author: Wyly, J. Morgan, J.,

text:
    No. 5660.
    D. R. Carroll & Co. v. H. T. Bridewell. Mrs. Lizzie Hamilton, Intervenor.
    The intervention is dismissed. The intervenor has neither alleged nor proved that she is a creditor of the defendant, whose property was sequestered.
    If the intervenor hada lessor’s privilege, it should have been asserted before the sequestered property was released on bond. No fraud and collusion are shown between the plaintiffs . , . and the defendant.
    The intervenor can not urge irregularities in the suit, such as insufficiency of the bond or affidavit on which the sequestration issued.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Bough, J. James T. Coleman, for plaintiff and appellee. B. E. Morrisson, curator ad hoe, for defendant and appellee. F. I). <& W. Farrar, F. B. Farrar, for intervenor and appellant.
   Wyly, J.

Plaintiffs sued the defendant on his three promissory notes, amounting in the aggregate to $4073 47, and claiming a vendor’s privilege on the mules, and a furnisher of supplies’ lien on the crops raised on the Connor plantation during the year 1873, sequestered eight mules and eighty-eight bales of cotton.

On the twenty-third December, 1873, soon after the seizure, the defendant procured a release on bond of said property, Mrs. Lizzie Hamilton, the owner of said plantation, being one of the sureties on said bond. Subsequently, to wit: on May 12, 1874, Mrs. Hamilton filed a petition of intervention, alleging that she was the lessor of the Connor place; that the property sequestered was the crops grown on said plantation, and the movables thereon situated; that she had a lien on those crops as lessor superior to that of the plaintiffs’ lien for supplies; that she was surety on the release bond; that the writ of sequestration had illegally issued, for the reasons assigned in a motion to dissolve the same therewith presented and filed, tQ wit: for the reasons that the writ had issued without any affidavit, and that the order had been made by an incompetent judge; that she had been induced to become surety for the defendant by representations made to her by him to the effect that he did not owe the debt sued on; that a suit had previously been brought against him in the State of Mississippi by the same parties on the same cause of action ; that the writ of sequestration had been illegally obtained, and that, if she would go on his bond, he would ship her cotton to pay her lease; that, owing to his noncompliance with this agreement, and owing to a writ of provisional seizure obtained by her to secure her rights, the defendant had threatened to revenge himself upon her by allowing judgment to go by default against him in this suit, in order that he, being insolvent, she might be held liable on the release bond; that he had written a threatening letter to her to that effect; that he had also written a letter to his counsel, dismissing him from his employment, and withdrawing all defense in this suit; that she liad reason to believe, and did believe, that the defendant had willfully, corruptly and maliciously corresponded with the plaintiffs or their representatives, agreeing to confess judgment, or permit the same to be taken by default, with a recognition of the validity and legality of the writ of sequestration, so as thereby to hold her liable on the release bond, and to force her to pay his debts, and in that manner to secure his revenge.

The relief she prayed for was, that her privilege as lessor be recognized as superior to that of plaintiffs; that she be allowed to file a motion to dissolve the sequestration on the grounds above mentioned, and that the court act on said motion, and dissolve the sequestration.

On second June, 1874, the intervenor filed a supplemental petition alleging’ that the plaintiffs and the defendant had conspired to perpetrate a fraud upon her; that in order to escape a criminal prosecution in the State of Mississippi, threatened to be instituted against him there by plaintiffs, the defendant had consented to let this case in Louisiana go by default, for the purpose of holdingher liable on the illegal release bond; that in execution of that agreement the counsel for plaintiffs had drawn up the answer which was copied by Bridewell, and filed by the counsel; that she has a direct interest in the suit as far as the sequestration was concerned, for the reasons above given.

To this intervention the plaintiffs excepted:

First — That the intervenor can not urge irregularities in the suit between the original parties, such as the insufficiency of the bond and oath on which the sequestration issued, nor can she plead any exception to dismiss the action.

Second — The intervenor can not, without the consent of plaintiffs, substitute herself in the place of defendant.

Third — The intervenor shows no sufficient cause for the intervention.

The exception was referred to the merits, and the plaintiffs answered the intervention. At the trial the court gave judgment for the plaintiffs and dismissed the intervention with costs. The intervenor alone has appealed.

There are several reasons why the judgment under review should remain undisturbed;

First — The intervenor has neither alleged nor proved that she is a creditor of the defendant, whose property was sequestered.

Second — If the intervenor had a lessor’s privilege, it should have been asserted before the property was released on bond.

Third — No fraud and collusion are shown between the plaintiffs and the defendant.

Fourth — The intervenor can not urge irregularities in the suit, such as insufficiency of the bond or affidavit on which the sequestration issued. See 21 An. 118, and authorities there cited.

Judgment affirmed.

Rehearing refused.

Morgan, J.,

dissenting. The intervenor was the lessor of the plantation. Upon the crop made thereon and the movables used in growing it, she had a privilege superior to the plaintiffs, who furnished the supplies. It is true that the property seized by the plaintiffs was bonded, and that the intervenor went on the bond. Still the bond represents the property, and upon the property her lien and privilege, superior to the plaintiffs’,,is, I think, incontestible. I am, therefore, of opinion that the district judge erred in dismissing the intervention. I therefore dissent from the opinion just pronounced.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5683.
    Ambrose et al. v. Madison Marsh.
    "Where the property of the succession was offered for sale -for cash, and, no one bidding, it was immediately offered on the terms of credit designated in the order, and was adjudicated to the administrator thereof, who directed the sheriff to adjudicate it to one Mrs. ■ Simmons, a person having no real intention of purchasing, but receivingthe adjudication only as an act of iriendship to the administrator; Held — That the succession never was divested of the property.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana.

      Dewing, J. Jury case. H. A. Gross áPipkin, for plaintiffs and appellees. O. MoVea and D. J. Wedge, for defendant and appellant.
   Morgan, J.

Defendant was the administrator of the estate of Mrs. Priscilla Ambrose. Her estate consisted of a certain piece of land situate in the parish of East Feliciana, which was appraised at $1000.

Plaintiffs are heirs of Mrs. Ambrose, and- were minors when the succession of their parent was opened.

Defendant was the husband of one of the coheirs.

The administrator applied for the sale of the property belonging to the estate for the purpose of paying the debts. The order was that the property “be sold for cash, provided it brings its appraisement j and if not, that it be reoffered for sale on a credit of twelve months.”

The property was offered for sale for cash, and, no one bidding, it was immediately offered on the terms of credit designated in the order. According to the return of the sheriff “it was adjudicated to Madison Marsh, but by order of the said Marsh, it was adjudicated to Mrs. S. J. Simmons for the price of $500.”

The heirs — at least these plaintiffs — now accepting the succession of their mother claim to be put in possession of the property left by her, alleging that the title thereto has never been legally divested from them; that the sale thereof was made without the observance of the formalities required by law; that the real purchaser thereof was Marsh, the administrator, and that Mrs. Simmons was a party interposed, who had no real intention of purchasing the property, but received the adjudication only as an act of friendship to Marsh.

Either of the positions assumed by plaintiffs is sufficient to strike the proceedings complained of with nullity, and they are both supported by the evidence.

The law provides that when property is offered for sale for cash, and does not bring the amount required by the statute, it shall be re-offered after a publication of fifteen days.

It is even, if possible, more explicit that administrators of estates shall not purchase property belonging to the estates which they administer, except in certain specified cases. The evidence satisfies us that Mrs. Simmons was a mere party interposed, and that in reality Marsh was the real purchaser. Under these circumstances the jury were right in decreeing that the property in question belonged to the succession of Mrs. Ambrose.

Judgment affirmed.


author: Wyly, J.

text:
    No. 5580.
    Charles E. Alter v. S. O. Nelson & Co.
    This suit was brought to revivo a judgment m solido against defendants, Nelson & Co., serving citation only on Nelson. In bar of the proceeding he pleaded Ms discharge in bankruptcy. It was a vain tMng to cite Mm, because he could not be held personally liable, and whether or not a judicial mortgage should be perpetuated against the bankrupt’s estate by reviving the judgment, was a question that might interest the assignee, the special representative of the ordinary creditors, but it in no manner concerned the bankrupt, who had surrendered his entire estate.
    APPEAL from the Sixth District Court, parish of Orleans. Sauciert J.

      Franlc L. Eicliardson, for plaintiff and appellant. Breaux, Fenner ds Hall, Hyams & Jonas, for defendant and appellee.
   Wyly, J.

On the sixteenth June, 1863, the plaintiff recovered judgment against the defendants in solido for $25,000. On tenth of June, 1873, he brought this suit to revive said judgment, serving citation only on S. O. Nelson.

In bar of the proceeding the defendant, S. O. Nelson, pleaded his discharge in bankruptcy. The court gave judgment for this defendant, and the plaintiff appeals.

We think the court did not err. The discharge in bankruptcy released the defendant from paying the judgment. And if the object of the plaintiff was, as he says, merely to avert prescription of the judgment in order to preserve the judicial mortgage resulting from recording the judgment in the parish of Iberia, where the defendants owned immovable property, that object could not be accomplished by citing the defendant, a discharged bankrupt, who was without interest.

It was a vain thing to cite him, because he could not be held personally liable; and whether or not a judicial mortgage should be perpetuated against the bankrupt’s estate by reviving the judgment was a question that might interest the assignee, the special representative of the ordinary creditors, but it in no manner concerned the bankrupt, who had surrendered his entire estate.

Judgment affirmed.

Rehearing refused.


text:
    No. 5567.
    Bank of America v. Septime Fortier. Third opposition of E. J. Gay & Co. Third opposition of Citizens’ Bank.
    Appellant gave no bond under the order for a suspensive appeal, but gave bond after getting an order for a devolutive one. This was not an abandonment of an appeal. There is no appeal until the bond is given, it matters not how many orders of appeal have been granted.
    As the sheriff is a mere depositary, in this case, of the funds sought to be distributed, he has no interest in the controversy, and need not be made a party to this appeal.
    The furnishers of supplies or cash actually used for the cultivation of a plantation have a privilege on the crops of that year, and it can not be divested by any prior mortgage, whether legal, conventional, or judicial, or by any seizure and sale of the land while such crops are on it, and such privilege bears on the growing crop.
    As against the Citizens’ Bank holding a conventional mortgage recorded in January, 1868, •E. J. Gay & Co. have no preference for the supplies they furnished, the defendant from January till April 23,1873, because their claim was not recorded on'the day the contract was entered into. Privileges are stricti juris, and persons desiring to affect third parties therewith must register them in the manner required by law.
    Construing articles 3273 and 3274 Revised Code, so as to give effect to both, the conclusion is that privileges have effect as to third persons generally from the date of their registry; but, for a privilege to have a preference over an existing mortgage, it must be recorded on the day the contract out of which it arises was entered into.
    APPEAL from the Fourth Judicial District Court, parish of St. James.

      Flagg, J. Johnson & Denis, for plaintiff and appellee. Barrow <& Pope, for E. J. G-ay & Co., third opponents and appellees. A, Pitot, Legendre & Boché, for the Citizens’ Bank, third opponent and appellant.
   Wyly, J.

This is a controversy between Edward J. Gay & Co., privilege creditors for $1847 43, and the Citizens’ Bank, a conventional mortgage creditor for $6000, for the balance of the proceeds remaining after the payment of plaintiff’s mortgage, under which the Felicité plantation, belonging to the defendant, was sold on the seventh of June, 1873.

Plaintiff bought the mortgaged property for $20,500, and after satisfying its own judgment, costs-and taxes, there remained $2339 69, which plaintiff retained to pay the proportion of taxes on said property for 1873 up to-the time of the adjudication, and to be applied to such privilege and mortgage creditors as might be entitled to it.

It is conceded that plaintiff is entitled to apply $284 90 of the fund on hand to the payment of the taxes,for 1873, leaving $2054 79 as the sum in controversy between Edward J. Gay & Co. and the Citizens’ Bank.

The court below decided that Edward J. Gay & Co. are entitled to a preference over the Citizens’ Bank in the distribution of this fund, and the Citizens’ Bank has appealed.

Edward J. Gay & Co. moved to dismiss the appeal :

First — Because appellant abandoned its suspensive appeal and, therefore, had no right to take this devolutive appeal.

Second — Because the sheriff has not been cited.

Third — Because the certificate of the clerk to the transcript is not sufficient.

Appellant gave no bond under the order for a suspensive appeal,'but gave bond after getting an order for a devolutive appeal. This was not an abandonment of an appeal. There is no appeal until the bond is given, it matters not how many orders of appeal have been granted. 20 An. 236.

As the sheriff is a mere depositary of the funds sought to be distributed, he has no interest in the controversy, and need not be made a party to this appeal. 20 An. 283; 1 An. 205; 2 An. 232; 5 An. 668; 11 An. 486. .

The defect in the clerk’s certificate to the transcript has been corrected under a writ of certiorari issued by this court.

The motion is therefore denied.

On the Merits.

Edward J. Gay & Co. claim a privilege as furnishers of supplies and cash for the crop of 1873, standing at the time of the sale, June 7,1873.

The Citizens’ Bank is a conventional mortgage creditor, next in rank to plaintiff, and its mortgage was recorded on January 27, 1868.

The Citizens’ Bank opposes the privilege claim set up by Edward J. Gay & Co. on the following grounds :

First — The crop of 1873 on the Felicitó plantation, at the time of the sale, was a standing crop, an immovable and part of the land, Revised Code 465, and, therefore, it was subject to the bank’s mortgage.

Second — Edward J. Gay & Co.’s privilege having been recorded on the second of June, 1873, and resting on .an open account, dated April 23, 1873, was recorded too late to affect the Citizens’ Bank mortgage over the crop as part of the immovable — the plantation.

Tim'd — The inscription of said privilege was defective in not containing a description of the property affected thereby.

By article 3217 Revised Code the furnishers of supplies or cash actually used for the cultivation of a plantation have a privilege on the crops of that year, and it shall not be divested by any prior mortgage, whether legal, conventional, or judicial, or by any seizure and sale of the land while such crops are on it and such privilege bears on the growing crops.

Article 123 of the constitution provides, among other things, that “ no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated and “the General Assembly shall provide by law for the registration of all mortgages and privileges.”

In the Revised Code, under the title “How privileges are preserved and recorded,” we find the following articles :

3273 — “ Privileges are valid against third persons from the date of recording of the act or evidence of indebtedness as provided by law.”

3274 — “ No privilege shall have effect against third persons, unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day the contract was entered into.”

As against the Citizens’ Bank holding a conventional mortgage recorded in January, 1868, Edward J. Gay & Co. have no preference for the supplies they furnished the defendant from January till April 23, 1873, because their claim was not recorded on “the day the contract was entered into.” They failed to comply with the requirement of article 3274, and, therefore, are not entitled to the preference it accords. Privileges are stricti jivris, and persons desiring to affect third parties therewith must register them iu the manner required by law.

The counsel of Edward J. Gay & Co. insists that, as under article 3273, privileges have effect as to third persons from the date of registry, that article should govern this case; if otherwise, great inconvenience will result, and parties will be forced to go to the place where the property is situated to contract, so the act may be recorded on the same day.

Construing articles .3273 and 3274 so as to give effect to both, we conclude that privileges have effect as to third persons generally from the date of their registry; but for a privilege to have a preference over an existing mortgage it must be recorded on the day the contract out of which it arises was entered into.

' As against ordinary creditors, Edward J. Gay & Co., acquired a preference under article 3273 from the day of the registry of their claim, ■

To oust prior mortgage creditors or to acquire a preference over them, these privilege creditors, however inconvenient, should have recorded their privilege on the day the contract was made, or the day it was acquired, because this was required in the unambiguous language of article 3274.

And this was the view of the law taken by this court in the cases of Foley v. Hagan, 23 An. 286, and Marmillon v. Archinard, 24 An. 610. See also 23 An. 271, 694; 25 An. 232 ; 26 An. 80. See also Dunning v. Coleman, lately decided.

In regard to the inconvenience that may arise from this interpretation of the law the court is not responsible, since it can only decide what the law is, not what it should be.

Our conclusion is that the Citizens’ Bank has a preference over Edward J. Gay & Co. on the funds in controversy.

It is therefore ordered that the judgment herein be amended so as to reject the demand of the opponents, Edward J. Gay & Co., with costs, and to require the funds remaining, after the settlement of plaintiff’s execution, costs and all taxes, as fixed in the decree herein, to be paid over to the Citizens’ Bank, in part payment of its mortgage and as amended that the judgment be affirmed, Edward J. Gay & Co., paying-costs of this appeal.

Eehearing refused.


author: Howell, J.

text:
    No. 5555.
    State of Louisiana v. H. H. Willers.
    Defamation by libel is the offense charged. Sections 804 and 1051B. S., take this case out of the strict rules of the common law, and the purport only of the libelous letter as given in the information is sufficient. It was not essential that the information should have alleged that the letter was written in the German language in order to permit the State to introduce the letter and an authorized translation. The law of evidence upon this subject is complied with, if the matter or purport of the instrument offered conform to the purport and description thereof in the information. The law did not require the libelous letter to be set out in full, or a copy of it to be contained in the information.
    APPEAL from the Pourth Judicial District Court, parish of Ascensiou. Flagg, J. Criminal case.

      M. Maries, district attorney, for plaintiff and appellee. B. N. á Wm. Sims, Niahols <& Pugh, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment upon an information for libel, sentencing him to pay a fine of three hundred and fifty dollars, and in default of payment to be confined in the parish jail for six months.

The information charges that the defendant “did maliciously defame one Pauline Rose, * * * by writing a certain letter containing libelous words, to wit: that she had, on the evening of the sixth of ■October, 1872, * * * committed adultery * * * with a man designated and styled by said Willers as an engineer; that the said Willers sent said letter, containing said libel, to said C. W. Rose, the, husband of the said Pauline Rose, with the malicious intention of defaming the character of the said Pauline Rose, contrary to the form ■of the statute,” etc.

To prove the libel, the district attorney offered in evidence a letter written in the German language, and purporting to be signed by the defendant, and to which objection was made on the grounds:

Mrst — That the alleged libelous letter and matters charged in the information are set forth therein in the English language, and the information does not contain an allegation of any letter or matters written in German by the defendant.

Second — That no evidence is admissible of a libelous letter or matters written in a foreign language, unless the alleged libelous letter or matters be specifically set forth in the information in such language in liceo verba, and that a letter written in German is inadmissible to prove an alleged libelous matter set forth, as in this case, in the English language.

Third — That there is a radical variance between the evidence offered and the allegations of the information.

The defendant also excepted to an interpreter offered to translate the German letter for the jury, on virtually the same grounds.

The judge did not err. The variance between the material allegations and the proof is not such as to require the exclusion of the evidence offered. Defamation by libel is the offense charged. The law is: “ Whoever shall maliciously defame any person by making, writing, publishing, or causing to be published any manner of libel, shall, on conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court.” R. S., sec. 804; and section 1051 provides that “In all'other cases (not mentioned in the preceding sections) whenever it shall be necessary to make any averments in an indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile of the whole or any part thereof.”

These statutes take this case out of the strict rules of the common. law, and the purport only of the libelous letter is given in the information. We do not think it was essential that the information should have alleged that the letter was written in the German language in order to permit the State to introduce the letter and an authorized translation.

The law of evidence upon this subject is complied with if the matter or purport of the instrument offered conform to the purport and description thereof in the information, as was the case here.

The evidence was properly admitted.

The defendant filed a motion in arrest of judgment based on the same matters; and the same reasons, as above stated, justify the district judge in overruling it. The law did not require the libelous letter to be set out in full, or a copy of it to be contained in the information.

Judgment affirmed.

Behearing refused.


author: Taliaferro, J.

text:
    No. 5615.
    Isaac F. Riley v. Heirs of E. M. Riley.
    Here two married women, sisters, are sued jointly as heirs of their mother. Judgment i& rendered against them jointly, each for her half of the debt against their ancestor. Heither is bound to pay the other’s share of the debt. When, therefore, they sign reciprocally each other’s appeal bond, each becomes bound as surety for the other’s debt. The authorities cited in support of the motion to dismiss the appeal refer to cases where the surety on the appeal bond is bound by the judgment to pay the debt for which he stands surety. The motion can not prevail.
    There is no force in the objection that the answers filed by the defendants, married women, without the authorization of their husbands, are without effect, and that the judgment against them is null, inasmuch as they were not in legal contemplation in court, and could not stand in judgment. The petition prays that the husbands be cited to appear and assist their wives in their defense. The answers are that defendants appear and for-answer, etc. This is sufficient, and fulfills the requirements of the law.
    APPEAL from the Fifth Judicial District Court, for the parish of East Baton' Bouge.
    Dewing, J. Jury trial. W. F. Kernan and Dyons, for plaintiff and appellee. D. C. Hardee, Cross <& Fiphins, Bice(É WMtalcer, for defendants and appellants.
   Taliaferro, J.

There is a motion to dismiss this appeal on the ground that each defendant is surety for the other on their appeal bonds, and it is contended that tiffs is inadmissible under the decisions of this court in the case in 12 L. B. 383, and in that in 18 An. 659. We think these cases are not in point. Here two married women, sisters, are sued jointly as heirs of their mother. Judgment is rendered against them jointly, each for her half of the debt against their ancestor. Neither is bound to pay the other’s share of the debt. When, therefore, they sign reciprocally each other’s appeal bond, each becomes bound as surety for the other’s debt. The authorities cited refer to cases where the surety on the appeal bond is bound by the judgment to pay the debt for which he stands surety.

The motion to dismiss is overruled.

On the merits of the case it appears that the plaintiff sues the heirs of Mrs. E. M. Biley, deceased, for services rendered her as general manager and overseer of her plantation for several years at $400 per annum. The answer is a general denial aud the prescription of three years. The plaintiff had judgment for $580 against each of the defendants, and they have appealed.

The plaintiff, we think, has made out his case, which was tried before a jury, who rendered their verdict for $580, the remainder of the plaintiff’s claim beiug prescribed. On the part of the defendants it is urged that the answers filed by the defendants, married women, without the authorization of their husbands, are without effect, and the judgment rendered against them null, as they were not, in legal contemplation, in court, and could not stand in judgment. We think the objection without weight. The facts seem to be that the petition prays that the husbands be cited to appear and assist their wives in their defense. The answers are that defendants appearand for answer, etc. This, we think, is sufficient, and fulfills the requirements of the law.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Behearing refused.

Howell, J., recused in this case.


text:
    No. 5553.
    Edward J. Gay & Co. v. Mrs. Solidelle Deynoodt et al.
    This is a suit on two promissory notes with mortgage, drawn by defendant, and given as collateral security for advances made in plantation supplies There is no evidence of fraud or bad faith on the part of the plaintiffs in regard to the possession of said notes, which were negotiable and were transferred by delivery. Gay & Co., it is true, had limited the amount of these advances to $10,000. But the defendant exceeded this limit, and pretends not to be responsible for said excess. She can not be permitted to tahe advantage of this act of her own, and Gay & Co. have the right to cause the property mortgaged to be sold so as to satisfy the amount due them for advances made to the defendants.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles.

      Flagg, J. Barrow & Pape, for plaintiffs and appellants. Alfred Grima, for defendants and appellees.
   Morgan, J.

On the sixth February, 1871, Mrs. Deynoodt, duly authorized and empowered by her husband, executed her two promissory notes, each for the sum of $6000, payable one year after date.

The notes were payable to her own order and were by her indorsed. Their payment was secured by a mortgage upon her Armant plantation, situate in the parish of St. Charles.

On the twenty-seventh of February, 1871, these notes were pledged to E. J. Gay & Co. by Theo. Guyol, as collateral security for the payment of all advances to be made by Gay & Co. to Mrs. Deynoodt, to enable her to cultivate her plantation, to the amount of $10,000, with interest, commissions, costs and charges thereon for that year (1871.)

On the twenty-seventh February, 1871, Gay & Co. entered into an agreement with Mrs. Deynoodt, who was authorized by her husband, to advance her money to carry on her plantation for that year, the aggregate amount never to exceed, at any one time, the sum of $10,000.

The advances made by Gay & Co. to Mrs. Deynoodt for the year 1871 amounted to $16,884 67. The proceeds of her crop left a deficit of $7670 15.

Gay & Co. continued, under an authorized contract, to do Mrs. Deynoodt’s plantation business for the year 1872.

Mrs. Deynoodt was authorized to borrow from Gay & Co. $17,921 74, for advances made and to be made to her, to secure which she granted a privilege upon the crop which she was to make.

The result of this year’s enterprise, added to the former, still show a balance due Gay & Co. $6411 44.

Gay & Co. applied for and obtained an order of seizure and sale upon the notes of Mrs. Deynoodt, above described. She enjoined the sale of the property mortgaged to secure their payment upon the grounds that Gay & Co. are not the owners of the notes; that they gave no consideration therefor; that they were obtained by unlawful means; that Guyol owns them, and that she has a good defense against him; that Gay & Co. received the notes from Guyol as collateral security for the payment of certain advances which were to be made by Gay & Co. to herself, and fixed the sum at $10,000; that this amount has been entirely paid; that the notes were obtained from her by unlawful means.

Gay & Co. excepted to the petition on the ground that it discloses no cause of action; they also moved that the defendant be made to prove the truth of the allegations contained in her petition of opposition and injunction. The exception and motion were tried together. The district judge decided in favor of the defendant. Plaintiffs appeal.

If the facts are as stated in the petition the cause of action is apparent. It remains to be seen whether the judgment is correct. There is no evidence of fraud or bad faith on the part of Gay & Co. in regard to their possession of the notes. They were in the hands of Guyol; they were negotiable, and were transferable by delivery. Guyol gave them in pledge to the plaintiffs, who, in consideration thereof, were to make advances to the defendant. Gay & Co. restricted the amount of these advances to $10,000; but the defendant exceeded this limit. We do not think she can take advantage of this act of her own, and we think that Gay & Co. have the right to cause the property mortgaged to be sold so as to satisfy the amount due them for advances made to the defendant. This amount is $6411 44.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the plaintiffs, and that the property mortgaged and described in the petition be sold, and that out of the proceeds of the sale thereof the plaintiff be paid the sum of six thousand four hundred and eleven dollars and forty-four cents.


text:
    No. 5678.
    Charles E. Alter v. James McCullen.
    Proceedings were taken in the Sixth District Court of New Orleans to revive the judgment obtained by the plaintiff against one Bichard Nugent, and on which he rests his claim in this suit. Citation was made on Nugent, then an adjudged bankrupt, discharged from all liability on the judgment, and having no interest whatever in the matter. The citation was, therefore, null and void, and the judgment which followed void also. The plea of prescription against plaintiff must prevail.
    from the Fifth Judicial District Court, parish of East Baton Rouge.

      Dewing, J. Frank D. Richardson and James O. Fuqua for plaintiff and appellant. A. 8. Serrón and Favrot & Damon for defendant and appellee.
   Taliaferro, J.

This is an hypothecary action against.the defendant as third possessor of property formerly owned by Richard Nugent and surrendered by him in bankruptcy, and sold by his assignee to James H. McKee, and by him to the present defendant.

The defendant filed a peremptory exception to plaintiff’s action and answered, calling his vendor in warranty. McKee filed an answer and peremptory exception, and called E. E. Norton, assignee, in warranty. The latter made no appearance.

The defendant pleads the prescription of ten years against both the judgment and mortgage by which the plaintiff seeks to enforce his hypothecary claim against the property described in his petition. There was judgment in favor of the defendant, and plaintiff appeals.

-It appears that the plaintiff obtained a judgment against Richard Nugent et al. on the twenty-ninth of May, 1863. Richard Nugent was adjudged bankrupt on the twenty-second of December, 1868, and discharged from all debts and claims provable against his estate, and which existed on the twenty-ninth of February, 1868, when his petition was filed.

In May, 1873, proceedings were taken in the Sixth District Court of New Orleans to revive the judgment obtained by the plaintiff against Richard Nugent, and resulted in a decree in the plaintiff’s favor on the twenty-fourth of June, 1873.

In the proceedings in the Sixth District Court to revive the judgment citation was made on Richard Nugent, then an adjudged bankrupt, and discharged from all liability on the judgment and having no interest whatever in the matter.' Citation was, therefore, null, and the nullity of the judgment rendered upon it followed.

This case is similar to that of Kennedy v. Rust, 25 An. 554, in which a curator ad hoc was appointed to represent Rust, an absentee and discharged bankrupt, like Nugent. This court held the citation null,, and that the judgment rendered was of no effect. See also case of Brigham v. Norsnothy, 25 An. 600. The plea of prescription in the case now under consideration was well taken and must prevail.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Rehearing refused.


author: Howell,. J.

text:
    No. 5543.
    Lapene & Ferre v. A. J. Delaporte, Administrator, et al.
    Boudreaux purchased from Delaporte a certain piece of property, giving notes to the order oí the vendor and secured by mortgage on the property sold. Afterward, Boudreaux sold to Yilliers, who, as a part of the price, assumed to pay said notes, one of which in suit herein was then held by plaintiffs. The property thus purchased by Yilliers was sold at the suit of the creditors of Boudreaux before the institution of this suit. Under ' these circumstances, Yilliers should not be held to pay the assumpsit, there being a failure of consideration.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J. Jury trial.

      B. I). Bwrgieres, Charles W. I)w Boy, B. W. Blalce, ■ for plaintiff's and appellants. Bush <& Goode, for defendants and appellees.
   Howell,. J.

In April, 1867, the plaintiffs instituted this suit against the administrator of J. B. Boudreaux, on a note secured by mortgage, and against E. M. Yilliers, on bis assumpsit, in an act of sale of the property affected by said mortgage from Boudreaux to Yilliers, and dated June 9, 1866, in which act Yilliers promised to pay said note as a part of the price. Yilliers set up a special defense that the assumpsit was personal to Boudreaux; that the said property was incumbered with several conventional and judicial mortgages against Boudreaux and his vendor, under which it was sold, and he, Yilliers, thereby evicted and released from his assumpsit. Judgment was rendered against the succession of Boudreaux and in favor of Yilliers.

The plaintiffs appealed from the latter.

The evidence, nofc objected to, shows that Boudreaux purchased from Delaporte, giving these notes to the order of the vendor and secured by mortgage on the property sold. Afterward, Boudreaux sold to Yilliers, who, as a part of the price, assumed to pay said notes, one of which in suit herein was then held by these plaintiffs. The property thus purchased by Yilliers was sold at the suit of the creditors of Boudreaux before the institution of this suit.

Under these circumstances Yilliers should not be held to pay the ■ assumpsit, there being a failure of consideration. The case ot Arnous v. Davern, 18 La. 45, relied on by the plaintiffs, was modified, if not overruled, by that of the Union Bank v. Bowman, 9 An. 195, where the doctrine as heie announced was maintained. The case in 17 An. 255 only recognizes the right of the third person against the property, in relation to which the stipulation in his favor was made, and is in harmony to that extent with the 9 An. case, and not in conflict with our view on the personal liability of the purchaser who makes the stipulation.

Judgment affirmed.

Rehearing refused.


author: Howell, J.'

text:
    No. 5551.
    Oliva Theriot v. G. Lyons, Sheriff, et al.
    The question in this ease is whether an act oí sale was simulated. The judge a quo held it to be a simulation, because the plaintiff in injunction moved to strike out interrogatories on facts and articles propounded to him, on the ground that they tended to make him confess himself guilty of a crime in seeking* to make him contradict his affidavit annexed to his petition for injunction, which motion was withdrawn by permission of the court. The fact of filing such an injunction can not be considered as producing the effect given to it by the court below. It is not an admission of simulation, but must be presumed to be the interpretation which plaintiff’s counsel gave of the tendency of such interrogatories. When put on the stand to answer said interrogatories, the plaintiff asserted the reality and good faith of his purchase, his ability to pay the price, and the actual payment thereof. The testimony in favor of the reality of the sale is not overcome.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      Goode & Winder, J. J). Moore, Laeey & Butler, for defendants and appellees. Ohwrles W. BuBoy, for plaintiff and appellant.
   Howell, J.'

Plaintiff, as owner, enjoined the sale of two lots of ground, and the improvements thereon, in the town of Houma, seized under execution in the suit of E. Marcqueze & Co. v. B. F. Bazet. The defendants in injunction aver that the sale from Bazet to Theriot is a simulation. On the trial, evidence was introduced to show the reality of the sale j but the judge a quo held it to be a simulation because the plaintiff moved to strike out interrogatories on facts and articles propounded to him, on the ground that they tended to make him confess himself guilty of a crime in seeking to make him contradict his affidavit annexed to his petition for injunction, and which motion was withdrawn by permission of the court. We do not think the fact of filing such a motion produces the effect given to it by the judge. It is not an admission of the simulation, but, as we presume, the interpretation which plaintiff’s counsel gives of the tendency of such interrogatories.

When put on the stand to answer them, the plaintiff asserts the reality and good faith of his purchase, his ability to pay the price, and the actual payment thereof. The cash portion was paid in the presence of the notary or recorder, who, however, says he doubted the reality of the transaction because the judgment of these defendants against the vendor was then rendered, and, as he says, recorded, although there is no certificate of recordation on the copy introduced in evidence. The testimony in support of the reality of the sale is not, in our opinion, overcome.

We deem it unnecessary to pass on the motion to dissolve, because, if the technical objection to the bond be well made, the plaintiff would have the right immediately to another injunction.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiff, perpetuating the injunction herein, with costs in both courts..

Rehearing refused.


author: Wxly, J.

text:
    No. 5635.
    Joseph Moore v. Mrs. Sallie Pope and husband; Willis J. Pope, intervenor.
    It matters not what informalities affect the sal© from Mrs. Pope, one of the defendants, to the intervenor. As the plaintiff is not a creditor of the seller, he can not complain. If he has abused the harsh remedy of attachment, he can not escape liability “by questioning the title given to the intervenor.
    APPEAL from Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      L. V. Beeves and B. Lewis, for plaintiff and appellee. Dralce & Garrett, Semmes & Mott, for defendant and intervenor.
   Wxly, J.

The plaintiff sued the defendant, Mrs. Sallie Pope, on an account of some $900, for supplies advanced to a plantation which he alleges she cultivated in 1871, and alleging that she was about to leave the State permanently, he prayed for and obtained an attachment, under which three mules and a wagon were attached as her property.

Willis J. Pope intervened, claimed the property attached, and prayed to be decreed the owner thereof, and for judgment against plaintiff for two thousand dollars damages and one hundred dollars attorney’s fee. Pending tlie litigation, the property was sold by order of the court, and the proceeds are in the hands of the sheriff. '

At the trial the court finding that the debt demanded of Mrs. Sallie Pope, a married woman, did not inure to her benefit, gave judgment in her favor against the plaintiff. It however decreed the sale of the mules and wagon from Sallie Pope to the intervenor, null and void at ■the instance of plaintiff.

Prom this judgment the intervenor alone has appealed.

The motion to dismiss the appeal, because the conditions stated in the bond are not in exact accordance with articles of the Code of Practice, is without weight. The bond was given in reference to the law, and, however inartistically drawn, it is a good bond. The motion is therefore denied.

As the plaintiff has not appealed, the decree below finally establishes that he is not a creditor of the defendant, Sallie Pope. Not being a creditor of the person against whom the attachment was directed, the plaintiff is without interest in this court to contest with the intervenor in regard to the validity of the sale of the mules and wagon to him by Mrs. Sallie Pope. It is shown he was in possession and had paid Mrs. Pope some six hundred dollars for the property. As neither Mrs. Pope nor any creditor of hers has demanded the nullity of the sale, it can not be rightfully decreed — at least at the demand of the plaintiff herein. But the plaintiff insists that, as Mrs. Pope claims no damages for the wrongful levy of the attachment, he has an interest in showing that the conveyance from her to the intervenor was invalid, because by so doing he will escape the claim for damages herein set up by the intervenor.

This suggestion is unworthy of consideration by the court. Parties are at liberty to convey their property as they please, and only their creditors, who are injured thereby, have cause to complain. It matters not what informalities affect the sale in question, as the plaintiff is not a creditor of the seller, Mrs. Pope, he can not complain. If he has abused the harsh remedy of attachment, he can not escape liability by questioning the title given by Mrs. Pope to the intervenor.

The actual damages sustained by the intervenor by the wrongful attachment of the three mules and the wagon we fix at three hundred dollars.

It is therefore ordered that the judgment herein, so far as it relate^ to the intervenor, Willis J. Pope, be annulled, and it is decreed that the intervenor was the owner of the property attached, and that he recover from the sheriff the proceeds of the sale thereof.

It is further ordered that he have judgment against the plaintiff for three hundred dollars damages and costs of both courts.

Rehearing refused.


text:
    No. 5644.
    Carrie A. Drake and Husband v. Thos. P. Hays et als.
    Defendants, who were members ol the laie commercial firm of Cornwell & Hays, refuse pay- • ment of a note of said firm, which was executed to plaintiff, separate in property from her husband, before said separation had taken place. Previous to the existence of the firm of Cornwell & Hays, there existed the firm of L. S. Cornwell & Co., which owed plaintiff borrowed money to the amount of the note in suit. In liquidation of this debt of L. S. Cornwell & Co., the liquidating partner of that firm gave plaintiff the note sued on, having previously consigned to the factors of said Cornwell & Hays forty-four halos of cotton belonging to said firm of L. S. Cornwell & Co. in liquidation. The proceeds of this cotton, exceeding the amount of the note, passed to the credit of Cornwell & Hays on the hooks of their factors. Thus, the liquidating partner of D. S. Cornwell & Co., instead of paying over to plaintiff the sum which was duo to her, passed that sum, the proceeds of the cotton, to the credit of Cornwell & Hays, and executed to plaintiff the note of llio last named firm, of which he was a partner. Therefore the firm of Cornwell & Hays received a valuable consideration for tbe note and plaintiffs’ claim is established.
    It is shown that the money loaned by plaintiff was her paraphernal property. Whether or not the husband was a member of either firm, or both the aforementioned firms, is immaterial.
    The plaintiff is not bound by statements made out of her presence by the partners at the partition of the partnership of Cornwell & Hays.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      W. £. Speneer and L. V. Reeves, Semmes & Mott, for Thomas P. Hays, defendant and appellee. Drake <& Garnett, for Mrs. Hays, defendant and appellee. Steele Olinton & Farrar, for plaintiff and appellant.
   Wyly, J.

Carrie A. Drake, a married woman, separated in property from her husband, brings this suit against the defendants, who were members of the late commercial ñrm of Cornwell & Hays, on the note of said firm for $3000, which was executed to plaintiff before she obtained said separation of property.

The court rejected the demand, and plaintiff appeals.

Previous to the existence of the firm of Cornwell & Hays there existed the firm of L. S. Cornwell & Co., which owed plaintiff borrowed money to the amount of the note in suit.

In liquidation of this debt L. S. Cornwell, the liquidating partner of the firm of L. S. Cornwell & Co., gave plaintiff the note sued on, and having previously consigned to the factors of said Cornwell & Hays forty-four bales of cotton belonging to said firm of L. S. Cornwell & Co. in liquidation. The proceeds of this cotton, exceeding the amount of the note, passed to the credit of Cornwell & Hays on the books of their factors. This fact, proved by Cornwell, the partner who executed the note in suit, stands uncontradicted.

It appears, therefore, that the liquidating partner of L. S. Cornwell & Co., instead of paying over to plaintiff the $3000 which was due her, passed that sum, the proceeds of the cotton, to the credit of Cornwell & Hays ana executed to plaintiff the note of the last-named firm, of which he was a partner. The firm of Cornwell & Hays received therefore a valuable consideration for the note.

It is shown that the money loaned by plaintiff as before stated was her paraphernal property administered by herself.

Whether or not her husband was a member of either or both the aforenamed firms is immaterial. So, also, the statement of Cornwell made out of her presence in regard to the note in suit.

She was not present and is not bound by statements made by the partners at the partition of the partnership of Cornwell & Hays.

It is therefore ordered that the judgment herein be annulled, and that there be judgment against the defendants in solido for three thousand dollars, with legal interest thereon from first November, 1870, and costs of both courts.

Rehearing refused.


author: TaliakekRO, J.

text:
    No. 4085.
    J. W. Banning v. R. Bleakley & Co.
    when exercising their functions of receiving, selling, taking their commissions, and accounting to their principals, are acting in a fiduciary capacity within the meaning and intendment of the thirty-third section of the "bankrupt law of 1867, aud are not released from obligations contracted in that capacity by a discharge in bankruptcy.
    To exonerate tho factor from liability on the ground oí his passing over to his general account the proceeds of the property of the consignor, and becoming the debtor of the latter for such proceeds, it is well established that it must be shown that the owner or consignor knew of such custom aud usage and assented to it.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J. MeGloin, &

      MeGloin, Kleiwpeter & Nixon, for plaintiff and appellee. Lacey & Sutler and Samuel P. Blame, for defendants and appellants.
   TaliakekRO, J.

Suit is brought against the defendants for $1138 33, alleged to be proceeds of sale of one hundred and sixty boxe3 of cbeese and fifty kegs of butter, consigned by plaintiff to the defendants, to be sold by them on plaintiff’s account, as his agents and factors, and which, as plaintiff alleges, was sold by the defendants in tbeir fiduciary capacity as his agents, who have failed to account to him for the proceeds, and have illegally and fraudulently converted the same to their own use and benefit. He claims from the defendants the said sum of $1138 33, with legal interest from the thirteenth July, 1867.

were indebted to the plaintiff in the sum of $1138 33, but deny that they owe them anything now; that they have been forever released and discharged from all liability to plaintiff on account of the alleged indebtedness, by their discharge in bankruptcy by decree of the United II States District Court for the district of Louisiana, rendered on the thirteenth January, 1869, and they specially plead their discharge in bar of plaintiff’s claim. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

In this case the following inquiry arises: Does a consignee in selling goods consigned to him for sale on commission, actin a fiduciary capacity, according to the meaning and intendment of the thirty-third section of the bankrupt law of the United States, enacted in April, 1867, and is the obligation he is under to faithfully account for and pay over to his consignor the proceeds of the goods thus sold, one from which he is relieved by a discharge in bankruptcy?

The thirty-third section of the act of Congress, approved March 2, 1867, entitled “An Act to establish a uniform system of bankruptcy throughout the United States,” provides “ That no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act; but the debt may be proved, and the dividend thereon shall be a payment on account of said debt; and no discharge granted under this act shall release, discharge or affect any person liable for the same debt, for or with the bankrupt, either as partner, joint contractor, indorser, surety or otherwise.”

The terms and phraseology used in the bankrupt act of 1841, in treating of the same subject matter, are to some extend unlike those just quoted from the act of 1867, and no small difference of opinion exists as to whether the words and expressions employed in the thirty-third section of the act of 1867 are to be construed as having the same meaning and import that are conveyed by those used in the first section of the act of 1841.

The first section of that act provides that “all persons whatsoever,, residing in any State, territory or district of the United States, owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, shall, on compliance with the requisites of the bankrupt law, be entitled to a discharge under it.”

The Supreme Court of the United States, in its interpretation of the act of 1841, in the case of Chapman v. Forsyth, 2 Howard 202, decided that a factor is not within the act, because “the cases enumerated, ‘ the defalcation of a public officer,’ ‘ executor,’ ‘administrator,’ ‘guardian ’ or ‘ trustee,’ are not cases of implied, but special trusts, and the ‘other fiduciary capacity’ mentioned must mean the same class of trusts. The act speaks of technical trusts, and not those which the law implies from the contract.’’ On the part of the defendant it is argued that the case of Chapman v. Forsyth is conclusive of the questions raised in this litigation, the defendant holding that the provisions of the thirty-third section of the act of 1867 are substantially the same as those of the first section of the act of 1841 in regard to fiduciary trusts. In support of this position he refers us to the case of Cronan v. Cotting, decided by the Supreme Court of Massachusetts in 1870, a case arising under the bankrupt act of 1867, in which that court said: “ Our conclusion is, that this provision of the bankrupt act of 1867 (relating to fiduciary trusts) was framed in view of, and with the intent to adopt the construction which the Supreme Court of the United States had put upon the similar clause in the bankrupt act of 1841. We adhere to that construction as applicable to the act of 1867, until the same court shall declare otherwise.”

The facts of this case were that Cronan, the plaintiff, delivered accepted bills of exchange to the defendant, as administratrix of her husband’s estate, with directions to collect them and apply so much of the proceeds as might be necessary to the payment of debts owing from him to the estate, and to pay over to him the remainder. The court held that the phrase “ fiduciary character did not include the obligation of the administratrix to dispose of the bills of exchange and apply the proceeds according to the directions of the plaintiff. In the case under consideration we are referred by the defendants’ counsel to the case of Grover & Baker v. Clinton, 8 National Bankruptcy Register 312, decided in the United States Circuit Court for the Western District of Wisconsin, in 1873, in which it was held: “That money collected by an agent under an agreement to account and pay over the proceeds monthly to his principal is not a debt created in a fiduciary capacity within the meaning of the bankrupt act; that a bankrupt is not liable to arrest on such a debt, and that it will be discharged in bankruptcy.’’

In behalf of the plaintiff, on the other hand, it is contended that the benefits arising from bankrupt laws are intended for the honest but unfortunate debtor, but they can not avail him who, having the goods of another confided to him, converts them into cash, and, instead of considering money so obtained as a sacred deposit, mingles it with his own funds and with it redeems his own obligations. A distinction is drawn between an ordinary debt and a debt of the character on which the plaintiff sues in this case. In the one case it is held that the reliance is upon the solvency of the debtor, and upon the sufficiency of his assets to meet his debts; in the other it is upon his probity and moral responsibility. In the one case the creditor takes the risk of substituting the credit of the debtor for the goods which are sold to him, and-vests in him the absolute title to the goods; in the other the depositor parts with none of his lights in the goods deposited, hut simply intrusts them to the depositary for a specific disposition to bo made of them.

In favor of the construction maintained in behalf of the plaintiff, we are ’referred to several decisions by tribunals of last resort in some of our sister States. In the case of Whitaker v. Chapman et al., 3 Lansing (N. Y. Rep.) 155, plaintiff sued-to recover from defendants, who were partners and factors, or commission merchants, doing business in the city of New York, the proceeds, less commissions, of one hundred and fifty-two boxes of cheese, which plaintiff claimed to have delivered to the defendants to be sold for cash, with immediate return of proceeds to him. The defendants denied that the cheese had been delivered to them to be sold for cash, and claimed to have received the cheese for sale with a guarantee to the plaintiff of payment for the sales made by them according to the custom of their trade, and they severally set up a discharge in bankruptcy. It was proved in this case that tiie commodity was received by the defendants to be sold by them on commission; that-it was sold by them; that there was a balance due the plaintiff of the net proceeds, which had not been paid over, but had been converted to their own use. It was held by the court that the deiendants, in the receipt and sale of the cheese, acted in a fiduciary character on behalf of the plaintiff, and that the discharge in bankruptcy of the defendants, and each of them, did not discharge them or either of them from the debt.

In the case of Duguid v. Edwards, 50 Barbour, N. Y. Reports 290, the plaintiffs sént a quantity of flour to the defendants, who were commission merchants at Albany, to be sold by them in the course of their business. They sold a portion of the flour at Albany, shipped a part of it to New York, which was sold there, and returned the residue on hand to the plaintiffs, when the defendants failed in business. For the non-payment of a balance of $211 remaining in their hands from the proceeds of the sales actually made by them, and for the value of one hundred and fifty barrels of flour sent to New York and sold there, the proceeds of which were never returned to plaintiffs, an order of arrest was taken against the defendants. In their defense they set up certain usages and circumstances from which they claimed that their relations to the plaintiffs were not those of ordinary factors, but were substantially those of debtor and creditor; that when they received the flour they were carrying on a general commission business at Albany. When property was consigned to them for sale they paid the freight and other charges against it, and when they sold it they did so in their own names, either separately or with other property of the same description belonging to other parties, as might prove convenient and suitable for their customers; receiving payment for it in gross, and crediting the plaintiffs their proportion of the purchase price; that they deposited the proceeds of their sales in general account without distinguishing the portions owing from the sales of the property of every particular individual, and in making payment to their principals or consignors, they did so by accepting and paying the drafts drawn by them for the balances appearing by way of credits upon their books, or by remittances made directly to them. From this mode of transacting their business, and which the defendants showed was followed by others engaged in the same business at Albany and other commercial cities, the defendants insisted that the moneys they received from the sale of the plaintiffs’ flour became their property, instead of the property of the plaintiffs,, and they became indebted' simply to the plaintiffs for the balance remaining in their hands after their advances and commissions were-deducted. The court, after discussing at considerable length the relations existing between the principal and factor, decided that “ where ajpartieular mode is adopted and pursued for the transaction of the business of another, with his knowledge and assent, he will be concluded by it, and subject to all the consequences resulting from it. But where that differs from the settled duties and obligations established by law, such knowledge and assent must be shown before the party intrusting his business to another can be affected by the change j that commission merchants to whom property is consigned by the owner are the factors of the owner. They do not acquire any title or interest in the property itself beyond a mere lien for their advances in paying the expenses of its transportation to them. If they have actually made further advances upon the faith of consignments made to them, that will give them no title to the property, but will merely increase the extent of their lien. When they sell the property, even though they do so in their own names, and may consequently be regarded by the purchaser as the owners of it as between themselves and the consignors they will be deemed as selling as the agents of the latter, and as selling their property. There is nothing in such a transaction which will vest the factors with the title to the proceeds derived from such sales. On the contrary, they will receive such proceeds as the substitute or representative of the property sold, subject to the same lien, under the trust, implied of course, that the excess beyond what shall be required to discharge such lien will be held for and paid over to the consignors. If the factors mingle such proceeds of sales with their own funds, by depositing them in bank to their credit in a general account, use the money in their business generally, and fail to pay over the same on demand, they thereby subject themselves to the legal liabilities arising from the misapplication of another’s property, and to an arrest, under the provisions of the Code, as having received the money in a fiduciary capacity. The understanding of the Legislature seems to have been that factors, agents and brokers, when acting in their capacities as such, are acting in fiduciary capacities, and they have accordingly provided for their arrest, as well as for the arrest of all other persons who may receive and misapply moneys received by them in the course of their fiduciary relations. Customs and usages which would have the effect of relieving a party from the duties and obligations the law would otherwise impose upon him, are not allowed to prevail unless the actual assent of the other party is secured for their observance, or they are of so notorious a character as reasonably to lead to the conclusion that he must have known of their existence and intended to assent to them. And even then they must not be unreasonable nor positively unlawful. That the usage or custom itself will not be sufficient to deprive a party of the rights otherwise secured to him by law, is so well established by the decisions as to need only a reference to them to confirm that conclusion.” 14 Johnson, 316; 1 Seld. 95, 101, 102; 16 N. Y. Rep. 392, 401, 402 ; 34 N. Y. Rep. 413.

That a commission merchant or a factor stands in a fiduciary relation to his principals, within the meaning of the bankrupt act of 1867, was decided by the Supreme Court of Missouri, in the case of Lenecke v. Booth, 47 Missouri Reports, 367, Post. In that case the court said:

“The question is here presented whether a factor or commission merchant stands in a fiduciary relation to Ms principals in .respect of the proceeds of sales of commission goods within the meaning of section thirty-three of the bankrupt act of 1867. The section provides that fno debt created by the fraud or embezzlement of the bankrupt or his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act.’ The corresponding provision in the bankrupt act of 1841 excluded from its benefits ‘all persons owing debts created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity.’ The ‘fiduciary capacity’ here mentioned was held by the Supreme Court of the United States to refer to technical trusts of the character of those previously mentioned, and not to trusts raised by implication of law. It was therefore held that an indebted factor or commission merchant was not a fiduciary debtor within the meaning of the act of 1841. Chapman v. Forsyth, 2 Howard 202. But the above recited provisions of the two acts (of 1841 and'1867) are quite dissimilar. Blatchford, J., in the matter of Seymour on habeas corpus, 6 Int. Rev. Rec. 60, distinguishes the two provisions, and comments upon Chapman v. Forsyth as follows: .‘The Supreme Court held that a discharge under the act of 1841 did not release the bankrupt from any such debts (as were mentioned in 'the clause of the act of 1841 above quoted), and that no debt fell within the description of a debt created by a defalcation while acting in any other fiduciary capacity, unless it was a debt created by a defalcation while acting in a capacity of the same class and character as the capacity of executor, administrator, guardian and trustee. The court held that the language of the act of 1841 was not broad enough to include every fiduciary capacity, but was limited to fiduciary capacities of a specified standard and character. That was clearly so under that act. But in the act of 1867 the language seems to have been intentionally made so broad as to extend to a debt created by a defalcation of the bankrupt while acting in any fiduciary capacity. Therefore, under the act of 1867,’ says the judge, ‘no debt created by the defalcation of a bankrupt, while acting in any fiduciary capacity, will be discharged.’ These views are approved by Nelson, J., in his decision in re Kimbal, 6 Blatchford 292. A commission merchant acts in a fiduciary capacity and the trust attaches to the goods consigned to him for sale on commission, and to their proceeds when the goods are sold. Chapman v. Forsyth, supra; Duguid v. Edwards, 50 Barbour 288. Concurring in the views of Judge Blatchford, as above quoted, the judgment will be affirmed.”

The case in 6 Blatchford 292, in re Kimbal, was decided in the Circuit Court of the United States for the second circuit, by Judge Nelson, Associate Justice of the Supreme Court of the United States. The defendant had received a quantity of buckwheat flour to sell on commission and remit the proceeds less the commission. The flour was sold and the defendant received $758 79 over and above the commission, but no part of the proceeds was paid over. Soon after, the defendant applied for the benefit of the bankrupt act, having applied the money to his own use. Mr. Justice Nelson said:

“Looking at it [the case] as thus presented, it seems to me there is great difficulty in saying that the flour was not received and held by the bankrupt in a strictly fiduciary character. The article was placed in his possession simply to sell it and to remit the proceeds over and above his commission. The money was not the bankrupt’s when it was received on the sale, but was the money of the owner of the flour. It was a gross breach of trust to apply it to his own use. I have looked at the case of Chapman v. Forsyth, 2 Howard 202, but do not regard it as controlling the one in hand. The provision in the present act is much broader than in the act of 1841.”

The factor or commission merchant receiving from the owner property consigned to him to be sold, and the proceeds to be returned to the owner, or kept for his disposal, we can regard in no other light than that of acting in a fiduciary capacity. The doctrine contended for as arising from custom and usage, that the property consigned, or its proceeds, becomes the property of the factor, for which he simply becomes the debtor of the owner, has no foundation in equity or reason. The party consigning his property to the care of another, and placing it at his disposal for the benefit of the owner, is not presumed to recognize any such doctrine. The natural and obvious presumption is that the consignor confides in the probity and the sense of justice and honor of his factor, that he will dispose of the property sent to-him for sale to the best interests of the owner, and that he will securely keep and return to him, when required, the money for which the property was sold, after deducting the expenses and a fair compensation for his services in disposing of it. Every prudent dealer seeks to have the greatest amount of security practicable in his business affairs. Such a person would surely feel more secure when relying upon the simple obligation of the agent to securely keep and return to him the money in his hands, the proceeds of sale of his property, than to know that such proceeds were intermixed with the moneys of the agent, and to be used by him as his own, leaving the principal to rely solely on the credit and responsibility of the factor, thus taking all the risks and casualties of trade which might overwhelm his factor in bankruptcy and financial ruin, and throw upon himself the loss of the property intrusted to his factor. To exonerate the factor from liability on the ground of his passing over to his general account the proceeds of the property of the consignor, and becoming the debtor of the latter for such proceeds, it is well established, as we have seen, that it must be shown that the owner or consignor knew of such custom and usage, and assented to it. The custom insisted upon by the defendants as prevailing in this respect in New Orleans is not proved to have been known by the defendant, and that he assented to it.

We conclude that factors and commission merchants when exercising their functions of receiving, selling, taking their commissions, and accounting to' their principals, are acting in a fiduciary capacity within the meaning and intendment of the thirty-third section of the bankrupt law of 1867, and are not relieved from obligations contracted in that capacity by a discharge in bankruptcy. In this conclusion we think we are abundantly sustained by the decisions and authorities we have adverted to.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Rehearing refused.


text:
    No. 5665.
    Mrs. Mary C. Gordon v. Patrick Gilfoil—J. H. Gilfoil Intervening.
    An actual corporeal possession of property seized must take place in order to make a sheriffs seizure valid, and to render a compliance with the law complete. The sheriff must have the property in his own possession and under his own control, or in the possession and under the control of some person duly appointed and authorized hy him.
    APPEAL from the Thirteenth Judic'al District Court, parish of Madison. Hough, J.

      H. J). & IF. Farrar, for plaintiff and appellant. Morrison & Montgomery, for defendant and appellant. J. O. Seale, for intervenor and appellee.
   Taliaferro, J.

Under an order of seizure and sale against the property of the defendant at the suit of the plaintiff, sale of the tract of land now in controversy was made on the third day of July, 1869, the plaintiff becoming the purchaser. The defendant remained in possession. On the fifteenth of January, 1872, plaintiff brought this suit, setting up title under the sheriff’s sale, and praying to be recognized as owner, and to recover the property.

The defendant answered, setting up the nullity of all the proceedings under the order of seizure and sale, and averring that none ot the forms of law were observed in making the sale, specifying several of the alleged informalities. J. H. Gilfoil, the son of the defendant, intervened, claiming one-half the land in right of his deceased mother, the land being community property between herself and the defendant. Pending this suit, it seems, the defendant died, and the plaintiff filed a supplemental petition making the intervenor a party defendant, as heir of his deceased father. The intervenor, answering this supplemental petition, pleads a general denial, and specially pleads the nullity of the proceedings under which the sale of the property is alleged by plaintiff to have been made by the sheriff; that the pretended sale is null as to him, who was no party to the proceedings.

It is alleged that there was no notice of seizure given in the proceeding via executiva as the law requires, and that the sheriff’s return of service of the notice is defective and illegal; that no legal and valid seizure of the property was made.

We think the defendant has shown that the exception in regard to the seizure was well taken, and must prevail. The proof is, that the sheriff at no time had the mortgaged property in his possession, either under his personal control or under that of a keeper. The defendant, Patrick Gilfoil, remained, after this pretended.seizure, in undisturbed possession of the premises, managing and controlling the place exclusive of everybody else. An actual corporeal possession of propeity seized must take place in order to make a sheriff’s seizure valid, and to render a compliance with, the law complete. The sheriff must have the property in his own possession and under his own control, or in the possession and under the control of some person duly appointed and authorized by him. See the case of Corse v. Stafford, 24 An. 262, and cases there cited.

We regard the seizure in this case as a mere paper seizure, and the sheriff’s sale as a nullity.

It is therefore ordered that the judgment of the lower court, so far as it is rendered in favor of the plaintiff, be annulled and avoided; that its decree in favor of the intervenor be affirmed. It is now further ordered that there be judgment in favor of the defendant, the plaintiff paying costs in both courts,

Eehearing refused.


text:
    No. 5652.
    Mrs. Corinne Tesson and Husband v. A. L. Gusman et als.
    As the answer does not disavow tlie signature oí the deceased, or as the heirs do not declare in the answer that they know not the signature, but, on the contrary, aver that it is an act under private signature void for simulation, or null as a disguised donation for in-formalities, the plaintiff was not bound to prove the] signature further than she did by the testimony of one of the subscribing witnesses, and the preliminary evidence on which the deed had been admitted to registry.
    As the defendants have received from their ancestor, independently of the property in controversy, the full amount of their legitime, they can not attack for simulation the sale which he made to the plaintiff, and parole evidence in support of said charge was properly rejected.
    As the ancestor of defendants could, however, have shown the simulation of the sale by a counter letter or by interrogatories on facts and articles addressed to plaintiff, the defendants, his heirs, have the same right. Therefore, the interrogatories on facts and articles which plaintiff failed to answer were properly taken for confessed, and they establish the simulation of the sale beyond doubt.
    APPEAL from the Fifth Judicial District Court, parish of East Batoa Rouge. Cole, J.

      Favrot & Lamon, for plaintiff and appellee. S. F. Greves and B. W. Bobertson, for defendants and appellants.
   Wyly, J.

Plaintiff, Corinne Tesson, brings a petitory action to recover from the defendants, the heirs of Gabriel Gusman, a lot of ground and improvements, situated in the city of Baton Rouge, purchased from their ancestor on the twenty-eighth of March, 1872.

After a general denial the defendants specially aver that the pretended act of sale sued on was an act under private signature, no price was paid, the vendor remained in possession until his death, receiving the rents of the property, and it was assessed as the property of the vendor, Gabriel Gusman, after the pretended sale; that said pretended sale was a mere simulation, not intended to convey any title to said lot, and did not convey any title; that should it appear that said G-usman intended to convey title to plaintiff, then respondents plead that the intention was that it should take effect only after the death of said Gusman, as a donation, and as such the said act was not clothed with the formalities required by law for a donation, either inter vivos or causa mortis, and said act is, therefore, null and void.

The plaintiff moved to strike out the answer on several grounds, the most important being that the defendants having accepted unconditionally the succession of their ancestor, can not be heard to plead or allege that his sale to plaintiff was simulated, and, standing in his stead and place, they can not set up any defense which he, if living, could not make.

The court overruled the exception, reserving the right to the plaintiff to object to the evidence when offered by the defendants. 20 An. 193. The case was before this court in March, 1871, and was remanded because the court a qua erroneously received in evidence a copy of the act of sale, an act under private signature, not the best evidence. The second trial, like the first, resulted in judgment for plaintiff, and defendants, except one of the heirs, have appealed.

As the answer does not disavow the signature of the deceased, or as the heirs do not declare in the answer they know not the signature, but, on the contrary, aver that it is an act under private signature, void for simulation, or null as a disguised donation for informalities, we are of the opinion the plaintiff was not bound to prove the signature further than she did by the testimony of one of the subscribing witnesses and the preliminary evidence on which the deed had been admitted to registry. Revised Code 2244.

As the defendants have received from their ancestor, independently of the property in controversy, the full amount of their legitime, they can not attack for simulation the sale which he made to the plaintiff; and parole evidence in support of said charge was properly excepted to. Collins v. Pratt, 15 An. 42, Labauve v. Boudreau, 9 R. 29, Maples v. Mitty 12 An. 759.

As the ancestor of defendants, however, could have shown the simulation of the sale by a counter letter, or by interrogatories on facts and articles addressed to plaintiff, the defendants, his heirs, have the same right. Therefore, the interrogatories on facts and articles which plaintiff failed to answer were properly taken for confessed, and they establish the simulation of the sale beyond doubt. See Semeré v. Semeré, 10 An. 704, and authorities there cited.

It is therefore ordered that the judgment herein be set aside, and it is decreed that there be judgment for the appellants, plaintiff paying-costs of both courts.

Rehearing refused.


author: ' Taliaferro, J.

text:
    No. 5622.
    Currie, King & Co. v. J. O. Pierce et als. Scott & Brother v. The Same. (Consolidated.)
    ■While there are facts in the evidence calculated to raise some doubt in regard to the perfect good faith of the transactions between the father and the son as to the creditors of the former, yet the sale of the property in question from the former to the latter can not be treated as a pure simulation. The sale may have been resorted to for the purpose alleged by the plaintiff, but, whether for fraudulent purposes or otherwise, could only have been successfully assailed by a regular revocatory action, which the plaintiffs have debarred themselves from bringing by permitting the time to elapse within which that action might have been instituted.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      Pilcher, Leonard & Kennedy, for plaintiffs and appellees. Montgomery & Boberts, for defendants and appellants.
   ' Taliaferro, J.

The plaintiffs, in these consolidated cases, attack a sale made on the fifth of April, 1871, by Jonathan O. Pierce to his son John O. Pierce of an undivided half part share and interest of and in a large and valuable plantation lying in the parish of Carroll called “The Oakland plantation,” and they seek to have the sale annulled and set aside on the alleged ground that it was made in fraud of their rights and for the purpose of placing the property out of their reach and shielding it from being made subject to the debts owing them by Jonathan O. Pierce. They allege and show that they are creditors of said Jonathan O. Pierce to large amounts, and they aver that he was in insolvent circumstances at the time he made the sale, which they allege is fictitious, simulated and fraudulent.

Curators ad hoc were appointed to represent the several absent parties made defendants. John O. Pierce answered, denying all the allegations of the plaintiffs, charging him with fraud and simulation in the purchase of the property in question, and averring that he gave in payment of the price a part in cash and the remainder in his obligations, to be paid in installments, which he has been discharging as they have matured. He- pleads in bar of the action brought against him the prescription of one year. In the lower court there was judgment in favor of the plaintiffs annulling and setting aside the sale so far as it affected the plaintiffs’ rights, and rendering judgment in favor of the plaintiffs against Jonathan O. Pierce for the amounts claimed, and ordering that the property be seized and sold to pay the said debts of the plaintiffs. J. O. Pierce, Jr., has appealed.

The record contains a large amount of testimony. The plaintiffs have used much industry to draw out of J. O. Pierce, Sr., by searching interrogatories to him and by a long cross-examination of J. O. Pierce, Jr., on the witness stand, evidence to show that the sale was simulated, and in truth without consideration. The mother of J. O. Pierce, Jr., was interrogated, also under commission, in relation to the character of the act of sale, she having sold her interest in the Oakland plantation to her son at the same time the father sold his. We think the plaintiffs have shown that about the time of the sale, April, 1871, Jonathan O. Pierce was in failing and insolvent circumstances, but we do not find that they have brought home to J. O. Pierce, Jr., a knowledge of that fact. While we are free to admit there are facts shown by the evidence Calculated to raise some doubt in regard to the perfect good faith of the transactions between the father and son as to the creditors of the former, yet, after a careful examination of the whole-evidence, and considering the attendant circumstances, we are not inclined to regard the sale as a pure simulation. We can not therefore concur with the judge of the court a qua in treating it as such. The sale may have been resorted to for the purposes alleged by the plaintiffs, but whether for fraudulent purposes or otherwise, we think it could only have been successfully assailed by a regular revocatory action, which the plaintiffs have debarred themselves from bringing by permitting the time to elapse within which that action might have been instituted.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that the defendants have judgmen-t in their favor; the plaintiffs paying costs in both courts.

Rehearing refused.


author: Taliaeerro, J.

text:
    No. 5448.
    Successions of George and Frances Clark—On opposition to the account of the executrix.
    Tlie assets shown as composing the separate succession of Mrs. Clark being her separate property, distinct from the assets of the succession of her husband, the opponent can not claim payment out of these assets for his debt, which is a community debt due by the community estate.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      MoGloin & Nixon, for Mrs. H. C. Stewart. Frank Michinard, for executrix, appellee.
   Taliaeerro, J.

George Clark died on the third of March, 1873, and his wife, Frances Clark, died on the same day, a few hours only after the death of her husband; They left olographic wills, by which each testator was appointed executor of the other. Mrs. Clark had no forced heirs. She gave a portion of her estate to her husband, and a portion of it to the minor children of Julia M. Hubbard, the widow of Edward E. Willard, the adopted son of Frances Clark. Mrs. Willard applied for and received the appointment of dative testamentary executrix of George Clark and Frances Clark, and she caused inventories to be made of their estates.

On the twenty-fifth of August following she filed her accounts, one of them showing the succession of George Clark to be a small one, the entire proceeds of which are absorbed by the privileged debts against it j the other showing a balance for the minor children of E. E. Willard of about $8000, after the payment of its debts.

A sweeping opposition was filed to these accounts by Mrs. Stewart, in whose behalf it is urged that all the property of both successions, as divided by the executrix, belong to and form only one succession— that of the community existing between the decedents — and that the opponent’s claim should be acquitted out of the entire assets of both. The opponent’s claim is founded upon a contract of lease entered into between George Clark and the opponent on the fourteenth of October, 1872, by which the opponent leased to Clark a dwelling house in the city of New Orleans for a term of five years from the date of the lease, at $1000 per annum, payable in monthly installments of $83 32 each. The opponent’s claim is for this rent, due and to become due. The executrix placed the opponent on her tableau of George Clark’s estate as a privileged creditor for $500, amount of rent due at that time. That sum, with the other privileged debts of the estate, consume it, so that, the opponent gets nothing more if he is restricted to the estate of George Clark for payment.

The judge a quo rejected this opposition, so far as the opponent claimed payment out of the proceeds of the estate of Mrs. Clark. This opponent objected also to the amount set down Upon the tableau of Mrs. Clark’s estate for attorney’s fees as exorbitant. This opposition was sustained, and the amount reduced from $250 to $100. After making some other unimportant changes in the accounts they were duly homologated.

From this judgment the opponent has appealed.

We think the judgment of the lower court correct. It is very clear that the assets shown as composing the separate succession of Mrs. Clark are her separate property. They are made up of only two items, viz: $103 50, value of a few articles of jewelry and silverware, and $5715 in cash received from the Knickerbocker Life Insurance Company on a life insurance policy on the life of her husband taken out for her benefit.

The opponent can not claim payment out of these assets for his debt, which is a community debt, owing by the community estate.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.