession of the insolvent and Mr. and Mrs. Bollinger, and petitioner verily believes was sold by Mrs. Bollinger for $700, to some distant purchaser. ”

The Court, upon this statement of the allegations, remarked: “If the defendant’s ancestor parted with the slave for the express purpose of defeating the rights of creditors, there can be no doubt that an action will lie to recover the value of the slave so sold or removed. The ariion is well known in the civil law as the action de alienatione judicii muiandi causa facta. And so it is said concerning such sale, Hague si alterius provincia hominem, aut potenliorem nobis, appossuerii adversarium, tenebitur. Dig. 4, 7,1. So Mackelday, says: ‘ ‘ Lorsque l’aliénation, qui n’est jamais reseindée elle-méme, consiste en ce que le possesseur d’une chose l’aliene dans la crainte d’etre actionné relativement á cette chose, celui á qui cette alienation porte prejudice a une action in faclum en dommages-intérets contre celui qui aliene.” Partie G-énérale, see. 256, edition 1846, See also, 7th Savigny, sec. 316, No. 1, to the same effect.

“The action under our law is included under the general provisions of article 2294 of the Civil Code. ”

Again, in the same case, the Court said: “We can see no good reason why he (the syndic) should not also be permitted, by the aid of courts of justice, to recover damages for property destroyed or abstractedfrom the mass, when otherwise there would be a failure of justice.”

A suit of this character having thus been decided to be a suit for damages, authorized by that article of our Code, which provides that “ every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.” The prescription applicable to this suit is obviously that of one year. Civil Code, Art. 3501.

The only remaining question is, when did this prescription of one year commence to run?

Art. 3502, declares that the prescription mentioned in the preceding article runs from the day “the damage was sustained,” du jour ou l’injure, le trouble ou le dommage á été souffert.

There is a rule, not formally announced in the Code, but fully recognized in our jurisprudence, that prescription does not run while there is an inability to sue: Oonirct non valentem agere non currit prcescriptio. The converse of this maxim is equally true, Contrd valentem agere currit prcescriptio.

It has been held in numerous cases, that prescription attaches to a right the moment it can be exercised. Hennen’s Digest, Prescription, Y. (a) No. 2.

It is manifest that the plaintiff could have exercised the right of bringing this action more than one year before he did, and that the damages, if any, sustained by Dillard’s creditors, through the fraudulent acts alleged against Ballard, were sustained many years before this suit was brought.

The plaintiff in his various pleadings in the record, discloses that all the acts of Ballard, for which the damages are claimed, were known to him more than a year before he concluded to seek the remedy he is now pursuing. There was nothing to prevent him from seeking that remedy within the period limited by law for such an action, and as the prescription, sustained by our judgment, is one liberandi causa, it is immaterial whether the defendant has acted in good faith or not. C. C.349G. The neglect of the creditor operates the prescription in this case.

For these reasons, and those given in our former opinion, it is now ordered, adjudged and decreed, that the judgment heretofore rendered in this case, remain undisturbed.

Hyman, C. J.

The law of Louisiana permits persons to make simulated sales, that is to change, apparently but not really, the ownership of property.

If they are made for the purpose of defrauding creditors or not, they and those who may have claims or rights against the pretended vendor, may disregard and treat them as nullities; no other persons can do so.

The pretended vendee is but the agent of the pretended vendor, and he is responsible like any other agent to his pretended vendor, (who is his principal,) for malperformance of his duty, and prescription of ten years, only destroys the right of action of his principal for damages caused by the malperformance of duty. Oivil Code, 2956, 2971, 3508.

Judge Labauve concurs with Judge Hyman.


author: Ilsley, J.

text:
    No. 1515.
    State of Louisiana, ex rel. E. Bermudez, v. E. Heath, Mayor of New Orleans.
    The city of New Orleans in her corporate capacity must be regarded and treated as an individual person, and when she enters into a contract with a third party through her officers by authority of an ordinance of the common council, the city is not at liberty to annul the contract so made by an ordinance repealing the one authorizing the contract: having made the law she is bound by it.
    City ordinance No.708, contracting with E.Bermudez, an attorney-at-law, who was at the time assistant city attorney, to collect all bills for taxes assessed on property as unknown, and all unsatisfied judgments in favor of the city for taxes, does not violate the city charter, nor does it conflict with any of the rights of the assistant city attorney.
    The duties involved in this contract do not embrace any of the duties, or include any of the emoluments of the office of assistant city attorney.
    The right of the city to employ an attorney-at-law conversant with city affairs, to facilitate the collection of debts due her, is unquestionable,when in so doing she does notinfringe on any of the rights of her officers.
    APPEAL from the Sixth District Court of New Orleans, Leaumont, J.

      T. Wharton Collens, for relator and appellee.

      J. H. New, for sheriff and appellee.

      S. S. Fish, City Attorney, for appellant.
   Ilsley, J.

This is an appeal by the City of New Orleans, from a judgment on a rule, directing the sheriff of the parish of Orleans to pay over to the relator and appellee, all sums actually and hereafter realized by him, in execution of certain unsatisfied judgments.

The relator, who is an attorney-at-law, grounds his pretensions upon, a certain contract, evidenced by a city ordinance, of which the following is an extract, viz:

“Resolved, that the collection of all said bills and judgments (explained in the ordinance,) shall remain exclusively entrusted to E. Bermudez, individually, who, by agreement, shall be entitled in full compensation of all his services to half the excedent of the face of the claim. Provided, that where he does not collect, he shall not have any claim against tho city for remuneration. ”

In bar to the rule taken by the relator, the city, without denying tho relator’s services, pleads that the relator having ceased to be assistant city attorney, and a successor having been appointed to him, the right to collect such judgments appertains to the latter only.

The city also pleads the illegality and repeal of the ordinance.

In answer to the first objection, it suffices to remark that the relator does not assume in this proceeding to act as assistant city attorney, and by law, that officer is forbidden to receive city money. Act 1859, page 140, sec. 7. The second ground does not appear to us more tenable.

There is nothing in the ordinance in question in conflict with the city charter, and this seems to have been conceded by the city, who acquiesced in the judgment, ordering the publication of the said ordinance, in which proceeding that construction was put by the Judge of the court below, upon the validity of the ordinance, as tested by the charter.

There is no conflict between the contract and the sections 107 and 127, of the city charter. The former refers to tax-bills, annually remaining in the treasurer’s hands after publication of the names of the delinquents, in alphabetical order, and to be put in suit; the latter concerns officers receiving a salary or compensation from the city.

The contract under consideration embraces claims not included in section 107; the assistant attorney is not remunerated by the city, and is not required by law to perform the labor which forms the subject-matter of the agreement in the case. 18 An. 666; 19 A. 274.

It was certainly legally competent for the city, with a view to accelerate the payment of debts due to her, to employ, as she did, in this case, an attorney-at-law conversant with city affairs, and in doing so, she did but promote the public interest, without infringing the rights of any of her officials, particularly of the assistant city attorney, whom the law allows no commission on judgments not obtained by him. See Bright v. Hewes, 18 An. 666.

The agreement” relied on by the relator, evidenced by ordinance 708, was not revoked by the ordinance produced on the trial by the city.

The former refers to a class of taxes due by delinquents not cited, and to certain unsatisfied judgments; the latter alludes to taxes due by delinquents already cited by advertisements, but not actually in suit, and therefore has no reference to judgments of any description. Besides, the ordinance last mentioned directs the enforcement of the collection of the city clues specified, wherever the law will permit.

It seems clear that this restriction was placed to prevent any conflict between the resolution and the relator’s contract. But what right could the city have to revoke her contract, impair her obligations and divest the relator of his vested rights? She made her own law and must abide by it. Civil Code 1757, 1895 and 1940. Rice v. Schmidt, 11 La. 72.

As we said in Kaiser v. New Orleans, this Court can only “view the city as any other contracting party,” and it will not sanction the revocation of contracts made by her, because she may find them onerous or incongruous, which she does not pretend that this contract is.

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


author: Labauve, J.

text:
    No. 1622.
    Joseph Cordill, Under-tutor, v. Succession of John McCullough.
    An intervenor cannot contest the right of plaintiff to bring the suit, or stand in judgment; he must take the suit as he finds it.
    An exception to the right of action must be made in the lower court. It will not be noticed if made for the first time in the appellate court, in the briefs of counsel.
    "Where money has come into the hands of the administrator belonging to the wife and heir of the deceased father, and he applies it to the payment of debts due by the succession, no tacit mortgage exits on the property of the succession in favor of the wife or the heir: money coming into the succession in this way constitutes a debt against the same, and must be reimbursed to the parties owning it, in due course of administration, as a debt due by the estate, and not a debt due by the deceased.
    PREAL from the District Court, Parish of Tensas, Farrar, J.

      Farrar & Beeves, for appellants. Aroni & Gottier, for appellees.
   Labauve, J.

This suit is brought by plaintiff, as under-tutor to the minor Robert McCullough, against the succession of John McCullough, represented by Hamilton McCullough, as administrator, and who is also tutor to the said minor, to recover the sum of $8,987 80, with interest from March 11th, 1860, and with a mortgage on the property of said succession.

The petition alleges in substance that John McCullough died in August, 1859, leaving two minor heirs; Hamilton McCullough, issue of his marriage with Louisa Jones; and Robert McCullough, issue of his marriage with Orleans Harris. That Hamilton McCullough, a brother of the deceased, was duly appointed as tutor to said minor, Robert, and as administrator to the said estate. That the said minor inherited from his mother, Orleans Harris, the sum of $8,987 80, which sum was duly paid by his grandmother, Mrs. Caroline Truman, to the said Hamilton McCullough, tutor and administrator as aforesaid, who appropriated the same towards paying a portion of the debts of the estate of said John McCullough, due Washington Jackson & Co. That the said sum was the paraphernal property of the minor’s deceased mother, and secured by a tacit mortgage on all the property belonging to said estate.

The petition concludes by praying accordingly.

Hamilton McCullough, in his capacities of tutor and administrator as aforesaid, answered that he admitted that he had received the said sum, on the 12th March, 1860, and appropriated the same to the payment of so much of the indebtedness of said John McCullough to Washington Jackson & Co., of New Orleans; that said amount was the same coming to the mother of said minor, Robert, from the estate of her father, William Harris, and was by Mrs. Caroline Truman (the mother of the mother of said minor, Robert,) deposited with Britton &Co., bankers, of Natchez. That said sum was the paraphernal property of said minor’s mother, and should have been invested by respondent for said minor.

He prays that he may be relieved from all blame, on account of his not having legally invested said sum, and that he may be hence dismissed, with costs.

The Court below, after hearing the evidence, gave judgment against the estate, for the amount claimed, with a mortgage on all the property of said succession.

Mrs. Martha Brannin, alleging herself to be a creditor of said estate, as natural tutrix of her minor children, applied for and obtained an appeal, on averring that said judgment was erroneous.

George W. Koontz, testified that he was acquainted with Joseph Cordill and H. McCullough, and also with the late John McCullough; he thought the late John McCullough did marry Orleans Harris, daughter of William and Caroline Harris. That on the 10th March, 1860, he gave H. McCullough the check of W. A. Britton & Co., on the Canal Bank of New Orleans, for $8,987 80, in favor of W. Jackson & Co., the same being for a like sum which stood to the credit of John McCullough, which was placed to his credit, by McCullough, Harris and Harris, supposed by him to be the share of McCullough’s heirs, out of $15,228, paid by George Balsón to McCullough, to Harris and Harris; that the $8,987 80, was for $9000, less $12 20. That the money ($15,228) was paid to McCullough, Harris and Harris, out of which they paid or transferred $8,987 80, to John McCullough on the 6th March, 1860; and on the 10th March, 1860, the same was paid, as above stated, to Hamilton McCullough, administrator, in the check of W. A. Britton & Co., on the Canal Bank. This witness was a member of the banking firm of said W. A. Britton & Co.

An account rendered by said administrator, Hamilton McCullough, and duly homologated and introduced in evidence, shows that said administrator did receive in his said capacity as coming from Mrs. C. Truman, said sum of $8,987 80, and paid the same to W. Jackson &Co., as creditors of said estate.

The appellant’s counsel contend in their brief that the plaintiff has no right to bring this suit as under-tutor; no such exception was made below; and the appellant who is considered as an intervenor, has no right to make it, and she must take the ease as she finds it. 3 L. 182;. 8 R. 128; 3 A. 222; C. P. Arts. 392, 393; 19 L. 154.

The record, very far from showing that the sum herein claimed had been received by the deceased husband, or disposed of for his individual interest, informs us that the same was actually received by the adminis-. trator of his succession about seven months after his death; therefore, there can be no tacit mortgage in favor of his wife or his heir. C. C. Art. 2367. Nor does the record show that the said debt was due during the life of the deceased, and had come under his administration as tutor to his said minor child; consequently there is no mortgage in favor of said minor as claimed. C. C. Art. 3281. But, as we have seen, this amount having been received by the administrator, and used in paying debts of the estate, must be reimbursed by said succession, as a charge against the same, and not as a debt due by the deceased. 18 An. 721.

It is therefore ordered and decreed that the judgment appealed from, be annulled and avoided. It is further oi dared and decreed that the administrator of the estate of John McCullough pay to the representative of the minor, Robert McCullough, in due course of administration and according to law, the said sum of eight thousand nine hundred and eighty-seven dollars and eighty cents, with legal interest thereon, from the 12th of March, I860, till paid, as a charge of the estate proper and not of the deceased, according to the rule laid down in the case of Succession óf P. jO. Lauve, and the authorities therein quoted. 18 An. 721.

It is finally decreed that the said estate pay the costs below, and the minor those of this appeal.


author: Tlsley, J.

text:
    Nos. 1570 & 1571.
    Edward J. Gay.—For a Monition.
    A final judgment rendered in chambers in a monition suit is null. Section 32, Acts of 1855, No. 344, does nob apply to such a case.
    PPEAL from the District Court, Parish of Iberville, Posey, J.

      S. Matthews, for plaintiff.

      Talbot <& Petit, for defendant.
   Tlsley, J.

As both these appeals are taken with the view of having a certain judgment, homologating a judicial sale, annulled and set aside, they may be properly examined together.

It is needless to look into the judgment itself to ascertain if it is sustained by proper and sufficient evidence, as we are satisfied that the rendition of it in the Judge’s chambers, and not in open court during term-time, is fatal to it.

A Judge may grant certain orders in chambers in virtue of the power conferred upon him by section 32 of the Acts of 1855, No. 344; but the word “orders,” as used in this section, does not comprehend final judgments in monition suits, which are conclusive even against minors.

An opposition to a monition may be filed in court at any time, so long as no action of the Court, or of the opposite party, has intervened to conclude that right, and as a Judge, in taking up a monition case, must be satisfied that every opposition, at the moment pending, is before him, it would be in most cases impracticable for him to be satisfied on this point, particularly, when, at the time ex parte application is made to him to homologate a judicial sale, he is at a distance from the court wherein the proceeding is pending.

We adhere to the doctrine in Love v. Banks, reported in 3d L. R. 482, in which the Judge of the lower court had cited the parties in an injunction suit to attend “at a court of chambers,” where, regardless of the plaintiff’s exception, a trial was had.

■ To sustain the regularity of this proceeding, the Judge relied upon articles 741, 756 and 757 of the Code of Practice, the first of which provides “that the plaintiff may compel the defendant to prove, in a summary ¡manner, before ihe Judge, the truth of the facts alleged in the opposition,”

And this Court observed, “We see nothing in the these provisions which authorizes a Judge to cite parties before him and try a cause a& his chambers. The law has appointed particular times and places for tl#b hearing of cases in. each parish. The terms of the court are fixed, cm reasons of utility to the public, and for the convenience of suitors. Thei^ inconveniences attending the practice pursued in this instance are so weighty and numerous, that without an express declaration of legislative will, we cannot presume such a course of proceeding was contemplated.”

The 5th section of the monition law, Acts 1855, No. 331, p. 464, places the Judge in the same position in that class of cases, as in any other matter of judicial action. He is to receive evidence, consider its'sufficiency and effect, and having applied his judicial reason to the subject-matter, decide the case presented. (Moore v. Knapp, 7 An. 22.) And there is nothing in that section or in any other provision of the law, that makes the trial of such a case, as to time and place, exceptional from that of any other judicial proceeding, to be tried in open court, which the law requires.

The judgment rendered by the Judge in chambers is null and void.

It is therefore ordered, adjudged and decreed, that the judgments appealed from, to-wit: the judgment on the rule in No. 1570 and the judgment homologating the judicial sale to Edward J. Gay, in No. 1571, be and the same are hereby annulled, avoided and reversed.

It is further ordered, adjudged and decreed, that the cause be remanded to be proceeded in according to law, the appellee paying the costs of appeal.

Labauve, J., recused.


text:
    No. 1534.
    State of Louisiana v. The Judge of the Fourth District Court of New Orleans.
    The commencement of proceedings for the forfeiture of the charter of an incorporated company by one party, in one of the District Courts of New Orleans, does not divest the other District Courts of jurisdiction in similar proceedings by other parties.
    A writ of prohibition will not lie to prohibit the Judge of an inferior court from proceeding further in the cause where it is shown that he is vested with jurisdiction over the case.
    V BIT OF PROHIBITION.

      B. L. Lynch, Attorney General, for State.

      G. Schmidt, for plaintiff.
   Labauve, J.

This is upon a writ of prohibition directed to the Judge of the Fourth District Court of New Orleans.

The petition of the State of Louisiana substantially alleges that, on the 17th December, 1867, petitioner began proceedings in the Sixth District Court of New Orleans for the forfeiture of the charter and dissolution of the corporation named “ The Citizens’ Mutual Insurance Company of New Orleans; ” that, on the same day, the said Sixth District Court ordered that all legal proceedings on behalf of individual creditors against the said corporation be stayed during the pendency of said proceedings. That the sheriff of New Orleans, and the clerks of the District Courts of New Orleans, he notified thereof. That Omer Gaillard, president of said company, be enjoined from confessing any judgment, or paying or disposing, or assigning any funds or assets of the said company. That in disobedience and contempt of this order, the following proceedings were carried on in tho Fourth District Court of New Orleans, in tho caso of David Connors, for the benefit of August Kœning v. Citizens’ Mutual Insurance Company, No. 19,692, of the docket of said Court, to-wit:

The sheriff returned a fieri facias, on the 21st of December, 18C7, when the seventy days to return the same, would have expired only on the 1st of February, 18GS. That said return was filed by the clerk on that day, and that on tho same day G ustavus Schmidt, Esq., on behalf of the plaintiff, in said case, moved tho Court, ex parle, to decree, instanter, the forfeiture of the charter of said corporation, and to appoint a commissioner to liquidate its affairs, and to take possession of its assets, which motion was granted by tho Court on the spot.

The petition further represents that by filing the petition of the State, on the 17th December, 1867, for the forfeiture ofsaid- charter, and dissolution of said corporation, in the Sixth District Court, the jurisdiction had attached, and all the other District Courts were ousted of any jurisdiction in the premises. That all the proceedings had in said case, in the Fourth District Court, since the 17th December, 1867, as well as all qrders and decrees of said Court are null and void. That the sheriff and the clerk of said Fourth District Court, the said Connors, the said Bczou, and all practising attorneys before the said court, and the Judge of said court, should be prohibited from doing any act of disobedience to the Honorable the Sixth District Court. That all matters connected with the forfeiture of the charter of said company should be dismissed from the Fourth District Court, or suspended until a decision in the case pending before the Sixth District Court. That petitioner has in vain asked relief, and submitted the question of jurisdiction to the Fourth District Court, and that no other adequate remedy is left but a writ of prohibition.

The petition prays that a writ of prohibition do issue prohibiting Honorable P. E. Théard, Judge of the Fourth District Court of New Orleans, from taking cognizance of any matter at issue for the forfeiture of the chapter of- said company, in the Sixth District Court, &c.

The Judgo of the Fourth District Court has filed a long argumentative answer, going to show that he has jurisdiction.

The writ of prohibition is a mandate directed to inferior Judges, when they exceed the bounds of their jurisdiction, forbidding them to proceed fürthér in the cause, on the ground that tho cognizance of said cause does not belong to such Judges, but to others, or that they are not competent to decide it. Arts. 845 and 846, Code of Practice.

The only question before us, as the case stands, is whether or not the Fourth District Court of New Orleans, has jurisdiction. 'We are of opinion that it has, and the writ of prohibition was not the proper and legal remedy, when a writ for the same cause and object was pending before another Court of concurrent jurisdiction. Even admitting, which we do not decide, that the State has the right to sue for the forfeiture-of the charter of said corporation; it is also clear that a creditor of said company has the same right under the law. Act of 1855, No. 131, sec. 6. The question might have been brought up before us in another form and under different proceedings, but which it is not our duty to suggest.

Let the writ of prohibition be set aside and the proceedings be dismissed.


author: Labatjve, J.

text:
    No. 1176.
    Mary Tournillon, and her husband, Cottman, v. William B. Ratliff.
    The amount of the bond, for a suspensivo appeal from an order of seizure and sale, must be one-half over and above the amount actually duo at the date of the order.
    The consent of the appellee to the dismissal of the appeal, will release the security on the appeal bond.
    APPEAL from the District Court, Parish of Assumption, Beauvais, J.

      Mills & LeBlanc, for plaintiffs and appellees.

      Carver & Sims, and A. P. Lane, for defendant and appellant.
   Labatjve, J.

On the 21st of July, 1860, the plaintiff, Mary Tournillon, assisted by her said husband, obtained an order of seizure and sale, against Julien Tournillon, directing the sheriff to seize and sell certain property of said Julien Tournillon, to satisfy the sum of §18,793 94, with interest at eight per cent, per annum, on §5,000, from the 1st of April, 1858, and on §13,793 94, from the 1st of April, 1859, subject to a credit of §1,000 paid on the 12th of June, 1860; and the further sum of $13,793 94, payable in all March, 1861, and bearing interest at eight per cent, per annum' from time due.

Julien Tournillon, the debtor, on the 26th of July, 1860, took a suspensive appeal to this Court, from said order of seizure and sale, and gave an appeal bond according to law for the sum of $36,000, with the defendant, William B. Ratliff, as his surety.

On the 31st January, 1861, the appeal was dismissed by this Court, by the following decree:

“On motion of J. II. Ilsley, Esq., of counsel for defendant and appellant in this case, and on filing the annexed consent of Mills <fc LeBlanc, Esqs., of counsel for plaintiffs and appellees, it is ordered that the appeal in this case be dismissed at the costs of the appellant.”

This agreement reads thus:

“It is hereby agreed that the transcript filed in this case be withdrawn as filed through error. ”

(Signed) “ John H. Ibseey, for appellant.”

(Signed) “Minns & LeBbanc, for appellees.”

This suit is now thought against the defendant as surety on said appeal • bond.

The petition alleges that the plaintiff obtained an order of seizure and sale; that said Julien Tournillon took a suspensive appeal, which was dismissed, the whole as above stated. The petition further states, that a writ of execution issued upon said judgment, and was returned unsatis! fled, as appears from the return of the sheriff, for the reason that said Tournillon, since said appeal, became insolvent, and made a surrender of his property, and it was accepted on the-1861, by the Court, for the benefit of his creditors, and a stay of proceedings was granted against his person and property. That the appeal bond is now forfeited, and petitioners entitled to claim payment from William B. Ratliff, the defendant and surety on said bond.

The petition concludes by praying accordingly for judgment against the defendant.

The answer contains a general denial, admits defendant’s signature to the said bond,'but denies specially that he was at any time legally bound as surety on said bond; but if bound, then this obligation was conditional and never became absolute, because he has been released legally from all and every liability thereon.

He prays that the demand of the plaintiffs be rejected at their costs.

The District Court, after hearing the evidence, gave judgment for plaintiffs, and the defendant took this appeal.

The defendant urges two grounds of defence in this Court:

I. That the appeal bond, being for $85,000, only, was insufficient for a suspensive appeal, and did not suspend execution; and, therefore, defendant can only be held liable as if the. appeal asked for were a devolutive one.

II. That the appeal was withdrawn by the appellant, with and by the consent of the plaintiffs and appellees in that case, and the surety on the bond was released.

1, As to the first ground, it is clear that the appeal bond covered by' one half over the amount actually due, at the time the order of seizure and sale was granted, and suspended execution; the amount, not then actually due, could not be taken into consideration, its payment was suspended by the terms agreed upon without any bond.

2. The second ground, as to the dismissal of the appeal, presents more difficulty.

This ground involves a question of interpretation as to the agreement upon which the dismissal of the appeal is founded.

We are satisfied that the Court and the parties took this agreement as authorizing the dismissal of the appeal, and the Court acted accordingly; the parties are presumed to have been in Court, and to have acquiesced in the decree, they having made no objection, this agreement having been' executed in that manner, and acquiesced in by the parties, we presume’ that this was the intention of the parties. C. C. Art. 1951.

We now come to the question, whether or not, the dismissal of the appeal, with the consent of the appellee, discharged the surety on the appeal bond.

The condition of this appeal bond is as follows:

“Now, the condition of this obligation is such, that'if the said appellant shall prosecute his said appeal, and satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in his appeal, then this obligation to be null, void and of no effect, otherwise that the surety be liable in his stead.”

The question of liability of the surety upon the bond, must be tested ' under the dispositions of Art. 901, Code of Practice, reading thus:

“When the Supreme Court once has jurisdiction of an appeal, whether by transmission of the record, or by that of the service of the citation served on the appellee, it cannot, in any case, permit the appellant to withdraw his appeal without the consent of the appellee, and the cause shall take its course, whether the appellant make default or not.”

Now, it is a well-settled rule of law, that all laws governing certain contracts, make parts of such contracts. (12 M. 177; 12 An. 720.) Following that rule, it was impliedly understood and agreed between the parties to the bond of appeal, including the appellee, as a kind of proviso, that after the Supreme Court had jurisdiction of the case, the appellant would not be bound to prosecute his appeal, and would be allowed to withdraw it, if he obtained the consent, to that effect, of the appellee; this having' been done accordingly, the appellant was not bound to prosecute his appeal, and he was released from that penal obligation by the appellee, who cannot now with good grace, say to the surety: Your principal has broken1 the condition of the bond by not prosecuting his appeal, and you must pay me the penalty. The surety can reply successfully: You have by your own act and consent, dispensed and relieved the principal obligor from that prosecution under the understanding in the bond.

We are of opinion that the defendant has been discharged as surety on the bond, by the act of the appellee.

It is therefore ordered and decreed, that the judgment appealed from be reversed and annulled. It is further ordered and decreed, that judgment be rendered in favor of - defendant and appellant, and that plaintiffs and appellees pay costs in both courts.'

Ibsbey, J., recused.

Rehearing refused.


author: Hyman, C. J.

text:
    No. 1566.
    Julien Tournillon v. His Creditors.
    By the act of the Legislature of March 15th, 1855, the Judge of the District Court is empowered under certain circumstances to authorize the sheriff to perform the duties of syndic of the creditors of insolvents.
    The decree of the Court authorizing the sheriff to perform the duties of syndic, is an appointment to that trust, and must have its effect, until reversed on appeal, or set aside by direct action of nullity.
    Where the sheriff has been designated as syndic of the creditors of an insolvent by decree of tho Court, no other person can be appointed until the appointment of the sheriff has been revoked or annulled.
    APPEAL from the District Court, Parish of Assumption, Beauvais, J.

      Benjamin, Bonford & Finney, for plaintiff.

      Belcher & Beatty, and Clarke & Bayne, for A. Shiff, appellant.

      Gentile & Whittington, for E. Yives, appellee.
   Hyman, C. J.

The District Judge decreed that the sheriff of the parish of Assumption he authorized to perform the duties of syndic of the creditors of Julien Tournillon, an insolvent.

The sheriff, after the decree, applied for and obtained an order of Court, calling a meeting of the creditors of the insolvent, to deliberate and decide as to the best mode of disposing of the property surrendered by the insolvent.

Arthur Shiff, a creditor, appeared at the meeting and voted that a sale for. cash he made of the property, and also voted for himself, as syndic. The proceedings of the meeting having been filed in Court, the sheriff opposed the homologation of that part of the proceedings of the creditors at the meeting that voted Shiff. syndic, on the ground that he, sheriff, was syndic, &c. The Court in homologating the proceedings, rejected' the claim of Shiff to be syndic, and confirmed the sheriff in the office. Shiff has appealed.

By the 27th section of an act entitled “an act relative to a voluntary' surrender of property and mode of proceedings,’’approved March 15,1855, the Judge was empowered under certain circumstances to authorize the sheriff to perform in every rfespect the functions of syndic of the creditors of insolvents.

The decree of the Court authorizing the sheriff to perform the duties of syndic, virtually appointed him syndic. No appeal has been taken from this judgment, .and no action of nullity has been brought to annul it. It must stand and have its effect until reversed by appeal, or annulled and set aside-'by action of nullity.

Shiff has not asked for the removal of the sheriff as syndic, but, that he, Shiff, be appointed syndic.

The law does not allow the appointment of a syndic when there is already one, and when there are no steps taken to remove him.

The mistake of Shiff was in supposing that there was no representative of the creditors.

Judgment affirmed; appellant to pay costs of appeal.


author: Howeld, J.

text:
    No. 1682.
    Edward Cooper v. Thompson, Adams & Thayer.
    The loan by a citizen of the Confederacy, so*called, upon a promissory note of a sum in gold, to a firm within the Confederate lines, in Louisiana, engaged in getting supplies from territory within the Federal lines, at the instance of a Confederate officer, also a member of the firm, for and to be lent to another Confederate officer, to be sent, by the latter, to his family in Kentucky, is not illegal.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      Mctrr <& Foute and Wilson <G Thompson, for plaintiff and appellee.

      McVea & Hunter and E. J. Ellis, for defendants and appellant.

      Reporter.- — The counsel for plaintiff cite 4 Washington, 464;' 12 Wheat. 559; 1 Paine C. C. Reports, 166; 2 Wallace, Brooks vs. Martin.
    They also quote portions of the testimony of the plaintiff, Cooper, which we prefer to give in full, as necessary to a proper understanding of the decision.
    Edward Cooper, plaintiff, sworn, says:
    The ($1,000,) the consideration and amount of the note sued on, was borrowed from me by Ashford Addison. No one borrowed it but Mr. A. Addison, and I told him I would hold him responsible in gold. I took dinner with Mr. Addison on the day the money was loaned, and after dinner Mr. Addison stated to me that he wanted to borrow one thousand dollars in gold, for a specific purpose; that he could get it at almost any time, but he wanted it immediately, and did not have it; and, placing his hand upon my knee, asked me if I could let him have it. I told him yes, I could, provided, he would return it back in the same or in gold; he said he would do so. He and I then went in a buggy to Mr. Thayer’s, and Mr. Addison stated to Mr. Thayer that I would let him have the $1,000 in gold, and proposed to Mr. Thayer to go after it, which he did, and, at my sideboard, I loaned or counted Mr. Thayer one thousand and one dollars in gold. Mr. Addison told me he wanted the gold for himself, Mr. Thompson and Mr. Thayer; and Mr. Thayer gave me the note sued on, and signed his own name, that of Mr. Thompson, and left Mr. Addison’s name out, or signed the note sued on, and annexed to the petition herein. I asked him why Mr. Addison’s name did not appear, and he said it was understood that Mr. Addison’s name was not to be used, but that he was a partner of the concern. Mr. Thompson and Thayer came to my house first,, and Mr. Addison came next, and, in the conversation that ensued between us all, it was understood that Mr. Addison was a partner in the concern, Mr. Addison biing present. At the time the money was loaned Mr. Addison stated to me, in his house, that if he could get one thousand dollars in gold, we could make the party believe we were the moneyed men; and he said it was for Mr. Hodge, and the “we” referred to, meant, I guess, Thompson, Adams & Thayer and himself, or the concern.

      Cross-examined: I had other dealings with the firm, getting out goods and supplies for them, etc., but no dealings after the gold was loaned, I don’t think. I mean by supplies bagging and rope, whiskey, perhaps, medicines, percussion-caps, etc. We got out some boots, shoes, etc., but no guns. I did not go into the Yankee lines to get them; they were delivered to me on the cast side of the Amite river. I guess, of course, they came from New Orleans, Baton Rouge, or where such things come-from now. The firm was engaged in buying supplies from me, and. bringing them up here to sell again. I suppose they were acting for the Confederate authorities. It was so understood. I was acting for them. I" was getting the supplies for them and paid for the goods myself, and then sold them to the firm, as well as to any other parties wishing to purchase.I always understood the firm of Thompson, Adams & Thayer was acting for the Confederate authorities. Mr. William Sharp and I were partners in getting out the supplies and goods referred to. Mr. Sharp did not go into the Yankee lines to get goods and supplies, neither did I. Mr. Sharp lived in four miles of Baton Rouge, and the lines were between his residence and that place. We bought supplies away below Baton Rouge on the river, and brought them up. Sometimes, we bought at my place, but purchased all of them on the east side the Amite river. I knew the goods were blockade goods, and bought from blockade runners. We used to be paid for the goods in cotton to be delivered to us at my house, or any other point on the Amite river designated. The transactions referred to were continuous and extended through a period of several months. Mr. Thayer did not say, when he came after the gold, what use it was for; he said Mr. Addison would pay it back any time. The firm delivered mo thirty-six or forty-six bales of cotton; can’t say exactly how much or how many bales; nor when, whether before or after the date of the note sued on. Mr. Addison told me the gold was for General Hodge, who was, I think, at the time, commanding the military district of country. I mean this Confederate military district. Mr. Addison said he wanted the gold for General Hodge, who wanted it for his family; that with it he could use General Hodge, and make a big • thing of it. He said General Hodge’s family wore in Kentucky. I was, by this time, tired out trading with the firm of Thompson, Adams & Thayer. Don’t know what he, Addison, meant by a “ big thing of it.” I understood Addison was acting as Confederate quarter-master at the time of the transactions referred to, and the loan of the gold. I was engaged in getting out military supplies, some of which I delivered to Thompson, Adams <& Thayer-, but most of them to James Clark, who was their clerk. The goods and supplies were brought out by different parties. I never sent an order to Baton Rouge for supplies. I sometimes told parties bringing out supplies what kind of things I' wanted.

      In-chief, resumed: The Federal lines were not on the east side of the Amite river. Mr. Sharp was not interested in the gold loaned to Addison, and had nothing to do with it. It was my individual and private transaction.
    The goods and supplies referred to were found and bought by me on the east side of the Amite river. I made no orders for goods and supplies to be brought out, but, sometimes, when I would meet one of those men, I would tell them to bring out such things as I wanted; but I seldom ever heard from them afterwards, as about one trip was all they could ever make. I did not sell those goods particularly to this firm, 1 but to all who wanted them. Sold a good deal to said firm, as it was my largest customer. I made demand of Mr, Addison for payment of the note sued on, but he never paid it.

      ' Edward Cooper, recalled, says: Imean, when I use the expression, out of the lines, that whenever I could get goods that came from New Orleans, Baton Rouge, or across the Lake, and they were delivered on the east side of the Amite River, I would buy them. That is what i mean by getting them out of the linos.

      Cross-examined: The cotton obtained from the firm, thirty-six or forty-six bales,-referred to, was put at thirty-five cents per pound. I bought goods and supplies for the firm specially, but I sold to other parties. The firm was my largest customer. - I sold goods to Mr. Williams and Mr. Davis, but the firm purchased most, I think. I purchased some goods at my place, some twenty miles futher down, but all in Livingston parish, east of the river. My place is forty-five miles below here.
    The counsel for defendant cite 1 An. 178; Boatner v. Yarborough, 12 An; 249, 5L. R. 122, 4 Rob. 140.
   Howeld, J.

This suit is brought on the following instrument:

“$1001 00. One day after date we or either of us promise to pay E. Cooper, or order, one thousand and one dollars, in gold, the same having been borrowed from him.”

“September 4th, 1864.” (Signed) “Thompson, Adams & Thamer.”

It is alleged that said firm is a commercial firm, and compossed of D. W. Thompson, A. Addison, W. R. Adams and Jasper Thayer, and that the said sum of money was loaned at the special request of the said Addison, who has appealed from a judgment against him alone. His defence is, that the money was borrowed to be used, to the knowledge of the plaintiff, in the -business of blockade-running, then carried on by defendants.

The proof is satisfactory that appellant effected the loan for the purpose of lending it again to the Confederate General, then in command of that district, for a private use, and that this act of accommodation would, in the opinion of appellant, result to the advantage of said firm in their operations; that the plaintiff loaned Especially on the credit of the appellant and Thompson, two of the members of the firm, and that Addison promised to return the amount in gold. The operations.of the firm were undoubtedly illicit, but, we think, the liability of the appellant for this loan is not affected or destroyed by the character of the firm’s business, as the transaction with plaintiff was outside of that business, and was not in itself illegal. The expectation of advantage or favor entertained by the appellant does not appear to have been a motive or object on the part of plaintiff in making the loan, and there is nothing to show that he expected the money to be used illegally, or that it was so used.

Judgment affirmed, with costs.

' Petition for a Rehearing, by Race, Foster & F. T. Merriclc. — The petition of rehearing of Ashford Addison respectfully represents, that he thinks the judgment pronounced against him erroneous for the reasons which follow:

It may be laid down as a rule, under the statute which admits parties to recover upon their own testimony, that, where they place themselves on the stand as witnesses, their testimony should, like their pleadings, be Construed against themselves. ' Eor men, testifying under the strong bias of interest, will state their cases as favorably as possible for themselves.

Taking plaintiff’s testimony, we think we may assert that it clearly appears:

1st. That Thompson, Adams & Thayer -were employed as contractors to get out, for the use of the Confederate service, from and through the Federal lines, supplies and munitions of war. That was their business.

2d. That the plaintiff, at the time the money was lent, was engaged in getting out such supplies for these said Confederate contractors.

3d. Ashford Addison was an officer in the Confederate service, assisting' in getting out such military supplies, and interested in the profits of such unlawful business.

4th. General Hodge, who was to get the gold, was in the Confederate service, and commanding at that post where the gold was lent; and, taking plaintiff’s own version of the affair, he, plaintiff, loaned the money to Ashford Addison, who was engaged in this unlawful and treasonable business to enable him to make “a big thing” by the influence it would give him with the Confederate General Hodge, who commanded the district, and who desired the gold to send to his family.

5th. The plaintiff took the note of Thompson, Adams & Thayer without Addison’s signature to the same. The loan was, therefore, to the partnership formed for this illegal business as well as to Addison, and so the suit is brought.

6th. After or about the time of loaning the money to the firm, Cooper received either forty-six or thirty-six bales of cotton, at thirty-five cents per pound, worth, taking the medium, say forty-one bales, $6,742, according to his own statement.

In proof of the above propositions let ns examine the plaintiff’s own testimony. _ He says, on page 23, “Mr. Addison told him he wanted the gold for himself, Mr. Thompson and Mr. Thayer; and Mr. Thayer gave him the note sued on, and signed his own name, that of Mr. Thompson, and left Mr. Addison’s name out.” His name was left out because it was understood that his name was not to be used, but that he was a partner. * * * Addison “ said if he could get one thousand dollars in gold, we could make the party believe we were the moneyed men; and he said it was for Mr. Hodge, and the we, referred to, meant, I guess, Thompson, Adams, Thayer and himself, or the concern.” Cooper’s Testimony, pages 23 and 24.

This shows clearly that the gold was lent for the firm, engaged in getting out the stores. He then proceeds to say, (page 24,) “I had other dealings with the firm, getting out goods and supplies for them, but had no dealings after the gold was loaned, I don’t think. I mean, by supplies, bagging and rope, whiskey, perhaps, medicines, percussion-caps, etc. We got out boots and shoes, but no guns.”

Again: “The firm was engaged in buying supplies from me, and bringing them up here to sell again. I suppose they were acting for the Confederate authorities. It was so understood. I was acting for them. I was getting the supplies for them, and paid for the goods myself, and then sold to the firm, as well as to any other parties wishing to purchase. I always understood the firm of Thompson, Adams & Thayer was acting for the Confederate authorities. * * * Page 25.

“We bought supplies away below Baton Rouge, on the river, and brought them up. Sometimes, we bought at my place, but purchased all of them on the east side of Amite river. I knew the goods were blockade goods and bought of blockade runners. ” Page 25.

“The firm delivered me thirty-six or forty-six bales of cotton; can’t say exactly how much or how many bales; nor when, whether before or after the date of the note sued on.

“Mr. Addison told me the gold was for General Hodge, who was, I think, commanding this military district. I mean Confederate military district. Mr. Addison said he wanted the gold for General Hodge, who wanted it for his family; that with it he could use General Hodge, and make a big thing out of it. He said General Hodge’s family were in Kentucky.” Page 26.

Now, coupling this expression, with what plaintiff says, on pages 23 ahd 24, that Addison said “if he could get “one thousand dollars in gold, we could make the party believe we were the moneyed men,” etc, and it is manifest, the big thing was the anticipated success in getting supplies for the Confederate army, with an immediate profit to the firm.

He says, he was acting for the firm, in defeating the blockade established by the Government of the United States, and employed in getting out these contraband goods. In other words, all parties were actively engaged in evading the blockade established by the Government of the United States, ánd-turning their resources into means of defence against the Government of the United States. It was, in other words, active war against the Government of the United States, and no one, we think, can doubt, when we consider the object both of plaintiff and the firm, and of Maj. Addison, Confederate States Quarter-master, and Confederate Generals Taylor and Hodge, what business was to be advanced by “the big thing.”

The principle to be decided in this case is so important, that we trust the Court will have patience with us while we examine the case still further.

To escape the inevitable consequences upon his case, of a simple loan to the firm, knowing, as plaintiff did, its aim and purposes, he has resorted to the expedient of showing that this particular money was not intended for the firm, though lent to it, but was intended for a “ Confederate Quarter-master Addison to send to Confederate General Hodge to send to his family in Kentucky.

The question is not now between Confederate and Confederate, and what in a state of nature might be deemed just between them, but it is a question to be decided by the laws of the United States — viewing the war as a rebellion on the part of the Confederates against the Government. Principal and agent, major and general, in violating the blockade, strengthening the Confederacy and resisting the arms of the United States, were all acting unlawfully and in rebellion, if not treasonably according to the laws this Honorable Court administers.

It is not, (so considered,) a case of neidrals selling contraband goods, but it is of subjects, not only giving aid and comfort to the enemy, but actively engaged in rebellion themselves, procuring boots, shoes, percussion-caps, medicines, etc., for the rebels.

Assume, therefore, that the money was lent to the firm, or Quartermaster Addison, to be lent to the Confederate General Hodge, to send to his family, can this view of the case be maintained as legal under our law? Did not the obtaining of the gold by General Hodge give him great aid and comfort? Was it not a very comfortable thing to know, while he was battling for the Confederacy, his wife was safe at home in Kentucky with plenty of gold for her wants? Would it not have greatly cheered the ragged soldiers who followed Jackson and Lee and Taylor and Johnston in their dreadful marches and battles, if gold could have been lent them for their wives and little ones at home? Would not desertions in the Confederate army have ceased? Would not the exertions of the soldiers have been redoubled, and would the war have ended as soon as it did?

•The furnishing of money to the enemy is the giving him aid and comfort, as it is well said by writers on the subject. Cooper knew his money was to be given to a Confederate general to aid him in sending money home to his family, for whom he was bound to provide, and comfort him by the knowledge that his family were not in want, and that instead of going home to provide for them, he could remain in the field and at the front.

This was not merely against the policy of the law, but it was in its nature treasonable. Wharton says: “Therefore, if citizens of the United States join public enemies in acts of hostility against this country, or even against its allies, or deliver up its castles, forts? or ships of war, to its enemies through treachery, or in combination with them; or raise troops for the enemy, or supply them with money, arms or intelligence, although such money, intelligence, etc., be intercepted, and never reach them: all these are cases of adhering to the enemies of the United States, and the parties guilty of high treason under the Federal Constitution.” Wharton’s Crim. Law, ed. 1852, p. 580.

The law does not regard the pretense under which the money is furnished: all things which the enemy can use must be withheld from him. It was unlawful to feed General Hodge, harbor him for an hour, or entertain him in one’s house, or to loan him a horse while his business was making war on the United States, and in like manner was it unlawful to supply him with gold for his necessities, or for any purpose whatever;' for, if the enemy could lawfully take gold under any pretense, there would be no end to pretenses, and all things would become lawful. Every Confederate soldier would have had some pre'-ense’to get gold, if they had been near the points where gold came through the lines, and blockade runners had been so facile and convenient as the plaintiff was to Major Addison and General Hodge of the Confederate service.

It may do as declamation to say, that there was no harm in assisting Mrs. Hodge: she was not in the rebel army, and it was only charity to help her. The money was not lent to her, nor did she ever receive one dollar of it, as we are able to show, and should have done, if we could have anticipated what the plaintiff would swear to. The money was borrowed for General Hodge under the pretense that it was to be sent to his family, it seems. It was for him. and thus unlawful. It would be equally so, if lent to Ashford Addison, Confederate quarter-master, while in tbe service of the Confederacy, or the firm of Confederate contractors. Is it unlawful to harbor or feed a Confederate soldier, and lawful to lend gold to a Confederate quarter-master, whose business was evading a blockade and supplying the Confederate army?

It was,- also, equally unlawful to lend the firm of Thompson, Adams & Thayer money, knowing their business. See Milne v. Davidson, 5 N. S. 409, where a lease was declared unlawful, because the lessor knew the building was intended to be used as a hospital in a district of the city prohibited by the ordinance. See also, Mulhollan v. Voorhies, 3 N. S. 46; 17 L. R. 118; Davis v. Caldwell, 2 Rob. 271; McHatton v. Pratt, 11 An. p. 264; Schmidt v. Barker, 17 An. 264.

It now remains to examine the authorities cited by appellees’ counsel.

The case in 1 Paine’s C. C. Reports, 166, United Slates v. Barker, is in direct conflict with the authorities, and it seems to be so considered by the Judge. But, if it were not, it has no affinity with this case. Drawing a bill of exchange; without concert with an alien enemy, is a very different thing from the actual furnishing of gold to an enemy in service and under arms. In the case United Stales v. Barker, 12 Wheaton, 560, the bills of exchange were drawn for the Government, and there was only a question of diligence. It is not the same case as the preceding; the first was in New York, the other from Pennsylvania.

The ease in Wallace, (Brooks v. Martin, 2 Wallace, 80,) was on the equity side, where the rules are less rigid than at law; and there it was simply held that as between partners, where illegal gains, malum prohibitum had been invested in other property, the Court would not refuse its assistance on that ground. It was not like the case of the Highwayman in chancery, for the division of gains upon Hounslaw Heath, where the unlawful gain itself was to be divided. It was a mere illegality, not malum in se, and the proceeds had lost their idenity and character by reinvestments.

In Pratt v. McHatton, 12 An. 264, a partner was not allowed to charge his co-partner for illegal hire of convicts. And such would no doubt have been the decision of the United States Supreme Court on a similar question, as there had been no reinvestment, and the partner demanded of the Court to allow him credit on the account, for the gain made by his unlawful act.

But, in the ease at bar, the plaintiff demands restitution for money advanced by him, to enemies in arms against the Government of the United States, when the mere giving them food and shelter, would have been in the eye of the law a treasonable act. See 17 An. p. 264.

Taking the law as our guide, and setting aside the declamation with which the defendant, Addison, has been so fiercely assailed; and it is difficult to believe that this Court will, on a review of the authorities, sustain the proposition that it is lawful, knowingly, to lend gold to a firm engaged in supplying the enemies of the Government with the means of operation, to be lent by them to an officer in the same service, under the pretense that he desires the money to be sent to his family.

Again, the plaintiff admits he received thirty-six or forty-six bales cotton worth, calculating by his own data, $6,742. While his memory is so precise about the gold, it is, it must be confessed, a little obtuse about the cotton. But it was received about the same time the gold was paid. This proof is in the record without objection, and Cooper fixes the price of the cotton, (p. 31,) at thirty-five cents. Now, is it just that he should have the benefit of the cotton without allowing a credit for it If his testimony is good to prove the debt, it ought also to be good to discharge it. If the Court can consider the contract for the gold, it can, in like manner, consider the cotton received by plaintiff which discharges the same.

Maj. Addison, the defendant, was captured about the time the note was given, or previously, and confined in a Northern prison until the close of the war. He was, therefore, unable to prepare the case so thoroughly as he can now do since he has learned from the plaintiff’s testimony, by which he was surprised on the trial, the nature of the same.

In conclusion, we remark, the difference between this case, and an ordinary case, (where assistance has been rendered a criminal, such as a thief, or a perjurer, or a murderer even,) consists in this, that it is not unlawful to assist such persons or their families, so you do not make yourself an accessory after the fact, while it is unlawful to assist or give aid or comfort to rebels, or enemies in arms against the Government. What is lawful in the one case, is unlawful in the other.

The principle involved in this case is so important that we are unable to do it full justice in this petition. Wherefore, the appellant, by his counsel, prays that the judgment rendered by your Honorable Court may be set aside; that the judgment of the lower court be reversed, anda final judgment be rendered in favor of appellant, or that a new trial be awarded him, and for such other relief as to Your Honors shall seem right.

Rehearing refused.


author: HowEnn, J.

text:
    No. 1662.
    Wm. White, Administrator, et al., v. T. W. Bird.—S. P. Greves, Garnishee.
    The act of the Legislature of 1839, providing that no attorney or counsellor at law shall give evidence of any thing that has been confided to him by his client, without the consent of such client, cannot be construed to exempt or shield the property of the client in the hands of the attorney from the pursuit of his creditors.
    The garnishee may be excused from answering any particular interrogatory, if he declare, on oath, that ho cannot answer the same without disclosing matters confided to him by his client, or advice given his client concerning the business about which he is retained.
    "Where an attorney-at-law has in his possession for collection, as shown by his answers to interrogatories, promissory notes owned in part by the judgment debtor of tho plaintiff, the interest which the defendant has may be seized in the hands of the garnishee, and sold for the benefit of the judgment creditors: after notice to the garnishee he caD do no act to the prejudice of the seizing creditor.
    PPEAL from the District Court, Parish, of East Baton Rouge, Posey, <T.

      Barrow <& Pope, for plaintiffs and appellees.

      Bunn & Perron and S P. Greves, for defendants and appellants.
   HowEnn, J.

This is a proceeding by garnishment, under the act of 1839, in -which the garnishee excepts to the right of the judgment creditors “to compel him to disclose any matters committed to him as an attorney-at-law by his clients, or as to facts within his knowledge confided to him by his clients, or evidence of debt committed to him for collection or compromise,” and contends that because other parties than the judgment debtor are interested.in the property in his hands, it cannot be delivered to the sheriff in this proceeding to be sold.

The tenor and object of the interrogatories are to ascertain if the garnishee, who is an attorney-at-law, is indebted, or has in control, directly or indirectly, any property, rights or credits belonging to the defendant, and whether or not the same is sufficient to satisfy the judgments of plaintiffs. The law invoked by the garnishee relates to the subject of proof, and declares that “no attorney or counsellor at law shall give evidence of any thing that has been confided to him by his client, without the consent of such client;” but it cannot, in our opinion, be construed to exempt or shield the property of the client, in the hands of his attorney, from the pursuit of his creditors. As held however, in the case of Shaughnessy v. Fogg, 15 An. 330, the garnishee may be excused from answering any particular interrogatory, if he declare on oath that he cannot answer the same without disclosing matters confided to him by his client, or advice given by him to his client, concerning the business about which he-is retained. But we find nothing in the interrogatories, propounded in this case, to which this principle will apply; and besides, the garnishee has made no such oath. His exceptions were properly overruled.

How the seizure in this case is to be effected, is another and more difficult question. The statute is express in directing the property, in the hands of the garnishee, to be forthwith delivered to the sheriff. But the answers show that the property consists of notes owned jointly by the defendant and two other parties not sued, for all of whom the garnishee holds as attorney-at-law. The lower court ordered the notes to be delivered to the sheriff to sell the interest of the defendant therein, and apply the proceeds to the payment of plaintiffs’ judgments. Of this order the garnishee and the joint owners of the notes complain; and, we think, with good reason. The defendant owns only an undivided interest in the notes, and there was no authority for divesting his co-owners of the possession and control of their property. (See 4 N. S. 416.) The interest of the debtor in the notes, being incorporeal and intangible, could not be delivered. The law does not require an impossibility.

As said in the case in 4 N. S., just cited, whatever may be the right of the defendant in the notes may be a fair object of sale or execution, without disturbing the rights of the holders and other owners; and the garnishment process, in our opinion, sufficiently restrains the garnishee, and secures the rights of all parties that may be interested. We conclude, therefore, that the Court a qua erred in ordering the notes to be delivered to the sheriff, and that the rights of the defendant in them may be sold, while they are in the garnishee’s hands, who, after notice, can do no act to prejudice the seizing creditor.

There is no cause for holding the garnishee personally responsible to plaintiffs, as urged in the brief. He does not evince any desire to evade answering in order to screen the defendant, but to protect the rights of those not before the court, who had employed him, and his own privileges as an attorney-at-law, as he understood them. We think, under the circumstances, the Judge did not exercise an illegal discretion in allowing a delay of twenty-four hours to draw up his answers.

It is therefore ordered that the judgment appealed from be reversed, and it is now adjudged and decreed that plaintiffs’ seizure of the rights, credits and interest of the defendant, T. W. Bird, in the notes and evidences of debt in the hands of S. P. Greves, garnishee, as set forth in his answers to interrogatories filed in this proceeding, on 6th July, 1867, be sustained, and that the sheriff be ordered to sell the said right, title and interest of the said defendant in said notes and evidences of debt, and apply the proceeds to the payment of plaintiffs’ judgments, as set forth in their pleadings to-wit: one in favor of Wm. White, administrator in suit of himself v. T. W. Bird, personally and as testamentary executor, No. 1897 of date the 20th July, 1866, and one in favor of N. W. Pope, in suit of Dr. J. A. Landry v. T. W. Bird, No. 1840, of date the 20th July, 1867; costs of the lower court to be paid by defendant, and those of appeal to be paid by plaintiffs and appellees.


author: Howekd, J.

text:
    No. 1683.
    John Armstrong v. John. M. Bach.
    Where a party leases a house in the city of New Orleans for a fixed period of time, and executes his notes for the rent, and continues to occupy the premises after the lease has expired, without giving notice to the lessor, he will be considered as continuing the lease from month to month, and becomes responsible for the rents at the rates mentioned in the lease.
    Where a lessee places the house containing his furniture in charge and possession of his servant, he will be considered as the occupant and possessor of the buildings and premises through his servant, and he is responsible to the lessor for the rent during the time that his servant is in possession.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      O. P. Amaclcer, for plaintiff and appellant.

      T. G. W. Ellis, for defendant and appellee.
   Howekd, J.

The plaintiff alleges that on the 23d of September, 1861, he- leased a dwelling-house in New Orleans, to the defendant for one year at $500, for which the latter gave his notes payable quarterly; that the defendant held possession of the premises until 1st February, 1864, and that he owes the notes given for the rent of the two last quarters, and rent at the same rate for the time he held possession after the expiration of the written lease. The defendant admits signing the lease, and his occupation of the dwelling up to the 26th April, 1862, for which he has paid in full, and denies aE other allegations; he avers that for his personal safety he was forced to leave the city on said last date, and that he has never since occupied the leased premises; that he left therein furniture and movables worth $7,000, which plaintiff permitted to be pillaged by lawless persons, and took no steps to secure his (defendant’s) property, or to provisionally seize and sell for the rent due him, (plaintiff,) who thus caiised its loss to the defendant; that plaintiff weE knew that he did not occupy the property after the said 26th April, 1862, and had ample time to collect the rent due; that house rents in New Orleans were very low after its capture by the Federal troops, and the premises in question were worth nothing, and could not have been rented on account of tbe late civil war; that plaintiff has taken and appropriated to his own bse gas-fixtures worth $80, and other articles belonging to defendant, amounting together in value to $525, which he claims in reconvention.

Judgment was rendered in favor of plaintiff for the amount of two rent-notes, with interest from the maturity of each, and sustaining the reconventional demand in the sum of $80, to be credited of date 24th April, 1862, from which plaintiff has appealed, and defendant has asked an amendment rejecting plaintiff’s demand.

There can be no doubt of the correctness of the judgment as to the amount of the two notes with interest, and the only question'is as to the liability of the defendant for the rent after the expiration of the written lease for one year.

Plaintiff’s book-keeper testifies that defendant’s servants occupied the property up to about the 1st January, 1864. The defendant, as witness, states that on the 26th April, 1862, he left the city, taking with him all of his family and servants, except an old slave woman too infirm to be moved, with whom he left the keys of the house, which contained all of his furniture, etc. Another witness says, this woman died of old age, but ihe date of her death is not given. He also says, the premises were occupied, in April, or May, 1863, by white persons not of defendant’s family.

From these facts, we think it clear that defendant's occupancy was continued in his servant, whom he left at the house in which his furniture remained, and with whom he left the keys, there appearing no notice to plaintiff in accordance with Art. 2656, C. C., and no opposition by the lessor to the continued possession, and hence a tacit reconduction of the lease by the month took place. C. C. 2655, 2656, 2659; 9 An. 504; 11 An. 477. This possession being shown to continue up to 1st January, 1864, the defendant is responsible for the rent to that date, under a re-conduction of the lease.

The law and the evidence do not sustain the reconventional demand.,

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant the sum of $885, with legal interest on $125 from 23d June, 1862, on a like sum from 23d September, 1862, and on $635 from 1st January, 1864, with costs in both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 1668.
    J. H. Shephard v. A. J. Stewart
    A sheriff’s return, in the following words, “And after making diligent search and inquiry, and demand of said defendant for other property to satisfy said writ, and the plaintiff named in the said writ failing to point out other property to satisfy the same, and said wit having expired by limitation of law, is hereby returned credited as above,” is insufficient tobase a judgment upon, against the defendant’s security in an appeal bond.
    The sheriff’s return should have declared, that he found no property to seize, notwithstanding the demand on the parties.
    APPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      Bunn & Herron, for plaintiff and appellee.

      B. H. Ghaney, for defendant and appellant.
   Howell, J.

The surety on an appeal bond has appealed from a judgment condemning him to pay the unsatisfied balance of the judgment against the defendant herein.

The rule against the surety is based on the sheriff’s return in the following words: “And after making diligent search and inquiry and demand of said defendant for other property to satisfy said writ, and the plaintiff named in the said writ failing to point out other property to satisfy'the same, and said writ having expired by limitation of law, is hereby returned credited as above.”

This does not conform to the 727 Art. C. P., which requires that the sheriff shall in his report “declare that he has found no property to seize, notwithstanding the demand on the parlies.” He does not here say that he made a demand on the judgment creditor, nor show any impossibility of doing so. His language implies that he considered it the duty of the plaintiff to point out property without a demand being made on him. The proceeding against the surety is very summary, and before he can be reached it must appear that all the formalities of the law in such cases have been strictly observed. C. P. 596, 726, 727; Act 1839, p. 170,. Sec. 20; 4 La. 301; 17 La. 416; 10 R. 138; 13 An. 264..

It is therefore ordered that Ire judgment appealed from be reversed, and that there be judgment dismissing the rule on E. C. Brown, surety, with costs in both courts.


text:
    No. 1689.
    R. K. Walker & Co. v. R. P. Lee et al.
    Proceedings on an order of seizure and sale, which are litigated by the defendant, suspend prescription.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.

      PipTcin <& Addison and Marr & Foule, for plaintiffs and appellees.

      MeVea & Hunter, for defendants and appellants.
   Howell, J.

This is a suit against the makers of a promissory note, due on 1st January, 1860, the, defence to which is. the general denial and plea of prescription. The note was secured by mortgage and, in a previous suit, a writ of seizure and sale issued thereon, and notice given, and the writ was enjoined on 4th August, .1860, and the injunction perpetuated on the 7th July, 1866. Citations in the present suit, via ordinaria, were served in December, 1866, and judgment rendered against defendant, who has appealed.

In the case of Rhea v. Taylor, 8 An. 53, the defence was made directly as in this case, that the order of seizure and sale under like circumstances did not interrupt prescription, and the decision in Harrod v. Voorhies, 16 L. 254, relied on. The Court, however, adhered to the different ruling made in Stanbrough v. McCall, 4 A. 322, where the question was elaborately examined, and was reaffirmed in Fortier v. Zimpel, 6 An. 54. We must consider the question no longer an open one, and hold that prescription has not been acquired in this case. ,

The question as to the consideration of the note, is not raised in the pleadings.

Judgment affirmed.


author: Hsmau, O. J.

text:
    No. 1275.
    Thomas A. G. Batchelor v. His Creditors.
    The Supreme Court will not take cognizance of an appeal when there is no order of the District Court granting the appeal. It will ex officio take notice of the nun-existence of such order, and dismiss the appeal.
    Consent of parlies that an appeal may be taken does not vest the Supreme Court with jurisdiction over the case, because agreement between the parties is not an order of oou>t.
    All parties having an interest chat the judgment ot the District Court be maintained, must bo made parties to the appeal, otherwise the appeal will be dismissed on motion.
    APPEAL from the District Court, Parish of Points Coupee, Cooley, J. •

      Race, Foster & F. T. Merrick and Smith c6 Halsey, for appellants..

      Sheldon & Pardee and Ed. Phillips, for appellees.
   Hsmau, O. J.

Appellees have filed a motion to dismiss the appeal, and urges several grounds for its dismissal.

One of the grounds is, that all parties interested in maintaining the judgment appealed from, have not been made parties to the appeal.

Albert A. Batchelor, and the minors, Catharine Thomas, Mary and Iverson Batchelor, represented by Albert A. Batchelor as their under-tutor, and others, obtained judgment in their favor as opposing creditors to the account filed by the syndic of the creditors of Thomas A. G. Batchelor, an insolvent.

Albert A. Batchelor gave an appeal bond in his own name, and not as representing the minors. Other creditors are on the bond as appellants.

It appears that this bond was given without au order of court granting an appeal, because there was an agreement by the parties that any party could appeal as if by order on motion in open court. If this agreement could dispense with the necessity for an order of court granting an appeal, the appeal would not have been properly taken, because no citation of appeal issued, and because the appeal bond is not given in favor of the minors, (who have an interest that the judgment of the District Court be maintained,) or their representatives, but is restricted to the creditors whose names are mentioned therein.

This Court is bound to notice ex officio that there is no order of the District Court granting an appeal.

Consent of parties that an appeal may be taken does not give this Court jurisdiction of a suit, as an agreement between parties is not an order of court.

We cannot take cognizance of a case by appeal, when there is no order of the lower court for an appeal. See 2 An. 628.

Let the appeal be dismissed.

Rehearing refused.


author: InsiiEY, J.

text:
    No. 1643.
    Joseph Lallande v. Immer U. Ball.
    Instead of moving the court to strike out any portion of a defendant’s answer, the more regular course is, to object to the admission of any evidence to sustain it.
    The prescription of one year does not apply to actions for damages ex contractu.

    The law does not require that a reconventional demand for damages shall be liquidated,

      APPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      A. Provosty, for plaintiff and appellee.

      Collins é Leake, for defendant and appellant.
   InsiiEY, J.

The plaintiff, a resident of New Orleans, claims from the defendant, a resident of West Feliciana, the amount of a promissory note drawn by the latter, and representing apart of the price of a tract of land.

The answer is a general denial, and the defendant claims in reconvention as damages, the sum of ten thousand dollars, incurred by him in consequence of fradulent misrepresentations of the plaintiff, his real vendor of the said tract of land, who led him to believe that it was partly composed of swamp-lands, and that it was bounded by the river Mississippi, and which was his inducement for the purchase of it.

That supposing the swamp-land in the vicinity of the tract purchased by him to form a part of it, which was not the case, he erected a valuable saw-mill, but it is valueless for want of cypress timber; and that he is compelled to haul his timber four miles, and being unable to erect cabins, etc., on the place to house his laborers, he lost a crop of one hundred and twenty bales of cotton, for all which the damages are claimed.

The plaintiff moved the court to strike out the defendant’s claim for damages, on the following grounds:

1.That the action is barred by the prescription of one year.

2.That the damages claimed are not liquidated.

3.That the damages claimed are too consequential and remote.

4.That the plaintiff was not put in mora.

Which motion the Court sustained for all that part of the answer which relates to the profits the defendant would have made by the labor of the freedmen, and overruled it as regards the damages which the defendant represents that he suffered by the erection of the saw-mill, etc., to saw lumber from the swamp tract which he was informed was included in his purchase, but which in fact was not; to which ruling both parties excepted, and took bills of exception.

The striking out of a plea in reconvention, is equivalent to excluding testimony to sustain it, which latter this Court has deemed the better practice. Jonau v. Ferrand, 3 Rob. 364.

The court below properly disregarded the plea of prescription, which does not apply to damages ex contractu. See 4 N. S. 335; 9 Rob. 396; 11 An. 554. And, also the plea that the damages were not liquidated, which is unnecessary in reconventional demands. 10 An. 98; 15 An. 70; 16 An. 250. And, also the exception that the plaintiff was not put in mora, which the defendant attempted to prove. 2 Rob. 498; 10 Rob. 524, And, also the defendant’s application for a jury, without making oath as required by the 24th section of the act of 20th March, 1839, amendatory of the article 495 C. P.

It is therefore, for the reasons above given, ordered, adjudged and decreed that the judgment of (¡he District Court be annulled, avoided and reversed; and it is further. ordered that the case be remanded to the District Court for further proceedings according to law, and in accordance with the rulings of this decision; and it is further ordered, that the plaint}# and appellee pay the costs qf appeal)

This Court, in its decree sought to be opened, expressed its opinion clearly upon all the points upon which it was necessary to instruct the Judge of the lower court.

As to the consequential damages, claimed by the plaintiff, and stricken from his petition by the Judge a quo, our opinion is not left doubtful as to the correctness of his ruling in that, or by an equivalent mode, and our concurrence with it.

Rehearing refused.


text:
    No. 1670.
    R. T. Denham v. J. Pogue.—Mrs. E. E. Denham, Garnishee.
    A party on a negotiable promissory note originally given to defendant cannot be held liable on a garnishment, when it is not shown that the note is in the possession of the defendant; in such a case payment of the judgment in garnishment would not protect him against liability on the note in third hands.
    APPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      B. P. Greves and Dunn <& Herron, for plaintiff and appellee.

      J. H.

      Lamon, attorney ad hoc.

      Fuqua & Gallihan, for appellants.
   Labauve, J.

Plaintiff having obtained judgment against the defendant for one thousand six hundred and sixty-five dollars, with interest and costs, issued a fieri fiadas thereon on the 7th of August, 1865; the following return was made by the sheriff;

“This writ, having expired by limitation of time, is hereby returned not satisfied. ”

“January 22d, 1866.” (signed) “ Ed. Cousinabd, Sheriff. ”

On the 24th of August, 1865, plaintiff filed a petition making appellant, Mrs. Denham, J. A. Stokes and Dr. T. M. Williams, parties garnishees, and propounded interrogatories to each of them, as follows:

1st Interrogatory: Do you or either of you owe the defendant, James Pogue anything? If so, What amount ? and of what does it consist?

2d Interrogatory: Have you, or either of you, in your possession any property, money, notes or rights and credits belonging to said James Pogue, the defendant in this suit ? If so, state what you have.

3d Interrogatory: Have you not two notes in your possession; one for $1,000 principal, drawn by Mrs. Ellen Bovard and endorsed by Elijah A. Dixon, and one for about $300, drawn by J. A. Stokes ?

Mrs. Ellen Bovard, wife of D. E. H. Denham, answered—

To the 1st Interrogatory: It is not to my knowledge, that I owe him anything.

To the 2d Interrogatory: In 1860, I gave Mrs. Elijah Dixon my note for $1,000, due in January, 1862, which Mr. A. Dixon, brother of Elijah Dixon, told me had been traded off to Mr. Pogue.

To the 3d Interrogatory: I have not.

J. A. Stokes answered—

To the 1st Interrogatory:' I am not acquainted with Mr. Pogue, and am not aware that I owe him anything. I have never had any transaction with him.

To the 2d Interrogatory: I have not.

To the 3d Interrogatory: I have not.

Dr. J. M. Williams answered—

To the 1st Interrogatory: I do not.

To the 2d Interrogatory: I have not.

To the 3d Interrogatory: I have not, nor never had.

E. Dixon testified as follows:

I am acquainted with plaintiff and defendant, and with Mrs. Bovard. I sold property to Mrs. Ellen Bovard, wife of B. E. H. Denham; as a part of the price, she gave me mortgage notes as described in the sale; one for $1,000, due in 1861 or 1862. I delivered the note to Pogue. The note traded was the first due as expressed in the act of sale, and identified therewith. I have never been notified that any one else held the note.”

Upon this testimony, and the answers of Mrs. Ellen Bovard, wife of B. E. H. Denham, and garnishee, the Court below was satisfied that plaintiff had made out his case, and gave judgment against said garnishee, in favor of plaintiff, for $1,000, with interest and a mortgage upon the property bought by her from E. Dixon.

The said garnishee appealed.

The act of sale, in evidence, shows that the note of the garnishee was negotiable and endorsed at the time of its execution; and the testimony establishes that it was afterwards negotiated and came in the hands of the defendant, James Pogue; this is the last of it, and no one knows where it is now, acccording to the record. The garnishee owes to any holder of her note and not to James Pogue; that note ¿nay be in the hands of a holder in good faith other than J ames Pogue, and the garnishee would be bound to pay it to such holder, notwithstanding the judgment herein rendered against her in favor of R. T. Denham. This judgment, and the payment thereof, would be no protection to her. See 5 An. 162, 538.

We are clearly of opinion that the judgment appealed from, rendered against the garnishee, is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed; and it is further ordered and decreed, that the within garnishment be dismissed, and that the appellee, R. T. Denham, pay costs in both courts.