text:
    A. M. Gray v. Celeste Couvillon.
    Thirty years uninterrupted possession is required to enable a party to prescribe beyond his title.
    To sustain the plea of prescription under Art. 849, O. C., it is necessary not only to show a possession of ten years, but also that this possession has been held by boundaries fixed according to a common title or different titles. Art. 829^ and the following articles, prescribe the mode of fixing boundaries, and the Art. 849 must be considered in connection with these.
    •Parties are not bound by a consent to boundaries which have been fixed under an evident error, unless perhaps by the prescription of thirty years.
    APPEAL from the District Court of Avoyelles, Ogden, J.

      Barlow & Waddill and S. &S.L. Taylor, for plaintiff.

      W. R. Goolce, for defendant and appellant.
   Cole, J.

This is an action of homage or boundary, instituted by the plain ■ tiff to establish his eastern boundary between his lands and those of defendant.

He asks to be placed in possession of his land up to the line called for by his titles, and that defendant be decreed to pay him the sum of five hundred dollars damages for the illegal detention and cultivation of a portion of his land, and the further sum of five dollars per acre per annum for all the land of plaintiff in defendant’s possession.

The defendant answered by a general denial, and pleaded the prescription of ten and twenty years.

Afterwards, the defendant sued out an injunction to prevent plaintiff from digging a ditch on the land she claims to have acquired by prescription, until the decision of the boundary suit.

To this plaintiff, who is defendant in the injunction, filed a general denial, and claimed damages for the sum of one hundred and fifty dollars.

In 1808, MeOrummen, a United States Deputy Surveyor, by order of the general government, surveyed the tracts of land mentioned in this suit, besides other townships in the Southwestern Land District, and it was by this survey that the government sold, and by it the different owners bought and sold. They were re-surveyed by W. O. Robert in 1849; these surveys conform to each other, and were approved at the land office.

The division line now in contest, has been for many years since, a matter of dispute between the different proprietors. This originated from the fact, that the survey made by MeCrummen, was nearly obliterated, and was not visible by ordinary examination.

In 1834, the owners of a portion of the two tracts now owned by the parties to this suit, wishing to have the true line run by HcCrum/nien retraced, called upon one Baggerly to do so, but his survey was unsatisfactory.

This suit was instituted to have the line permanently fixed between lands of plaintiff in Sections 10 and 15 of T. No. 1, R. 5 E., and those of defendant in the contiguous sections, 11 and 14

Plaintiff claims that the true boundary between his lands and those of defendant is the McCrummen line, or the North and South section line common to and separating the parallel sections in which they are respectively situated, because these lands were originally acquired according to lines of United States surveys.

The defendant claims by the Baggerly survey, although she purchased by the government survey.

An order of survey was granted by the court, and IF! G. Robert and James MeOauley, United States Deputy Surveyors, were appointed.

The line of division claimed by plaintiff, which is the one produced from W. to W. on the court map, is proved by the testimony of Robert to be the government or McCrummen line. The return of MeOauley also agrees with the line run by Robert.

The line for which defendant contends is T. P. produced towards M., as exhibited by the court survey, which Robert in his testimony states “is an isolated line and has no possible connection whatever with any other lines or corners, and was evidently located by some surveyors, as a temporary approximate line, without regard to any actual connections.”

The line produced from W. to W., which is the one decided by the lower court to be the true dividing line, gives to plaintiff that portion of land shaded yellow on the court map, containing 9 78-100 acres, which is now in the enclosures of defendant, and claimed by her by prescription and by the line T. P.

The 9 78-100 acres of land claimed by defendant are not covered by her titles; she can then only succeed by her plea of prescription, but this defence cannot he maintained.

Defendant relies on Art. 848 and 849, O. 0., — but no uninterrupted possession for thirty years, as required by Art. 848, has been established.

Art. 849 does not sustain her plea of prescription for ten years.

This Article declares: “If the boundaries have been fixed according to a «common title, or according to different titles, and the surveyor had committed an error in his measure, it can always be rectified, unless the part of the land, «on which the error was committed, be acquired by an adverse possession of ten years, if the parties are present, and twenty years if absent.”

Defendant pretends that she has been in possession more than ten years and is therefore entitled to the land in controversy.

We are of the opinion, that to support the plea of prescription, under Art. 849, it is necessary not only to show a possession of ten years, but also that this possession has been held by boundaries fixed according to a common title or according to different titles, and that this Article must he taken in connection with Art. 829, and the following articles, which explain how boundaries are to be fixed.

Now in the case at bar, it is not established that Baggarly, who located the Rne of division, which she claims, was a sworn surveyor; that he ever made any proces verbal of his work; that ho ever examined the title papers of the parties, nor that ho ever complied with other formalities required by the Articles of the Code relative to fixing the limits and surveying of lands.

The evidence does not establish conclusively that the different proprietors agreed positively to consider the Baggerly line as the settled division line. It was pointed out by some of them as the division line, but there is no evidence to show that they promised to take it for ever as the true boundary between the lands now owned by the parties to this suit.

It also appears that they thought it the McCrummen line, and. the one called for by their titles from the government.

If then they gave any consent to the Baggerly line, it was one given in error.

Parties are not bound by a consent to boundaries which have been fixed under an evident error as to the correct location of their titles, unless, perhaps by the prescription of thirty years. 6 A, Frederick v. Brulard, p. 383.

ThO'Case of Lemoin v. Monela, 9 A. p. 518, has been referred to by defendant to show that in actions of homage, a dividing line long established between the parties will bo taken as the true one in preference to running a new line more in accordance with the calls and distances and which gives to plaintiff a larger boundary. But the decision in this case is based on the fact that the dividing line had been recognised and established between the lands of plaintiff and defendant and those persons under whom they claim, more than twenty years previous to the commencement of the suit.

The court in their decision, referring to the case of Williamson v. Hymel, 11 L. p. 183, says:

“We have heretofore said, that ‘in an action of bornage, a dividing line long established between the parties, and referred to in the proces verbal of sale of the plantation to the plaintiff, will be taken as the true one, in preference to running a new line more in accordance with the calls and distances, and which gives to the plaintiff a larger boundary.’ ”

In this case of Williamson v. Hymel, the court say, “We think, therefore, the jury was warranted in concluding that the plaintiff, having purchased an indefinite quantity, could not claim beyond a line which existed long before his purchase, and that the description of the plantation in the inventory and in the proces verbal of sales, referred to the existing lane and division line, as they had remained for fifteen years.”

The case of Zeringue v. Harang’s Administrator, 17 L. p. 350, is also relied on by defendant.

But in this case the court, after ordering that now posts should be placed by the surveyors where the former limitor fence stood, say: “When their survey shall be returned into court, it will be competent for the plaintiff to contest defendant’s right to this surplus of land not called for by his title; and he will recover it, unless defendant shows such a possession of it, under the former inclosures, as will establish in him a right to the same by prescription; if, therefore, plaintiff has suffered any grievance, he can be relieved on the final judgment to be hereafter rendered in the cause, and should not have called upon us to interfere at this stage of the proceedings.”

The cases just referred to, vary much from the one at bar. In this no reference was ever made in the sales between the different parties to the division line claimed by defendant.

No such consent as contemplated by law is shown to have been given by the various proprietors to the line of defendant, and it is not proved that they considered it as the recognized and established boundary by which the limits of their lands were determined.

On the contrary their consent seems to have been merely a tacit recognition for the time being of this line, until the boundaries of their lands should be accurately defined.

"We are of opinion, that as the titles of the parties call for the boundary line which has hoen determined by the court survey, and as no such consent as is contemplated by law has been shown to have existed between the parties for a series of years to a well established and recognized line different from that called for by the titles, and as the plea of prescription for the 9 18-100 acres is not established, plaintiff is therefore entitled to a judgment in his favor.

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


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Eliza Toler, Administratrix, v. Ralph Cushman et al.
    An accomodation endorser against whom, and his principal, a judgment in solido has been rendered, on paying the judgment becomes legally subrogated to all the rights of the creditor in a twelve months’ bond given in the case by the principal obligor, and may enforce the payment of such bond by the surety therein.
    APPEAL from the District Court of Avoyelles, Ogden, J.

      S. & S. L. Taylor, for plaintiff and appellant

      J. II. Overton, for defendant.
   Merrick, O. J.

Samuel W. Senario sold to Daniel Glande, jr., a negro man named Dame for $150. Glande, to secure the price, gave his three promissory notes, endorsed by Joel Toler, of whose estate, the present plaintiff is administratrix. Two of the notes having matured, they wer.e consolidated and a new note for the amount was given. On this note, judgment was rendered in March, 1841, against Claris and his accomodation endorser, Joel Toler, for $525, with ten percent, interest from March 1st, 1841. On an execution issued upon this judgment, at a sheriff’s sale of said negro man Dame, which was made on the 19th day of March, 1842, Daniel Glarle, jr., having become the purchaser, executed his twelve months’ bond in favor of Samuel W. Senamie for $643 80, bearing ten per cent, interest from date, with Ralph Cushman as security.

At the maturity of the bond, an execution issued and the negro man was sold for $211, and the writ returned June 3d, 1843, unsatisfied as to the residue. In September of the same year, an execution was issued on the judgment against Toler with a credit of $187, (being the amount made on the bond less costs,) and was returned in December with a credit of $200 paid by Toler. On the 22d of July, 1844, an alias fi. fa. issued on the trnelve months' hond against both Glande and Cushman, and was returned after a sale of the property of Glande under seizure, with a credit of $25 50.

The plaintiff, as administratrix of the succession of Joel Toler, deceased, on the 8th day of January, 1852, settled the balance of the twelve months’ bond in favor of Senarie, amounting to $511 69, by discounting paper belonging to the succession and she took a written subrogation to the twelve months’ bond against Ciarle and Cushman.

This suit is brought to recover the amount paid by Toler and his succession, from Ralph Cushman, and since his demise, from his succession. The judgment of the lower court was in favor of the defendant, and the plaintiff appealed.

The Defendant’s counsel urges in this court the following defences to the action, viz:

First That there was no payment in mo my; therefore no payment in the legal acceptation.

Second. That under the authority of the case of Grow v. Walsh, 3 Ann. 540, subrogation could not extend beyond the contract to which Toler was a party.

Third. If paj’ment was made at all, it was not made at the time of the subrogation.

To arrive at a correct solution of the questions presented in this case, it will be necessary to consider the position of the parties. It is clear, from authority5 that the twelve months’ bond executed by Olarlc and Gushman did not novate and extinguish the judgment. Hence, Toler's estate was still bound for the debt, the original judgment, and by being bound, it had the right to pay at any time and become subrogated to the rights, mortgages and privileges of the creditor generally, either with or without a written act of subrogation. C. C. 3022, 3030.

The question therefore arises, is the twelve months’ bond one of those rights to which the surety is entitled to be subrogated ? The reason to doubt, is, that the sale to the judgment debtor on a twelve months’ credit under execution does not change the title to the property sold, and, since 1855, under the express statute on the subject, the surety of the judgment debtor on the bond, becomes himself subrogated to the judgment.

The Act of 1855, p. 3C5 sec. 4, is subsequent to the cxeculion of the twelve months’ bond and cannot be held to apply to it, and moreover, were it intended to change the rights of the parties, it would be unconstitutional as impairing the obligation of a contract. This statute must therefore be laid out of view, and the cause decided upon the principles of the laws in force at the time the obligation was entered into.

It has been settled by several decisions of this court, that the surety on the twelve months’ bond executed prior to the Act of 1855, does not on payment become subrogated to the original judgment even as against the principal judgment debtor, but that on payment, he becomes legally subrogated only to the rights of the creditor upon the twelve months’ bond. Had Gushman, the surety on the twelve months’ bond, paid it, it would have at once extinguished the judgment and liberated both Toler and Glande from the same, and yet Cushman's only remedy would have been upon his twelve months’ bond and such mortgage as might have been retained by recording the sheriff’s deeds. He could have had no recourse against Toler. Cushman’s estate on payment would not therefore have been in a position to claim a proportion of the amonnt paid on the bond from the succession of Toler.

On the other hand, a twelve months’ bond although it does not novate the the judgment must have the effect to defer the creditor’s right of payment of the original judgment until the maturity of the bond.

If the debtor’s surety, although bound by the judgment in solido with him, has paid the debt, he at once becomes subrogated to the creditor’s right to a twelve months’ bond given by a third person and can enforce such twelve months’ bond. Therefore a twelve months’ bond made by a third person is a right to which the surety becomes subrogated on payment of the judgment against himself and his principal, as a security covered by the general expression in the Art. No. 3030, O. 0., as a right of the creditor. Is it different where the debtor himself makes the bond ? The property of the debtor is the common pledge of all of his creditors. When the property of the judgment debtor is sold but bought in by the debtor himself under a twelve months’ bond, the creditor has been to some extent deprived of this pledge; for his recourse upon it has been deferred for twelve months, and he is obliged to incur the risk of the loss of the revenues arising from his debtor’s property as well as that arising from the deterioration and loss of the property itself. Eor this, among other things, the surety on the twelve months’ bond is bound to the creditor. The twelve months’ bond then becomes a further security to the creditor representing to some extent the property of the debtor. Offut v. Randlay, 9 L. R. 1; Fenn v. Rils, 9 L. R. 99; Coons v. Graham, 12 R. 206; 9 Rob. 185; 12 Rob. 206; C. P. 716.

Again, if the surety on ordinary commercial paper is entitled to the benefit of collateral paper obtained by the creditor, against the endorsers and maker, much more must the surety of the judgment debtor be entitled to treat the twelve months’ bond which is executed for the sole purpose of procuring a payment of the judgment as collateral and to claim the benefit of it in the hands of the creditor. Griffings, Administrator, v. Caldwell, 16 L. R. 294

From the best examination w*e have been enabled to give this question without the aid of books, we conclude, therefore, that it was in the power of Toler's administratrix to become subrogated to the rights of Eenw'ia.

But it is said that in order that subrogation should take place there should have been a payment in money. The debt has been paid by the transfer of commercial paper and we do not think the estate of Cushman interested in inquiring into the mode of payment further than to ascertain that it was real and in good faith. O. O. 2625, 2146, 2134, 2135.

On the last point made by the defendant’s counsel we observe that the $517 69 appears to have been arranged at the time the subrogation was given, and the settlement made on the 8th of January, 1852. But however this may be, the conclusion to which we have arrived, that the twelve months’ bond was a right of the creditor, to which the surety became subrogated, on payment, will enable the plaintiff to recover.

, It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court bo avoided and reversed, and that the plaintiff, in her said capacity, do have and recover judgment against J. L. Deganeris, administrator of the said succession of Malph Cushman, deceased, for the sum of seven hundred and seventeen dollars and sixty-nine cents, with ton per cent, interest on the sum of four hundred and forty-three 98-100 dollars from the fourteenth day of December, 1843, until paid, and costs of both courts to be paid in the due course of administration.


author: Spofford, J.

text:
    West Feliciana Railroad Company v. C. A. Thornton.
    Where the Clerk of a county court in another State, certifies the exemplification of a record, as being a true and correct copy of the record, &o., as far as the same remains on file and of record in his office, he certifies all that the law requires him to certify. It is not a valid objection to the completeness of the record, that the reasons on which the judgment was founded are not set forth; the reasons for the judgment do not form a part of the decree. The opinion of the court may be and often is given ore terms. The judgment is of necessity a matter of record.
    The Clerk of the county court properly copied into the exemplification of the record, and certified as a part of it, the decree made in the case by the High Court of Errors and Appeals, and the objection that it is a copy of a copy, is not tenable. Any paper properly made a part of the record in the cause, although in reality a copy, becomes an original for the purpose of making out a transcript of the cause as it appears of record in the court whence it comes.
    ¡Where a judgment is rendered upon a note, the latter is merged in the former, and can be severed only by a reversal or rescission of the judgment.
    A final judgment of a competent court of a sister State after citation, is conclusive of the matters therein determined between the same parties here, in the absence of evidence positively impeach-ing it.
    APPEAL from the District Court of Rapides, Ogden, J.

      Mercer Canfield, for plaintiff.

      W. B. Lewis, and W. B. Hyman, for defendant and appellant.
   Spofford, J.

This suit was brought in the parish of Rapides, upon a judgment rendered against the defendant, after contestation, in a court of the State of Mississippi. The original suit was founded upon a promissory note executed by the defendant. His defence in Mississippi was the statute of limitations of that State, where the note was executed and where it was payable.

The cause was originally tried in the Circuit Court for Wilkinson County, Mississippi. There were three trials, and three successive verdicts for the plaintiff. The first two were set aside, but upon the third verdict, a final judgment was rendered for the plaintiff. The defendant prosecuted a writ of error in the High Court of Errors and Appeals, where the judgment of the Circuit Court of Wilkinson County was affirmed, with five per cent, damages,, pursuant to a Mississippi statute.

The defendant in the present suit excepted to the introduction in evidence' of the exemplification of the record by the Clerk of the Circuit Court of Wilkinson.County, Mississippi. The Clerk's certificate is in the following form:.

“ Tiie State of Mississippi, ) Wilkinson County, j
“ I, Henry J. Buttm'worth, Clerk of the Circuit Court in and for said county and State aforesaid, do hereby certify the foregoing sixteen pages to be a true and correct copy of the record, first and last executions, also of the final decree of the High Court of Errors and Appeals, with the endorsements and Sheriff’s return thereon, in the case of the West Felieicma BaiVroad Company against Chandes A. Thornton, as fully as the same remains on file and of record in my office. Given under my hand and the seal of,” &c., &c.

The objections to the certificate as presented by the bill of exceptions are : first, that it shows the record to be incomplete; and, second, that the Clerk of Wilkinson County Court could not certify to the correctness of the copy of the final decree of the High Court of Errors and Appeals.

Undoubtedly a mutilated record should not he received in evidence. But it should appear to be mutilated before the court is called upon to reject it. Here there is no mutilation. The Clerk certifies all that the law authorizes him to certify; that he has made a true copy of the record in tho cause, as fully as tho same remains on filo and of record in his office. His certificate does not disclose that any thing is missing, which was ever of record in the cause. Nor does any thing seem to be wanting- to the completeness of tho record. It was urged in tho oral argument, that the reasons on which tho High Court of Errors and Appeals founded their judgment upon the writ of error, are wanting, and that the record is, therefore, fatally defective. But in no court with whose jurisprudence we are conversant, do the reasons for judgment form an integral part of the judgment itself. The opinion of tho court is but an exposition of the motives upon which its decree is based. The opinion of the court may be, and in practice often is given ore temía; the judgment is of necessity a matter of record. For the sake of greater accuracy and to avoid as far as possible the mistakes of reporters, a practice has grown up in the courts of England, France and the United States, of reducing to writing the reasons which influence the decision of the court in each case, and of reading- the opinion thus prepared before pronouncing the decree which alone, in strict language, forms the “judgment” of the courts. Even if tho judgment is not a logical sequence of the opinion, the judgment can never bo impeached as between the parties on that account. The decree of the High Court of Errors and Appeals in this case, is perfectly free from ambiguity; the reasons which that court may have given for rendering it are of no consequence to us, and can in no degree affect a judgment which, upon its face, is complete, lucid and conclusive of the matter at issue between the parties. Not only are the reasons for that judgment unnecessary to the determination of the present controversy, but there is nothing to indicate that they ever formed a part of the record which the Wilkinson County Clerk attempted to certify.

But it was'urged as a second objection to the admissibility of the transcript, that the Clerk of tho Circuit Court could not certify a decree of the High Court of Errors and Appeals, and that his copy of that decree is but the copy of a copy, and therefore inadmissible. The judgment of the High Court of Errors and Appeals, authenticated by the certificate of the Clerk of thatcourt, and sent down to the Clerk of the Wilkinson County Court to be preserved among- its archives, formed an essential part of the record in this cause. It was the duty of the Wilkinson County Clerk to copy it into the exemplification of the record which he sent hither; and the objection that it is a copy of a copy, is no more tenable than would be a similar objection to his transcription of any authentic copy of a public act or record, which either of the parties might have adduced in evidence upon trial. Any paper thus made a part of the record in the cause, although in reality a copy, becomes an original for the purpose of making out a transcript, which shall embody a truthful history of the cause, as it appears of record in the court whence it comes.

The objections to the admissibility of tho exemplification were, therefore, properly overruled.

In this court-, it has not only been strenuously urged that the Mississippi judgment was against evidence and contrary to Mississippi law, but that we can go behind that judgment and entertain the plea of prescription under the Louisiana Code to the note upon which the Mississippi suit was based. It is conceded that the judgment in Mississippi was rendered after contestation between the parties, by a court of competent jurisdiction, and no fraud is alleged. Under those circumstances, it is far be}mnd the appellate power of this court, to alter or revise the decrees of the High Court of Errors and Appeals, or of any other court of Mississippi. And it would be subversive of fundamental principles and productive of litigation without end, to open a judgment thus rendered and permit the defendant to plead either tho old or any new defences to tho original cause of action. The promissory noto whioh tho plaintiff sued upon in Mississippi, has no longer a legal oxistenco; it is merged in the judgment, and it can only he severed from it by tho reversal or rescission of that judgment. Abat v. Buisson, 9 La. 418; Oakey v. Murphy, 1 An. 372; Smalley v. Creditors, 3 An. 386; Dennistoun v. Payne, 7 An. 333.

Tho proscription liherandi eausa appertains to the remedy, and is governed by tho law of tho former. The defendant can plead any prescription established by the law of Louisiana to tho particular action brought against him hero; but this is a personal action of debt upon a judgment — -it is not an action upon a promissory note. The prescription applicable to judgments is ten years. But tho judgment sued upon was renderod in April, 1855, and this suit was brought in June, 1850.

It is well settled, that a judgment rendered in another State of the Union, proporly authenticated, has the same force and effect hero as in the State where it was rendered. Tipton v. Mansfield, 10 La. 193; Briggs v, Spenser, 3 Rob. 265; 7 Cranch 481; 3 Wheat. 234. And a final judgment of a competent court of a sistor State, after oitation, is conclusive of tho matters therein determined between the samo parties hero, in the absence of evidence positively impeaching it. Rowand v. Jarvis, 5 An. 43; Lewis v. Wilder, 4 An. 574; Hazard v. Agricultural Bank of Mississippi, 11 Rob. 385; Machee v. Cairnes, 2 N. S. 599.

There is nothing' in the pleadings or tho ovidenco to impeach the judgment sued upon; and tho action upon that judgment is not prescribed by our law.

We have not noticed the bill of exceptions to the refusal of the prayer in the defendant’s answer for a trial by jury, because, although the point has been brought to our attention, the appellant’s counsel has not asked that tho cause ho remanded for a jury trial, but has chosen to put it before us on its merits, and to ask a final judgment at our hands. This course was the moro proper, as the defence involves only questions of law, and as our opinion upon those questions is decisive of the case, it would be worse than useless to subject tho parties to the expense and delay of a new trial.

Judgment affirmed,


author: Buchanan, 3.

text:
    Emma Lesseps, widow Richardson v. J. J. Wicks.
    The signature of the veildec to dn act of ádlc 8oil¿ seiiigprvQé, iá ñbt neüeásdry uudeí’ the pfoVisíohd of our Civil Code, Which docs not contain the Art. 1825 of the 0» N. Under our laW a sale of mova-» bles luay be taade by parol \ but if the vendor chooses to make the sale in Writing, his signature tb the act is good proof against hiiti) although Without the signature of the vendee. The expression of Art. 2289 of the Civil Code) “befooem those Who have subscribed it*’ is synonymous with against those Who have subscribed it. A party against Whom ah act uhder private signature is offered must either ackiioWledge or deny his signature. The burtheh of proof of a simulation is thrown on the defendant Who alleges it. A special plea always cbntrolS) so far as it goes) the gene-» ral issue. A party is hot allowed to vary or destroy his own voluntary Written agreement) by any thing short of written evidence) Which includes ahsWers to interrogatories on facts and articles.
    APPEAL from the Second Bistrict Court of New Orleans, Morgan, J,

      G, Roselius and L, Gastera, for plaintiff and appellant.

      Dwrant cÉ Momo?) for defendant,
   Buchanan, 3.

The defendant was sued by citation and sequestration, for certain inovables (household furniture,) sold by hita to Robert Richardson, deceased, fbr a price ih cash. A bill of sale of said inovables, Under private signature, containing- air acknowledgment of the receipt of the price, ahd signed by defendant, Was offered in evidence by plaintiff, ahd rejected by the Bistrict Court, on the ground that the document Was not sighed by the vehdee, Robert Richw'dson,

There was judgment of nonsuit; and the case is beibre us, upon a bill of exceptions to the ruling of the court below, rejecting- the evidence above mentioned.

We think the court ei-red, both on general principles and oh the issue, as made by defendant’s answer.

As to the necessity for the signature of the vendee to .a hill of sale under private signature, the appellee has relied in this court upon the authority of Duran ton. But the reasoning of that commentator, loco citato, lias reference to the Article 1825 of the Code Napoleon — an Article not copied into the Louisiana Code. That Article requires acts under private signature which contain synallagmatic conventions, to be made in as many originals as there are parties having a distinct interest.

In our law, a sale of movables may be made by parol, as well as in writing; but if the vendor have thought fit to reduce his acknowledgment of such a sale and of the receipt of the price to writing, under his signature, such written acknowledgment is surely good proof against him. The expression of Article 2289 of the Louisiana Code “beUoeen those who have subscribed it” is synonymous with “against those who have subscribed it;” and by article 2240, he against whom an act under private signature is offered, is bound to acknowledge or deny his signature, l'n fact, that is what the defendant has done in this case; for in his answer, after pleading the general denial, he goes on to plead specially “that the transfer mentioned in the plaintiff’s petition was not serious, and never intended to be carried into effect between the parties, viz: deceased and plaintiff; that no consideration for the furniture described in the petition of plaintiff, was ever given by deceased, and that the said furniture always remained in the possession of defendant, who has never ceased to be owner thereof.”

The second of these pleas waives the first — the general issue; and the contract being admitted, (that is to say, the execution of the written conveyance of the property to defendant,) the burden of proof is thrown upon the defendant to prove the simulation, which he alleges. A special plea always controls, as far as it goes, the general issue.

The case of Hill v. Maddox, 11 Ann. 511, cited by defendant, has no analogy to the present. In that case, an instrument having the form of a sale for cash, of articles of household furniture, and signed by the vendor, was not rejected by the court, but was held to be an informal pledge, and not a sale, by virtue of two other contemporaneous writings, which were given in evidence, and which explained the true nature of the transaction.

The only question that remains, is, whether the cause shall bo remanded for the purpose of giving the defendant an opportunity to make out by proof, the special defence pleaded by him.

It appears that defendant offered no evidence, and it is possible that ho may have written proof in the nature of a counter letter, which he did not deem it necessary to offer, on account of the ruling- of the District Court, rejecting the plaintiff’s evidence. If so, his neglect to offer such proof, can scarcely be imputed to him as a fault for which he must suffer. We will therefore give defendant the benefit of the silence of the record on this subject. But it is proper that we should add that the unvarying jurisprudence of this court does not allow a party to vary or destroy his own voluntary written argument., by any thing short of written evidence, which includes, under the decisions, answers to interrogatories on facts and articles. Williams v. Hood, 11 An. 115; McCall v. Henderson, 11 An. 210; Stratton v. Rogers, 11 An. 381; Semèré v. Semèré, 10 An. 705; Barry v. Louisiana Insurance Company, 11 Martin 632; Delahoussaye v. Delahoussaye, 7 N. S. 203; Prudence v. Bermodi, 1 La. 240; Rogers v. Hendsley, 2 La. 600; Maignan v. Gleises, 4 L. R. 4; Macarty v. Bond, 9 L. R. 350; Frost v. Bebout, 14 L. R. 108; Hacket, minors, 4 Rob, 299; Groves v. Steel, 2 An. 482; Harkin's succession, 2 Ann. 926; Rachal v. Rachal, 4 An. 501.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the cause be remanded, with instructions to the said court to receive in evidence the document mentioned in the bill of exceptions in the record; and that defendant and appellee pay the costs of appeal.


text:
    State v. Richard McDonnell.—Michael Duffy, Appellant.
    The surety may be sued without making the principal a party to the suit.
    The Auditor’s account, charging a delinquent tax collector with the amount of his defalcation, is sufficient evidence to establish the liability of the surety on the collector’s bond.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      JS. W. Mo'ise, Attorney General, for the State.

      O. Roselius, for the appellant.
   Merrick, O. J.

This suit was instituted upon the bond of the defendant, Richard McDonnell, as State Tax Collector for the Fourth District of Now Orleans.

The account from the hooks of the Auditor of Public Accounts, which was offered in evidence without objection, shows that McDonnell was a defaulter for $27,054 57.

The proceeding was commenced by a rule against the tax collector and his sureties under the 7lst Section of the Act approved March 15, 1855. Acts 1855, p. 517, 518. McDonnell having absconded, as it appeared by the return of the Sheriff, a Curator ad hoc was appointed to represent him.

Michael Duffy, one of the defendants in the rule, who was condemned as surety for McDonnell for the sum of one thousand dollars, has appealed from the decree which was adverse to the defendants. He assigns the following-errors, viz:

1st. “The proceedings are irregular, null and void, because the principal obligor, McDonnell, lias not been cited and is not before the court, and no judgment can be rendered against his sureties unless the amount of the alleged defalcation is established contradictorily with him. The appointment of a Curator ad hoc is unauthorized by law.”

2d. “There is no legal evidence whatever to establish any defalcation on the part of McDonnell, the tax collector. The return of the Auditor of Public Accounts is no evidence of the facts stated therein. No law has made it so.”

I. On the first ground assigned as error, we remark, that if there he anjease, in which the surety should respond for his principal, it is where the principal has absconded with the funds the safety of which the surety has undertaken to guarantee.

If a personal service upon the principal were necessary in order to charge the surety, a bond taken to secure the State against the acts of the principal debtor would be entirely nugatory, for if tlie principal should flee from the State, there would he no recourse against his sureties. But the surety may be sued without making- the principal a pra-ty to the suit. If so, the appointment of a Curator ad hoc, to represent the principal debtor, cannot prejudice the surety.

If the surety is properly cited, the only question between him and the State is, lias the bond been forfeited, and how much is duo upon the same? It might be convenient for him if his principal should answer these questions. But if his principal has absconded, the surety must respond to them alone.

II. The certified extract from the Auditor’s account was received without objection. It was, therefore, properly considered by the court. The defendant who did not even take a bill of exceptions to the introduction of the evidence, cannot make its reception a valid basis for the assignment of error. He must be presumed to have assented to its introduction. 11 An. 37. But if it be intended bjr the assignment of errors to assert, that the account of the Auditor proves nothing when introduced in evidence, the objection is answered by the section of the statute cited, which makes it the duty of the Auditor of Public Accounts to charge the delinquent with the amount of his defalcations, and to require the District Attorney of the proper district to proceed, by rule, against the tax collector and his sureties.

Judgment affirmed.


author: Spoword, J.

text:
    Thomas Hynes v. C. A. Morin.
    Where tile holder of two notes secured by mortgage oil the same property, at the maturity of the first note obtained a judgment on it, with preference on the proceeds of the sale of the mortgaged property, which being sold under his execution, did not bring a sufficient amount to satisfy both notes. JXel&: That the fi.fm issued under the judgment, should have been first satisfied in full, and the balance held by the purchaser and judgment creditor, who bought in the property, to meet the other notado imito-, when it became due.
    The plaintiff in the seizure, Who was the holder of both of the notes, not having asked for a sale of the property on such terms of credit for the balance of the price, as Would correspond with the falling due of the second note, the Sheriff had no right to apply the price first to the outstanding note in the hands of the seizing creditor, and thus leave a balance unpaid on the execution under Which the property Was sold.
    APPEAL from the Pourth District Court of New Orleans, Reynolds, J.

      L. F. Andry, for plaintiff.

      G. Legm-deur and J, L. Tissot, for defendant and appellant.
   Spoword, J.

The appellant states his case thus:

“ (7. A. Morin, ivas the holder and owner of two promissory notes subscribed by Thomas Hynes, one for the sum of $1,680, the other for the sum of $1,770, and secured both by the same mortgage upon the sa/me property,
“At the maturity of tile first note, to wit: that of $1,080, Morin brought suit upon it, obtained judgment against Hynes and issued a, fi.fa. under which the Sheriff seized the mortgaged property and sold it for $2,400 cash.
“The Sheriff then deducted his costs, amounting to $45 £0, and applied the balance, to wit: $2,354 50, to the payment: 1st. of the outstanding note of $1,770, and 2d, of the writ in his hands which amounted, -with interest and costs, to $1,780 05; thus leaving a balance of $1,204 56, still due under the writ.
“Por the recovery of this balance, Morin issued an alias fi.fa., whicli was enjoined by Hynes, upon the ground that the sheriff ought to have applied the proceeds of the sale to the payment in full of the writ, and that the latter was, therefore, satisfied.”
“The District Judge was of a like opinion and made the injunction perpetual.”
“Prom this judgment Morin has appealed.”

Considering that G. A. Morin, tho holder of both tho mortgage notes, one due and the other not due, chose to tako a judgment by preference on tho one that was due, without, at the samo time, asking for an order that tho property (mortgaged at once to seoure both) bo sold on such terms of credit for the balance as would correspond with the falling duo of the other note, wo think there was no error in perpetuating tho injunction. By the terms of tho judgment, which were of his own seeking, he had secured a preference on the proceeds of the sale forthe payment of the whole of the note then due. However, justly and successfully, a third person might have complained of and intorferred with this judgment, the part}' who procured it had no right to change it. The fl.fa. issued under it should have been first satisfied in full, and the balance held by the purchaser and judgment creditor, Morin, to meet tho other note^w tanto, when it should fall duo,

Judgment affirmed.


author: Si’oitok», J.

text:
    State v. John McGinnis.
    The information charged that tlic prisoner on, &c., at, &c., “with a certain dangerous weapon, to wit: a pistol, in and upon one Thomas Martin-, did make an assault, by wilfully shooting at hinx with the intent, him, the said Thomas Martin, then and there to kill and murder.” There was endorsed on the information the phrase “ Information with intent to kill,” which formula was re* peated by the clerk in the entry on the minutes of the court. Held: That the mistake of the clerk neither enlarged nor reduced, nor violated the authentic accusation contained in the body of the information on which the prisoner had beon arraigned and pleaded not guilty.
    The verdict of guilty, found by the jury, was properly followed by a sentence against the prisoner for the offence charged in the body of the information. The minor offence of “an assault with intenc to kill,” endorsed on the information, was not the offence for which he should have been punished.
    APPEAL from the First District Oourt of New Orleans, limit, J.

      E. }K Moise, Attorney General for the State.

      B. S. Tappan and Race & Foster, for the appellant.
   Si’oitok», J.

John McGinnis has appealed from a judgment of the First District Court of New Orleans, whereby he was sentenced to eighteen months imprisonment, at hard labor, in tho State Penitentiary, and to pay the costs of prosecution.

There is no bill of exceptions in the record, and our attention is confined to two errors assigned in this court as apparent on the record:

“1st. That the accused has been sentenced for an offence for which he was never tried.
“2d. That he has been sentenced under an illegal, invalid and insufficient information.”

Under an Act of 1855, (Revised Statutes, p. 1G0, Section 2,) “prosecutions for offences not capital, may be by information, with tho consent of tho court first obtained.”

It appears by tho record, that the District Attorney, with leave of the court, filed an information against John McGinnis, which was duly docketed and numbered 12,574. This information, which thus became an integral part of the record, charged, that JoJvn McGinnis, on, &c., at, &c., “with a certain dangerous weapon, to wit: a pistol, in and upon one Thomas Martin, did make an assault, by wilfully shooting at him, with tho intent, him, tho said Thomas Martin, then and there to kill and murder.”

Upon his arraignment, he pleaded “not guilty,” and, after a trial, the jury brought in a verdict of “guilty,” with a strong recommendation to the mercy of the court. There was no demurrer, no motion to quash, and no motion for a new trial or in arrest of judgment.

Inasmuch as under the number and title of the cause, there was endorsed upon the information, the phrases “information for assault with intent to kill,” a descriptive formula, which, it appears, the clerk repeated when making his entries relative to the arraignment, trial, &c., &c., the appellant contends that we must infer that he was tried for nothing but an assault with intent to kill, which is punishable by simple fine and imprisonment, (Revised Statutes, p. 180, Section 10,) and could not bo punished for an assault by shooting at another, or an assault with intent to commit murder, which are punishable by imprisonment, at hard labor, not exceeding two years. Revised Statutes, p. 136, Section 9.

The concise endorsement of the character of the offence upon an information or indictment is for convenience only, and forms no part of the substance of the charge. The State v. Smith, 5 Ann. 341; State v. Rohfrischt, 12 Ann. 383, It is advisable that the District Attorney or the clerk, if he makes such endorsement at all, should describe the offence as accurately as is consistent with brevity; but a mistake in this particular can neither enlarge nor reduce, nor vitiate the authentic accusation which is contained only in the body of the indictment found, or information filed by leave of the court.

The prisoner is never called to answer to the condensed title of a bill or information ; he is arraigned and tried upon the bill or information itself.

So an error of the clerk in entering upon his minutes a brief description of the nature of the offence, whenever the case is called by its number and in its order, cannot change in any degree the formal accusation preferred against the prisoner according to law, nor vitiate the proceedings under such accusation.

Although, in this case, it would have been more accurate to have endorsed upon the information the words, “assault by shooting another with intent to murder,” the prisoner to whom that information was read, when he pleaded to it, knew that such was the nature of the accusation against him; and the mistake of the District Attorney or the clerk in styling the offence “an assault with intent to kill,” by an endorsement which was surplusage and entries which were needlessly full, mislead no one; for the prisoner was tried, not upon the endorsement, nor upon the concise description of the charge unnecessarily added by the clerk to his entries of the proceedings in the case, but upon the information itself. And when the jury found a general verdict of guilty, they found the prisoner guilty in manner and form as charged in the information, not as charged in the endorsement or the clerk’s entries.

The second error assigned is so vaguely set forth that, perhaps, it should receive no notice at our hands. "We will remark, however, that the information strictly pursues the tenor of the 9th Section of the crimes Act of March 14th, 1855, p. 131, and that the offence is purely statutory. If there are any defects in setting forth details, they are defects of form merely, and as such, should have been objected to by demurrer or motion to quash before the jury was sworn, and could not be listened to afterwards. Act relative to criminal proceedings, approved March 14th, 1855, Section 18, Revised Statutes, p. 177, Section 91.

Judgment affirmed.


author: Spoeford, J.

text:
    W. Creevy et al. v. J. W. Breedlove.
    A motion to dismiss the appeal is too late after the lapse of three judicial days, from the filing of the transcript, and after the cause has been set down for trial at the instance of the party who moves the dismissal.
    Property sunk in a steamboat and unclaimed for twenty-three years held to be clearly derelict.
    Excessive damages awarded below will be reduced by the Supreme Court.
    from the Fifth District Court of New Orleans, Augustin, J. Tried by a jury.

      H. Gaither and IK 8. Stansbury, for plaintiffs.

      Semmes & Lcibat and J. G. Larue, for defendant and appellant.
   Spoeford, J.

The motion to dissmiss came too late. More than three judicial days had passed since the filing of the transcript, and the cause had already been set down for trial at the instance of counsel for the party who afterwards made the motion to dismiss. See Temple v. Marshall & James, 11 Ann. 613. O'Reilly v. McLeod, 2 Ann. 138.

The property sunk in the steamer Tennessee having been unclaimed for twenty-three years was clearly derelict. The plaintiffs had a right to attempt its recovery by means of their diving bells and wrecking apparatus.

The defendant, under the evidence, was without a legal interest to justify his interference with the operations of the plaintiffs. There is evidence enough in the record unobjected to, to establish the fact of his wrongful interference to the damage of the plaintiffs, without considering the validity of the certificate from the Supreme Court of Chancery of the State of Mississippi.

But the damages awarded ($7,000) appear to us excessive. The temporary pendency of the injunction could only have caused the plaintiffs to lose the time and money they had already expended over the wreck, and were obliged to spend in resisting the injunction. All other considerations are too remote, conjectural and fanciful to serve as a basis for the estimate of damages in a case of this character.

For, the alleged treasure is still in the river bed. So soon as the injunction was dissolved, the plaintiffs might have returned thither and renewed their search for gold. They lost the time spent in gaining access to the wreck in the fall of 1846, because, pending the injunction the current of the river again covered it with mud and sand. They were put to an expense of five hundred dollars in defending the suit. It seems to us that under the evidence three thousand dollars would be an ample remuneration to the plaintiffs for their labor lost in consequence of the defendants course in suing out the injunction

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs recover of the defendant the sum of three thousand five hundred dollars and the costs of suit in the District Court, they paying the costs of this appeal.


author: Spoeeord, J.

text:
    Delphine Soudieu v. J. E. Faurès.
    Brokers may extend their responsibility beyond its limitations as fixed by Art. 2057 C. C., by assuming to themselves other functions than those imposed upon them by law and usage. Where such an agent has disobeyed instructions, he cannot rely upon a ratification of his acts by his principal, without showing that they were ratified after a disclosure of all the material facts.
    APPEAL from the Second District Court of New Orleans, Morgan, J.-

      &. Legardeur, for plaintiff.

      St. Paul & Bouny, for defendant and appellant,
   Spoeeord, J.

Brokers acting strictly in that capacity, “ are not responsible for events which arise in the affairs in which they are, employed; they are only, as other agents, answerable for fraud, or faults.” O. O. 2087.

But they may incur other liabilities, by assuming to themselves other functions than those which law and usage impose upon brokers. By convention, or by their course of conduct with particular parties, the may modify and enlarge their responsibility.

In this case it appears that the defendant was not a simple intermediary ; he took upon himself other and greater obligations than those of a note broker merely.

He undertook to make safe investments of the plaintiff’s money. He received the money and placed it upon his own judgment, not upon hers. This is obvious, not only from the direct testimony in the cause, but from an admission in the defendant’s answer.

He disobeyed instructions and did not invest upon mortgage or in first class discount paper. He invested imprudently and is responsible for the loss consequent upon that imprudence and violation of instructions, unless the plaintiff is shown to have ratified his action, after a disclosure to her of all the material facts. The ratification relied upon as inferrible from her having once had in her possession the worthless note which the defendant bought with her funds is not well established; for aught that appears she was left in ignorance of what the defendant was bound to disclose in order to shift from himself the responsibility of a violation of instructions and of a lack of that prudence which his special undertaking guarantied. ■

Judgment affirmed,


author: Buchanan. J.

text:
    T. J. Durant v. J. L. Riddell.
    '11)6 GL'Betibii bí ii vei-ahdali bf the saino fvidtb ivitii the sttebt, ih frbnt of one’s house, is hfit iiil infringement of the lights of the oUiier of the adjoihing teheinfeht find cannot be complained of as In Violation of the Articles bf the Civil Code regulating the servitudes of light and view.
    APPEAL froih ihfe Si&tli District Court bf Nthv Orleans, Cotton, J.

      C. Jloselnis, for plaintiff and appellant,

      Benjamin, Bradford <6 Finney, for defendant.
   Buchanan. J.

Plaintiff and defendant are owners of adjoining tenements» having a front on Baronne street in this city. Defendant has erected a verandah in front of his house, of tho same width with the side-walk of Baronne street, and supported hy iron columns. Plaintiff complains of this as a nuisance which has caused him pecuniary damage, and prays for its abatement

In argument, plaintiff relies upon Articles 707, 711, 712 and 713 of the Civil Code. An examination of the evidence does not show an infringement by defendant of any of those Articles. The servitudes of light and view, which plaintiff may claim, are those which are common to all the front proprietors of Baronne street, and no more. The distinction which is made in tho petition between a fight to erect a balcony of three or four feet in width in front of one’s property (which is admitted,) and the right to erect a balcony or verandah of the width of the side-walk of Baronne street (which is denied) is purely fanciful, and has no foundation in law or in reason. Every front proprietor is clearly under an obligation not to obstruct tho free use of the street; and the enforcement of this obligation concerns the municipal authority, which has enforced it, as shown by tho ordinance of 1852, by the prohibition to erect awnings or balconies, which shall be less elevated than eight feet, above tho side-walk. As to the verandahs, of the kind erected by the defendant, extending- over the whole breadth of tho side-walk and elevated far above it by columns on a line with tho qurb stone, which the evidence shows to have become so common of late years, they are very obviously, so far as the public is concerned, a great improvement as compared with the hanging galleries and wooden sheds which extend only to the half or the third of the width of the side-walk, and from which the drip, in rainy weather, is so great an annoyance to foot passengers. These modern verandahs, on the contrary, afford a perfect shelter from the sun and weather, to passers by the front of the houses to which they are attached. In sultry climates, the necessity of shade from the sun, to health, and comfort, has universally introduced the custom of balconies or verandahs ; which in this respect, are equally beneficial to the inmates of tho houses, and to wayfarers. So much for the public considerations attaching to this subject; and which are the only ones really presented by the evidence, inasmuch as the plaintiff has not pretended to have any servitude upon the property of his neighbor tho defendant, created by convention or written title.

As to the acts of defendant and his tenants, alleged to have caused damage to plaintiff, we perceive an inconsistency in the complaint first made, that the erection of the verandah was an intrusion upon the privacy of the plaintiff’s dwelling, -by enabling defendant’s tenants to look into plaintiff’s bedchambers ; and the second complaint, (after defendant had erected a screen or lattice upon the south end of his veranhah) that the screen or lattice so erected, obstructed the prospect towards Canal street. The defendant, in erecting such screen, appears to have been actuated by a sincere desire to obviate the objections previously made by his neighbor, to the verandah; and to have used every exertion to protect the plaintiff from the indiscretion or impertinence of defendant’s tenants.

Being of opinion that the defendant has not invaded the legal rights of the plaintiff, in the erection of the verandah in question, the judgment of tho District Court is affirmed, with costs.


author: Spoitord, J.

text:
    L. & R. Coucy v. Patrick Cummings—J. M. Bach, Warrantor.
    The mere trespasser who is defendant in a petitory action, cannot defeat a prima facie title made out by the plaintiff on the ground of the non-rigistry of such title.
    The registry may be made at any time and it does not concebí a trespasser that it should be made at all.
    As against a naked trespasser, the plaintiff in the petitory action is not bound to show a title perfect against the whole world.
    In forced sales for taxes the forras of law must be rigidly pursued and a title thus derived cannot be aided by intendment.
    When the proceedings are against one described as an absentee, the purchaser at the tax sale would acquire only the interest of such absentee. ^
    APPEAL from the District Court of Jefferson, Burthé, J.

      Michel <& Gilmore, for plaintiffs.

      T. MeOay, for defendant.

      Hiestand & Levy, for warrantor and appellant.
   Spoitord, J.

The plaintiffs having succeeded in a petitory action for certain lots of ground in Jefferson, the defendant’s warrantor has appealed.

The plaintiffs claim the lots as instituted heirs of Victoire Marcos Tio, deceased, who acquired title from Nelson Bouché and Jean Jacques Montfort on the 17th May, 1836, by notarial act.

The warrantor, Bach, claims to have acquired a valid title to the same lots on the 10th May, 1852, by the Sheriff’s adjudication at a tax sale in the suit of “ the Mayor and Aldermen of the City of Jefferson for use of T. May v. Judith Proux, absentee or unknown owner of lots 17 to 20 in square 34.’’

The appellant contends that the plaintiff’s title is absolutely null and void because the act of sale from Bouché and Montford to Tio was not proved to have been recorded, and that he, though he were a mere trespasser, as the defendant in a petitory action, could defeat the plaintiffs by pleading this lack of registry. (Rev. Stat. p. 453).

This position is indefeasible. An unrecorded sale is valid between the parties and their privies. The act is receivable in evidence though not registered. The registry may be made at any time. It does, not concern a trespasser that the registry should be made at all. The law was intended only to protect those who claim to have acquired the thing by'valid title themselves through or under a vendor of the person who holds an unrecorded deed and thereby causes innocent parties to be deceived. The policy of the law is that such parties shall not bo affected by latent conveyances. See Buel v. N. Y. Steamer, 17 L. 541.

The plaintiffs made out a prima facie title in themselves. It was then for the defendant to show a better one. For as against a naked trespasser the plaintiff in a petitory action is not bound to show a title perfect against the world. Patin v. Blaise, 19 L. 396; Bedford v. Urquhart, 8 L. 239; Baillie v. Burney, 3 Rob. 319; Broughton v. King, 9 R. 218.

The title set up bjr the warrantor only dates back to the year 1852. It is a title purporting to be derived from one Judith Bronx, by forced sale for the cost of building a banquette assessed against her alone, as appears by the surveyor’s certificate, which forms the only evidence in the record of the imposition of a tax upon this property.

It is contended that because the proceedings were conducted against Judith Prow® as an “absentee or unknown owner” of the lots, it matters not who was the owner, but that the rights of every other claimant were transferred to Bach at the Sheriff’s sale by virtue of the 21st secton of the Act of 9th March, 1850, p. 60. In these forced alienations of property, the forms of law must be rigidly pursued and a title thus derived cannot be aided by intendment. Upon their face the proceedings were only directed against Judith Proux, described as an “ absentee or unknown owner,” and they could therefore only convey to the purchaser such interest as she had. It does not appear that she had any.

The judgment appealed from is, therefore, affirmed with costs.


author: Voorhies, J.

text:
    City of New Orleans v. Martin Gordon, Agent, &c.
    In an action on a penal statute which must be strictly construed, it is necessary that the facts constituting the grav men should be clearly and distinctly stated.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      F. G. Laville and Morel, for plaintiff.

      Durant & Horner, for defendant and appellant.
   Voorhies, J.

This is an action to recover of the defendant $350, with interest, Assistant City Attorney’s commission and costs, penalties alleged to have been incurred by him under the third section of an ordinance of the city, approved 23d Juno, 1854, as follows, viz:

“Sec. 3. Be it further ordained, that any person or persons refusing or neglecting to repair the side-walks, foot-passages, or common alleys, in front of his or their property, or bordering thereon, or cause the same to be made when required, after the expiration of the ten days, shall be liable, in addition to the cost of making said repairs, to a fine of ten dollars for each day he or they are in contravention, said fine to be recoverable before any court of competent jurisdiction.”

The agent, in his answer to the plaintiff’s petition, after pleading the general issue, avers, that the side walks in front of the property of his principal is and has always been in good order; that neither he nor his principal has ever been put in default; and that if what is alleged be true, which is denied, the city itself has violated the ordinance by not repairing the side walks, &c.

The defendant is appellant from a judgment of the court below, condemning him to pay the plaintiff said sum of $350, with five per cent, interest thereon from judicial demand, ten per cent, thereon for Assistant City Attorney’s commission and costs of suit.

The first section of that ordinance provides, “ that whenever any of the side-walks, common alleys, or foot-passages, within the corporate limits of the city, shall need repairs, it shall bo the duty of the street commissioner, or his deputies, to notify, in writing, the owners or their agents of the property fronting or bordering thereon, to cause said repairs to be made within ten days after service of said notice.”

The second section declares, “ that after the expiration of said ten days, in case said side-walks, common alleys or foot-passages are not repaired by the owners, or agents aforesaid, it shall be the duty of the street commissioner to cause the necessary repairs to be made at the expensé of said owners of property fronting or bordering on said side-walks, common alleys or foot-passages.”

F. Young, deputy street commissioner, for tho plaintiff, and F. F. Briggs, for the defendant, were the only witnesses examined on the trial below, the substance of whose testimony may be thus briefly stated. That of the former shows, that the side-walk in front of the defendant’s property was bad and wanted repairs; that some one, whose name was not signed, had complained of it on the books in the Street Commissioner’s office; that the defendant’s agent was notified of it in writing, on the 25th of September, 1850; that tho bricks of the pavement have sunk down in two or three places, collecting pools of water whenever it rains, and wetting the passers by, and has never been repaired ; that the side-walk complained of, and in consequence of which he notified the defendant, is on Apollo street, and, extends from Thalia to Melpomene st/reet; and that he examined tho side walk on the day of the trial and found it in the same condition it was, when he notified the defendant’s agent, no attempt ever having been made by the city to have the same repaired.

The testimony of the other witness, who resides on Thalia street, between Náyades and Apollo, shows that he is acquainted with the side-walks, along the whole front of which there is a row of trees; that he was called on bjr Gordon, the defendant’s agent, to examine it soon after the equinoctial storm in September last. One of the trees had been blown down, and put up, or taken away afterwards, leaving no obstruction. He thought that Gordon’s notification to repair the side-walk, proceeded from the tree having been blown down, considering the side-walk in pretty good order. He was not in the habit of going by there daily, but at the time Gordon called on him to examine the side-walk, he found it in as good order as the generality of banquettes in that neighborhood; he has passed over it some twelve or fifteen, times since the month of October, and found it in the same condition as it was when he examined it the first time.

The present suit was instituted on the 19th of November, 1856, and tried on the 1st of April, 1851.

The following statement forms a part of the petition, viz:

“ [Suit No. 159.] Comptroller’s Office, )
Martin Gordon, agent of D. F. Kenner, No. 85 Camp street. J To Oity of New Orleans:
Eor fine incurred by him for having, on or about the 25th day of September, 1856, violated Oity Ordinance, to wit: Ord. 1586, sect. 3d, in refusing to repair his side-walk, within corporate limits of the city, although duly notified by J. A. Guyol, Street Commissioner, on tho 25th September, 1856.
Mcm'ttn Gordon, No. 35 Camp street, agent of D. F Kenner, Appollo street, between Thalia and Melpomene streets. Eine of $10, after ten days notification of ord., during 35 days, at $10, $350.
Witness. E. Young, Deputy Street Commissioner.
Registered, November 11th 1856. T. Thear», Comptroller.
To F. O. Laville, Assistant City Attorney.”

In an action on a penal statute, which must be strictly construed, it is essential, in our opinion, that the facts constituting the grmamen should be clearly and distinctly stated. In this case, the petition merely sets forth the defendants indebtedness, arising from his violation of the third section of the ordinance, which is therein copied, and that “he has, during thirty-five days, violated said section of said ordininance, at ten dollars a day, making in all the sum of $350, as per bill annexed, and part of this petition.” There is no description given of the property of the defendant, or the nature of the repairs required to be made to the side-walk in front of the same. The evidence, which wc have carefully examined, appears to us insufficient to supply this defect; indeed, giving equal weight to the testimony of each of the witnesses, whose credibility does not appear to have been taken'into consideration by the court below, it is certainly very inconclusive, especially when we take into view the facts, if such repairs had been necessary, of the remissness of the city to make them at the expense of the defendant, as enjoined by the ordinance, which is imperative, leaving it no discretion to postpone indefinitely such repairs, in order to inflict a heavy penalty on the owner. As the manifest object of the ordinanc is to keep in order, free from any nuisance, the side-walks, common alloys and foot-passages of the city for the common use and benefit of the public, the infliction of the penalty in cases in which such object is not sought to be attained, as in the present case, would be inequitable, and not in accordance with the letter and spirit of the ordinance.

We think the court below, therefore, erred in overruling the defendant’s exception to the plaintiff’s petition, on the ground that the same did not contain such specifications of a violation of the ordinance as to enable him to answer.

It is, therefore, decreed, that the judgment of the court below be reversed, and the action dismissed at the plaintiff’s costs in both courts.


text:
    City of New Orleans v. B. Saloy.
    The defendant, sued for a tax bill, objected to the citation, that the advertisement by which he was cited, under the Act of the Legislature, April 15,1853, was only once inserted in the official newspaper. The objection held not to be valid.
    APPEAL from the Fifth District Court of Now Orleans, Augustin, J.

      Lamille and Morel, for-plaintiff.

      G. & G. JS. Schmiclt, for defendant and appellant.
   Spofford, J.

The objection to the citation does not seem to he sustained by the tenor of the law of April 15th, 1853, p. 86.

The other point made in the brief of appellant is too indefinitely stated; no conditions are shown to have been violated, and no specific informalities are suggested to invalidate the plaintiff’s claim.

Judgment affirmed..

Buchanan, J., takes no part in this decision.


author: Merrick, C. J.

text:
    Fearn, Putnam & Co v. W. A. Richardson.
    A merchant in Louisville filled an order on him for merchandize to be shipped to the purchaser at Yiclcsburg, «and took a bill oflading for the same, deliverable to the purchaser at Vicksburg, from, the agent of a steamboat on which the goods 'were to be transported, The goods were taken by drays from Louisville to Portland, to be there received on the boat according to the custom of the trade in low water on the Ohio river. At Portland the goods were delivered to a different boat from the ohe from which a bill oflading had been taken, and were never delivered to the purchaser at Vicksburg. IIeld: That the bill of lading in such a case is conditional, and only binding in case of actual delivery of the goods to the steamboat.
    'íhe vendor of the goods did not use ordinary care and diligence in shipping the goods and the purchaser is entitled to recover back the price paid for them.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Price & Pay, for plaintiffs and appellants.

      IT. Gaither, for defendant.
   Merrick, C. J.

The plaintiffs, doing business at Jackson, Mississippi, ordered thirty coils of rope from the defendant, a dealer at Louisville in wool, hemp, bagging, rope, twine, &c.

The latter made out an invoice of the goods and took a bill of lading for them from the steamboat Republic on the 2d August, 1854, signed by “ P. Lns. Barlmn, agent, per 8. Bomer ” by which the merchandize was to be delivered to plaintiffs agent at Vicksburg, Mississippi. The plaintiffs in payment remitted their bill of exchange upon the house of Fearn, Ponnegan & Go., of New Orleans, which was accepted by them. The merchandize never having come to hand the bill of exchange was protested for non-payment, but was finally paid by the acceptors on the 20th December, 1855.

This action is brought by the plaintiffs to recover back this sum of money as paid in error.

The proof shows that the Ohio river is usually low in August, and that in low water the custom of the trade is to take bills of lading from the agents of the boats in Louisville, and forward the goods by drays to the boats at Portland, accompanied by dray tickets addressed to the boats on which parties intend to ship, giving the marks and numbers of packages. Sometimes the bill of lading has the condition inserted, “ subject to dray tickets.”

It appears from the correspondence of the parties, which has been produced and on which the case must he determined, that the Republic did not receive the goods, but that they were taken by a boat called the Odd Fellow, and reshipped on the steamer Dresden and finally delivered to Messrs. J. O. Griffin & Bro. Memphis, Tennessee. They were claimed by a Mr. Ford, as belonging to his brother who had failed, and whose business he was winding up. He took six coils of the rope to his plantation, and the rest of it he sold to Griffin & Bro. The parties doubting their respective rights to recover of Griffin & Bro. and Ford, have canvassed in their correspondence the question on whom the loss must fall. The defendant contends that he was only an agent, that he took a bill of lading from the boat and sent the goods to Portland for the boat, and that he did his duty and was discharged. The plaintiffs contend that the goods were never properly shipped and delivered. It is not important to consider whether the defendant must be considered as a dealer on his own account or as a factor. In either case it was his duty to see the goods shipped. It has been held that in ordinary cases the captain of a vessel is without authority to bind the owners by signing a bill of lading unless the goods are actually delivered or put on board the vessel. Abbott on shipping, p. 823, note 3. But the custom of trade at Louisville it seems, is to sign the bills of lading before the goods are sent by the drays to Portland. In such cases the bills of lading must be considered as conditional and only binding in the event the goods are really delivered to the boat at Portland.

It would thenee seem that that the production of a bill of lading alone, signed by the agent in Louisville, does not show a delivery to the steamboat, but that the production also of the dray receipts are required in order to fix the liability of the owners of the boat. The defendant has not therefore shown that ordinary care and diligence which was required of him, whether he be considered a vendor of the goods or a mere agent. He should have shown that the dray receipts were signed by the clerk or other officers of the Republic, and he did not exercise proper care, inasmuch as he does not appear to have examined the dray receipts, on the return of the drays from Portland, in order to ascertain whether the goods had been delivered, and if so, whether they had been delivered to the right boat.

But the defendant further contends that at the time the draft was paid the plaintiffs did not pay in error, for they had full knowledge of the whole transaction and are therefore precluded from recovering. O. 0.2280. It is admitted that the draft was paid by Fewrn, Donnegan & Go., the acceptors, We think, therefore, the payment must be considered as relating to the date of the draft, and that epoch must be considered its date between the parties on the question before us.

The garnishees have sufficient funds in their hands to pay the debt.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the plaintiffs do recover and have judgment against the defendant, for the sum of three hundred and sixteen 47-100 dollars, with legal interest thereonfrom the 28th day of December,

1855, until paid, and costs of both courts, and it is further ordered, that said garnishees, Pmmele & Brother', pay said sum of money, interest and costs, out of the funds attached in this suit, and admitted by their answers to be in their hands.


text:
    S. J. Bair v. I. P. Abrams and Wife.
    The written admission of a party of the fact that he had made a verbal sale of a slave to another, Is primary evidence, and makes legal proof of title to the property.
    Where a sale is made with the right of redemption, the right must be exercised within the time agreed on, otherwise the purchaser becomes irrevocably possessed of the thing sold. C. C. 2548.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      A. T. Steele and J. B. Lyman, for plaintiff and appellant.

      Gla/rTce & Bayne and JDrouet & GhaoDet, for defendants.
   Voorhies, J.

This is the second appeal which has been taken in this case. In the former, the ruling of the Judge a quo was held to be erroneous in refusing the defendants a continuance to enable them to prove the fact, as set forth in their affidavit, “ that the plaintiff’s title to the slave in dispute had boon conveyed, by act under private signature, to George W. Goodie, prior to June, 1852.”

On remanding the case, no attempt appears to have been made by the widow Bushey to call her vendor, Joseph T. Calhoun, in warranty; neither does it appear that Goodie has ever been notified of this suit.

The defendants derive their title from Goodie. On the hypothesis that the evidence warrants the conclusion, that the slave in question was in tho plaintiff’s possession as owner in January and February, 1852, and was brought hither by him from Texas, as alleged in his petition, it remains then to be ascertained whether or not his title has ever been legally conveyed to Gooehe. In proof of the divestiture, the defendants introduced a power of attorney under private signature from the plaintiff, to a certain B. T. Houghton, dated the 9th of Juno, 1852, and a letter from the plaintiff to Pickett, Perkins & Co., dated 17th July, 1852. Tho mandate or procuration contains the following-clause : “ And to prevent tho sale of a negro woman named Mary, sold by me to one George W. Goodie for the space of twelve months, for six hundred dollars ; as there is a special contract and agreement between the said G. W. Goodie and myself, that the said slave is not to be sold to any one within twelve months, and only to myself, and for tho amount of six hundred dollars, being the purchase monej'-,” &c. In his letter, the plaintiff declares:

“ Moreover I will state to you, that I sold a light colored girl named Mary Sneed to a Mr. Goodie; the girl I was to have back at the same price which she was sold for, which was six hundred dollars, when I returned from California, u;- at the expiration of twelve months.”

On the trial below, the plaintiff objected to this evidence on the ground that, if offered to prove a verbal sale from him to Goodie of the property in question, it was inadmissible, as such a sale was null and not susceptible of proof; and if offered to prove a written sale of said property, it was equalty inadmissible as secondary evidence, tho sale itself as the best should be offered, unless shown to have boon lost or destroyed, or its production shown to be out of the power of the party.

The objection, it appears to us, could only go to the effect and not the admissibility of tho evidence. As a general rule, it is true the law requires literal proof of title to immovables or slaves, but a verbal sale of such property, accompanied by actual delivery, and proved as required under Article 2255 of the Civil Code, is no less binding on the parties. Tho written admissions of a party of the existence of a verbal sale of such property, ought certainty to be as binding- upon him as that which is elicited from him when interrogated on oath under that Article, But in the present case it seems to us, that the evidence objected to is primary and not secondary, making- legal proof of title to the property in controversy. Millaudon v. Police Jury, 8 N. S. 130; Millman v. Leverich, 11 La. 520.

The contract then between Bair and Goodie is shown to be a salo with tho right of redemption (la faculté de réméró ou de rachat), which rested solety on the will of the former to dissolve it, by offering to repay the price and redeem the property. Patterson v. Roman, 14 La. 214. “ If that right has not been exercised, within the time agreed on, by the vendor, he cannot exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold.” C. C. 2548. In the present case, as tho stipulated term.has long since expired, it is clear that the right of redemption can no longer be exercised.

Judgment affirmed.


text:
    Samuel Simmons v. His Creditors—On the Opposition of Flint & Jones.
    Where an appeal is taken by one.of the opposing creditors from a judgment homologating the tableau of distribution, it is not sufficient to give an appeal bond in favor of the syndic. The creditors on the tableau interested in maintaining the judgment, must be made parties to the appeal, or it will be dismissed, on the motion of any of them.
    The motion to dismiss on such a ground, is not too late after the expiration of three days from the filing of the record, as the court will, ex officio^ notice the want of parties for a final decree.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Race & Foster, for appellants.

      Seistand & Levy, for appellees.
   Voorhies, J.

William Florence, classed on the tableau of distribution as a privileged creditor of the insolvent, claims the dismissal of the appeal, on the ground that no bond has been given either in his favor or that of the creditors and appellees. The appellants’ bond is in favor of the syndic alone.

We think this case falls within the rule announced in the case of Armstrong v. His Creditors, 8 An. 368. See the authorities there quoted.

But it has been urged by the appellant’s counsel, that the motion for the dismissal was too late, on the authority of the case of Creevy v. Breedlove, 12 An. The decision in that case was based on the rule announced in the case of John Temple v. Marshall & James, 11 An. 613, (see authorities there quoted,) to the effect that the appeal would not he dismissed for irregularities in the transcript, such as the want of an order of appeal, &c., unless such motion were made within three days after the record was filed. But in the present case, the motion rests on entirely different grounds, namely, that William Florence, who has an interest in maintaining the judgment, has not been made a party to the appeal. In the case of Widow Robert, Executrix, v. Ride & Mairot, 11 An. 409, we said: “It is needless to inquire whether the motion to dismiss in this case should have been filed within three days after the transcript was brought up from the inferior court, inasmuch as the practice of this court has been to notice, ex officio, and without any motion to dismiss having been made, the want of proper parties for a final decree.” See cases there quoted.

Appeal dismissed.


author: Buchanan, J.

text:
    J. Rice v. E. Garrett et al.
    Where the defendant, in an injnnction suit prays, in his answer, for damages against the principal and sureties, and the judgment dissolving the injunction is silent on the subject of damages, it is equivalent to a rejection of the claim for damages and the judgment is res judicata between the parties.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      S T Saps, for plaintiff and appellant,

      J. Dunlap and W. 8. Stanbury for defendants.
   Buchanan, J.

The plea of res judicata was properly sustained by the District Court.

The present suit is for damages against the principal and two sureties upon two several injunctions bonds given for the same iqjunotion in the oase of (?arrett v. Rioe, decided upon appeal in this court, at the May term, 1856, not reported.

The injunction issued in the suit of Garrett v. Rice, had for its object to stay the execution of a judgment in which Rioe was plaintiff, and Garrett defendant. Under the Act of 1831, the principal -and sureties in the injunction bond were made parties to said suit, and Rioe, the defendant therein, prayed, in his answer to the suit, for damages against the said principal and sureties.

The injunction was dissolved by judgment of this court on appeal; and wo declared, in the reasons for judgment, that we did not think it a case for the infliction of damages.

Our decree was silent on the subject of damages. This was equivalent to a rejection of the demand for damages, under the pleadings in that cause. Spencer v. Banister, decided this term, and cases there cited.

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


author: VoorhiRs, J.

text:
    C. Derbigny v. J. B. Trepagnier.
    The appellee, at any time before the cause is at Issue on the merits, may have the appeal dismissed as being premature* the judgment of the lower court not having been signed.
    APPEAL from the District Court of St. Charles, Burthe, J.

      Sandlin and St. Raul, for plaintiff and appellant.

      E. Bermudez, for defendant.
   VoorhiRs, J.

The defendant and appellee claims the dismissal of the appeal in this case, on the ground that the same is premature, the judgment of the court below not being signed.

“ The Judge must sign all definitive or final judgments rendered by him, but he shall not do so until three judicial days have elapsed, to be computed from the day when such judgments were given. O. P. 516. An amendment to this Article provides: “ That hereafter, all motions for new trials in causes, shall be made and determined, and all final judgments signed before the adjournment of the court for the time at which such causes were tried, and whether three judicial days shall have elapsed or not: provided, that this amendment does not apply to the parish of Orleans.”

“The party, who believes himself aggrieved by the judgment given against him, may, within three judicial days after such judgment has been rendered, pray for a new trial, which must be granted, if there be good ground for the same.” C. P. 558.

These Articles, construed with reference to each other, and to Article 555 of the same Code, which declares that all judgments thus rendered, shall be considered as having effect only from the last day of the term, whatever may be the day on which they shall have been signed, clearly imply, in our opinion, that no appeal lies from a final judgment which has not been signed by the Judge, Such a judgment cannot be considered as having the effect of res judicata. 8 An. 482 5 S An. 401.

We think the appellee was in time to file the motion to dismiss before the cause was at issue upon its merits,

Appeal dismissed,


author: Voobhies, J.

text:
    J. M. Saux v. F. Lefevre & Co.
    An appeal from a judgment against the two members of a commercial firm in solido, taken by one of the partners only, dismissed on the ground, that the other partner against whom the judgment was rendered should have been made a party to the appeal, he having an interest in maintaining the judgment to secure his recourse against the appellant for his portion of the debt.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Budd & Lambert, for plaintiff.

      J. L. Tissot, for defendants and appellants.
   Voobhies, J.

The plaintiff in this case obtained a judgment against the defendants, in solido, for the sum of $400, with interest and costs. Framgois Lefevre alone appealed from that judgment. In his petition for the appeal, he alleges that the judgment was rendered against the members of the firm, now dissolved, individually and in solido, condemning him to pay the plaintiff the amount claimed in his petition.

The appellee has moved to dismiss the appeal on the ground, that the defendants, Frangois Lefevre and Joseph Figuieri, have not been made parties to the same, or cited in the premises in accordance with law.

The only question presented is, whether Figuieri has an interest in maintaining the judgment. In taking the appeal, it is clear that Lefevre only acted for himself and in his own interest in the matter, and not for his partner; consequently, he must be deemed a principal, and not an agent of the partnership. Hence, it follows clearly, that the judgment against his partner, bound in solido with him, cannot be disturbed on this appeal.

Such being the case, then it is obvious that Figuieri has an interest in maintaining the judgment ;■ otherwise, if reversed, he would inevitably lose his recourse against the appellant, his partner, for a contribution, in the event of his discharging the debt. Supposing that a judgment in this case would not effect Figuieri's interest, as he is not a party to the appeal, then it may be asked what avail would such a judgment be to the appellant, as he would still be liable to his partner for contribution ?

Appeal dismissed.


text:
    Succession of C. Pasquier—Opposition of Auguste Voinché to Tableau of Distribution.
    Where the relevancy or competency of the evidence offered by a party on the trial of a cause cannot be judged of without knowing the purpose for which it was offered, and it does not appear by the bill of exceptions to the rejection of the evidence, that the party offering it was prejudiced by its rejection, the action of the lower court will not be reversed.
    Where the evidence offered is apparently foreign to the case, the party offering it must show that it would be renderod material by other evidence which he undertook to produce.
    A PPEAL from the Second District Court of New Orleans, Morgan, J.

      B. & 3. Mum' and Glande & Bayne, for the curator, appellant.

      Budd, & Lambert, for opponent and appellee.
   Spofford, J.

This appeal presents only questions concerning the admissibility of certain evidence which the District Judge excluded, on the ground of irrelevancy to the matter in dispute.

To induce us to reverse the action of a District Judge in such a case, the appellant should show, by his bill of exceptions or by the record in the cause, that he was prejudiced by the ruling. Hero there is no such showing. The appellant did not suggest that the rejected evidence would tend to exonerate the succession from liability to Voinelú upon the notes, which formed the basis of his opposition. Although it be true that no replication to, or joinder of issue with the opponent is required in our practice, still the curator who refuses to acknowledge a claim against the succession, which is put in suit by way of opposition to his tableau, should at least disclose the purpose for which he oilers evidence on the trial of the opposition ; that purpose being stated, the court then can judge of the relevancy or competency of the evidence; without such a statement, the time of our courts of the first instance might be waisted in vain inquiries into collateral or even foreign matters, to the detriment of suitors and the delay of justice. Because counsel fancy that they may perhaps elicit something that will touch the case, they are not to be permitted to offer evidence which has no prima facie bearing upon it, and which they do not link with it by a statement of what they arc prepared to prove. The true rule, we conceive, has been laid down by Greenleaf in his treatise on the law of evidence, vol. 1, sec. 51. It is not necessary that the relevancy of evidence should appear at the time when it is offered ; it being the usual course to receive, at any proper and convenient stage of the trial, ’ in the discretion of the Judge, “ any evidence which the counsel shows will be rendered material by other evidence, which he undertakes to produce,'’

The appellant here did not pretend to have it in his power to show that the notes held by the opponent Voinché against Pasquier's succession, or either of them, embraced any part of the opponent’s claims, already allowed on the former tableau. Therefore, the evidence adduced on the trial of other issues with other parties, and the explanation of Pasquier's books touching an account heretofore adjusted, were, so far as appeared, irrelevent to this case. And the appellant’s counsel, when he proffered evidence thus apparently foreign to the case, did not show that it would be rendered material by other evidence which he undertook to produce.

Judgment affirmed.