author: Preston, J.

text:
    Ellis, Milbank & Co., Transferees, v. Fisher, Burgess & Co.,—Stone Surety.
    A surety on an appeal bond, can plead to a rule against him, that the judgment against his principal, has been extinguished by compensation, by mere operation of law; based on the fact that defendants had recovered a judgment against plaintiff.
    The debtor of an individual can, when sued by his creditor, plead in compensation a debt due to him, the defendant, by the commercial firm, of which the plaintiff is a member.
    As a general rule, that which could have been pleaded to an original suit cannot be a ground for an injunction ; but where E. and E., B. & Co. had each instituted suit against the other, on their respective demands, both suits being contested, Held: that F.B.&Co. could not, during the pendency of the suit, consistently plead in compensation their demand, although liquidated by a note; but when their respective claims became liquidated by judgments, compensation took place, by opera-of law.
    Where two parties have judgments against each other, they are bound to compensate, and the execution in either case maybe enjoined.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      JEEunton S Bradfordr for plaintiffs.
    Hosier, for defendant and appellants.
   Preston, J.

On the 29th of January, 1850, the plaintiff recovered a judgment against the defendants for $G24 99, with costs. They appealed, on giving Caleb Stone as their surety, and the judgment was affirmed by this Court.

On the 11th of February, 1850, the plaintiff purports to have transferred the judgment of B. W. Milbarile & Co., who issued execution. The execution having been returned unsatisfied, they took a rule on Stone, the surety on the appeal bond, to show cause why judgment should not be rendered against him. He and Fisher, Burgess & Co. appeared, and made various defences to the rule, of which it is unnecessary to notice but one. They alleged that the debt or judgment had been extinguished by compensation.

They showed that on the 17th of May, 1850, Fisher, Burgess & Co. obtained judgment against Wheeler & Ellis, in solido, the present plaintiff, William, M. Ellis, being the partner, on á note in favor of King & Fisher, dated the 9th of July, 1845, for $459, with six per cent interest from date, the principal and interest being sufficient to extinguish the plaintiffs’ demand or judgment in this suit.

The plaintiffs’ claim was liquidated by judgment, on the 29th January, 1850. But the transfer of it to B. W. MiTbanh & Co. was not notified to the defendants until the 4th of June, 1850, at which time, as we have seen, the defendants’ claim had been prosecuted to judgment. Compensation between their respective claims thus liquidated by judgment took place by operation of law. C. O. Art. 2203, 2204.

A judgment is now sought against the surety of Fisher, Burgess & Co. on their appeal bond. He pleads that nothing is due by his principal and shows it by judgment. Judgment cannot be rendered against him unless he is forbidden by law to make the showing. •

It is urged that ho cannot plead compensation to a rule against him as surety on an appeal bond. On the contrary the first and leading defence to a rule against the surety on an appeal bond, is that the judgment has been satisfied, that is, extinguished.

That the plaintiff may proceed in a summary manner by rule against the surety is no reason why the defence of compensation, which is equally summary, may not be made. ,An unliquidated claim might be rejected as a defence to the rule, but not one liquidated.at the time the plaintiffs’judgment was obtained, and now rendered indisputable by judgment. There is no reason for apprehending with the District Court, that the admission of such an equitable and indeed strictly legal defence on behalf of the surety on an appeal bond, will confuse or embarrass the practice of our Courts, or unreasonably retard I plaintiffs in the prosecution of their rights.

The proceeding by rule was the remedy sought by the plaintiff himself. He cannot deprive the defendant of any lawful defense, in the proceeding he has chosen himself. Such a result would be absurd. If he wished a trial by jury, we see no reason why he might not have instituted an ordinary suit on the appeal bond, although neither party could have a jury for the trial of the case by rule.

The claim of Fisher, Burgess & Co. was against a firm of Wheeler & Ellis ; Ellis alone has the claim against them. The District Court thought the two debts not compensable on the ground that partnership are not compensable against individual debts. The principle is not applicable. A debt of Ellis is not opposed to a claim of ’Wheeler and Ellis, but a claim against him to a claim bj him.

This point was so fully examined in the case of Bliss against Patrieh, 6 An. Rep., and the reasons given for allowing compensation in a case similar to the present so conclusive to our minds, that we deem it necessary only to refer to the opinion in that case in support of the compensation plead in this case.

Another objection to the compensation is, that it appears by the record in the suit of Maher, Burgess & Oo. against Wheeler & Ellis, that although the judgment was rendered in their favor, yet this suit was prosecuted for the benefit of Fisher & King, They are partners in the firm of Fisher, Burgess & Go., and no doubt the firm was formed by taking Burgess into the old concern and probably the debt became an asset of the new firm. Be that as it may, Fisher <& King, as members of the new firm, are content that a judgment in favor of the firm, though on a note in their favor, should be extinguished by a judgment against the firm. It cannot be doubted that payment by Ellis, to the firm, (who are plaintiffs in the case) would extinguish the judgment. Compensation is a mode of payment or of extinguishing an obligation. King & Fisher could never hereafter object that their debt was not extinguished, since they not only authorized their new firm to collect it in their own name, but also as members of the firm plead it in compensation of the plaintiff’s judgment. Code 2841.

It is correctly stated by the District Court, to be the settled jurisprudence of the State, that what could have been pleaded to the original suit cannot be a ground for an injunction, and therefore, should not be admitted as a defence to a rule on an appeal bond. That is true as a general rule, but as the defendants disputed the claim of the plaintiff in toto, they could not reasonably be expected to set up their claim, though liquidated at that time by note, in compensation. So also as Ellis disputed their claim entirely, he might reasonably decline opposing his, in compensation. But when their' respective claims were established and liquidated by judgments, their compensation took place by operation of law.

And under such circumstances, if either party refused to compensate, but took out execution we are inclined to think, it might be enjoined. It would be an absurd spectacle to see two parties, who had acted in good faith until their rights were settled by judgments, afterwards harassing each other by execution when neither were indebted to the other, and a reproach to our laws if it could not be prevented by a legal remedy.

The judgment of the District Court is reversed, and the rule against Oaleh Stone, suret}' on the appeal bond, dismissed with costs in both Courts.

       Opinion delivered on Nov. ITth, 1851. The following decision was read, but not filed, the Court desiring further argument on the validity of the assignment, and as to the admissibility of Wheeler as a witness for defendant on rule.
      Arguments were submitted by the counsel on the validity of the assignment to MilbanTc & Co., and as to the admissibility of Wheeler as a witness.
      The case remained under advisement until the day of 185 , on which day the Court read the preceding opinion of Chief Justice SUdeU, and delivered their further opinion on the question of the validity of the assignment, and on the admissibility of "Wheeler as a witness. A note in the handwriting of Chief Justice SUdeU precedes the opinion in the following words : The opinion up to this point, to the best of my recollection was concurred in by Chief Justice JSwiis, and Justices Host and Htmbar^ and was read, but notfiled, the Court desiring further argument on the question of the validity of the assignment.


source: Caselaw Access Project

author: Slidell, 0. J.

license: Public Domain

text:
    Same Case on a Re-hearing.

      ElUs was the creditor of Fisher^ Burgess & Co. The firm of King <& Fisher was the creditor of ElMs. The firms of Fisher, Burges* <& Co. and King <& Fisher, are in legal contemplation two distinct ideal persons. Up to the date of the plea of compensation, there was no assignment by K. & F. to F., 13. & Oo., or other act by which the ownership of the debt due by ElMs was divested out of the firm of Kmg <& Fisher, and became vested in F., B. & Oo. Compensation did not take place by mere operation of law. By issuing executions on their respective judgments, the parties considered the debts as not compensated, by mere operation of law.
    Should it be conceded that King & Fisher assented that • Fisher, Burgess <& Co., of which firm ' they were partners, should treat the claim as their own, such assignment, resting only upon implication from the plea, must take date from the filing of the plea.
    The notification of the assignment of the judgment by Filis to Milbanh & Co. having taking place before the filing of the plea, Fisher, Burgess & Co. have no right to plead in compensation against MübaAih <fb Co., a claim against Ellis, acquired after ElUs made his assignment.
    The assignment to MUba/iih c& Co., although made with the understanding that they should credit ElUs, the transferer, with whatever they could collect, is not unlawful.

      Milbanh <& Co. having previous to the assignment seized the judgment obtained by ElUs v. F. B. & Co., and having caused it to be advertised for sale, the amicable transfer to prevent a sacrifice, does not constitute an unjust preference.
    The mere factthat.E$& confessed judgment in favor of Milbanh & Co., is not conclusive, though it might be considered, with other circumstances, as an indication of fraud.

      Wheeler was a member of the firm of Wheeler & ElUs, and was called on as a witness by Stone and F., B. & Oo. to establish that the judgment due by Wheeler SElUs had been extinguished, by a payment by Ellis, his partner. Reid: That on the score of interest, he was not a competent witness.
    from the Fourth District Court of New Orleans, 8trawbridge, J.

      Hunton & Bradford, for plaintiff.

      Bonier, for defendant and appellant.
   Slidell, 0. J.

This case is rendered difficult of examination by the complicated state of the facts to which the principles of law are to be applied.

There were two commercial firms, composed and domiciled thus : King & Fisher, of Missouri, composed of H. S. King and W. F. Fisher—Fisher, Burgess & Co. of New Orleans, composed of W. P. Fisher, V. Burgess and H. S. King.

On the 29th of January, 1850, Ellis obtained a judgment againt the firm of Fisher., Burgess & Go.. and the three partners thereof. On the llth February, 1850, Ellis assigned this judgment to Milbanh & Oo. On the 4th of June, 1850, due notice .of this assignment was given to Fisher, Burgess & Oo. This assignment was made after'Milbanh & Go., upon execution of a judgment against ElUs, had seized the latter’s judgment against Fisher, Burgess <& Oo. ; and this amicable transfer seems to have been the result of a desire to prevent the expected sacrifice of the property by a Sheriff’s sale. In November, 1850, the judgment in Ellis v. Fisher, Burgess & Co., was affirmed on appeal. A writ of fieri facias was then issued, which was returned nulla Iona in January, 1851; and then a rule, which is the matter of the present controversy, was taken by Milbanh & Go., as assignees, upon Stone, the surety in the appeal bond. In his answer, Stone denied the reality of the transfer; alleged that if a transfer had been made, it gave a fraudulent preference to Milbanh & Oo., one of the creditors, and was prejudicial to Fisher, Burgess & Go. and their surety. He also pleaded that Fisher, Burgess & Oo. had obtained a judgment against Ellis, and that the judgment held by the plaintiffs was extinguished by compensation. He also pleaded compensation.' In this answer and plea, the firm of Fisher, Burgess & Go. appeared by the 'same attorney, and joined the surety in his defence.

We have come to the conclusion, that compensation did not take place by mere operation of law ; because, so far as the evidence informs us, there was not that mutualitji of indebtedness which is the indispensable basis of that legal fiction. Ellis was the creditor of Fisher, Burgess & Go. The firm of King & Fisher was the creditor of Ellis. Fisher, Burgess & Go. and King & Fisher are, in legal contemplation, two distinct ideal persons. Up to the date of the plea of compensation, there is no assignment by King & Fisher to Fisher, Burgess & Go., or other act proved, by which the ownership of the debt due by Ellis, was divested out of the firm of King & Fisher and became vested in Fisher, Burgess & Go. It remained, for aught that appears to the contrary, an asset of the firm of King & Fisher, down to the time of filing the plea.

There is not then a case of compensation by, mere operation of law, and it is natural here to observe, that the parties themselves considered the debts as not compensated. Their proceedings are in direct antagonism to such a theory, for they were both, as we have shown, striving to execute their respective judgments. It was only after the execution against Ellis was returned unsatisfied, that Fisher, Burgess & Go. took the ground of compensation by uniting in Stone's defence.

There being no compensation by mere operation of law, the question of compensation rests upon the plea of compensation.

Whether the plea of compensation is technically well made, is a point not free from difficulty ; for it is the plea of the firm of Fisher, Burgess & Go., not of its individual members; and no assignment by King & Fisher to Fisher, Burgess & Go. is alleged in the plea. But let it be conceded that as Fisher and King, who composed the former firm, are partners of the latter, their assent that Fisher, Burgess & Go. should treat the claim as their own by pleading it in compensation, may be implied, and by consequence that an assignment of this partnership asset of Fisher & King to the partnership of Fisher, Burgess & Go., may be implied; yet such assignment, resting only upon implir cation from the plea, must take date from the filing of the plea.

But the transfer to MiTbank & Go. by Ellis, and the notification thereof took place long before the filing of that plea. If therefore the assignment tq MiTbank & Go. was valid, Fisher, Burgess & Go. have no right to plead in corm pensati.on against MiTbank & Go., a claim against Ettis- acquired after Ellis. made his assignment. It seems to us, therefore, that it is indispensably ta inquire into the validity of the assignment. If it was valid, the plea fails ; if invalid, then only can the plea be sustained,

The transfer made by Ellis to MiTbank, seems not to have been an assign* ment in absolute payment of the debt, but an assignment with the understand* ing that MiTbank should credit Ellis with, whatever he could collect. There is nothing unlawful in such an assignment, and after it was notified to Fisher, Burgess & Go., they could not acquire a set off available against their creditor’s assignee.

It is said the-assignment was made in fraud of creditors for the purpose of giving MiTbank & Go. a preference. The District Judge has negatived this, proposition, and we do not think the evidence authorizes a different conclusion. Before this assignment was made, MiTbank had issued execution against Ellis,_ and had seized the judgment obtained by him against Fisher, Burgess & Go. ; it was advertised for sale, and to prevent a sacrifice, Filis offered to make an ■amicable transfer, which Milbarilc <& Go. accepted. The mere fact that Filis confessed judgment in favor of Milbanlc, is not conclusive of fraud, though it might be considered in connection with other circumstances, as an indicium.

We think the witness, Wheeler, was properly rejected on the score of interest. The object of his testimony was to assist in establishing the defence, to wit, that the judgment debt due by Wheeler & Filis, had been extinguished by a payment by Filis, his partner. Now, if the defence were not sustained, he would remain liable in solido for the whole debt due to the judgment creditor, and would have to look to his partner for his contributive share. But if the defence should he sustained, he would he no longer liable to his judgment creditors and would be only left liable to his partner, Filis, for contribution of one-half.

It is therefore decreed, that the judgment rendered by the Supreme Court be set aside, and that the judgment of the District Court be affirmed, with co.sts.


author: Buchanan, J.

text:
    L. Tanner v. R. King.
    The legal interruption of prescription spoken of in Articles 8484 and 8516 of the Civil Code takes place only when the debtor has been cited.

    An exception that all the joint co-obligors were not joined must be plead in TAmme UUs.

    Where the obligation is nominally joint, but the evidence shows that one party is surety to the other, there is no necessity to make them both pavties to the suit.
    The objection that the security to an appeal bond is a non-resident of the parish must be made in the lower court. A cause will not be remanded that evidence may be taken as to the sufficiency of the security where no effort was made in the court of the first instance to test the sufficiency.
    from the District Court of Caldwell, Barry, J.

      Hendrey, for plaintiff and appellant.

      McGuire & Bay, for defendant.
   Buchanan, J.

Suit for one-half of the amount of two joint obligations, subscribed by the defendant and another person in favor of plaintiff.

Defence: Prescription of five years; that the other joint obligor was not made party defendant to this action; and want of consideration, the said obligations having been obtained through fraudulent misrepresentations and concealment of facts on the part of plaintiff.

Of the two obligations sued upon, one is negotiable in its form, and the other not negotiable. Both matured in January, 1832. As the law stood at the time this action was brought, the prescription of five years, pleaded by defendant, only applied to the negotiable instrument. In reference to that plea, the record shows that plaintiff brought suit upon these obligations against the defendant in the parish of Terrebonne, where the defendant had a plantation. Citation was issued in that suit on the 30th May, 1834, and served on defendant’s overseer on the 2d June, 1834. Judgment by default was confirmed and made final against defendant in that suit on the 20th September, 1834. When execution was issued upon the judgment, the defendant enjoined it, on the ground that he had not been legally cited, his domicil being in Ouachita parish. The Supreme Court, on appeal, sustained this view of the case, and perpetuated the injunstion. 11 L. R., 175. Prescription cannot he considered as interrupted by the suit in question. The legal interruption, spoken of in Articles 3484 and 3516 of the Code, takes place only when the debtor has been cited.

Had defendant’s legal domicil or residence been in Terrebonne, the service on his overseer, in his absence, would have been binding upon him. But under the circumstances it was not. The plea of prescription must therefore be maintained as to the negotiable note. As to the other obligation sued upon, the only prescription applicable is that of ten years, which, of course, was not acquired when the citation in the present case was served, in September, 1839.

The next matter to be examined is the exception that the other joint obligor, Caleb C. King, was not joined in this suit. Had this exception been tried in limine litis, it is probable that it must have prevailed. But in the progress of this almost interminable litigation, much evidence has been introduced, by the defendant especially, which has relieved us of the necessity of rendering useless all the labor and expense which has been incurred in enforcing the payment of an obligation now twenty-three years past due. It is admitted that Caleb C. King died before the institution of this suit, in the parish of Terrebonne, where his succession is opened. The defendant is his administrator. It is not shown who are his heirs, or that he left any nearer relative than the defendant, who was his brother. But were Caleb C. King living, it appears that an action might have been maintained against Richard King for the whole amount of these obligations. Although nominally joint obligors, the evidence above referred to shows clearly that C. C. King was surety to plaintiff for the 'payment by R. King of a debt originally incurred by the latter. 9 Rob., 112; 6 An., 423; 7 An., 640.

We find nothing,in the record to justify in the least any of the sweeping charges of fraud and malpractice contained in defendant’s answer. Numerous interrogatories to plaintiff, touching these charges, are appended to defendant’s answer. But no effort was made to procure answers to those interrogatories. They were never served on plaintiff, who lived in a distant parish; and only nine years after his death, at the trial of the cause, was an application made to take them for confessed. This application was properly rejected.

There is a motion to dismiss the appeal, on the ground that the security in the appeal bond is not a resident of the parish in which the bond was given. This involves a question of fact, which cannot be tried in this court; and we see no reason for remanding the cause to the District Court, in order that evidence may be taken on this point. The party appellee might have addressed himself to the court of the first instance, to test the sufficiency or legal qualifications of the surety on the appeal bond. There are numerous precedents for that proceeding. One directly in point will be found in 2 Rob., 449, though we do not wish to be understood as approving the ruling of the court on the re-hearing of that case, at page 452 of the same volume.

As the petition only claims at the hands of defendant one-half of each of the obligations set forth therein, and as we have sustained the plea of prescription in relation to the negotiable promissory note, our judgment must be restricted to the one half of the other obligation, or receipt for assignment of judgment against King and Bowie.

It is therefore adjudged and decreed that the judg-ment of the District Court be reversed, and tint the widow and heirs of Lemuel Tanner recover of Bichard King two hundred and sixty-six dollars and twenty-five cents, with five per cent, per annum interest from the 1st of January, 1832, until paid, and costs in both courts.


author: Voorhies, J.

text:
    S. Littleton, Administrator, v. Pratt, Boone & Ivy.
    Where a? purchaser buys up an outstanding and better title to the property than that derived from his vendor, he may plead a reasonable price paid for it as an offset against the vendor’s action for the purchase money.
    Appellant can not dismiss an appeal on the ground that there were two petitions of appeal returnable at different times and two distinct citations of appeal at different dates and with different return days, where either citation is sufficient and, especially, where on one of them was an endorsement, by appellee’s counsel, accepting service of the citation and taking cognizance of the appeal.
    It is not necessary that the appeal bond be executed before or taken or approved by the Clerk; it is sufficient if the Clerk file the bond.
    from the District Court of Bienville, Jones, J.

      Paxton, for plaintiff.

      Looney, for defendants and appellants:
    The vendees, the defendants, buying up a better title than that of the vendor, and the vendor being guilty of no fraud, he can only be compelled to refund to the vendee the amount of money he paid for the better title. Equity treats the purchaser as a trustee for the vendor, and acts done to perfect the title by the vendees in possession, -inure to the benefit of the vendor. 5 An. Reps. 200 ; Pepper v. Dunlap, 12 Peters’ Reps. 294; Galloway v. Findlay, Cook’s Tenn. Reps. 211; Leary v. Kirkpatrick, Mitchell v. Barry, 4 Hayne, Tenn. Reps. 136 ; 3 Peters 48; 2 Marshall’s Ky. Reps. 242 ; 5 Yerger’s Tenn. Reps. 398.
    And, this will operate to the benefit of the defendants, even though the said Owen had not so formally bound himself.
   Voorhies, J.

We think the District Judge erred in not allowing the credit claimed by the defendants on the note sued upon.

It appears that on the 12th of July, 1881, Lott G. Owens, whose estate is represented by the plaintiff as administrator, sold to the defendant, by sous-seing privé act, a tract of land described as Lots No. 1 and No. 2, in fractional section No. 13, in township No. 17, of range No. 10, the title to which was derived from Micah Miller, as the immediate purchaser from the United States. On the 13th of August, 1847, Micah Miller sold the undivided half of Lot No. 1 to John Slams, by authentie act, which was duly recorded. Subsequently, on the 30th of November, 1860, Micah Miller, by act under private signature, sold to Chas. Neal all the land thus acquired by him from the United States, without making any reservation in relation to the portion of it which he had previously conveyed to Slane. To secure the payment of the sum of $450, the price, on terms of credit, a special mortgage on the property was stipulated, and 3aid act was duly proved and admitted to record. On the 12th of April, 1851, Charles C. Neal, sold the same land to Loll Q. Owens and Thomas J. Neat Afterwards, on the 21st July, 1851, Owen acquired the interest of Thomas J. Neal. In order to perfect their title to the undivided half of Lot No. 1, the defendants, on the 8th of August, 1851, purchased the same from Isaac Miller, who held under John Slane, the vendee of Micdh Miller. The superiority of Isaac Miller's title to that of the defendants to this portion of the land conveyed to the latter is manifest. The purchase of it from Isaac Miller was, therefore, essential to cure the defect in the defendant’s title. The note declared upon, bears the following endorsement: “ I hereby agree that any valid claim that is against me which the payers of the wilhin note may have to pay for the purpose of securing the title to the land sold them by me, shall stand as a credit on this note. August 8th, 1851, Loll G. Owen."

The sum of $750 is stated, in the sale from Isaac Miller to the defendants, to be the price paid in cash. The validity of Isaac Miller's title to the land in question does not appear to have been contested, nor was there any attempt on the part of the plaintiff to show that the price paid for it by the defendants was too high or unreasonable. The plaintiff’s objection that nothing shows an actual payment of the price of it by the defendants, we do not consider entitled to any weight. It is, we think, in answer to the objection, sufficient to say, that the sale from Isaac Miller had the effect of removing the defect which existed in the plaintiff’s title conveyed to the defendants, and as the price is acknowledged in the deed to have been paid, it is clear that the interest of the plaintiff can never be affected thereby. The principle recognized in the case of Pepper v. Dunlap, 5 An. 200, may be considered as decisive' of this case.

Wo think the District Judge also erred in rejecting the defendant’s prayer to compel the plaintiff to give security in accordance with the provisions of Art. 2535 of the Civil Code. The mortgage stipulated in favor of Micah Miller, in the conveyance from him to Charles C. Neal, to secure the payment of $450, the price of the property in question, appears to be still subsistent, and we think the defendants have just reasons to fear that they may he disquieted in their possession in consequence of it.

The appellee relies on several grounds for the dismissal of the appeal.

1st. Because appellants have filed two district petitions for appeal, returnable at different times, and obtained, and had served two district citations of appeal at different dates and with different return days. It is a sufficient answer to the objection to say, that there is but one transcript, and that either citation is sufficient, particularly the citation on which the following endorsement appears to have been made by the appellee’s counsel: “ I hereby accept service and take cognizance of the appeal, January 7th, 1853.” It is not pretended that the transcript was not seasonably filed under this citation.

2d. Because he has not given bond according to law, the instrument appearing in the record does not appear to have been executed before or taken or approved by the Clerk. The bond appears to have been filed by the Clerk on the 3d of January, 1853 We consider this a sufficient compliance with the requirements of the law.

3d. The objection that the bond is not conditioned according to law, and does not bind the surety literally or substantially to be liable in the place of the principals, appears to us to be equally untenable. The obligation contracted by the principal, is to discharge or to satisfy such judgment as may be rendered against him. It is, on his failure to do so, that the obligation of the surety arises, in other words,that the bond becomes obligatory on him.

It is therefore ordered and decreed that the judgment of the District Court be avoided and reversed; and, it is ordered and decreed that the plaintiff recover of'che defendants the sum of two hundred and fifty'"dollars, balance due, after allowing the credit of seven hundred and fifty dollars, with eight per cent, per annum interest on said balance from the 1st of March, 1852, until paid; it is further ordered that the execution of this" judgment be suspended, until bond and security be given in the sum of six' hundred dollars by the plaintiff, conditioned as the law requires, and approved by the District Judge; and the costs of this appeal to be paid by the plaintiff and appellee, and those of the District Court by the appellants.


author: Buciianah, J.

text:
    C. Lewis v. G. W. Peets.
    TVhere it appears that the purpose of the suit is the avoidance of the sale by restoring the parties to the situation in which they were before the contract, so far as that is possible, it will be considered a redhibitory action, and not an action quo/nU mmoris. 0. 0. 2496, 2498.
    PPEAL'from the District Ceurt of Claiborne, Jones, J.

      McGuire & Bay, for plaintiff and appellant:
    The general rule is that parole evidence cannot be admitted against or beyond what is contained in the written act, nor on what may have been said before or at the time of making it, or since: C. C. 2256. The Article C. C. 2498, which says that the buyer cannot institute the redhibitory action on account of the latent defects which the seller has disclosed to him before or at the time of the sale, and that “ testimonial proof of this declaration may bo received,” is, as the court say in the case of Gooiloe v. Hart, 2 L. 449, “an exception to the general rule, and cannot be extended beyond the case provided for.” This exception, then, is confined to the redhibitory vice which the seller has declared to the buyer before or at the time of the sale, and not to the seller refusing to warrant-against a redhibitory vice which, he does not declare to exist. The declarations, made by the buyer before or at the time of the sale do not come within this ex-_ ception. In the case of Hawkins v. Brown, 7 L. 421, it was held that at a Probate Sale made by a Parish Judge, aided by a crier, who declared the existence of redhibitory defects in the slaves sold, at the time of the sale, that such declarations could not be received in evidence on the part of the administrator in an action against the purchaser for the price' of the slaves so sold, as the declaration, so made was not made by the vendor or administrator. See Decree, p. 423. The above decisions are not in conflict with the ruling in the ease of Campbell v:, Bolts, 5 A. 106.

      Egan, for defendant:
    Defendant files an exception here in strict accordance with the rule laid down, in Arts. 902 and 346 of C. P., and Zollicoffer v. Briggs, 3 R. 236, it being plead-, able -at any time, and the evidence apparent on the face of the record, that this is not good, either as an action “ quanliminoris,” nor “ an action of redhibition.”' The petition demands no reduction of the price, nor even its repayment, but only “judgment for nine hundred dollars,” in which amount plaintiff alleges he has been “ damaged.” It seems, therefore, to be an action instituted under Article 2294 of the Civil Code. It is the prayer of the petition which determines the-character of the action. Plennen’s Digest: Pleading, (V. 5, Sec. 2, and cases there cited.) “When particular forms of action are prescribed by law for the redress, of injuries, they must be complied with.” Again, “ compensation for injury sustained by the purchaser, in consequence of defects in the thing sold, can only be-recovered by a redhibitory action, or by the action quanti, minoris.” [See Richardson v. Johnson, 1 An. 389 — doctrines recognized and reiterated by the court in Peterson v. Burn, 3 An. 655, and Fisk v. Proctor, 4 An. 562.] There is great similarity between the prayer of the petition in the case at bar and that of liich-ardson v. Johnson, above quoted, where this point is expressly ruled. Rut even could an action for damages generally be maintained at all, plaintiff has omitted to allege that defendant knew of the defects in the slave at the time of the sale, and omitted to declare them ; wherefore defendant is not answerable for damages at all. [C. C., Art. 2523. Faentas v. Caballero, 1 An. 27; Musson v. Clayton, lb. 22; Johnson v. Johnson, 2 An. 67.]
    But not even a redhibitory action will lie when the defects in the thing sold were known or declared by the vendor before the sale, although the act of sale contain the usual warranty against redhibitory vices. [See C. C. 2498. Lebes. que v. Bonin, 3 R. 12 ; Campbell v. Botts, 5 An. 106; Hough v. Vickers, 6 An. 724.]
   Buciianah, J.

(Spofford, J., having been of counsel, recused himself.)

The appellee, who had a verdict of a jury and judgment in his favor in the court below, upon the merits, contends in this court that the conclusions of the petition are consonant neither with the redhibitory action, nor with that quantiminoris.

The petition sets forth a purchase of a slave for the price of seven hundred and thirty-seven dollars and fifty cents, fully warranted against redhibitory vices and maladies; that said slave proved to be a confirmed runaway, and died while a runaway; that by reason of such death, it is impossible to tender back the slave to plaintiff; claims nine hundred dollars, price of slave and expenses incurred in searching for him while runaway.

This appears to be strictly a redhibitory action. The purpose of the suit is the avoidance of the sale (C. C. 2496,) by restoring the parties to the situation in which they were before the contract, so far as that is possible. The plaintiff seeks to have again the price which he paid. If he does not offer to defendant to have again the slave that he sold, it is because the slave is dead.

The redhibitory vice alleged, is running away. The act of sale expresses a warranty against “all the redhibitory vices known in the laws of this State.” But the defendant pleads that he declared to plaintiff both before and at the time of the sale, that the slave Martin was in the habit of running away, and that he refused to warrant said Martin from running away. In support of this plea, defendant has offered a witness, who proves that he made the bargain with plaintiff for the sale of Martin; that after the terms of sale were agreed upon, witness told plaintiff the t tie of the slave was not in himself but in defendant, and they would have to go to defendant’s office to get title. Witness and plaintiff went to defendant, and told him their business; whereupon defendant sat down to write the deed of sale, and wrote on until he came to the warranty. He then remarked to plaintiff that he was perfectly willing to warrant the negro against all defects except that of running away. The plaintiff remarked that he thought the negro would run away himself, and that he did not want a warranty title for any other purpose than that, if he wanted to trade the negro, it would show that he had a full guarantee title, and that he did not care about the negro running away; that if he did runaway, he had dogs to catch him, &c.

To rebut this evidence, plaintiff called a witness, his brother, who declared that he was present when the contract of sale of the negro was made between the plaintiff and Nation, the previous witness; that plaintiff said to Nation that the boy looked like he might be a runaway, and Natten said he would not runaway. Witness was present at the time the plaintiff commenced writing the act of sale of the slave, and remained until it was more than half finished; went out of the room to another room fifteen or twenty feet off, to see what o’clock it was; was gone about a minute, and returned to Peels’ office long before he was done writing the deed. Witness heard nothing said at the time the act of sale was being written about the warranty, except that the defendant asked the plaintiff if he wanted a full warranty title, and the plaintiff replied that he did.

The admissibility of parol evidence to control the written act of sale, seems well settled, under the construction of Article 2498 of the Code, in the case of Campbell v. Botts; and the plaintiff’s objection stated in his bill of exceptions is viewed by us as going entirely to the effect of the testimony of defendant’s witness, which we have transcribed above, and placed in juxtaposition with that portion of the testimony of plaintiff’s witness which relates to the conversation between the parties at the writing of the act of sale.- Upon this conflicting evidence, the jury who tried this cause had to decide, whether, in point of fact, the defendant had made known to plaintiff, at the time of sale, the existence of the redhibitory vice of running away. In forming their opinion, the jury had over us the great advantage of seeing and knowing the witnesses and the parties: and we do not feel ourselves justified, under the circumstances of the case, in disturbing their award.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    State v. Securities of Breed.
    “ Errors in fact in the motive and in the law,” in signing a bond, must be put at issue by pleas which indicate that this defence is relied on, otherwise the Supreme Court will not take notice of an argument urged on those grounds.
    Parties cannot, in the Supreme Court, raise the objection to testimony on the ground that it was secondary, when that reason had not been assigned for its rejection by the District Court.
    The securities on a State Tax Collector’s bond are, as it was held in the case of Gopeley v. DirCk-grawe, each bound to the full amount for which they have obligated themselves.
    The payment of interest, at the rate of two per cent, per month after defalcation, is part of the Tax Collector’s obligation for which the sureties must respond'.
    Interest can only be exacted of the securities on a Tax Collector’s bond from the time that they were put in default.'
    from the District Court of Union, R. W. Richardson, J.

      Caldwell, District Attorney, for the State.

      McGuire & Ray, for the defendants and appellants.
   Spofford, J.

Most of the objections.to the judgment which are urged in the appellants’ argument seem to have been waived by the course of their defence in the court below.

The answer was a general denial, a special denial that Avery Breed was Collector of State Taxes for the year 1847, or that they were his securities, and a prayer that, if the facts should be found otherwise, judgment might be rendered against each of them for his virile share only.

Under such pleadings the defendants cannot be heard in this court to suggest for the first time that they signed the bond through “ error in fact, in the motive, and in law.”

The bond was received in evidence without objection. It recites that, “ whereas the said Avery Breed, Sheriff of the said parish, is, by virtue of his said office Collector of the State Taxes in and for the said parish of Union for the- year 1847, now if the said Avery Breed, in his said capacity, shall well and duly colled the State taxes in and for said parish, and duly pay over and account for the same according to law, then this obligation to be void, otherwise in full force.”

The defendants have thus admitted the fact that Avery Breed was Sheriff of the parish of Union at the date of the bond.

The Act of the 3d May, 1847, (Session Acts, p. 172,) made it the duty of the Sheriffs of each parish to collect the State taxes therein.

An extract from the tax roll for the parish of Union was offered without any objection on the part of the defendants that it was secondary evidence. It is too late for them to raise such an objection here. That document shows that the amount of the State taxes assessed against the parish for the year 1847, and which the Sheriff undertook to collect and account for, exceeded the amount claimed in the petition.

It devolved on the defendants under the pleadings, after this evidence, to prove either that the Sheriff had fulfilled the condition of the bond by collecting and duly accounting for the taxes claimed, or that the bond they signed was an absolute nullity.

They have not even intimated that the Sheriff did the duty which they acknowledged in the bond to be incumbent on him, and we are not prepared to say that the bond is absolutely null and void. Such an inference does not seem to be fairly deducible from a collation of all the legislative Acts on this subject, and no adjudged case has been cited that favors such a conclusion.

In Villeré v. Armstrong, 4 N. S., 25, it was held that the sureties on a Sheriff’s bond could not set up a defence which he could (not; such as that the bond was not legally given, because he had failed to pay up the taxes he had collected the preceding year, and thereby forfeited his right to hold the office of Tax Collector.

The point made with regard to the solidary liability of the defendant has been met in the case of Copeley v. Dinkgrave, 7 An., 596. Although the securities are not liable for each other, it was held that each was bound for the full amount to which he had obligated himself. Each of the sureties in this case is bound for the amount of the Tax Collector’s defalcation, which is less than the sum for which they severally obligated themselves. It would be idle to inquire whether they could be bound beyond the sum of $5000, as that question is not raised by the facts.

The payment of interest at two por cent, per month after defalcation is a part of the Tax Collector’s obligation, for which the sureties must respond. State v. Hays, 7 An., 121.

But it does not distinctly appear when he was in default. There is no judgment against him in the record, and no evidence from the Auditor’s office.

Under these circumstances we do not think the interest should be exacted from the securities for a time anterior to the institution of this suit, and the judgment must be amended in that respect.

It is, therefore, ordered that the judgment of the District Court be so amended as to allow interest at two per cent, a month on the principal sum therein awarded against the defendants only from and after the 13th September, 1852, and that in other respects the said judgment be affirmed, without costs in this court.


author: Lea, J.

text:
    A. Dunn v. J. Chaffe.
    In an action by the holder against the endorser of a note, the maker is not a competent witness to prove that the endorsement was for his accommodation.
    PPEAL from the District Court of Claiborne, Drew, J.

      Crain & Nutt, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Lea, J.

(Spofford, J., recused himself.)

This is a suit brought on two promissory notes, drawn by John L. While to the order of and endorsed by Davis, Chaffe & Co. Both were protested at maturity. The holder, (said plaintiff, A. Dunn,) seeks to recover the amount of these notes from John Chaffe, one of the commercial firm of Davis, Chaffe & Co.

The defendant resists payment on the ground that the endorsement was made by his partner, Davis, for the accommodation of John L. White, without his knowledge or consent, and in violation of their articles of partnership, and that the plaintiff took the notes with knowledge of these facts, and that the same was a fraud on respondent for which he never received any consideration.

For further answer, the defendant alleges that the note for $660 was given for interest on the larger note, calculated at a usurious rate. The defendant claims in reconvention the sum of $610, and in case judgment should be rendered against him on the note for $560, he claims a credit of $171 90, endorsed thereon. The only question to be determined is, how far are the matters pleaded in defence supported by the evidence ? Interrogatories on facts and articles were propounded to the plaintiff, the answers to which it is incumbent upon the defendant to disprove.

On the trial a bill of exceptions was taken to the ruling of the court in admitting the testimony of White. If the endorsement was for White's accommodation, his testimony would not have been admissable if objected to on proper grounds. 2 An., 845. If, on the contrary, it was not an accommodation endorsement, the defence to the action was entirely without foundation. As the objection to the admissibility of the testimony was not urged, upon the ground that Davis, Chaffe & Co. were accommodation endorsers, a fact which the plaintiff did not admit, the ruling of the court was correct;but giving full legal effect to the testimony of While, and that of the other witnesses, and it cannot be said to have been proved that the plaintiff participated in a fraud upon the defendant. It does not appear that he was privy to the transactions between While and the firm of Davis, Chaffe & Co., or that he knew that he was taking an obligation not within the scope of their partnership transactions. Indeed it is not shown satisfactorily that such endorsements are not usual in the course of the ordinary commercial transactions of factors. Assuming that the endorsement of the larger note was made by Davis for the accommodation of While, and that Dunn knew the fact, it would, assuming his good faith, still be a binding transaction, as an extension or credit granted to a third person would be a valid consideration. It does not appear, however, to have been purely an accommodation endorsement; it (that is, the larger note) was given in renewal of another note, made and endorsed by the same parties for $2330, in exchange for which the endorsers, Davis, Chaffe & Co., held another note for a like amount drawn by White for their own accommodation.

Upon the note for $550, we think the testimony supports the plea of usury. The plaintiff, who was interrogated under oath with reference to the consideration of the note, does not recollect what it was. Thinks it was for “ commissions,” and interest already accrued on the note for $2541, and on another note for $2000.

The testimony of Davis and White leaves no room for doubt that the consideration for which this note was given was the extension of the note for $2541 from April to December, 1849. The claim for a credit of $510 09 is admitted.

Upon the motion to dismiss the appeal, we are of opinion that the defect in the order of appeal is an irregularity against which the appellant is protected by the provisions of the Act of 1839.

Allowing a credit of $510 09 upon the note for $2541 72, there would remain a balance of $2031 63, for which, with interest from the maturity of the interest note, viz: the 4th of December, 1849, he is entitled to a judgment.

It is ordered that the judgment of the District Court be reversed, and that the plaintiff, A. Dunn, do have and recover of the defendant, John Chaffe, the sum of $2031 63, with interest thereon at the rate of five per cent, per annum from the 4th day of December, 1849, till paid, and that upon the note for $550, with interest, there be judgment for the defendant.

It is further ordered that the defendant, John Chaffe, pay the costs in both courts.


text:
    J. F. Kemp v. R. C. Hutchinson.
    A person who gives his note under circumstances which imply 'a waiver of pre-existing claims against the payee, cannot, when sued on the note by the payee, set up such claim as the basis of a reconventional demand.
    from the District Court of Bossier, Drew, J.
    Looney, for plaintiff.

      Grain ANwtt, for defendant and appellant.
   Buchanan, J.

The plaintiff and defendant are both residents of the parish of Bossier. Plaintiff sues defendant upon his note, payable to plaintiff or bearer, and dated November 14tb, 1853. Defendant reconvenes, claiming damages of plaintiff for the value of a negro woman slave belonging to defendant, who had drowned herself, as the answer alleges, “ to avoid the plaintiff and his excessive cruelty.”

The whole argument has turned upon the reconventional demand, to the regularity of which no exception was taken. The evidence shows that plaintiff was overseer on defendant’s plantation from May to November, 1853 ; that in the latter part of September, plaintiff caused defendant’s slave to be whipped twice on the same day, on suspicion of having committed a theft, and threatened her with further chastisement, unless she produced the stolen articles; that she denied the theft, but said she would try and find the articles; went to the river, into which she threw herself, and was drowned.

Immediately after this occurrence, plaintiff wrote to the defendant, giving an account of the same ; which account, we must suppose, was identical with that given by the witnesses, who have all testified to plaintiff’s own declarations on the subject. Defendant appears to have answered plaintiff’s letter, expressing dissatisfaction with the conduct of the plaintiff in relation to this transaction.

From the evidence, it is clear, that this correspondence between the parties, must have preceded the making of the note sued on, by about six weeks. Under the circumstances, the giving of this note,'' which was a settlement of account, is viewed by us as inconsistent- with the -claim herein set up by the defendant. The case differs from that of Kennedy v. Mason, lately decided by us, in this respect (among others), that in Kennedy's. ease, a reservation was made in settlement of accounts, of the value, of- the -slave, alleged to have been lost by the misconduct of the overseer. It is true, some of the witnesses say, that Hutchinson told them, that he was ignorant; at the time of the settlement, of the circumstances connected with the_ death of Big Haney, and if he had known-what he learned afterwards, instead of settling with Kemp, he would have required him to pay for the slave. 'If the defendant acquired, subsequently to the settlement, information through any other legal and competent channel, tending, to inculpate plaintiff, morejhan his own statements had done, it is reasonable to suppose that such evidence would have been laid before the court. But nothing of the sort has been offered. '

It is proper to add, that were there not" this, implied waiver of plaintiff’s claim from his subsequent act, we should hesitate .much before making plaintiff responsible for the suicide .of the slave in question. In the case of Kennedy v. Mason, the-death of the slave -was Considered' to have been the result of imprudent exposure to the weather, naked on the ground in a cold winter evening, combined with an extremely severe flogging,’ reported by eye witnesses in its minutest details. In the present case, we have no particulars of the chastisement, and positive proof, that the death was not the physical result of ill treatment, but the voluntary act of the slave. The power of correction of a slave, vested in his master by our law, was held, in the case of Kennedy v. Mason, to be delegated to an overseer, from the' nature of his employment. In the exercise of that power, the owner of the slave or his delegate, is only to be held responsible for the immediate and necessary consequences of his acts.

The verdict and judgment are silent as to the reconventional demand; although, substantially, it is disposed of by the decision upon the principal demand. The appellant complains of the omission, and asks us to remand the cause, in order that the reconvention may be formally passed upon. It appears to us, that it would be doing a vain thing, to remand the cause for such a purpose. The omission of a formal decree upon the reconvention, must he viewed as an oversight, which .we have ample power to correct, the facts being all before us.

It is true the appellee has not prayed for an amendment of the judgment; but the matter is brought to our notice by the appellant, and justice requires us to close this litigation.

The judgment of the District Court is therefore amended, by dismissing the reconventional demand; and, as thus amended, is affirmed, with costs..


author: Vookhies, J.

text:
    A. F. Davie, Administrator, v. J. H. Stevens.
    The regularity of the proceedings on which letters of administration issued, cannot be inquired into on an exception to the capacity of the administrator to sue.
    Where the maker of a note relies on payment before endorsement, or on any other legal defence, the burden of proof of the time of the endorsement rests on him.
    PPEAL from the District Court of Ouachita, JR. W. JRichardson, J.
    XX JRegenburg & JEsseeh, for plaintiff.

      McGuire & Ray, for defendant and appellant.
   Vookhies, J.

This is a suit on a promissory note alleged to have been given by the defendant in part payment of a certain plantation and slaves purchased by him from George M. Savage, and by the latter transferred by special endorsement, dated the 20th of June, 1849, to Aaron Vanhoolc, since deceased.

We do not think the Judge a quo erred in overruling the defendant’s exception touching the plaintiff’s capacity to sue as administrator of Vanhoolc's estate. Such objections, it appears to us, could only be entertained in a direct action. It is well settled that “ letters of administration make full proof of the party’s capacity, until they be revoked. They must have their effect, and the regularity of the proceedings on which they issued, cannot bo examined collaterally.” 2 La. 249. 2 An. 588. 8 An. 85.

The objection in relation to the authority of the Clerk to grant letters of administration, we think,. is clearly untenable. The action of the Judge is only required in cases where opposition is made to the appointment of the applicant. We consider the instrument in evidence, under the signature and official seal of the Clerk, as making full proof of the plaintiff’s appointment as administrator of Aaron Yaiihoolc's succession.

The defendant, in his answer, avers that he has just reasons to fear, that he will be disquieted in his possession by the holder of notes given by said Sewage, for the same property, for the payment of which the vendor’s privilege attached. .He therefore prays, that the execution of the judgment which may be rendered against him be stayed until the plaintiff give security against the dangers of said disturbance. This equity is resisted by the plaintiff on the ground, that the note sued upon, which is negotiable, was transferred to the deceased, Vanhoolc, previous to its maturity. But it is urged by the defendant, that there is no evidence of such assignment; that as a private act, it has no date until produced in court. The rule, as we understand it, is, “ that when the maker of a note relies on payment before endorsement, or any other legal defence, the burden of proof of the time of the endorsement, rests on him.” 1 N. S. 145. See also 2 Green. Ev. § 172.

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


text:
    McEnery, for the use, &c., v. H. Pargoud.
    The parish of Ouachita acquired the land in controversy by ani unconditional grant from the United States in 1S23. In 182T, it was sold under execution to satisfy a judgment against the parish, and after several mesne conveyances came into the hands of defendant. A part of the property had been used as a cemetary between the years 1794 and 1800, but its use was then abandoned. The parish brought this suit to annul the sale, and to be re-instated in its title, on the ground that the property was inalienable. There was no proof that the land had been consecrated as a burial place, or that it had ever been dedicated either expressly or by acquiescence to any public use. Held: That the temporary use of the land as a burial place, did not exclude it from commerce and exempt it from sale; and that the facts did not sustain the ground that it was a public place.
    from the District Court of Ouachita, BichardsonfJ. ’

      McEnery, for plaintiff.

      MeGuire & Bwjf for defendant and appellant. ...
   Spofford, J.

On the 1st of January,'1821, J):: J. Sutton, Register of the U. S. Land Office for the district north of Red River, reported to the General Land Office at Washington City a list of land claims entered in his office, pursuant to the Act of Congress passed on the 11th May, 1820, entitled : “ An ¿let supplementary to the several Acts for the adjustment of land claims in the State of Louisiana.” ^

Claim No. 59 was reported in the following terms and classed in the second class. v

“ The parish of Ouachita claims a tract of land at the junction of the River Ouachita and Bayou Siard, of three arpents front on the river by five arpents deep, equal to twelve American acres and 69-100. In this claim, Jean Filhiol, former Spanish commandant, deposes that he came to Ouachita as commandant in the year 1783 ; that, some time afterwards, at a general assembly of the inhabitants, it was agreed to set apart a piece "of ground, not conceded, of the dimensions claimed, for the purpose of a grave yard, and to build a church upon ; that, therefore, a portion was enclosed for a grave yard; that in the next year, 1794, several persons were buried there, and that the inhabitants continued to bury there until the change of government, and that this land was always considered as public property. Also,-Etienne Bisson deposes that he has been an inhabitant of Ouachita for forty years; that in the year 1793, the inhabitants (among whom he was one)’were ordered by the commandant to furnish pickets and fence in this land for a grave yard, apd that it was constantly used thereafter as a burying ground. These two witnesses are worthy of credit. This is a small piece of land,-hut very important to the feelings of the inhabitants.” Am. State Papers, Public Lands, vol. Ill, p. 603.

This claim was duly confirmed by the Act of Congress approved February 28th, 1823. U. S. Stat. at large, vol. 3, p. 727.

In 1827, Philip Winter and wife, as heirs of Wm. Oollins, brought a suit against the parish of Ouachita, which was contested, and resulted in the following definitive judgment:

“ By reason of the law and evidence in this case, it is ordered, adjudged and decreed that the plaintiffs recover of the defendants, the Police Jury and the parish of Ouachita, the sum of five hundred dollars with judicial interest from the 4th day'of April, 1827, until paid, with costs of suit to be taxed ; and it is further ordered, adjudged and decreed that the public property of said parish be subject to be seized and sold to satisfy said demand as prayed for in the petition.”

This judgment was signed by the District Judge on the 21st April, 1827, and no appeal appears ever to have taken from it.

Execution issued upon the judgment in July, and the property above described as having been confirmed to the parish by Act of Congress, was seized, and on the 17th August, 1827, adjudicated to Robert G. Seott at Sheriff’s sale.

On the same day, Seott conveyed the land by authentic act to Jonathan Morgan, with warranty.

On the 17th November, 1829, Winter, the plaintiff, in execution, assumed the warranty of title to Morgan who released Seott, the act for this purpose being passed before the parish Judge.

On the 23d April, 1838, Morgan conveyed the land in question, by public act, to Bypolite Pa/rgoud, the defendant in this action.

It also appears that an alias execution issued on the judgment of Winter v. The Police Jury of Ouachita, on the 24th August, 1827, to make the balance of the judgment which was not satisfied by the sale of the land in question ; other property was levied upon, but before the sale day, the Police Jury passed the following ordinance:

“ Whereas R. 0. Seott has obtained a judgment against the parish in favor of the heirs of Wm. Oollins, for the sum of $500, for the payment of which amount some public property has already been sacrificed, and more of it likely to follow the same course, and Mr. Seott, as agent of said heirs, being agreed •to stay execution until taxes sufficient to discharge the debt can be collected therefor: Be it ordained, that the Parish Judge be and he is hereby authorized to give said Seott an order on the Treasurer for the balance due on said claim, out of any moneys not otherwise appropriated. Sept. 4th, 1827.”

In 1851, the parish of Ouachita, through the President of its Police Jury, instituted the present suit against Bypolite Pargoud, for the land in controversy, upon the allegation that by virtue of the Acts of Congress and the report of the Register Sutton, it was granted to the parish for the purpose of a burial ground, and that the same thereby became the public property of the said parish.

Pargoud pleaded his title as already described, and the prescription of ten and twenty years ^ ho also -called the heirs of his vendor in warranty.

There was judgment for the plaintiff against Pargoud, and for Pargoud against the heirs of his warrantor. The defendants have appealed.

The case must turn upon the question of the alienability of the land a,t the date of the .Sheriff ’s sale •; for if it was inalienable, it is imprescriptible. O. C. 3463.

It is not pretended that at the date alluded to, there was any special statute exempting the property from seizure.

The only grounds upon which it seems plausible to urge that the sale was null, are that the property was a thing sacred, or that it was dedicated to the public use, or that it was essential to the existence or proper administration of the parochial government.

Of these points we will treat in their order.

I. — The ancient Roman superstitution stamped every spot of earth where a human body was known to repose, with a sanctity which excluded it from commerce. Instituí, de rernm divisione. Dig. L. I, tit. 3,1. 6, § 5. L. II, lit. 6, 1. 6, § ult.

It would seem that the Spanish law assimilated itself closely to the Roman law in this particular. Ill Partida, tit. 28, 1. 14.

“ A free man, a thing religious, sacred or holy, a public place — as public squares, roads, threshing grounds, rivers arid other waters which belong to the King, or commons of any.city — cannot be sold or alienated. But though we here say that a thing sacred or religious cannot be sold, yet there is a case in which it may be; as where a village or any other place is sold with all its dependencies. For though the church in the village, or anything belonging to it, could not be separately sold, yet by selling the village, they would pass with all other things, and the sale would be valid, as we have said in the first part of our book, under the title which treats of things belonging to the church, and of those that can and cannot be alienated.” Y Partida, tit. 5, 1. 15 ; 2 Moreau & Carl. Partidas, 670.

In countries where the Catholic religion prevails as the religion of the State, grounds, like cemeteries, become sacred and inalienable after being blessed by the priestly power. Merlin, Rep. verbo, Cimetiére.

The evidence shows that a part of the ground in question was first used as a place of burial under the Spanish provincial government, about the year 1794. No concession of the land was ever made. The inhabitants intended to build a church there, but never consumated their intention. A small portion of it, by a sort of common consent, was enclosed with pickets by the inhabitants, and used as a cemetery for a short period, say from 1794 to 1800. It does not appear whether it was ever consecrated. Its use was then abandoned, another spot having been selected for a grave yard which was thought to be more convenient.

In 1803, the country embracing it was ceded to the United States, and in 1823, this land was confirmed to the parish of Ouachita by Congress, moved, it would seem, by a respect for the feelings and associations of the old inhabitants of the neighborhood. But the United States annexed no condition to its grant. The fee simple of the land passed absolutely to the parish, and it must thenceforward be considered as under the dominion of the laws of L.ouisiana.

Conceding that by the Spanish law the mere fact of the ground having been used for the interment of the dead made it sacred ground, and therefore inalienable, the adoption of the Code of 1825 obliterated that distinction. The-provisions of the ancient laws concerning the distinction of things.into holy,, sacred and religious, and the nature and inalienability of those kinds of things, are abolished ; and nothing prevents the corporations or congregations to which, these things belong, from alienating them, provided it be done in the manner- and under the restrictions prescribed by their acts.of incorporation.”' O'. C. 447:

II.- — The plaintiff zealously urges that the- property was a public place, and; therefore inalienable. If bj^ the term public place it is meant that the property-once belonged to the parish, it is true, but that did not put it out of commerce.. If it is meant that the land was dedicated to the public for a use which was never abandoned, the evidence does not support the position. 'As we have seen the government of the United States in 1823. ceded the property to the parish, in unrestricted terms. The parish took no steps afterwards to put it to any-public use ; before the title vested in the parish, the public had abandoned its use for twenty-three years. The distinction between the Police Jury representing- the inhabitants of the parish, and the inhabitants themselves, is too refined for practical purposes. The plaintiff’s counsel, who draws the distinction, brought his suit in the name of the President of the Police Jury. The Police Jury never having dedicated the land, cither expressly or by acquiescence, to any public purpose, we cannot infer that it was inalienable merely because it contained the sepulchres of a few people who died before the present century. Even the fence which was built around them by the pious hands of their contemporaries, has been seen by few persons now living, and it seems never to have been replaced. The petition does not even allege that the parish desires to restore the ground to its ancient destination.

III. — Under these facts it can hardly be pretended that the land is essential to the existence or suitable administration of the parochial government and affairs. Upon this ground it was that our predecessors held in Egerton v. The Third Municipality of New Orleans, 1 An. 435, that taxes due to a municipal corporation could not be taken in execution by a judgment creditor of the corporation, and, on a similar ground, it was held in The Police Jury v. Michel, 4 An. 84, that court houses., jails, recorder’s offices, &c., provided by a parish, for the use of the State, were not liable to seizure for the debts of the parish. On the other hand, in Municipality No. 3 v. Hart, 6th An. 573, it was decided that an ordinary debt due by an individual to the Municipality might be seized under a judgment against the Municipality, such a debt not falling within the reason of the rule laid down in the former case.

It may be added to these remarks, that the parish, by the ordinance of Sept. 4th, 1827, which has been cited, and by its silence for twenty-four years, seems to have acquiesced in the doctrine which we believe to be correct, that, at the date of the Sheriff’s sale, the land in controversy was susceptible of alienation and was legally sold.

The legislative interpretation of our former laws upon this subject may be deduced from the Act passed on the 11th March, 1852, (Sess. Acts p. 113) which provided that thenceforward “ all cemeteries of municipal corporations shall be and are hereby exempted from seizure and sale for debt due by said municipal corporations.”

The parish, as the seized debtor under the execution sued out by Winter and wife, was remotely liable in warranty to Pargoud. It would have improved the moral aspect of the plaintiff’s case, if the petition had tendered to Pargoud the. money he expended for the land, and which went ultimately to pay the public debt. A political corporation which venerates the ashes of the dead can not display too scrupulous a regard for its obligations to the living.

It is ordered that the decree of the District Court be avoided and reversed; it is further ordered and decreed that there bo judgment for the defendant Pargoud, quieting him in his title and possession of the land claimed in the plaintiff’s petition and judgment for the defendants, the heirs of Jonathan Morgan on the claim of Pargoud against them in warranty; it is further ordered that the plaintiff pay costs in both Courts.


text:
    State v. Wilson Tucker.
    The Supreme Court has no power, under the provisions of the Constitution, to inquire whether the discretion of a Court, in refusing a new trial in a criminal case, on the ground of the misconduct of the jury, was properly exercised.
    from the District Court of Bossier, Bullarcl, J.

      Oaldwell, District Attorney, for the State,
    cited Wharton, 897; 1 Chitty, Criminal Law, 666, note e.

      Crawford, for the accused and appellant,
    cited State v. Crosby, 4 An. 434; State v. O' Connor, 6 An. 398.
   Lea, J.

(Spojtord, J., having been of counsel, recused himself).

Wilson Tueloer was convicted of murder in the District Court for the 17th Judicial District, holding session in the parish of Bossier, and, in accordance with the verdict of the jury, was sentenced to imprisonment and hard labor for life in the penitentiary.

On his application for a new trial and motion in arrest of judgment, the following grounds were submitted to the Court :

1st. That the jurors, after they were sworn, were allowed to separate.

2d. That various persons held private conversations with different members of the jury at different times.

After hearing testimony on these points, the Court refused a new trial, and the motion in arrest of judgment was overruled.

If we considered ourselves at liberty to adjudicate upon the questions of facts determined by the District Judge,’ we should hesitate to disturb a decision which assuming the veracity of the witnesses, we are not prepared to say is erroneous. The separation of the jury (to ‘invalidate a verdict) should bo such as might be supposed to have some effect upon the verdict; the rule cannot be extended to such temporary or necessary separations as may be reasonably anticipated, or must necessarily occur in the course of a protracted trial. In the case at bar it is not shown that any improper intercourse was held with any of the jurors; indeed we think the contrary is affirmatively proved : nor properly speaking, did any separation of the jury take place; the stepping aside of one of the jurors to obtain a drink of water, while under the eye of the Sheriff’s deputy, could not, under the circumstances detailed in the evidence, be so considered. The communication of the jury with the Sheriff, who had them in charge, were such as must of necessity occur in every trial of any importance ; without some such intercourse it would be impossible for them to communicate with the Court. The Sheriff says that he only spoke to them “ when they wanted something.” If the deputy Sheriff was intoxicated while in the discharge of his duty, as is alleged in the brief of the defendant’s counsel, which, however, can hardly be said to be proved, it would furnish a good reason for his dismissal from office, but could, in no manner, invalidate the verdict of a jury, unless it were shown that the verdict was in some way affected by his misconduct, which is not the case. But we consider it settled, after a careful and elaborate investigation of the question made by our predecessors, that this Court has no power under the provisions of the Constitution, to en-quire whether the discretion of a Court in refusing a new trial in a criminal case; on the ground of the misconduct of the jury, was properly exercised. State v. Brette, 6 An. p. 657; State v. Hunt, 4 An. and 438. “ The Constitution in limiting the jurisdiction of this Court in criminal cases to questions of law alone, by its terms, excluded all cognizance of questions of fact.” In Bornsby’s case as also in that of DismonA, to which we have been referred by the defendant’s counsel, the separation of the jury was admitted. In the case at bar the fact is expressly denied. We perceive no error to the prejudice of the defendant in the ruling of the Court as shown by the bills of exceptions taken on the trial of the rule for a new trial, and as no reference has been made to them in the brief of the defendant’s counsel, we presume they are abandoned.

It is ordered that the judgment be affirmed with costs.


author: VooRniES, J.

text:
    S. W. Oakey v. J. S. Corry.
    The assignee of a petitioner to the Federal Court of Mississippi for the benefit of the bankrupt Act of l$il,may, under the orders and directions of that Court, sell lands situated in Louisiana.
    The registry of sales and mortgages will give public notice, although the proof on which the recorder admits the registry, be informal.
    from the District Court of Claiborne, Drew, J.

      McGuire & Bay and Jones, for plaintiff.

      Egan, for Styles and Wife, Warrantors.
   VooRniES, J.

This is a petitory action for the recovery of certain tracts of land described in the plaintiff’s petition.

The defendant pleaded the general issue, and the prescription of ten years under a title translative of property, averring that he purchased the property in dispute from James M. Morrow, whom he called in warranty. Morrow admitted the alleged transfer, and averred that he acquired his title by purchase from David M. Styles and Wife, Eliza M. McBeth, of Mississippi, whom he also called in warranty. Styles and Wife adopted the defense sot up by the defendant, Oorry, in his answer to the plaintiff’s petition, but made no disclosui^ of the source from which they derived their title.

There was judgment in favor of the plaintiff recognizing his title to the undivided half of the land in dispute, but allowing to the defendant the value of his improvements, after deducting the rents, and in favor of the defendant against his warrantor, Morrow, and also in favor of the latter against his war-rantors, Styles and Wife. The defendant and warrantors have appealed.

On the 28th of March, 1842, Daniel MeDougall filed a petition in the United States Court for the southern District of Mississippi, to be declared a bankrupt, under the Act of Congress entitled, “ An Act to establish a uniform system of bankruptcy throughout the United States,” approved August 19th, 1841, and was accordingly so declared. Among the property surrendered to his creditors, as appears from an extract from the schedule filed with his petition, was the following:

“ The undivided half of the following described lands, to-wit: West half of section No. 10, township No. 21, rangeNo. 6 West, containing 315 95-100 acres. Section No. 9, township No. 21, range No. G West, containing 640 44-100 acres, lying and being in the State of Louisiana.”

On the 14th February, 1844, F. S. Bunt, general assignee in bankruptcy for that District, was authorized by an order of Court, “ to sell the real estate of Daniel MeDougall, in Louisiana, in the city of Jackson, on giving thirty days notice by advertisement for that time in the Southern Reformer, published at Jackson.” A report of the assignee filed in the suit of the bankrupt, on the 24th Eebruary, 1845, shows that the property thus described was accordingly sold, and the plaintiff as the highest bidder, became the purchaser for the price of $270. The assignee on the same day of the filing of the report, executed a deed of conveyance of the property to the plaintiff, a copy of which, as appears from the certificate of the parish Judge, was recorded in the parish of Claiborne, where the land in controversy is situated, on the 7th of July, 1845, and which annexed to the plaintiff’s bill of exceptions, we think, was improperly ruled out by the District Judge, as it was legal evidence to show the registration. An admission appears of record showing that the courthouse, in the parish of Claiborne, and all the records, were destroyed by fire. That the title of MeDougall, to the property surrendered by him, immediately vested by his bankruptcy in the assignee for the benefit of his creditors, is a proposition which must be considered as undeniable.

But it is objected that a bankrupt’s sale in one State, of lands lying in another, is a nullity. This objection appears to us untenable. The third section of the Act under which the sale in question was made, provides that the assignee shall have power to “ sell, manage and dispose of the same (the property and effects) as could be done by the bankrupt, subject, however, to the orders and directions of the Court.” The question then presents itself, could the bankrupt have made a valid transfer of his title in Mississippi to his lands lying in this State? If so, it is difficult to perceive why it could not be done by the assignee “subject to the orders and directions of the Court.” We are not aware of the existence of any law in our State which prohibits such an alienation of property, and it does not appear to us to be in violation of the principle announced in the case of MeCormieJe v. Sullivan, 10th Wheat. 192, “ that the title and disposition of real property is exclusively subject to the lex loci rei sitae which alone prescribe the mode by which a title to it’ can pass from one person to another.” It is not unusual to see conveyances of real property in this State executed in other States; and yet the validity of such conveyances has never been questioned. In relation to the question as to the registry, we consider the rule settled in the case of S. Hampton v. J. S. Morgan, 9 An. 555, in which it was decided that “the object of registry, both of sales and mortgages, being to give notice to the public, the object is fulfilled, no matter whether the proof on which the recorder acts, was formal or informal.” The recorded copy and original deed of conveyance from the assignee to the plaintiff are both in evidence' and the correctness of the former as a copy from the original is not questioned. It follows, therefore, that the title of the bankrupt to the property in controversy was fully vested in the plaintiff on the 7th of July, 1845. The evidence shows that the defendant’s title to the same property is derived from Daniel MeDougall, subsequent to his bankruptcy, by a conveyance which he made of it to Styles and Wife on the 17th of May, 1851, for the price of $500. This deed recites : “ But I, the said MeDougall, do not guarantee the title of said land against donations, alienations, actions or other incumbrances, and merely convey such rights and titles as I now have to the same.” This deed was executed in Mississippi, where the vendees resided.

The appellee has prayed in his answer for amendment of the judgment which decrees in favor of the defendant the recovery of $900 as “ one half of the value of the lands, occasioned by the improvements placed thereon ” by him. In this we are of opinion the judgment should be reformed. It is in favor of the plaintiff for the recovery of the “undivided half of the lands in controversy.” It is clear, therefore, that the parties by its effect being considered joint proprietors, must proceed to the partition of the property according to the rules prescribed by law.

It is, therefore, ordered and decreed thal the judgment of the District Court bo amended by rejecting the defendant’s demand for the value of his improvements, reserving the same together with the claim for rent, against him to be adjusted in-the partition of the property, and so amended that said judgment be affirmed with costs in both courts.


author: VOORHIES J.

text:
    Same Case on a Re-hearing.
   VOORHIES J.

It is ordered that the judgment heretofore rendered in thig cause be amended, and that there be judgment as in case of non-suit, against the warrantor, James M. Morrow, upon his demand against his war-rantors, Styles and Wife, for the value of the lands from which the defendant has been evicted by the judgment of the Court, and that said Morrow pay the costs of this appeal.

It is further ordered, that in other respects, the said judgment remain undisturbed.


text:
    M. E. Howard v. G. W. Copley.
    An exception to the plaintiff’s second suit on the same cause of action, that the costs of the first suit had not been paid, will not be sustained where the suit had been dismissed on. defendant’s exception. Articles 492 and 586 0. P. do not apply to such a case.
    An exception to the wife’s action on the ground that she has not been authorized to sue by her husband, will not be sustained where the husband appears by counsel to signify his consent. It will be sufficient to produce the authority itself at any time before the trial upon the merits. O. P. 820, 821.
    Citation or notice to the heirs to continue a suit already brought against their deceased ancestor will suffice; the law does not require that a copy of the petition be served on them. C. P. 120. The same rule applies to the case of an administrator.
    The gift of a slave by parol is valid by the laws of Mississippi.
    When the gift is to a minor, no formal act of acceptance is necessary.
    from the District Court of Ouachita, JR. W. Meha/rdson, J.

      Garrett & Ludeling, aud J. D. & Jno.- McEnery,. for plaintiff.

      O. H. Morrison, for defendant and appellant.
   Spofford, J.

This is a petitory action for a slave. The plaintiff had judgment below, and the defendant appealed.-

The appellant claims to have a valid defence upon the merits. But-he has so hedged it about with hills of exceptions, that it is difficult of approach.

The plaintiff was met in limine with the objection that the costs of a former suit between the same parties for the same cause of action had not been paid, although that suit had been dismissed at his costs; but it was dismissed on the exception of the defendant, and was not discontinued or suffered to go by default. The Articles 492 and 586 of the Code of Practice have no application to the case, and the exception should have been overruled even without evidence of the payment of the costs.

2. The plaintiff’s husband appeared by counsel to signify his authorization of the suit, and the exception on the ground of want of authority was properly overruled. It is sufficient if the authority be obtained and produced at any time before the trial upon the merits. 0. P. 320, 321.

3. It is immaterial whether the bill of exception to the competency of Me-JSnery, as a witness, was well taken or not.

4. The exception filed by the administratrix and tutrix of the minor heir of Copley, that she was not bound to answer until served with a copy of the petition, and that the suit abated by her husband’s death, is untenable. The Code of Practice only requires a mere citation or notice to the heirs to continue a suit already brought against their deceased ancestor. 0. P. 120. The same rule has been held to apply to the case of an administrator. Smith v. Nicholson, 6 Ann. 705.

5. Most of the depositions offered by the plaintiff in this cause, were taken under commissions, issued in the former suit between the same parties and for the same demand. It seems that the defendant who was an attorney at law and a Judge, anticipated that he should throw that suit out of Court upon an exception. Accordingly when served with copies of the interrogatories, he prefaced his cross-interrogatories with a protest that no action was pending in Court against him which could be maintained, and reserved all his rights in that behalf. As we have already seen, the suit was dissmissed upon an exception, but the testimony taken therein contradictorily with Copley himself was offered in the present suit, and this forms the subject of another bill of exceptions. The objection is, “that at the time the interrogatories were crossed there was no legal suit pending in Court.” We do not perceive its force; there was a suit pending, and its subsequent dismissal could not re.troact so as to destroy the testimony taken in it. No objection was made on the ground that the evidence was not taken in this suit.

6. The District Judge wisely exercised his discretion in refusing the amended answer offered by the counsel of the administratrix. Besides the circumstances tending to show that it was offered for delay, it altered the substance of the defence.

7. Neither did the Judge err in requiring the defendant’s present counsel to answer the questions put to him, touching the admissions of Copley in his lifetime, there being no evidence that those admissions wore made to him in the capacity of Copley's counsel, or were, in any respect, privileged communications.

8. The proceedings touching the sale of the property of Copley by his ad-ministratrix were inadmissible under the pleadings. They could only have been offered under the amended answer, which we have determined was properly rejected.

9. The answer closed with a prayer for a trial by jury, and in his brief the appellant complains that it.was erroneously disallowed. But not only is there no bill of exceptions upon this subject amongst the abounding stores of the record, but there is an entry that the jury was waived.

10. The plaintiff’s minority until about the time of the institution of the suit, suspended prescription, and that p'loa cannot avail the defendant.

At length we reach the merits.

The suit was filed in May, 1850. The plaintiff, a married woman, about twenty-one years of age, claimed to be owner of the slave Jim, then aged about fourteen years, by virtue of a donation made to her in Mississippi many years ago, by her father, Wm. T. Doaj, and one Sam’l, T. Bugg.

The boy’s mother died when he was an infant; she belonged to Smn!l Y. Bugg and Wm. T. Day, the father of the plaintiff; of course they were the co-proprietors of her issue.

During the minority of the plaintiff, they agreed with each other, to give the boy in controversy to her. It is established by the evidence of several witnesses whom the District Judge believed1, that an oral agreement of this kind was entered into in Mississippi by the co-proprietors of the boy shortly after the death of his mother ; that it was consummated theretby a delivery of possession, a possession as owner, which continued several years without contradiction, the boy being known and spoken of as the plaintiff’s property ; that after the death of Day, Bugg, one of the donors,, decoyed the slave across the river to the Louisiana side, and sold him, or his pretended interest in him, for the sum of §150, to G. W. Oopley, who was acting as attorney for the curator of the succession of Wm. T. Day, opened in Louisiana, and who had previously been counsel for the absent heirs, of whom the plaintiff was one.

There is strong reason to believe that Oopley had full notice of the plaintiff’s rights before he bought.

The gift of a slave by parol is valid by the laws of Mississippi.

When the gift is to a minor, no formal act of acceptance is necessary on behalf of the minor.

The continued possession of the boy by the plaintiff, or by her friends in her name, and her claim under the donation, prosecuted since she has become of age, sufficiently indicate her acceptance of the gift.

With the District Judge we are satisfied of the identity of the slave claimed by both parties.

The plaintiff has asked an amendment of the judgment, allowing hire from the year 1841, when Oopley took possession. Although he was not a possessor in good faith, yet the value of the services of the slave since that time are not proved; and, considering his youth, we cannot presume that they were sufficiently valuable to justify us in increasing the sum awarded by the District Judge. Judgment affirmed.


text:
    E. Simon v. P. Reynaud.
    Aii admission that F. P., if present, would swear that lie was appointed administrator of A.’s succession in September or October, 1848, is not proof that F. P. was the duly qualified and acting administrator on the 4th November, 1848.
    A demand made at the domicil of the deceased drawer, of his widow, is good to bind the endorser.
    from the District Court of Monroe, B. W. Bichardson, J.
    The following testimony was given as to the demand of payment of the note sued on :
    “Payment of the notes was demanded at maturity,, and notice was given to the endorsers, demand was made on the widow of the drawer at his domicil by my deputy, &c., &c.

      McGuire & Say, for plaintiffs.

      Balcer, for defendant and appellant.

      Felix Percy, the administrator of John Finio, was the person of whom the demand should have-been made and not the widow, and the following elementary authorities and decisions are relied upon: Bailey on Bills, 219 ; Chilty on Bills 889 ; Story on Bills, p. 279, § 346; Story on Promissory Notes, p. 286, § 241, 263 ; 3 Peters, 87; 7 Peters, 287 ; 7 Martin, 366 ; 7 L. 496, Toby v. Maurian.

    It is true that this Court has onee decided that “ where the maker of the note is dead on the day it is due and payable, and an administrator is appointed, it is unnecessary to make a demand on him, in order to charge the endorser, because he is not authorized to pay any claim against the estate until after the expiration of a certain time,” 10 L. 466. This decision is based upon a decision of the Supreme Court of Massachusetts, Hall v. Burr, 12 M. R. 86. That Court held that when the legal representative of an estate is prohibited by law from paying any claim against it until after the expiration of a twelve-month, no demand need be made on him in order to charge the endorser. A reference to that case will convince us that there were some collateral facts connected with it, which might excuse the proof of demand on the administrator, as it was shown that his agent frequently visited the counting-room of the maker, and was generally informed of the condition of the estate. The 'decision was made in 1816, and the Court express some doubt whether the principles which govern bills of exchange are applicable to promissory notes ; those doubts have long since become certainties.
    Judge Story, in his work on promissory notes, after stating the substance of the decision of the Massachusetts case, remarks: “But, quere, if this be a satisfactory reason- — -in the first place, the executor or administrator might, if he had ample assets, pay the note to avoid the running of interest, and, in the next place, the contract of the endorser is conditional, that he will pay the note, if duly presented and not paid at its maturity. The fact, that it may not, or will not be paid by the maker at its maturity, does not, in other cases dispense with the obligation implied by law, on the part of the holder, to make due presentment. Why should it, in the case of the death of the party? The French law is against the Massachusetts decision, Pothier de Charge. N. 146.” Story on Promissory Notes, p. 298, note 4 to § 253. The same observations are applicable to the Landry case: 10 L. 486. We think that the collaterate facts had great weight with the Court in the formations of the opinion in each case, and that neither of them can be maintained on principal. The French and English laws are coincident upon the necessity of a due presentment and demand of payment, in case of the death of the maker, and in such a case, the protest for non-payment must still be made: Story on Promissory Notes, p. 298-9.
   Spofford, J.

We do not think the plaintiff’s admission that Felix Percy, if present, would swear that he was appointed administrator of the maker’s succession in September or October, 1848, is sufficient proof that he was the duly qualified and acting administrator on the 4th November, 1848, the day of the demand.

Even were it so, the decision relied upon by the appellant’s counsel, Toby v. Maurion, 7 L. 495, is not applicable to the facts of the present case.

The case of Landry v. Stansbury, 10 L. 486, is an authority directly in support of the judgment appealed from.

The demand was made at the domicil of the deceased, of his widow, who answered that the same could not be paid at present.

The Judgment affirmed with costs.