text:
    Jane Gibney v. John Fitzsimmons.
    The father of a natural child acknowledged by him, ia liable for ^alimony for the support of the child at the suit of the mother. O. C. 227.
    It is not necessary that the time during which alimony should be paid for the support of a natural child should be stated in the judgment allowing the alimony. The time is fixed by law. C. C. 260.

      APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      M. M. Cohen, for plaintiff,
    contended: In this case plaintiff alleges, that defendant, under a promise of marriage, whch he never performed, became the father of her child, Eliza Jane Fitzsimmons, which was born on the 13th December, 1846; and plaintiff prays for such alimony for the support of said child as the age of said child and the pecuniary circumstances of said defendant may justify.
    After hearing evidence and argument, the judge of the Fifth District Court of New Orleans condemned defendant to pay alimony in the sum of ten dollars per month; and from this judgment defendant, after an ineffectual effort to obtain a new trial, appealed.
    1st. Defendant argued, that plaintiff did not sue as tutrix. To which plaintiff replies, that it was not neccessary. The relation of mother and child, and the alleged age of the child, showed that plaintiff sued for the use of the child; and the objection, that plaintiff did not sue as tutrix, is waived by defendant’s answer, and going to trial on the merits, and comes too late after judgment.
    Upon the trial, the paternity was fully established to the satisfaction of the court below, under article 226 of the Civil Code. There was judgment of the court to that effect, so far as it was necessary, because the defendant wa3 condemned to pay alimony, as such.
    The evidence showed tutorship by nature on plaintiff’s part. Defendant endeavored to prove that the child was christened under the name of Somers. To which plaintiff replies : 1st. That the identity was not establised. 2d. It may have been so christened by defendant’s agency, as a ruse and cloak. 3d. plaintiff was not present at the alleged christening, and had no agency therein. 4th. No John Somers is proven to exist, and in the argument of defendant’s counsel it was Patrick Somers.

    Defendant argued that his answers on the commission before Judge Bright, deny all knowledge as to paternity, and that it was necessary to prove by two credible witnesses that the defendant was the father. To which plaintiff replies, that the defendant’s denial of any knowledge of paternity answers itself, and disproves itself; as defendant must know if he is or is not the father of that child. Moreover, his paternity was established by the testimony of two credible witnesses.
    Defendant argued, that ten dollars per month was excessive alimony. But plaintiff proved on the trial, that it should have been $20 per month ; that defendant had a fine grocery store and was doing a flourishing business; had real estate unencumbered ; and that plaintiff had no means of support but her daily labor.
    As to defendant’s evasive answers to interrogatives, before Justice Bright, see 2 N. S. 55. 14 L. R. 186. 1 R. R. 31. 18 L. R. 59. C. P. 349. 4 L. R. 511.

      W. C. Budd, for defendant,
    contended: The petitioner charges defendant with her own seduction, aggravated by previous promise of marriage, and the subsequent birth of an illegitimate female child; the paternity of which she endeavors to fasten on defendant. This child she designates by the name of Eliza Jane Fitzsimmons; but from an untoward fate and the Rev. Father Monaghan, a Catholic Priest of this city, the infant received at the baptismal fount, the patronymic of Somers.

    Petitioner further charges, that a few months after the birth of said child, she was left direlict on the world by the said defendant, whose abandonment converted the damage done to her good fame into a total loss, &c. She claims -damages in this behalf, likewise alimony for the maintenance of her child; and farther, that she be recognised as its natural tutrix.
    The court a qua considering: 1st, that the paternity of the defendant had been made out; 2d, that no legal recognition of the child had been made by the mother and plaintiff, in conformity with article 221 of the C. C., decreed that said plaintiff should recover alimony at the rate of $10 per month from judicial demand.
    We would most respectfully suggest that there are serious objections, both legal and moral, to the ratification of this judgment, to wit: 1st. In this very suit she claims judgment recognising her as tutrix of her minor child; yet in this very suit she assumes to represent said minor and stand in judgment for her. The tutor alone is competent to represent a minor in judicial proceedings. C. P.108, 109. 2d. The judgment correctly refuses to recognise the capacity claimed by Jane Gibney; and yet through some strange oversight it allows a]}mony sued for in said representative capacity. 3d. The defendant denying the imputed paternity, a preliminary suit to establish the filiation was indispensable. Articles 257 and 258 C. C. are imperative on this point: “A judgment duly pronounced” is requisite in order that they (the natural children) may have a right to sue for alimony. 4th. This daughter of Jane Gibney was baptised by the name of Somers, as the daughter of John Somers. The law assigns to the certificate of baptism the same authority as to a notarial recognition, and puts it on the same footing of a judgment contradictorily rendered in cases of disputed paternity. Can this suit lie, predicated as it is, upon the assumed falsehood of this solemn instrument; and this too, without even making John Somers, the reputed father, a party to the investigation? 5th. The judgment decrees a monthly payment, which has a beginning but no end. Its registry would create a mortgage indefinite in amount, which could not be raised, because the judgment itself could not be satisfied. The record furnishes no clue to the terminus of defendant’s liability; and the omission ¡is fatal. 6th. If the judgment is indefinite, it but follows the prayer of the petition, á longo intervallo. In claiming alimony the plaintiff has omitted to designate any amount whatsoever — a looseness of practice which we believe has not yet received the sanction of this honorable court.
    The defendant, interrogated under oath as to his paternity, says: “He knows nothing about it.” This question he answers impulsively from the depth of his conviction, although he refused to respond to other interrogatories propounded at the same time, on the ground that the commissioner liad no authority to tender such interrogatories. Stephen Condon, a witness for plaintiff, in whose house she lived eight months, says, “as to her character, I had not much opinion of her. She appeai’ed to be a pretty hard case, and her latter end appeared to be as hard as her beginning. I often hoard her say • she would marry no papist for half New Orleans.” This womaff then, had strong religious prejudices, and y.et she suffered her child to be baptised by a Roman Catholic Priest, as the daughter of John Somers. How did this happen ? Who is John Somers ? This event occurred when the child was but three days old, and must have been known to the attendants and officers of the Charity Hospital. The plaintiff, upon the production of this extraordinary document, did not demand a continuance on the score of surprise, nor does her counsel attempt to account for its existence. And yet, from whom is light to come, if not from the plaintiff? But instead of satisfying the court on this point she prefers resting her case on extra judicial admissions of defendant, which are contradicted by his own conduct, as well as by his solemn declarations under oa1h. In estimating the value to be attached to said evidence the court will bear in mind, that the most important portion .of if was retailed to a commissioner in secret session; that the tone of the witnesses who testify to defendant’s admissions, shows them to be partisans of a very low class ; that it is not pretended that plaintiff and defendant lived in concubinage under the same roof; and that the very looseness of the connexion (if any) subsisting between the parties makes its abrupt and unexplained cessation, a circumstance of sinister import. Nor is it to be overlooked, that under article 228 C. C., the plaintiff might have offered her own affidavit in support of defendant's paternity. That she wilfully abstained from availing herself of this important privilege, the zeal and capacity of her counsel will not permit us to doubt. Must we not infer, that, however abandoned she may be, her soul recoiled from a revolting perjury, which must sooner or later be followed by discovery and condign punishment ? Must we not infer, that she preferred trusting her case to the surmise of the defendant? and when he declares that he knows nothing about it, we apprehend that the court will be very apt to adopt the same conclusion.
   The judgment of the court (King, J. absent) was pronounced by

Rost, J.

The plaintiff alleges, that she was seduced by the defendant under a promise of marriage, and had by him a daughter, which she is unable to support. She tenders proof of the paternity of the defendant, and prays that he be decreed to allow such alimony for the rearing and support of said child as her age and his pecuniaiy circumstances may justify. The answer is simply a general denial.

The evidence having satisfied the district judge that the defendant was the father of the plaintiff’s child, and that he was in good circumstances,.he allowed alimony at the rate of ten dollars per month from the judicial demand. The defendant appealed.

The exceptions taken to the action, in the brief of the defendant’s counsel, are made for the first time in this court, .and cannot be noticed. The defendant has waived them by his answer.

It is proved by witnesses, whose testimony is not impeached, that 'the defendant habitually acknowledged the child as his own, and called her so in conversation. His answer, when examined in open court, on the fact of paternity, that he did not know whether the child was his, eannot do away the effect of that evidence, under article 227 C. C. It is true that the girl was baptised as the child of one John Somers ; but this occurred three days after the birth, out of the presence of the mother, and, there is strong reasons to believe, without her knowledge. The existence of John Somers is not shown, and the certificate of baptism was in the possession of the defendant.

The appellant assigns, as an error, that the time during which the alimony is allowed is not mentioned in the judgment. This is as it should be. The time during which it is to be paid is fixed by law. C. C. 260.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Elizabeth Barrett, Adm’x., v. J. W. Zacharie & Co.
    Where the principal was present and acquainted with the acts of an agent, and a sale was made with the knowledge and consent of the principal, the agent who acted in good faith is not responsible to the principal for damages resulting from the transaction.
    It is requiring too much of an agent who has acted in good faith to oblige him to determine, at his peril, difficult questions of law which have not been adjudicated in this State, and upon customs not judicially recognised.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Fraser and Roselius, for plaintiff.

      Bradford and T. A. Clarke, for defendants.
   The judgment of the court (Slidell, J. recusing himself, having been counsel in the case) was pronounced by

Eustis, C. J.

This cause has been before this court on a previous occasion. Vide 2d Ann. 656. In June, 1847, it was remanded for a new trial to the district court, for the purpose of enabling the parties to amend the pleadings under which the cause had been tried in the court below: this court being of opinion that justice had not been done between the parties, by reason of the manner in which the plaintiffs grounds of action against the defendants had been set forth in her petition. By the judgment from which that appeal was taken, the plaintiff had recovered the sum of $9975 11. The trial was before the court. On the new trial, the case was submitted to a jury, who found a general verdict for the defendants. The district judge refused a new trial, and from the judgment rendered on this verdict the plaintiff has appealed.

The definite grounds of action which the plaintiff has set forth against the defendants and on which the case was tried, are: 1st, that the defendants had in their possession the steamer Claiborne, then running on the Mississippi river and belonging to the succession of Israel Barrett, whose administratrix the plaintiff was; that the steamer was insured to the amount of $15,000, and on a colIison taking place between the said steamer and the steamer Empire, the former was so injured and damaged that the underwriters were liable for a total loss ; and that it was the duty of the defendants to have abandoned her and to have recovered as for a total loss; that by neglecting so to do, the defendants made themselves liable to pay the plaintiff the amount of said insurance thus neglected to be recovered.

The second ground is, the alleged wrongful taking possession of the steamer by the defendants, a short time after the decease of Barrett, and running her up to the time of the accident.

It appeal's that in 1840, Barrett was the owner of the steamer Claiborne, then employed in the Natchez and Vicksburg trade, and having some transactions with J. W. Zacharie 8f Co., who were merchants in New Orleans, executed a bill of sale of the boat to James W. Zacharie, for the consideration of $12,000, in three several promissory notes of $4000 each, payable at different periods. The bill of sale bears date the 14th of April, 1840 ; and on the same day Zacharie gave Barrett a counter-letter to the effect, that the bill of sale was for the purpose of securing Barrett's debt to the house of J. W, Zacharie Co., and that Barrett having returned to him (Zacharie) his notes, it was understood that when Barrett should have settled all his responsibilities to the house, the steamer was to be re-conveyed to him. Barrett caused the boat to be insured; the papers at the customhouse were not changed: Barrett commanded the boat in the trade until about the 10th of September, 1840, when he died at Natchez, having previously entrusted the boat to the mate to take her to New Orleans, who continued in her up to the time of the accident of collision with the Empire, which took place on the 4th November, 1840. Shortly after the death of Barrett, the plaintiff who is his widow, appointed J. R. Bieddleman, master, and Buel clerk of the boat, according to the request of the deceased previous to his death; they remained in charge up to the time of the accident. The succession of Barrett was opened in the parish of West Feliciana, and the plaintiff was appointed administratrix on the 16th of October, 1840.

On the 12th of October, 1840, J. W. Zacharie, to whom the conveyance of the boat had been made in April previous, had the papers changed at the customhouse and the boat enrolled in his name. She was engaged in the trade up to the time of the accident, but earned little money. The officers appointed by the plaintiff appear to have had the entire management of the boat, as well as of her receipts and disbursements. The defendants do not appear to have exercised any control over her, or to have taken any part in the management of her business, inconsistent with the exclusive ownership of the plaintiff as the administratrix of her husband’s succession.

The plaintiff being present, for her residence in Feliciana so far as her business and duty were concerned, cannot be considered as making her a stranger as to what was done in a matter of this kind; we say, the plaintiff being considered as present, it was a question of fact for the jury to determine to what extent she must be considered, from her own acts, as consenting to what was done while the boat was in the name of Zacharie, deeming it, as she undoubtedly did, as for the benefit of the interests of the succession. We are satisfied with the verdict of the juiy on this point, and believe it to be in strict accordance with the evidence adduced ; and that so far as the succession of Barrett is concerned, there is no claim for damages against the defendants for the change in the enrolment at the customhouse, or any act touching the possession or management of the boat.

A survey was held upon the boat after the accident, and an estimate of damage made. Zacharie did not abandon, but sold the boat at public auction for $1,000, and settled with the underwriters on the basis of a partial loss. That the sale was made with the full knowledge and consent of the plaintiff, the evidence is conclusive. She was in the city and conferred with the defendants about it. It is also in evidence that after the sale was determined on, the plaintiff herself removed from the boat nearly the whole of the furniture, which the witness estimates loosely at from $1200 to $1500, though it may have cost double that sum.

It is not pretended that the defendants received any orders or directions concerning the adjustment of the insurance; and the fact of the sale with the plaintiff’s consent, may be considered as disposing of the right of abandonment, if it existed, that is, if the circumstances of the case warranted it.

Whether the case authorised an abandonment, is a question of law which has not been adjudicated in this State, depending upon authorities which are in some respects conflicting, or upon an usage which has never been judicially l’ecognised; and it would be requiring too much from an agent to oblige him to determine this question, and to determine it correctly at his peril. The defendants having acted in this contingency with good faith, and to the best of their judgments, and, as the jury were authorised in believing, with the concurrence of the plaintiff, we think are not liable for not having made the abandonment. The jury, were aware of the condition of the plaintiff and had before them evidence of the agency she took in the business of the succession. They undoubtedly considered her sex, and based their verdict upon their views of the conduct of the defendants under circumstances which it was incumbent on them to scrutinise and weigh. We do not understand any objection to the adjustment and settlement made as for a partial loss ; the controversy being exclusively on the liability of the defendants for not making the loss total by an abandonment.

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


text:
    Wm. Seawell v. Payne and Harrison.
    A deception practised by one partner upon another lias nothing to do with their obligation» to third persons who are not privy to it.
    A mortgage given by one partner upon the partnership property under a power of attorney,* which was ample, is valid.
    Where forty-three slaves are sold by the sheriff under no other description than as the increase of female slaves in the mortgage, the description is insufficient.
    A party who was aware of the description given by the sheriff in the advertisement of a' judicial sale, who treated with the plaintiffs for the purchase of the property, and Who from the facts can he presumed to have assented to the sale, is estopped from contesting its validity on account of the insufficiency of the description.
    Courts of justice should not overturn judicial sales, without securing the rights of those Who hold to them, by adequate security furnished by the party seeking to set aside such sales.*
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      J. R. Grymes, W. C. Micou and P. C. Wright, for defendant,
    cited the following authorities to shotv there was not a sufficient description of the property at the sheriff’s sale. McJDonogh v. Gravier, 9 L. H. McDonogli v. JElam,■ 1 L. R. 492. Carmichael v. Aiken, 13 L. R. 207. McGary v. Dunn, 1 Ann. 339. Ronkendorf v. Taylor's lessee, 4 Peters 362.
    Upon the construction of the power of the attorney, and that notice of an improper use of the power of attorney, either express or implied, or even a want of diligence in making enquiry, will throw the risk upon the party taking a security under the power. 1 American Leading Cases, 392 to 404. Story’s Ag. 62, 67, 68, 70. Paley’s Ag. 192, 198.
    That a ratification of the acts of an agent can only be presumed when the principal has a full knowledge of all the facts and circumstances. Story’s Ag. par. 243. 2 Kent, 616. Paley’s Ag. 171. 1 Am. Leading Cases, 421. Owings v. Hull, 9 Peters, 629.

      Prentiss and Finney, for Payne S¡- Harrison. Wm. Dunbar, for Gas Light Company.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff is a creditor of the late B. B. Breazeale, by virtue of a sale of an undivided one-half interest in a certain plantation and slaves, for which he claims a mortgage and vendor’s privilege. The object of the present suit is to obtain a decree, annulling a certain mortgage held by Payne fy Harrison, assignees of the Gas Light and Banking Company, avoiding a certain judgment confessed by the widow of the late B. B. Breazeale, in favor of the said company, and setting aside a certain sheriff’s sale of the property, in which the plaintiff has a mortgage, at which said Payne &f Harrison became the purchasers. The plaintiff also claimed a personal judgment against Mrs. Breazeale for the amount of the mortgage debt assumed by her, which does not appear to have seen contested.

The judge of the Third District Court, before whom the cause was tried, determined in favor of the validity and binding force of the mortgage, the judgment and the sheriff’s sale, but gave the plaintiff judgment against Mrs. Breazeale, for the amount of the debt claimed, and interest. From this judgment the plaintiff has appealed. The case has been elaborately argued on each of these points; and as they are distinct, it is better to examine each separately in the order in which they are presented.

And first, as to the mortgage. It bears date the 3d day of August, 1838, and was passed, in the parish of Natchitoches, before a notary public. It is executed by Breazeale in his own name and as attorney in fact of his partner, the present plaintiff, who were carrying on business as planters, under the name of Breazeale and Seawell, in the parish of Natchitoches. The power of attorney was made before the same notary. The act recited, that whereas the said Breazeale and Seawell were justly indebted, jointly and severally, unto the New Orleans Gas Light and Banking Company in the sum of forty thousand dollars, money loaned to them by said company, on the terms and conditions hereinafter set forth, and for which amount they have given their joint and several bond or obligation to said company. To secure the payment of this bond in five instalments, with the interest, their plantation and slaves in the parish of Natchitoches is mortgaged.

It appears that the loan was granted by the bank on an application made in the partnership name of Breazeale and Seawell, in February, 1838, in which it was stated, that the partnership was indebted to the commercial firm of Thomas Barrett Sf Co. of New Orleans in about the sum of $40,000, and that the proceeds of the loan might be applied to the payment of this debt. This arrangement was accordingly carried into effect. Barrett Co. were paid, and the bank became the creditor of the partnership. The debt of Barrett Sf Co. originated as far back as 1834 in the accounts between that house and Breazeale and Seawell, of whom Barrett &f Co. were the factors.

The power of attorney from the plaintiff, which bears date after this application, to wit, the 20th of April following, is full and ample. It authorised Breazeale to use the name of the firm in drawing and endorsing notes and obligations, executing mortgages, &c., as he might think proper and conducive to the interest of the firm.

It is conceded, that the plaintiff knew of the debt of Barrett 8f Co., and that he consented that a mortgage should be given in order to obtain funds to effect its payment. But it is contended that the plaintiff was deceived by his partner, and that this debt was in fact not that of the partnership,- but contracted for the benefit of Breazeale alone.

It is also conceded, that the terms of the power of attorney Were sufficient to enable Breazeale to bind the plaintiff on any new contract, and that any person advancing money on the faith of such a power of attorney would certainly be protected.- We concur with the district judge in- the opinion, that the validity of the transactions between the bank and the parties who effected the loan, and consented to its application, is not affected by the state of affairs between the partners inter se. A deceit between partners has nothing to do with their obligations towards third persons who are not privy to it. There is no evidence of any connivance on the part of the bank.' The accounts of these partners have never been settled; and the knowledge which the plaintiff had of this debt to the bank, and his repeated and continued acts in relation to it, preclude any court of justice from considering it otherwise than as he himself has treated it,- from- the time of its being contracted, in 1838, when the plaintiff was in Louisiana, up to the year 1847, to wit, as a valid and subsisting obligation.

In relation to the judgment confessed by Mrs. Breazeale in favor of the bank, we find no reason for setting it aside. This judgment is for the same debt for which the mortgage was given hy Breazeale and Seawell, which Breazeale had assumed to pay when he bought out Seawell, and which Mrs. Breazeale became bound for, she having purchased the property, in 1842, at sheriff’s sale, subject to the mortgages.

We have next to consider the validity of the sheriff’s sale, by which Payne and Harrison became the purchasers of the plantation and slaves, under an execution issued on this confessed judgment by the bank against Mrs. Breazeale. We do not think the evidence establishes any fraud or unfair dealing in any of the parties in relation to the sheriff’s sale.

The question has been argued at bar, as to the sufficiency of the description in the advertisements and sheriff’s sale. The words -‘increase of the above described female slaves,” meaning those children born since the date of the mortgage, to wit, the 3d day of August, 1838, are used as words of conveyance of that portion of the slaves.

It is an elementary principle of the contract of sale, that the vendor should explain himself clearly respecting the thing sold; and the principle is peculiarly applicable to sales made under the authority of courts of justice.

In the present case it appears that the list of the slaves was taken from the act of mortgage'; the names of those since deceased being marked dead. Among those designated as dead were several females, and their issue was consequently to be included under the general term increase of female slaves. It appeal's that some forty-three slaves were held by the purchasers as having passed under this denomination, without any other description. The original mortgage contained the names of but forty-five slaves, and purported to embrace their future issue.

It seems to us, that this description in the advertisement and deed would have been insufficient, under ordinary circumstances, to operate a transfer of the forty-three slaves which are held under the denomination of increase of female slaves. The description is far less definite than that which was held insufficient in a sheriff’s sale in the case of McGary v. Dunn, 1st Ann. 339. In that case tire description was “ninety pews in the Church of St. Patrick, more or less.” Code 3273, 3274. C. P. 648, 654, 655, et seq.

Whether this defect was cured by the proceedings under the monition, and to what extent these proceedings were affected by a suit in chanceiy, instituted by the plaintiff for the purpose of setting aside the sale, are questions which we have fully considered, but upon which it has not become necessary to express an opinion. A previous question has to be determined, and that is, whether the plaintiff, by his conduct in relation to this sale, has not placed himself in such a position that he cannot take advantage of this defective description of the properly to be sold.

There was a stipulation in the original mortgage to the bank, that in the event of the instalments not being regularly paid, the properly mortgaged should be sold for cash, without appraisement. A clause to this effect was usual in mortgages given to the banks. This we consider as binding upon the mortgagers, and those who hold under them. The plaintiff must be considered as a party to this act, and cannot complain of the exercise of the right of selling without appraisement, which was exercised by the bank.

The sheriff’s sale took place on the 3d of April, 1847, after the usual advertisements. The property had been for some months under seizure, and had been advertised for sale on the first Saturday in February previous, but the sale had been postponed by the agent of the creditor.

The advertisements of the property are not in evidence; but both parties assume the description which we have given from the sheriff’s deed and return to be correct.

The judgment was confessed on the first of December, 1846, and execution was issued on the fourth of that month. The description of the property, it is said by the plaintiff’s counsel, was copied from the mortgage and annexed to the writ, and the sheriff was directed to sell accordingly.

While the property was advertised for sale the plaintiff was in direct treaty with the bank for purchasing it. It was the only mode by which any part of his debt could be saved; and we accordingly find an effort was made on his part to get such terms of payment from the bank as would make the purchase advantageous to him. It appears the defendants were also in treaty with the bank for the same object, and that they and the plaintiff were in communication on the subject. The terms on which the bank was disposed to facilitate the plaintiff’s purchase do not appear to have been accepted ; and when the sale took place it appears to have been a fair one, in which the plaintiff and the bank were interested in its bringing a full price. On the 25th of January this letter was addressed by the plaintiff to the board of directors of the bank.

“ I understand that your board will meet this day, and will decide upon my proposal of the 22d inst., relative to the purchase of a portion of the plantation and slaves formerly belonging to Breazeale and myself, and advertised to be sold on the 6th proximo. In making this proposal, my sole object, as I stated, is to secure a debt which constitutes all my fortune, and not to injure any person. My object now, in making this communication, is to call the attention of the board to the notice of sale of this property. By reference to this notice, it will be seen that the stock and farming utensils, though specially mortgaged to the Gas Bank, are not included with the land and negroes to be sold. It is evident, that if the plantation is sold without the stock and farming utensils, it will be sacrificed, as it will be too late to procure stock, &c., to make a crop this year, so that no one but Mrs. Breazeale will be able to purchase it. “I made a proposal to Mr. Payne day before yesterday, that all the property formerly belonging to Breazeale and myself, should be valued, and that Mrs. Breazeale should take it at the value fixed, and secure me the balance, after deducting the bank debt, allowing her six or eight years, if necessary; paying me only a small amount in cash; or should Mrs. Breazeale be not willing to take the properly according to this valuation, that I should take it, and pay the bank debts.”

Not having the advertisements before us, and forming our conclusions from the sheriff's sale and return, we must believe either that the plaintiff was mistaken in supposing the stock and farming utensils to have been omitted, (and if this were so the plaintiff could easily have shown it,) or the matter to have been afterwards corrected, as we find them included in the sale and return.

This letter brings home to the plaintiff a full notice of the advertisements, and establishes the fact, that they were examined by him, and that the description of the property to be sold, except in the instance designated, was such, as in his opinion, as would insure a fair sale. It is obvious that the plaintiff acquiesced in this description. He had his chance of buying under it, and if those who were competing with him for the aid of the bank, bought under that description, it seems to us, that on the principles of law on which courts always act in cases of this kind, it is not competent for the plaintiff to avail himself of the defective description of the property, which had passed under his eye, and which he had an opportunity of correcting. We think we are authorised to infer, as a question of fact, that the plaintiff, so far as those with whom he treated about the purchase of the property, assented to the sale in this form, and is estopped from contesting its validity on that account. Cases cited in 1 Story’s Equity Jurisprudence, sec. 384, 385, 386.

Being satisfied with the fairness of the sale, when we look at the evidence concerning the value of the property, we are far from considering the plaintiff as having established any injury to his interests by reason of the price at which it was sold. The original mortgage debt has not been satisfied by the proceeds of the property sold; for which the plaintiff stands before us as responsible. And if a re-sale were ordered, what guarantee is there that any of the parties interested will derive any benefit from it. The purchase money, some $32,000, has extinguished that amount of debt for the judgment debtor. He acquiesces in the sale. If this sale be set aside, and the property brings less, she is the loser of the deficiency as well as the mortgage creditor: — taking precedence in right of the plaintiff; — and who derives any benefit from this disturbance? This is not a case in which it is necessary to affirm this principle, but it affords a strong illustration of the obligation of courts not to overturn judicial sales, without securing the rights of those who hold to them. Since this sale the region of country in which this plantation is situated has been inundated by an unusual flood of the Red River, and we are unfortunately menaced this year with a recurrence of The same calamity. The property might not bring one-half of what it brought at the sale. Justice forbids that the interests of the debtor and seizing creditor should be put in jeopardy, unless protected from ultimate loss by adequate security to be furnished by the party seeking to set aside the sale. Coiron v. Millaudon, 3d Ann. 668.

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


author: Slidell, J .

text:
    Shirley, Escott & Co. v. Owners of the Steamer Bride.
    Owners of steamboats are commercial partners. C. O. 2796.
    An attachment will not lie against the property of a partnership, where one of the partners resides in the State, and it is not shown that the partnership domicil is out of the State.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      L. Hunton and E. A. Bradford, for plaintiff,
    contended : The plaintiff, holding a claim against the Steamer Bride, brought suit to recover it. Lesperance, a part owner residing in the city of New Orleans, was cited in the ordinary form. HadlocJc, Driver and Blood, the other part owners, being nonresidents pf this State, were brought into court by attachment of their interest in the boat. The boat having been released on bond, the defendants then took a rule to set aside the attachment on various grounds, but particularly on the ground, that, inasmuch as Lesperance, one of the part owners, resides here, the boat being partnership property, was not subject to attachment. This last ground was sustained by the court, on the authority of the case of Munroe v. Frosh, 2 Ann. .9.62, and the plaintiff appealed.
    The principle established in the .case of Munroe v. Frosh, although reasonable and undoubtedly correct in respect to a commercial firm, having a social name and domicil, cannot, without violence to the general provisions of law, and to adjudged eases, be extended to part owners of steamboats or other vessels who possess neither a social name nor domicil.
    As the plaintiffs held a claim for which all the owners of the boat were bound in solido, they had a right to prosecute its recovery agajnst each and all of them; and, consequently, were entitled to the proper process to bring them all before the-, court. But, so far as the non-resident partners were concerned, the only process that could reach them was that of attachment. Byrne v. Hooper, 2 R. R. 229. Heffernan v. Brenham, 1st Ann. 146,

      Wolfe and Singleton, for defendant,
    contended : This appeal is taken from a judgment of the Fourth District Court dismissing a writ of attachment under the following circumstances: The Steamboat Bride was a packet running regularly between the ports of New Orleans and Vicksburg, carrying freight and passengers for hire, and was owned by Hezekiah Hadlock, Joseph A. Driver and William Blood, all of whom resided at the time, and still reside, in New Albany, Indiana, and by Francis Lesperance who resided at the time, and still resides, in the city of New Orleans.

      Lesperance, the partner who resides in N ew Orleans, owned three-eighths of the boat. The ground stated in the rule, and upon which the attachment was dissolved, is, that the process of attachment will not lie against partnership property, when one of the partners resides in New Orleans.
    The judge of the court below decided the case, and set aside the attachment upon fhe authority of the- decision in ¿he .case of Munroe v. Frosh et al., 2 Ann. 962. W.e think the judgment is fully sustained by the authority upon whi.eh the judge below has rested it. There are other obvious reasons why the attachment should be set aside. In the case of Munroe v. Frosh et al., this court held the following language : “ The remedy of attachment is a stringent one ; it has always been strictly construed, and has not been permitted, except in those cases where it is clearly and fairly applicable.” Now, here is a case, where property is owned by four commercial partners, some of whom reside in the State, and some of whom reside out of the State. This property constitutes the stock in trade, and is an essential feature in the partnership, and is strictly liable for all the partnership debts, and is of that character that no portion of it can be seized without seizing the whole.

      It is perfectly clear, that .the property of a resident cannot be seized by a process of attachment. The question then irresistibly forces itself on the mind ; can the attaching creditor in the exercise of his remedy of attachment, violate the rights of residents ? or, will he be permitted to trample upon the rights of residents, that he may enforce the extraordinary and harsh power of attachment against a non-resident? We do not think the present case one in which the remedy of attachment is clearly and fairly applicable.
    Suppose A. B. and C. were engaged in buying and selling cotton, and that A. and B. resided in .the State of Mississippi, and C. resides in the city of New Orleans, and that these three persons trade without assuming any common name. Now, suppose they purchase one hundred bales of cotton, and ship them to C., atNew Orleans. Query ? Would the process of attachment in a suit brought against A. B. and C. lie against this cotton ? If the decision in Munroe v. Frosh et al. be law, it certainly would not lie ? The attaching creditor would have no right, under any circumstances, to attach the property of C. But, it will be said, on the authority of Ileffernanv. Brenham, l Ann. 146, that in order to sue the owners of a steamboat, you must cite each one of the owners. We answer, so you would have to cite A. B. and C., if they did not assume a partnership name. And it will be contended again, that the case is not analagous, because the part owner of a steamboat cannot sell or part with more than his interest in the boat, while C. would have the entire control of the cotton, and might sell the whole of it. Well, how does this consideration affect the question of the right to attach? We cannot see that it can affect the question in the slightest, and amounts to a mere incident that is peculiar to the property which happens to be the object of the partnership. From considerations of public policy it has become the settled law, that a part owner of a vessel cannot sell more than his interest.
    The fact that persons choose to engage in a partnership trade without assuming a common name, does not make them the less commercial partners. The 3d section of article 2796 C. C., provides “ that those who are engaged in carrying personal property for hire in ships or other vessels, are commercial partners.” This language is broad and unrestricted. The feature of solidarity, which is the distinguishing mark of the obligations of commercial partners, is equally found running through all the operations and dealings of owners of steamboats, carrying personal property for hire. But, is the creditor remedy-less in the present case ? We think the law has given him a remedy that fully protects his rights, without infringing upon the rights of others. The bankruptcy of the partnership dissolves it. Art. —, C. C.
    The article 246 Code of Practice, gives the right of garnishment, which is a modification of the remedy of attachment. Would it not have been the proper course for the attaching creditor to have seized the interest of the non-resident partners in the hands of the resident partner, and thereby have provoked a settlement of the partnership ? It appears to us-, that this would have secured all his rights, and at the same time have enabled him to steer clear of the dilemma of seizing the property of a resident.
    It appears to us, that this case presents a conflict of interests and rights ; and the question is this : Is the resident the unfortunate man in owning partnership property with non-residents, or is the attaching creditor the Unfortunate man in having debtors so situated that he cannot exercise the remedy of attachment ? We think the court cannot hesitate, when two parties come before them under these circumstances, to' disallow the extraordinary remedy of attachment.
    The property attached in this case was bonded by F. Lesperance alone. So that we have the anomaly of a resident standing before this court, asking that his property be released from a seizure under attachment, and that the writ of attachment be set aside.
   The judgment of the court was pronounced by

Slidell, J .

The petition charges, that Lesperance, a resident of New Orleans, and Hadloclc, Driver and Blood, residents of Indiana, are liable in solido to the plaintiffs, for certain stores, &c., furnished for the Steamer Bride, owned by the defendants, and employed by them in the transportation of passengers and property for hue. Upon the usual affidavit of the indebtedness of the three last named persons, and of their residence out of the State, a writ of attachment was obtained, and the steamer was seized. She was bonded by Lesperance, he acting in the bond for himself and the other owners. Before issue joined a rule was taken by the defendants to show cause why the attachment should not be set aside. It was tried in the court below, and is presented to us upon the following agreed statement of facts :

At the date of the institution of this suit, as well as at the time the plaintiff’s claim accrued, the Steamer Bride belonged to Hezekiah Hadlock, Joseph A. Driver and William Blood, who resided, and yet reside out of the State of Louisiana, viz., in New Albany, Indiana, and to Francis Lesperance, who had for many years previous, and still resides in New Orleans. F. Lesperance owned three-eighths of the Bride. The steamer Bride was employed as a packet between the port of New Orleans and the city of Vicksburg, Mississippi, carrying personal property for hire.

The district judge, being of opinion that the case fell within the principle established in Munroe v. Frosh, 2 Ann., 962, made the rule absolute, and dismissed the attachment.

The article 2796 of the Civil Code is in these words : “Commercial partnerships are such as are formed, 1st. For the purchase of any personal properly, and the sale thereof, either in the same state or changed by manufacture. 2d. For buying or selling any personal property whatever, either as factors or brokers. 3d. For carrying personal property for hire in ships or vessels.”

It is not our intention, on the present occasion, to attempt the expression of an opinion as to all the legal consequences which may result from this naked provision of the Civil Code. The state of our legislation on the subject of shipping is quite anomalous, from the fact, that when the Civil Code was enacted it was expected that a Code of Commerce would also be enacted. The Civil Code expressly refers to the contemplated Commercial Code as the one which is to control, in cases of repugnancy, the subject of commercial partnership. Our opinion as to the effect of article 2796 must be considered as considered as confined to the case before us, leaving other points to be determined as they arise.

Under this article our courts have repeatedly held, that part owners of vessels are so far commercial partners as to be liable to the creditors of the vessel in solido. The doctrine to this extent may be considered as conclusively settled. If the part owners are to be held commercial partners, for the purpose of their liability to creditors of the vessel, it is fair to give them as against those creditors the benefit of that character. The burden and the advantage should go together, Qui sentit onus sentiré debet et commodum.

When attacked, therefore, as commercial partners, and charged by reason of that character in solido, it is just that they should be permitted to say, as against you, our vessel is partnership property.. Has a creditor, then, who charges his debtors as commercial partners, a right to the conservative process of attachment against the partnership property found in this State, when one of the commercial partners is a resident of this State, and it does not appear that the partnership domicil is out of the State ?

The remedy by attachment is a harsh one; it is in derogation of common right; it is, therefore, strictly construed. What we said in Frosh v. Muller, is deducible from the uniform jurisprudence on this subject, namely, that attachment must not be permitted, except in those cases where it is clearly applicable. Now, the object of our attachment law is to enable suitors in our courts to collect their debts, from non-residents. The property of a resident debtor cannot be taken on such process; his creditor must abide the ordinary course of judgment and execution. But, if the creditor is permitted to seize, under attachment, the property of a partnership in which a resident citizen is a partner, is not the resident citizen a sufferer 1 Is not the right of possession which belongs to him disturbed, and the prosecution of his partnership business defeated ? Undoubtedly they are ; aad, consequently, his privileges of exemption from attachment is substantially violated.

It is said, the case of Stunroe v. Frosh, is not identical with this. It is not. But the spirit of that decision reaches this case, and authorises us to say, that under a strict construction of the attachment law, a commercial partner resident here ought not to be disturbed by an attachment of the partnership property, at the suit of a creditor of the partnership.

Judgment affirmed, with costs.


author: Rost, J.

text:
    J. Seghers, Administrator, v. P A. Lemaitre et al.
    Where the petition does not show an interest in the plaintiff which he is prosecuting, the suit will he dismissed.
    Vague and general allegations are insufficient to maintain a suit.
    The purchaser at a sheriff’s sale under a mortgage is not concluded hy a lease which existed on the property, because it was mentioned in the certificate of the recorder of mortgages when the sale was not made subject to the lease, and the certificate was given without authority.
    APPEAL From the First District Court of New Orleans, J. Seghers, p. p.

      F. Buisson, for defendant.
   The judgment of the court was pronounced by

Rost, J.

A house and lot belonging to the defendant Lemaitre were sold under a mortgage debt held by Dominique Seghers, and purchased by Henry Kaym, who paid to the sheriff the cash portion of the price.

In the certificate of the recorder of mortgages, read by the sheriff at the time of the sale, it is stated that Lemaitre had leased the house and lot for the term of six years to Elizabeth Suiri, and that the rent had been paid to him for. the whole time.

Elizabeth Suiri having refused to deliver possession of the premises to the purchaser, he withdrew the payment he had made, on giving a receipt by which he bound himself to refund the amount, and to give his notes for the balance as soon as the mortgage resulting from the lease of the property to M’Lle Suiri will be decided to be null and void ; otherwise the adjudication to be considered as null.

The administrator of Dominique Seghers, who has since died, instituted the present to avoid the lease, on the ground that it is in frauden legis, and out of the usual course of business.

The defendants excepted to the petition, on the ground that it showed no cause of action, and that the property mortgaged having been sold at the sheriff’s sale for a sum over and above the amount of the mortgage, with .interest and costs, the plaintiff has no interest in the matter. This exception was sustained in the court below, and the plaintiff appealed.

We are of opinion that the grounds of action assigned are insufficient, by reason of their vagueness and generality; and that the judgment must, for that reason, be affirmed. In making this disposition of the case, it is proper to state that we do not consider the purchaser at the sheriff’s sale as being bound by the lease, because it was mentioned in the certificate of the recorder of mortgages. The sheriff did not sell the property subject to the lease, and the certificate of the recorder was given without authority.

If the lease has not been recorded as required by the act of 1806, or is simulated, the plaintiff may, at the request of the purchaser, undertake to clear the property of that encumbrance even if he was not legally bound to do so; but he must allege his cause of action with sufficient precision to put his adversaries on their defence.

Looseness of practice is a growing evil, which we deem it our duty to remedy.

The judgment is affirmed, with costs.


author: Slidell, J.

text:
    E. J. Hart & Co. v. Ship Jane Ross et al.
    Slaps and owners are liable for loss and injary to goods shipped, caused by bad stowage and want of care.
    Vessels are liable for loss and injury to goods shipped occurring from improper delay in not sailing at the appointed time; but the amount of damage must be shown by evidence.
    APPEAL from the Fourth District Court of New Orleans, Stratdbridge, J.

      M. M. Cohen, for plaintiff.

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

Slidell, J.

The plaintiff’s goods, as appears by the bill of lading, were received in good order and condition at the port of shipment; but when delivered at New Orleans were in bad order. The staves of casks were flattened and out of shape; boxes crushed, &c. There is no showing of stress of weather. The whole testimony tends irresistibly to the conclusion that the goods were badly stowed, and that the damage arose from that cause; for which the ship must answer. A portion of the claim, as exhibited by the account annexed to the petition, is for the leakage of casks containing liquors, and deterioration or injury of other articles, in consequence of the bad stowage and want of care. We see no reason to disturb the allowance made on this score by the court below. But there is a portion of the claim which is not supported by such evidence as would justify the assessment of any specific sums, or even enable us to make an approximate estimate. In the account it is claimed very loosely as “loss sustained by the unreasonable detention of the vessel after time advertised to sail, and time named by her agents in making contract for freight, say on $1500, $100.” It appears from the evidence, that the public advertisement and the private assurance to the plaintiffs were of the most positive character as to the time of the vessel’s sailing; but that these assurances were disappointed for the convenience and interest of the ship owners. The vessel did not put to sea until about twenty days after the time promised. There was a good deal of testimony going to show that transient ships (as distinguished from packet ships) are usually wanting in punctuality, and that the public do not rely nor act upon what the agents of such vessels promise. We concur with the district judge, that such evidence of usage should have little favor in courts of justice. We also concur in the opinion that the voyage was unduly procrastinated. Considering the season of the year and the nature of some of the articles, time was important. But the evidence to the point of resulting injury is so loose and vague that we are unable to allow that item of the claim.

It is therefore decreed that the judgment of the district court be reduced from the sum of $336 30 to the sum of $236 30, which sum is to bear interest from the 20th January, 1846, until paid, and that, so amended, the judgment be affirmed; the plaintiff paying the costs of the appeal.


text:
    Susan D. Marcos, f. w. c., v. Valcour Barcas, f. m. c.
    Until a bill has been probated it can produce no legal effect, and is not admissible in evidence. Where a mother claims as forced heir of it deceased child, it is not necessary to prove that the deceased left neither descendants nor collaterals, these being negative propositions; but she must show that the father is dead, or that one hundred years has elapsed from the date of his birth, to entitle her to' recover one-half of the estate.
    Alegatee who takes possession of his legacy without any authority for so-doing; is- bound to restore the fruits he has received. C. C.-1622.
    Where the value of the services of slaves for a long series of years is claimed, the expenses of rearing the children are to be considered in reduction of the amount.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      J. C. David, for plaintiff.

      H. Train, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that she is the mother and only forced heir of Désirée Hudson, who died intestate in 1837, leaving the slave Louis, who has been ever since in the possession of the defendant; that besides being the forced heir of Désirée Hudson, she is the creditor of her succession for funeral expenses and expenses of the last illness paid by her. She asks judgment for the slave Louis, and his hire since the death of her daughter.

The defendant has filed a general denial; and has farther answered that he was in possession of the slave Louis, as executor of the last will of Désirée Hudson and as legatee, with directions to have him emancipated as soon as he had attained the age required by law. He further alleges that the execution of the will has never been ordered, for want of funds to defray the expenses. There was a judgment as of non-suit against the plaintiff, and she appealed.

The will under which the defendant detains the slave claimed has never been probated, and until it is, it can produce no legal effect and is not admissible in evidence. C. C. 1637. Stewart’s Curator v. Row, 10 L. R. 553. Until the will was probated and ordered to be executed, the defendant had no light to the possession and services of the slave Louis.

We consider the admission of the defendant in his answers to interrogatories, that the plaintiff was the' mother of Désirée Hudson, and the testimony of the three witnesses who prove the filiation, as having reference to the allegations in the petition that the plaintiff' is the mother and forced heir of the deceased, or in other words, that she is her legitimate mother. It is urged that she has not proved the heirship alleged. Under the leading case of Hooter’s Heirs v. Tippet, 12 M. R. 390, the plaintiff was not bound to prove that the deceased left neither descendants nor collaterals, these being negative propositions. See also Owen v. Mitchell, 5 N. S. 668; Bernardine v. L’Espérance et al., 6 N. S. 96.

Under the authority of the same case, in order to show that she was the only heir, she should have proved that the father of Désirée Hudson'w&s dead, or that one hundred years had elapsed since his birth. This omission, however, we do not consider material, so far as the possession of the slave is concerned. The plaintiff is the heir of her daughter for at least one-half, and the defendant, not being a just possessor, is without color of right to oppose her claim.

It is proved that the deceased had the slave Louis in her possession at her mother’s house, and that after her death the defendant took him, and has enjoyed his services ever since. By his own showing, he was a legatee under the will of the deceased, and took possession of his legacy of his own authority; he is therefore bound to restore the fruits he has received. C. C. 1622. When Désirée Hudson died, Louis was a child, and the witnesses have set no value upon his services, except for the last four years. Underthe view we took of the value of the services of slaves when claimed for a series of years, and of the expenses of rearing slaves’ children, in the case of Henry G. Walker et al., appellants, v. Mrs. O. Duverger, Administratrix of F. Wharton, ante p.--, we are of opinion that the sum of three hundred dollars is a reasonable compensation for the services of the slave Louis. The plaintiff, underthe evidence, is only entitled to one-half of this sum.

The decision which we are about to make must, of course, be understood as not affecting the eventual rights of the slave Louis, if any he has, under the will of Désirée Hudson.

It is ordered that the judgment in this case be reversed. It is further ordered that the plaintiff recover from the defendant the slave Louis, and one hundred and fifty dollars damages. It is further ordered, that the defendant pay costs in both courts.


text:
    Van Wart, Son & Co. v. H. and W. Hopkins.
    Where the vendor draws a hill upon the vendee’s factor, which is accepted, he .does not thereby lose recourse upon the vendee for the amount of the purchase upon the dishonor of the bill; but in so doing he should not include in the bill amounts due by other vendees; for the vendee,, upon payment, is entitled to the possession of the bill, which ¿ould not he given if other vendees were also entitled to it.
    If the vendor who has drawn a hill upon vendee’s factor, after acceptance releases the acceptor, he thereby loses all recourse upon the vendee for the amount of the purchase.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      D. H. Dwell, ex parte, for plaintiff,
    contended: The judgment of the court below is erroneous, and should be reversed. 1st. Because Hobson and Sons were the agents of the defendants, and the debts originally due from defendants were not discharged by the drafts accepted by the Liverpool jiouse. Chitty on Bills, 10th Am. ed., 417, note C. 7 Hill, N.Y. Rep. 128, Hayes v. Slone et al. 2d. Because the release of Hobson and Sons, under their proceedings in bankruptcy, did not discharge the defendants. See Chitty on Bills, 10th Am. ed., 408, note M; 412 ; 421, note Y, and 422, note C. 3d. Because the defendants must have been parties to the bills drawn upon Hobson and Sons, to be affected by anything the plaintiffs might do with regard to the same. See Chitty on Bills, 10th Am. ed., 410, note S. 4th. Because the plaintiffs, after notice to the defendants of the insolvency of the Hobsons, acted for said defendants, and lightly received the dividends declared by Hobsons’ assignees. See Chitty on Bills, 10th Am. ed., 413, note U; 411, note T; 421, note 1. 5th. The term “ received in payment,” when applied to the taking of a note or bill for a precedent debt, does not import “ novation,” under the common law; and the tone of that expression by Hobson, in his evidence taken under commission, does not in any degree prejudice plaintiffs’ claim. See as to the force of said term, 6 Manning & Granger, 43. Yol. 46 Com. Law Rep. 43, 44.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs, who are manufacturers in Birmingham, England, claim from the defendants, merchants in New Orleans, the balance due on a sale of hardware in 1836, under the following circumstances. On the 11th June, 1836, the defendants addressed to the plaintiffs the following letter: “New Orleans, June 11th, 1836. Messrs. Van Wart, SonSf Co., Birmingham: Dear sirs : Annexed we have the pleasure to hand you an order for sundries in your line, and of which you will please put at your lowest prices; please be particular to have them all put up in good strong casks, and forwarded to the care of Messrs. Jno. Hobson Sf Sons, Liverpool, on whom you can draw at six months, adding interest after your usual credit; the other houses to whom we gave orders have an agreement to extend the time, and presume you will have no objection to do the same. We wish one half of the order shipped about the 15th August, and the remainder in two months afterwards, but not later. Requesting your attention as above, yours respectfully, H. & W. Hopkins.

The plaintiffs sent the goods mentioned in the order to Jonathan Hobson Sf Sons, of Liverpool, who forwarded them to the defendants. Upon receipt of the goods the defendants gave to S. Sf T. Hobson Sf Co., the New Orleans branch of the house of Jonathan Hobson Sf Sons, their notes for the cost and charges of the goods, which were duly paid. The plaintiffs drew two bills of exchange on Jonathan Hobson Sf Sons, at Liverpool, which were accepted, under instructions from their New Orleans house: one for <£359 5s. 7d., dated November 1st, 1836, at six months after date; and one for ¿6273 6s. 9d., dated January, 18th, 1837, also payable at six months after date. Of the first bill ¿6143 17s. 7d. was drawn on account of the goods shipped to J. Hobson Sf Sons, for the Messrs. Hopkins, and the remainder of the amount was for goods shipped by J. Hobson 4" Sons for another New Orleans house. Of the second bill a part also (¿6120 7s. 4d.) was for the goods sold ,to the defendants, and the residue for goods sold to another house. When these bills matured J. Hobson Sf Co. had stopped payment. On the 28th April, 1837, the plaintiffs addressed a letter to the defendants, who appear to have made no reply. They informed the Messrs. Hopkins, that J. Hobson Sf Co. had failed, and that they held two drafts drawn for account of the Messrs. Hopkins: “one drawn 1st November, 1836, for ¿6143 17s. 7d., due the 4th May; and the other, dated 18th January, 1837, for £120 7s. 4d., due 21st July next; for which we of course hold you responsible.” They stated that there was reason to believe J. Hobson Sf Co. would in time pay all claims in full, and have a handsome surplus; but that a long time would probably be occupied in winding up their affairs, and that if convenient to the Messrs. Hopkins, a remittance of part of the amount of the bills would be acceptable. “They, Messrs. Hobson Sf Co., ’’says the letter, “are to collect the debts due and settle all claims, under the advice of some three or four of their Liverpool creditors ; and they propose to pay five shillings in the pound upon all their acceptances as they fall due, and to pay another instalment as soon as they have collected funds enough for that purpose.” In September, 1839, the plaintiff again wrote to the defendants, stating that they had received from J. Hobson Sf Sons three instalments of five shillings in the pound each, and requesting them to remit the balance. They describe the bills in the same way as in their previous letter, and say, “we must ask you to remit promptly, and we will, if you should wish it, hand over the disbursed bills to any person you may appoint to receive them ; or we will hold them for your account, and claim for you any further dividend which Messrs. Hobson Sons may pay to their bill holders” This request remaining unanswered, was reiterated in 1841, in which letter the dishonored acceptances are s.till spoken of as hold on your account. The defendants .then replied ,by a denial of any liability.

In none of the letters of the plaintiffs do they state the fact that the bills were not drawn exclusively for account of the defendants. Nor is any allusion made to the release of J. Hobson 8f Sons. That the plaintiffs have absolutely released .them, is proved; but the date of the deed of release does not appear.

It may be assumed as the general rule under the English law, that a vendor agreeing to draw upon the vendee’s banker or factor for the price of goods, would not thereby merely lose his recourse against the vendee in the event of the subsequent dishonor of the bill. But undoubtedly the intention of the parties, if it can be ascertained, must control their rights. Here it is shown by the testimony of S. T. Hobson, one of the firm of J. Hobson Sons, that the acceptances were given in payment of the goods. It is true that the witness might perhaps be supposed to have used this expression loosely, if his testimony stood alone. But it derives a very strong confirmation from the conduct of the plaintiffs. If they did not intend to look to J. Hobson Sf Sons only, at all events after acceptance, how .was it that they blended another sale with that to defendants ? If they intended to look to the defendants for their ultimate indemnity it would have been natural and proper to keep their transaction distinct. For in case of non-payment and recourse .to the defendants upon the original consideration, it would have been their duty to hand the bills over, to fhe defendants, that they might recover .upon them for the acceptors. But here .the other New Orleans purchaser, whose transaction was blended with that of the defendants, would have as good a right as they to the possession of the bill; and thus the plaintiffs put it out of their own power to give the defendants the usual recourse upon the acceptor, which he ought always to have in a convenient and unembarrassed form, if he is to pay the person who has taken the bill. It is proper to notice in this connection, that the plaintiffs seem to have felt the danger of their real position and diguised the true state of the case in their letter of April, 1837. They tell the Messrs. Hoplcins they hold drafts drawn for their account for ¿6143 17s. 7d., and ¿6120 7s. 4d., as though they had been drawn for the specific amount of the defendants’ order, when in point of fact no such drafts existed.

But if there be any doubt-upon this point of the cause, there is another which is conclusive against the plaintiffs. This was not the case of a bankruptcy, as erroneously suggested by the plaintiff’s counsel, but a voluntary arrangement made between J. Hobson Sf Sons and their creditors, by which their assets were to be applied by themselves, under the supervision of certain persons selected, to the payment of their liabilities. What the particular' terms of the inspection .deed were we are not informed. B.ut whether it stipulated a future release or not, the plaintiffs in-their letters were silent on that point; they held out to the defendants the expectation that the drafts would be paid in full, and gave no intimation that they intended lo discharge the acceptors. It now appears, that without any assent or knowledge on the part of the defendants, the plaintiffs have given J. Hobsons § Sons an absolute release. In doing so, they have lost their recourse upon the defendants, if any they had. See Camidge v. Allenby, 6 Barn. and Creswell, 373.

Judgment affirmed, with costs.


text:
    Mary, f. w. c., et al. v. Daniel L. Brown.
    A. being- domiciliated in the State of Mississippi tools one of his slaves to Ohio, and after having there emancipated her, returned with her to his domicil in the State of Mississippi. Held: That the status of the slave must he determined by the laws of Mississippi, under which the emancipation was invalid.
    APPEAL from the District Court of Concordia, Farrar, J.

      A. N, Ogden, for plaintiffs,
    contended : The exception pleaded that the petitioners are held in slavery by the administrator of Read's estate in Mississippi, and that the courts in this State have no jurisdiction to decide on their claim to freedom, has no weight whatever. The right to freedom is a vested personal right which exists and may be asserted wherever the person is, or wherever he goes. See case of Rankin v. Lydia, 2 Marshall’s Rep. 467. Wheeler, Law of Slavery, 389.
    The administrator has no claim to the petitioners as assets in his hands, because the emancipation being effectual against James Read, whose estate he administers, it is equally so against his heirs and representatives. Ferguson et al. v.-Sarah, 4 J. J. Marshall’s Rep. 103. Wheeler, Law of Slavery, 280.
    That the petitioners were voluntarily taken to Ohio by their former master, and that slavery is not tolerated there, and that this was done with the intention, coupled with the fact, of giving them their freedom, is fully proved; they became ipso facto free and could not again be reduced to slavery. Marie Louise v. Mariot, 8 L. R. 475. If the owner of a slave remove him from a slave State to a State where slavery is not tolerated, animo morandi, the slave becomes ipso facto free. Lunsford v. CoquiUion 2 M. R., N. S., 401. A fortiori, this effect is produced if, while there, he expressly emancipates the slave.
    All presumptions in favor of personal liberty ought to be made. Oatfield v. Waring, 14 John’s Rep. 188.
    The administrator and heirs of Read are estopped to deny the plaintiffs’ claim to liberty. See case of Rankin v. Lydia, 2 Marshall’s Ky. Rep. 467. The emancipation having taken place in the State of Ohio, there is no principle of courts which requires the court to regal'd the statute of Mississippi on the subject.

      Stacy and Sparrow, for the defendant,
    contended : The defendant introduced in evidence the 47th section of chapter 11, on p. 166 ofHoward and Hutchison’s Digest of the Laws of Mississippi, which provides, in substance, that no act of emancipation, whether mortis causa or inter vivos, shall be lawful, or have effect, unless the person or persons passing the act shall prove to the satisfaction of the General Assembly, (Legislature,) that such slave or slaves have done and performed some meritorious act for the benefit of such owner or owners, or some distinguished service for the benefit of this (the) State, and the last will and testament or other instrument in writing, shall not have validity until the same shall be sanctioned by an act of the General Assembly,” &c.
    Judgment was rendered in favor of the plaintiffs, overruling the exception of the defendant, and on the merits declaring the plaintiff to have been legally emancipated, and to be free.
    In the first place, neither the act of emancipation passed in Adams county, Mississippi nor that in Cincinnati, even recites any meritorious act. done by the slave for the owner, nor any distinguished service rendered to the Stale. In the second place, no such fact was ever proved to the satisfaction of the General Assembly; and thirdly, the act of emancipation, nor either of them, has ever been sanctioned by the Legislature (General Assembly..) How then can it be pretended that the act of emancipation is valid ?
    The emancipation took place in Ohio. It is to be observed, that Read and the slaves where then all residents of the State of Mississippi, and they were in his possession. He removed them from the State with the express and avowed intention of emancipating them and bringing them back; in other words, of evading and defrauding the laws of the State of Mississippi. He did pass an act of emancipation of them in the State of Ohio, and brought them back with him to Mississippi in five or six weeks’ time after he left it. The case of Hinds et al. v. Breazeale et al., 2 Howard’s Miss. Rep. 841, is in every respect applicable to the present, and decides it. Nomine mulato, de te fábula narralur. In that case there was, in addition, a will of the deceased, recognising and confirming the emancipation made in Ohio. In this case, as in that, the negroes were slaves in Mississippi; they and their owners were residents of that State. In both, they removed them from the State to Ohio, for the purpose of emancipating them there and bringing them back. In both cases they did emancipate them there, and immediately bring them back to Mississippi.
    If they had never ceased to be slaves under the laws and jurisprudence of Mississippi, we must be pardoned if we confess our inability to understand how their being hired by the administrator of Read, in Mississippi, in 1848, to a citizen of Louisiana, orto be employed in Louisiana, could give them their freedom. Yet it is understood that this is the ground on which the judgment of the district court is based.
    The judgment of the district court is asked to be reversed with costs, and one given for the defendant, placing the plaintiffs in his possession as slaves belonging to the succession of James Read.

   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit in which the plaintiff, a woman of color, sues for her freedom and that of her four children.

The defendant, who is the administrator of the estate of James Read, late of Adams county, Mississippi, hired out the plaintiffs to A. S. Britton, in the State of Mississippi, to be employed at labor in the parish of Concordia in this State.

The freedom of the plaintiffs is claimed under an act of emancipation executed by their former master, James Read, in the State of Ohio, in the year 1846. The district court decided in favor of the plaintiffs; and from this judgment the defendant has appealed.

The domicil of James Read was in Adams county, Mississippi, where his succession was opened, and the status of the plaintiffs under the state of facts exhibited, can be determined under no other laws than those of Mississippi. They were born slaves, and it is in evidence that Read took them from his domicil in Mississippi to Ohio, for the purpose of liberating them from slavery, and, after having executed the act of emancipation in Ohio, returned with them to his place of residence in Mississippi. Was the status of the plaintiffs changed by this fact, according to the laws of Mississippi ?

In the case of Hinds v. Brazeale, 2 Howard’s Rep. 837, a principle is settled which controls this case. B. left the State of Mississippi for Ohio, and took with him a slave woman and her son for the purpose of emancipating them, and with the intention to bring them back; after having executed the act of emancipation, he returned with the slaves to the State where he resided until the time of his death. In his will he recited the act of emancipation, and declared his intention to ratify it; he devised his property to the emancipated son of the woman, whom he stated to be his own son. It was held, that the deed of emancipation was void, being a contract made in Ohio, in violation and fraud of the laws of Mississippi, and calculated to injure the State and its citizens, and set a dangerous example, since no owner could emancipate his slave, except by proper deed or will, and proof of meritorious services to the Legislature, which must ratify the emancipation. See the case of Cole v. Lucas, 2d Ann. 953. Judgment of Sir William Scott, in the case of the slave Grace, 2Hazzard Rep. 94.

The judgment of the district court is therefore reversed, and judgment rendered for the defendant, with costs in both courts.


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    Robert Seawell v. Key and Johnson.
    One who is a party to a joint and several note cannot be compelled to answer to a suit brought against his co-obligor and himself in another parish from the one in which he is domiciled.
    Where the defendant pleads his domicil in another parish, and the plea is sustained, the plaintiff cannot, after appealing the case, have the appeal dismissed at the defendant’s costs, because the defendant has subsequently voluntarily answered to the merits in the case.
    APPEAL from the District Court of Ascension, Randall, J.

      J. A. Man_ ning, for plaintiff.

      C. A. Johnson, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Suit was brought against the defendants in the District Court for the parish of Ascension upon their joint and several promissory note. It was alleged in the petition, that Johnson resided in that parish, and Key in the parish of Lafourche Interior. Key excepted to the jurisdiction. The exception was properly maintained. The plaintiff took an appeal, and now moves the dismissal of his appeal at the costs of the appellee, upon the ground that since the appeal was taken, ICey has pleaded to the merits in the court below, and thus voluntarily submitted himself to the jurisdiction of the court for Ascension. Key had a right to except, and the plaintiff had aright to appeal from’the judgment sustaining the exception. After the appeal was taken, Key had a right, if the plaintiff assented, to waive his privilege of being sued at his domicil, and join issue in the cause. But his doing so is obviously no reason for mulcting him in the costs of an appeal taken by his adversary from a judgment lawfully rendered in the appellee’s favor. The appellant does not question the correctness of the judgment; and as he asks a dismissal, we shall grant it at his own costs.

It is therefore decreed, that the appeal be dismissed, at the costs of the appellant,


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    Fisher, Burgess & Co. v. Wheeler and Ellis.
    The State insolvent laws do not extend to a contact made in another State, and to be there executed between citizens of other States; and a discharge under those laws does not extinguish the remedy against the future property of the debtor who has taken the benefit of them.
    The laws of Louisiana relating to the voluntary surrender of property by insolvent debtors, date no further back than 1817. They are consequnetly controlled by the inhibition contained in the Constitution of the United States against the passage of laws by the States impairing the obligation of contracts.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      A. D. Rozier, for plaintiffs,
    contended: The appellants contend, that there is error in the judgment of the court a qua. in not entertaining jurisdiction of this suit, and in dismissing it.
    The insolvent laws of this State are inoperative, so far as this contract is concerned. It is not maintained, that where, a debt has been contacted after the passing of an insolvent law, and tho debt was contracted within the State, and between citizens of the State, the discharge of the defendant would not be a bar to the suit. The obligation sued on was not contracted in this State. If our insolvent laws were merely tantamount to the cessio bonorum of the Roman law, which only exempted the person of the debtor from imprisonment, there would be no objection to them; but they go much further, and in certain contingencies release or discharge the debt, and exempt the future acquisitions of the debtor from execution for the debt. The article C. C. 2173 is thus worded : “a cession of property discharges all the debts which the debtor placed on his bilan, including those arising from offences and quasi offences, provided a majority of his creditors in number, and who are also creditors for more than the half of the whole sum due by him, agree to such discharge.”
    This makes our insolvent laws conte within the constitutional prohibition, and they impair the obligation of contracts. No State can impair the obligation of contracts.
    The appellants cannot be forced to become parties to the insolvent proceedings. If so, then the debtors under the article 2173- could obtain a full discharge'from the debt, and thereby exempt their future acquisitions from execution for the debt. This cannot be done. The debt was contracted out of this State, to be executed out of this State, and the obligation was entered into by and between citizens of another State. Tho application of the defendants for the benefit of the insolvent laws of this State can have no reference or application to the debt sued on in the court a qua. At the time the parties contracted they had not in view the insolvent laws of this State. They cannot be supposed to have been incorporated in their contract, as is the case when the debt is contracted within the State, and between citizens of the State.
    The result of the decisions, says Judge Slory, (3 Com. Const. U. S. 15, 256,) is, that State insolvent laws lawfully apply, 1st. to all contracts made within the State, between citizens of the State; 2d. they do not apply to contracts made within the State, between a citizen of the State and a citizen of another State ; 3d. nor to contracts not made within the State; and the contracts so protected are equally so from prospective as well as retrospective legislation. See Kent’s Com., vol. 1, p. 422.
    Can, therefore, these creditors, citizens of the State of Missouri, be foi-ced to enter into the concurso, and thereby enable the insolvents to obtain a discharge of the debt? The appellants think not, and maintain that there was error in the judgment of the court a qua.

    But even if we did not incur the risk of these debtors obtaining this discharge, still our insolvent laws, so far as this debt is concerned, are totally inoperative, for the reasons set forth above.

      Frank Haynes, for the defendants,
    contended: The question is narrowed to a single point. Shall King and Fisher be bound by the insolvent proceedings had by defendants before the Third District Court, King and Fisher being absent creditors residing in the State of Missouri ?
    The appellees contend, that King and Fisher are bound by said proceedings, for this: 1st. King and Fisher are placed on insolvent’s bilan for note sued on. 2d. That an attorney was appointed by the court to represent the absent creditors. Notice and citations were served on him by the sheriff. That King and Fisher were represented in the concurso by P. S. Warfield, attorney, appointed to represent the absent creditors, Olney v. Walkers 12 L. R. 247. 3d. The plaintiffs have attempted to enforce their claim in the tribunals of this State; therefore they should be bound equally with one who has resided here. Should one who is a non-resident claim a greater privilege than our own citizens ? This subject was fully discussed and settled in the case of Ray v. Cannon, 2 N. S. 26. 4th. That the insolvent laws of Louisiana do not grant an absolute remission of the debt. It releases the debtor from imprisonment, but does not extinguish the debt. Union Bank v. Bagley, 10' R. R. 43. 5th. That the placing plaintiffs, or rather King and Fisher, on the bilan, their claim being acknowledged, they are the same as judgment creditors, so far as the distribution of the effects surrendered, or the amount the insolvent might be possessed of, were he fortunate. Fernez y Carille v. Bank of the United States, 10 R. R. 164. 6th. That the judge of the cour-ta qud properly ordered, that these proceedings be cumulated with the insolvent proceedings before-the Third District Court of New Orleans. That King and Fisher were parties to the concurso by representation of the attorney appointed by the court.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action on a promissory note drawn by the defendants in favor of King and Fisher, (who are the real plaintiffs in interest,) in the State of Missouri, and payable at the bank of said State in St. Louis. All the parties were at the date of the note citizens of that State. The defendants afterwards removed to this State, and established themselves in business in New Orleans. Previous to the institution of this suit they applied to the Court of the Third District of New Orleans for the benefit of the laws relative to the voluntary surrender of property. The cession of their properly was accepted by the judge, and the sheriff was appointed syndic of their estate. These facts and the order of the district judge staying all proceedings against the person and property of the insolvents, were pleaded by the defendants in bar of the plaintiffs’ action.

The judge of the Fourth District Court of New Orleans, in which that suit was instituted, sustained virtually the exception of the defendants, and transferred the proceedings to the Third District Court, decreeing that the plaintiffs be precluded from proceeding in the court in which it was then pending. From this judgment the plaintiffs have appealed.

The regularity of the insolvent proceedings has not been impugned; and it appears that King and Fisher, to whom the note belongs, were placed on the schedule of the insolvents as creditors for the amount thereof. The question on which this case has been presented in the argument of counsel is, whether King and Fisher are bound by the insolvent’s proceedings had in New Orleans, they as Well as the defendants having been citizens of Missouri at the time of the making of the note, and the note having been executed and made payable in the said State. The case has been argued by the counsel on both sides as resting on authority, and the argument has been confined to the authorities cited.

We think the rule to be settled, that the State insolvent laws do not extend to a contract made in another State, and to be there executed between citizens of other States; and that a discharge under these laws does not extinguish the remedy against the future property of the debtor who has taken the benefit of them. The point has been repeatedly decided in express terms. Witty, Follet, 4 Wendell, 458; and cases cited by counsel. 2 Wendell, 458, same case.

It is true, as contended for by the counsel for the defendants, that the late Supreme Court held, that the inhibition contained in the Constitution of the United States against the passage of laws by the States impairing the obligation of contracts, did not apply to the Spanish law's originally in force in Louisiana, or to the laws of the Territorial Government relating to insolvent debtors, but to laws enacted by States of the Union exclusively. But the Spanish laws have been repealed, and the laws of the State relating to the proceedings in case of voluntary surrender of property by debtors, not in actual custody, of which the defendants have sought the benefit, date no further back than the year 1817, subsequent to the admission of Louisiana into the Union. The Code of 1808 is also repealed by a statute of 1828, except as to some articles which have no reference to the present subject. Laws of 1828, No. 40.

The defendants obtained no discharge from their creditors, but have pleaded their application for the benefit of the insolvent laws, the acceptance of the cession of property, and the stay of proceedings ordered by the district judge on accepting the cession; which raises the question before stated, whether the plaintiffs are bound by the insolvent proceedings of the defendants.

It seems to follow necessarily, from the rule above stated, as the plaintiffs did not attempt to reach the property vested in the creditors by the cession made by the insolvents, but merely asked for judgment on their debt, the proceedings iu insolvency are no legal impediment to the plaintiff’s action.

The judgment of the district court is therefore reversed, and the case remanded for a new trial, with directions to the judge to proceed therein according to law; the appellees paying the costs of this appeal.


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    George W. Campbell v. Thomas Slidell.
    A syndic acquires from an insolvent no greater rights than the insolvent himself possessed; and where the insolvent had surrendered all his interest in certain lots, and the syndic sells iu conformity with that description, the purchaser cannot claim afourthinterest which the insolvent had previously convey ed, although the title had not been recorded in the parish where the property was situated.
    APPEAL from the (late) District Court for the First Judicial District, Buchanan, J.

      J. Vanmater, for plaintiff.

      E. A. Bradford, for defendant.
   The opinion of the court (Slidell, J. declining to sit in the case, being interested) was pronounced by

Eustis, C. J.

On the 4th November, 1836, Martin Gordon, Jr. and John McHenry, bought from H. C. Cammack and Thomas Dixon, in the city of New Orleans, throe lots of ground adjoining each other in the rear of suburb Lafayette, having a front of about one thousand feet, and extending about four thousand feet in the swamp, where they terminated in a point. The price was twenty-five thousand five hundred dollars, payable in one, two and three years. Each of the purchasers gave his six notes endorsed by the other for $2125.

On the 8th of July, 1838, Gordon conveys to the plaintiff one undivided fourth of this property. The price we infer to have been the sum of $6375, being the amount of three of the notes given by Gordon for the purchase, two of which it is acknowledged in the act the plaintiff had paid, and one of which he assumed to pay. The conveyance was made in consequence, it would appear, of a previous agreement between the parties ; and we do not understand it to be contested that the price was fully paid by the plaintiff for the one-fourth interest in the land thus conveyed to him. The act of conveyance was only recorded in the office of the recorder of mortgages in the parish of Jefferson, where the land was situated, on the 12th December, 1840, without being registered in the office of the parish judge or of a notary public in that parish.

On the 20th February, 1840, Gordon presented his petition praying for the benefit of the laws made in favor of debtors in actual custody. In his schedule of effects he placed one undivided fourth interest in the property purchased by McHenry and himself from Dixon and Cammack, and afterwards assigned to the syndic all his right, title, and interest in the property set forth in the schedule.

The syndic in selling the property of the insolvent, instead of describing the interest in those lots as one undivided fourth, advertised and sold all the right, title, and interest of Gordon in the property purchased of Dixon and Cammack. Under this denomination the interest of Gordon was adjudicated to the defendant, who ceding the purchase to another, the conveyance was made to the latter. But as the defendant was under the necessity of taking back the land, for the purpose of this suit, he may be considered as holding under the adjudication and conveyance of the syndic. The conveyance bears date the 16th October, 1840, and was recorded in the parish of Jefferson on the 17th November, 1841. It purports to convey to the purchaser all the right, title and interest of Gordon, and of the syndics and creditors, by virtue of the cession made by the insolvent iu and to the lots before described.

The present suit, though in the form of an action of jactitation, has resolved itself into a petitory action as to the ownership of the undivided fourth interest sold by Gordon to the plaintiff before his failure — the conveyance of which was not recorded in the parish where the property was situated. The plaintiff claim'ing under this title, and the defendant under the adjudication made by the syndic of this interest as the property of the insolvent.

The case was submitted to a jury, who found a verdict in favor of the plaintiff ; the district judge refused to disturb the verdict, though of opinion that the case was with the defendant on the merits, preferring to refer it to this court for final adjudication. Judgment was rendered accordingly in favor of the plaintiff, and the defendant has appealed.

The case has been argued very elaborately, but from the commencement of the discussion, it appeared to us that one of the grounds taken by the counsel for the plaintiff, controlled completely its result.

It is contended by the counsel for the defendant, that by the cession of Gordon, all his property not alienated according to the forms of law became vested in the syndic, and that all the interest acquired by Gordon by his original purchase passed by the syndic’s sale to the purchaser at that sale ; and several decisions of the Supreme Court are referred to in support of that position. We do not find these decisions to be to the effect contended; but only as laying down the rule that the property and rights of insolvents pass by the cession to the creditors, whether they be stated in the schedule or not. The statutes relating to insolvency require them to be particularly set forth to their full extent in the schedule filed by the debtor ; but he is only obliged to put upon it the property which .belongs to him, together with his rights, present, future and contingent. He cannot put upon his schedule, nor can he cede, nor his creditors acquire through him, that which does not belong to him. The schedule is made - under oath, and is appended to the application of the insolvent for the benefit of the insolvent laws. In the present case, the insolvent was in actual custody, and, under the statute, before being discharged was bound to re-affirm, under oath, the correctness of the return of his propeily and rights set forth in his schedule. We think the insolvent was not permitted to place in his schedule, as his property, the fourth of the lots which he had sold to the plaintiff. That interest which he had sold ceased to belong to him, whether the plaintiff recorded his title in the parish where the lots were situated or not. We apprehend that a matter like this is of frequent occurrence in this city, where so large a portion of property holders habitually resort, and estates out of the parish of Orleans are bought and sold. It is the business of the purchaser to record his act of sale, if he chooses, in the parish where the land is situated; but if this is not done, we do not see how the failure to record the deed gives the seller any right in the property sold. True, he may swindle the purchaser by selling it again, if the act be not recorded, and the law will protect the second purchaser, if he be in good faith and without notice; and time, the judgment creditors of the seller may acquire a mortgage on it by recording their judgments. But we do not understand that the privilege thus given by the registry laws, from motives of public policy, to the second purchaser or the creditor, recognises any right in the seller, after he shall have completed the sale and thereby parted with his property.

We, therefore, conclude that Gordon placed upon his schedule all the interest in those lots which belonged to him, and which he had a right to convey to his creditors, .to wit, one undivided fourth thereof, and that the creditors by the cession, whether it was on the schedule or not, could acquire no more from him.

In the act of sale from the syndic, no other right, title, or interest in the lots purports to be transferred, except those derived from the cession; and it follows, as the defendant acquired none others, the interest which he holds by his purchase is the one-fourth only which Gordon placed upon his schedule as his property, and that he, the defendant, has no right in law to question the title of the plaintiff in the other fourth, which he purchased from the insolvent before his failure.

Having formed this opinion on the title of the defendant, we have not thought it necessary to examine the other questions raised in the court below, and presented in this court. Whatever rights the creditors of Gordon may have against this fourth of the lots, in consequence of the act not having been recorded in time ; whatever rights the defendant may have by virtue of any subrogation which the distribution of the proceeds of the sale paid by him among the mortgage creditors, may have vested in him in relation to this share, they are, os it were, out of the insolvent proceedings, resting alone with the parties in interest, exclusive of the administration of the syndicate and consequently not before us.

Judgment affirmed, with costs.