author: Slidelt., C. J.

text:
    M. M. Miller v. M. Marigny, Sheriff, et al.
    Where the creditor of an insolvent who has been placed upon the bilan, and duly notified thereof, afterwards sues the insolvent for the same debt, and obtains a judgment by default, which he regularly confirms, it is inadmissible to say that such judgment is absolutely null and void The insolvent, when cited, should have pleaded his cessio donorum, and if his creditor could show no legal cause to take the case out of the usual category, the plea would prevail.
    PPEAL from the Sixth District Court of New Orleans, Colton, J.

      John Henderson, jr., for plaintiff and appellant:
    The case of M. M, Miller, as presented by his petition, is simply this:

      Mandeville Marigny, acting in his capacity of Sheriff of the parish of Orleans, seized property belonging to M. M. Miller under a writ of execution issued in favor of A. Rebates, alias Revados, v. M. M. Miller from the Second District Court of New Orleans. The amount set forth in the execution was $387 61. M. M. Miller called upon the Sheriff, and requested him to release the property so seized, upon the ground that the execution under which he seized, and the judgment upon which the execution issued, were void. The Sheriff persisted in selling under said fi. fa. unless the amount of the execution was paid by M. M. Miller. The said Miller, to avoid expense and sacrifice of his property by forced sale, paid the amount of the execution, under express protest in writing.
    This protest infovmed said Sheriff that he was acting under color of legal process, without the sanction of law, as the fi. fa. under which he made such seizure was void as well as the judgment upon which such fi. fa. issued. In this protest said Sheriff was expressly notified that he was acting without the authority of law, and therefore a mere trespasser — for which the said M. M. Miller would hold him legally responsible in damages, and for the recovery hack of the money so extorted from Miller under color of judicial process. M. M. Miller paid the sum of $387 61, including costs, under protest, and sued the Sheriff and plaintiff in execution to recover back the amount so extorted, and the further sum of $100 for illegal seizure, by way of damages. These facts all appear in the petition. The petition further alleges that the said execution and judgment of said Second District Court of New Orleans are void in this, to wit:
    The said M. M. Miller applied for and obtained from the Fourth District Court of New Orleans a cession of his goods to his creditors and a stay of proceedings. The name of A. Rebates, alias Revados, aforesaid, was put upon the hilan for the identical note — the basis of said judgment in said Second District Court of New Orleans. The creditors elected, one Sloppenhagen syndic, who duly qualified. After said Sloppenhagen was appointed syndic, the said Rebates, alias Revados, instituted said suit in said Second District Court of New Orleans upon said note so put down on said hilan against said Miller; caused citation to issue, which was personally served on M. M. Miller; a judgment by default was had and confirmed. Upon this judgment so obtained said execution issued. The petition charges such judgment as void, because it was obtained against M. M. Miller after he had obtained a cessio bonorum and stay of proceedings, and after a syndic had been regularly appointed to represent the insolvent.
    To this petition the said Mandeville Marigny filed two exceptions:
    1st. That the original court had no jurisdiction of the cause of action set up in the petition.
    2d. The petition discloses no cause of action as to defendant Marigny. The said Rebates, on the day of trial of such exceptions, joined said Marigny therein.
    There can he no doubt the court has jurisdiction over the amount of $487 60, as well as jurisdiction over the person of both defendants.
    We will examine the second exception to wit: that the petition discloses no cause of action as against either defendant.
    To maintain an action we must show affirmatively that the judgment of the Second District Court of New Orleans, upon which said execution issued and under which said Sheriff and plaintiff in execution justify their action in the premises, is absolutely void and not merely voidable.

      We now propose to show this by the decisions of this honorable court.
    In every judgment the agency and presence of three parties are required— Judex, actor el reus. 1 N. S., 8-9, Bernard v. Vignaud.

    Miller at date of citation served on him, had no capacity to stand in judgment. 1 N. S., 62; 8 N. S., 377; 10 L. R., 229.
    A judgment against a party who has no capacity to stand in judgment is null and void, and can be attacked collaterally. 1 N. S., 9, 66; 11 Rob., 42, 43,109; 6 L. R., 377; 6 Rob., 204.
    Cession of goods and order of stay of proceedings operate a civil death of defendant. 1 M. R., 193.
    In 2 M. R., 207, the Supreme Court uses this language: “ This case cannot be distinguished from the case in 1 M. R., 193. No suit can be carried on without parties.” The defendant was civiliter mortuus, the plaintiff was the only party.
    Proceedings after the order of stay of proceedings are null. 3 M. R., 39 ; 4 M. R., 264; C. P., art. 165 $3.
    If the judgment be void for want of a defendant capable to stand in judgment it follows as a necessary consequence that the Sheriff and the plaintiff in execution are co-trespassers, and are liable as such to Miller in solido in damages. 2 Rob., 349; 9 L. R., 123,124; 3 An., 577.
    The Sheriff was bound to inquire into the jurisdiction of the court from which the process to him issued, and under which he acted. 7 N. S., 2; 6 R. R., 192, 205; 3 An., 577.

      Larue & Whittaker and Culbertson, for defendants.
   Slidelt., C. J.

The petitioner claims from the defendants the amount collected on a fieri facias issued upon a judgment qbtained by Rebates against Miller, and also damages. The allegation is that the judgment and fieri facias were absolutely null and void, that the Sheriff and seizing creditor were so informed, and the amount was paid under protest to that effect.

It appears from the allegations of the petition, to which there was a demurrer, that Miller had made a cessio bonorum and placed Rebates as a creditor on his bilan, of which Rebates was duly notified. Subsequently Rebates sued Miller for the same debt; Miller was personally cited; a judgment by default was taken and confirmed, and it was upon execution of this judgment Miller paid. We concur with the District Judge in the opinion that these facts form no basis for the present action. It is inadmissible to say the judgment was absolutely null and void, a proposition which the appellant concedes to be indispensable for the maintenance of his suit. When cited, he should have pleaded his cessio bonorum as exempting him from judicial pursuit; and if his creditors could show no legal cause to take the case out of the usual category, the plea would have prevailed; not having done so, it is now too late. The cases cited do not sustain the proposition that Miller, as between himself and Rebates, was incapable of standing in judgment in the suit in question, although good authority for the doctrine that quoad property surrendered by the cessio bonorum or the interest of the insolvent estate, Miller was incapable. We are aware of no case authorizing us to hold that the judgment in question was absolutely null and void. Occasional obiter dicta on which counsel have relied must be controlled by reference to the circumstances of the cases in which they were used and the points really in controversy.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Hewitt, Norton & Co. v. Goodrich & Co.
    A telegraphic dispatch, by a factor to his consignor, in the TCords “ ive trill honor your sight check for $2,000, being excess of remittances to meet acceptance” is an unconditional obligation to honor the sight check of the consignors for that amount, and a third person Who purchases such check will be entitled to recover of the factors, although an attachment may have been levied in their hands by a creditor of the consignors.
    PPEAL from the Second District Court of New Orleans, Lea, J.

      Garnet Duncan, for plaintiffs,

      lloise S Randolph, for defendants and appellants.
   Voorhies, J.

On the 31st January, 1854, Goodrich & Go., of New Orleans, sent to Spratt, Logan & Go., of Louisville, the following telegraphic dispatch:

“ Letter sixteenth received. We will honor your sight check for two thousand dollars, being excess of remittances to meet acceptances.”

This dispatch, as soon as received, was communicated to Gordon & Go., also of Louisville, who thereupon bought of Spratt, Logan & Go., the following check:

Exchange for $2,000. Louisville, Februavy 2, 1854.

At sight of this first of exchange (second unpaid), pay to the order of Messrs. Gordon & Go., two thousand dollars, value received, as per telegraph dispatch, 31st ult. SPRATT, LOGAN & CO.

To Goodrich & Co., New Orleans.

The plaintiffs are the holders of this check by endorsement from the payees, Gordon & €o. The record contains the following admissions:

“ Defendants admit that Gordon & Go., by their endorsement on said bill, transferred it to plaintiffs at Louisville, Ky., and enclosed it, with said dispatch, by mail, to plaintiffs, in .a. letter put in the Louisville postoffice, on or about the 6th of February, T854, and which was received at the New Orleans post-office on the 15th February, 1854. That said bill was •presented to defendants and payment demanded by plaintiffs on the 18th of February, 1854, and that it was presented on the 15th of February, 1854, to defendants, for either acceptance or payment, and that defendants refused to pay or accept it. That the draft was bought by Gordon & Go. on the 2d of February, 1864, in good faith, of Spratt, Logan & Go. ; at the time, there were rumors prejudicial to the credit of Spratt, Logan & Go., but, induced by the dispatch from the ■defendants with authority to draw, Gordon <& Go. made the purchase of and sent the dispatch with the draft to Messrs. Hewitt, Horton & Go. The dispatch alluded to on file is genuine.”

The check appears to have been duly protested for non-acceptance and nonpayment.

On the 13th of February, 1854, the fund on which this check was drawn, was attached at the suits of Goodrich & Go., Maltby & Go., and the Bank of Kentucky. The affidavits for the attachments in those eases were made by W. Logan McKnight, who is one of the defendants. It is admitted by the plaintiffs, that W. Logan McKnight was, on the 13th of February, 1854, the lawfully authorized agent of the Bank of Kentucky, and that he was the attorney in fact of Maltby when he made and filed the affidavit for him; that the amount of the first claim was about $10,000, the second, about $2,000, and the third about $4,000; and that these attachments were taken out on the 13th of February, 1854, and served in the hands of the defendants on the same day.

Two questions arising from this state of facts, are presented for our solution: 1st. Were the defendants bound to pay this bill, by reason of their telegraphic letter of credit, and the action taken upon it ? 2d. Will the law countenance a factor in an attempt to prevent the execution of his promise and his duty to his principal, by an attachment procured by himself to stop funds in his own hands?

The language of the dispatch affords, in our opinion, a sufficient answer to the first question. It is clear, the obligation contracted by the defendants was unconditional — -to honor the sight check of Spratt, Logan & Go. It was upon the faith of this promise, held out by the defendants to the world, that Gordon & Go. was induced to become the purchaser. In the case of Nisbett v. Galbraith, 3 An. 692, the court held the following language: “ If the letter be, as we feel satisfied it is, a document intended to be exhibited to third parties, and to induce them to take Whitaker's bills, then the promise which the letter contains is, by intendment of law, a promise to any body taking a bill on the faith of the letter, and the advance of his money which the party makes on the inducement and faith of the letter, is a sufficient consideration; damage to the promisee constituting as good a consideration as benefit to the promisor.”

But it is said by the appellants’ counsel, “ that a distinction must be taken between the obligation of a party who authorizes a draft on his own credit, and the obligation of an agent who authorizes a draft to be drawn by the owner for his money, which the agent announces he has in his hands. Had the defendants merely announced to Spratt, Logan & Co., that they had in their hands $2,000, as an excess of remittances for acceptances, there is no question but what the distinction contended for would undoubtedly obtain. But they did more: they said : “We will honor your sight check." Checks, as bills of exchange, are negotiable instruments, generally payable to bearer, but sometimes to order, requiring, as essentials, a drawer, a drawee, and a payee.

It was manifestly the intention of the defendants by this communication, to authorize Spratt, Logan & Go. to put such an instrument in circulation ; and it would therefore be inequitable to permit them to avail themselves of the means of defence on which they rely to defeat the plaintiffs’ demand. It is obvious in this instance, that the assurance held out by the defendants, that the sight check would be honored by them, induced the payees to become the purchasers. We do not think there is any thing in the objection, that the plaintiffs did not take the bill on the faith of the alleged promise to accept. We take it that the dispatch accompanied the bill at all times. This is sufficient under the authority of Goodrich v. Gordon, 15 Johns. 6. It is admitted that the transfer of the check was made at Louisville and that the check and dispatch were both transferred by mail to the plaintiffs.

This view of the case renders it unnecessary to notice the other question.

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


author: Spofford, J.

text:
    Matthews, Finley & Co. v. Their Creditors—R. W. McKenzie, Opponent and Appellant.
    If a deposit be made of money, not sealed up in a package, but counted out and extended on the pass book in the form of an open account, and credited as cash to the depositor, and the face of the account shows that there was not a deposit of bills, or coin or packages to be restored identically5 the deposit is at the risk of the depositary, and it cannot be regarded as a real deposit. Such a deposit creates between the parties the relation of a debtor and creditor, and gives to the deposi-taries the right to use the money in the course of their business.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.
    XX Walker & Pierce, for plaintiff.

      Larue <& Whitaker, for opponents and appellants.
   Spofford, J.

Matthews, Finley & Go., private bankers in the city of New Orleans, having failed, made a voluntary cession in favor of their creditors.

A majority in number and amount voted for their discharge, under the insolvent laws of the State.

Roderick MeKenzie, and Terry & Simpson, opposed their discharge, and sought to convict them of fraud, alleging that they were unfaithful depositaries.

Both cases were tried by jury, and resulted in verdicts and judgments in favor of Matthews, Finley & Go. The opponents have appealed, and the two causes have been submitted together upon one record.

The case of MeKenzie is the strongest against the insolvent.

He contends in argument, and alleges, substantially, in his opposition (although the allegations are not entirely free from ambiguity), that he made a real deposit of $1,200, with Matthews, Finley & Go., before their failure, which they refuse to return to him in kind, as they bound themselves to do, but have placed him on their hilan as an ordinary creditor for the amount of $1,200, and in so doing have been unfaithful and fraudulent depositaries, and have violated a fiduciary trust; he, therefore, prays that they may be deprived of the benefit of their surrender, and that he may have judgment for the sum of $1,200, by preference to all other persons whatsoever, and for other relief according to Law and equity.

The solo question for solution is, did the opponent, MeKenzie, make a real deposit of the $1,200, with Matthews, Finley & GoA.

“ The distinction formerly established by law between the perfect and the imperfect deposit, is abolished.

The only real deposit is that where the depositary receives a thing to be preserved in kind, without the power of using it, and on the condition that he is to restore the identical object.” 0. O. 2934.

The irregular deposit is thus accurately defined by Troplong: “ Le dépót irrégulier est celui qui a lieu quand on dépose une somme d’argent ou autre chose fongible chez un dépositaire, en lui permettant de s’en servir. Cette autorisation transfére au dépositaire le domaine de la chose.” Troplong, Du Dépót, § 115.

There can be no serious difficulty in deciding to which of these two well defined classes the deposit made by MeKenzie belonged.

The evidence of the deposit is contained in his own bank book, offered by himself. By this it appears that he opened an account with Matthews, Finley & Go., with a debtor and creditor side. In this account, Matthews, Finley & Go., debited themselves, “May 6th, 1854, to cash $800; May 22d, do $250; July 17th, do $150.” There are are no credits entered or claimed.

Over against the date 1854 is written the word “ special ” under the heading “ Matthews, Finley & Go. in account with Bod. McKenzie

The obvious meaning of the word is that a special account was opened,.subject to the particular convention of the parties at the time of opening it.

The face of the account shows that there was not a deposit of bills or coins or packages to be restored identically.

The money was counted and debited to the depositaries, in an ordinary pass book, simply as so much cash.

The custom of bankers and the understanding of business men as established without a dissenting voice, by witnesses introduced by the opponent, support the position that this could not have been a real deposit.

Both the custom and common understanding of men, as shown by this testimony, seem to conform strictly to the law.

Thus, special or real deposits of money are usually sealed up, and not counted by the banker, (O. 0. 2914,) they are at least in some important respects at the risk of the depositor, and are to be returned in kind, (0. O. 2910, 2915, 2916) the depositor, in such a case, takes a receipt, or if he has a bank book and keeps a deposit account, the real deposit is entered in the margin of the bank book, but the amount is not extended ; the box or package containing the real deposit, is endorsed with the depositor’s name, and is put away by itself in the vault, there to remain until demanded by the owner ; and checks cannot be drawn against it.

None of these things can be predicated of the deposit in question. McKenzie does not pretend to know what particular money he deposited with his bankers; it was not sealed up in a package, but was counted out, extended on the pass book in the form of an open account, and credited as cash to the depositor; it was at the risk of the depositaries, so that if the identical moneys handed them by McKenzie had been immediately afterwards destroyed by inevitable accident or overpowering force, they would still have owed him the amount; and it was subject to be checked for by him. ■

To that end McKenzie, at the time of opening his account with the bankers, registered his name in their signature book, which was produced on the trial; this is not done when only a real deposit is made, because such a deposit cannot be checked for.

The clerks of the house testify that the word “ special ” was placed under the heading of the account, to signify that the money was to draw six per cent, interest if left there after a certain length of time; it is not very material whether the fact were so or not, as, under'all the surrounding circumstances, the deposit could not be regarded as a real deposit, even without such testimony.

The opponent may have been ignorant of the legal effects of the contract he entered into, but we do not perceive that he was designedly misled by the defendants. The business wras transacted by their clerks, and there is no evidence that they sought any advantage of the opponent. They were, therefore, properly acquitted of the charge of bad faith.

This being an irregular deposit, the depositaries had a right to use it in the course of their business; the relation of debtor and creditor arose between them and the depositor; le domaine de la chose, the power of using the money passed to them, and the obligation of returning, not the same, but a like amount was assumed by them; their ability to do so depended upon their wealth, credit and the vicissitudes of business; the result was disastrous to the depositor, but the law, whether wisely or unwisely, it is not for us to say, gives him no privilege over other creditors for his debt.

The District Judge presented in plain and forcible language the precise issue to the jury, when he said, “If the jury find that the money deposited was to be returned in kind, it was their duty to give a verdict for the plaintiff.”

Their verdict for the defendants, under such a charge, strongly corroborates our own view of the facts which they had the advantage of hearing from the mouths of the witnesses. We conclude that the defendants cannot be regarded as “ unfaithful depositaries,” in the sense of the Article 2929, of the Civil Code.

It is, therefore, ordered that the judgment in favor of Matthews, Finley & Go. on the opposition of Roderick McKenzie, be affirmed with costs.


text:
    Matthews, Finley & Co. v. Their Creditors—Terry & Simpson, Opponents and Appellants.
    The course of business establishes the relation of debtor and creditor, between the banker and the owner of irregular deposits. The right of the depositary to use the money thus deposited, is a part of the contract between him and the depositor. Whereas, he who collects or receives or takes a deposit of money in the sense of the 10th Section of the Act of 28th March, 1810, has not the right to use it.
    from the Fifth District Court of New Orleans, Augustin, J.

      Walker <& Fierce, for plaintiffs.

      Smiley & Perm, for opponents and appellants.
   Spofford, J.

This case differs from that of McKenzie v. Matthews, Finley & Co., just decided,, in only two of its features.

In this case it is admitted that the deposits made by Terry & Simpson were ordinary or irregular deposits. For the reasons given in the former case, the defendant cannot be considered as “ unfaithful depositaries ” who, according to Article 2992 of the Civil Code, are precluded from the benefit of a surrender.

But it is contended, in the present case, that the defendants, although they have made a surrender, are liable to the penalties of the Act of March, 28th, 1840, entitled “ An Act to abolish imprisonment for debt,” because they have failed to pay over money received or deposited with them for another.

It becomes unnecessary to pass upon the hills of exceptions to the Judge’s charge, and to his refusal to charge as requested; for, giving the opponents the benefit of a proceeding under the Act of 1840, we have decided in the recent case of Sims v. Bean, that the terms of the 10th Section of that Act do not embrace the case of a banker who receives irregular deposits and becomes insolvent before they are drawn out by the checks of the depositor, and against whom no other charge is made than his failure to pay over the amount of such irregular deposits — after insolvency.

The course of business establishes the relation of debtor and creditor between such parties. The right of the depositary to use the money thus doposi-ted is a part of the contract between him and the depositor; whereas, he who collects or receives or takes a deposit of money for another, in the sense of the 10th Section of the Act of 1840, has not the right to use it. This is the true line of distinction between the present case and cases that fall properly within the scope of the Act of 1840.

Judgment affirmed with costs.


author: Buchanan, J.

text:
    C. Blanchin v. Steamer Fashion, Captain and Owners—J. P. Freret, Sheriff, &c.
    There are certain cases where the provisions of Art. 575 of C. P., which require that the appeal bond to be given for a suspensive appeal shall exceed by one-half the amount of the judgment appealed from, is inapplicable.
    The expressions of that Article simply imply that the judgment to necessitate such a bond must be one which the appellant has been condemned to pay, and do not seem applicable to the case of a . judgment where the appellant is condemned to pay nothing.
    from the Fifth District Court of New Orleans, Livingston, J.
    Magne, for plaintiff and appellant.
    Blache, for defendant.
   Buchanan, J.

The plaintiff obtained judgment against the owners of the steamboat Fashion for $487 16, with privilege on said boat, in execution of which judgment the said steamboat was seized and sold for the sum of three thousand six hundred dollars. After paying sheriff’s fees and costs of sale, there remained in the sheriff’s hands a sum of three thousand one hundred and fifty dollars and eighty-one cents. In the meantime many third oppositions had been filed by persons claiming for wages, materials, &c. By judgment of the District Court upon those oppositions, the whole fund arising from the sale of the Fashion, under plaintiff’s execution, was distributed among other parties, leaving nothing for plaintiff. This judgment was signed on the 9 th June, 1853. On the 16th June, 1853, an appeal was granted to plaintiff on motion, returnable in the Supreme Court at the following term, on Ms giving hond with security in the sum, of one hundred and fifty dollars, conditioned as the law directs.

The question presented for our decision, is whether this appeal was sus-pensive.

The Article 575 of the Code of Practice requires that, to have the effect of staying execution, an appeal must be taken within ten days, not including Sundays, after judgment notified, or (under the Act of 1843,) when no notice is necessary, after judgment signed. The same article further requires that the appeal bond to be given for a suspensive appeal shall exceed by ono-half the amount of the judgment appealed from. There are certain cases, however, where this latter requisition is inapplicable. The expressions of the article imply that the judgment to necessitate a bond in one-half exceeding its amount, must be one which the appellant has been condemned to pay. This amount of bond does not, therefore, seem applicable to the case of a judgment where the party appellant is condemned to pay nothing. Accordingly, a bond for costs only was Meld, to be sufficient for a suspensive appeal in an action of partition, when the fund to be divided was in the hands of the court. Heath v. Vaught. 16th La. Rep. 520. See, also, Millaudon v. Percy's Syndic, 7 N. S. 352.

The present case seems to be analogous. There was a fund to be divided which was not in the hands of the appellant, but of the executive officer of the court. The appellant was condemned to pay nothing, not even the costs of the court, by the judgment appealed from. That he was entitled to a suspensive appeal from the judgment which debarred him from a participation in a fund which had been provided by his own exertions, seems undeniable. But there was no standard fixed by law for the bond and security to be given by him in obtaining an appeal. It was obviously a matter for the discretion of the judge. And although we have decided that the provisions of the Article 574 of the Code of Practice, requiring the judge to fix the amount of the bond, relate only to de-volutive appeals, yet the reasoning on which those decisions are founded evidently point to the case where the amount of the bond for a suspensive appea] may be precisely determined from the judgment itself, in connection with the terms of Art. 575.

We think the appeal, being taken within the ten days following the judgment, and a bond being given in the amount fixed by the court, the appeal operated a supercedeas, and the sheriff should have retained in his hands an amount sufficient to satisfy the appellant’s claim. Not having done so, and the decree of this court upon the appeal having allotted a share of the fund to the appellant, the sheriff has rendered himself liable.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that the appellant, 0. Blanchin, recover of James P. Preret, appellee, three hundred and sixteen dollars and twenty-two cents, with costs of the rule in both courts.


author: Slidell, C. J.

text:
    B. F. Simms v. Horace Bean.
    The term “ money deposited,” used in the 10th Section of the Act of the 28th March, 1840, does not include money deposited with an understanding that the person receiving it shall receive no com. mission for its care, — may mix it with his general funds, and employ it in his business, — but with the understanding that he shall give credit in account for its amount, and be ready to pay on de_ mand.
    from the Sixth District Court of New Orleans.

      Semmes & Edwards, for plaintiff.

      L. G. & &. B. Duncan, for defendañt.
   Slidell, C. J.

Interpreting the Act of 1840 as a whole, in connection with its title and with reference to pre-existing legislation, we deduce an intention of the Legislature to soften the ancient rigor of imprisonment for debt, but at the same time to maintain the remedy for the discouragement and punishment of fraud. It is against fraud the 1 Oth Section is directed. The law is not prone toinfer fraud, nor extend punishments and penalties ; and this statute, highly severe in the consequences it inflicts, and penal in its character, should receive a strict judicial construction, — that is to say, it should not be extended to derelictions of duty not specially and clearly described and comprehended in it.

Interpreting the statute by this standard, we are unable to bring our minds to a clear conviction that the defendant’s case is covered by the 10th section, which in one of its clauses speaks of the debtor who “ shall fail to pay over money received or collected for, or deposited with him for another,” and this associates such acts in the same category with various other acts antecedently enumerated, any of which facts, says the section, “ shall be held presumptive evidence of fraud.”

The relation between the plaintiff and defendant, out of which the indebtedness arose for which he was arrested, was that of banker and customer. Bean was a banker, and kept a banking house, with which the plaintiff had an account and dealt in the usual manner, depositing money from time to time, which was carried to his credit in account, and checking upon Bean from time to time as he had occasion. These moneys were not specially deposited, and to be identically restored. (Civil Code, 2897.) They went into the mass of Bean's money, with the implied understanding, as we infer from Bean's vocation, that they might be used, and should be the basis of items in a debit and credit account on Bean's books. Bankers here, as everybody knows, do not and are not expected to keep each customer’s fund separate, and not to use it; it goes into their general treasury ; they are under no obligation not to employ it; and it is by employing it that they get their compensations for the expenses, trouble and risk of receiving and being responsible for the customer’s money, since they receive no commissions; at least none was charged in this ease. Persons exercising this vocation usually deal in exchanges, discounts and other financial transactions ; and the customer, knowing this, knows the risks and vicissitudes to which a banker is exposed, and that the events of a week, or even a day, may involve him in embarrassment or ruin. To say that when such relations exist between the creditor and the debtor, the mere failure to pay the customer upon request, his balance of account, (which is all that is proved in this case,) is per se a fraud and within the purview of the statute, is going further than we are clear the legislature intended.

We therefore conclude that the term “money deposited,” used in the statute, does not include money deposited with an understanding that the persons receiving it shall receive no commission for its care- may mix it with his general funds, and employ it in his business, but with the understanding that he shall give credit in account for its amount, and be ready to pay on demand.

This view of the case renders it unnecessary to enter into the criticism based upon the expression “ deposited with him, for another

Judgment affirmed with costs.


text:
    Andrew Matta v. Mary Gayle.
    The settled practice is to consider the surety in injunction as a party cited before the appellate-court, without being specially mentioned in the motion for appeal.
    from the District Oourt of East Baton Rouge, Robertson, J.

      Lacy, for plaintiff and appellant.

      Elam & Elam, for defendant.
   Buchanan, J.

The defendant and appellee moves to dismiss the appeal, on the ground that Henderson, the surety of plaintiff on the injunction bond, is, not before this court.

The appeal was granted upon motion as follows: “The plaintiff’s counsel moves for a suspensive appeal returnable according to law upon giving bond and security in the sum to be fixed by the court.” The practice, as settled in the case of Mitchell v. Lay, 4 An. 514, is to consider the surety in injunction, as a party cited before the appellate court, without being specially mentioned in the motion for appeal.

This is an injunction suit to stay the execution of a judgment obtained by a wife separated in property from her husband, in an hypothecary action against a third possessor of property acquired from her husband, and subject to a tacit mortgage for the security of the paraphernal rights of the wife. The grounds assumed in the petition for injunction are, that the husband has died and that the wife has intermeddled in his estate, and taken possession of his property without legal authority, particularly of two slaves named Rachel and Bundy ; and furthermore, in case the court should not be of opinion that there was such an intermeddling on the part of the wife as renders her liable for the obligations of her husband, that at all events the wife is bound to discuss the said slaves, Rachel and Bundy, before enforcing her tacit mortgage upon the property of plaintiff in injunction.

On the trial of the cause in the District Court, the plaintiff in injunction offered to prove by record and other evidence, both written and parol, that James D. Stuart departed this life in or about the month of July, 1832, and that since his death, his widow, the plaintiff in execution, has intermeddled with the estate of her deceased husband, and had appropriated to her own use, two negro slaves, Rachel and Bundy, their hire for two years, and a large amount of personal property — to prove furthermore, that the plaintiff in execution has never caused an inventory to be made in the succession aforesaid, and has never renounced the community formerly existing between-her and her deceased husband. This evidence was offered to sustain the plea of discussion, and to establish the intermeddling alleged in the petition. But the District Court ruled out the evidence of intermeddling, on the ground that the alleged acts of intermeddling, have occurred since the defendant obtained judgment against the property ■ of plaintiff in injunction, rendering it liable to her tacit mortgage. And the court rejected the evidence to support the plea of discussion, on the ground that this plea was res judicata against the plaintiff in injunction.

We think the court erred. The acts of intermeddling by plaintiff in execution in the estate of her deceased husband, were alleged in the appellants’ petition, as grounds for injunction of the execution, precisely because they had occurred since the judgment in the s.uit of Mrs. Stuart v. Matta. Had they occurred before, they might have been pleaded in defence to that suit, and would not have been available to enjoin the execution. See the numerous authorities collected in Hennen’s Digest, verlo Injunction, p. 699, No. 6.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed ; and that this cause be remanded for further proceedings according to law. And it is further decreed, that the plaintiff in injunction be allowed to introduce the evidence mentioned in his bill of exceptions to establish the alleged intermeddling; and lastly, that the costs of the appeal be paid by the appellee.-


text:
    Payne & Harrison v. S. N. Raudon.
    An executionlevie.l on a slave creates a privilege, under xVrt. 722 0. P., superior to that which results from the registry of a judgment subsequent to the levy. . ; .
    APPEAL from the Fourth District Court of New Orleans, Waterman & Co., intervenors, Reynolds, J.

      Chilton, for plaintiff.

      Moll & Fraser, for intervenors and appellants.
   Voorhies, J.

(Ogden, J., declined .sitting)

On the 3d of July, 1851, the defendant being indebted to the plaintiffs in the sum of $1200, evidenced by a promissory note, mortgaged to them certain slaves to secure .the payment thereof. The act of mortgage, executed in New Orleans, recites that the defendant is of the parish of Avoyelles. The plaintiffs obtained from the Judge of the Fourth District Court of New Orleans an order of seizure and sale 'on' this mortgage. At the foot of the petition praying for the same, the defendant waived the notice of seizure and authorized the Sheriff to proceed and advertise for sale the boy Henry, one of the mortgaged slaves. On the 22 1 of October, 1852, the boy Henry was advertised by the Sheriff for sale, and afterwards'regularly adjudicated to William O. Denegre for the price of $1190 cash, which, by consent of plaintiffs, remained deposited in the hands of the purchaser.

J. Waterman & Co. filed a third .opposition, claiming to have a preference on the proceeds of the sale, resulting from a judgment in their favor, recorded in the parish of Avoyelles, the domicil of the defendant, their judgment debtor. That a writ of fieri facias, issued on their judgment, was directed to> and received by the Sheriff of the parish of Orleans “prior to the sale but after the seizure of the slave Henry under the order of seizure and sale.” That the act of mortgage .under which the plaintiffs sold .was never recorded, either in this parish or the parish of Avoyelles, and as against them it has no effect. .,

. The judgment of Waterman & Co. appears to have been recorded in the parish of Avoyelles on the 26th of October, 1852. According to the evidence, Raudon, the defendant, was previously engaged in business as a merchant in Avoyelles. In September, 1852, he sold out all his property and removed from that parish to New Orleans, declaring at the time his intention of making the latter his future domicil, and in which he has resided ever since the 1st of October, 1852.

The Code of Practice, Article 722, declares: “The creditor, by the mere act of seizure, is invested with a privilege on the movable and immovable property thus seized, which entitles him to a preference over other creditors, unless the debtor has become bankrupt previous to the seizure.” The plaintiffs’ execution having been levied on the property previous to the registry of the third opponents’ judgment, it is clear under this provision of the Code that the District Judge did not err in rejecting the demands of the third opponents.

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


author: Spoffokd, J.

text:
    A. Fulton v. J. C. Brown and W. H. Phelan.
    An appellant cannot be heard upon a point of cost3 here, when he has neglected to call the attention of the court of the first instance to it.
    from the Sixth District Court of New Orleans, Cotton, J.

      Bonford and Denegre, for plaintiff.

      Race & Foster, for defendants and ap' pellants.
   Spoffokd, J.

The defendants complain that the judgment below was erroneous, first, in condemning them to pay the costs arising from the attachment of the steamer S. S. Prentiss, which was afterwards released by order of the plaintiff, and secondly, in according a privilege upon the property attached.

I. Two steamers were attached. One of them was released “ by consent of the plaintiff.” It does not appear what the costs of attaching that boat were. The appellant made no complaint before the court below with regard to this branch of the costs. It must be a small item; and the rule is, that the appellant cannot be heard upon such a point here, when he has neglected to call the attention of the court of the first instance to it. This rule is especially applicable to the matter of costs. Ames v. Merchants’ Insurance Co., 2 An., 594; McMuller v. Jewell, 3 An., 139.

II. The defendants say the court erred in refusing to dissolve the attachment under a rule on the ground that “ the bond was not signed by the plaintiff, or by any one for him, authorized to appear in and sign a bond for him.” The usual affidavit was made by W. O. Denegre, who deposed that he was the attorney of A. Fulton, of the city of Cincinnati. The bond was signed “A. Fulton, by W. O. Denegre.”

It seems to be conceded in the appellants’ brief that an attorney at law, employed in any given case where attachment process is requisite, is authorized to make the affidavit and sign the attachment bond, so as to bind the creditor without a special procuration; and it was so held by the District Judge, who cited the case of Dwight & Co. v. Weir, 6 An., 706, in support of his ruling.

But the appellant maintains that it is only the attorney of the creditor, that is his attorney of record in the case, who has this power, and that Mr. Denegre had not the authority in this case, because he never appeared as counsel of record in •thfi.JiourJ below after suing out the attachment, but another attorney was substi-'■tuled-in,his-place. The affidavit of Mr. Denegre is conclusive of this point: he deposed that he' was the attorney of Fulton, who is the plaintiff; his authority has not beenf dqnfed under oath, or impeached by any evidence; on the other hand, the/petition filed the next day after the attachment, by another attorney for the plaintiff, i-ecognises the authority of Mr. Denegre, by stating that through his attorney he has made the requisite affidavit and given bond according to law, whereupon an attachment was issued and served, which he prays may be maintained! ’

The judgment is, therefore, affirmed with costs.


text:
    Cammack, Squires & West v. Gentry Floyd—Southern Bank of Kentucky, Intervenors—Turner, Wilson & Co., Garnishees.
    An attaching creditor can have no higher or better right to the property attached than his debtor, and, where Floyd, the drawer of a bill of exchange, executed a mortgage and pledge of property in Kentucky, in favor of and to secure his accommodation endorsers to the bill, and there delivered possession of the property to them, by whom it was shipped to New Orleans, with instructions to the consignees to realize from the sale the amount of the bill and appropriate the sum to its payment ; and the amount was realized by the sale, and with the consent of Floyd, information was given by the consignees of their intention to appropriate a sufficient amount of the proceeds of the sale to pay the bill, as instructed, and the Bank of Kentucky having discounted the bill, was held to be entitled to be paid in preference to an attaching creditor of Floyd.

    from the Fourth District Court of New Orleans. Reynolds, J.

      R. & 3. Ma/rr, and A. A. Stith, for plaintiffs and appellants.

      W. 3. Paxton¡ for the garnishees.

      Moise & W. M. Randolph, for interventora.
   Slidell, C. J.

The fund in dispute is a sum of $1300, in the hands of the garnishees, Turner, Wilson & Co. The plaintiffs, creditors of Floyd, claim it under an attachment and process of garnishment levied in March, 1853. The interven, ors claim it as holders of a hill of exchange accepted by Floyd, for the payment of which, they say the fund had received a destination placing it beyond Floyd’s control before the attachment. The fund was awarded to the intervenors by the court below, and the attaching creditor has appealed.

A brief statement of the circumstances under which the garnishees hold the fund, will show the unquestionable correctness of the decree below.

In the fall of 1852, Floyd obtained in Kentucky a loan from the Southern Bank of Kentucky, upon his acceptance of a hill endorsed for his accommodation by his friends Arnold and Jones; and to protect Jones for his endorsement executed there a mortgage in his favor upon certain property, among which were certain flat-boats and their cargoes of staves. The staves were intended for the New Orleans market, and hills of lading were signed in the name of Jones, as shipper, and Turner, Wilson & Co., as consignees, which were delivered to Jones, who transmitted them through his agent Alexander, to Turner, Wilson é Co., with instructions to realize from their sale the sum of $2500, appropriate it to the payment of the hill of exchange, and pay the balance, if any, to Floyd. Arnold, the co-endorser with Jones, and similarly interested in the application of the shipment, came to New Orleans with the flat-boats. Upon January, Turner, Wilson & Co., took possession under theiri through Arnold, whom they entrusted with the staves. The authorized Floyd, who had a residuary interest after the paymlj look for a purchaser. He made a contract of sale with one Jo® immediately notified in writing by Turner, Wilson & Co, that! must he paid to them,beyond which, and the expense of watching'! would make no claim. Fonbene accordingly paid the consignees¶&5?)0, whiohj they, with the approval of Arnold, the agent of Jones, and the assenti received upon the promise made to Arnold, and communicated on the same day by letter to Alexander, that they wouldhold, and appropriate it to the payment of the hill of exchange, then deposited for collection by the intervenors in a hank at New Orleans. All this took place before the plaintiffs took outtheir attachment; and is clearly shown by ihe answer of the garnishees.'and their witness. Jones has never revoked his instructions, and the bill of exchange which was protested at maturity, is unpaid in the hands of the intervenors. The garnishees desired to pay its amount, but, were arrested by the process of garnishment, and paid the the bank at maturity only $1100 on account, being the surplus over the attaching creditor’s claim.

The intervenors were unquestionably entitled to receive the fund. The property from which the fund arose, passed out of the possession and control of Floyd under contracts lawful in Kentucky, and conferring upon Jones a possession which our law also would respect and maintain. When the property arrived here, the intentions of the parties were carried out by the conversion of the goods into money, and the retention by the consignees of a sufficient portion of the price for the express purpose of meeting the bills, this being done by the orders of the shipper in whom the legal title was vested and with the assent of Floyd, who had only an equitable residuary interest in the goods. The proposition that this arrangement could be set at naught without the consent of Jones is idle. But Jones has never consented; his purpose that the fund should be appropriated for his protection to the payment of the bill, must in the absence of evidence, to the contrary, be considered unchanged; and the bank, the holder of the bill, signifies by its intervention, its desire to receive the fund thus appropriated for its payment by Jones. Floyd would not be listened to, if he opposed the appropriations to the unpaid bill, for he had lost control of the fund, and the attaching creditor who claims through him by process levied after the control had lawfully passed from him, has no better right to defeat its destination. See Hill v. Simpson, 8 An. 48; Oliver v. Lake, 3 An. 82; Armour v. Cockburn, 4 N. S., 669.

Judgment affirmed, costs of appeal to be paid by appellants.


author:
Ogden, J. Slidell C. J. Buchanan, J.,
      Lacy,
     Sfoffokd, J.

text:
    Josephine Michel, Executrix, &c., Appellant v. R. G. Beale, Attorney for Absent Heirs, et als., Appellees.
    The expressed will of a testator roay be restricted by reputing as not written impossible conditions and conditions contrary to the laws; but the will cannot be enlarged by giving to a legatee a higher title than the testator intended to give.
    A clause in a testament authorizing a le gatee to spend for her own private use all the balance of the testator’s estate, b®th real and personal, does not confer the right of disposing of the property by testament.
    Effect must be given to the will of the testator according to his intentions, so far as those intentions can be legally carried out.
    A testator has clearly a right to provide that the usufruct of the wife might be established for her greater benefit on the proceeds of the sale of his property, rather than on the property itself— but this usufruct must be one in the legal sense.
    Where the usufructuary under the will has a right to the usufruct of the property itself, or to require that it be sold and her usufruct established on its proceeds and prefers the latter, the sale should be made at public auction, to the highest bidder, and after public notices by advertisement.
    APPEAL from the Sixth Judicial District Court, parish of East Baton Rouge, Eobertson, J.

      Lacey & JDvfour, for plaintiff and appellant.

      Beale, attorney for absent heirs.
   Ogden, J.

The object of this suit on the part of the plaintiff was to have her rights under the will of her deceased husband, John P. Michel, established contradictorily with the attorney for the absent heirs, and with the legatees named in the will. Her husband died in February, 1854, leaving a largo estate real and personal, all of which belonged to the community of acquets and gains, which had existed between his wife and himself.

The petitioner, who is the executrix of her husband’s will, prays first to be recognised as the owner of one undivided half of all the property, as belonging ,to the community. To that she has clearly a right, and it has been acceded to her by the judgment of the Court below. She next prays to bo decreed to be the legatee of all the movables and personal property, bank stock, claims, rights and credits, and of all the silver ware, watches or jewelry found in the succession. The will contains the following clause: “I bequeath to my dear and beloved wife all the movable property, silver ware, watches or jewels, for her to dispose of them as she thinks fit, and all the balance of my real and pei'sonal estate, I bequeath them as follows: after my death and that of my beloved wife, in case she has not spent for her own private use, the whole of my estate, as I authorize her so to do, but. what will be left after her death, I desire that one half of what will be left be given to my heirs hereinafter mentioned in the manner in which I shall dictate, for each of them, and in the following words to-wit: The testator then proceeds to say that he bequeaths to certain nephews and neices, and to two of his god-children, certain proportions of his property, leaving, however, one eighth of his property, undisposed of. The judgment of the Court below has allowed the plaintiff’s claim to a particular legacy of all the movable property with the silver ware, watches and jewels. The defendants, who are the appellees, not having asked for any amendment of the judgment, it must remain undisturbed as to that claim. The plaintiff in the third and last place prays that she be decreed to have the legal and equitable right, power and authority to take possession, and that possession be given to her of all the real estate and slaves found in the succession of the deceased, to use and enjoy the same according- to her own free will and pleasure, without any liability to account to any person or persons whomsoever, to mortgage, lease, and encumber, to sell, bargain and dispose of said property, upon gratuitous or onerous conditions, and in any way, form or manner the petitioner may think proper.

This claim is set up by the plaintiff under the above clause in the will, and a clause preceding it, which is in the following words :

“ As I wish to give proof to my dear and beloved wife, Josephine Michel, of all my gratitude, friendship and love, which I have always had, and which I will always entertain for her, as long as I live, I leave and beg her to be my usufructuary during her life time, and to give her the enjoyment and usufruct of all I possess, in general, of which I shall not have disposed by these presents, or other property before my death, during all her life time, for her to onjoy the same peaceably, without any kind of trouble by any person whatever, hereby granting toiler as much power as I am able to give: and, whereas, it is almost impossible to cultivate the plantation after my death, I authorize her to sell it, AS WELL AS ALL OMIER PROPERTY AND SLAVES, ACCORDINS TO IIER OWN wish, and as she will see fit, without any let or hindrance, and without being compelled to furnish security.”

The Judge of the Court below decreed that the petitioner should bo recognized as the usufructuary of the whole of the balance of the testator’s real and personal estate, without being compelled to give security. The legatees named in the will were decreed to be the owners of seven-eighths of the testator’s estate, and the heirs at law to be entitled to the one-eighth not disposed of. No appeal having been taken on behalf of either the legatees named in the will or of the heirs at law, and no amendment of the judgment in favor of either having been asked in this Court, we have only to consider whether the plaintiff is entitled to a judgment more favorable to her pretensions than the one which has been rendered below. Her counsel contends that she is entitled to a judgment decreeing to her the ownership of all the estate of her husband, and that at all events she has a right to a decree authorizing her to sell the whole property at private or public sale, and on whatever terms she may think proper.

We may restrict the expressed will of the testator by reputing as not written impossible conditions and conditions contrary to the laws ; but wo are not at liberty to enlarge the will by giving to the legatee a higher title than the testator intended to give.

In this case, wo are unable to gather from the whole instrument, without departing from the proper signification of its terms and from its manifest spirit, that the testator intended to bequeath the immovablesto his wife in full ownership. (0. C. 1705.) There is nothing in the will from which it can bo inferred that the testator was willing that his wife should have the right of disposing of any part of his estate by gratuitous title except as to the objects specially bequeathed to her, and which was given to her to be disposed of as she might think fit. The right of spending for her private use is not a right of disposing of the property by testament. On pourrait dire peut-étre (says Toullier) que toutes les fois quol’acte contient la faculté de disposer suivant la formule “ pour on jouir et disposer commc de ses biens propres,” le fidueiaire a le pouvoir de tester ; mais cetto régle n’a rien do sur, car dans la redaction des actes, on no s’attache point assez scrupuleusement h la propriété des expressions. Toullier, liv. 3, tit. 2. chap. 1st, Donations et Téstameos. In the case of Beaulieu v. Ternoir, 5th An., 476, to which this case has been assimilated, the formula alone mentioned by Toullier, was used. The donee in that case had the full right of ownership conferred on her by the donation. The expressions used in the donation were as follows : “ Lui a par ces presentes fait donation entre-vifs et irrévocable, eo qui a óté acceptó par ladito Eulalio Ducloslange, á cc présente, asssistée» do son pore naturel ci-dossus dénommé, aussi comparant d’un demi terrain situé au faubourg do la Course, rue des Roligiouscs, ayant 30 pieds do face sur 120 pieds de profondour, faisant partie du terrain designé par le No. 8 et atlenant au terrain No. 7, dans l’ilet No. 10, lui appartenant au donateur pour -Tavoir acheté du sieur Philip Ducloslange, par acto passó dovant le notaire soussignó lo 15 avril dernier.

Pour et par lo donatairo jouir, fairo et disposer commc do chose lui apparte-nant on tonto propriété, dés maintenant et á toujours.

A cet effef, le donateur met et subroge la donataire dans tous les droits do propriété qu’il a et pout avoir sur le demi terrain ci-dessus, voulant qu’elle on soil, saisio et rovétue.

Cette donation est faite sous la condition oxpresse sanslaquello ces présentes n’auraient pas cu lieu, que si la donatairo vonait á dócédor sans laisscr de pos-tórité, ou sans avoir disposé d’aucune maniere dudit demi terrain, qu’alors Agatho Ducloslange, Mélito Ducloslange, Mathilde Ducloslange et Leonide Du-closlange, femmes de couleur et libres, deviendront, sans qu’il soit nécessaire do remplir aueuno formalité, propriétaires dudit demi terrain et de tout ce qui sera ronstruit dessus.”

The Court in that case very properly held that the condition annexed, that if the. donee died without posterity or without having disposed of the property in any manner, that the property should go to others indicated in the act, was not a charge to preserve the property for others — that the condition was a fldei commisKUM, which, although a nullity itself, did not carry with it the nullity of tho donation. In tho present case it is evident that tho testator did not design that his wife should have the disposition by will of his half of tho estate. He indicates himself the persons to whom, after her death, his property should go. Ho emancipates some of his slaves, but provides that the emancipation shall only take effect on the death of his wife. If, instead of declaring as he has done, that ho desired his wife to be the usufructuary of his half of tho estate, tho testator had given it to her in full property, so that she might have disposed of it by will, this legacy “ De eo quod superérit” in favor of other persons, would have been null, but this title on his death would have vested absolutely in his wife. Hnder the terms of the will and'the evident intention of tho testator to confer on his wife a title of usufruct and not one of ownership, the question as to the validity of the legacy to others, need not be enquired into, as it is unimportant except as between the legatees and the heirs at law, and the latter appear to have acquiesced in the judgment declaring the disposition valid. The attorney for the absent heirs, who pleaded the nullity of that clause in the will, as containing a disposition reprobated by law, has taken no appeal, and tho judgment of the Court below between tho legatees and the heirs at law is not, therefore, subject to revision.

It remains then to bo determined, what rights the plaintiff is entitled to as the usufructuary of the half of tho property belonging to her husband’s estate. The testator undoubtedly did not intend that his wife should be restricted to the usufruct of his property, in the legal sense of the term. Ho was ignorant of the legal meaning of the term usufruct, and designed that his • wife, without having the absolute ownership of his half of tho common property should nevertheless enjoy the right of spending for her own private use, whatever she wished. Usufruct is defined to be the right of enjoying a thing the property of which is vested in another. It was contemplated by the testator that the estate would bo converted into money. The onty usufruct in its legal sense which could have been given to the wife, after the estate was turned into money, was the imperfect or quasi usufruct, to the existence of which it is essential that the usufructuary should be under the obligation of returning to tho owner of the capital on which the usufruct is established, at the period • when tho usufruct should ccasc, the full amount of such capital. It is by this equivalent says Marcadé, it has been rendered possible, to establish tho legal usufruct on all kinds of property, even on those things which are consumed in the enjoyment. The capital he says is not to be confounded with tho objects which compose it, “ Oe fonds est un bien en partie matériel en partió moral sur lequel l’usufructier a soulement le droit do jouissance, ¿’exploitations fructus ; mais non pas le droit de disposition. Marcadé, 2d vol. p. 451, Tit. 3, Usufruit. In the imperfect usufruct the property of the thing subject to the usufruct is transferred to tho usufructuary in the sense that she may consume, sell or dispose of them as he thinks proper, subject, however, to tho charges imposed by law, of returning to the person who has the naked ownership, the equivalent of tho things thus consumed, sold or disposed of. We are bound to give effect to the will of the testator, according to his intentions, so far as these intentions can be legally carried out. It was his intention that his wife should have the authority to sell the property according to her own wish and as she might see fit, and without being- compelled to furnish security. So far as this intention does not conflict with the rights of those in whom by law the naked title to the property is vested, as the effect of the same instrument confers on the wife this authority, it may be lawfully exercised.

The testator had clearly a right to provide that the usufruct of the wife might be established for her greater benefit on the proceeds of the sale of the property, rather than on the property itself. The rights of those who are entitled to the naked ownership, must be in like manner transferred to the proceeds of the sale, subject to the wife’s usufruct during life. This usufruct must be one in the legal lense. The capital on which the usufruct is established, will be ascertained when the property is converted into money. Art. 55G of the Code, declares that “ Sums of mono}'-, the usufruct of which has been given, shall be put out at interest, on good security, with the consent of the owner, and if he refuse, by the authority of the Judge, and the interest of such sums shall belong to the usufructary. We arc of opinion that the plaintiff, under her husband’s will has a right to the usufruct of the property itself, if she prefers it. The judgment of the Court below has given her this right and has dispensed her with giving security by virtue of Article 552 of the Code which provides that the security may bo dispensed with in favor of the usufructuary by the Act by which the usufruct is established. If, however, the plaintiff prefers that the property should be sold, and her usufruct established on the proceeds of the sale, she has a right to require it, but it would not be consistent with the rights of the heirs and legatees in whom the property is vested, that the plaintiff should have the right of selling at private sale. The sale should be made at public auction to the highest bidder, and after public notices by advertisement.

It is therefore ordered and decreed that the judgment of the Court below be amended, and that the plaintiff, in addition to the right of usufruct allowed to her by the judgment, be decreed to have the right of causing the property subject to her usufruct to be sold, at public auction, on such terms as she may direct, after thirty, days advertisement of the sale, in a public newspaper in the parish where the property to be sold is situated, or in case there be no newspaper published in said parish, then in one published in the nearest adjoining parish, and it is further ordered that the judgment of the Court below, thus amended, be affirmed, the costs in both cases to be paid by the succession.

Slidell C. J.

The interpretation of this will is quite embarrassing. If the granting words had been a little broader, I would have been willing to concur in the conclusion that the testator intended to give his wife the ownership the real estate, and make a donation over of what should remain undisposed of at her death, as in the Ducloslango case. But the testator uses the word “mu. fruotuary,” dispenses with “security," (which is required in case of usufruct without a dispensation by the grantor,) and allows her to spend “ pour son usage particuler,” what she may think proper; but, as Mr. Justice Ogden suggests, does not seem to have intended she should have the right to give away by donation inter vinos or testament. When we group together the different clauses of the will, we find the language used not so broad and comprehensive as in the Ducloslange donations, as will be seen by comparing in full the deed in that case with the testament in this.

On the whole, I conclude that the decree proposed by Mr. Justice Ogden will carry out the intention of the (estator as far as it can be lawfully done; and that the testator did not intend to confer a full and complete ownership, which would hare involved a right to dispose even bj7 gratuitous title. This view seems also much strengthened by the difference of the language used with regard to the movables, jewels, &c., which, in the same will, he clearly gives her in absolute ownership.

It may be observed that there are no forced heirs in this case to complicate, perhaps, the question of the testator’s power; and I am not prepared to say that our law forbids a testator to give the legatee of the usufruct of his estate a right to convert the estate given into money, and take the usufruct of the proceeds. Let it be remarked that the tes'ator feared the management of a plantation might prove embarrassing to a female, and that the power to sell seems to have been dictated by that consideration.

Eor these reasons, after some hesitancy, I concur in Mr. Justice Ogden's conclusions.

Buchanan, J.,

dissenting. The object of this suit is to determine what sort of an estate the plaintiff has, under the will of her deceased husband, in the property left by him at his death. The petition coincides with the last will in declaring that everything possessed by the testator had been acquired during the marriage of himself and the plaintiff; and, consequently, the testator only professes to devise the one-half interest which by law vested in himself as partner in the community of acquets. The disposition which he makes of this half is best expressed in his own words. The first passage of the will which relates to this subject reads as follows: “Désirant téinoignerá ma chore et bien aimée épouse Josephine Michel toute ma gratitude, et lui donner des preuves de toute 1’estime et amitié que j’ai toujours en, et que j’aurai tant queje vivrai, pour elle, je la laisse et la prie d’etre usufruitiére avec pleine et entiére jouissance de tous mes bions en général, dont je n-’aurai point disposé par ces présentes ou autres avant ma mort; et pendant toute sa vie durante, cfc pour elle en jouir on paix sans qu’il lui soit donné aucun trouble quelconque par aucune personne; lui donnant autant de droit qu’il est en mon pouvoir dé lui donner. Et comme il est presque impossible do faire cnltiver l’habitation aprés ma mort, je l’autorise de la ven-dré, ainsi que toutes los autres propriétés, esclavos, et autres, suivant son désir et volonté, et qu’il se trouvera conv enable, sans qu’il lui soit donné aucun trouble, ni empéchement quelconque, ni sans étre obligée ni tenue de donner caution aucune, ayant toute ma confiance pour tout ce qu’elle ponrra faire.” If this were all that the will contained in reference to the point at issue, it could not be asserted that it contained anything more than an universal constitution of usufruct, (O. 0. 577,) with the privilege to the usufructuary of converting the objects of the usufruct into cash, in which case the right of usufruct would attach to the cash. But farther on, we find the testator making use of the following expressions : “ Je légue á ma chére et bien aimée épouse, tout le mobilier, l’argenterie, montres et bijoux pour elle faire et en disposer tout ce qu’elle dési-rera suivant son bon plaisir; etle restant de tous mes autres biens réels et per-sonnels, je les légue comme suit aprés ma mort et celle de ma bien aimée épouse, ou dans le cas oñ elle n’aurait point dépensé pour son usage particulier la to-talité, comme je lui en donne le droit de le faire si elle le désire ; mais ce qui lui r estera aprés sa mort jo désire que la moitié de tout ce qui lui restera, revienne a mes héretiers que je nommerai ci-aprés, et de la maniere que j’indiquerai pour chacun et quo voici,” &c. In this clause of the will, prolix and ungrammatical as it is, and in its very prolixity and repetition but the more strongly indicating the purpose of its author, wo find a tenure of property entirely inconsistent with the fundamental principle of an usufruct; for wherever there is an usufruct in one, there is a naked ownership in another; (O. C. 482, 525;) the union of the qualities of usufructuary and owner in tho same person extinguishing the usufruct, as a matter of course. (C. C. G14.) Now, in the clause under consideration, the testator makes a devise to his nephews and nieces, which shall only take effect at the death of his wife; and ho devises to them only such property as his wife shall not have spent. And he is so far from restricting her in spending the property, that he express^ authorizes his wife to spend the whole of his property if she think fit to do so.

Usufruct, according to the Louisiana Code, is of two kinds: perfect usufruct, which is of things which tho usufructuary can enjoy without changing their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied — as a house, a piece of land, slaves, furniture; and imperfect or quasi-usufruct, which is of things which would be useless to tho usufructuary if ho did not consume or expend them, or change the substance of them, as money, grain, liquors. Perfect usufruct does not transfer to the usufructuar}' the property of things subject to the usufruct; the usufructuary is bound to use them as a prudent administrator would do, to preserve them as much as possible, in order to restore them to tho owner as soon as the usufruct terminates. Imperfect usufruct, on tho contrary, trans fers to the usufructuary the property of the things subject to tho usufruct, so that he may consume, sell, or dispose of them as he thinks proper, subject to certain charges prescribed by law. 0. 0., Arts. 52G, 527, 528.

This distinction of perfect and imperfect usufruct is not found in the Code Napoleon. We can therefore derive no assistance on this subject from the French commentators. But it appears evident from tho definition above copied, that the imperfect'or quasi-usufruct of the law of Louisiana can only relate to these kind of tilings which cannot bo used beneficially except by consuming or alienating them; and can have no application to lands, houses, slaves, and all those objects of property which may bo used for the purpose of producing an income or ministering to our necessities, without tho alienation or destruction of their substance. An usufruct of a plantation, with power of alienation in the usufructuary, is therefore a tenure unknown to the law, which the will of Michel could not create, and which this court cannot sanction.

The right of alienation being inconsistent with usufruct of real estate, this clause of the will in which the power of alienation is found, to my mind, creates a higher estate than an usufruct, namely, an ownership. And this clause being tho last in order, supersedes the clause which creates an usufruct. See Article 1710 of the Civil Code. The clause last written must bo regarded as tho true expression of the testator’s will, and I find a striking analogy in its dispositions to those of a certain donation inter-vivos, which was tho subject of two decisions of the former Supreme Court. In tho case of Ducloslange v. Boss, 3d Annual, 432; and Beaulieu v. Ternoir, 5th Ann. 476. One Baptiste Beaulieu made a donation inter-vivos, of a lot of ground to Eulalie Ducloslange, on tho condition that, should the donee die without posterity, and without having disposed of said lot, the same should belong to the sisters of tho donee. Eulalie Ducloslange having died without issue, but having made a sale of the lot to one Boss shortly before her death, her sisters sued Ross for the lot, relying upon the condition expressed in the donation, and asserting the sale to have been obtained by duress and fraud. But the court held that the condition of the donation was a fidei commissum, and, as such, was null by Art. 1607 of the Godo, and conferred no right upon the residuary donees. But when the donor, Beaulieu, in a subsequent action, sought to recover possession of the lot from Ealalie Dualoslange’s vendee, on the ground of nullity of the donation, the court said that true it was the fidei commissum contained in the donation was a nullity, but that it did not follow that the donation was null. To have that effect, the act of donation must impose an obligation on the donee of possessing for, or returning to, another the thing which is the object of the donation. In other words, to import the nullity of the whole act, there must not only bo a fidei commissum, but a substitution. And, as in the donation by Beaulieu to Eulalie Ducloslange, there was no prohibited substitution, no obligation to preserve the thing donated for the benefit of another party, the donation was held to be valid. In like manner, Jean Pierre Michel, in his will constituting his wife his universal legatee, by words that import a full power to take possession of all his property real and personal, and to dispose of it in whole or in part, as she may think proper, has thought fit to name certain other persons as residuary legatees of all that at his wife’s death shall remain undisposed of by her. By this form of testamentary disposition, none of Michel's property is tied up in the hands of his wife and universal legatee. The case is not, therefore, within the purview of the second paragraph of Article 1607 of the Civil Code, which declares: “ Every disposition by which the donee, the heir, or legatee is charged to preserve for, or to return a thing to, a third person, is null, oven with regard to the donee, the heir, or the legatee.” The disposition is good as to the wife, the universal legatee, but bad as to the residuary or fidei commissary legatees.

The legal consequence seems to follow, that the widow of the testator is entitled to be sent into possession as owner of the property devised.

Lacy,

for a re-hearing:

We do not pretend that the will is entirely free from difficulty, snd we cannot say that no embarrassment is created, in arriving at the true construction of that remarkable instrument. But after weighing, and well weighing, all the circumstances connected with the making of the will, which point to the Madam as owner; being, moreover, utterly unable to reconcile a bequest of “cequ’illui restera aprés le morl.” with a recognition of the residuary legatees, as the owners of Michel’s lands and slaves now on hand: and having had our view strengthened and confirmed, by the cogent reasoning of Mr. Justice Buchanan, and the peculiarity of the opinion of the Chief Justice, we feel it our duty again to raise the point of ownership, for the consideration of your Honors, and for such final disposition, as the good judgment of the court may suggest. We are confident ourselves of the correctness of the opinion which we entertain; hut being satisfied, that wo can, in argument, add nothing to what has already been said relative to the'question of ownership, we are content to leave that point in the hands of the court, without further remark.

We may he wrong in supposing, from the opinion of the court, that an inference might be drawn, that Mrs. Michel, as an imperfect usufructuary, is compelled to furnish security: arguing however, upon the hypothesis, that such security is intimated by the court, we beg to maintain before your honors.

1st. That as a perfect usufructuary, she is not obliged to give security.

A perfect usufruct, is of things which the usufructuary can enjoy without changing their substance, though their substance may he diminished, or deteriorated, naturally, by time, or by the use to which they are applied; and in case of a perfect usufruct, Article 552, Civil Code, expressly provides, that security may be dispensed with.

Indeed, your honors, in this very suit, have not only held that Madame Michel, in case she enjoys the property as a perfect usufructuary, is relieved from giving bond, but, have gone so far, as to affirm the decree of the District Judge, which relieved the plaintiff from so doing.

2d. As an imperfect usufructuary, there is no greater obligation to give security, than in case of perfect use.

in making good this po-ition, we may, we think, successfully use the argument, that ihe greater includes the less; for it seems to us, that if Madame Michel is permitted to use and enjoy the property itself, without giving security ; she ought not, in case she allows her usufruct to attach upon the proceeds of that property, as the will and the opinion of your honors permit, he subjected to more onerous conditions than would he imposed upon her, as a perfect usufructuary. We can readily imagine, that if the deceased had left forced heirs, this court might, with the view of preserving to them their legitime, under Articles 1840-1 1845, Civil Code, compel an imperfect usufructuaiy to give such security as would secure the forthcoming of the property or monies; hut where there are no forced heirs, and consequently no provision of law, directly or indirectly, restricting the condition of an imperfect usufructuaiy, it is the duty of your honors, under the law, to place the former in the position of one, who in the use of the property itself, has been dispensed from giving security, viz: to granito him the imperfect use of the property, without any liability to turnish bond.

Your honors, in the opinion delivered by Justice Ogden, have intimated, and in the decree have left it to be inferred, that Madame Michel, in case of a sale of the land and slaves, and a contemplated usufruct of the proceeds, shall put the money out at interest, on good, security, with the consent of ihe residuary legatees, , Sc.: and in that view of the case, we respectfully and conscientiously urge upon the court, there is error.

Have your honors made the intimation complained of by us? Are we correct upon the point of fact? The following quotations, from the opinion of the court, enable us to answer those questions, most emphatically in the affirmative.

“ The rights of those who are entitled to the naked ownership, must he in like manner transferred to the proceeds of the sale, subject to the wife’s usu-fruct; the wife’s usufruct must be one in a legal sense. Article 556, Civil Code, declares, &c.”

That your honors, in the opinion complained of by the counsel for Madame Michel, have intimated, and under such intimation, have left it to be inferred from' the decree, that their client, in caso she should assume the position of an imperfect usufructuaiy, must put out the money at interest on good security, and with the consent of the residuary legatees, cannot be doubted; and we proceed to show the court that there is error in such opinions.

This is evident, because,

1st. Article 556 Civil Code, (under which your honors have made the intimation, that the sums of money, arising from a sale of the testator’s real estate and slaves, must be put out at interest, on good security, with the consent of the owner,) is not applicable to a case, in which the usufructuaiy has been dispensed from giving security.

Art. 556, provides, if the usufructuary does not give security, or a special mortgage, then, in case of a perfect, usufruct, "the immovables and the slaves, subject to the usufruct, shall be hired or leased out at public auction, and in case of an imperfect usufruct, the sums of money, the use of which has been given, shall be put out at interest, on good security, with the consent of the owner, and if he refuse, by the authority of the Judge. The language of this article to us, is clear and unambiguous, and contemplates obtaining the consent of theownerand security from the borrower, only in those cases in wiiich the usufructuaiy is bound by law to give the security or the special mortgage, contemplated by Articles 551 and 555, of the Civil Code; and has no applicability, where under Article 552, security has been dispensed with, in favor of the usufructuaiy, in tlie act by which the usufruct is established.

Let us, however, for the sake of argument suppose, that, under ordinary circumstances, Article 556 of the Code, may be applied to the case of an usufructuary, who has been dispensed with giving bond; the court, nevertheless, erred in intimating that Madame Michel, must., in case of becoming an imperfect usufructu-ary, obtain the consent of the residuary legatees, and require bond from the borrower, with stipulation of interest, &c., because, the testator has expressly relieved his surviving-widow from those onerous conditions; and there is no reason why the wishes of the deceased, should not, in that respect, he carried out.

The last will and testament, authorizes the Madame to sell the plantation slaves, and all other property, according to her own wish, without any let or hindrance. Words, full and comprehensive, and as clearly relieving the surviving widow from obtaining the consent of the residuary legatees, &c., as rhough the testator had said “ it is my wish that Mrs. Michel shall not be compelled to put out any sums of money, proceeding from the sale, at interest, or on security; nor shall she be required to obtain the consent of the owner, and if he refuse, the authority of the Judge.”

In the words of the will “ pour elle en jouir, en paix, sans qui’il lui soit donné aucun trouble quelconque, par aucune personne lui donnant autant de droit, qu’il est en mon pouvoir de lui dormer. Et comme íl est presque impossible de faire culti-ver l’habitation aprés ma mort je 1’autorise á la vendre, ainsi que toutes les mitres propriétés, osclaves et autres, suivant son désire et volonté et qu’elle le trouve con-venablc, sans qu’il lui soit donné aucun trouble ni empeehement quelconque.”

As to the intention of the testator, there is no room for doubt; and there being no forced heirs, and.no rights to be- cared for, acquired outside of the will, we know of no reason, why the wishes of the deceased, should not be carried out.

The will is the compass which must direct courts of justice in seeking the intentions of the testator, and that intention, when discovered, must direct the decision of the court. Oxly, et al., v. Clay, executor, 7 Rob.,428, Civil Code 1705 ; Withers v. Withers, 8 L. R. 495.

“It is our duty,” says the Supreme Court, “to ascertain the intention of the testator,” Clarke v. Preston, 2 An., p. 581.

Sfoffokd, J.

In refusing the application for a re-hearing in this case, we remark that the appellant’s counsel has drawn an erroneous inference from some expressions in the opinion of the majority of the court. We did not decide, that, if the plaintiff should avail herself of the right of selling the property for the pu-pose of establishing her usufruct upon the proceeds, she would be required to give security, or have the money put out at interest, on good security, with the consent of the residuary legatees.

A reference to the decretal part of the judgment, will show that nothing of that kind was deemed necessary by the court.

The application for a re-hearing is refused.