text:
    Clement Brown v. His Creditors, and North, Smedes & Co. v. Brown and Wife.
    The judgment of separation of property is valid, although the wife fails to prove, when attacked by the creditors o'f the husband, that he was indebted to her for the full amount for which she obtained judgment against him. The creditor oan then only contest the amount of her judgment.
    A creditor placed upon the lilun for more than is due to him, is not a fraudulent act of the debtor; particularly if not so charged in opposition.
    from the Third Judicial District Court of Jefferson, Burfhe, J.

      Whittaker & Fellows for Brown and wife. B. K. Cuiler and Messrs. Colton for intervehors.

      L. Costera for Forth, et als.

    -Our Code, Article 1915, says that, in cases, however, of contracts, which purport to transfer immovable -property, they are avoidable oil a charge of fraud, by persons acquiring bona fide immediate rights by contract with the debtor.
    The 13 Annual Reports, in the case of A. Qiraud el ah. V. Mazier, speaking of the dispositions of the above Article, says :
    “But the law on this subject has been changed by the act of 1856; the 22d and 24th secs, of that act p. 436; R.S. pp. 256 and 257, are copied from the 11th and 13th sections of the acts of 1840; (Bullard & Curry’s Dig.) pp. 474 and 475, authorize in express terms the institution of a suit like this by an individual creditor after the cession of property. See g 21, p. 435 of acts 1855 and p. 256 of Philip’s Revised Statutes ; and upon this point a radical change of legislation must be specially noticed; the change is found in section 21 of the acts of 1855, which is identical with the 10th section of the act of 1840; B1 C. Dig. loco cítalo, with the exception that the act of 1840 applies to debtors who have voluntarily surrendered their property, while the act of 1855 applies to all debtors .who have surrendered their property. ”
    The case reported in 3 La. 461 and 4 An. 365, being decisions rendered previous to the act of 1855, are therefore no longer to be considered as authorities upon this point of practice.
    As your honors will perceive, any creditor of an insolvent who has made a surrender, may, in his own name and for his own use and benefit, institute a revocatory action, to obtain the nullity and avoidance of any act passed at any time by his debtor with the view of defrauding creditors. This action can be resorted to even when the creditor has acquired bona fide immediate rights by contract with his debtor, and plaintiff in the action has a right to stand in judgment.
    Now the plea of. presciption is still less tenable.
    There is a distinction to be made between a revocatory action brought by a party to a contract, and one instituted by a third person not a party to the contract. In the first case, the action is to be brought within a year from the date of the contract; in the second instance the action may be instituted within a year from the appointment of a syndic. C. C. Art. 1989; 4 L. R. 257. Brown, syndic, v. Fergurson, and especially p. 259, in fine, and p. 260; 11, L. R. 419, 424, Fenessy v. Gousoulin; 13 L. R. 126, Hiriari v. líogér.

    In the decision last cited, the plaintiff Hiriart had obtained judgment in October, 1835. Roger, the defendant and debtor, had conveyed some property to his wife'in October, 1828, and the sale was annulled as being tainted with fraud. 1 An. 132, Gammaclc et als. v. Watson, et als. See same vol. p. 262; Wright v. Ghamblis, et als. 2 An, 451; Fimo v. Allen, same vol. p. 483; Bemsiown v. Nut, et als.

    The issue was not changed by the supplemental petitions, because in matters of insolvency all the property of the debtor passes to his creditors by the surrender, whether the property be included in the schedule or not. 11 L. R. 521Muse, syndic, v. Yarborough, et al.

    The only thing which the appellants could have complained of was that, in the original charge of fraud, the property in Arkansas, and the slaves which Clement Brown had concealed from and placed out of the reach of his creditors, were not specified and named; but even this seeming neglect can not be claimed of, because, the appellees onl^ dig« covered the facts disclosed in then- supplemental'charge of' fraud during the course of the first trial -of this cause. Besides, as Brown had no mention in his schedule of the property charged to have been concealed or disposed of by him, the creditors could not reasonably be expected to make any disclosures or. representations as to the situation or specific quality and nature of said property, but could only allege that Brown had not made a true and faithful statement of his affairs, and charge him, as they did, with having passed simulated deeds, and upon this point your appellees are of opinion that they have complied with the law. Acts 1855, sections 20 and 21. Acts 1808, H 16, 17; 4 L. R.. 55, Montesquieu v. Mill; lb. 200, Ooque v. His Creditors.

    Now let us come to the revocatory action, praying for the nullity of the judgment of separation of property, on the ground that said judgment had been fraudulently obtained.
    The general principle of our law is that when a judgment has been ob; tained by the wife against the husband, and-when fraud is alleged in the premises, the burden of proof is thrown on the wife. ■ 4 L. R. 422, Be-blano v. Heblano. 1 An. 42, Lefebre, syndic, v. Moniilly.

    What are the allegations of Evelina Anderson ?
    That she married her husband in the State of Maryland, in 1836 ; that she inherited from her father’s estate a sum of $5,000, in September, 1836; and $500 from the estate of her mother, in 1836; and in the same year, from her aunt, $500; and in 1850, from another aunt, $271 65 ; in- all, $6,271 65; which various sums were received by her husband.
    These pretended sums of money were received in Virginia, a State where the common law prevails.
    In Grattan’s Virginia Reports, vol. 8, p. 149, in the case of Lewis et cdv. Gaperton et al., the court decided that a post nuptial settlement made by the husband on his wife, of personal properly derived from her father’s estate, not having been properly recorded, is void as against the creditors of the husband.
    In the same Reports, vol. 2. p. 98, in the case of Bold’s Trustee v. Gor-gen, Hx’r, the court held that choses in action, and other property to which the wife is entitled during coverture, are liable to husband’s creditors.
    Every asset, therefore, of - said Clement Brown was liable to his creditors; more especially because the evidence shows that when he received for his wife, not $6,271 65, as alleged, but only a small amount of money decreed to her, he had not then intended to remove to Louisiana, and the legal conclusion is that Evelina Anderson, his wife, had not; and could not claim any privilege for her pretended rights. 11L. R. p. 464, Andrews v. His Oredilors. 4 An. 65, Hayden v. Suit et al. 6 An. 703, Martha A. Arnold v. McBride. 10 An. 549, L. O. Henderson v. B. B. Trousdale ei al. 14 An. 584, J. Hager v. G. A. J. Brown and Wife.

    Let us now take another view of this case. According to our laws the wife may, during the marriage, apply for a separation of property, whenever her dowry is in danger, -or when the disorder of the affairs of her hus-band induces her to believe that his estate may not be sufficient to meet her rights and claims. C. C. Art. 2399.
    We have already seen that when a judgment of separation of property between husband and wife is attacked, to have it annulled on the ground of fraud, and when the husband is insolvent, the burden of proof is thrown on the wife. 4 L. B. 422, Béblanc v. Béblanc. 11 L. B. 534, Boi tjiick v. Oasquel et al.

    She did no,t comply with any of the formalities prescribed by law to give life to her judgment.
    By the Article 2403 of our Code, she was bound to publish the decree of separation within the three following months after rendition. There is no evidence, unless I am mistaken, of such a publication. In the record, then, said judgment is null and void. See 3 B. 328, Harriett Marshall v. Michael Mullen.

    The judgment of separation is also null and void, .according to the terms and provisions of Article 2402 of our Code, which says that the judgment is null and void if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain payment. See the last quoted case. 1 Bob. 431. Electo Bosieey. John Walker. 4 An. 513, Longiuo v. Blackstone.

   Labauve, J.

These two cases were consolidated and tried together below.

Madame Evelina Anderson brought a suit against her said husband, Brown, in December, 1852, alleging the disorder of his affairs, praying for a separation of property and for a judgment for money received by him. On the 10th January, 1853, she obtained a judgment against her said husband for $6,271 65, with interest. Under that judgment she. proceeded, by seizing and selling property, consisting in town lots and slaves, which were adjudicated to her at sheriff’s sale, in July, 1853. Clement Brown was forced to a surrender of property, and which, being made, was accepted by the judge, May 15th, 1858. A number of creditors of the insolvent, Clement Brown, brought suits in June, 1858, to annul and set aside the judgment so obtained by said Evelina Anderson, and also to avoid the sale of property made to her by the sheriff under said judgment, and to have said property decreed to be liable for the debts of her said husband, Clement Brown, due said creditors.

The evidence shows that these complaining creditors became such three or four years after said Evelina Anderson had obtained her judgment and bought property under it at sheriff’s sale. From an examination of the record, we are satisfied that said Evelina Anderson adduced prima facie evidence in support of her judgment, and that the suing creditors had nought to attack it. Dinkgrave v. Norwood et al., 10 An. 564. Landry v. Marchais, 6 An. 89. Duchard v. Rousseau, 2 An. 174. Sarah Ann Binford v. B. H. Thorn & Co., 15 An. 81.

We are of the opinion that the judgment rendered in favor of said Evelina Anderson against her husband, and the sale of property under it to her, are legal and valid.

We now come to the charge of fraud made against Clement Brown.

As we have come to the conclusion to remand this case, as regards Clement Brown, it becomes necessary, to facilitate the trial below, to pass on certain bills of exception, so far as Brown is concerned. Brown’s counsel moved the Court below to strike out from the record several supplemental petitions of the complaining creditors, filed in 1860, on the ground, in substance, that they contained additional charge of fraud against the insolvent, and that they were too late; Ijeing filed long after the expiration of the ten days, etc. The court overruled the motion, and counsel of Brown took his bill of exceptions. We think, the court did not err. This did not change the issue.

The court charged the jury, in regard to Brown, that the putting-down by the insolvent of a creditor, on his schedule, for a larger amount than was really due; as, for instance, the wife for a larger amount, was one of the kinds of frauds which were not specified in the acts relative to insolvents, but which is included in the words: or any other fraud. This charge was excepted to. We think the court erred. There was no allegation of that act in the oppositions; besides, it would not seem to be a fraud as contemplated by law. Montilly v. Creditors, 18 L. 383; Slocomb v. Real Estate Bank. 2 R. 92.

On trial below, the opponents and intervenors offered in evidence act of sale of property, 28th December, 1855, of 0. Brown to H. C. Brown, and placed on the stand witnesses, Robinson and others, as to said transaction and others; to the introduction of this testimony, counsel for defendants objected, on the ground that no transaction, of a date more than a year prior to the transaction of Brown with complaining creditors, should be admitted in evidence. The court overruled the objections and received the testimony. We think the court did not err, as it was contended that this sale was a pure simulation.

The bills of exception taken by Evelina Anderson are passed over unnoticed, our decision being in her favor, notwithstanding the rejection of testimony.

We think that justice requires the case to be remanded for a new trial, on the charge of fraud against Clement Brown.

It is therefore adjudged and decreed, that the judgment of the District court be annulled and reversed ; it is further adjudged and decreed, that there be judgment in favor of Mrs. Evelina Anderson and against the said complaining creditors in the revocatory action, and that said complaining creditors and opponents pay all costs incurred in said revocatory suit. It is further decreed that this case be remanded as regards the insolvent, Clement Brown, to be proceeded in according to law, and that the complaining creditors and appellees pay the costs of appeal,


source: Caselaw Access Project

author: HoweIiR, J.

license: Public Domain

text:
    Edward Lynch v. T. P. Leathers, et al.
    Article 2199of the Civil Code applies when there is a solidarity as between the co-debtors; and can only be invoiced when a creditor, by discharging one, deprives tile co-debtor of his recourse upon the one discharged.
    from the Fifth District Court of New Orleans, Eggleston, J.

      L. Madison Bay for plaintiff and appellant. Roselius é Philips for defendant Leathers.
   HoweIiR, J.

Plaintiff instituted this action to recover a balance due him for -work and labor on a building erected for the defendant Leathers. He alleges that, as contractor or master builder, the defendant, Day, erected a dwelling for Leathers, and employed him, plaintiff, to do- the painting, glazing, etc., for which he received part payment from Day; and he asks for judgment against the defendants in solido, with privilege on-said building. To this Leathers filed a separate answer, pleading a general denial, averring that he made no contract with plaintiff; that no attested account was served on him, as required by law; and that he owes Day, the contractor, nothing. The defendant Day made no appearance. Plaintiff filed a supplementary petition, setting forth that, in the construction of said building, the defendant Day acted simply as the agent of Leathers, and did not disclose his principal, and renewed the prayer of his original petition; to which Leathers answered by a general denial.

During the trial, the following document was introduced:

“By agreement between Edward Lynch and Wm. K. Day, it is contracted that Wm. K. Day shall, and he does now, transfer to Edward Lynch all claim he may have against Captain Leathers, on account of work done on the house of Leathers by Edward Lynch; and the said Edward Lynch hereby releases Wm. K. Day from all liability,' on account of work done by Mm on the house of Caj^tain Leathers. New Orleans, May 1st, 1860. (Signed) A. T. Steele, attorney for Lynch. Wm. K. Day.”

The defendant Leathers contends that this operated as a release in his favor likewise, and relies on Article 2199 C. C., which provides that: “The remission or conventional discharge in favor of one of the co-debtors, discharges all the others, unless the creditor has expressly reserved his right against the latter. In the latter case, he cannot claim the debt without making a deduction of the part of him to whom he has made the remission.”

This article applies where there is a solidarity as between the co-debtors, and can be invoked only when a creditor, by discharging one, deprives the co-debtor of his recourse upon the one discharged. But, in this case, the defendant, Leathers, under the amended pleadings and the evidence, could have no recourse against Day for any amount, if compelled to pay plaintiff’s claim, as Day is shown to have acted as his agent in superintending the construction of the building. At the time of employing plaintiff he failed to disclose his real capacity $ bilí the' latter, in an amended petition, has set it forth, and the defendant,' Leathers, has urged no objection to such course of action.

We are of opinion that, under the pleadings and evidence as before tisy the defendant is liable to plaintiff for the work and labor of the latter on his house.

It is therefore ordered, adjudged and decreed, that the judgment of the' District court be avoided and reversed, and that plaintiff, Edward Lynch,recover of defendant, T. P. Leathers, the sum of six hundred and sixty-four dollars, with legal interest from April 4, 1860, and costs in both courts.


author: Howell, J.

text:
    A. S. Coulon v. A. G. Semmes et al.
    Riscllnbitifift is called the avoidance of a sale on account of some vice or defect in tfie thing sold, which renders it absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Thomas H. Hewes for plaintiff. A. Q. Semmes, pro se. Clark <& Bayne for warrantor.
   Howell, J.

This suit is brought to rescind the sale of a slaye, on the alleged ground that she was afflicted with a redhibitory disease.

It is shown, by the evidence of several physicians, that the disease in question is curable, and that while the complaint impairs the usefulness of the slave, it does not prevent her from discharging the ordinary duties of a house servant, and that, by proper medical-treatment, it can be cu-réd in the course of two or three months, and the patient, during the time, “ do the general house-work.”

There is no proof that the slave was incapacitated at any time from doing the work required of her by plaintiff, or that any effort was made to effect a cure; nor is it shown affirmatively that the use of the slave was rendered so inconvenient and imperfect by this defect, that it must be supposed that the buyer would not have purchased had she known of its existence. C. C. Art. 2496.

We are of opinion that plaintiff has failed to make out a clear case of redhibition.

It is therefore ordered, adjudged and decreed, that the judgment.'of the district court be avoided and reversed, and that there be judgment in favor of defendant, with costs in both courts.


author: Idsley, J.

text:
    The Mayor et al. of Carrollton v. A. Gaillard.
    JL citation of appeal to this court, from a judgment rendered by a justice of tile peace, must be issued as if it had been rendered in a district court, otherwise the appeal will be dismissed.
    from John D. Kemper, Esq., Parish of Jefferson.

      G. Buission tor defendant and appellant. The appellees made no appearance.
   Idsley, J.

The defendant appeals from a judgment rendered against him by John JD. Kemper, Esq., a justice of the peace in and for the parish of Jefferson, by which he was condemned to pay the plaintiffs thirty-five dollars-; twenty-five dollars of which was the amount of a license for keeping a dairy for over fifteen cows, and the balance, ten dollars, for a violation of the ordinance in not taking out the license.

The constitutionality of the ordinance is impugned.

On the 11th November, 1861, on motion of 0. Buission, Esq., of counsel for appellant, a writ of certiorari was issued to the justice of the peace, directing him to complete the record by furnishing a copy Of the ordinance introduced on the trial, and granting a delay for that p'tífpdád until the 19th of the same month, 1861.

On the 1,6th of November, 1861, a new transcript of the record was filed in this court, which the justice certifies as a true copy of proceedings as set forth on his docket; and he subjoins the following statement: “I hereby send the ordinance of the city of Carrollton which was omitted in transcript.

The ordinance alluded to is not to be found in or attached to the transcript. There is no evidence whatever that the appellees have been cited according to law, the only mode by which they can be called to answer this appeal. 583, 584 O. P. It is true, a motion for an appeal was made before the justice, but we do not deem the amendment, in this particular, to Articles 573 and 574 0. P., as applicable to appeals like this, as such motions must be made at the same term at which judgment was rendered, and there are no regular terms in the courts of justices of the peace. The appellees have not appeared.

The appeal must be dismissed. Délery v. Tavinet, 15 La. 214.

It is therefore ordered, adjudged and decreed, that the appeal in this ease be dismissed, at the costs of the appellant.


author: Howell J.

text:
    Gustave Bouligny v. Mme. Edmond Fortier and Husband, et als.
    Where there is no error of law appearing on the face of the record, the caso will not be dismissed.
    The aot of mortgage is not a negotiable instrument; and, unlike the notes which it secures, when assigned, is subject to all equities between the original parties.
    l'rom the Second District Oourt of New Orleans, Morgan, J,

      Koselius <& Philips for J. A. Merle, Intervenor and appellant.

      D. Augustin for plaintiff.

    The incapacity of the wife to contract is removed by the assent of the husband (O. 0. 1775, 2420, 1779); but this is true only in eases where she can legally contract. For example, she can only contract with her husband in certain cases. 0. 0. 2421. She tcan not, excepting in certain enumerated cases, dispose of her dotal property. 0. 0. 2337. She cannot, when there exists a community of acquests and gains between her and her husband, acquire property for her separate account. 0. 0. 2371. To this last rule we have also exceptions, which will be hereafter noticed. Nor are the declarations of a married woman, in the generality of cases, binding on her, unless verified, or unless she has been benefitted by the contract; and the reason is, the controlling influence which the husband is always presumed to exercise on all her acts.
    “Si la femme ^prenait en contractant la qualité de filie majeure, de femme divorcée ou de veuve, le contrat n’en serait pas moins nul: autrement ce serait ouvrir une voie pour éluder la loi.
    Oelui qui a contracté avec une femme doit s’imputer de n’avoip pas con-nu son état; ee n’est de la part de la femme qu’un simple dol qui ne peut donner lieu á aucune action criminelle, C’est un mensonge mais non pas un faux caractérisé.”
    Toulier, vol. 2, No. 622. Pilcher v. Kerrr, 7 An. 145. Mrs. Delery v. Her Husband et al., 7 An. 293. Mosusierv. Kunlzetal, 14 An. 15. lb. p. 169, and the numerous authorities therein cited. McIntosh v. Smith, 2 An. 757.
    The husband is only responsible to his wife for the amount of her para-phernal property alienated, when it is proved that he has received the price or otherwise disposed of the same for his individual interest. C. C. 2367. Olivier v. Her Husband, 6 Rob. 36. Sue. of Hurgis, 3 An. 142. This proof, under the French Code (Art. 1450), results from the simple fact that the husband was a party to the act, and multo magis when he actually received the price. Troplong 2, 1447. Marcade 5, 1450. The same rule, with certain qualifications, prevails in Louisiana. Qillet & Go. v. De-ronco et al.6 An. 590. *
    By a strict interpretation of the Arts. 2314, 2370 and 2374, all the effects of the spouses not satisfactorily established to have been brought in marriage, or acquired during the marriage by inheritance or by donation made to the one or to the other particularly, constitute the assets of the community or partnership of acquests and gains. We have already seen the exception created by tlie Art. 2421, the Arts. 128 and 2336. "We hávé no dottbt that the wife may legally make an exchange of her paraphernal property, although our Code does not,'as the Code Napoleon, 1407, contain any provision to that effect; and it is now the well settled jurisprudence of this State that the right of the wife to administer personally her paraphernal property and to alienate the same (C. 0. 2361 and 2367) implies the faculty of investing or re-investing her paraphernal effects.

      Dominguez v. Lee, 17 L. R. 299. Terrell v. Sinclic, 1 Rob. 367. Gonor v. Husband, 11 Rob. 526. Stroud et al. v. Kuntz el al. 2 An. 930. YowAg v. Yoxmg, 5 An. 611. Hanvna v. Pritchard, 6 An. 730. Metcalf v. Clark, 8 An. 286.
    Under the Bb'ench Regime dotal, as under our Civil Code, the property which is not declared to be dotal is paraphernal (C. N. 1574, C. C. 2360); and the wife has the administration and the enjoyment of her parapher-nal property, but she cannot alienate it without the authorization of her hu^iand or of the judge. C. N. 1576. O. C. 2361 and 2367. And under the French conventional community, the spouses may' stipulate a simple community of acquests, which would then consist of the acquisitions made during the marriage by the spouses, jointly or separately, with the savings of their common industry and the fruits and revenues of their separate property. C. N. 1498. C. C. 2371.
    Thus it is perceived that the provisions of our Code, in relation to our legal community and the paraphernal property of the wife, are a combination, or at least bear a great similarity to the Regime dotal and Commun-auié réduiie aux aaquUs.

    Thus again under the Regime dotal, the husband who enjoys the para-phernal property of the wife is liable to all the obligations of the usufructuary (C. N. 1580); and under our Code, 2367 and 2368, the wife has an action against her husband for the restitution of her paraphernal property.
    The system of remploi (reinvestment) is not as ample under our Code as under the Code Napoleon; but it is sufficiently recognized to authorize us to invoke, to a certain extent, the authority of the eminent French commentaries and jurists who have exhausted the subject.
    That the system itself is not foreign to our laws is apparent, among others, from the following Articles of the Civil Code: 2336, 2340, 2341, 2355, 2421 and 70.
    We have stated that the right of the wife to invest or reinvest her para-phernal effects, is derived from the liberal interpretation given to the Articles 2361, 2367 of the Civil Code. Were it not so, the investment would inure to the community to the extent of the amount invested. We have searched in vain in our reports for a case where the right of the Wife to invest beyond her means was sanctioned by the court, but we have, on the contrary, found numerous decisions either setting aside conveyances made to the wife on the failure to show adequate means, or maintaining similar conveyances by reason of such adequate means. Ellis v. Rush, 5 An. 116; Squier v. Stoclcton, 6 An. 742; Young v. Young, 5' An. 60; Metcalf v. Clark, 8 An. 286; Pearsons. Pearson, 15 An. 119; Clark V. Hormod, 12An. 598; Cormiera. Ryan, 10 An. 688; Basst, Lqrehe, 7 Am 104.

      As the ability of the wife to acquire, during the marriage, property in her own name and for her separate account, is under our jurisprudence an exception to the general rule. C. 0. 2384. It must be, therefore, strictly and rigidly construed; and consequently the wife is required, not only to prove that she had paraphernal effects at her disposal, but also that they'were ample to enable her, reasonably at least, to make the new acquisition; otherwise the contract will be treated as a contract of the community. Such, without doubt, would be the result in a contestation between the creditors of the husband and the wife; and we can see no good reason to depart from the converse of the proposition, by denying to the wife the privilege of showing the true character of the contract, because of her declarations, which, as we have already stated, do not conclude her. 6 Rob. 65, Prudhomme v. Edams’, Erwin v. MeCallop, 5 An. 173; Patterson v. Frazer, 5 An. 586. The authority to invest does not carry with it the unbounded liberty to run into wild and ruinous speculations, and was never intended to place the wife having paraphernal property on a footing of perfect equality with a wife separated in property by judgment, or by contract, as would be the case, did we hold the third opponent to her contract.
    We, therefore, concluded that it is against the policy of the law and the spirit and letter of our system of legal community to sanction contracts made by the wife, under pretext of investing her paraphernal effects, when, as in the case at bar, the amount invested bears no proportion to the value of the property substituted in its place, but, on the contrary, that all such acquisitions belong to the community, saving always to the wife her action for the reimbursement of the price contributed by her.
    Our notions of the necessary conditions to constitute a valid investment, are perhaps more inflexible (apart from certain forms which do not here require notice) than those generally entertained in France, but this Is due principally to the difference which marks the two systems, as will be at once perceived by reading the Articles 1407 and 1408 of the Napoleon Code; yet we are not the less satisfied that our conclusion, as to the real nature of the Livaudais purchase, would undoubtedly be the same under the French tribunals. The controlling opinion in France is, in spite of Article 1407 N. C., that when the property received in exchange, or acquired by way of remploi, by one of the spouses, is of double the value of the one ceded in counter exchange, or of the price invested, that the undivided half of the newly acquired property belongs of right to the community; but that when the difference is more than fifty per cent, then the property belongs either in whole or proportionally, to the community, according to the particular facts of each particular case. Pothier, Traite de la Com. Part 1st, Ch. 2, Nos. 197 and 198; Marcadé verbo Cont. de Mar. vol. 5, Art. 1435, S. 2; Troplong vol. 1, 637; Duran-ten vol. 14, Nos. 195 and 391.
    The third opponent, John A. Merle, from the. facts that the notes by him discounted from Bouligny & Ganucheau, showed on their face that they were given by a married woman, had sufficient notice to him, as it was so to the world, to put him on inquiry as to whether these notes had iniired to her own separate use, before he discounted them. PeQaalon v. Matherne, Wife of Giro A, 5 An, 495 ; 4 R. 508, 1st Art. 428.

      This doctrine» which has been recognized by the Supreme Court, f roin 7 N. S. 64 down to the decision herein rendered, flows from the plain principle of the civil law, “ Qui cum alio contraMt nonignarus eóndUionis. ejus esse debet.,i Dig. Lib. 50, Titre 17, L. 19. ' •
    The Livaudais plantation, which' was mortgaged for' Bouligny and Ganueheau’s notes, transferred by them to' the' third opponent, has been declared by the Supreme Court to be community property, although purchased in the wife’s name, consequently subject to her legal mortgage, which is much anterior to that of the third opponent.
    Consequently, all acts of mortgage and notes furnished by the said wife, with authority of her husband, not shown to have inured to her own separate benefit, are obligations for the payment of community debts, which her husband was bound to pay, and for which she was forbidden by law to bind herself. C. C. 2412, 1784.
    Supposing the case that the notes of the appellee, Mme. Edmond For-tier, could be viewed as negotiable notes, the mortgage given to secure the same did not partake of that negotiability. See Schmidt v. Frj, 8 B. 435; 5 An. 495; 5 N. S. 56.
   Howell J.

In February, 1853, the defendant, Mrs. Edmond Fortier,, authorized by her husband, purchased of J. A Livaudais a plantation and the slaves thereon, in this parish; paying part cash, giving her own four notes, secured by mortgage on the property, for a part of the price, and' for the' balance assuming certain incumbrances then existing on said, property.

In March, 1856, during the ownership under said purchase, she issued, four other notes to her own order, amounting to $18,000; and, to secure-their payment, executed a special mortgage on said property in favor her factors, Bouligny & Ganucheau, of this city, or any holder thereof. In December, 1857, she drew four drafts, amounting to $25,000, in of Wm. Holmes & Co., on, and accepted by, said Bouligny & Ganu-cheau, and gave the latter another mortgage on said property, to protect them against the payment thereof.

The plaintiff, Gustave Bouligny, as the holder of the last of the four notes given by her in part payment of the purchase price, in 1853, caused the property to be seized and sold under executory process; and, becoming the purchaser at said sale, /retained in his hands under Art. 707 C. P. the gum of $38,540 64, to satisfy pro tanio the said two special mortgages ip favor of Bouligny & Ganucheau, In this proceeding Mrs. Edmond Fortier intervened by third opposition, making her husband, the plaintiff, and the mortgagees, Bouligny & Ganucheau, parties ; and, on appeal, this court rendered a judgment in her favor, declaring the said purchase from Livaudais, and the said two special mortgages in favor of Bouligny & Ganucheau, to be for account of the legal community existing between her and her husband; releasing her from all personal liability growing out of said acts of sale and mortgage; condemning her husband to pay her, in restitution of her paraphernal property, $46,188 38, with a legal mortgage on all his immovable property; ordering the plaintiff or his succession to pay to her, in part satisfaction of said sum, the said amount of $38,540 64, retained as aforesaid by the plaintiff, and in default thereof the said property, purchased by said plaintiff, be seized and sold for cash.

Jno. A. Merle, third opponent herein, having in due course of business become the holder of the four mortgage notes, amounting to $18,000, issued by Mrs. Fortier in March, 1866, to Bouligny & Ganucheau, ■claims payment thereof, as nest in rank, with privilege, out of the said sum of $38,640 64, held as aforesaid to satisfy said two mortgages.

To this third opposition Mrs. Fortier sets up the plea of res judioctla; denies that she ever derived any benefit from said transaction, and denies ownership of the property mortgaged, and generally all the allegations of the petition of third opposition.

Upon these pleadings and the evidence (including the pleadings and evidence in the whole record in this case), the district judge dismissed the third opposition of Merle, from which judgment he appeals.

The appellees, Mrs. Fortier and husband, make a motion to dismiss the appeal, under Art. 897 O. P.; but it is manifest that this motion cannot prevail, as the evidence is before us, and the clerk’s certificate is in due form.

On the merits, we are of opinion that the district judge decided correctly in dismissing the third opposition.

It will be.observed that the appellant is seeking to enforce his rights of mortgage upon the proceeds of the sale of mortgaged property, and not to recover judgment on negotiable paper. As to the transferee and holder of the mortgage notes, he has no greater rights under the act of mortgage than his transferrors, the original mortgagees, had; and, as to them, it is decided that this mortgage is without effect against Mrs. Fortier, and must yield to her claim or right to this very fund. The act of mortgage is not a negotiable instrument, and, unlike the notes which it secures, when assigned, is subject to all equities between the original parties. See 8 it. 435.

The record before us presents nothing to change or modify the judgment in favor of the wife. There was a community of acquests and gains existing between Mrs. Fortier and her husband when she gave the mortgage in question on the property, which is shown to.be community property, and from the sale of which this fund was derived; and her right to a judgment recognizing her mortgage as attaching to said fund is not affected by any evidence adduced by Merle, the appellant,

Judgment affirmed, with costs,


author: Howelu, J.

text:
    Pecoul, Executor, v. De Mahy.
    To obtain damages for a frivolous appeal the appellee must bring himself within the Requirements of thelaw, and claim'them in his answer.
    from the Second District Court of New Orleans, Morgan, J.
    j67. Bermudez, for plaintiff.
   Howelu, J.

This is an appeal from an order of seizure and sale. Our attention is not called to. any error in the proceedings or deficiency in the authentic evidence, as the basis of the writ.

The appeal appears to have been taken for delay; but the appellees have not brought themselves within the requirements of the law to obtain damages.

Judgment affirmed, with costs.


author: Hyman, C. J.

text:
    Sosthenes Roman et als. v. Jacob Denney et als.
    In actions of revendication of real property, or when proceedings are instituted in order to obtain the seizure and sale of real property, the defendant may be cited either at the plaoe where the property is situated, or where ho has his domicil, at the option of the plaintiff.
    There is no necessity for alleging or proving demand or protest of mortgage notes.
    On an appeal from an order of seizure and sale, the legality of the order only can beexamined. Other irregularities must bo corrected in the court a quo.

    When a co-defendant does not join in the appeal, his or her status cannot be enquired into.
    from the Second District Court of New Orleans, Morgan, J.

      F. A. Grima for plaintiffs. Whiitakerr, Fellows and Mills for Denney, defendant and appellant.
   Hyman, C. J.

This is an appeal from an order of seizure and sale by one of the defendants, Jacob Denny. The other defendants have not appealed.

Defendant Denny relies on an assignment of errors as follows:

1.There is no proof that Rachal Sank is a single woman.

2.The suit or proceeding could not be instituted, except in the parish of St. James, where the property ordered to be seized and sold is situated.

3.No proof showing that the notes were duly demanded and protested at place where made payable.

4.That no demand of payment or notice of seizure and sale was served on appellant, as required by law.

5.That the whole proceeding was illegal and irregular.

First. The answer to this assignment of error is that Mrs. Sank has not appealed, and does not complain. When she appeals, it will be proper to hear her defence, and not before.

Second. This assignment of error is answered by the fact, that defendant Denny was a resident of New Orleans when the order was granted. See Code of Practice, Art. 163.

Third. The answer to this assignment of error is that it was unnecessary to allege or prove demand. See 13 An. 98; 12 An. 551 and 671.

' ‘ Fourth. On an appeal from an order of seizure and sale, the legality of the order alone can be examined. If there should be any irregularity in giving notice, or in making demand, it may afford cause for injunction, or other relief, in the court below; but cannot be examined on appeal. See 6 Rob. Rep. p. 60.

The fifth assignment of error is too vague and indefinite for the court to take it into consideration.

It is ordered, adjudged and decreed, that the order of seizure and sale’ be affirmed, and that the sheriff seize and sell the property described in1 the order, except the negroes therein mentioned. See Constitution 186Í,' title 1, Art. 1.

It is further decreed that appellant pay the costs of appeal.


author: Ilsley, J.

text:
    German Evangelical Congregation of Lafayette v. H. Pressler.
    The statutes and regulations which corporations enact for their police and discipline, are obliga1 tory upon all their respective members, who are bound to obey them, provided such statutes contain nothing contrary to the laws of public liberty, or to the interest of others.
    There is one principle oommon to the trustees of all incorporated churches. They have the possession and the custody of the temporalities of the church. They are considered virtute oj/icii entitled to the possession, and are lawfully seized of the grounds, buildings, and other property belonging to the church. Though they hold the church property in trust for the congregation, still, it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion, made against their will, whether by the pastor, members of the congregation, ■or by strangers.
    from the Sixth District Court of New Orleans, Howell, J.

      E. Hiestand and E. <& G. Schmidt for plaintiff. JDurwnt & Hornon for defendant.
   Ilsley, J.

This suit was instituted in the year 1858, by the plaintiffs, a religious congregation, against the pastor, to have him enjoined from acting as minister or parson of the congregation, and from disturbing the plaintiffs in the peaceable enjoyment of its property and rights, as described in their petition, and for a perpetuation of .the injunction.

The defendant urged several exceptions to the plaintiffs’ right of action; but, if they were overruled, then, he pleaded the general issue.

There is no means of ascertaining from the record, in the informal manner in which it is presented, what disposition was" made of these exceptions ; and, as the ease was examined on its merits, we must presume they were waived.

During the progress of the proceedings in the lower court, a rule was taken by the defendant on the plaintiff, to show cause why the suit pending should not be discontinued, it having, at a general meeting of the congregation, duly convened and held, been resolved that the suit was unauthorized and disapproved by the council, and that it was ordered, thereby, that the suit should be discontinued.

The suit, after trial of the rule, was ordered by the court below to be discontinued, but this judgment was reversed on appeal.

It is to be greatly deplored that in controversies like this one, exposing bickerings in religious communities, which should not occasion undue publicity, it should be found at any time necessary to invoke the interference of judicial tribunals. When discord lisutps, in congregations, the seat of harmony, how wise and salutary is the admonition of St. Paul, in his Epistle to the Corinthians, to his brethren in the faith, should dissentions prevail among them to refrain from going to law with one another!

This case is before us, and we shah proceed to examine it.

It seems that the defendant was the pastor of the German Evangelical Congregation of Lafayette. He was, in that capacity, presumed, of course, to be conusant of the statutes and regulations of the corporation, and bound to obey them (Article 436 Civil Code); the more particularly as he was an advisory member of the church council, representing, for that purpose, the congregation.

Charges of a compromitting nature having been preferred by the counsel against the pastor, it was, by a formal resolution, determined that his functions as pastor should be suspended for the space of six months, from and after the date of the resolution, and that he should not perform services in the name of the church until all matters pending were disposed of. : “

This resolution, unanimously adopted, was in due time notified to him, ¡as shown at page 34 of the transcript; but he disregarded it; and, ¡although he did not actually participate in breaking open the church door, which had been twice closed by the council, he persisted, on both occasions, in holding divine service in the church.

See the testimony of Hackbury, Fabean, Wurm and P. Miller.

As pastor of the congregation, he was earnestly directed by its regulations to act as a good householder, and to bring forth from the rich treasury of the Gospel, things old and new, which was incompatible with the indulging in offensive and, derogatory invectives, whilst officiating as clergyman, against the church council. One witness says that the pastor, Pressler, openly accused the trustees of being dishonest men; and another witness attributes to him, the assertion in church, that he would bring the character of the trustees down, and if he could not bring their character down he would bring their property down. I will not only, said he, deprive them of their good name, but also of their fortune. See the testimony of H. P. Waller and Fabean.

Such a course as this was not the one to be resorted to, to heal dissen-tions in the congregation ; but was, on the contrary, pursued by him, calculated to widen the breach which, unfortunately, there existed between the two parties in the congregation, of which the witness, Jacob Alexander, makes mention.

It was through the instrumentality of its pastor that the house became divided against itself. Instead of setting, as the teacher of the doctrines of Christianity, an example of decorum and obedience to his revolting flock, he seemed intent on sowing among them the seeds of discord; and the consequence was, the enacting of such a scene as that described by the witness, Jacob Alexander. He says : “I went there (to the church) two or three Sundays after ; I cannot tell exactly when. Kaiser, the President, and the trustees, called for Mr. Wallace to preach. There were two parties, and each wanted their own preacher. ■ When Mr. Wallace came they commenced to fight; some give him a slap, and others a kick, and so on. Before the church was closed they had a little revolt; then Mr. Pressler came to me, and told me there is a little row between some of the members of the church and the ministers ; there is a paper; it is to keep the peace in the congregation; and he asked me to sign it, and I did so.”

The defendant was using every means to oust the old board of trustees, some of whom, at his instance, were arrested and taken to prison ; but it was maintained in its functions by the decree of the court in the quo war-ranto suit of Kaiser v. St. Paul.

It was the duty of the council (chapter 2, § 4) to keep employed a good preacher; to declare the pastorship vacant in a certain case (chapter 11, $ 4); and, in ease of misunderstandings between the pastor and church council, to take steps to supply a successor to the last incumbent. (Chap. 3, 5, See Resolutions of 21st July and 2d August, 1858; also, Arts. 429 and 430, Civil Code.)

The sentence of an ecclesiastical, a classic or a Synod (the mode for re-. moving such an officer of the corporation, adopted in some of the German or Dutch Reformed churches), is not needed in the German Evangelical Congregation. Its power to suspend or remove its minister is derived from its by-laws, in accordance with its charter ; and the mode resorted to by it was a lawful means of attaining the end of keeping a good preacher employed.

The pastor was appointed during the pleasure of the council, and very little formality was needed, and no notice was required to suspend or remove him. See chapter 11, section 7. p. 251, Angelí on Corporations.

There is one principle common to the trustees of all incorporated churches. They have the possession and the custody of the temporalities of the church. They are considered virtute officii entitled to the possession, and are lawfully seized of the grounds, buildings and other property belonging to the church. Though they hold the church property in trust for the congregation, still, it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by the pastor, members of the congregation, or by strangers.

This is the doctrine held in the somewhat analogous case of The People v. Runkle, pastor, vol. 9 Johns. N. Y. Rep. It is that held in the Church of St. Francis v. Martin, 4 Rob. p. 62.

The plaintiffs ask for the equitable interference of this court to sustain them in their lawful rights and privileges, which, from the evidence adduced, they have the legal right to claim. See, in Tothill, case of Town of Yarmouth v. Bishop of Norwich, 66.

The judgment of the lower court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by the court below, it is ordered, adjudged and decreed, that judgment be and it is hereby ren-. dered in favor of the plaintiffs, the German Evangelical Congregation of Lafayette, and against the defendant, Hermann Pressler, and that the said defendant be perpetually enjoined and inhibited from acting (under his appointment previous to the inception of this suit) as minister or pastor of the German Evangelical Congregation of Lafayette, and from disturbing the plaintiffs in the peaceable possession and enjoyment of the church property, as described in the petition.

It is further ordered, that the costs in both courts be paid by the defendant and appellee.

Howeli, J., recused.


author: Labatjve, J.

text:
    John Morgan Hall v. E. W. Beggs et als.
    Where documents offered in evidence below are not to be found on the record, the appeal will be dismissed.
    from the Fourth District Court of New Orleans, Price, J.

      W. W. Handlin, Warrantor, pro se.

   Labatjve, J.

W. W. Handlin, defendant and warrantor in this case, has filed a motion to dismiss the appeal, on the ground :

“That, though the clerk certifies that the record is complete, the record itself shows that it does not contain the evidence adduced.”

The record shows that the defendant and appellee offered in evidence, on trial, the extract of the assessment roll, and the record and judgment of the suit of the State of Louisiana v. John M. Hall. The documents so offered below are not to be found in the record, and we are without the means of reviewing the case. It was the duty of the plaintiff and appellant to see that the record contained all the evidence on which the case was tried. 8 An. 438.

Appeal dismissed, at appellant’s cost.


author: Howekd, J.

text:
    Manuel Fernandez v. Merchants’ Mutual Insurance Company.
    An insurance company will not be liable because the fire warden advised the removal of property from a burning building, and it was stolen during the transit.
    from tlie Fourth District Court of New Orleans, Price, J.

      Levi Pierce and Durant <& Hornor for defendant.

      G. Hunt and L. Gastera for plaintiff and appellant.

    Cigars are goods very liable to be missed at a fire; such things cannot be avoided.

      Michal Deggan, witness for plaintiff, says: That the roof of the building was burnt considerably, and also the openings and corner windows were all scorched; the engines played on the building.

      Léon Lamothe, another witness, says: That he was present when Yilla (Fernandez’s clerk) asked Mr. Youenes if he should not remove the contents of the store. Youenes said not yet, but get all ready.
    A little while after, Yilla asked Youenes if he would move out the stock, and Youenes told him yes, and during the removal plenty of the cigars were stolen; they were taken forcibly out of the hands of those who were removing them.
    The other witness heard gave the same evidence.
    The above testimony shows most conclusively, that Manuel Fernandez did not intend to remove the stock of cigars for his own use, benefit or interest. His rights were not only protected, but secured beyond any doubt, by the two policies sued upon;, the loss by fire and water being-certain. And then what did he do ? He applied to the fire warden for the removal of the stock; and if he ever intended to remove the cigars for himself, he did not want the consent or approbation of any body, even the fire warden, but to act according to his own will. What was the reply of Mr. J. Youenes ? No; wait; the fire may be checked, and when he sees’the roof of the store taking fire; now, says he, remove the stock of cigars; and, as the weather was threatening rain, then he sends for tarpaulings to protect the merchandise; and he does this, not for the interest of Fernandez, but in behalf of the company, to protect them and diminish their loss.
    P. A. Boudousquié, a French writer on fire insurance, p. 289, says:
    “L’assureur, s’il se trouve sur les lieux aussitot que le sinistre se déelare, dirigera le sauvetage.”
    And at the page 290, the same author adds:
    ‘ “Comment, en effet, l’assureur ponrrait-il étre privé du droit de diriger le sauvetage, puisqu’il s’est mis, arrivant le sinistre, au lieu et place de l’assuré.C’est sa propre chose qu’il s’agit de conserver et qu’en travaillant au sauvetage il ne fait que ce que l’assuré lui-méme serait obligé de faire en son nom.” Reference is made by the writer to Yalin sur Part. 51 de l’Ordonance, titre des assurances. Emerigon, chap. 17 See 7, $2.

      “Le récouvrement des effets nauíragés, dit Emerigon, se fait pour le compte de qui il appartient, sans qu’on ait besoin d’aucum mandat de la part des personnes intéressées, l’action negotiorum gestorum defére tous les pouvoirs que l’urgence du cas exige. Ce qui se fait pour le recouvrement du navire et des effets on est censé le faire que pour les assureurs. ”
   Howekd, J.

This is an 'action upon a policy of insurance to make defendant liable for goods stolen, while being removed from a building damaged by fire. A clause in the policy expressly excludes responsibility for loss of property by theft, during or subsequent to the fire; but plaintiff, the appellant, contends that, under a legal and equitable interpretation of the terms of the policy, the defendant is made liable, by reason of its agent, the firewarden having ordered the removal of the property from the burning building.

Admitting that the action is properly brought, to enforce such liability under this particular contract of insurance (upon which we are not called on to express an opinion), plaintiff has failed to show that the fire-warden undertook to remove the goods on behalf or for account of the defendant. On the contrary, it is proven that the plaintiff himself undertook the removal, at the suggestion and on the advice of the firewarden, whose duty and authority, in this respect, are aptly described by the president of the company, to wit: “To advise parties who are insured as to the removal or disposition of their property, and, in ease of their refusal, to intervene in behalf of parties concerned. ” Plaintiff did not refuse, so as to require this intervention, and his acting upon the advice of the firewarden did not change the rights and obligations of the parties to the contract.

Good faith, it seems, would require both parties to do all in their power to make the loss as small as possible, and as there was express exclusion of liability for the course set forth in this action, it was incumbent on plaintiff to show, beyond reasonable doubt, that defendant did some act to incur liability for such loss. The stealing by the crowd was neither a necessary nor direct consequence of the fire, and the loss was clearly not within, the contemplation of the parties at the time of contracting, and no subsequent act of the defendant is shown to create a liability, as charged.

Judgment affirmed, with costs.


author: Howell, J,

text:
    Succession of David Barbour.
    Heirs, while they are not concluded by a tableau of distribution, have yet the right to appear and oppose it.
    A rule is not the proper mode to dispose of an opposition, when excepted to.
    £i. 3PPEAL from the Second District Court of New Orleans, Morgan, J.

      Martin Blache for absent heirs, opponents and appellants. Roselius <& Philips, contra.

   Howell, J,

This is an appeal from a judgment dismissing the opposition of heirs to the homologation of a provisional tableau, filed by the dative testamentary executor.

While heirs may not be concluded by the homologation of a tableau of distribution, yet the right to appear and oppose such tableau during the administration cannot be questioned nor denied to them. Such action, on their part, may tend to lessen litigation and delay, and may prevent the illegal distribution of funds, which they have a direct interest in having properly distributed.

We find in the record the judgment sustaining an exception to the opposition of the absent heirs represented by an agent; but we are unable to find such opposition or exception, although the clerk certifies that the transcript contains “all the proceedings had” in said succession.

We think justice requires the ease to be remanded for further proceedings, and feel called upon to disapprove of the form of proceeding by rule to dispose of an opposition, when excepted to, as done in this instance.

It is therefore ordered that the judgment dismissing the opposition of Helen Barbour, on 16th February, 1861, and that dismissing the opposition of the recognized heirs herein, on 15th March, 1861, to the tableau of distribution, be avoided and reverséd, and that this cause be remanded, to be proceeded in according to law; costs of appeal to be paid by the succession.


author: Hownnn, J.

text:
    J. H. A. Frost v. Garrett & Wynne, et als.
    Damages for a frivolous appeal must be asked for in the answer of the appellee.
    JL.L PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Hags, Adams <& Morgan for Lewis & Oglesby, garnishees and appellants.

      T. J. <&. W. H. Cooley for plaintiff.

    This suit began by attachment. Lewis & Oglesby, a commercial firm of the city, were made parties as garnishees and questions propounded to them. They answered, admitting they had funds in their hands to the credit of defendants, Garrett & Wynne, amounting to $620 71. The garnishees admitted in their answers an unconditional liability for the amount to defendants, and urged no plea of defence whatever. The defendants, Garrett & Wynne, confessed judgment for the amount claimed against them; and judgment was accordingly entered in favor of plaintiff, recognizing his privilege upon the sum of $620 71, in the hands of Lewis & Oglesby, and ordering them to pay over to plaintiff the amount so Attached in their hands. It will also be noticed that defendants consented, in writing, that the sum attached in the hands of garnishees be paid over to the plaintiff. This judgment was rendered and signed on the 8th of June, 1861.
    The garnishees have apxDealed from this judgment. The special errors set forth by them in their motion for an appeal, are : 1. The courts were, by formal decree, adjourned previous to the 8th June, 1861, and consequently no decree could be rendered against them. 2. That the judgment was improperly signed on the 8th June, the same day it was rendered ; when, by law, it could not be signed except after three days. The third ground is a general one, that the .judgment does him an irreparable injury.
    The record does not furnish any specific evidence in relation to the adjournment of the court. The only testimony in relation to the matter is found in the opinion of the judge of the court below, on the motion to set aside the appeal We are satisfied to’ submit that point on the opinion of the judge below.
    In relation to the second ground, that the judgment was prematurely signed, it is sufficient to answer that this did not injure in any manner the party. He could still have applied and obtained a new trial. The Supreme Court has recognized the doctrine that applications for new trials can be made after the signature of the judgment, if done before the expiration of three days. See Marigny v. Stanley, 2 L. 322; Hubbell v. Clannon, 13 L. 496.
    • The judgment has not operated to the injury of the garnishees. The rule is, that garnishees are merely stakeholders. The only issue they can raise is for the purpose of protecting themselves in relation to the validity of the payment by them to the attaching creditors. In this case no issue whatever was raised by the garnishees ; they simply came into court and admitted they owed plaintiff a certain sum of money. This was, to all intents and purposes, a confession of judgment, which estops the party from appealing. 5 R. 447; 0. P. 567; 14 L. 523; 5 A. R. 598.
    Had the garnishees any valid defence to paying this money, it was their duty to urge it in the answers they made to the interrogatories. Having admitted an unconditional liability, it is to be presumed they had no just ground with which to defend themselves.
   Hownnn, J.

This is an attachment suit in which the appellants were made garnishees, and in answer to the interrogatories propounded to them they admitted, unconditionally, that they owed the defendants §620 71, nett proceeds of fifteen bales cotton sold by them for account of defendants.

In the judgment, subsequently rendered upon the confession of the defendants, privilege was granted upon this fund, and the garnishees ordered to pay the said sum to plaintiff.'

We are unable to find any error in the judgment to the prejudice of appellants, and the appeal is evidently taken simply for delay; but there is no answer nor prayer for damages for a frivolous appeal.

The plaintiff is now dead, and his testamentary executor, Francis Brown, has, on motion in this court, been made party and authorized to prosecute this suit to final judgment.

Judgment affirmed, with costs.


text:
    Hannah S. Flynn v. Merchants’ Mutual Insurance Co.
    Evidence of fraud, etc., in an action on a policy of insurance, can only be admitted when specially pleaded; it is not admissible under the plea of tho general issue.
    "What third persons said out of court, and oral testimony of criminal proceedings, is not the best evidence, and inadmissible.
    "Where a criminal ebavge is to be proved by circumstantial evidence, the proof ought not only to be consistent -with the prisoner’s guilt, but inconsistent with any other rational conclusion.
    Where the testimony, as to the amount of a certain portion of the goods destroyed, is vague and uncertain, that part will be reserved for further action.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Field & Skaelcleford and Whitaker, Fellows <& Mills for plaintiff and appellant. Durant <& Eornor for defendant.
   Ilsley, J.

The plaintiff claims in the Fifth District Court of New Orleans, from the defendant, on a policy of insurance, two thousand dollars, for loss ancl damage by fire, to her stock of millinery, store fixtures and household furniture. The risk assumed by the defendants was as follows:

1. On her millinery goods .$700

2. Store fixtures. 500

3. Household furniture. 800

The answer is the general issue.

Condition 8, in the policy, is in the following words:

“Also, if there appear any fraud or false swearing the claimant shall forfeit all claims by -virtue of this policy.”

On the trial of this case, the defendants took certain bills of exception to the ruling of the court; excluding testimony offered by them to show that the plaintiff by her fraudulent, conduct had forfeited all right to claim any indemnity under the policy for her alleged losses.

The objection to the testimony offered, as set forth in the bills of exception, Nos. 1 and 2, was grounded on the absence of any special allegation of fraud to justify its admission, and the correctness of the ruling depends upon the rule, which this court has finally adopted, on this vexed question of pleading and proofs. Two decisions of the late court are referred to by the appellees to justify the admissibility of this testimony.

The first case is that of Kennedy v. The New York Life Insurance Co., 10 Al. 809. It was therein held: “Under the plea of general issue, the defendant might give in evidence the illegality of the contract, coverture, lunacy, and, in fine, everything which would show that the plaintiff cannot recover. 3 Greenleaf, No. 135.

In 12 An. 39, Hatchman v. Gondelbet Insurance Co., the court, referring to a previous decision in 9 An., 590, Matthews v. Insurance Company of New York, said: “Under the English practice, which has certainly not often been more indulgent than ours, the plea of the general issue to an action on a policy of insurance, was formerly sufficient to let in evidence of illegality, misrepresentation, breach of warranty, or almost every other matter that would discharge underwriters. 2 Arnould Ins. 1286.

By the new rules of pleading adopted on the King’s Bench, in 1834, matters showing the transaction to be void or voidable on the ground of fraud, must be specially pleaded. Evidence was not excluded in either of these cases, because notice was given by the defendants in their answers, of their intention to prove fraud. In neither case, however, was there any specification of the mode and circumstances of the fraud, but such pleading was recommended by the court. The plea of intention to prove fraud was considered sufficient to let in the proof in the cases cited. We deem it safe to adopt the view taken by our predecessors, as being one calculated to remedy loose practice and to prevent surprise. Another case, not yet published, Loundes v. Merchants’ Mutual Insurance Company, (Opinion Book, b. 29, fol. 17), is referred to as sustaining the old rule, and making testimony to show fraud admissible under the general issue; but, on examining that case, we do not discover that it bears that interpretation.

In that case, the underwriters had specially set up in their answer the false swearing by the assured, as a fraud, which the court held it to be, and evidence under that special allegation was properly admitted.

In the case at bar only the general issue is pleaded, and tinder that plea alone the evidence offered was not admissible.

The deposition of Mary Sparks was properly excluded. She should have been produced or satisfactory evidence adduced to show that due diligence had been used to discover where she was, which does not appear.

Tappan’s testimony was inadmissible t& prove the general opinion of witnesses, whose duty and business it was to seek a witness, Mary Sparks, as to her “whereabouts;” as those witnesses themselves should have bedn produced, their testimony being better than unsworn opinions or declarations, made by them out of court; and so of the proceedings of the criminal prosecution, their production was properly insisted on as the best evidence.

We have examined with considerable care all the evidence adduced in this case, and we have been unable to discover any act of the-plaintiff from which to infer fraud.

The main facts relied on by the defendant, from which fraud is presumed by them, are those narrated in their brief. The first one is that, on the day previous to the burning of the store, one J. B. Bradley, a constable, who had two writs oifi.fa. against the plaintiff, was requested to call next day under a promise of payment.

In this request we can perceive nothing but a very natural desire to be rid, at least for 'that day, of a very disagreeable visitor. This, notwithstanding the fire, is not a circumstance on which it would be fair to found a charge of fraudulent intention to commit the heinous offence of arson. The next specifications can be stated together : “The flames seemed to come from under the counter; the top shelves were empty; at the same time the plaintiff had goods already put up in boxes and trunks, with the store looking-glass, all on the sidewalk, while the store was locked up, and the plaintiff, with a cab in attendance, ready to drive off. After the fire, the witness Carrico examined the store; found boxes piled rip in the middle of the store, half burned and no goods in them; boxes on the shelves and no goods in them; discovered that the fire originated under the counter; there were no remnants of burnt goods in the store.”

The only witnesses who testified to these matters were two policemen, G. Carrico and Charles Oilff; the latter, however, confining his testimony to what occurred during the fire. After some preliminary statements, he says : “ When we burst open the door we saw the fire under the counter; the blaze was pretty much up, and I could not see much, but saw that the shelves were empty. I did not go into the store after the fire was got out.” He says, also, “I went with Carrico to the corner of Rampart street, and there I saw Mrs. Mynn standing by some trunks and boxes. ” He says, in cross-examination, the flames blazed up when the door was opened, but there was not much smoke; but Carrico’s testimony is deemed conclusive, and it has therefore been scanned with more than ordinary attention. He was present at the bursting open the door; and he says, “when the door was burst open we had to run away; everything was in a blaze. Just as soon as the door was burst open, the flames seemed to come from under the counter. I could see that the top shelves were vacant; and then the flames burst all over and we had to run away from the door.”

This witness also saw Mrs. Flynn on the side-walk on Rampart street,. and describes minutely what she had with her: a large box of goods and. two large trunks, a looking-glass, a German clock and two carpet bags. He describes the contents of the box: some card ribbon, lace' needles, etc.

He says : “ I saw no lamp in the store; there were gas pipes, but I dd not think they had exploded. ” *And now comes the most important part of the testimony of this witness : “After the fire was exhausted, I went into the store and saw empty boxes piled up and half burned, and nothing in them; the boxes in the shelves were not burned; they were empty hat boxes. I attempted to find where the fire originated, and discovered that it originated under the counter. We found nothing but the empty wooden boxes half burned. On his cross-examination, he says the house was entirely burnt out by the fire; the store was entirely burnt up, not in ashes; there were a few shelves in the back part half burned; the front part of the store was entirely burned. ” In this connection, it is well to ■ refer to the testimony of L. Gasiinel, Lieutenant of Police.

He says : “I passed the house after the fire; it looked to me entirely burnt. When I reached the spot, the lower part of the house was all in flames; the upper part of the house was also burning.”

“ I examined the spot, after the fire 7iad been extinguished, and saw that the house was in ruins,” says Fabean, another policeman; and, from all •this testimony, it is fair to infer that the store was entirely burned up; at all accounts, it may be supposed that not a vestige of the counter was left, as the fire is supposed to have originated under it; and yet this witness, Carrico, after the fire was exhausted, goes deliberately into the store and makes the important discovery that empty boxes were piled up, etc.; and he then discovered that the fire originated under the counter, and that the boxes on the shelves, which he and Oilff said, previously, were vacant, were not all burnt; they were empty. Carrico says the shelves were in the back part of the store, half burned ; and that was where the empty boxes were, as they would probably be, if there at all.

The zeal of this witness outrides his discretion. He proves too much. He discovers after the store, and particularly the counter, had been entirely consumed, that the fire originated under the counter. Credulity ifself could not be imposed on by such a statement, and we attach no weight whatever to his testimony.

The only circumstances which might militate against the plaintiff, are the apparent origin of the fire, the empty shelves, and her readiness for departure, with boxes and trunks and the store looking-glass, with a cab in attendance.

The apparent breaking out of the fire under the counter, if assumed to be true, which, however, the testimony does not render very certain, as the store was all in flames when the door was burst open, would not, of itself, implicate the plaintiff. It might have been the work of an incendiary, or have been accidental, and the hurried inspection of the shelves, when the door was burst open, could hardly have been a satisfactory one.

The plaintiff, “in a long white gown,” was on the sidewalk with Mr. Logan, and with her were some trunks, a box, etc., the latter of which might, from their nature, have well been in the working-room over the the kitchen, as was probably the store looking-glass, which, tÉngené Martin, a witness, says had been taken out of the store a month before. The ownership of the trunks and other articles is not shown, although Mr. Logan says that one of them, when opened, appeared to contain scSine ladies’ under-dresses. There is nothing suspicious in all this to' fix fraud on the plaintiff.

“Where a criminal charge is to be proved by circumstantial evidence,” says Greenleaf, “the proof ought to be not only consistent with the' prisoner’s guilt, but inconsistent with any other rational conclusion;” and, although this is a civil and not a criminal proceeding, we think the rule not inapplicable.

It remains only to ascertain the plaintiff’s loss.

The testimony being vague and unsatisfactory, in relation to the stock and value of the millinery goods destroyed, no allowance can now be made her for this part of her claim ; but it will be reserved for further action.-lHen. Dig. (newed.) p. 739, $5.

The value of the store fixtures is assumed to be one hundred and thirty-two dollars, being the price she paid for them.

As to the value of the household furniture, which, it is shown, was entirely destroyed, there is a discrepancy in the testimony: one witness fixing it vaguely at one thousand dollars, and two othérs at three hundred. One of the witnesses who adopt the last valuation, being conversant in such matters, we adopt it a3 the correct one.

It is therefore ordered, adjudged and decreed, that the judgment rendered by the court below be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered therein, it is or-' dered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the plaintiff, Hannah S. Flynn, and against the defendant, the Merchants’ Mutual Insurance Company of New Orleans, for the sum of four hundred and thirty-two dollars, with legal interest from judicial demand, and that the defendants and appellees pay the costs in both courts. It is further ordered, that the claim of the plaintiff for the value of her' stock of millinery goods destroyed by fire, be and the same is hereby reserved to her for future proceedings,


author: Jones, J.

text:
    Alexander Harris v. John A. Peel.
    W'heve tlie note .sued on beai*s eight per cent, interest, no special damages will be allowed as for a frivolous appeal: and this court will simply affirm the judgment of the court below.
    . from the Sixth District Court of New Orleans', Howell, J.

      Durará c® Honor for plaintiff.
   Jones, J.

The plaintiff, as the holder of a mortgage note, sued out a writ of seizure and sale as to the mortgaged property.

His proceedings are regular; and, upon the examination of the record, we find no error prejudicial to the appellant.

This appeal was taken for delay; but, as the note, the basis of the seizure, bears eight per cent, interest, we simply affirm the judgment, with costs.

Howele, J., recused.


text:
    William Halsmith v. Bernard Castay.
    haroi testimony cannot be received to establish a contract of sale of immovables, or show damages resulting from the non-compliance of the vendor in refusing to pass the act of sale. Even a promise to sell must be proved in writing.
    from the Second District Court of New Orleans, Morgan, J.

      J. L. Tissoi for defendant and appellant.
   Labatjve, J.

Plaintiff alleges, in substance, that, on the 9th day of October, 1860, the defendant agreed and contracted to sell him certain lots of ground and buildings thereon, for $3,000; that, on the 25th day of October, 1860, the said Oastay refused to comply with the terms of sale and execute the act of sale, in consequence of which, he, the said plaintiff, has suffered damages to the sum of three thousand five hundred and fifty dollars, which the said defendant is legally and equitably liable to pay him.

He prays that said Oastay be cited and ordered to comply with said contract of sale, or to execute the act of sale ; or, in default thereof, to pay petitioner .|3,550, with interést. '

The defendant, for answer, by way of peremptory exception, says that plaintiff’s petition discloses no right of action, and, should this exception be over-ruled, then he pleads a general denial.

Upon this issue, this case came on for trial below, when plaintiff offered to prove, by divers witnesses, the allegations set forth in his petition. Defendant excepted to reception of said parol evidence to establish, aeon-tract of sale of lots, as alleged in the petition, upon the ground that pa^ rol evidence could not be received, the law requiring written evidence. The plaintiff also offered parol evidence to show the damages suffered by him in consequence of the defendant refusing to comply with his agreement. The defendant objected to the said parol evidence. The court over-ruled the objection and admitted the testimony, and the defendant excepted to the decision of the court.

We are clearly of the opinion that the District judge erred in receiving, in the first place, parol evidence to establish a contract of sale of immova-bles, and, in the second place, to show damages resulting from the noncompliance of defendant in refusing to pass an act of sale of the lots in question. C. C. Arts. 2255, 2414, 2415. Even a promise to sell must be proved by writing. C. 0. Art. 2437; 1 An. 459; Hennen’s Digest, p. 525, Evidence, 14, Nos. 1 and 2; same wort, p. 526. No. 14. It is not an open questibn, and the jurisprudence is settled on that subject.

It is therefore adjudged and decreed that the judgment of the District court be annulled and reversed. It is further adjudged and decreed that plaintiff’s demand be rejected, and that he pay costs in both courts.


author: Labauve, J.

text:
    Samuel N. Hite v. Jacob Barker.
    Any amendment of the judgment in the court below must be prayed for in the answer to the ' appeal; it will not be noticed in the brief.
    from the Fourth.District Court of New Orleans, Price, J.

      Kennedy & Miles for plaintiff. T. W. Gdllens for defendant and appellant.
   Labauve, J.

In April, 1856, W. L. Burges entered into an agreement with defendant, Barker, whereby the latter was to purchase and pay for about 2,200 barrels at 56 cents per barrel, and to hold them .on account of said Burges for ten months. Barker was to store the barrels, and Burges was to pay storage at 1% cents per month per barrel; and eight per cent, interest on money' advanced for, the purchase, and $55 61 on the transaction. Burges was also to pay cartage, cooperage, insurance and all other charges, and to deposit with Barker $300, a margin against loss; and if defendant was not reimbursed on or' before the 14th February following, Barker was to sell at auction, or private sale, the barrels.

The barrels were not sold at the expiration of the delay, and 2,166 were shipped by Barker to Ouba, and the nett proceeds of sale, as per accounts rendered, amounted to $2,318 37. But it appears there were 2,238 barrels purchased by and paid for by Barker, at 56 cents per barrel, and that he only accounted for 2,166, leaving a balance, 72 barrels, which were valued below at 90 cents each, making an aggregate of $64 80;. which. amOiilft, added to the proceeds of sale made in Cuba, §2,318 37,' makes, in all, §2,383 17; of this amount the judge below deducted §1,779 26 for cost of drayage, cooperage, hoops, nails, insurance, interest of money, commission and money advanced by Barker for the purchase of the barrels (less §300 deposited by Burges with Barker), and for other ■charges, leaving a balance of §603 91, for which the court below gave .judgment for plaintiff against the defendant, who appealed.

On trial below, the defendant offered in evidence the ease of Sullivan v. Burges and of the garnishment proceedings thereto, and the accounts and vouchers, letters and account sales filed in said case on behalf of the defendant Barker; to the admission of which evidence, the plaintiff excepted, in substance, on the ground that said accounts, etc., do not, of themselves, constitute proof; and that said accounts and letters are not the best evidence, etc.

The court admitted the evidence, and the plaintiff took a bill of exceptions to the opinion of the court. We think it unnecessary to pass upon this bill of exceptions, as our decision upon it would not change the judgment under the pleadings in this court; the rejection of the evidence admitted and excepted to, would not authorize us to amend and increase the judgment rendered below, in favor of plaintiff and appellee, who has failed to file an answer, in the legal delay, praying for such amendment; it is true plaintiff’s counsel argues, in his printed brief, that the judgment appealed from should be increased to §1,200 95, as balance due by defendant; but a brief is not an answer; it makes no part of the pleadings ; it is a written instead of an oral argument. O. P. Art. 890.

Upon the whole, we believe that the judgment of the District court must be affirmed.

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

Howell, J., recused.


text:
    John Gardes et als. v. Schroeder & Schreiber.
    khe law requires the same amount of evidence to prove a verbal power of attorney as it does to prove a verbal contract for money or personal property; and that, when a party attempts to enforce a contract for the payment of money, above SSOO, made by agent, he should prove, by at least one credible witness and other corroborating circumstances, the verbal agency.
    A PPEAL from the Fourth District Court of New Orleans, Allen, J.

      William H. Bunt for plaintiffs. Durant <& Bornor for defendants.
   Hyman, C. J.

Judgment Was rendered in favor of plaintiffs, and defendants appealed.

The suit is on a contract, exceeding five hundred dollars, for payment of money.

Defendants, in answer, denied that they made the contract, or authorized any on to eonti'act.

There is no evidence that defendants, in proper person, contracted; but there is sufficient evidence that another contracted for them.'

The contract, if agency be proved, as required by law, is fully established.

One witness only proved agency. He swore that he was employed by defendants to make the contract. There are no circumstances corroborating his testimony.

We do not question the veracity of this witness. We believe that he swore truthfully.

The question, then, is not the credibility of this witness, but whether his evidence alone is sufficient, in law, to prove his agency.

The second paragraph of Article 2961 of the Civil Code, declares that a power of attorney may be given verbally, but of this, testimonial proof is admitted only, conformably to the title of conventional obligations; and Article 2257 of same Code, under title of “ Conventional Obligations, provides that contracts for payment of money, or relative to personal property, not reduced to writing, may be proved by parol evidence; but, such contracts, when over five hundred dollars, must be proved by, at least, one credible witness and other coroborating circumstances.

Under this caption of “ Conventional Obligations” there is no other article which is applicable to the second paragraph of Article 2961, or which authorizes testimonial proof.

We conclude, from these articles, that the law requires the same amount of evidence to prove a verbal power of attorney, as it does to prove a verbal contract for money or personal property; and that, when a party attempts to enforce a contract for the payment of money, above $500, made by an agent, he should prove, by at least one creditable witness and other coroborating circumstances, the verbal agency.

Agency not being proved, as law requires, we remand the case.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court bo avoided and reversed, and that this case be remanded to the District court for further proceedings therein.


author: Labatjve, J..

text:
    Peter Heft v. Harry Kelty.
    An appeal will lie from a judgmont on a rule in tlie court below dismissing an opposition to an order of seizure and sale.
    from the Sixth District Court of New Orleans, Howell, J.

      J. Mottoy for defendant and appellant.

      Tkos. H. Howard for plaintiff.

    1. The appeal was granted on a rule to show cause, moved by defendant, for the purpose of quashing the writ of seizure and sale, and after all the proceedings in the cause were closed. Such judgment was not a final judgment, nor an interlocutory judgment, nor a judgment in the cause; but was a judgment posterior to ail these. C. P. 565, 566.
    2. It was a judgment on a rule, which was itself a departure from the course of practice, the defendant not .availing- himself of his legal remedy. It did not wort irreparable injury, nor could it, by its nature, have worked any consequences adverse to defendant, It was designed to arrest the lawful proceedings of plaintiff without right and without penalty. C. P. Art. 298, and statute of April 7, 1826, p. 170, § 9.
    3. AH consequences, legal and direct, and all injury, if any there were, were, and must have been, caused by the order of seizru-e and sale, .which was rendered October 20, 1865. Prom this defendant had his right of appeal, which right expired by limitation, October 21, 1864. O. P. Art. 593.
   Labatjve, J..

The plaintiff obtained an order of seizure and sale, on the 20th October, 1863, against a mortgaged lot of the defendant, to satisfy a note of $800.

On October 31st, 1863, the defendant obtained a rule, as follows:

“ On motion of J. Molloy, of counsel for defendant, it is ordered that plaintiff, P. Heft, and T. E. Dunham, sheriff, show cause, on Wednesday, the 4th of November, 1863, at 10 o’clock A. M., why they should not cease proceedings under the order of executory process issued in the above case, on the ground that the same is in violation of Military Order No. 15, dated February, 1863; and further, why said order should not be revoked and rescinded.”

On the 6th November, 1863, this rule was dismissed, with costs, and from which decision the defendant took a devolutive appeal.'

The plaintiff and appellee has filed a document, which is taken to be a a motion to dismiss this appeal, on the grounds, in substance: “ That the judgment rendered on the rule is not a final judgment, nor an interlocutory judgment, nor a judgment in the cause, etc.”

This rule must be viewed as an answer, or an opposition, to the order of seizure and sale, going to show that the order of executory process had improvidently been issued and that it ought to be set aside. The judgment upon the rule was certainly a final judgment, and either party had the right to appeal. Suppose that the judgment had made the rule absolute, would not the plaintiff and appellee have been entitled to an appeal? The answer must be in the affirmative.

Motion to dismiss overruled.

Howebb, J., recused.


text:
    Nathan Stephens v. C. C. Beard.
    Conventional interest will not be allowed upon a contract unless expressly stipulated.
    -Cl. PPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant & Hornor for plaintiff.
   Labauve, J.

The plaintiff claims against the defendant $775 11, with interest, at eight per cent., from the 5th November, 1860, for work and labor performed, and materials furnished, in paving street opposite the property of said Beard, as per bill annexed to and made a part of the petition. He prays accordingly, and for a special lien and privilege on the property.

The defendant answered by a general denial; but admitting, at the same time, that the paving had been done in front of the property described; denying, also, that it amounted to the sum sued for. He further pleaded in compensation the sum of $755 against plaintiff’s demand.

The account sued upon and annexed to the petition was offered in evidence.

Plaintiff also offered in evidence the contract under which the paving was done.

It was admitted that the work was done in accordance with the contract, and the production of said contract was waived and dispensed with.

The district judge, after hearing the testimony, gave judgment for the plaintiff, as prayed for, and against the defendant, rejecting also defendant’s plea in compensation.

The defendant appealed from this judgment.

The defendant has made no appearance in this court. The plaintiff and appellee had the case fixed for argument, and submitted it with a prayer for damages for a frivolous appeal.

We have carefully examined the record, as the law requires of us. C. P. Art. 892. We are satisfied that plaintiff clearly made out his case by proofs, admissions and pleadings of the defendant, except that we have seen nothing to support the allowance of conventional interest at eight per cent, per annum; we do not feel authorized to affirm that part of the judgment appealed from.

It is therefore adjudged and decreed, that the judgment of the District court be so amended as to allow five instead of eight per cent, per annum, from the 5th November, 1860, till paid, and that, as amended, it be affirmed; the appellee to pay the costs of appeal.