author: Iusi/ey, J.

text:
    Succession of Mrs. Elizabeth Clew.
    The appellant, whose duty it was to bring up all the evidence, cannot profit by his own wrong, to have .the judgment reversod to the prejudice of the other party. It was the duty of the appellant to suggest, at the proper time, a diminution of the record, in the defective transcript.
    APPEAL from the Second District Court Of New Orleans,

      Thomas, J. Durant & Eornor, for Broom, executor and appellant.

      J. Magna, contra.

    — The only question here presented is one of compensation or set-off under the following circumstances :
    On the 21st June, 1853, a judgment for $4,403 55 was rendered by the Second District Court of New Orleans in favor of G. L. Broom, the dative executor of the estate of the late Samuel Broom, against Elizabeth Clew, widow of said the late Samuel Broom, and said judgment was affirmed by the Supreme Court on the 13th June, 1855.
    ' On the 28th June, 1853, said Elizabeth Clew obtained in the same Court a judgment for $1,318 31 against the heirs of said the late Samuel Broom, which judgment was on appeal reduced to $1,258, and thus amended, affirmed by the Supreme Court on the 13th June, 1855.
    And it must be remarked that these two cross suits grew out of a certain compromise entered into between the parties (the heirs of Broom on one side and Elizabeth Clew on the other) in or about 1850.
    The appellee, executor of Elizabeth Clew, has filed in the Second District Court an account of his administration ; and in that account placed as creditor the estate of Samuel Broom for the amount of the judgment rendered against the deceased, Elizabeth Clew, in favor of said estate, say $4,403 55, less $1,258 ; the amount of the judgment obtained by said deceased against tbe heirs of said Samuel Broom, deducted by compensation, leaving a balance of $3,145 55, interest, etc.
    The executor of said Samuel Broom opposed the account on the ground that no compensation could be admitted. The District Court dismissed the opposition and homologated the account; and the opponent has appealed.
    Tho two cross debts were passed upon at about the same time in the Second District Court (the one on the 21st and the other on the 28th of Juno 1853), and definitively liquidated by the decision of the Supreme Court on the very same day, 13th June, 1855. From that day the compensation took place by operation of law, and the smaller sum was virtually deducted from the larger one. So that in fact, on that very day, the judgment of $4,403 55 was reduced to $3,145 55. O. C. 2203, 2204; 1st Hennen’sDig. new ed. p. 254, Nos. 5, 6, 7. Arbonneaux v. Letorrey, 6th Rob. 456; Loyd W. Low v. Thomas, 4 Rob. 183; Patiison v. Edmondston, 4 An. 157; Caldwell v. Davis, 2d N. S. 135; 6 Merlin, questions de droit, pp. 113, 119; 7 Toullier, Duvergier, p. 292; Bothier, Obligations, Nos. 630, 632, 635; 3 Larombiére, Obligations, p. 626.
    It was strenuously contended below that no compensation could take place, because the first judgment was rendered in favor of Gf. L. Broom, executor of the estate of Samuel Broom, and that the second one was rendered against Gr. L. Broom as heir, and as the agent of the other heirs of said Samuel Broom, each and every one of said heirs, for their virile share. But this is a distinction without a difference.
    It is obvious that the dative executor, as such, represents all the heirs and every one of them; and that each and every one of them is entitled to a certain share in the assets of the succession, and bound for the very same share of the debts thereof. C. C. 1214, 1369, 1376. Therefore, they had their virile share in the first judgment rendered in favor of the estate against Elizabeth Clew; and for the same reason they were bound for their virile share of the second judgment obtained against them by said Elizabeth Clew. They were creditors of Elizabeth Clew in the first judgment; and they were her debtors in the second one; ergo the two debts were compensated pro tanta by operation of law on the very day they were liquidated (13th June 1855), and the balance alone is due them; ergo the account is correct and the judgment a quo must be affirmed.
    Says Toullier, vol. 7, p. 292, No. 375 : “Si en qualité de tuteur, d’administrateur, préposé, agent, ou mandataire, Titius me demande ce que je dois aux personnes dont il exerce les droits, je ne pourrai lui opposer en compensation que ce qui m’est du par les personces au nom desquelles ilagit, et non ce qu’il me doit personnellement.”
    And Larombiere, Obligations, vol. 3, p. 626, No. 5, says: “Maisilya concours personnel de créance et de dette réciproques, et conséquemment lieu k compensation légale, . dans le cas ou un tiers me poursuivant au nom des personnes dont il est le tuteur, radministratsur, l’agent, etc., .je me trouve en memo temps créancier de ces mémes personnes pour les.•quelles il agit.”
   Iusi/ey, J.

In the final account oí administration of the aboye succes-

sion, rendered by the testamentary executor, on the 19th August, 1864, 'the claim of the succession of the late Samuel Broom, is thus inscribed :

•“ Succession of the late Samuel Broom by judgment of the Second District Court (No. 6,369) rendered 21st June, 1853, against the deceased, and affirmed by the Supreme Court, on the 13th June, 1855.. .$4,403 55

Less the amount of a judgment rendered by the same Court (No. 5,931) on the 28th June, 1853, in favor of deceased, and against the heirs of the said Samuel Broom, for the sum of $1,318 30, but reduced by the Supreme Court on the 13th June, 1855, to $1,258........................... 1,258 00 — $3,145 55

.Interest thereon at six per cent, per annum, from first January, 1850, until paid, say up to 30th September, 1864, fourteen years and three months.... 2,783 78

Cost of No. 6,369; Clerk $75 75; Sheriff $31 65;

Supreme Court $22 80, together................ 130 20

Defendant’s writs, No. 5,931; Clerk $45 43, Sheriff $14 20...........................,............ 59 63 70 57

$5,999 90

Opposition to the compensation claimed against the judgment in favor of the succession of Samuel Broom, was made by the testamentary executor of his last will, who claims the whole amount of the judgment in the suit $6,369 in favor of his predecessor, G. L. Broom.

The opposition was dismissed in the Court below, and the reasons assigned for the dismissal are thus stated by it. George L. Broom, as executor of Samuel Broom, recovered judgment for the sum of $4,403 50, and costs against the deceased. The deceased (Mrs. Elizabeth Clew) recovered judgment against George L. Broom, and all the heirs and legatees of Samuel Broom, in the sum of $1,318 31, reduced to $1,258. One suit is styled “ George L. Broom, Executor, v. Elizabeth Clew and Husband;” the other, “Elizabeth Broom, Wife of Clew, v. Geo. L. Broom, Agent.”

We are unable to perceive any material difference between any executor acting in such capacity or in the capacity of agent of all the heirs and legatees.

On the trial of the opposition (p. 47 Bee.) certain evidence was adduced, to wit : the record in the suit No. 6,369, Broom, Executor, v. Clew and Husband, and also the record of the suit No. 5,931, Mrs. Clew v. the Heirs of Broom, also the record in the Succession of Samuel Broom; and none of this testimony is extant upon the record of this suit, although the Clerk of the Court below certifies it to be complete.

In the ease of Harris v. Hays, 8 A. 433, the Court observed : “The appellant, whose duty it was to bring up all the evidence, cannot profit by his own wrong, to have the judgment reversed to the prejudice of the other party. Nal prendra avansage de son tort demesne. ” It was the duty of the appellant to suggest at the proper time a diminution of the record in the defective transcript. Gilloutel v. Marcelin, 7 A. 442; Levy v. Weber, 8 A. 439.

It is therefore ordered that the appeal be dismissed, at the costs of the’ appellant.


source: Caselaw Access Project

author: Labatjve, J.

license: Public Domain

text:
    S. B. Bevans & Co. v. John M. Farrell.
    The renunciation of warranty, made by the buyer, is not obligatory, where there has been fraud on the part of the seller.
    The seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and the repayment of the expenses, is answerable to the buyer in damages.
    A vendor is bound to good faith, and must state any defect he knows in the thing sold. The exception is when the article is susceptible of convenient examination, the purchaser is bound to make that examination, and abide by it.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. JDuranl <& Hornor, for plaintiff. Buchanan & Gilmore, for defendant - and appellant.
   Labatjve, J.

The present action was instituted by the plaintiffs to~ recover from the defendant the price of two hundred barrels of potatoes, which, at the time of the sale, was on board of the barque Gan Eden, lying at the port of New Orleans.

The potatoes were to be taken by the purchaser, rotten or sound, as the • case might be.

Assuming that the sale of the commodity was made with a renunciation of warranty, the question for consideration is whether that renunciation is obligatory on the buyer; if it is not, it is because there has been fraud on the part of the seller. (See Article 2526, La. Code.)

Article 2523 La. Code, declares “the seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and the repayment of the expenses, is answerable to the buyer in damages.”

It is not, however, necessary, to charge the seller with fraud, that his knowledge of the defect of the thing sold by him should be certain; it suffices that he had good reason to suppose that the vice existed, and he omits to communicate the suspicion of that fact to the purchaser.

This principle is clearly enunciated by Pothier in his Traité du Contest de Vente, Part. 2, Chap. 1, Art. 213, 2.

“ Le vendeur, quoiqu’il n’ait pas eu connaissance formelle du vice de la chose vendue, est, a cet égard, réputé comme s’il l’avait eue, lorsque,. ayant un légitime motif de soup£onner oe vice, il n’en a rien dit á l’acheteur, car cette réticence est nn dol.”

Now, applying this principle to the facts disclosed by the testimony in, this case, we cannot sustain the judgment rendered by the Court below, which was in favor of the plaintiffs.

Cephas Read, the master of the barque, examined as a witness, on the-trial of the case, says :

“ Mr. Bevans was introduced to the witness on the levee, opposite where the barque was lying, and asked him about the condition of his-potatoes. He told the witness that he had an offer of so much per barrel for all the potatoes that would be landed. The witness informed Bevansthat he did not expect to be allowed to land any of those potatoes, in consequence of their being rotten. Mr. Bevans did not go on board the-vessel at that time, and left immediately after this conversation. This witness then gives his reasons for telling Mr. Bevans that his potatoes were rotten (but which reason he did not communicate to Mr. Bevans), and this reason was the very strong and offensive smell of decayed vegetable matter, which proceeded from the cargo, when the hatches were opened.

He further says that the potatoes were found to be completely rotten,, and by order of the wharfinger were thrown into the river from the deck of the vessel, and that the wharfinger would not suffer them to be landed.

Mills S. Western, the first mate of the barque, fully corroborates the testimony of the master; and there is nothing in the cross-examination of either of these witnesses which, in any manner, militates against their corroborating statement in their examinations-in-chief.

There can be no doubt that the information derived by Bevans, from the master of the barque, must have caused him to suspect the existence-of the vice in the commodity sold by his firm to the defendant, and. honesty and fair dealing required that he should have communicated the-suspicion to the purchaser. By the suppression of this information, and. indeed by asserting that he wanted Farrell to make money out of the-potatoes, the seller took an unfair advantage over the other contracting-party; and the law deems every such attempt a fraud in transactions between man and man.

In the case of Szymanski v. Urquhart, 5. A. 491: “The general rule, says the Court, is that a vendor is bound to good faith, and must state any defect he knows .in the thing sold. The exception is when the article-, is susceptible of convenient examination, the purchaser is bound to make that examination, and abide by it.” But it is proved by the-two witnesses above named, that, at the time of the sale, the potatoes were in the lower hold of the vessel, and that the seller, himself, could'not see even one barrel of them. Their state of decay was-ascertained by the officers of the ship, from the strong and offensive-■odor, as of decayed vegetation proceeding from the part of the vessel where the potatoes were stowed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed.

It is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the defendant, John M. Farrell, and against the plaintiffs, S. B. Bevans & Co.; and it is further ordered that the plaintiffs pay the costs in both Courts.

HoweiiIi. J., recused.


text:
    Polhamius & Jackson v. The City of New Orleans.
    When an instrument in-writing, containing obligations which, the party wishes to enforce, has been lost or destroyed, by accident or force, evidence maybe given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable; and in this case, the Judge may, if required, order reasonable security to be given to indemnify the party against the appearance of the instrument, in case circumstances render it necessary.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Geo. S. Lacey, for plaintiffs. Thos. H. Hewes, for defendant and ■appellant.
   Labatjve, J.

This is an appeal from, a judgment rendered, against the •City of New Orleans, on several bonds executed by the City and held by the plaintiffs.

The evidence shows -that, while the plaintiffs were the owners of the bonds sued upon, they were lost or destroyed in their transmission from the Post Office of the city of New York, on a voyage of the American vessel called the Electric Spark, between New York city and the city of New Orleans.

The plaintiffs made due publication of the loss according to law, and after such publication of loss, demanded payment of said bonds from the City of New Orleans, and upon its declining to pay, this suit was instituted.

The evidence fully sustains the judgment rendered in this case.

The plaintiff complains of so much of the judgment that annexes as a condition precedent to the issuance of execution in plaintiffs’ favor, that they shall execute an indemnifying bond in favor of the City of New Orleans, holding the City harmless against a second payment of the •said bonds.

We think this objection of the appellee to the judgment not well founded in law; nor can we perceive, under C. C. Art. 2258, how the lower Court could have rendered any other judgment, and do complete .justice between the parties.

Judgment affirmed, with costs.


text:
    B. Collins v. His Creditors.
    — On a Rehearing.
    Answers by one co-defendant on propounded interrogatories cannot be taken as against tlie others. A party accused of fraud cannot be permitted to testify as a general witness, on the ground of interest. "Where a mortgage is given which, by its tenor, shows a difference in a counter-letter given at the same time, it is an act of prohibited and illegal simulation. A partial simulation involves the absolute nullity of an entire transaction, although portions of it be real.
    A mortgage may be given for a debt not yet in existence; or for a debt which might not be realized but in part; or even a sale might be made as security for money advanced, or to be advanced.
    APPEAL from the Sixth District Court of .New Orleans,

      Howell, J. Whitaker & Fellows, attorneys of syndic. Ranclall Hunt, of counsel. Frank Haynes, attorney of A. Egan & Co.; H. T. Fellows, attorney of John Corlis, appellants. Rudd <& Lambert, for R. Gardere.

      H. M Spofford, for Gollens & Wooldridge.

    — This rehearing was granted by this honorable Court upon the following petition, against a judgment delivered by Land, Judge, as the organ of a former Court, but which judgment never became final:
    “The undersigned, of counsel for Collens & Wooldridge, most respectfully asks a rehearing of the cause; for, that the decision is based upon the following positions: That the mortgage and the counter-letter, taken together, disclose a case of prohibited and illegal simulation, in that the contract was different from what the act of mortgage alone imported; that even a partial simulation involves the absolute nullity of an entire transaction, although portions of it are real; and that a contract, whose cause is untruly or imperfectly stated in the recorded instrument which embodies it, has a false cause, and is, therefore, radically null throughout, though it may have a genuine and lawful cause.”
    It is submitted that the opinion of Judge Land necessarily involves one or all of these propositions as its basis; and the object of this application is to show that they are all untenable propositions, unless several cases, not alluded to in the opinion, have been erroneously decided by this Court and its predecessors.
    “It clearly appears, from the counter-letter, that the mortgage is not what it purports on its face to be, nor what the parties intended it to be; that is to say, a security for a debt of $9,000 due to the mortgagees; for no such debt was really due to them. The mortgage was not, therefore, a real, but a simulated security, and, like all other simulated contracts which operate to the prejudice of creditors, is null and void.
    But $2,000 of the $9,000 have been proved- to be really due from the mortgagor to these mortgagees themselves, and the counter-letter (which is certainly evidence for them if it is against them) shows that this very indebtedness for professional fees was to be covered by the notes ; moreover, the counter-letter shows that it was in the contemplation of B. Collins to contract other debts immediately in prospect, ^nd such of the other notes as might be found necessary were to be “disposed of for his use,” and the rest of it, if any, restored to him, -which was done. He did not then know how much money he would need; as soon as he found out, the mortgage was reduced in proportion to the amount not needed. The Civil Code expressly recognizes a mortgage of this character; and, instead of declaring it a simulation and void because it does not have the support of an existing debt for the full amount of the notes, absolutely fixes the result we contend for as the legal result of just such a contract as Collens <fc Wooldridge made.
    “A mortgage may be given for an obligation which has not risen into existence, as when a man grants a mortgage by way of security for endorsements which another promises to make for him.” C. C. 3259. “But the right of mortgage in this case shall only be realized in so far as the promise shall be carried into effect by the person making it. The fulfillment of the promise, however,. stall impart to the mortgage a retrospective effect to the time of the contract.” C. O. 3260.
    . The promise of future endorsements is only mentioned by way of illustration of a principle. A promise to raise money, or to “dispose of” the notes for the benefit of the mortgagor, as in this case, is just as valid and binding, and gives a retroactive effect to this mortgage for $2,000 more (viz : for the fees paid by Collens & Wooldridge to Randall Hunt, and to A. P. Field), making $á,000, the entire amount that is claimed, and all that was allowed by the judgment appealed from. Article 3260 does not even require a reduction of the recorded mortgage to the real sum subsequently found due, but it is “realized” and subsists for whatever becomes due. It is impossible for such a contract to be treated as null and void ab initio, merely because the whole sum for which the mortgage was made was not due and owing at the date of the mortgage.
    But the opinion would seem to imply that the act of mortgage itself should expressly declare that it is to secure future advances or debts, under pain of nullity. The contrary has been positively decided in numerous cases. In Brandar v. Bo-wmar & Abercrombie, 16 L. 370, for instance, Bowmar executed a mortgage in favor of Abercrombie, for $10,135, evidenced by a promissory note, and nothing said in the act about security for endorsements. At the date of the act he really owed Abercrombie only $1,983 50. But it being shown aliunde that afterwards he became liable for a much larger sum, and that the mortgage was also intended to secure future accruing liabilities, the Supreme Court held it good against third persons injured thereby, up to the real amount which eventually became due.
    In Pichersgitt v. Brown, 7 An. 297, it was held, as the reporter’s synopsis of the case truly shows, that “mortgages, under the hypothecary system of Louisiana, may be given to secure debts having no legal existence at the date of the mortgage; that it is not essential, in such a mortgage, even with respect to third persons, that it should express on its face that it was given to secure future debts; it may be described as a security for existing debts, and yet used to protect those which, in the contemplation of the parties, were to be created at a future time.”
    On the faith of decisions like these, which, so far as the undersigned is aware, have never been contradicted before, the notaries of this city have long been in the habit of taking mortgages in their own favor, from owners of property who desire to raise money on it, with notes payable to the owner’s order or the notary’s order, when no debt whatever exists. The notaries or broker, acting for the owner, then place such notes where they can, among lenders of money who know all the circumstances, and return such of the notes as they cannot place advantageously, sometimes reducing the mortgage (as was done with caution and in good faith, in this case), and sometimes not reducing it at all, although many of the notes may have been destroyed or returned to the maker. Gan it be said, in such cases, that, there being no real debt due from the mortgagor to the notary, at that date, “ the mortgage was not, therefore, a real, but a simulated security; and, like all other simulated contracts which operate to the prejudice of creditors, is null and void ? ” How differently the Courts of France have treated this matter, as quoted with approbation, in Picker sgill v. Brovin, 7 An. p. 310. “ Considering that,
    in the consideration of contracts, the common intention of the parties must be sought for; that, from the circumstances of the ease, and the manner in which the parties executed their contract, the conviction was irresistible that, although Perrichon acknowledged himself to be a debtor purely and simply to Cortaz & Co., in a sum of 40,000 francs, which he promised to pay at an early day, yet the parties really understood that the obligation was to serve as a mortgage security, not only for what was then due, but for what might eventually be due in account current; that the manner in which the account current was kept was in accordance with this understanding; that such an agreement was not a just subject of complaint, in a legal aspect, because parties may adopt such forms as suit them to protect their agreements, even when such forms seem to conflict with them, provided their real intentions can be appreciated, and they do nothing that offends the laws, good morals and public order; and that, as regards third persons, they suffered no injury by such an agreement, because, persons dealing with Perrichon, after the contract of 1839, having notice of the registry of the notarial act, were thus informed of all they had an interest to know, to wit: that the real estate of Perrichon was affected by an incumbrance of 40,000 francs,” etc., etc.
    These cases show that it is erroneous to say, under the Napoleon and. Louisiana Codes, that, because the real contract is different, from what the recorded act by itself imports, therefore, there is a case of illicit simulation; or that a mortgage having in part a real consideration, is null and void for the whole, if the entire debt originally acknowledged be not due at the time, or even should never become due.
    It only remains to treat briefly of the third proposition, which would appear to be involved in the opinion under consideration, to wit: That a contract, whose canse is untruly or imperfectly stated in the recorded instrument which embodies it, has a false cause, and is, therefore, radically null, though it may really have, in part at least, a genuine and lawful cause.
    The cases, it is submitted, have not so interpreted Article 1887 of the-Code heretofore. Indeed the Code itself limits the application of Article 1887, and excludes it from being an authority in favor of the judgment under review, although it is the only authority cited in the opinion as-bearing against the pretensions of Oollens & Wooldridge. “ If the cause expressed in the consideration should be one that does not exist, yet, the contract cannot be invalidated, if the party can show a true and sufficient-consideration.” C. C. 1894, following Article 1887 in the same section. We have abundantly shown a true and sufficient consideration for all the-four notes which anybody is seeking- to enforce, and which the judgment appealed from allows, to wit: professional fees due mortgagees for their own services, and which are expressly alluded to in the counter-letter, which is evidence for us produced by our adversaries, to the extent of two of the notes for $1000 each; and a disposition of two more notes to reimburse the mortgagees for hiring him the valuable aid of Mr. Randall Hunt and Gol. A. P. Field to defend him under the charge of murder, for which he was in prison at the date of the mortgage. This was disposing of them for the use of B. Collins, as required by the counter-letter and by his own directions.
    No authority is needed to elucidate a legislative provision so plain as-Article 1894 of the Code, which, though referred to in my original brief, must have escaped the attention of the Oourt. But if any were needed, I should beg to call again to the attention of your Honors the recent case of Wolf v. Wolf, 12 An. 431, where this language was used : “Neither-does it follow, because parties have clothed their contract in one form instead of another, that it will not avail in either. There is no such penalty declared by the law-giver, and the Courts cannot supply it. * * As he may make an absolute donation of his property, saving the rights of parties injured, we see no reason to declare an act void because the vendor has contented himself with a false cause and a fictitious price, instead of inserting the true cause of the contract. ” 0.0.1894.
   Labatjve, J.

On the 6th March, 1858, Bartholomew Collins, the insolvent, covenanted a mortgage in favor of Collens & Wooldridge, for $9,000,. divided in nine notes, each for $1,000. On the same day Collens, of the firm of Collens & Wooldridge, executed a counter-letter of the following tenor: * ‘Be it remembered that Bartholomew Collins, having executed the mortgage before Robert T. Kerr, Esq., notary public, and delivered the notes described in the said act of mortgage, dated March 6th, 1858,1 hereby declare that said notes (with the exception of so much thereof as will meet the amount fairly due the firm of C. & W. for professional services) are held by me to be negotiated, or otherwise disposed of, for the use of said B. Oollins, and are to be so negotiated or disposed of agreeably to his orders, or to be restored to him at will, after deducting the sum due us on a fair settlement of account as aforesaid. New Orleans, 6th March, 1858. (Signed) T. Wharton Collens, for Collens & Wooldridge. ”

On the 22d April, 1858, Samuel L. Wooldridge, of the firm of Collens & Wooldridge, and acting for his firm, went before the said notary, Kerr, and producing four of the notes in question, had them cancelled, as well as the said mortgage, to the amount thereof, viz: $4,000. On the 3d July, 1858, Bartholomew Collins made a cessio bonorum, which was accepted by the Judge.

A direct action was brought by the syndic to have the said mortgage annulled, on the ground of fraud and simulation and an attempt to cover the property; a provisional account having been rendered on the 4th March, 1859, it was opposed by R. Gardere, as holder of two of said mortgage notes, and by said Samuel L. Wooldridge, as also holder of two of sajd mortgage notes, both oppositions being in amount $4,000. The direct action to annul the mortgage was consolidated with the opposition to the provisional account.

The District Court, after having heard the testimony, sustained the said oppositions of Samuel L. Wooldridge and R. Gardere, so far as that they be placed on the tableau as mortgage creditors in their rank, and paid as. such out of the proceeds of the property mortgaged.

From this judgment the creditors, A. Egan & Co. and John Corlis, appealed. «

This ease is on a rehearing granted upon a decision rendered by our immediate predecessors, declaring the mortgage in question to be null and void, and reversing the judgment appealed from. There are several bills of exception to be disposed of. On the trial of the case interrogatories-were propounded to B. Collins, the insolvent, who was made a party in the suit to annul the mortgage. The opponent excepted, so far as other parties were concerned, other than B. Collins himself, on the ground that the answers of one defendant could not be taken as against other co-defendants; the Court sustained the objections as to other parties. The Court decided correctly. The opponents offered J. B. Poindexter to show that the insolvent, in conversation with him, had said that he had fixed upon a certain amount as coming to Collens & Wooldridge, and his counsel, Field and Hunt. The syndic objected; but the Court admitted the testimony. We believe the Court erred, and we will disregard that testimony. The syndic offered A. Bonneval to prove that said Wooldridge had in his hands money collected for said Collins, more than sufficient to meet any advances he may have made to said Collins, and particularly a sum of $3,099, in the suit of B. Collins v. De Moujan, etc. The opponents objected to said testimony, on the ground that the amount of the judgment of Collins v. De Moujan, as received by said Wooldridge, was in controversy in another suit between Levy, syndic, and B. Oollins, et ais., etc. The Court properly sustained the objections. The said syndic also offered B. Collins, the insolvent, and one of the defendants in the suit, to annul the mortgage, as a general witness, to prove that no such contract was entered into by him with Collens & Wooldridge, as is set forth in their answer to the suit of Levy, syndic, v. B. Collins et als., etc. The opponents objected to said witness, on the grounds that he was accused of fraud with them ; that he had an interest in defeating the debt, etc. The Court sustained the objections and rejected the testimony. We believe the Court did not err. The said syndic also offered in evidence,an act of sale by Wooldridge to Kenny Mitchell, as showing with greater certainty, a matter testified to by Mitchell, as to the purchase of said property, etc. The opponents objected to the document, on the grounds that those matters were in controversy between the same parties, as evidenced by the petition filed herein, etc. The Court sustained the objections. We think the Court did not err.

This case involves but one main question on the merits, and that is .purely of law. The Court which tried the case below was satisfied that the mortgage was real, and valid in law, and proved, to the amount of $4,000, represented by four notes held by the opponents. We are of opinion that our learned brother did not err.

It is contended in this Court (and so our predecessors had decided in this case) that the mortgage and the counter-letter, taken together, disclose a case of prohibited and illegal simulation, in this, that the contract was different from what the act of the mortgage alone imparted; that even a partial simulation involves the absolute nullity of an entire transaction, although portions of it are real. This counter-letter was deposited in the hands of the notary, and it was produced and brought into Court by him on a subpena duces tecum, issued at the instance of the creditors opposing this mortgage. This counter-letter shows what was the intention of the parties, and it was carried out. On the 22d April, 1858, four of the notes were returned and cancelled, as well as the mortgage to that amount. It is fair to presume that the parties had had ■some settlement and understanding about that business; and, that the notes now brought against the insolvency, are held for value received. This was two months and a half before the failure of Collins.

A mortgage may be given for a debt not yet in existence, or for a debt which might not be realized but in part, or even a sale might be made as security for money advanced or to be advanced. C. C. Articles 3259, 3260, 1894. Wolf v. Wolf, 12 An. 529. We see nothing immoral or illegal in this transaction.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed; and that the appellants pay the costs of this appeal, each for one-half. '

Howell, J., recused.


author: Labauve, J.

text:
    T. D. Weaver v. T. Waterman.
    Any agreement of the debtor to buy the vote of a creditor by giving security for the payment of his debt, must be considered as fraudulent, and the creditor whose v ote is thus bought, cannot recover the amount of his debt against the surety furnished by his debtor, as the contract must be considered as a perversion of the course of justice, and a fraud upon the Court charged with the homologation of the deliberations of the creditors.
    APPEAL from the Third District Oourt of New Orleans,

      FeUoioes, J. Whitaker, Fellows & Mills, for plaintiff and appellant. G. Roselius and A. Philips, for defendant.
   Labauve, J.

This suit is brought on a promissory note for §1,314 40, dated 14th November, 1860, payable four years after date, with interest from maturity. .

The defendant made a special defence, and in substance alleged that the note sued upon was given without a legal consideration; that in October, 1860, the commercial firm of T. Waterman & Bro., of which he was a member, being embarrassed and unable to meet their liabilities in full, compounded with all the creditors thereof, whereby the said creditors agreed to receive in full payment seventy-five- per cent, on the dollar, payable by thirds, in one, two and three years, from November, 1860; that said plaintiff agreed to the compromise, and held notes to the amount of §5,230 50; that under the agreement, the sum coming to said plaintiff was §3,922 63, and the said firm gave its three several notes, each for §1,307 88, dated November, 1860; that although the said plaintiff had signed the said agreement and accepted the said notes in full discharge, yet, with a view of perpetrating a fraud and of obtaining an illegal preference, compelled said firm to give a fourth note, the one now sued-on, before he would sign said agreement and compromise. He prayed to be dismissed, with costs.

The District Court, after hearing- the evidence, gave judgment for defendant, and the plaintiff took this appeal.

The three notes executed pursuant to the compromise were produced in evidence by defendant, as well as the original notes. The plaintiff introduced the note sued on. ^

The following document was received in evidence:

New Orleans, 14 Nov. 1860. i

Note of §1,314 40 given to T. D. Weaver-, at four years, from 14 November, 1860. This note is given in consideration of T. D. Weaver signing T. Waterman & Bros.’compromise of seventy-five cents on the dollar, payable in one, two and three years; and it is understood that, if all parties do not sign the compromise, and he is compelled to go into Court and surrender and sue for respite, then the note of §1,314 40 is null and void.

(Signed)

T. D. Weaver.

The note sued upon is the one described and alluded to in the above document. We are of opinion that our learned brother below has made a proper application of the law to the ease, and that defendant has clearly-made out his defence. Slidell v. Pritchard, 5 R. 105; Morgan v. Nye, 14 A. 30.

Judgment affirmed, with costs.


author: Ilsley, J.

text:
    Levi Pierce v. The City of New Orleans.
    An injunction may compel a party to do as well as to restrain him from doing.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Durant <& Hornor, for plaintiff. J. J. Michel, for defendant and appellant.
   Ilsley, J.

A rule was taken by the plaintiff on the City of New Orleans, requiring it to show cause why it should not be enjoined and ordered to close up certain openings made by it in a wall held in common, adjacent to and in the rear of the plaintiff’s dwelling-house and yard.

To this rule the defendant filed an exception, on the ground that the proceeding resorted to by the plaintiff is not one of those cases in which a summary remedy is expressly provided for by law.

The rule was made absolute, and the defendant was ordered to close up the openings in the wall referred to in the petition, and to restore the said wall to its original condition of a blank wall, during the pendency of the suit, unon -plaintiff’s giving bond in the sum of seven hundred and fifty dollars, conditioned as the law requires.

There is a sufficient showing in the plaintiff’s petition to entitle him to the equitable interference of the Courts; but what we have to determine now is, whether pendente lite, and before a trial on the merits, an order should bo granted directing the performance of, as well as the restraining from an act.

The courts of chancery in England have set the question at rest, where it was presented on motion. In the case of Ryder v. Bentham, 1 Ves. 142, Lord Hardwick, upon a motion for an order to pull down certain blinds, observed that he never knew an order to pull down any thing, on motion. Lord Thurlow, in a subsequent case, upon a motion to restrain a party from digging a ditch, and to compel him to put it in the same state in which it was before, refused the latter part of the motion. 1 Ves. Jr. 140.

So, in a subsequent case, Lane v. Newedgate, 10 Ves. 192, Lord Elder refused an order specifically to repair the banks of a canal, stop-gates and other works.

But in McDonough v. Calloway, reported in 7 Rob. p. 442, the doctrine 'is recognized, that an injunction may compel parties to do certain acts, as well as to restrain them from acting. That it is as effective to enforce • a right as to prevent a wrong. It is true that, in the case just referred 'to, the nuisance complained of was rather of a public than a private nature; but from the whole tenor of the opinion pronounced in that ease by the Court, it is evident that such a case as the one at bar would come, under the rules of law, within the scope of the principles therein enunciated. See Story on Equity Jurisprudence.

It would, we think, be difficult to suppose a case in which the equitable interference of a Court might be invoked with greater propriety than in this, in which the evil complained of, a nuisance affecting indefinitely the privacy of the plaintiff’s family residence, may, in its immediate consequences, be so serious, as to be considered irreparable. 7 Bob. 442; ■9 Mar. 519; 2 Bob. 342.

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

Howell, J., recused.


text:
    Peter St. Armand v. Joseph Alexander.
    A payment made by a person without interest gives him no subrogation, and be is not entitled to an action thereupon.
    He who contends that he is exonerated, must prove the payment, or the fact which has produced the extinction of the obligation.
    APPEAL from the Third District Court.of New Orleans,

      Fellowes, J. Whiialcen•, Fellows & Mills, for plaintiff. G. Boselius <& A. Philips, for defendant and appellant.
   Ilsley, J.

This is a suit viü executive or the recovery of the amount of two promissory notes, subscribed by the defendant, both dated the 5th February, 1861, each note for the sum of two thousand and twenty-five dollars, with interest, at eight per cent., payable to the order of, and endorsed by, the maker, in two and three years, respectively, after their ■date, and identified with a notarial act of sale, by which the property •described in the act was mortgaged to the vendor, “the city of New ■Orleans, or any last bearer of the said notes.” All proceedings under the ■order of seizure and sale were arrested by an injunction, sued out by the defendant, who averred in his petition that the said notes had been paid ■and the debt evidenced by the notes, consequently, extinguished.

Judgment was rendered in the Court below in favor of the defendant, perpetuating the injunction, and from the said judgment the plaintiff’ has appealed.

There is but one fact to be ascertained, in order to determine whether there is error in the judgment of the lower Court, and that is, whether these notes, with their accessories,, were transferred or assigned by the city authorities to the plaintiff, or whether the plaintiff actually paid and discharged the obligation in any legal manner.

In the first hypothesis, no legal ground would have existed for the injunction, whilst, in the second, no legal action for the recovery of the amount of the notes would have lain, as it would not have been a payment with abrogation, the payment having been made by a person without interest.

By the exhibition by the plaintiff of the notes, the onus of proof to show they were paid, lies with the defendant, the maker of them. Article 2229, of the Louisiana Code, reads thus: “He who contends that he is exonerated, must prove the payment, or the fact which has produced the extinction of the obligationand this task the defendant has undertaken ; and, in support of it, relies on the testimony of two witnesses, and certain entries in the books of the city corporation.

The first witness examined was Francis Mooney, an employee of the city. He says that he does not know whether tho city discounted or sold the notes or not; but, that the city was paid in full for them. The witness refers to certain entries made in the books, viz : Bills Receivable, Joseph Alexander, 5th January, 1863, $2,025; and the same, 5th January, 1864, $2,025, paid.

He, the witness, made those entries from Mr. Giffen’s report to him. Mr. Giffen was the treasurer at the time. Another entry on Interest Account stands: One year and eighty-seven days, Alexander’s notes, $301 75, being interest paid on those notes up to the 23d April, 1862. This is the usual form of entries made for the payment of notes and interest. The entry would be the same if the notes were paid after maturity, no matter from whom the city received the money.

The city received the full amount, principal and interest, 'for the said notes on that day, and that is what I mean by being paid.

John M. Demarest, the next witness, who was the city assistant treasurer, says, “that he does not remember who received the money for these notes; but, for the Fink and McDonough funds, it was generally Mr. Giffen who received them. That Mr. Giffen has been absent, he thinks, in Macon, Georgia, for nearly eighteen months.” He says, further, that, “when the city treasurer discounted notes in consequence of the action of the finance committee, he would endorse on the notes Adam Giffen, Treasurer, without recourse; that the endorsements on these notes are not in the way that the witness has seen him do it.” etc.

The two notes sued on are both endorsed “Adam Giffen, Treasurer McDonough school fund; Treasurer Fink fund.”

There is nothing in the testimony of Mooney, nor in the books, to show satisfactorily whether the city received the money paid by the plaintiff for the notes as a transfer to them, or in full satisfaction and payment of them; nor to show that any payment whatever was made “in the name and for the discharge of the defendant.”

The receipt of the money by the city, no matter how or under what circumstances, would have been a payment of the notes, as Mooney seems to have apprehended that term.

The departure, in relation to the endorsement of Mr. Giffen on these notes, from the mode usually adopted by him of endorsing city paper, “without recourse,” raises no presumption that these notes were not assigned or transferred to the plaintiff. Indeed, we think that, had Mr. Giffen supposed that these notes, not yet due, were paid, he would have taken the precaution to erase his official endorsements on them, in order to protect the city from eventual liability, should they pass into the hands of a bona fide holder. This presumption, we think, outweighs the other presumption to which the absence of the words “without recourse” might give rise.

The city was offering to the community generally, for sale or discount, certain promissory notes, secured by mortgage, two of which are in the possession of plaintiff, and for which he gave their full value, principal and interest, up to the time when they passed into his hands. It was an investment at the current interest at eight per cent., well secured by mortgage, and by the liability of the city, as endorser.

This is an inference from the facts adduced in this case, more rational than that the plaintiff should, as a mere negotiorum gestor, pay the debt of a stranger; and, instead of obtaining, as security for his outlay, the mortgage note of the debtor, be satisfied with his recourse against him, personally.

We cannot adopt this latter hypothesis.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by the said Court:

It is further ordered, adjudged and decreed, that the injunction in this case, sued out by the defendant, Joseph Alexander, be and the same is hereby dismissed, at the costs of the defendant; and, it is further ordered, that the order of seizure and sale obtained by the plaintiff, Peter St. Armand, be proceeded with according to law; and that all the costs, incurred in the Court below, and in this case, be paid by the •defendant and appellant.


author: Tdsiey, J.

text:
    A. W. Walker v. J. S. Cucullu.
    A party purchasing property of various kinds in. lloclc, should make due proof of that portion which-proved to be deficient, by reason of redhibitory vices, and its relative value.
    APPEAL from the District Court of the Parish of St. Bernard,

      White, J; Eunton <® MiUer, G. Boselius, P. SouU, L. Gharret, P. E. Bonford,. and A. Beatty, for defendant.

      A. W. Walker and L. Madison Day, for plaintiff and appellant.

    — This, suit grows out of the purchase of a plantation and slaves by plaintiff from. defendant, on the 27th day of September, 1857, for the price and sum of $135,000.
    The plaintiff brought this action of quanti minoris to be allowed a reduction and diminution on the purchase price of certain of the slaves, on the grounds that they were afflicted at the time of sale with certain redhibitory vices and maladies, and were of greater ages than represented. in the act of sale.
    The defendant, besides special defences denying plaintiff’s right of recovery, pleaded the prescription of one year.
    The first question then for consideration is this plea of prescription, for if well founded it would render any further consideration of the case unnecessary.
    It is true, the present suit was not commenced until the 11th day of March, 1859. But it is also true, that a similar suit, and for the same causes of action, was instituted in the Fifth District Court of New Orleans on the 2d March, 1858, and that a final judgment (of non-suit in part) was rendered therein on the 10th day of January, 1859.
    Such being the case, it is very clear that the plea of prescription must be overruled. For the suit in the Fifth District Court operated as a suspension of prescription during the pendency of the same, and.the present action was brought within the proper time after the termination of the first suit, for the same cause of action. 10 An. R. 396; 7 An-523; 8 An. 469; 10 An. 327; 12 An. 627; 14 An. 692.
    The next matter for consideration is the bill of exceptions taken by. plaintiff to the admission by the Court of certain testimony, and which was introduced by the defendant for the purpose of proving the manner in which plaintiff treated said slaves after he had purchased the same. That the bill of exceptions was well taken there can be no doubt.
    The action was brought for a diminution of price on the grounds of certain redhibitory vices and defects existing at the time of sale, and also because the ages of certain of the said slaves were much greater than represented in the act of sale.
    The true and only issues in the case then were, whether or not these ■ redhibitory vices and defects existed at the time of sale, and whether or not any of the slaves were of greater ages than as specified in the act of sale. It follows then that any and aE evidence outside of these issues, was irrelevant, and should have been excluded by the lower Court. Thfe biE of exceptions is therefore weE taken.
    And, besides, we may remark that the evidence clearly shows that t-k' charges of improper treatment of the slaves is whoEy unfounded, and were only started after the institution of the first suit for a diminution of price.
    The very witness for defendant, by whom it was sought to prove the aEeged improper treatment, states on his cross-examination, that plaintiff, after the purchase of said plantation had placed other slaves on the same, and that these slaves were well clad and fat. It is not Ekely then that any of plaintiffs other slaves on the same place, were treated in any other or a different manner. There could be no motive so to do; but on the contrary, his own interest would prompt him to treat aE alike.
    Having .disposed of these preEminary questions, we pass to the consideration of the case on its merits.
    The learned Judge of the Fourth District Court disallowed that part of the claim for a diminution of price on account of the ages of a part of the slaves being of greater ages than as specified in the act of sale, on the ground, solely, as stated in his opinion, that “it was in evidence that he, plaintiff, examined the slaves; had a good opportunity to judge foa? himself,” etc.
    But in this respect, that learned and eminent Judge was mistaken, and that mistake no doubt was superinduced by the testimony of a witness (and to the admissibility of which the biE of exceptions was taken), who speaks of and expressly refers to an examination of the slaves by plaintiff when the plantation and slaves were actually delivered to him on the 7th of October, about ten days after the act of sale, which was passed on the 28th of September.
    This witness says, “ that he was not present when CucuEu closed his bargain with "Walker, but was present when CucuEu delivered the plantation to Walker; witness says that Walker examined the gang of slaves attached to the said plantation, when CucuEu made the delivery of said plantation,” etc.
    Witness says that previous to the purchase of the plantation and slaves of CucuEu, he did not see Mr. Walker on the plantation. .This same witness says : “The only time he saw an examination of the said slaves by Walker, was on the 7th of October last,” which we have shown, and the act of sale shows, was nine or ten days after the passage of the act of sale and after the payment of the money and the deEvery of the notes fox the residue of the purchase price.
    Besides, there is no evidence whatever in the record to show that plaintiff ever saw the slaves at any other time than at the time they were deEvered to him.
    Such being the facts, it is very clear the lower Court shoxdd not have rejected the claim of plaintiff for the reason assigned in his opinion. For the examination (if any) was some ten days after the act of sale was. passed, the money paid, and the notes delivered.
    Surely, an examination after all these facts had transpired, is not to be allowed the same force and effect as an examination made at or before the time of the passage of the act of sale !
    All that can be said, then, is, that the plaintiff bought without seeing' the slaves. Besides, had he actually seen and examined them before, or at the time of the sale, the evidence shows that when slaves pass the age of thirty (and the slaves complained of were over that age, and so specified in the act of sale), they look much'younger than they really are, and that their ages cannot, by simple inspection, be told with any degree of certainty; the variation or difference being from five to fifteen years.
    Such being the fact, even had we made an actual examination of the slaves at or before the time of sale, we would not thereby be concluded from relief, as the evidence of witnesses who resided in the neighborhood, and had long known the slaves, shows the great disparity between the actual ages and that stated in the act of sale, and, also, as will hereinafter be shown, the great disparity in price on account of that difference.
    For, even where a party has full opportunity to examine and ascertain the truth, he may and had the right to rely without examination on the representations and statements of another made to him, about any matter of interest to him, and if the representation proves false, the party so misrepresenting (whether he knows it to be true or not, 1 Story’s R. 57; 1 Story’s Eq. (j193; 13 Pet. R. 26, 36), is bound to make his representation good.
    In the case of Boyce’s Executors v. Grundy, 3 Pet. R. 218, the Supreme Court of the United States says : “ It is said that it ought to have put him on inquiry; but he was in possession of Mr. Boyce’s positive assurance to the contrary, and had a right to rely on that assurance without inquiry.”
    So, in this case, the plaintiff being in possession of defendant’s statements in the act of sale as to the age of the negroes, had a right to rely on that statement without inquiring.
    For, as is well said by the Supreme Court of Illinois : “If the complainant was too confiding, it is not for the party who has betrayed that confidence to reproach him with, or take advantage of it.” 2 Gilman’s R. 388.
    “No man,” says Lord Cranworth in delivering the opinion of the Lord Justices, (36 Eng. Ch. R. 267, in note) “can complain that another has too implicitly relied on the truth of what he has himself stated. This principle was fully recognized in the case of Dobell v. Stevens, 3. B. & C., 625, referred to by my learned brother in the course of the argument. ”
    “And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party.” 1st Eq. $193.
    The Supreme Court of the United States, too, in the case of Richards v. 13 Pet. 36, holds this strong and comprehensive language :
    “ Whether the party thus misrepresenting a fact knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true, is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a fact by mistake, it is equally conclusive ; for it operates as a surprise and imposition on the other party.”
   Tdsiey, J.

On the 28th September, 1857, plaintiff purchased from defendant a plantation in the Parish of St. Bernard, with about fifty-seven slaves, all the stock, farming implements, etc., attached to it, for the sum of $135,000, payable $25,000 cash, and the balance in notes maturing at different dates up to the 10th December, 1863. On the 2d March, 1858, plaintiff instituted suit against his vendor, in the Fifth District Court of New Orleans, claiming a deduction of $16,000 on'the price of the slaves, on account of redhibitory vices and diseases existing in same at the date of sale, and others being of greater ages than represented; in which suit he recovered $2,300, anda judgment of nonsuit was given on the remainder of his demand.

On the 11th March, 1859, the present suit was commenced in the Fourth District Court of New Orleans, claiming $11,000, for the same causes of action, and the District Judge allowed plaintiff a further sum of $2,000, and he being dissatisfied therewith, appealed.

It appears that some of the slaves named in the petition, were afflicted at the date of sale with disease, and others were something older than represented in the act of sale; but the evidence does not enable us to make an accurate estimate of the real depreciation, if any, as we are not informed of the prices for which they were sold. We think plaintiff should have shown at least their relative value, compared with the balance of the property and slaves sold in block with them Non constat that they were not estimated in the sale at the prices at which the witnesses, in this case, appraised them.

We do not know the data on which the District Judge made his estimate, and we would have to resort to speculation to make any change in the judgment, of which defendant does not complain.

Judgment affirmed, with costs of appeal.


text:
    George W. Watterston v. Wm. T. Bennett et als.
    The Congress of the United States, by the Act passed 29th August, 1842, declared all the entries of lands made in the Greensburg Land District to be null, on account of the errors and imperfections' of the public surveys, or of conflicting claims, and authorized the return of the purchase money, on returning the certificates, and ordered a re-survey of the District; and that, when the re-survey should be confirmed, the public lands (unreserved) therein specified shall be subject to the laws for the disposal of the public lands, with this proviso : Provided, that purchasers aforesaid may retain their certificates of purchase, and the surveys of said tracts shall be corrected; and when said surveys are corrected, may receive their patents from the United States for the lands so purchased by them.
    Where no attention has been called to the bills of exception filed, they will be considered as waived,, when the case comes before this Court.
    APPEAL from the District Court of the Parish of Livingston, Martin, J.
   Labauve, J.

This is a petitory action, in which plaintiff claims of the defendant a tract of land described as lots numbers 5 and 6, of section No. 3, in township No. 5 south, range 7 east, containing 269 50-100 acres, less 50 acres taken from the south-east corner of said tract. He also claims an additional quantity of 22 12-100 acres, being an excess lately entered and purchased by him. He also asks for a partition, and that 211 62-100 acres be assigned to him, and 50 acres to said Bennett.

W. T. Bennett answered by a general denial. He further said that he was in possession and owner of a tract of land, on which he resided, in the Parish of Livingston, containing 299 5-100 acres, more or less; but it is not the same claimed by plaintiff, which tract of land he holds by titles from and under Duncan N. Hennen, Esq., who is bound to guarranty and defend him in the titles, and pay him for the loss; he calls his vendor Hennen in warranty, and, in case of eviction, claims $3,000 damages ; avers that he has made valuable improvements to the value of $2,000, of the land.

Duncan N. Hennen, to the call in warranty, answered by a general denial of the allegations contained in plaintiff’s petition. He admitted that he had sold the land to the defendant for $362 55, and that defendant’s title thereto is good and valid in law. He further answered, by an amendment, that the lands in Bennett’s possession are not the same as described in plaintiff’s petition; and if it be, in whole or in part, that there is an outstanding title in a third person, to wit: in the United States, which title is superior to that of plaintiff, and which he pleads specially.

The plaintiff, George W. Watterston, in an amended petition allowed by the Court, stated that the lands purchased by E. W. Lea, in June, about 27th, 1836, were described as lot No. 2 of section No. 2, and lots No. 5 and 6 of section No. 3, in township No. 5, south of range No. 7 east; and that, by. another survey made by the Government, the said lands are now designated as the south-west fractional, west of Tangipaho river, of section No. 2, and the fractional south half of section No. 3, in said township No. 5, north of range 7 east, for which a patent has issued; but, that it is the same land under different designation.

Pierre A. Hebrard intervened in this suit, alleging that the New Orleans and Nashville Railroad Company, about the 17th January, 1837, caused to be laid out a town, called by the name of Uncle Sam, on the following described property, to wit: Lot No. 2 of section No. 2, and lots No. 5 and 6 of section No. 3, in township No. 5 of south of range 7 east, in the Greensburg District, which said lands were divided into squares, intersected by streets, and having therein public squares, parks, cemeteries and other public places, as common property for the use of all persons, and which public places were, by a plan, dedicated to the public use forever. He further avers that, at the sale of said property, he purchased the square No. 213, situated between Hoffman and Bredlove avenues, more fully described in the annexed deed of sale; and that said G. W. Wattersto'n, plaintiff in said case, is claiming possession of said property as owner thereof, to the prejudice of petitioner and of the public. He prays to intervene, and that plaintiff’s petition be dismissed.

Also, intervened Mrs. Catherine A. Lea, executrix of Franklin W. Lea, alleging, in substance, that, in her said capacity, she is holder of certificate marked A, signed by John Killian, Register of the Land Office at St. Helena, now Greensburg, Louisiana, dated about 12th July, 1836, and numbered 709, whereby it appears that, on the 27th June, 1836, Franklin W. Lea deposited $362 83, with a view to purchase the following described lands, to wit: lot No. 2 of section 2, and lots 5 and 6 of section 3, in township 5 south range 7 east, in the Greensburg, of St. Helena aforesaid ; that in consequence of a want of authority on the part of the Land Office at Greensburg, and other irregularities and informalities, the-United States refused to issue patents for said lands, but authorized the-holders of certificates, of which, as above stated, petitioner was and is owner, to demand and receive the money originally deposited; that after-wards, by law, the United States authorized the re-survey of said lands, and authorized the holders of said certificates, if they thought proper to do so, to hold on to said certificates, and to demand for them the lands which, upon said survey, might correspond in description with the lands originally applied for; that, in pursuance of these laws, she desired to receive back the money, and that, pending the proceeding, George W. Watterston claimed to be the assignee of F. W. Lea, and as such, that he had the right to elect to receive the corresponding lands in designation under the re-survey, and to make the entry for the excess upon such resurvey; that said Watterston has no right, as assignee of Lea, to make-such entry, nor has he any right to demand a patent; that, if a patent has issued, it was unauthorized by law, and ought to be delivered up and can-celled. She prays to intervene, and to be -decreed the owner of said certificate, and that, if any patent be produced, it be delivered up to the Clerk of this Court, to be cancelled, as issued without authority of law.

Upon these pleadings the parties went into trial; verdict and judgment, were rendered against the plaintiff, and he took this appeal.

Tlie evidence shows:

That Franklin W. Lea, by certificate No. 709, issued at the Land Office, St. Helena, by John Killian, Register, dated July 12th, 1836, purchased •of said Register lot No. 2 of section No. 2, and lots 5 and 6 of section No. 3 of township No. 5, south of range 7 east, containing 290 31-100 acres, .at the rate of one dollar and twenty-five cents per acre.

That, by act of sale, passed on the second day of September, 1836, said Franklin W. Lea sold, with full warranty, to the New Orleans and Nashville Rail Road Company, the following described tracts of land:

1. The south half of a certain section of land situated in the Parish of 'St. Helena, on the west bank of the Tangipaho River, bounded on the north by lands until lately owned by Machael Flein, on the south by lands lately owned by Franklin W. Lea, and on the east of said river 'Tangipaho, known as section No. 43, and confirmed to Reuben Bearers, ■containing 637 47-100 acres, which said half section is to be taken and laid off from the south or lower side of said section, and to contain :318 50-100 acres more or less.

2. Lots Nos. 1, 2, 3, of section No. 34, township No. 4, south of range 7 •east; and lots Nos. 5 and 6 of section No. 3, township No. 5 south, range 7 east, according to the maps of the Surveyor General, and deposited in the Land Office in the Parish of St. Helena.

That the said New Orleans and Nashville Rail Road Company, some time in January, 1837, laid out a town named Uncle Sam, and sold lots and squares to divers persons; in these acts of sale they described the town as follows: The said town of Uncle Sam, whereof the property herein conveyed forms part; is made up and composed of several tracts or parcels of land which the said New Orleans and Nashville Rail Road ■Company acquired by purchase, in part from Franklin W. Lea, by act of •sale passed before Lyman Briggs, Parish Judge, on the 2d September, 1836, and in part from George Richardson; said town lying and being partly in the Parish of St. Helena, and partly in the Parish of Livingston, in this State.

That on the 27th January, 1837, the said company sold, by public act, to Pierre A. Hébrard, intervenor, the square of ground designated on the plan of said town by No. 243, containing twelve lots.

The Congress of the United States, by the Act passed 29th August, 1842, declared all the entries of lands made in the Greensburg Land District, to be mill, on account of the errors and imperfections of the public surveys, or to conflicting claims, and authorized the return of the purchase money on returning the certificates, and ordered a re-survey of the district, and that, when the re-survey should be confirmed, the public lands (unreserved) therein specified shall, be subject to the laws for the disposal of the public lands, with this proviso: “Provided that purchasers aforesaid may retain their certificates of purchase, and the surveys of said tracts shall be corrected, and when said surveys are corrected, may receive tlieir patents from the United States for the lands so purchased by them.”

That the re-survey contemplated by this law was made, and was duly-approved on the 5th August, 1845.

That the said plaintiff purchased the lots Nos. 5 and 6, described in his petition, on the 5th May, 1855, at Sheriff’s sale made to satisfy a judgment rendered in the suit of Hugh M. Dowlin v. The New Orleans and Nashville Rail Road Company, in the Fifth District Court of New Orleans.

That a patent issued, on the 2d April, 1858, comprising said lands, to Franklin W. Lea and to his heirs, under the following description: “For thr_ e certain tracts of land originally designated as lot No. 2 of section 2, and lots Nos. 5 and 6 of section 3, in township 5 south, of range 7 east;, but which lands, by the re-survey thereof, authorized by the Act of 29th August, 1842, appear, by the plafof re-survey, approved 5th August, 1845,, as the south-west fractional lying west of Tangipaho Biver, of section 2; and the south fractional half of section 3, in township 5, south of range 7 east, containing 312 43-100 acres.”

That the defendant, Terrell Bennett, holds the lands under a title of the following tenor and no other:

“I hereby acknowledge to have received from Mr. W. Terrell Bennett, the sum of three hundred and sixty two dollars and fifty-five cents, on the first day of July, 1854, in payment of the following lots, viz: Lot No. 2 of section 2, and lots 5 and 6 of section 3, of township 5, south of range 7 east, Greensburg District; and I agree to give him a notarial title at any time he may desire it, at his expense.

(Signed) Duncan N. Hennen.”

It is clear, from the preceding statement, that there is no difficulty about the locus in quo. There are several bills of exception, but, as our attention has not been called to any of them, we have considered they have been waived; besides, we are satisfied that a decision upon them would not have changed the final result upon the merits.

It is contended that the patent issued illegally; that it is null and void, and should be delivered up and cancelled, and that Mrs. Lea is entitled to claim and receive the purchase money back.

It appears that the said patent issued advisedly, and that it was forwarded from the General Land Office at Washington to the Land Office at Greensburg, to be delivered to the party entitled to it. The following is an extract from a letter of the Commissioner addressed to the plaintiff:

General Land Office, August 23d, 1859. * * * * * With respect to Greensburg Patent No. 709, to which you called attention, I have to state that, in view of the protest against its delivery, filed by Duncan N. Hennen, executor of Franklin W. Lea, deceased, the patentee, it is not deemed advisable to coerce the Begister to deliver it to you as assignee, inasmuch as he is officially responsible for its delivery, upon evidence satisfactory to Mm; he has, therefore, been directed to deliver it to the Clerk of the Court having charge of the case, with a view to its ultimate delivery by said Clerk to the party whom it may determine to be the one entitled to receive it.

(Signed) Jos. S. Widson,

Acting Commissioner.

The following is another extract of a letter addressed by said Commissioner of the General Land Office at Washington to the Register of Land Office at Greensburg, Louisiana :

Geneead Land Office, December 14, 1858.

Sir : Greensburg Patent, No. 709, dated 2d April, 1858, in favor of Franklin W. Lea, for (here the lands are described as patented) was, per letter of the 8th of said month, transmitted to your office for the purpose of being delivered to 'the person entitled to receive the same. It is represented to this office by George W. Watterston, Esq., that he is the owner, by purchase under Lea, of the land embraced in said patent, originally designated as lots Nos. 5 and 6 of section 8, and that with a view to perfect his title, it becomes a matter of importance to him to have the Patent passed out of your custody, which he has been unable to effect in consequence of Ms not holding the receiver’s duplicate receipt of the corresponding number.

It is understood that the said duplicate receipt is in the possession of Duncan N. Hennen, Esq., of New Orleans, executor of the estate of F. W. Lea, and that he, Hennen, declines surrendering the same or receiving the patent; under these circumstances, I have to request that you will require Mr. Watterston to file an affidavit setting forth the facts of his interest in the land, and that he is unable to procure the duplicate receipt alluded to, at the same time producing the evidence of his title, and if you are satisfied therefrom, that he is legally interested in the land, you will, after serving a proper notice to Mr. Hennen, deliver the patent to the-former, unless valid cause should then be shown why this should not be done, and taking from him a receipt therefor, and advising this office of the facts of its having been so delivered.”

(Signed) Thos. Hendbick, Commissioner.

It is evident that the Commissioner of the General Land Office, was well aware of the contest and suit between these parties, and that he considered the patent as having legally issued, and as belonging to F. W. Lea’s assignees.

The patent for land is absolute and final on its face, and the United States are divested of all the lands comprised in it, and which now are private property owned by individuals, and we have to decide who is the just and real owner of the same. The moment this patent for the lands therein comprised, passed this great seal, it was beyond the power of the officers of the United States. Lott v. Prudhomme, 3 R. 293. The lands so patented were vested in F. W. Lea’s vendees.

Whatever name may have been inserted in the certificate confirming a Spanish grant, confirmation must enure to the benefit of the real owner. Terrell v. Porche, 2 A. 148. So this patent, although granted in favor of F. W. Lea, was really in favor of his vendees, and enured to their benefit. McGill v. McGill, 4 A. 268.

Wb have disposed of the alleged title in the United States to the lands in dispute, now owned by the assignees of Franklin W. Lea, under the patent. It is contended that the plaintiff acquired no land at the Sheriff’s sale referred to, made 5th May, 1855; that the New Orleans and Nashville Rail Road Company had already disposed of the lands pretended to be seized, in laying out the town called Uncle Sam, and in selling all the lands in squares, lots, etc., in the year 1837. These purchasers are not parties in this suit, except Pierre A. Hébrard, the intervenor; but their titles are urged to show that the plaintiff has no title, and that the titles of these purchasers coming from the same author, and being older, are superior. This position is very strong, but it is very uncertain where and on what lands this pretended town Uncle Sam was laid out; no one ever knew a town there. It must be remembered that Franklin W. Lea sold a quantity of land to the said company, besides the lots Nos. 5 and 6 sold to plaintiff by the Sheriff. The said company had also purchased other lands from George Richardson. Plaintiff shows a complete title to the lands described in his petition and covered by the patent; nothing in the record shows that the lands laid out for the said town formed any part of the lands in dispute.

It is therefore ordered, adjudged and decreed, that the verdict of the jury and the judgment of the Court be annulled, avoided' and reversed. It is further ordered and decreed, that the representatives of George W. Watterston be recognized as the legal owners of the lands described in. the petition and survey made by order of Court in this case, by Theodore Gillespie, on or about 26th October, 1858,. and in the patent No. 759, issued in favor of Franklin W. Lea, on 2d April, 1858, less 50 acres taken from the south-east corner of said tract. It is further ordered and decreed, that the intervention of Pierre A. Hébrard be dismissed as in case of nonsuit, and that he pay the incidental costs.

It is further ordered and decreed, that the question of improvements and rents between the plaintiff and the defendant, and the question as to all claims in warranty between the defendant and his vendor, Hennen, be remanded to be adjusted and determined according to law. It is further adjudged and decreed, that the defendant, W. T. Bennett, pay costs in both Courts, and he have judgment for the same against his warrantor, Duncan N. Hennen.


text:
    Francois Lacroix v. F. W. Coeler.
    When a case has been tried by a Jury, a verdict rendered, and judgment given according to that ver* diet, and the case is not properly a jury case, both the verdict of the jury and the judgment will be set aside, and this Court give a decree according to the facts on record.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. L. Lombard and H. Train, for plaintiff and appellant. O. Roselius and M. M. Reynolds, for defendant.
   Labatjve, J.

The plaintiff claims of the defendant $5,200, for eight months of house and store rent, at the rate of $650 per month, due on the 30th November, 1862; and he also prays for a judgment for a further sum of $14,950, for the balance of the term of said lease, being twenty-three months’ rent, at $650, and to be paid at the beginning of each and every month, from the 1st December, 1862, to the 31st October, 1864. On filing the suit the plaintiff obtained a verdict of provisional seizure.

The defendant answered by a general denial; and that he had been a tenant of plaintiff, occupying the premises leased, for over fourteen years, paying his rent punctually; and that, owing to the war, the blockade, the embarrassed state of affairs, the suspension of business, and the arrears of.his sub-tenants, who owe him $2,570, which they are unable to pay, he, respondent, finds himself unable to pay the rent according to lease, as the premises are of little or no value, and have so been since the commencement of the existing war; that a portion of the premises is unoccupied, and that the consideration for said lease has failed.

He prays that plaintiff’s demand be rejected, the lease cancelled, and the rent claimed reduced to a reasonable amount, and that the case' bo tried by jury.

The jury found a verdict in favor of plaintiff for $2,600, and in favor of defendant, cancelling the lease. The Court having refused a new trial, the plaintiff appealed.

The act of lease, adduced in evidence, shows that the premises, consisting in a building and appurtenances thereof, situated in New Orleans, were leased to the defendant for five years, commencing on the 1st November, 1859, at the rate of $650 per month, payable monthly, the 1st of each and every month in advance.

The testimony shows that business had very much diminished, and rent had come down considerably; but nothing shows, in our opinion, that the case comes within the provisions of Articles 2667, 2669 Civil Code. We have not been referred to any authority to support the verdict of the jury and the judgment of the Court upon it. This was not a jury case, and we will give a judgment as should have been rendered below. The verdict of the jury was rendered on the 13th January, 1863, and the judgment of the Court on the same day. There were, then, ten months’ rent due, from the 1st day of April, 1862, to the 31st of January, 1863, inclusive, at the rate of $650 per month, payable in advance.

It is therefore ordered, adjudged and decreed, that the verdict of the .jury and the judgment of the District Court upon it, be set aside and annulled. It is further adjudged and decreed, that the defendant, E. W. Coeler, pay to the plaintiff, Eramjois Lacroix, Agent, the sum of six thousand five hundred dollars, for ten month’s rent, ending on the 31st of January, 1863, with legal interest on each months’ rent, say §650, from the 1st day of each month, respectively, commencing on the 1st day of April, 1862, to the 1st day of January, 1863, inclusive, until paid, and that the plaintiff have a privilege on the property -provisionally seized, and that defendant pay costs in both Courts. The 'right of plaintiff to rent, not •eomprise.d in this decree, is reserved. -


author: Howeeb, J.

text:
    James Trabue & Co. v. R. H. Short & Co.
    A criminal action is one which is instituted in the name of the State by its proper officers, in order to obtain the public reparation of any crime or misdemeanor. This action comes under the head of penal jurisprudence.
    The general rule is that the form and effect of public and private written instruments are governed by the laws of the place where they are passed or executed; unless it is expressed that they are to have effect in another country.
    Every endorsement, accommodation or otherwise, is essentially an original contract, equivalent to a new note or bill, in favor of the holder and the acceptor or obligor.
    .The agreement or obligation of defendants as endorsers, having been entered into in Kentucky, without expressing a different place of performance, must, under the above general rule, be regulated by the law of Kentucky. The fact that the payers reside where the note is payable does not amount to such a designation of the place of performance as to take it out of the general rule. The parties, at the time of making the endorsements, were all in Kentucky, and are presumed by law to have contracted with reference to the laws of that State.
    Doubtless the defendants may be sued at their domicil; but the obligation of their endorsement and the duties of the holders are governed by the laws of Kentucky, where the endorsement was made.
    An amount involved being over five hundred dollars, the promise being one to pay money, must be proven by at least one credible witness and corroborating circumstances.
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Hays <& Adams, for plaintiffs. E. Wooldridge, for defendants and appellants.
   Howeeb, J.

This is an action -upon a note, bearing eight per cent, interest, and made in Kentucky to the order of defendants, payable at .their office in New Orleans, and assigned by them in Kentucky to Oayce & Hopkins, residing there, and by the latter to plaintiffs, rfesiding also in .Kentucky. The note was duly protested at maturity and notices of -dishonor given. On the trial below judgment was rendered against de.fendants, and they have appealed.

The defence is, that the contract of endorsement having been made in Kentucky, the liability of defendants, as endorsers, is governed by the law of that State, according to which, “a remote assignor of anotéis not primarily liable to the holder; and the immediate assignor is only-liable for the consideration received, with six per cent.; and the holder cannot make him liable without first prosecuting the payer with diligence; which is not shown to have been done.

The plaintiffs contend: 1. That, although the note is made and endorsed in Kentucky, yet, as the defendants, the payers thereof, had it made payable at their office in New Orleans, it is, as to themselves, domiciliated in, and is to be governed by the laws of this State, under the well settled principle that contracts made in one country, to be executed in another, are regulated by the laws of the country where they are to have effect. C. C. Article 10, p. 2; 2 Kentp. 459; 8 B. Monroe, 306; and, 2. That, even if defendants’ liability is to be governed by the laws of Kentucky, they are precluded from this defence by a promise to pay, made a few days after the protest of the note.

I. The general rule is that the form and effect of public and private written instruments are governed by the laws of the place where they are passed or executed; unless it is expressed that they are to have effect in another country; and the question is presented : Does the fact that the note sued on is payable to the defendants at their office in this city, make them liable, under the laws of Louisiana, upon their endorsement made in Kentucky ?

Every endorsement, accommodation or otherwise, is essentially an original contract, equivalent to a new note or bill in favor of the holder and the acceptor or obligor. 12 M. 184; 11 Wharton, 213, 341; Story on Notes, 1155.

The agreement or obligation of defendants as endorsers having been entered into in Kentucky, without expressing a different place of performance, must, under the above general rule, be regulated by the law of Kentucky. The fact that the payers reside where the note is payable does not amount to such a designation of the place of performance as to take it out of the general rule. The parties, at the time of making the endorsements, were all in Kentucky, and are presumed by law' to have contracted with reference to the laws of that State. See Story on Conflict of Laws, $ 316 b.; 6 Cranch, 221; 8 N. S. 21.

Doubtless the defendants may be sued at their domicil, but the obligation of their endorsement and the duties of the holders are governed by the law of Kentucky, where the endorsement was made; Such was the ruling in the ease of Duncan v. Sparrow, 3 R. 167, which was a suit upon a note made in Louisiana and payable in Mississippi.

We are referred to the case of Short & Co. v. Trabue & Co., 4 Metcalf Ky. R. 299, as authority, which was a suit between the same parties now before us upon a note similar in every respect to the one here, and against which the same defences were urged; and in which it was held that Short & Co. were liable, as endorsers, under the law of Kentucky, and, consequently, judgment rendered finally in their favor, because the holders had not prosecuted the makers to insolvency with due diligence. See also 5 Ala. 286; 15 Ind. 33.

H. We think the evidence insufficient to make the defendants liable on a subsequent irromise.

No unequivocal certain promise is shown. There was but one witness, and he admits there was a misunderstanding, in regard to this point, between himself and one of the defendants, in their interview, and gives what he understood the defendant to say. Such evidence is, in itself, of the weakest kind. But, in addition, as defendants were not bound on their endorsement, if sought to be held in their promise, the proof must be such as is required by law.

No objection was made to the character of the evidence; but the amount involved being over five hundred dollars, the promise being one to pay money, must be proven by at least one credible witness and corroborating circumstances. In such case, the endorsement is not a corroborating circumstance, and the record contains no other. See 7 R. 451.

It is therefore ordered, that the judgment appealed from be avoided and reversed; and that the demand of plaintiffs be dismissed without prejudice. Costs in both Courts to be paid by plaintiffs and appellants.


author: Howekd, J.

text:
    P. Gallot v. T. McCluskey and E. Reilly.
    Where a suit is brought on an unconditional obligation to pay a specific sum of money, the prayer for a jury, by the defendant, must be made on oath, to the truth of his allegations in the answer. ‘
    A judgment by the Court a quo, saying: “When, after hearing pleadings, evidence and counsel, it is ordered, etc,” is not a compliance with the requisitions of the Constitution.
    All the parties in interest must be parties to the suit, and all the partners must sue to enforce a partnership claim.
    A Court does not err in refusing a continuance to obtain the testimony of a co-defendant, when he is interested by being bound in solido.

      k _fl_ PPEAL from the Second District Court of New Orleans,
    Bermudez, J. C. Redmond, for defendant and appellant.

      Fellows <£ Mills,, for plaintiff.

    — This is a suit on contract of lease against Thos. McCluskey and Edward Reilly as his security in solido. Thei;e ryas judgment against both the defendants, -and Reilly alone has appealed. The lease is admitted, but the events of the war, causing a stagnation of business, is set up as a defence.'

      The Court, in its reasons for judgment, effectually answered this defence. A jury was refused, because of want of the necessary allegations and affidavit to warrant one under the provisions of Article 494 C. P., Amendment Acts of 1839, p. 172, $ 24. See 16 La. 258. 3 R. 259.
    The testimony of McCluskey for Reilly was clearly inadmissible, being a party bound in solido with his co-defendant, and his testimony fully disproved by the record. See report of appraisers, Rec. pp. 32 to 34, and the order releasing the property seized.
    None of the testimony offered in the trial against McCluskey for showing a vis major, was offered on the trial against Reilly.
    The reasons for judgment against McCluskey stated the evidence in his favor much stronger than the record warrants, and yet the Judge a quo found the law, even with the evidence, as stated, against him in every instance.
    As to Reilly then, a fortiori, where evidence of this kind was entirely wanting, and he, the security for one against whom judgment was already rendered, judgment should be rendered.
   Howekd, J.

This is a suit on a notarial act of lease from plaintiff and his commercial firm of Demontrond & Co., to. McCluskey, as tenant, and E. Reilly his security, in solido. Judgment was rendered against McCluskey, after which Reilly filed an answer containing general and special defences, and a prayer for a jury. Upon a trial, the jury disagreed, and they were discharged. Subsequently, on plaintiff’s motion, the prayer for a jury was stricken from the answer, on the ground that the suit, having been brought on an unconditional obligation to pay a specific sum of money, the appellant did not make oath to the truth of the obligations in his answer. The case was tried by the Court, judgment rendered against Reilly, and he appealed.

I. It is urged by appellant that the Court erred in striking out the prayer for a jury. We think this is one of the class of cases contemplated by the statute of 20th March, 1839, and that to obtain a trial by jury it was necessary to make oath to the truth of the allegations of the answer.

H. Another ground of 'complaint is that no reasons are given for the judgment.

All that we find is the entry: “When, after hearing pleadings, evidence and counsel, it is ordered, etc.,” as held in the case of Police Jury v. Bozman, 11 A. 94, this is as much a reason for judgment in favor of defendant as plaintiff, and is not a compliance with the Constitution.

HI. Appellant contends in the next place that as the suit is brought in the name of plaintiff alone, and the lease introduced in evidence is made in the name of his firm as well as his own name, he cannot recover.

It is a well settled principle, that all the parties in interest must be parties to the suit, and all the partners must sue to enforce a partnei'3,,41 claim. 9 R. 149; 4 A. 179; 3 L. 358.

Plaintiff declared in his individual name, and proved a contract in the name of himself and his firm, without proving a transfer of his firm’s interest to himself. He therefore cannot recover upon the evidence; particularly as the extent of his interest is not shown.

IV. The Court did not err in refusing a continuance to obtain the testimony of the other defendant, as he was interested, being bound in solido with appellant.

V. It is not shown that any part of the furniture was removed from the premises, with plaintiff’s consent, to appellant’s injury. We are to presume the Sheriff has done his duty, as to that portion taken into Ms official possession.

VI. The appellant contends lastly, that all the evidence taken on the trial between plaintiff and McCluskey, should have been offered with the record on the last trial. This point was not reserved by a bill of exceptions, and is not properly before us. ■

We think justice requires that the case be remanded for a new trial between proper parties.

It is therefore ordered that the judgment appealed from be reversed, and that this case be remanded to be proceeded in according to law, costs of appeal to be paid by plaintiff and appellee.


author: Laeauve, J.

text:
    Jos. Stanford Bossier v. G. B. Carradine, Sheriff, et al.
    — On Motion to Dismiss Appeal.
    ■When the transcript contains a true and complete copy or transcript of all the proceedings had* ©ásB the evidence and testimony adduced, and of all the documents filed in the suit; whensuxih.it certificate as this accompanies the record, an assignment of error is not necessary.
    APPEAL from the District Court of St. Tammany,

      Jones, J. Alfred Hennen, for defendant.

    — Authorities: Dwight v. McMiUes-.j, 4 A. 350; McDonoghs. DeGuigs, 10 A. 75; Carpenters. Reynolds, 3 A.. 592; Pargouds. Pace, 11 A. 644; C. P. 896, 897; 6 L. 144, 157, 209; 1 R, 460; 4 R. 147; 5 R. 169; 14 A. 303.
   Laeauve, J.

This case is before us on a motion to dismiss the appeal, on the following grounds:

Because a complete and full transcript of the record has not heesa brought up by the plaintiff and appellant, T. S. Bossier, inasmuch as; Kb.® consolidated suits Nos. 693 and 694 of the District Court, particularly N®. 693, W. P. Kennedy v. T. A. Bossier, made part of the defendant’s saiswer in this suit, has not been copied and brought up; because the record ■jvas not returned and filed in Court on the 4th Monday of January, 1866; and because no assignment of error has been made, according to Article 897, Code of Practice.

This case comes up from a judgment rendered in favor of defendant, sustaining an exception made by said defendant to the form of the action, and on the face of the petition, as follows: “And now the defendant, W. E. Kennedy, of the city of New Orleans, appears, excepts, answers and says, that no just or legal cause is set forth in the petition for injunction issued in this case; wherefore he prays the same may be dismissed, with costs.” Nothing more than the exception was tried, the Judge sustained it and dissolved the injunction; in such a case no testimony of any kind is offered; it is a trial on the face of the petition. Besides, the certificate of the Clerk is in due form, showing that the transcript contains a true and complete copy or transcript of all the proceedings had, of all the evidence and testimony adduced, and of all the documents filed in the suit. When such a certificate as this accompanies the record, an assignment of error is not necessary. C. P Articles 895, 896. The record was filed in due time in this Court. Legislative Act approved December 21, 1865.

Motion to dismiss overruled.