author: Eustis, C. J.

text:
    Copley v. Lambeth et al.
    The attomerney of the plaintiff in an action pending on appeal, cannot purchase the claim of his client. Such a purchase, being of a litigious right, is null. C. C. 2422. Nor can he receive the claim from the plaintiff in payment of a debt due to himself. C. C. 2629.
    APPEAL from the District Court of Ouachita, Willson, J.

      Copley, appellant, pro se.

    This case is not that of the purchase of a litigious right. The transfer of the judgment of Bingham v. Lambeth & Thompson, was talced in payment of a pre-existing debt, which is not illegal.

      McGuire and Ray, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff became the purchaser of certain slaves at a sheriff’s sale, made under an execution issued by the defendants against George if. Caldwell, on a judgment obtained by them, in the court of the Seventh District held in the parish of Ouachita, against Caldwell, Brigham & Downs, and gave bis bond, with security, for the purchase money, $977, payable in twelve months, with interest at ten per cent from date, February 17th, 1842. On the 3d day of January, 1845, at his instance, the execution issued to enforce the payment of this bond was enjoined, under an allegation that he was the owner of the judgment of Brigham v. Lambeth & Thompson, which, with costs, amounted to $512, which judgment he had a light to plead in compensation for that amount. The balance of the bond was paid. There was a judgment in the court below dissolving the injunction, and awarding to the defendants, against the plaintiff and his surety, ten per cent damages, and costs. The plaintiff has appealed. The defendants on the appeal have asked that these damages be increased, to the maximum allowed in such cases on the dissolution of injunctions.

The transfer of the judgment is dated the 21st December, 1844. In the suit in which it was rendered the plaintiff was Brigham’s attorney on record ; and, on the 2d of November preceding, an appeal had been granted, on motion of the defendants, of which the plaintiff was bound to take notice.

The plaintiff presents himself for the equitable interference of the court, in aid of a litigious right, acquired by him in express violation of the law. Public officers connected with courts of justice are prohibited from purchasing litigious rights, which are within the jurisdiction of the tribunal in which they exercise their functions, under the penalty of nullity, and of having to defray all damages, costs and interest. Civil Code, arts. 2422, 2629.

The judgment itself we have just reversed; and the facts connected with it show that, it could not be transferred so as to give the transferee a right to exact the amount from Lambeth & Thompson. But we have an aversion to such details, and it only remains for us to say that, proceedings of this kind can receive no countenance from a court of justice ; and we enjoin it on those entrusted with the high duty of administering the laws, on all occasions to vindicate their purity, and not to permit their violation, directly or indirectly, by public officers under their authority. We shall allow the defendant the maximum of damages.

The judgment of the court below is therefore affirmed, with twenty per cent damages, $103, and costs.

       The case of Brigham v. Lambeth & Thompson, turning entirely on questions of fact, is not reported.


source: Caselaw Access Project

license: Public Domain

text:
    Whitehead, Receiver v. Brigham et al.
    A private person cannot be appointed to act in the place of the sheriff during the trial of a case in which the latter is a party, on the ground of the absence of the coroner from the parish. The stat. of 12 March, 1838, relating only to the service of process, does not authorize such an appointment; and any judgment rendered on a trial conducted by a person acting in the place of the sheriff under such an appointment, must be reversed, if the illegality be objected.
    APPEAL by Brigham from a judgment of the District Court of Ouachita, Gurry, J.
   The judgment of the court was pronounced by

McGuire and B.ay, for the plaintiff. Purvis, for the appellant.

Eustis, C. J.

Before the jury was impaneled in this case the court appointed W- H. Coats to act in the place of the sheriff, Brigham, during the trial, on the ground of the interest of that officer, who was one of the defendants, and of the absence of the coroner from the parish. The court below held itself authorized to make this appointment, by virtue of the act of 12th March, 1838. Acts of 1838, p. 84. That act relates to the service of process only, in cases in which the sheriff may be disqualified to act by reason of interest or, otherwise, and there is no coroner in office, or the coroner is interested in the suit or process to be served. It does not extend to the case 'under consideration.

It is the duty of the sheriff to attend the trial of causes in person, or by lawful deputy. When he is interested in a cause, his duties are to be discharged by the coroner. Code of Pract., art. 772. The appointment of the person to perform the duties of sheriff during the trial of this cause, was not lawful. The defendant, Brigham, was entitled to a trial by jury in the usual form of law. He has been deprived of it, and we have no power to refuse him the privilege, which he insists upon at our hands. The question has been properly brought before us by a bill of exceptions, taken to the appointment made by the court. The verdict cannot stand, and must be set aside. The judgment of the court below is therefore annulled, and the case remanded to the District Court of the twelfth district, for further proceedings, the appellee paying the costs of the appeal.


author: King, J.

text:
    Lee v. Lee.
    Where an application for a commission to take the testimony of a witness residing out of the State was not accompanied by an affidavit as to the materiality of the testimony, and no cross-interrogatorios were propounded, nor other act done waiving the required affidavit, the testimony will not he admissible. C. P. 436.
    The deposition of a witness taken under commission must he signed by him, or his mark must he affixed to it, at the time, to render it admissible in evidence. C. P. 433.
    Itisno objection to evidence taken under a commission, that a previous commission obtained by the same party, for the examination of the same witness, had not been returned. Per Cv/riam: Where a party has reason to believe that a commission has been lost, or will not be executed, he is bound, in the exercise of due diligence, to cause another to be issued.
    APPEAL from the District Court of Catahoula, Curry, J.

      G. S. Sawyer, for the appellant. Purvis, for the defendant.
   The judgment of the court was pronounced by

King, J.

This action was instituted by the plaintiff to recover an undivided interest of three-fourths in six slaves, which he alleges he acquired by a purchase made jointly with the defendant, in the State of Mississippi. Pending the suit, the plaintiff conveyed his rights to the slaves in controversy to Bolen-hagen, who intervened, and caused himself to be made a party. The cause was submitted to a jury, who gave a verdict for the defendant, and from the judgment rendered thereon, the intervenor, after an ineffectual application for a new trial, appealed.

Before proceeding to the merits, it becomes necessary to consider objections which have been urged to some of the evidence admitted on the trial below. The plaintiff applied for a commission to take the testimony of Britton Gandy, a witness residing out of the State, without accompanying his application with an affidavit of the materiality of the testimony. The answers of the witness, received under this commission, were objected to for that reason, and on the further ground, that the witness had not signed his depositions. Both objections are fatal. Code of Practice, arts. 433, 436. The interrogatories were not crossed, and no other act was done waiving the the required affidavit. The original deposition has been brought up, and it is manifest that the signature of the witness, which is by ordinary mark, was not written at the same time, or with the same ink, or by the same hand, with the body of the depositions. It has all the appearance of an omission, which there has been a subsequent attempt to supply. No explanation has been offered of this suspicious appearance of the signature, although the objection was formally made, many months before the trial of the cause. This testimony was improperly admitted in the court below, and will be disregarded when we consider the case upon its merits.' The defendant caused the same witness to be examined under a commission, and his answers are objected to, on the grounds: 1st. That the commission issued without a previous affidavit of the materiality of the testimony. 2d. That the gen-ral order of the court for taking testimony out of the State had expired, as a term of the court intervened between the time when it was granted and that when the commission issued. 3d. That a previous commission had issued, on the application of the defendant, to examine the same witness, which had not been returned.

Previously to the issuing of this commission, an order was made in open court, apparently upon the joint application of the parties, “ that the parties have leave to take testimony generally in and out of the State.” This order is without limitation as to the time of its duration, and did not require to be renewed at each successive term of the court. Granted in this manner it dispensed the parties from the necessity of accompanying their applications for commissions, with the affidavit required by art. 436 of the Code of Practice. The defendant was not required to await the return of a commission previously issued, before taking out a second to examine the same witness. There is no restraint upon litigants in this respect. On the contrary, when a party has reason to believe, that a commission has been lost, or that it will not be executed, it is incumbent on him, in the exercise of the diligence enjoined by law in obtaining testimony, to cause another to issue.

The depositions of Johnson were also objected to by the plaintiff, on the ground that the commission issued without an affidavit of the materiality of the testimony. This commission was obtained after the order already adverted to had been granted to take testimony generally. The objection to the testimony of these witnesses was correctly overruled.

The plaintiff claims under a written transfer, made in the State of Mississippi, in 1825, to which he alleges he was a party. The act was not produced on the trial, being, as it appears, on file in a suit pending in chancery in the State of Mississippi, whence it could not be withdrawn. The only testimony in regard to it shows conclusively, that the plaintiff was no party to it. Failing to show title in the manner claimed in his petition, the plaintiff next relies on alleged confessions of the defendant, that he was the joint owner of an interest of three-fourths in the slaves, which acknowledgments, he contends, are binding upon the defendant, the sale having been made in the State of Mississippi, where slaves are personal property, transferrable by verbal conveyances.

' One of the witnesses deposes, that the defendant stated that the plaintiff had a right in the slav.es in controversy, but no written title. A second, that defendant said, he and plaintiff had purchased the slaves together, and that the plaintiff had paid his part of the price, but that he had no title. On the other hand, the plaintiff declared that, if his name did not appear in the written sale, he had no interest in the slaves. This is the substance of the testimony in support of the plaintiff’s claim, as founded upon the defendant’s confessions.

The evidence shows that the slaves were transferred, in 1825, to the defendant for $200, of which $150 were paid in cash, and the remainder in a horse, which belonged to the plaintiff. The plaintiff remained in Mississippi until 1840, fifteen year’s after the date of the sale, during which time he does not appear ever to have had possession of the slaves, or to have asserted any title to them whatever. He first set up claim to them after his and their removal to this State. The only possession which he seems ever to have had of any of them was, while engaged, apparently as agent, in moving them to this State, and for a short time after, and, on a subsequent occasion, when he ran them off to the parish of Rapides, where they were recovered. The jury, with this evidence, rejected the plaintiff’s claim, and we are of opinion that the testimony justified the verdict.

The defendant is alleged to be in possession. It therefore devolved upon the plaintiff to show title in himself. He has shown none. The only sale to which the testimony refers was to the defendant alone. The presence, and acquiescence of the plaintiff, for fifteen years, in an adverse possession, without asserting title, [affords the strongest presumption that the right of property was in accordance with the written transfer, and that any rights, which the plaintiff may have supposed he had, were not those of ownership, but to be reimbursed the value of his effects given in part payment of the price of the slaves.

Judgment affirmed.


author: Rost, J.

text:
    Phelps et al. v. Hughes et al.
    Where the issue is, -whether there was ever such a person as A., under whom plaintiffs claim, it is enough for defendants to offer such evidence as, in the absence of counter-evidence, will afford ground to believe that no such person ever existed. If such a person ever existed plaintiff might have easily proved the fact.
    In an action by plaintiffs to recover possession, and to be quieted in their title to a tract of land, where defendants are not trespassers, plaintiffs must make out their title.
    A party cannot change, by his own act, the nature and origin of his possession. C. C. 3480.
    A compromise made in execution of a title which is null, unless the parties have expressly compromised as to the nullity, maybe rescinded. C. C. 3046, 3047.
    APPEAL from the District Court of Catahoula, Curry, J.

      Phelps, for the Me Quire and Ray, for the intervenor. Purvis, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege that they own, under a regular chain of conveyances, ascending to the original grantee, Louis Duran, a tract of land, confirmed to him by an act of Congress passed on the 28th of February, 1823, and that they have had peaceable possession of said land, under just and legal titles translative of property, for more than fifteen years; that the defendants have illegally entered upon the land, built cabins, cut down timber, made enclosures, and established their residence there. They ask to be restored to their possession and quieted in their title. The defendants upon being cited, prayed oyer of the plaintiffs’ title papers; those papers were filed, and the defendants were allowed ninety days to answer. Before the answers were filed, Timothy P. Andrews intervened, alleging that he was the owner of the land claimed by the plaintiffs, under a chain of conveyances, by authentic acts, from Louis Duran to John Walker, and from Walker to him, and that neither the plaintiffs nor the defendants, had any title to the land in controversy. He prayed that they might all be cited, and that judgment might be rendered in his favor. The defendants prayed oyer of his titlo papers, and, those titles being produced, the answers were filed.

The original plaintiffs, in answer to the petition of the intervenor, alleged his title to be fraudulent, on the ground that the person who signed the name of Louis Duran, in one of his mesne conveyances, was not the grantee of the land, but was a person who, by the procurement of John Walker, assumed the name and pretended to be the grantee.

The defendants in answer averred that, they had been in open, peaceable, and uninterrupted possession, for more than one year previous to the institution of this suit, and that they claimed the right of pre-emption, by settlement and cultivation, under an act of Congress. They denied generally the titles of both plaintiffs and intervenor, and alleged that the pretended conveyances from Louis Duran, were false; that his claim was a gross forgery and imposition, both upon the government of the United States and upon all good citizens; that it originated in fraud, perjury and corruption ; and that no such person as Louis Dui an ever lived or had being, but that he was, or is, an ideal being, or-, in other words, a man of straw. At this stage of the proceedings, the issue of title being principally between the plaintiffs and the intervenor, the plaintiffs made a compromise with the defendants, and consented that judgment might be entered in their favor for certain portions of the land in controversy. The intervenor also agreed with' them that, in case judgment was rendered in his favor, he would convey to them the portions which they claimed.

It was proved on the trial, that the defendants had been in possession during more than one year, at the time of the institution of the suit. The plaintiffs offeredin evidence a certified copy of the deed from Louis Duran, under whom they claim, which was objected toby the other parties on various grounds, but the objections were over-ruled, and the document suffered to go to the jury as a duly certified copy of an authentic act. The plaintiffs and the intervenor adduced in turn a complete chain of conveyances from Louis Duran to them, and also the confirmation of Congress. Their muniments of title were held by the court to be valid in form. Several witnesses were examined in behalf of each of the parties to the suit, and, after argument, the jury found in favor of the defendants generally. The plaintiffs and the intervenor having made an ineffectual attempt to set aside the verdict, judgment was rendered in conformity therewith, and they appealed. Each of the appellants asks, that the judgment be reversed, and the case decided in his favour. We would not, under any circumstances, if we reversed the judgment, make a final decision on such an issue! but the law gives us power to remand the case to be tried before another jury, if, in our opinion, justice has not been done. We do not consider this a proper case for the exercise of that discretion.

The main issue before the jury was, the existence or non-existence of Louis Duran, the grantee — whether or not he was a real person. The jury have found that he was not. The fact of non-existence involves a negative proposition, not susceptible of plenary proof on the part of the defendants. It was, therefore, sufficient for them to offer such evidence, as, in the absence of counter testimony, would afford ground for presuming that the allegation was true. 1 Greenleaf on Evidence, p. 94. Evidence was adduced by them for that purpose, and, under the peculiar circumstances of this case, we hold it to be sufficient. The fact that the plaintiffs and the intervenor have alleged against each other in argument that, the person who signed the name of Louis Duran to the deeds under which they respectively claim, was not the real grantee, we view as'a strong corroborating circumstance. If Louis Duran, the grantee, ever existed, it would have been easy for the parties holding the affirmative to have shown thatfact; and as they did not attempt to do so, we are not prepared to say that the jury gave a wrong interpretation to their silence. In issues like the present, the verdicts of juries have great and deserved weight, and will not be disturbed unless they are manifestly contrary to law and evidence.

The plaintiffs’ allegation that they have a prima facia title, under subsequent conveyances made in good faith, cannot avail them. The defendants not being trespassers, the plaintiffs were bound to make out their title. It was incumbent upon them to deduce it from the grantee ; and they cannot change the nature and origin of their civil possession. Rachal et al. v. Irwin, 8 Mart. N. S. 332. Civil Code, art. 3480.

The compromise entered into between the defendants and the other parties to the suit, did not embrace the nullity of the title; the jury having subsequently found the title to be false, that compromise remained without effect. Civil Code, arts, 3046, 3047.

We think the locus in quo sufficiently proved by the intervenor; but the ra■dical defect of his title is the same as that of the plaintiffs. An attempt was mácLejin the origin of these titles, to defraud the government of the United States^by obtaining the confirmation of a forged grant of land, in favor of a fie--titious persbn; but that attempt has failed. There can be no grant, without a grantefeand as in the case under consideration, no person ever was invested > Wjitff tj^ title, the United States have not been divested of it. We see no rea- ‘ son why the defendants should not acquire the land they occupy by settlement ^an,d cultivation under the act of Congress.

** Some of the parties interested probably purchased in good faith, and their case may be entitled to the favorable consideration of Congress; but it is our duty to repel their pretensions under conveyances from Louis Duran, and to declare those conveyances to be forgeries. Such is the import of the verdict of the jury, and the judgment rendered upon it must be affirmed.

Judgment affirmed.


author: Siidem,, J.

text:
    Livingston v. Dick.
    Want of citation is cured by the appearance and pleading of the defendant, and his consent to go to trial upon the merits without any decision upon an exception on the ground of want of citation.
    An affidavit for an injunction which recites that, “ the facts and allegations set forth in the petition for an injunction are true, and that the facts, stated to he on his belief, he believes to he correct,” is sufficient.
    A mortgagee can proceed by seizure and sale only where the mortgage is by authentic act.
    A certificate by a notary, appended to an instrument to which the names of two persons are signed as parties and two others as witnesses, reciting that, " the above act was signed in my presence by both the above parties, and also the above signed witnesses, for the purposes therein contained, and I, the undersigned parish judge, have also signed the same, on this 26 day of February, 1841,” is not sufficient to render it authentic. C. C. 2231.
    APPEAL from the District Court of Ouachita, Willson, J.

      Purvis, for the appellants. McGuire and for the defendant.
   The judgment of the court was pronounced by

Siidem,, J.

William Dick, the present defendant, applied for and obtained an order of seizure and sale, upon an instrument in writing, called by him in his petition a mortgage in the form of a deed of trust, commanding the sheriff to seize and sell the slaves mentioned in the deed, to satisfy the sum of $1706 10, with interest from the 15th January, 1844, and costs. The present plaintiff, Livingston, then sued out an injunction against Dick, enjoing the sale of the property. The defendant in injunction filed a written motion to dissolve the injunction, in which he alleges as grounds for the dissolution:

1st. .That he had not been served with a citation, but that the plaintiff had induced the sheriff to desist from proceeding in the case. This ground hardly requires notice. The objection of absence of citation was clearly abandoned by the defendant’s appearance and pleading in the cause, and going to trial before a jury upon the merits, without any disposition made of that part of the motion.

2d. The insufficiency of the affidavit, “as no particular fact is sworn to, and the affidavit is i ndefinite, and does not state what facts are sworn to.” fidavit appears to us sufficient. It is that, “ the facts and allegations the above petition are true and correct, and that those facts stated' belief, he believes to be correct.”

The motion then assumes the form of an answer, and states thalj tions of the petition are untrue, specially denying a portion of : answer concludes with a prayer, “ that the plaintiff be ruled to prov^kj mary manner, the truth of the facts alleged in his petition or oppositf on his failure to do so, that his opposition be rejected, the injunction dissolve' with interest at ten per cent on the amount enjoined, and special damages, twenty per cent for counsel fees and other expenses herein, and for general relief.”

Upon these pleadings the cause was sumbitted to a jury, who returned the following verdict: “We, the jury, find for the defendant, that the injuction be, dissolved, with five per cent interest from judicial demand, and ten per cent special damages.” Upon this verdict the court rendered a judgment decreeing, “ that the injunction be dissolved, and that the defendant recover from Aaron Livingston, and the securities on the bond, in solido, inter at five per cent, from judicial demand, on the amount enjoined $ 1710 10, and ten per cent on the same amount, as special damages, with costs of suit.” A remittitur was entered by Dick for the five per cent interest, from judicial demand up to the date of service of the injunction.

From this judgment the plaintiff and his sureties have appealed ; and the defendant has filed an answer to the appeal, in which he prays that the judgment be amended so as to give him twenty per cent special damages, instead of ten per cent given by the court below, and for general relief.

We have been thus particular in stating the pleadings and proceedings in this cause, because, from a consideration of them it deary results that, although numerous points have been raised, the only questions before this court are, whether the order of seizure and sale was properly issued; and whether, supposing the case to have been converted from a suit by executory process, into an ordinary hypothecary action to have the slaves decreed to be subject to the mortgage and applied to the payment of the alleged debt, the defendant, Dick, has shown any right to such relief. No judgment has been asked against Dick personally, either in the court below, or in this court.

It is evident that the seizing creditor had no right to proceed by order of seizure and sale. The so called mortgage was not an authentic act. Civil Code, art. 2231. 3 La. 419. 11 Martin, 245.

Admitting thatthe strange and anomalous instrument, which the defendant calls a mortgage, would have the effect of creating a mortgage upon the slaves, upon which point we express no opinion, still there is no evidence before us, enabling us to say whether the conditions have been fulfilled, upon which alone the grantee, Dick, would have a right to resort to a sale of the property, by a judicial proceeding.

The judgment of the court below is therefore reversed ; and it is further decreed that the injunction of the plaintiff lie maintained, and thatthe suit'of the said Dick, against the said Livingston, be dismissed, as in case of non-suit; the said Dick paying all the costs of the court below, and of this appeal.

       This instrument was a conveyance of slaves to William Dich and Robert Watson, as trustees, to secure the payment of certain enumerated debts due by Aaron Livingston. The act recites that Watson and Dick, “ or either of them, shall, upon the request, in writing, of any of the creditors above specified, or upon the written request of any person into whose hands any of the above claims may come, if the same be not paid within six months from and after any of said claims become due, seize upon such number of said negro slaves as will be sufficient to satisfy such debt or debts, &c., and sell at public auction in the town of Monroe, for cash or credit, as the said creditor or creditors may direct; provided, however, that ten days notice of the sale be given,” &c. The conclusion of this instrument and the certificate of the parish judge, are in the following words:
      " In testimony whereof I have hereunto annexed my hand and seal, this 1841. day of
      Witness, Aaron Livingston,
      John Bay, his
      W. J. CL. Baker, William m Dick, for self mark. as agent for Robert Watson.
      The above act was signed in my presence by both the above parties and also the above signed witnesses, for the purposes therein contained, and I, the undersigned parish judge, have also signed the same, on this 26 th day of February, 1841. In faith whereof I have hereto signed my name, and affixed my seal of. office.
      Lewis F. Lamy, Parish Judge.”
      There was no statement in the body of the instrument of the day or month of its execution.


author: Slidell, J.

text:
    Bradford et al. v. Cooper, Administratrix.
    Article 326 of the Code of Practice, which declares that a11 defendant, whose signature shall have "been proved after his having denied the same, shall be barred from every other de-fence/’ do.es not apply to an administratrix, who, when sued on a note alleged to have been exeouted by the deceased, denies the signature to be genuine. The party by whom an instrument was signed, must be supposed to know his own signature; but the supposition does not apply to an administratrix who may never have seen him write. C. P. 324. C. C. 2240.
    Under art. 325 of the Code of Practice, which provides that, " where the defendant denies his signature, the plaintiff must prove its genuineness, either by witnesses who saw the defendant sign the act, or who declare that they lenow it to be his signature because they have frequently seen him write and sign his name,*’ it is sufficient that the witnesses swear that they have seen the defendant sign his name frequently, and that they believe the signa-tare to be his.
    Where in an action on a note, professing on its face to have been given for value received, the consideration is denied, defendant must show the want or failure of consideration.
    Under the law-merchant — the prevalence of which throughout the States of the Union, except so far as modified by statute, the court will judicially notice, a notarial protest is not required to be made in the presence of witnesses, or to be signed by them. The act of the notary, certified by his signature and notarial seal, is sufficient.
    Where anote is payable at a particular bank, notice of non-payment to the maker is unnecessary.
    The omission to present a note at the bank at which it was payable, at maturity, will not discharge the maker, where it is not shown that he had funds there at the maturity of the note, or that any loss or injury has been sustained by him in consequence of the delay in presenting it.
    Where a commission to take testimony, directed to a particular person, is signed by the judge himself, no objection can be made to it on the ground that no order of court had authorized it to be so directed. The signature of the judge is a sufficient order.
    Where a commission to take testimony is addressed to a resident of another State by name, and describes him as a justice of the peace, he becomes an officer of the court ad, hoc, and no proof is required of his being a justice, or of his authority to administer oaths, or of his signature.
    Where cross-interrogatories have been propounded to a witness examined under a commission, notice to the party by whom they were propounded of the time and place of taking the testimony, is unnecessary. Stat. 25th March, 1828, s. 9.
    Where a general order has been made to take testimony in a case, and a commission has been granted by the judge in pursuance thereof, and cross-interrogatorios have been propounded by the opposite party, the evidence taken under it cannot be excluded on the ground that there was no affidavit of the materiality of the testimony.
    Where the holder of a note omits to present it for payment at maturity, and there is no stipulation in it for the payment of interest, he canrecover interest only from the time when the debtor was put in default.
    APPEAL from the Court of Probates of Union, Taylor, J.

      Baker and Me Guire, for the plaintiffs. R. WRichardson, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

This is a suit against Anna Cooper, administratrix of the estate of her deceased husband, on a joint and several promissory note, made in the State of Alabama, in favor of the plaintiffs, by J. A. Marshall and Jesse Cooper, for $2139 93, dated 16th March, 1838, and payable 1st February, 1839, at the branch of the iBank of the State of Alabama, in Mobile, for-value received. The defendant answered by a general denial. She further answered by denying the signature to be that of her deceased husband, and averred that it was not genuine. She also denied that any consideration was given for the note.

I. The plaintiffs contend that, by the denial of the signature and the averment that it is not genuine, the defendant is precluded from any other defence, under article 326 of the Code of Practice. The penalty established by this article is imposed by its terms, (construed in connection with article 324,) on the parly who denies Ms signature. We cannot extend this penalty, by implication, to parties not comprehended in its terms, to wit, the heirs, or representatives, of a deceased signer. The distinction between the party who has himself signed, and an heir, or administrator, is obvious. The one may be well supposed to know with certainty his own signature, and whether he made the contract on which he is sued. But no such supposition necessarily attaches to an heir or administrator, who may never have seen the party write, and may have had no knowledge of the transaction in which the note originated. This distinction results not only from the phraseology of the Code of Practice and sound reason, but also from a positive provision in the Civil Code. Article 2240 declares that, “ the person against whom an act under private signature is produced, is obliged formally to avow or disavow his signature. The heirs or assigns may simply declare, (peuvent se contenten de declarer,) that they know not the hand writing, or the signature, of the person they represent.” Again, so stringent is the law with regard to the person himself who signs, that the act of 1825 requires the defendant who denies Ms signature, to swear, “ in order to compel the plaintiff to proof by experts,” “that it is not maliciously, for sake of delay, or with a view to procure an unjust preference to one of his creditors over others, that he denies Ms signature.” But no oath is required of an heir, or representative. The defendant was not, therefore, precluded by her answer from other defences.

II. It is contended by the defendant that, the signature of Cooper is not sufficiently proved, because the witnesses do not say that they know the signature to be his, relying on article 325 of the Code of Practice. If that article is to be litterally construed, the plaintiffs might well reply, that the article in terms applies to the defendant who has denied Ms signature. Suffice it to say that, if the article be applicable to the case before us, the evidence adduced is sufficient, upon a sound construction of the text, which is rendered in the French text “qui déclareront reconnaítre la signature du défendeur.” The witnesses declare that they have seen Jesse Cooper sign his name frequently, and believe the signature of the note to be his genuine signature. Another witness, in whose hands the note had been placed for collection, establishes substantially Cooper’s acknowledgment. The testimony of these witnesses also removes the objection of the misspelling of the name.

III. The note on its face expresses to be for value received, and no evidence was adduced by the defendant, to shift the burden to the plaintiff, on the subject of consideration.

IV. To prove demand of payment at the place mentioned in the note, the plaintiffs offered in evidence a notarial protest, to which the defendant excepted that it was not made in the presence of, or signed by, two witnesses. It is a fact of which we deem it to be our duty to take judicial notice, that the law-merchant prevails throughout the States of this Union, except so far as the same may be modified in particular States by statute. The instrument called a notarial protest is one familiarly known under that law; and we find in that law no requisition of witnesses to act in conjunction with the notary. His own act, certified by his signature and notarial seal, suffices. See Chitty on Bills, p. 493. Bailey on Bills, 256. Story on Bills, 301 et seq. The decisions in our own State to which we are referred, are based upon our own statute, which has prescribed, in certain cases, a peculiar form for this instrument, and those decisions are, therefore, inapplicable to the present case. It- will be observed that there is no objection raised in the bill of exceptions to the admission of the protest of the foreign notary in evidence, on the ground that it is not the case of a protest of a bill of exchange, but of a promissory note. Had the objection however been made, it would have been answered by the authenticated Digest of the Statutes of Alabama, by which it appears that, that State has a statute similar to our own, malting notarial protests evidence of demand, refusal, non-payment, &c., of inland bills and negotiable securities. Alabama Digest, p. 380. There was no objection in the bill of exceptions as to the official capacity of the notary.

V. It is objected that there is no proof of notice of non-payment. This was unnecessary. Bailey on Bills, 316.

VI. The note was payable 1st February, 1839, and was not presented at the Mobile Bank, nor protested till 9th June, 1842. The defendant contends that this delay discharged the maker. This did not operate a discharge. The maker has not shown that he had funds there at the appointed day, nor that any loss or injury has been sustained by the delay in making presentment. See Story on Bills, 266 et seq. Wallace v. McConnell, 13 Peters, 36. 14 La. 540.

VII. The plaintiffs having taken a rule to show cause why certain testimony taken under commission should not be heard at the trial, the defendant answered by the following objections:

1st. “ That the commission is in the hand writing of one of the counsel for the plaintiffs, and is directed to Anderson W. Dabney, justice of the peace in and for Kemper county, Mississippi, and there is no order of the court authorizing the commission to be directed to said A. W. Dabney, or authority for counsel so to direct a commissson to any particular person at his option, without an order from the court.” To this objection it suffices to say that, besides a general order to take testimony in and out of the State, the commission is officially signed by the judge himself. This was a sufficient approval of the commission and a sufficient order.

2d. “ It was denied that Dabney was a justice of the peace for said county, authorized in any manner to administer oaths, or that his signature, or that of the witness to the commission, Lis genuine.” This objection is untenable. See 11 Rob. 319. 18 La. 64. The judge, by signing the commission, clothed Dabney wdth authority to act as commissioner.

3d. “ That there was no notice given of the time and place of taking said testimony.” The defendant crossed the interrogatories, and no notice was necessary. Acts of 1828, p. 152.

4th. There was no affidavit of the materiality of the testimony.” We consider this objection answered by the granting of the commission by the judge, the crossing of the interrogatories by defendant, and the vagueness and generality of the reservation made by the defendant. 2 La. 98.

VIII. It is contended that this claim is barred by prescription. The note was payable 1st February, 1839; service of petition was acknowledged March 27th, 1844. The acknowledgment of the debt, in May, 1839, by Marshall, the co-obligor in solido, and by Cooper, is satisfactorily proved. Prescription Was thus interrupted. 6 Rob. 261. 9 Rob. 26. Civil Code, arts. 3617, 3516, 3486.

IX. We think however that tire court improperly allowed interest from 1st February, 1839. It should have been allowed from the date of the protest, 9th June, 1842 ; for then the debtor was put in default. For this reason we must change the judgment of the court below.

It is therefore decreed that the judgment of the court below be reversed ; and it is further decreed that the plaintiffs, J. B. Bradford 8¡ Co., recover of the defendant, Anna Cooper, administratrix of the estate of Jesse Cooper, the sum of $2139 93, with interest thereon at the rate of eight per cent per annum, from the 9th June, 1842, till paid, and the costs of suit in the court below, those of this appeal to bo paid by the plaintiffs.

       There was no stipulation in the note for the payment of interest.


text:
    Josephine v. Poultney.
    Where the owner removes with a slave into a State in which slavery is prohibited, with the intention of residing there, the slave will be thereby emancipated. Their subsequent return to this State cannot restore the relation of master and slave.
    APPEAL from the District Court of the First District, Buchanan, J.

      David, for the plaintiff. R. H. Chinn, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

In this case the operation of the laws of Pennsylvania upon the personal condition of the plaintiff and the rights of the defendant, by a residence acquired in that State by both of them, released the plaintiff from the dominion, which the defendant had over the person of the plaintiff as a slave, in Louisiana. Her condition once being fixed, under the decisions of the late Supreme Court, she cannot be reduced to the condition of the slave of the defendant. 2 Martin N. S. 401. 7 La. 170. 13 La. 445. But see the case of the Slave Grace, 2 Haggard, 94. It is understood that this decision relates only to the right of oivnersMp of the plaintiff, as the slave of the defendant.

Judgment affirmed.


text:
    Larthet v. Hogan et al.
    Where the property of one against whom judgment has been rendered appears to be subject to privileges or mortgages, entitled to a preference over the judgment creditor, the latter may, by a rule to show cause, as incidental to the proceedings had for the purpose of selling the property, call upon those claiming such privileges or mortgages, to show cause why they should not be erased. The seizing creditor cannot be required to resort to a direct action against persons holding such privileges or mortgages.
    Where notes secured by mortgage have been prescribed, the creditors of the mortgagor may claim the benefit of the prescription. C. C. 3429. Nor can any rights acquired by the creditors by the completion of the prescription, be affected by a subsequent acknowledgment of the debt by the debtor.
    APPEAL by Malard and Armistead,-, who had been subrogated to the rights of the plaintiff, from a judgment of the District Court of the First District, Buchanan, J., discharging a rule taken by them on John Green, and the recorder of mortgages of Jefferson.

      Sigur and Bon/ord, for the appellants.
    The renunciation of prescription made by a debtor, cannot affect rights previously acquired by third persons. Merlin, Repert, verbo Prescription, sec. 1, § 4, No. 2. Troplong, Prescrip. No. 100. Pothier, Oblig. No. 665. Delvincourt, p. 205.

      Josephs, contrá.
   The judgment of the court was pronounced by

Eustis, C. J.

The first question to be considered in this case is, as to the correctness of the proceedings taken in behalf of the plaintiff against John Green, for the purpose of effecting the erasure of certain mortgages existing in his name, on property seized under an execution against one of the defendants, Terrell. A rule was taken against Greene, and the recorder of mortgages of the parish of Jefferson, where the property was situated, to show cause why the mortgages should not be erased and cancelled, on the ground that the notes, the payment of which they purported to secure, were prescribed by lapse of time. Greene filed his exception to this mode of proceeding, averring that he was not bound to litigate his rights in this form, and could not be compelled to appear and plead in a suit to which he was not a party; that his claims against Terrell, the defendant in execution, were a distinct and separate obligation, which, in due time, he would be prepared to enforce against him; but that he could not be compelled to do so in this suit. The exception also denied the right of the plaintiff to avail himself of the prescription, by which it was alleged tfiat the notes were extinguished. This exception was overruled by the court, and it proceeded to hear and determine the matters at issue on the rule.

Proceedings like this have been of common practice of late years, but it is believed that there is no adjudged case in which their validity has been settled. The property of the debtor is the common pledge of his creditors; and the right of the creditors to sell it, and to cause the proceeds to be distributed rateably. among them, unless there exist some lawful cause of preference, is a necessary consequence of this principle. Civil Code, art. 3X50.

But if, at the sale under execution, the sum bid does not exceed an amount sufficient to discharge the privileges and mortgages which take precedence of the judgment, it is expressly provided that there can be no sale. Code of Practice, art. 684. It follows therefore that, in order to effect a sale of property upon which incumbrances of this kind appear to rest according to the certificate of the recorder of mortgages, there must be some mode of testing their validity; and it is a well known fact that, for the purpose of keeping property from the reach of creditors, mortgages are permitted to remain on the records, a long time after they have been extinguished by payment or otherwise. The neglect and inattention of debtors also are frequently the cause of the non-erasure of mortgages. It would be singular if a case of this kind, under our abundant legislation on the subject of practice, had been left without an adequate remedy; for to drive the seizing creditor in all cases, before he could give effect to his execution, to a direct action against those who nominally hold privileges or mortgages on the property of the debtor, would be to expose him oftentimes to unnecessary expense, and to unreasonable delay, both of which objects our Code of Practice, on all occasions, discountenances. We think that Code has made full provision for settling questions of this kind as incidents of sales under execution, and which are necessary to be settled in order to give effect to sales, by relieving the titles of property from fictitious, and merely apparent, incum-brances.

In order to effect a sale under execution of property, subject to privileges or mortgages taking precedence of the judgment creditor, we think he 'has a right to call upon the creditors by privilege or mortgage to malee known and maintain their rights; and that this may be done by rules taken on them for that purpose, as incidental to the proceedings had for the purpose of selling the property, and applying the proceeds to the payment of his debt. That, on the release of the note, the privileged or mortgage creditor is bound to file his third opposition, under articles 301, 395 etseq■ of the Code of Practice, which amply provide for the ascertainment and protection of his rights as a creditor. We come therefore to the conclusion that the judge did not err, in overruling the exception filed by the mortgage creditor, John Greene. '

The notes for which the mortgages were given were all prescribed by lapse of time; but it was contended that the acknowledgments of the debtor, brought them within article 3486 of the Civil Code, which provides that prescription is interrupted by the acknowledgment of the debtor of the right of the creditor. The acknowledgments are attempted to be .proved by the testimony of the debtor, Terrell. It is sufficient to observe in relation to this witness that, his position in relation to the parties, and the promise of Greene to give him one half of the proceeds of the property mortgaged when sold, constitute such an objection to his credibility that, independent of the indefinite character of the supposed acknowledgments as disclosed by him, we are bound to consider them as not proved.

If the' notes which the mortgages were intended to secure were prescribed by lapse of time, the .obligation on which they were based became thereby extinguished, and of this creditors have a right to avail themselves. Civil Code, art. 3429. The acknowledgment of the debt by the witness on the trial of the cause, cannot affect the rights which the creditors have acquired by reason of the prescription. These rights are beyond the reach of the debtor, and cannot be changed by any act of his, to their detriment. Pothier on Obligations, No. 700. The authority of Merlin and Troplong is to the same effect. The rule taken by the plaintiffs must therefore be made absolute.

It is therefore .decreed that the judgment appealed from be reversed; and it is further decreed that, the mortgages on the property seized, to wit, one undivided half of the squares numbers 28 and 30, in the place called Bloomingdale, in the parish of Jefferson, appearing on the certificate of the recorder of mortgages of said parish against Richard Terrell, in favor of John. Greene, to secure the payment of certain notes described therein, having been extinguished, the said recorder of mortgages be commanded forthwith to erase the same; and that the said John Greene pay the costs in both courts.


text:
    Bailey et al. v. Stetson et al.
    Plaintiffs, having contracted to do certain work on a steamer belonging’ to defendants, took her into their dock, where, inconsequence of the falling of the scaffolding, she was seriously injured. Several weeks were consumed in making the repairs rendered necessary by the accident. No time had been fixed during which the work originally undertaken was to be completed. There was no proof of any demand for the delivery of the steamer before the repairs were completed. On a claim in reconvention for damages for injury sustained by the owners, in consequence of the time consumed on the repairs rendered necessary by the fall: Held, tliatplaintiffs can be made liable only after having been put in default by a demand for the delivery of the boat, or by proof, on the part of defendants, that the condition of the boat after the accident, was such as to make any demand unnecessary.
    APPEAL from the District Court of the First District, Buchanan, J.

      Schmidt and Grymes, for the plaintiffs. Benjamin and Micou, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 10th of August, 1844, the plaintiffs, who are respectable shipwrights on the opposite side of the rival’, made a contract for the repair of the steamer Brilliant, of which the defendants were owners. The price of the repairs was fixed at $900, payable one half in cash, and the other in ninety days, in good city paper. The repairs were made, and additional work was done to the boat to the value of $200. The jury gave the plaintiffs averdictfor these sums. The difficulty between the parties, as discussed before us, grows out of the exclusion of certain claims for damages, which the defendants set up in re-convention against the plaintiffs, and which were disallowed by the jury.

It appears that, on the night following the taking of the steamer into the floating dock of the plaintiffs, for the purpose of being repaired, the scaffolding which supported her gave way, and she fell to the bottom, and was very seriously damaged. For the repairs rendered necessary by this accident, the plaintiffs claimed from the defendants the further sum of $2977 40. This work was fairly put on the boat, and her condition, according to the weight of evidence, we think was improved by the new work. The jury disallowed this last sum, and threw the expense of these repairs upon the plaintiffs. They ask the affirmance of the judgment; the defendants insist on their claims set up in reconvention, which it remains to consider.

The defendants allege that the repairs specified by the contract would not have required more than ten days ; that there was unnecessary delay on behalf of the plaintiffs in taking the steamer into the dock; that the fall of the steamer was caused by their neglect; that, inconsequence of the fall and of the damage done thereby, she was detained in the dock for upwards of six weeks, so that she was not ready to resume her regular trips until the 8th or 9th of October; and that, during this time, the defendants hired the St. Landry to take her place between New Orleans and Bayou Sara, on which route the Brilliant had been previously, and has been since, employed. They charge that the steamer was a regular and favorite packet, and was in a lucrative trade, and that the plaintiffs are accountable to them for the reasonable profits which she would have made during her detention, for the wages and maintenance of a portion of the crew during that period, and for injury and damage occasioned by the accident to the furniture of the steamer. The whole amount claimed by the defendants is $8,000.

In relation to the delay in delivering the boat, it is proper to bear in mind that it is not pretended in argument, nor even alleged, that the plaintiffs were in any manner put in default, or that any notice, or demand, was ever given or made, as to anytime within which the delivery would be required. The contract stipulated for no time, and we are satisfied that about ten days would have been considered an usual time necessary for the repairs required by the contract. But the defendants allege that the delay was occasioned by the accident, which was the fault of the plaintiffs; that the boat was so injured that she could not be delivered ; and that, the defendants knowing that fact, there was no necessity for a demand of the boat, which, in her broken condition, could not have been delivered; and that, any such demand would be a vain thing, to which the law compels no man. These facts concerning the condition of the boat must be considered as being in issue between the parties; and if a demand for the delivery of the boat under the contract was necessary in law, to enable the defendants to recover damages for the delay in not delivering her under ordinary circumstances, it was incumbent on the defendants to prove affirmatively the facts which would dispense with the necessity of a demand. It is contended that the condition of the boat, after the accident, was such as exempted the defendants from any obligation to make this demand. That condition it rests with the defendants to establish. This has not been done. We find nothing in the testimony which authorizes the conclusion that, if the plaintiffs had been put in default, or notified that a vigorous performance of the contract would be exacted by the defendants, the whole repairs, including those required by the fall of the boat, could not have been done in the time within which the work required by the contract could, in the ordinary course of business be, or was expected to be, done. The gangs of workmen could have been doubled, trebled, or otherwise increased, and the amount of labor necessary have been put upon the boat in a proportionally shorter period of time. The law requires, before a party can recover damages for breach of contract, that he put the other party in default. This requisition is imperative, and of its useful operation there can be no question. By this means parties are brought at once to the understanding of their mutual intentions; one party insists on the performance of the contract,and the other is thenceforth responsible in damages for his default. Nothing is thenceforth left to supposition or conjecture, and one fertile cause of those misunderstandings which otherwise create so much trouble and litigation between the contracting parties, is thus effectually removed. Fenwick v. Erwin, 6 Martin, N. S. 229. Taylor v. Chace, 18 La. 90. Hodge v. Moore, 3 Rob. 402. White v. Kearney et al. 9 Rob. 495. Hepp v. Cummagere, 10 Rob. 524.

But waiving this view of the case, and considering the claims of the defendants for damages for the detention of the boat on the evidence before the jury, we do not feel in any manner authorized to disturb their verdict. In giving to that verdict the weight which it ought to receive in a case like this, involving facts peculiarly within the knowledge of men of business, we must consider it as settling doubtful questions arising from the testimony; and, on examing the evidence ourselves, we have by no means adopted the conclusion that, the steamer could have been profitably employed in her regular trade between New Orleans and Bayou Sara, during the time she was under the charge of the plaintiffs and undergoing her repairs. Where, under evidence of this character, a general verdict is rendered against a party, it would be unreasonable to set it aside, merely for the purpose of giving the party nominal damages.

In relation to the damage done by the fall of the steamer and the breakage of crockery, we think it is fully compensated by the non-allowance of interest to the plaintiffs by the verdict. The sum of $900 was due the plaintiffs under a written contract; the additional sum of $200 was also due by contract, and interest ought, under ordinary circumstances, to have been allowed from the default of the defendants — that is from the judicial demand. The verdict is for $1100, and the judgment does not bear interest.

In conclusion, we believe that the verdict has done full and substantial justice between the parties, and that there are no legal grounds for setting it aside.

Judgment affirmed.


text:
    Fox v. Tio, Executor.
    Where a party against whom an order of seizure and sale has been issued, purchases the property offered for sale at twelve months’ credit, but fails to comply with the terms of the sale by furnishing bond with surety, and the plaintiff takes a rule upon her to show cause why the property should not be sold for cash, without appraisement, ¿judgment of the court making the rule absolute is notrequired to bo signed. Such a judgment may be executed, or be appealed from, though not signed.
    Where notices of a sheriff’s sale have been posted at the court-house door, and at a public hotel, the usual place of mailing judicial sales, in the same town, and at a coffee-house in a neighboring village in the same parish, it will be considered a sufficient compliance with the stat. of 6 April, 1843, s. 1, which requires such notices to be posted “ at the court-house door, and at two other public places in the parish.”
    APPEAL from the District Court of the First District, Buchanan, J.

      Benjamin and Micou, for the plaintiff.
    The judgment on the rule was a final one. Code of Pract. art. 539. It should have been signed. Code of Pract. arts. 546, 565. Cooley v. Seymour, 9 La. 275. Its execution was consequently illegal. Code of Pract. art. 624.

      Le Oardeur and Grima, for the appellant.
    The judgment on the rule did not require the signature of the judge. Van Winchle v. Flecheaux, 12 La. 148. Krceutler v. Bank of United States, 11 Rob. 160. It was not a final judgment, but a decision on a question arising in the execution of the final judgment.
   The judgment of the court was pronounced by

Slidell, J.

Macarty had obtained an order of seizure and sale against Isabella Fox, and the property seized was adjudicated at twelve months’ credit to her. She neglected to furnish bond and security, and, after the twelve months had expired, Macarty took a rule upon her, to show cause why the property should not be sold for cash and without appraisement, suggesting as the grounds of the motion, the adjudication and her neglect to furnish bond. To this summary form of proceeding by rule she made no exception; but filed an answer to the rule, not denying generally Macarty’s right to relief, but alleging specially as causes why Macarty should not maintain the rule, that she had attempted, since the adjudication, to effect a sale at public auction of the properly, and was prevented by Macarty’s interference, and that there was an outstanding claim of title in Poultney’s heirs, which was calculated to affect the value of the property and prevent a fair sale. At the trial of this rule the default of Fox to furnish a twelve months bond with surety, was admitted; and the court refused to hear evidence on the subject of the alleged interference, the plea itself exhibiting no legal defence, and considered the matter of an outstanding adverse title as already disposed of by anterior proceedings in the cause. Macarty’s rule was made absolute, no appeal was taken, the sheriff proceeded to a resale of the property for cash and without appraisement, and Macarty’s executor became the purchaser. Fox then brought the present'suit, the object of which is to have the adjudication of the land to Macarty’s executor, decreed to be null and void. Two points are presented by the plaintiff:

I. That the order directing the resale was such a judgment as required the signature of the judge ; that it not having been signed, its execution was illegal. The relief prayed by this rule was incidental to the execution of the final judgment, to wit, the decree of seizure and sale. Upon the execution of that decree, Fox, becoming herself the purchaser, made default by not giving bond and security; and the plaintiff, by his rule, asked the court to place him in the same position, in the further execution of his judgment, that ho would have occupied, if Fox had fulfilled her duty, and given him a twelve months bond. To the form of proceeding thus adopted the defaulting purchaser made no objection ; the trial was conducted in the ordinary mode of trying rules; and the decree upon it was a decree incidental and auxiliary to the execution of the final judgment theretofore rendered. As such, though unsigned, it could be executed, or be made the subject of appeal. As to what judgments require signature, and what do not, there is perhaps some obscurity in our Code of Practice; but, taking into view the circumstances of this ease, and also the mode in which the rule was tried, without objection by the defendant in the rule, we deem the point untenable. The order being appealable, and no appeal having been taken, we are not permitted to inquire into the alleged errors of the order making Macarty’s rule absolute.

II. It is contended that the sale was void, because not properly advertised. One advertisement was posted at the parish court-house door, in the town of Lafayette ; one at the Exchange Hotel, the most public and frequented hotel in Lafayette, and the usual place for making judicial sales; and one at a coffeehouse in the village of Gretna. The point made by the plaintiff is, that three different places in the parish should have been selected; that it was illegal to put up two of the notices in the same place, to wit, the city of Lafayette. She relies on the case of Pumphrey v. Delahoussaye, 9 Rob. 42. The act of April 6, 1843, sect. 1, dispensed with newspaper publications in certain parishes and under certain circumstances, declaring that a publication of such sale, affixed at the court-house door and at two other public places in the parish, {deux autres lieux publics de la paroisse,) shall be sufficient. If instead of the expression “two other public places in the parish,” the language had been two other places in the parish, the point would have been plausible. But as it stands, we cannot say that the law has been disobeyed. The court-house door was one “ public place,” expressly designated ; the Exchange Hotel was another “ public place in the parish,” and, in point of fact, as the evidence establishes, the place of greatest resort in the whole parish. Muche’s coffee house at Gretna, was another “ public place in the parish.” The testimony shows that this building forms a corner at the ferry landing; that many planters cross there ; and, in short, that to all the public places, where the notices were posted, the people of the parish resort. The law, we think, has been fairly observed.

It is therefore decreed that the judgment of the District Court be reversed; and it is further decreed that, there be judgment in favor of the defendant, that he be quieted in the possession and ownership of the property in the petition described, and that the plaintiff pay the costs in both courts.


author: Elite, J.

text:
    Lacoste v. Sellick et al.
    Where a slave hired by the owners of a steamer loses his life, in consequence of an accident produced by the neglect of the officers of the steamer to comply with the 10th sect, of the statute of 6th March, 1834, prescribing certain precautions to be observed to avoid collisions, the owners of the steamer will be responsible for the value of the slave ; and in an action against them they cannot require that the officers and crew of the boat should be made parties, on the ground that the obligation is ex delicio and all are jointly liable. The owners of steamers employed in transporting personal property for hire are commercial partners, and bound in solido in all the obligations growing out of the business of the partnership.
    In an action by J. P. L-, against certain persons as owners of the steamer R., defendants filed an answer in' these words: P. L-v. S-et ah, owners of the steamer R. The defendants in the above entitled suit” &c., setting forth thefr grounds of defence. There was no special denial of their being the owners. Held, that there was such an admission of their ownership as rendered further proof unnecessary.
    APPEAL from the Parish Court of New Orleans, Mawian, J.

      Maurian, for the plaintiff,
    cited Civil Code, arts. 2294, 2299. Stat. 6th March, 1834, s. 10. Same v. Tourné, 9 La. 425. Brand v. Tourné, 10 La. 130. Eberv. Tourné, Ibid, 131.

      W. B. Hennen, for the appellants.
    The ownership of the steamer is neither alleged nor proved. 1 Rob. 178. The defendants being joint trespassers are only jointly liable. Civil Code, art. 2304. The statute of 19 February, 1844, " which changed the English text of this act to correspond with the French, so as to make co-trespassers liable in solido, was promulgated on the 21st February, 1844, and did not take effect beyond the seat of government till thirty days after (B. & C.’s Dig. p. 541, No. 1); so that that act was not in force till after the collision, which happened on the 14th of March, 1844. See Barney v. Be-Russy, 1 Rob. 75. Loussade v. Hartman, 16 La. 117- The officers of the steamer should have been made parties. Civ. Code, arts. 2080, 2081. Jordan v. White, 4 Mart. N. S. 340, and the case front 16 La. 117, just cited. It is neither averred nor proved that the act which caused the injury could have been prevented by the owners. Without such allegations and proof, principals cannot be held responsible for the acts of their agents. Civil Code, art. 2299.
      Duncan v. Hawks, 18 La. 549. Ware v. Barrataria and Lafourche Canal Co., 15 La. 170. Strawhridge v. Turner, 8 La. 537.
   The judgment of the court was pronounced by

Elite, J.

This is a suit instituted to recover from the defendants, in solido, as captain and owners of the steamboat Rainbow, the value of a slave, who is alleged to have died of injuries received while in their employment, for which they are answerable. The Rainbow came in collision with the steamboat American Eagle while navigating the Mississippi river, by which the connection pipes of the former were broken, and, from the steam which escaped, the slave in question received a scald, of which he subsequently died. It is averred that the occurrence was caused by the fault and bad management of the captain and crew of the Rainbow. The case was tried by a jury, who gave a verdict for the plaintiff, and the defendants have appealed. The evidence, though not free from conflict, establishes distinctly facts which fix upon the defendants the responsibilities resulting from the collision.

The statute, of 6th March, 1834, provides “ that it shall be the duty of the master and pilot of a steamboat, when descending any river or stream in the limits of this State, when within one mile of an ascending steamboat, to shut off the steam and ring the bell, and permit the boat to float upon the current of the river, until the ascending boat shall have passed; and the master and owner of the ascending boat shall then assume the responsibility of steering clear of the descending boat, and be liable in damages to the extent of the injury that may be sustained.” Bullard & Curry’s Dig. p. 794.

The collision occurred at night, while the American Eagle was ascending, and the Rainbow descending the river. When the Rainbow was discovered, the alarm bell of the American Eagle was rung, which was answered. Finding that the Rainbow neither stopped, nor shut off her steam, and that a collision was likely to ensue, the alarm bell of the American Eagle was rung a second time, the headway of the boat was stopped, and several backward revolutions of her engine had been made when the collision took place. The engine of the Rainbow was not stopped until after the disaster, although the propriety of doing so was suggested by the pilot, when he saw the impending danger.

The defendants contend that it is neither alleged, nor proved, that they were the owners of the Rainbow ; that there is no proof that they hired the slave in question ; that the obligation incurred by them, if any, arises ex delicto, and not ex contractu ; that all the officers and crew of the boat are equally answerable for the consequences of the act complained of, and should have been made parties defendant.

Although the petition is not prepared with much precision, it cannot be construed otherwise than as charging the defendants as captain and owners. The defendants made no exception to this supposed defect in the court below, but filed an answer, which is headed : “ Jacques P. Lacoste v. Stephen S. Sellick et al., owners of the steamboat, Rainbotv,” and proceeds, “ The defendants in the above entitled suit, &c.,” setting forth their matters of defence. This, taken in connection with the body of the answer, in which there is no speial denial of their ownership, is such an admission of their property in the boat as rendered further proof of the fact unnecessary.

It was admitted on the trial, that the slave was hired on board of the Rainbow, and the defendants in their answer say, “ that in the management and control of the plaintiff's slave, they used all the care and diligence which the law requires.” These, are certainly sufficient admissions of the alleged hiring.

Owners of steamboats transporting personal property for hire are commercial partners, and bound in solido for all the obligations growing out of the business of the partnership. The contract for the hire of the slave was one entered into with the view of furthering the objects of the partnership, and, as lessees, the defendants incurred an obligation in solido, to restore him to his owner, in the condition in which he was received. The nature of this obligation they are not permitted to change, by alleging their own tortious acts. The liability of the defendants not being joint, it was not necessary to make other parties to the suit.

Judgment affirmed■


author: Edstis, C. J.

text:
    McGary v. Dunn.
    An act of sale, made by a sheriff for certain pews sold under an execution against a church corporation, which describes the property as “tho unsold pews of said Roman Catholic Church of St. P.-■, say ninety more or less,”|Can convey no title to the purchaser, on account of the vagueness and insufficiency of the description of the objects sold.

      APPEAL from the Parish Court of New Orleans, Maurian, J.

      Carter, for the plaintiff.

      Frazer, for the appellant, contended that the sale was void, for uncertainty and insufficiency in the description of the property sold, citing Code Prac. arts. 679, 702. McFonogh v. Gravier, 9 La. 531. Williams v. Kelso, 7 La. 409. 1 La. 44, 491. 4 Peters, 362. Byrne, for the warrantors.
   The judgment of the court was pronounced by

Edstis, C. J.

The plaintiff sues the defendant for the recovery of a pew, numbered fourteen, on the right,aisle, in the Roman Catholic Church of St. Patrick, or its value, estimated at $1000, and for rent, &c. The defendant is in possession of the pew, which he claims to hold by virtue of his original subscription, before the church was erected. The plaintiff claims under a sale from James McIntyre, who, under an execution against the corporation of this church, at a sheriff’s sale, purchased “the unsold pews of said Roman Catholic Church of St. Patrick, say ninety, more or less.” Can the plaintiff disturb the pessession of the defendant, under a title like, this? The subdivision of the church into pews is necessary for purposes of public worship, and is recognized in the acts under which the corporation exists; and, under the principles established by the decision in the case of McDonogh v. Gravier’s Curator, 9 La. 542, we cannot recognize the sheriff’s deed as conveying any right of property to the purchaser, by reason of the insufficiency, vagueness, and want of precision, in the description of the objects to be sold. To give' effect to an act so uncertain as this, and to recognize it as divesting a debtor of his property, for the benefit, of, and at the judicial instance of a creditor, would be to make the law itself a source of confusion and strife, for no other consequence can follow from its operation.

The defendant, on the trial, offered no evidence in support of his title, although there was sufficient proof within his possession to enable him to obtain a judgment against the corporation of St. Patrick’s Church, for the price of the pew, to wit, $1000, which the court below decreed in his favor, under the warranty of the vendor. From this judgment the church has not appealed. We have only to reverse the judgment in favor of the plaintiff, and give the defendant the benefit of his possession.

It is therefore decreed that the judgment of the parish court be reversed, and that judgment be entered for the defendant, with costs in both courts.


author: Edstis, O. J.

text:
    Bornet v. Davis et al.
    Where the rights of the purchaser of a slave against her warrantor are sold under execution and purchased by the warrantor, and the original purchaser of the slave afterwards acquires the right to receive, and actually receives, the amount for which the right in warranty was sold, it will amount to a voluntary execution and ratification of the sheriff’s sale.
    APPEAL from the Parish Court of New Orleans, Maurian, J. Delavigne, for the plaintiff. There was no ratification of the sheriff’s sale. 8 Toul-lier, nos. 506, 507. Story’s Equity Jurispr. 307. Rivas v. Bernard, 13 La. 172.

      Simon and Morphy, on the same side.

      Benjamin and Micou, for the appellants.
   The judgment of the court was pronounced by

Edstis, O. J.

J. B. Lajleur, a negro man, recovered in the Circuit Court of the United States for this district, a judgment against the plaintiff for his freedom, and for $860 as damages for the value of his services. The plaintiff had purchased Lajleurfrom Davis, the d efendant, and, on an execution issued against her, the marshal sold her rights of warranty against Davis, as her vendor. Davis purchased these rights for $680, which he paid. The action, as we understand it, has for its object to set aside this sale, and reintegrate the plaintiff in her ox'iginal rights of warranty, against Davis. It is based on allegations of the nonobservance of certain formalities, required by law in the sale under execution ; these are that, the object sold was not appraised, and that the advertisements were not made during the full time required by law.

It appears that Lajleur's attorney received the money made under the execution, which exceeded the amount paid by Davis for his purchase, and that the plaintiff purchased the rights of Lajleur to this fund, for which judgment was rendered in favor of the plaintiff in this court, in May last. Vide case of Clothilde Bornet v. J. O. David, It is conceded that the money has been received on this judgment. It is difficult to imagine any possible consequence which can be given to the judgment and receipt of the money, except the ratification and voluntary execution of the sale of her rights of warranty to Davis under the execution. The plaintiff has received the proceeds of Davis' purchase, and good faith requires that she should not be permitted to avail herself of matters of form, arising in proceedings in relation to which she now stands before us as both plaintiff and defendant.

The judgment of the court below is, therefore, reversed; and judgment is rendered for the defendants, with costs in both courts.

       This case, presenting only a question of fact, is not reported.


text:
    Succession of Hiligsberg.
    An appellee cannot have a judgment amended in his favor, unless he has prayed for it in his answer to the appeal. C. J?. 888.
    A debtor, by an act executed after several executions issued against him had been returned “ no property found,” pledged to his creditor a claim against a third person, then in suit. The pledgee did not intervene in the action, but permitted the pledgor to prosecute it. Held,, that as the act of pledge was executed under suspicious circumstances, and the evidence of debt not placed in possession of the pledgee, the pledge was void.
    A sale of the rights or credits of a debtor seized under execution will not be valid, unless the property has been previously appraised as required by law. The want of such appraisement cannot be supplied by any waiver made by the debtor, of in failing circumstances. A debtor, under such circumstances, cannot dispense with any of the formalities established by law for the sale of property under execution.
    APPEAL from the Court of Probates of St. Bernard, Rousseau, J.

      Delavigne, for the appellant. P. A. Bernard and Roselius, for the executors. Duvigneaud, for Latore. Alfred Bodin, for McGinnis.

   The judgment of the court was pronounced by

Rost, J.

Guillaume Hiligsberg and E. Léon Bernard entered into a joint contract with a builder, John Fleming, for the erection of certain brick buildings in the city of New Orleans. By a notarial act, subsequently passed between the parties of the first part, Hiligsberg assumed the payment of all moneys to which Fleming might become entitled under that contract, and released Bernard from all responsibility on account thereof. Fleming was unable to complete the buildings, and the other parties having refused to pay him the whole sum agreed upon, he instituted an action to recover the balance unpaid, and the value of the extra work done, and of the materials furnished for it. He did not avail himself of the stipulations made in his favor by Hiligsberg in his agreement with Bernard, but prosecuted his suit to final judgment against both. The workmen employed on the buildings, and the persons who had furnished materials, also instituted proceedings against Fleming, and cited Hiligsberg and Bernard as garnishees, claiming a privilege on whatever sum might be due by them to Fleming, under art. 2474 of the Civil Code. They all obtained judgments against Fleming. Eldridge, one of them, further obtained against Hil-igsberg, as surety of Fleming, a judgment for the amount of his claim, which has since been satisfied. McGinnis, another of the creditors of Fleming, obtained against Hiligsberg, as garnishee, a judgment for the amount of his claim, with a stay of execution till the final decision of the Supreme Court in the suit instituted by Fleming. The decision of that suit took place after the death of Hiligsberg; and, in conformity therewith, his executors have placed John Fleming on the account rendered by them, as a creditor of the succession, for the sum of $2019 17, deducting therefrom $87 06 for the costs of appeal in that suit, which Hiligsberg advanced, and which Fleming was adjudged to pay —the further sum of $251 06, alleged to be compensated by a judgment of equal amount obtained by Hiligsberg against Fleming, on the 28th of February, 1844 — the further sum of $422, paid by Hiligsberg to Eldridge, as already stated, and finally, the sum of $746 82, compensated by a judgment of equal amount obtained by E. L. Bernard against Fleming, in April, 1842; so as to leave a balance of $512 23, to be distributed among tire creditors of Fleming, claiming a privilege for work done and materials furnished.

J. A. Lacroix opposed the account, and claimed the whole amount of $2019 17, on two grounds :

1st. That the claim of John Fleming against Hiligsberg and Bernard, on which judgment for that amount was obtained, had been given to him in pledge by Fleming, on the 10th of April, 1842, by an act registered in the office of F. Percy, notary public, snd notified to Hiligsberg and Bernard.

2d. That he has obtained against Fleming a judgment, in part satisfaction of which, that claim was seized and sold by the sheriff, and adjudicated to him, on the 24th of July, 1842. The creditors claiming to be paid by privilege out of that fund also opposed the account, and the court below, after hearing the parties, dismissed the opposition of Lacroix, and distributed the fund among the other creditors, in such a manner as to the judge appeared legal and just.

Lacroix appealed, and citations of appeal were served on the executors and the opposing creditors. Only two of the opposing creditors have answered on the appeal. Latore, one of them, has answered that the appeal is frivolous on grounds which embrace the whole merits of the controversy, and has asked for ten per cent damages. His counsel, in his brief and in argument, now complains of the judgment, and asks that it be amended so as to allow him the whole of his claim, with interest. Such irregular and contradictory proceedings show want of preparation and care, not creditable to counsel. Under article 888 of the Code of Practice, the appellee may have the judgment amended, provided the application be set forth in his answer. The answer in this case contains no such application, and that made in argument cannot be noticed.

McGinnis, another of the opposing creditors, has asked that the judgment be reversed, and the account amended, so as to give him a preference, to the exclusion of Hiligsberg and Bernard.

As the judgment now stands, the balance in the hands of the executors to be applied to the payment of Fleming's privileged debts, is $934 25. The judgment is that, McGinnis be first paid out of the fund, the whole amount of his debt, and of the costs incurred by him, which do not amount together to $200, and that the balance be divided between Latore, and Hiligsberg, subrogated to the rights of Eldridge. McGinnis has all he asks. Nothing can affect the rights of this creditor to be paid in full. He has a final judgment against Hiligsberg as garnishee, and the condition affixed to the issuing of the execution under it has happened. The real parties before the court are the executors and La-croix.

The act of pledge under which this opponent claims cannot avail him. It was recorded at a suspicious time, after many writs, which were returned no property found, had issued against Fleming. Moreover, the evidence of the debt never was placed in his possession. He did not intervene in the suit, but suffered Fleming to prosecute it as before the pledge was given. Civ. Code, arts. 3120, 3129.

On the second ground : Fleming, when in failing circumstances, suffered a judgment to go against him in favor of Lacroix. Under that judgment the claim of Fleming against Hiligsberg and Bernard was seized; it was advertised without any description as to its nature and amount; sold without appraisement, and purchased by the seizing creditor. Surely it will not be contended that he can make his own unlawful acts the foundation of his title, and that parties hav-'n& an interest in doing so, cannot prove those acts against him, in the present issue. As he had the appointment of one of the appraisers, he is bound to know,-and did know from the beginning, that no appraisement was made ; and, under the decision of the late Supreme Court in the case of Rightor v. Phelps, 9 Rob. 531, the adjudication is void on that ground. See also the case of McDonogh v. Gravier’s Curator, 9 La. 530.

To the argument that the appraisement may be waived by the judgment debtor, it is a sufficient answer that the waiver is not proved ; and that, if it had been, we held in a case lately decided in the western district, that a judgment debtor in failing circumstances, is without capacity to waive the formalities established by law, for the sale of property taken under execution. Ante, 297.

This party contends that he is, at least, entitled to be recognized as an ordinary creditor; but as he has failed to show that such a recognition would entitle him to any part of the specific fund which he claims, his opposition cannot be maintained on that ground. That fund is insufficient to satisfy the compensations which have taken place' by operation of law, and the privileges of the workmen and of the material men. The compensations allowed by the court below are all in conformity with law; those upon the claims of Hiligsberg cannot admit of a doubt, and as Fleming did not avail himself of the stipulations made in his favor by Hiligsberg, held Bernard as his debtor to the last under the original contract,^and brought him into the Court of Probates for a final distribution of the fund, there is no reason why the judgment obtained by Bernard against Fleming, for building materials furnished him, should not, under the evidence adduced, be compensated against an equal amount of the judgment in favor of Fleming.

We think the court erred in not allowing in compensation the sum of $422, paid by Hiligsberg to Eldridge. It was recovered from him under obligations originating in the contract for building, and should go to the extinguishment of his liability under that contract. Had Eldridge himself set up the claim, his right to be paid by privilege could not have been contested. The judgment must therefore be amended in that respect.

For the reasons, assigned, it is ordered that the sum of $422, paid by Hiligs-berg to Eldridge, be reinstated in the account filed by the executors, and allowed in compensation; and that, after satisfying the claim of McGinnis, the remainder of the fund be paid over to F. Latore. It is further ordered that the judgment as amended be affirmed, and that the appellant, J. A, Lacroix, pay the costs of this appeal.


text:
    Harman v. Claiborne et al., Commissioners.
    The right of action of the holder against the drawer of a check payable to order, drawn by a bank here on a bank in another State, is prescribed by five years, from the time when the check was payable. C. C. 3505.
    The entry of a check on the books of the drawer as unpaid, does not interrupt prescription running in his favor.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Benjamin and Micou, for the appellant.
    Prescription was interrupted by the acknowledgments of the debt, made by the defendants from time to time in their own books. Civ. Code, art 3486. “ La prescription s’interrompt non-seulement par ces titres nouvels, mais ¡par quelque acte que ce soit, qui est récognitif de la dette-” Pothier, Cout. D’Orleans, tit. 14, no. 46. The acknowledgment of a debt on the Mian of an insolvent, interrupts prescription. 2 Troplong, Prescrip, p. 293, no. 719. An acknowledgment need not be accepted, since it is a confession, not a contract. 2 Trop. Prescrip, p. 152, no. 615. It may be tacit. Ibid. p. 154, no. 618. Get cela bien que sa reconnaissance ne soit que tacite, c’est-á-dire resultant de certains faits. Rogron, note to art 2248, Code Nap. This check being drawn from one bank upon another, is a bank note within the exception of art. 3505. Such checks are frequently used as a currency, and the reason of the exception will apply to them.

      L. Peirce, for the defendants.
    The claim is prescribed. Merlin, verlo Prescript. s. 1, § 1, no. 1.
   The judgment of the court was pronounced by

Eustis, C. J.

This action is brought on a duplicate check drawn by the late Bank of Orleans on the Bank of Pennsylvania, payable to the order ofthe plaintiff, for $2000. It bears date May 10,1836, and was protested for non-payment, on the 5th of July, 1844. It appears that the mails of the 10th and 11th of May, 1836, were destroyed by the Creek Indians; and as it is probable that this check was transmitted to its place of payment in Philadelphia by one of these mails, the loss of the original of the check may be presumed, there being no means of establishing the fact of the check’s having been put in the post office, in consequence of the death of the party who purchased it for the plaintiff. The plaintiff went to England in March, or April, 1836, and returned five or six years after. The loss of the check was never advertised, nor is any explanation given, which is at all satisfactory, of the neglect in presenting the duplicate.

Checks of this kind are used for purposes of immediate circulation; but the law is well settled that they must be presented for payment within a reasonable time. It cannot be required that bankers should keep their accounts open, at the caprice of the holders of checks or bills, beyond a period which the usual course of business exacts from them. Chitty on Bills, 301, 413. Besides, we agree with the counsel for the defendants that, this action is prescribed under article 3502 of the Civil Code; nor do we find any act on the part of those who had charge of the affairs of the bank, or of the commissioners since, which interrupts or waives the prescription acquired. The amount of the check, $2000, was carried to suspense account, in July, 1841; up to that time, it was calculated as in transitu. The bank was bound to keep its accounts in the usual form, and in a manner to present its relations with its customers. The accounts with the Bank of Pennsylvania were not closed until after that period. On ex-aming the authorities cited by the counsel for the plaintiff, and one of them, that of Troplong, is the most recant work on the subject of prescription, we do not find that the entry of a note or bill on the books of a party, has ever been considered as interrupting prescription. Judgment affirmed.