text:
    Ledoux et al. v. Morgan.
    It is not essential to tlie legality oí a notice of protest that it should he addressed to the post-office at which the party was in the habit of receiving his letters, eo nomine. If it be so addressed that, in the ordinary course of transportation by mail, it would go to, and he retained at, that office, it is sufficient

      Where notice of protest is addressed according to information derived from the city factor ot the party notified, due diligence will be considered to have been used to ascertain the proper address.
    APPEAL from the District Court of Carroll, Selby, J.

      Thomas and Snyder, APPEAL for the plaintiffs.

      Stacy and Sparrow, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The defendent is sued as endorser of a promissory note for $5,940, dated at Monroe, La., in 1843, and payable at New Orleans, at the counting-house of the plaintiffs. At its maturity, in February, 1844, it was protested, and the notary mailed three notices for the defendant, one addressed to him at “ Monroe, parish of Ouachita, Louisiana,”'and another “at his domicil near Tompkins’ Bend, parish of Carroll, Louisiana,” and a third “ at his domicil, near Lake Providence, parish of Carroll,- Louisiana.” At the date of the maturity of this note, and for several years previous, Morgan lived in the parish of Carroll. In the parish there were two post-offices, one at Pecan Grove, and one at the town of Providence, the-seat of justice of the parish. Morgan's residence was twelve miles from Providence and about four miles from Pecan Grove, and was between those two places. Morgan did not resort for his letters to the Providence office, but--to that,at .Pecan Grove. Letters addressed to him at Providence were not called for, and were sent by the postmaster to Washington as dead letters.

We consider it as established with reasonable probability by the evidence that, in the ordinary course of transportation of the mail at that time, a letter addressed to Morgan “at his domicil near Tompkins’ Bend, parish of Carroll, Louisiana,” would have reached and been retained in the Pecan Grove post-office for him. We do not consider it material-that the letter was not addressed to the Pecan Grove post-office, eo-nomine. In the ordinary course of the transportation of the mail it would, as results from the evidence, go to and be retained in that office; the purpose of transmission was secured. See Citizens Bank v. Walker, 2 Annual p. 791.

This view of the case is not however indispensable to its decision. Upon another ground the plaintiffs are entitled to recover. A witness, who was ono of the house of Burke, Walt óf Co. of New Orleans, states that they had been the defendant’s factors for several years, and that one of the house of Ledoux 8f Co. called upon him and asked him the address of Morgan. It was, as he believes, in 1844. The witness gave him “ O. J. Morgan’s plantation, hear Tompkins’ Bend,” as a steamboat address,- and “Tompkins’ Bend, La.” as a mail address. These were the addresses then used by Burke, Walt 8f Co., and their address book shows no change since that time. This latter address the plaintiffs adopted. The addition of the words “parish of Carroll,” cannot of course be considered as varying it, Tompkins’. Bend being in that parish. The law imposes upon the holder the duty of reasonable, or, as some of the authorities express it, ordinary diligence, to ascertain the residence of the endorser. Certainly such diligence has been exhibited in the present ease. To whom was it more proper to apply for information as to the residence of the absent endorser, than to his own factor 1 And upon whose information could a party rely with greater confidence 1 The diligence appears to us not only reasonable, but exact.

It is said that Be Saulles, the member of the house of Burke, Watt Co., does not state the precise time in the year 1844, when the application for information was made to him by the plaintiffs. The witness speaks positively as to the fact of the application, and his reply; three years had. elapsed since the occurrence, and it was not to be expected that he should speak to the precise time. Considering that the address was adopted by the notary, as his notarial record shows, and in the absence of any thing to the contrary, it is reasonable to connect the call upon Be Saulles with the maturity of the note.

It is also objected that it appears from the testimony of Be Saulles that Burke, Watt 4* Co. very rarely addressed Morgan by mail, but used the steamboat transmission. But their address book exhibited both the mail and steamboat address;. they gave them as such to Ledoux Sf 'Co., and did not accompany the information with any qualification which would have induced a prudent man to-entertain any doubt that-he had obtained accurate information from the best possible source.

Much stress has been laid in-argument upon the- fact that, in November, 1843; Ledoux 8y Co., being holders of a claim upon which Morgan was security, and having received a partial payment from the-principal debtor, informed Morgan of the fact by a letter addressed to him at Pecan Grove. Hence it is argued-that, at the time, some member of the plaintiffs’ house knew Morgan’s proper address. This evidence would have addressed itself to the mind with greater force if it had appeared that the letter had been replied to, or that the plaintiffs had reason to believe it had reached its destination. The inference is not unreasonable, in the absence of such proof, that they distrusted their former information. This was a matter in which they were deeply concerned, and we find them making enquiries for his proper address at the source where it was most likely to be obtained. Whether Ledoux Sf Co. acted correctly in following the- address book- of Morgan’s factors, is a question perhaps best answered by considering what would have been the legal consequence if that had been beyond all possible-cavil the-true address, and “Pecan Grove” the wrong one, and the plaintiffs disregarding the information of Burke, Wait 4* Co. had neglected to address according to that information. It would have been characterized by the defendant as gross laches, and properly.

The judgment, by soinet oversight, awards a less sum than was due on the note, and must be amended in that respect in the plaintiffs’ favor.

It is therefore ordered that the judgment of the court below be amended, and that instead of the amount decreed by the court below, the plaintiffs, A. Ledoux 4' Co., recover from the defendant, Oliver J. Morgan, the sum of $51940, with interest thereon at the rate of ten per centum per annum from the 31st October, 1844, until paid,-and costs in both courts.


source: Caselaw Access Project

author:
      King, J.
     Rost, J.

license: Public Domain

text:
    The Board of Currency v. The Managers of the Citizens’ Bank.
    The power conferred on the Board of Currency, by the stats, of 5 Feb. 1842, s. 2, and 14 March, 1842, ss. 15, 27, 28, 20, of requiring that the books, papers, and minutes of the proceedings of the board of managers and directors appointed to liquidate the affairs of the Citizens Bank, should be subject to examination by them and of supervising the proceedings of the managers and directors, was not repealed by the subsequent statutes of 5 April, 1843, s. 8, and 6 April, 1847.
    APPEAL from ‘the Fifth District Court of New Orleans, Buchanan., J.
    Gayane, for the appellants.

      Pitolj for the defendants.
   The judgment of the court was pronounced by

King, J.

The secretary of state, and treasui’er of the state, alleging ” that they constituted the Board of Currency, applied to the District Court for a mandamus, directing the board of managers and directors of the Citizens’ , . , 7 J £ ,, ,. ¶ J Bank, to give them access to the books, minutes, and papers of that bank, and to submit to their authority generally as a Board of Currency. The defendants answered : 1st. That under the -present state of our legislation the Citizens Bank is not subject to the supervision of the Board 6f Currency ; and 2d. That the board, as actually established, is in conflict with the 126th art. of the constitution, and has been abrogated by that article. The district judge sustained the first of those pleas, and dismissed the action, and the plaintiff’s have appealed. In support of the first ground of defence it is contended that, the act of the 5th of April, 1843, (Acts p. 56,) and the act of the 6th April, 1847, (Acts p. 76,) have relieved the Citizens’ Bank from the control and supervision of the Board of .Currency, and have provided for it a new and entirely different administration of its affairs.

The Board of Currency was brought into existence "by the act of the 5 th of February, 1842, sec. 2, (Acts p. 38.) The principal object of its creation appears to have been, “ to take care that the paper money issued under the authority of the State be not depreciated.” But -the important duty was also imposed upon it, of supervising the administration of the commissioners appointed for the management of banks in liquidation. Secs. 2, 16. The act “To provide for .the liquidation of banks,” approved, 14 March, 1842, (Acts p. 234,) imposed further duties, and conferred additional powers on the Board of Currency, subjecting the.-entire administration of.the liquidating banks to the control and supervision of that board. Secs. 15.27. 28. 29. In regard to those banks in which the State was a stockholder, or for which it had issued bonds, it is provided, in the 29th section, that if any of them “ against which a decree of forfeiture shall have been rendered as aforesaid, should not enter into the foregoing arrangements, then and in that case it shall be liquidated as follows, to wit: As soon as the governor shall have ascertained that such decree has been rendered, it shall be his duty, by and with the advice and consent of the senate, to appoint six managers of each bank, and, if the senate be in recess, then the governor shall make the appointment of said managers, who shall elect one among themselves as president, and by whom the affairs thereof shall thereafter be conducted in its corporate name, and under the direction of the Board of Currency; and it shall be the duty of the president and directors of such bank, who may be in office at the time such decree shall be rendered, to deliver up to said managers all the property, effects, debts and assets of every description; and said managers shall be, and are hereby, and until otherwise provided by the legislature, invested with the same powers and duties, and subject to the same liabilities, penaltie.s and restrictions provided by the respective charters of said banks, so far as not inconsistent with this act.”

A judgment of forfeiture was rendered against the Citizens’ Bank, and that institution went into liquidation under the provisions of this act, and remained under the supervision of the Board of Currency, whose authority was never questioned, until the refusal longer to submit to this supervision which led to the present suit. Notwithstanding this .long acquiesence, it is now contended that, the express grants of power contained in this act were in reality withdrawn, as far back as 1843, by the'act of the 5th of April of that year (Acts, i p. 56); that the 8th section of that act, together with the silence of the legislature in relation to the Board of Currency, indicates the intention of the legislature to relieve the bank from the supervision of the board, and repeals the 29th section of the act of 1842. The 8th section of the act of 5th April, 1843, relied on, is as follows:

Sect. 8. “ That the twenty-ninth section of the act providing for the liquidation of the 'banks, approved fourteenth March, eighteen hundred and forty-two, be and the same is hereby modified and explained, so that the powers, rights and duties of the managers of the Consolidated Bank and of the Citizens’ Bank of Louisiana, shall be the same, and they shall be subject to the same responsibilities, as those defined by law with regard to the president and directors of these institutions before their being brought into liquidation, so far as is not inconsistent with the provisions of this aet, with the only exception that the managers of the said bank in liquidation shall not, under any pretext whatever, issue notes or bonds bearing the appearance of, or for the purpose of, circulation: the sairj, managers being also liable to the same fines and restrictions established by the laws now in force, in relation to the property banks in. liquidation."

The avowed objeet of the legislature was to explain, not to repeal, a previous statute, and a comparison of the two laws shows clearly the particular objects to which the explanation relates. No powers are conferred on the managers incompatible with those of the Board of Currency; but, on the contrary, it is expressly declared that the managers shall be liable to the same restrictions established by the laws now in force in relation to the property banks in liquidation. Independently of this express reservation no clause of the act indicates an intention to repeal the previous statute, and this construction appears to have been given to the Jaw by the bank itself, for a number of years. By no rule of interpretation cau a change of legislative intention be inferred from its silence.

The act of the 6th April, 1847, (Acts, p. 76,) repealed the 9th section of the act of 1843, which provided for the appointment of six managers for the administration of the Citizens’ and Consolidated Banks, and provided for the appointment of “ a board of bank managers” to be composed of three members, and for the election of three directors to each of those banks, and then declares, “that the said directors, with the managers herein provided for, shall have the power to manage and to do all things necessary and proper to the liquidation of said banks respectively, not inconsistent with this act and existing laws; provided however that, no act of the directors shall have any validity or force, until it shall have received the sanction of the two managers."

This act, it is contended, provides a new administration for the bank, and has substituted the “ board of bank managers” and directors, for the Board of Currency, and has relieved the corporation entirely from the supervision of the latter. While making the change the legislature make a reservation similar to that contained in the act of 1843, that the powers and acts of the new administration shall not be inconsistent with existing laws. One of those existing laws placed the management of the bank under the supervision of the Board of Currency; it had not been repealed, and is still in fullvigor, unless it be repugnant to the act of 1847. It is urged that this repugnancy results from the proviso with which the section concludes, “ that no act of the directors shall have any validity or force, until it shall have received the sanction of the two mnnagej-s representing the State.” This proviso, it is said, controls the reservation in the previous part of the section, and, by necessary construction, the acts of the directors, when approved by the managers, are valid and binding.

It is not necessary for the decision of this case to determine how far, if at , . , , all, this act has trenched upon the various powers previously conferred on the Board of Currency. The proviso at the conclusion of the section relied on is certainly not inconsistent with the exercise of the powers now asserted by the Board of Currency, of examining the books, papers,-and minutes of the proceedings of the Citizens’ Bank. If, in other respects, the provisions of the earlier legislation be in conflict with those of the last act, to that extent only will the former yield and be deemed to have been repealed by the latter. Other considerations influenced the legislature in subjecting the administration of those banks to the supervision of the Board of Currency, besides that of securing their counsel and participation in the active management of the affairs of those corporal ions. The State had large interests depending upon the proper administration of those banks, and upon their ultimate ability to meet their liabilities. In order to protect those interests the legislature prescribed rules regulating their liquidation, and the appointed agents to superintend the execution of those rules were the Board of Currency. Through the reports of that board the legislature was to be informed of the condition of the banks, and of the acts of the agents entrusted with the more immediate and active management of their liquidation ; and, with the view of enabling the board to supply the required information, the books, papers, and minutes of the banks, were to be submitted to their inspection. No provision of the act of 1847, nor other law to which we have been referred, authorizes the conclusion that the legislature intended to dispense with the agency, in this respect at least, of the Board of Currency, nor with the advantages proposed to be derived from it.‘ A law providing for a Board of Currency exists upon our statute books unrepealed, and among the powers which it confers are those claimed to be exercised by the plaintiffs.

But it is objected that the secretary of state and the treasurer of the state cannot constitutionally perform the functions of that trust. The 126 article of the constitution declares that, “ No person shall hold or exercise at the same time more than one civil office of emolument, except that of justice of the peace.” The act establishing the Board of Currency created a distinct office, and provided that the three members, of whom it was originally composed, should be appointed by the governor, with the advice and consent of the senate. Acts of 1842, sec. 2- (Acts, p. 38). The act of the 6th April, 1843, (Acts, p. 63), declares, “ That in future the Board of Currency shall consist of two members only, to wit, the secretary of state and the treasurer of the state, each of whom shall ex-officio be a member thereof, and shall be entitled to only the yearly salary of $1200, free from all expenses of office,” &c. Before the passage of this law the office existed as a separate trust, entirely distinct and disconnected from those of secretary of state or state treasurer. Its .existence as a separate office was not destroyed, by the designation of two officers who alone should discharge its duties ex officio. But, on the contrary, its existence as an office of emolument is recognized in the amendatory act itself. To this union of the trusts there was no impediment when the law was enacted. Similar instances of the accumulation^of a variety of offiees in the hands of one person were not unfrequent under our former legislation, the most remarkablo of which was that of the parish judge, who, in virtue of that office, discharged the duties of numerous trusts, both judicial and ministerial, which were not the less separate offices. This was deemed an evil by the framers of our constitution, and hence the adoption of the prohibitory article. Membership of the Board of Currency being recognized by law as an office of emolument, its tenure has become iricompatible with those of secretary of state or treasurer of the state, under our present constitution. The effect of the article has been to repeal so much of the act of 1843 as constitutes those officers ex officio members of the Board of Currency. The appointment of the one, oribe election.of the other, no longer carries with it membership of the board, or authority to discharge the duties, or receive the emoluments of that trust. The consequence of the repeal has been to leave a statute providing for a Board of Currency which is inoperative, there being no person upon whom the office can be .conferred under the law as it now stands.

Art 144 of the new constitution which provides that no office shall ho superseded by the taking effect of the constitution, but that the laws relative to the duties of the several officers shall remain in full force though contrary to the new constitution, and that the duties ■thereof shall .be performed by the respective officers according to the existing laws, until the organization of tho government under the new constitution, and the entering into office of the now officers to be appointed under said government, authorized the secretary of state and treasurer to continue to discharge the duties of members of the Board of Currency after the taking effect of the new constitution, though membership of tho hoard was a civil office of emolument, distinct from that of secretary of state or treasurer, and involved the exercise by them at tho same time, of two civil offices of emolument contrary to art. 12C of the new constitution.

Same Case — On a Re-hearing.

judgment of the court on the re-hearing was pronounced by

Rost, J.

In this case we came to the conclusion that art. 126 of the constitution had repealod so much of the act of 1843, establishing the present Board of Currency, as constitutes the state treasurer and the secretary of state ex officio members of the board, and that in consequence of that repeal the statute had become inoperative. The case was submitted to us without any oral argument, at a time when the pressure of public business was great, and we overlooked art. 144 of the constitution, which guards against the inconvenience which we supposed to exist. This article was not referred to by either party in the written argument furnished to us.

The ground upon which the defendants rely is, that the membership of the Board of Currency is a civil office of emolument. Such being the fact, under the dispositions of art. 144, the act creating the office was not repealed or in any manner affected by the new organic law; that statute remained in full force, though in some respects contrary to the constitution, and the state treasurer and secretary of state were authorized and required to continue to perform the duties of the Board of Currency according to the existing laws, until the orginization of that board by the legislature under the new constitution.

It is therefore ordered thatthe judgment of the court below be reversed. It is further ordered, that the rule taken upon the defendants be made absolute, ■and that a peremptory mandamus issue against them, as prayed for. It is further ordered, that tho defendants pay tire costs in both courts. .

      EotbtiS; C. J. did not sit on the trial of this case, being a stockholder in the Citizens’ Bank.


author: Rost, J.

text:
    Adams et al. v. The Bank of Louisiana.
    "Where there are several debtors, whether each he liable for the whole debt or only for a portion of it, but one of them is primarily liable, and a portion of the debt is received from him, the obligations of the others will be diminished to the extent of the sum re' ceived.
    Imputation must be made at the time of payment; it cannot he made afterwards.
    Where an imputation of payment is made by the creditor in the receipt he gives, it must be equitable to be valid.
    Where all things are equal, and there has been no imputation of payment, it must he made proportionably. C. C. 2162.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      C. M. Conrad and Barker, for the plaintiffs.

      L. Peirce, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

A short time before the inception of the legal proceedings by which the Exchange Bank was forced into liquidation, t.wo checks were drawn on that institution by the settling clerk of the league of bank presidents, for balances due the other banks, one in favor of the Improvement Bank, for about $92,000, the other in favor of the Union Bank for $59,813 86, this last being the one on which this suit is brought. These checks were protested for nonpayment, and the Union Bank instituted upon the one it held a suit against the Exchange Bank; but before a judgment could be obtained the bank was forced into liquidation. The Union Bank afterwards sold different portions of the check, which were paid by the Exchange Bank, and in January, 1845, it sold the entire check to Hermann, under whom the plaintiffs claim, stating, in the transfer, that settlements bad at various times been made upon it to the amount of $33,775. The commissioners of the Improvement Bank brought suit directly against the other banks for the respective shares, due by each on the check of $92,000, in conformity with the agreement under which those checks were issued and received. The court of the first instance rendered a decree against each of the banks, the Union Bank among the.rest, for their proportion of the amount. On appeal, this judgment was affirmed by the Supreme Court; the opinion of the court, to which we refer for a more particular statement of the facts of the case and of the questions it-de'cides, will be found in 10 B,ob. R. p. 14. The only difference between that case and the present is that, the parties are not the same, and that in this case the aggregate sum of $33,775, has been paid upon the check by the Exchange Bank, without any indication, by the holder, of the particular banks from whose liability the amount thus satisfied was to be deducted.

The plaintiffs claim the amount for which the defendants were originally hound on the entire check. The defendants resist the claim on all the grounds assumed by the defendants in the former case, and further, on the ground that the Union Bank had withdrawn from the compact under which the check was issued, and cannot claim the benefit of it. They -finally plead that, if liable at all, the contribution due by them ought to be calculated upon the x'esidue, after deducting what has been received on the check. There was judgment in fa. .vor of the plaintiffs according to the prayer of the petition, and the defendants appealed.

It was not considered by the Supreme Court in the former case that, the Union Bank had withdrawn from the compact, and nothing has been shown to authorize that conclusion. We feel no disposition to open anew any of the questions settled in that case. The decision carries into effect the real intentions of the league of bank presidents, and it is now too late to question the authority of that association. However deplorable the infatuation which led to its formation, the banks have ratified its acts, and must execute them in good faith. Under this view of the case, the plaintiffs are entitled to recover; and the only question remaining for our consideration is, as to the amouut for which judgment should be rendered.

The plaintiffs admit that where there are several debtors, each liable for the whole debt, but one of whom is primarily liable, and a portion of the debt is received from the principal debtor, the obligation of the others is diminished to the extent of the sums received. But they contend that this principle does not apply to the present case, because each of the contributing banks was not liable for the whole amount of the check. We do not perceive the applicability of this distinction. The league of presidents was an association of all the banks for certain specific purposes. That association drew checks, for the whole amount of which it was liable, in case of non-payment by the debtor banks. The manner in which the members of the association were to contribute to the payment, did not change the nature of the obligation. The drawer and the drawee of the check were each liable for the whole debt. Suppose that in the suit instituted by the Union Bank against the Exchange Bank, the whole amount of the check, except the sum now claimed, had been recovered. Can it be believed that the plaintiffs would have the right to exact that entire balance from the defendants,and to absolve all the other banks from their obligation to contribute? No tribunal would sanction a proceeding which would make the administration of justice depend, not upon the fair intendmeutof the contract, but upon the caprice of one of the parties to it.

Place the case on the most favorable grounds for the plaintiffs — -admit that each bank should be considered as a drawer of the check for its respective share, and that the Union Bank could, as the plaintiffs did afterwards, have transferred their claim against any one of the debtors, without prejudice to their rights against the others, no such transfers are shown to have been made. The Union Bank received partial payments from the Exchange Bank, without making any imputation at the time. Conceding that when the debtor does not make the imputation, the creditor may do so in the receipt which he gives, and that the Union Bank might in their receipts have imputed those payments to the shares of the insolvent banks, it did not so impute them, and the rule op law is that the imputation must be made at the time of the payment, and is not permitted afterwards. Uummodó in re prsssenti fiat, in re agendá, ut vel creditori liberum sit non accipere, vel debitori non dare, si alio nomine exsolutum quis eorum velit; posted non permittitur. (46. 2, 3.) ff. de Solat. Pothier, Oblig. no. 565. Even in cases where the imputation is made by the creditor in the receipt he gives, it must be equitable in order to be valid.

The association of the creditor banks was primarily bound for the whole amount of the check after1 its protest, and all those banks had an equal interest in the payment of it by the Exchange Bank. The payments made by the latter inured to the benefit Of the association, under the well known rule that where all things are equal, and there has been no imputation, it must be made proportionally. C. C. 2162.

The very words of the transfer of the Union Bank show this to have beeri the understanding of the parties at the time. It subrogates the purchaser to all the rights of the Union Bank, against the several banks liable to contribute to the payment, not of the entire check, but of the balance due on it, and it does not impute the sums received to the shares due by any particular bank.

The amount received by the Union Bank extinguished an equal amount of the original debt. The plaintiffs have deprived themselves of the power to subrogate the defendants to any portion of it, and are only entitled to a judgment for the proportional share due by the defendants o,n the remainder. Under the opinion in the former case, in which we concur, the plaintiffs are further entitled to interest at the rate of six per cent per annum, from the date of the check, on the judgment.

It is therefore ordered that the judgment in this case be reversed, and that the plaintiffs recover from the defendant the sum. of $2,830, with interest at the rate of six per cent per annum from the 26th Februaryj 1842, till paid, and the costs of the court below; those of this appeal to be paid by them.


author: Slidell, J.

text:
    Sargent et al. v. Davis.
    A judgment against ah administrator in another State is not such evidence as will authorize a judgment against the succession here., The debtmust be proved by the usual evidence. Per Curiam: In contemplation of law there is no privity between the foreign administrator and the curator here, at feast in a case where the sole property here is real estate, and as such wholly subject to the jurisdiction of this State.
    Where a curator of a vacant succession fails to comply with a judgment ordering him to pay into the treasury of the State a balance remaining in his hands, he will beliable, in an action against him by the heirs, for interest on the balance from the day on which it should have been paid into the treasury.
    from the District Courf of Concordia, Farrar, I.

      Stockton, Sleele, and Prentiss, for the appellants.

      R. N. and A. N. Ogden, and Shaw, for the defendant.

      Ii. A. Bullard, Slacy and Sparrow, for the intervenor.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs claim as heirs of Jonathan Thompson, deceased. The defendant is the curator of the estate of the deceased, who was a resident of Mississippi, and died, in 1823, leaving certain real estate in this State. jDavis was appointed curator of the sucsession in 1824. The intervenor is the surviving partner of the firm of «/. L. and J. É. Trask, and in that capacity, as a creditor of Thompson’s succession, asks that the proceeds ef the real estate in the hands of the curator be p'aid over to him,.before-any thing be paid to the heirs. The claim of the intervenor will be first noticed.

From a partial transcript of the proceedings of an Orphans or Probate Court in Mississippi, it appears that, James O. Williams, a brother-in-law of the deceased, acting as administrator in that State of the estate of Jonathan Thompson, suggested to the court there that the whole of the avails of the real and personal property belonging to the intestate’s estate were insufficient to pay the debts ; and, under a statute of Mississippi, three commissioners were appointed to audit claims against the estate. In 1827, they made a report of claims allowed, among which is slated an account of J..L. and ./. E. Trask; and at the foot of this report is exhibited the judge’s oi'der in the following words: “ Examined, allowed, confirmed, and ordered to be recorded.” It is in evidence that the common law prevails in Mississippi, except so far as modified by statute. By the statute of Mississippi it appears that, when the personal estate is insufficient to pay debts, the administrator may, on publication, obfain an order of sale of lands, and his deed vests a good estate in the purchasers. Whether such an order was made does not appear. Thompson's heirs were absentees, the estate seems to have been insolvent, and it is admitted that no one appeared, or claimed as his-heirs, until 1840.

We are of opinion that, even if the commissioners report and the judicial approval are to be considered as a judgment against the administration in Mississippi, it is not such evidence as would furnish a right of action and authoi'ize a judgment against the succession here. In contemplation of law there is no privity between the administrator there and the curator here, in a case, at least like the present, where the sole property in Louisiana was real eastate, and, as such, wholly subject to the jurisdiction of this State. See Story’s Conflict of Laws, § 522. Greenleaf on Evidence, § 544. Border v. Border, 5 Mass. 77. The debt should have been proved by the usual evidence.

But it is said that there are no other creditors before the court; that this controversy is between this creditor alone and the heirs; that the proceedings in Mississippi, by the administrator and creditors, followed by the sanction of the court, would have bound the heirs if they had made themselves known in that State, and they could have taken nothing while any part of that debt remained unpaid; that, having that effect in the State in which the judgment was rendered, it must have the same effect here, quoad the heirs, who come forward to claim a residuum.

In the case of McCoy v. Nichols, 4 Howard, 38, we find the High Court of Errors and Appeals of that State using the following language : “It is a rule too well settled to be controverted that, there is no 'privity between the real and personal representatives of a deceased person. Hence a judgment against the administrator is not evidence against the heir, where he has not been made a party to the action. Nor can the real estate be charged to satisfy such judgment. 1 Stark. 192. 1 Munford, 437. The reason of this rule is founded in wisdom, and the clearest principles of justice. The administrator takes only the personal estate; the heir takes thejand. If a judgment against the former could bind the land, it would be in the power of tho administrator by collusion and fraud to ruin the heir. The land in the hands of the heir cannot be made subject to the payment of debts, until the personal assets have proved insufficient. But the judgment or decree against the administrator furnishes no proof of that fact.”

This opinion of a Mississippi court upon the common law and its own jurisprudence, is entitled to very great deference, and must be taken, especially in the absence of contrary authority, as expounding correctly the general doctrine. Now it is true that the case was not one arising under the statute to which we have already referred ; but if we compare that statute with the general doctrine as above stated, and give the statute its full effect, we are unable to perceive how proceedings under it could be considered as affecting the heirs beyond their mere rights in the property actually reached by the proceedings of the Orphan’s Court. If we disregard the imperfect exhibition of the action of the Orphan’s Court which the partial transcript presents, and consider those proceedings as conclusive upon the heirs with regard to lands of the deceased in Mississippi, it is going as far as we are permitted to go. The statute certainly is not to be supposed as having been intended not only to overthrow in loto the general doctrine, but also to operate extraterritoriaily, and make proceedings under ,it conclusive upon the heirs not present or cited, with regard to lands out of that State. Yet, without adopting such an interpretation, we could not arrive at the conclusion that the order of the Orphan’s Court in Mississippi is binding upon the heirs in a contest for the proceeds of real estate in Louisiana, exclusively administered by a different curator here.

There being no evidence to sustain the intervenor, either as against the curator or the heirs, the judgment dismissing the intervention must be affirmed.

The plaintiffs seek to make the defendant, who is the curator of Thompson’s succession, .responsible for a large amount which they say is due to them as the heirs of Thompson. They ask not simply the proceeds of sales in the hands of the curator, but the present value of certain tracts of land, which they allege were illegally and fraudulently sold, by the curator. It is charged that he bought several tracts at the probate sale of the succession in 1825, by interposing another person who subsequently transferred them to Davis in completion of a previous understanding between them. The defendant pleaded a general denial and prescription. The court below gave judgment in favor of the plaintiff for $6559 54, the balance exhibited by the curator’s account, with interest from the 10th March, 1842, at which date the curator, by a decree of the Probate Court rendered contradictorily with the attorney appointed to represent the absent heirs, had been commanded to deposit the amount in the treasury of the State, as an unclaimed succession.

The judge of the court below was of opinion that, the defendant had no understanding at the time of the probate sale "with the person to whom they were adjudicated, and by whom six of the seven tracts so adjudicated were soon after transferred to the defendant. After a careful consideration of the evidence, we concur with the district judge that, the charge is not established. We are of opinion, therefore, that the plaintiffs are restricted to the nett proceeds of sale in the hands of the curator, as exhibited by his accounts approved by the Court of Probates.

The court, as we have stated, allowed interest from the day on which the curator was ordered to deposit the money in the treasury of the State. This allowance is resisted by the defendant, who cites the 1141starticle of the Code, by which it is declared that: “ A curator of a vacant succession or of absent heirs owes no interest on the sums of money in his hands belonging to the succession which he administers, but he is forbidden from using them on his private account under the pain of dismissal, and responsibility for all damages caused thereby.” The curator was bound to obey the command of the Probate Court by paying the money into the treasury; no sufficient excuse for the omission to do so has been shown, nor does it appear that the money was officially deposited in the bank. The 1196th article of the Code imposes on the curator who neglects to pay the balance into the treasury, a liability for interest from the day on which he was bound to do so. Another article (1192) provides for the prompt payment by the State to the heirs, when they present themselves. The heirs would receive from the State the total fund, both principal and interest, when collected. The plaintiffs are under the law entitled to the benefit of the liability thus imposed, and the default towards the State must be considered as inuring to the benefit of the heirs. An error has been made in fixing the date from which interest runs, which will be corrected. An exception in the early stage of this litigation was taken to the jurisdiction of the District Court; but must be considered as having been waived by the subsequent consolidation of the cases, and by ¡the subsequent course of proceeding generally, pursued without objection on the part of the defendant. At the trial of the cause, which was before the District Court as organized under the new constitution, its jurisdiction was beyond question.

It is therefore decreed that, the judgment of the court below be so amended, as that the plaintiffs recover fr.om the defendant the sum of $6559 84, with the interest thereon from the 1,0th April, 1842, until paid, and costs in the court below; th.e plaintiffs paying the costs of this appeal. It is further de.c.re.ed that the judgment rendered against the int.e.rvpnprs ,bp affjrmed.


text:
    The New Orleans Canal and Banking Company v. Morgan.
    ¡Reasonable .diligence to ascertain the residence of an endorser of a bill or note, is all that is necessary to excuse a failure to address the notice to the proper office; it is pot required .that the diligence should be successful.
    ¿Sec. 3 of the stat. of 13 March, 1827, does not make it necessary that notice of protest should he addressed to the place where the note or bill was drawn, when the information obtained by the -notary a? to the residence of the endorser was of a character to create a reasonable belief of its correctness.
    APPEAL from the District Cpjirt of Carroll, Selby, J.

      Thomas and Snyder, for th.e plaintiffs.

      Prentiss and Finney, tor the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant is pued upon .a note, dated at Monroe, Louisiana, and payable at Alexandria, on the 18th March, 1,843, made by Bry to the order of the defendant, and endorsed by him, .and by Jonathan Morgan. At the date of maturity, and during four years previous, the appellant was living in the parish of Carroll. In that parish there were two post offices, one at P.eean Grove, and one at the town of Provid.ence, the seat of justice of the parish- Morgan’s residence was twely.e miles from Providence and four miles from Pecan Grove, which lies on the mail route betw.epn Alexandria and Providence. It is also proved that the appellant did not resort for his letters to the Providence office, but to thg.t atPe.can Grove, and that letters addressed to him at Providence were not called for, and were spnt, afte.r the legal delay, by the post-master to Washington, as dead letters. The notice t.o the appellant was mailed by the notary at Alexandria, where the note was payable at bank, addressed to him at his domicil, near Lake Providence, parish of Carroll, La.

The town of Proyjden.ee being near the lake of that name, and Providence being also the seat of justice of that parish, w.e must presume, under the ad? dress in questiop, .that the letter went to the post office ip that town, .apd consequently that the appellant cannot be .considered as having actually received it.

The question upon which the cause turns is, whether, under tji,e circumstances of the case, reasonable diligenc.e was used to ascertain the properinode of addressing the appellant. When the same claim was before us in the case of the Canal Bank v. Bry, 2 Ann. R. 306, we gave judgment as in case .of non-suit, upon the ground tlu,it due diligence to ascertain the proper addres? had not been satisfactorily shown. We have now further evidence before us which we will briefly state, before expressing an opinion upon the question of diligence.

Chew, the cashier, who was not examined on the question of notice at the former trial, states that Oliver J. Morgan and Jonathan Morgan, the endorsers, were formerly residents of the parish of Ouachita, and had removed to the parish of Carroll, and resided somewhere in the neighborhood of Lake Providence, and he so informed the notary. Being asked if he had sought information, from the most likely sources within his knowledge or reach, of the name and location of the proper post-office to which to address notice of the protest to the defendant, so as to insure its reachiug with the least possible delay, he replied : “ Witness did make inquiry from, those whom he thought should know, and, among others, from Mr. Hyams, whose frequent visits to the Ouachita country, (he having a plantation thex-e,) induced witness to believe that he knew where the endorsers resided.” In answer to the interrogatory — “ Was, or was not, the name or location of the nearest post-office to his actual residence at the time known to you,” he answered that, he had no personal knowledge, and the information which he acquired was that the residence of the endorsers was near Lake Providence, and that the post-office there was the nearest to their residence. Hyams, who was not examined on the former trial, states that the cashier and notary of the bank, called upon him to inquire about the residence of the Messrs. Morgan, and he informed them that they resided on their plantation, in the parish of Carroll, near Lake Providence; that he had no actual knowledge of the fact other than having been informed by many persons, and he thinks by the Morgans themselves, that their plantations were in the parish of Carroll, in the vicinity of Lake Providence ; that he had an intimate personal acquaintance with them, .originating with their residence in Ouachita, but never had any personal actual notice of the exact location of their plantation in Carroll; that from always hearing the names of those gentlemen and of their plantation spoken of coupled with Lake Providence, witness concluded that it was the nearest post-office to their residence; that he gave the cashier and notary the benefit of his information, believing, and having reason to believe, it correct. The notary upon his examination states that, he made inquiry of the cashier and others. Being asked, “ Was it known to you, or were you able to ascertain by the diligence and enquiry made by you, which was the nearest post-office to the place of residence of said endorsor,” he replied : “ I was not able to ascertain upon diligent enquiry any further information than that they resided in the parish of Carroll, in the vicinity, or near, Lake Providence, and made and forwarded the notices pf protest accordingly.” -

No exception was taken .either to the interrogatories propounded to these witnesses, or to their answers as given. These answers satisfactorily show, what was left in doubt by the testimony in the previous cause, that efforts were made to ascertain the nearest post office, and proper address. The notary expressly states that his inquiry was diligent, to which testimony no exception was suggested. Chew’s testimony shows that he sought information from various sources ; and the whole tenor .of the evidence above stated, aided by other circumstances proved, establishes reasonable diligence on the part of the plaintiffs. The law does not require that the diligence should be successful. See Somerville v. Young, ante p. Bailey on Bills, 281. Catskill Bank v. Shell, 15 Wendell, 307. 3 Kent’s Commentaries, 107. Bank of Utica v. Davidson, 5 Wendell, 580.

It is proper to observe that, the maker of the note lived a hundred miles &'0111 Alexandria; and there is nothing in the evidence from which it can be inferred that the notary could have obtained more accurate information. It is said that notice should have been sent addressed to Monroe; and the appellant relies on the 3d section of the act of 13' March, 1827, which directs that when the residence of any such drawer, endorser, &e., shall be unknown to the notary, and shall not have been found after due diligence, it shall be the duty of the notary to address notice to the place where the bill or note was drawn. These words are claimed by counsel as imperative. Whether the statute in this particular has made any change in the commercial law, it is not necessary ■to decide. Here the fact was indisputably ascertained that the endorser resided, not at Monroe, but in the parish of Carroll; and the information obtained by ■the notary was .of such a .character as to create a reasonable belief that the notice was properly addressed. Judgment affirmed.


author: Kihs, J.

text:
    Clements v. Cassily.
    Where a creditor, who had obtained judgment against his debtor in an action commenced ■ by .-attachment and in which the property was bonded by the latter, after a return of a Jifa. unsatisfied, takes a rule against the surety in the bond to show cause why lie should not be condemned to pay the debt, and appeals from a judgment dismissing his rule, his subsequently issuing an alias fi. fa. will not be considered a voluntary execution of the judgment, authorizing the dismissal of the appeal. The judgment from which the appeal was taken is wholly distinct from that rendered in the principal cause, and in which the Ji. fa. was issued.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Perm, for the appellant.

      Molt, coati'fi..
   The judgment of the court was pronounced by

Kihs, J.

The appellee has moved to dismiss this appeal, on the ground that the appellant has .acquiesced in the judgment appealed from, by voluntarily executing it.

The judgment appealed from dismissed ji rulo~taken on Fullerton, to show cause why he should not pay the amount of a judgment rendered iu an attachment suit against Cassily, in which suit Fullertonsurety on the bond given by the .defendant for the release of the property attached. The rule upon the surety was proceeded by a fi. fa. issued against the judgment debtor, ■which was returned nulla bona. Subsequently to the rendition of the judgment appealed from an alias fi. fa. was issued, which at the date of the appeal had not been returned. This it is contended is a voluntary execution of the judgment. The two executions which have issued were not awarded under the judgment appealed from, but under the judgment rendered against the defendant in the attachment suit, which the plaintiff could legally enforce with,out prejudice to his rights against the surety on the bond. It is true that a satisfaction of the writ would extinguish the claim against the surety; but against the latter he has obtained no judgment, upon* which to^issue an execution. The object of his rule was to obtain such a judgment against the surety rendering the latter liable upon the bond, and the appeal is from the judgment dismissing that rule, which is wholly distinct from the judgment rendered in the principal cause, and which the plaintiff has been endeavoring to execute. There has been, therefore, no acquiescence in the judgment appealed from.

The motion to dismiss is, therefore, overruled.


author: King, J.

text:
    The State v. Isaac.
    On the trial of a slave before a tribunal assembled under the provisions of the stat of 1 June, 1346, which requires that it should be composed of two justices of the peace and ten owners of slaves, no objection can be made, after tbey have been sworn, to the persons empanelled to serve with the justices, on the ground that tbey are not slave-holders.
    Where a slave, tried for a capital offence before a tribunal, organized under the stat. of 1 June, 1846 which provides (sec. 8) that when an offender " shall be convicted of any crime punishable with death, the justices shall sign a sentence to that effect,” k found guilty, but one of the justices refuses to sign the sentence, and the tribunal is dissolved without the judgment having been signed, the conviction, being one upon which no sentence could be pronounced in consequence of the dissolution of the tribunal, cannot be pleaded in bar of a subsequent prosecution for the same offence: Per Curiam: To sustain a plea of auter foils convict the-conviction must be one, which) at the time of pleading it, is susceptible of being followed by a sentence.
    A justice of the peace who had formed part of a tribunal for a trial of a slave organized under the stat. of 1 June, 1S46, and who had,after hearing evidence) declared his conviction of the guilt of the accused, is not on that account disqualified to sit on a tribunal subsequently organized for a second trial for the same offence.
    The oath required of members of a tribunal organized under the stat. of 1 June, 1846, for the trial of slaves, cannot be administered by the clerk of a District Court.
    Clerks of courts, except in cases specially provided for by law, are authorized to administer oaths only in open court.
    When confessions of guilt are given in evidence, the whole must be taken together * and where a witness, offered to prove a confession by the prisoner, states “ that the accused told him that he had killed the deceased, and commenced justifying the act, when witness stopped him,” the confession will not he allowed to go to tho jury, he having been deprived of the benefit of the explanations with which he intended to accompany it, and which, if made, would have been admissible in evidence.
    APPEAL from a special tribunal organized for the trial of a slave in the parish of West Feliciana.
    Z. S. Lyons, District Attorney, for the State.

      Brewer, and L H. Collins, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendant has appealed from a judgment-pronounced against him upon a conviction for the crime of murder, and complains of a number of irregularities in the proceedings in the inferior court, which are presented in bills of exceptions.

The accused was tried by a jury composed of two justices of the peace, and ten owners of slaves, as required by the act of 1846. Acts, p. 114. After the jury had been empannelled and several preliminary questions discussed and determined by the court, and the accusation against the prisoner, in the form of an information, had been read, the district attorney requested all the members of the jury who were not slave-holders to withdraw; whereupon, without further enquiry, four of the jury retired, and four other persons were substituted in their places. The defendant objected to this irregular proceeding, and took a bill of exceptions. Tt does not appear that the jurors who withdrew were not slave-holders. This, however, we deem unimportant. Both the slave and the Slate are entitled to the right of challenge for cause, but it must be exercised subject to the rules which apply to thd prosecution of other offenders, and by those rules this class of objections to the juror must be made before he is sworn, otherwise they are waived. 1 Chitty C. L. 544, 545. 8 Rob. p. 596. State v. Dubord, 2 Ann. R. 732. Not only had the State and the accused both waived the supposed objection to the jurors, by neglecting to urge it seasonably, but the latter, when the want of qualification was suggested, insisted on being tried by those who had been already sworn, thus adding his express, to his previous tacit, waiver.- After the jtu-y had been sWorn both the State and the accused lost the right of challenge on this ground* This irregularity alone requires that the cause should be remanded. Other questions however have been presented which, unless now disposed of, may be again urged at the future trial, which it becomes necessary to direct. With a view of relieving the prosecution from them hereafter, they Will be now considered.

The first is, the plea of a former conviction for the same offence. It appears that, upon a previous occasion, the accused was tried upon the same written accusation before a tribunal organized under the act of 1846 (Acts p, 114), and wasfound guilty. The 8th section of the act requires, “that in.case the offender shall be convicted of any crime punishable with death, the justices shall sign a sentence to that effect; which sentence shall be put into execution with the concurrence of the jurors assisting at the trial.” One of the justices refused absolutely to sign the sentence required by this section, and the court Was dissolved without having signed the judgment necessary to give effect to their finding. The court was a special tribunal, convoked for a specific purpose. It dissolved itself without having accomplished the object for which it was convened, and had ceased to exist, leaving no other tribunal competent to complete the unfinished task, by pronouncing a sentence upon the verdict of guilty.’ In order to sustain the plea of auter foils convict, it is necessary that the conviction should be one which, at the time when the plea is made, is sueceptible of being followed by a sentence. A conviction upon which no judgment can be pronounced, is not a conviction which can be pleaded in bar of a future prosecution for the same offence. 2 Hale, P. C. 257. 1 Chitty C. L. 462. The plea depends upon the principle that, a man ought not to be more than' once brought in danger of his life for the same crime. 4 Black. 336.- As no judgment has been, or ever can be, rendered upon the former conviction, the prisoner has never been in danger of his life, and cannot avail himself of the plea. The effect of the dissolution of the court without signing a sentence was, to produce-a mis-lrial, which has been repeatedly held to be no bar to a second trial for the same offence.

It is further objected that Henry Hinch, one of the justices of the peach who assisted at the first trial, was also a member of the second court organized-to try the accused. It is contended that, under the statute, he was only a juror, and that the accused, in the exercise of his right of challenge for cause',should have been permitted to reject him, on the ground that he had previously declared his conviction of the prisoner’s guilt, after hearing the testimony* Under the provisions of the statute this ground is untenable. Hinch was the justice before whom the complaint was originally made. It became his duty? under the law, to convoke the court for the trial of the accused, and he is required to act as a member of the tribunal. Although he participates in the deliberations of the jury and his concurrence is necessary to acquit or convict, he is not styled a juror in the act, but is distinguished from the jury, and has duties assigned to him independent of those of a juror.

The members of the court were sworn by the clerk of the District Court, ■which was objected to as irregular. Clerks, except in cases specially provided by law, are only authorized to administer oaths in open court. The oath should have been administered by a justice of the peace, or by some other authority competent to administer oaths.

It is next contended that the proceedings were unconstitutional, the prosecution not having been by indictment or information. The accusation is in writing, and in the form of an information, to which no specific objection has been made, It does not therefore become necessary to enquire, whether an information or an indictment be indispensable in the prosecution of slaves under the 107th article of the constitution.

The confessions of the slave made to his master were objected to, on the ground that they were made under the influence o'f fear, and that he was not permitted to complete his statement. The witness testified : “ That the accused came to him the morning after the affray, and told him that he had killed the slave Jim, and commenced justifying the act, when the witness stopped him, and told him that he intended to deliver him over to be punished.” The confession appears to have been voluntary, but should have been excluded on the ground that it was interrupted and never completed. When confessions of guilt are given in evidence, the whole must be taken together. If the parts relied on to establish the guilt of the prisoner be received, the explanations with which they were accompanied cannot be rejected. Although all the parts of the confession are not entitled to equal weight, the whole must be submitted to the jury, who are to determine, under all the circumstances, how much of the entire statement is worthy of belief. 1 Greenleaf on Ev. § 201. 218. In the present instance, the prisoner was not permitted to make a full statement. It is evident that he intended to state circumstances in justification, which the witness refused to hear. A full explanation might have established a complete justification, and the narrative might have been so consistent and probable as to command the belief of the jury. Having been deprived of the benefit of the explanations with which he intended to accompany his admission, and which, if they had been made, would have been admissible in evidence, justice requires that his incomplete disclosure, consisting only of the fact unfavorable to himself, should not go to the jury.

The judgment of the inferior court is, therefore, reversed. It is further ordered that a new trial be granted, and that the cause be remanded to be proceeded with according to law.


text:
    Heath, Under-tutor v. Lambeth, Tutor.
    Where, ón this dissolution óf a particular partnership by the death of one partner, the partnership was largely indebted to a commercial firm of which the surviving partner was a member, and to whom the revenues of the property were tobe paid for the reimburse* ment of their advances, and the survivor qualifies as tutor of the minor heir oí the deceased, and continues to manage the particular partnership property as surviving partner, he will not be allowed a commission of ten per cent on the gross proceeds of the salo of the crops made by Mm, as commissions on the revenues of the minor under art, 343 of the Civil Codo. Per Curiam: The defendant was administering the property of the partnership as surviving partner, and not as tutor of the minor, who, as a beneficiary heir, was only entitled to what might remain after payment of the debts. As administrator he was.entitled to two- and-a-half per cent on the monies that came into Ms hands.
    APPEAL from the District Court of Iberville, Burle, J.

      Edwards, for the plaintiff.
    .Mows and W. M. Randolph, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This action was instituted in 1S43, by the under tutor of the minor, Franklin Hudson, to compel the defendant, who was tutor at thd time, to render an account of his administration of the succession of Silas F. Hudson, the father of the minor. No further proceedings were had until 1846, when the defendant filed an account, which Holmes Hutchinson, who had in the mean time superseded him as tutor, opposed on various grounds. The court below sustained some of the oppositions, and gave judgment against the defendant, for the sum of $2,748 35, with legal interest from the judicial demand. The defendant took a devolutive appeal, and the tutor Hutchinson, who now prosecutes the suit, asks that the judgment be amended in his favor, and that all his oppositions be sustained.

It is in evidence that the plaintiff sued out upon the judgment an execution, which was returned, “ no property foundand the defendant’s counsel contend that he is estopped by this proceeding from asking that the judgment be amended in his favor. If the plaintiff himself acquiesced in the judgment, the question whether a tutor can in any case waive the right of appeal would be presented for our consideration ; but as the defendant asks its reversal, it is evident that we cannot open it in part, and that our decision must embrace the whole merits of the controversy.

Before examining the opposition in detail, it is necessary to state some of the facts of the case. The defendant and Silas F. Hudson were ordinary partners in a sugar plantation and slaves. The defendant and Wm. E. Thompson were commercial partners in New Orleans. The agricultural firm of Hudson 8f Lambethh&& for its factors the commercial firm of Lambeth <S¡* Thompson, from whom they had received large advances. Hudson died in October, 1839, leaving one child, the present plaintiff in interest, and, so far as the record shows, possessed of no other property but his interest in the partnership of Hudson Sf Lambeth. The defendant caused himself to be appointed tutor of the minor, and continued, as surviving partner, to manage the plantation on joint account. At the death of Hudson the agricultural partnership owed a large sum to Lambeth 8{ Thompson, and Hudson himself was indebted to them. It is proved that, with the consent of Hudson, interest at the rate of ten. per cent per annum was from the beginning charged by Lambeth 8f Thompson on their advances, and a like interest allowed on the balances against them. After the death of Hudson-the defendant continued this arrangement, and the house of Lambeth 8>~ Thompson, received and sold five crops under it, and rendered their accounts in conformity therewith. The defendant has taken the account thus rendered as the basis of his own ; and the first opposition made by the plaintiff is to the charge of interest at- the rate of ten per cent per annum in those accounts.

The relation in which the defendant stood towards tbe minor, and his interest in the commercial firm, have induced us to give to this part of the opposition a strict and thorough investigation. We are bound to say that, the evidence in the record lias satisfied ns that there was nothing illegal or unfair in the transaction complained of. It was manifestly for the interest of the mmol that the property should not be sold to pay the debts, and this is shown to have been the only practicable way to prevent a sale. At a time of great commercial embarrassm""1'! Bambeth ¿j* Thompson gave time for the payment of their ¿>juim, and made the advances necessary to carry on the plantation, on the terms then usual in similar undertakings. It is not shown that arrangements more favorable to the minor could have been made ; and no liability or reproach attaches to the defendant by reason of them.

The next item opposed is. a charge of ten per e'ent on the gross proceeds of the sales of the five crops made by him, which he claims as commissions on the revenues of the minor, under art. 342 of the Civil Code. This opposition should have been sustained. The defendant was administering the property of the partnership, as surviving partner, and not as tutor of the minor, who was a beneficiary heir and as such entitled only to whatever might remain after payment of the debts. Under the arrangements made by the defendant, the revenues of the property belonged to Lambeth Thompson. They gave time, and made advances on that condition: and the defendant cannot charge a commission of ten per cent on the thing pledged by him to his own firm for the payment of those advances. As administrator he was entitled to two-and-a-half per cent on the monies that came into his hands; and he will further been-titled, as tutor, to a commission of ten per cent upon the amount now in his hands belonging to the minor.

■ The opposition to the overcharge made by Lambeth <$• Thompson of two and a half per cent commissions on a cash balance of $2876 31, was improperly sustained for the whole. 'The defendant has paid half of it, and the plaintiff is only entitled to a credit for the other half.

The claim for lumber sold to Breaux was properly allowed. The defendant had no right to give away the property of the minor, to get clear of a hard bargain made by himself. The cash mentioned in the inventory of Hudson, and the overcharge for the taxes of 1838, were also properly allowed to the defendant.

The defendant admits his indebtedness to the minor in the sum of $626 53 ; and we are of opinion that there is no error in the judgment appealed from on the remaining oppositions. Under the view taken by the court, the defendant has in his hands belonging to the minor and forming part of his revenues, a sum of $2369 56, upon which he is entitled to a commission of ten per cent.

It is therefore decreed that the judgment in this case be reversed, and that Holmes Hutchinson, tutor of Franklin Hudson, recover from the defendant the sum of $2132 61, with legal interest thereon from the 8th December, 1843, till paid, and the costs of the court below: those of this appeal to be paid by the plaintiff and appellee.


text:
    Morancy v. Dumesnil et al.
    A contract must be understood in that sense in 'which it will have some effect, rather than in that in which it can have none.

      APPEAL from the District Court of Madison, 3dby, J.

      Prentiss and Finney, for the appellant,

      -d. Pierse, Thomas and Snyder, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

(This is a petitory action. The defondnnts do not set'up title, but claim the possession of the land in controversy under a lease from ^ previous owner, which they allege the plaintiff has promised to execute. There was judgment in their favor in the court below, and the plaintiff appealed. Morancy sold a large tract of land to Wall, retaing a mortgage to secure the payment of the price. Wall sold to Parham, who also retained a mortgage on the property. Parham, while he was owner, made a lease to Perry S■ Kinnard, of about seven acres front on the Mississippi river, stipulating for certain improvements, and for the payment, at the end of the lease, of one-half of the value of such other improvements as the lessee might think proper to make. The duration of the lease was fixed at twelve years. The interest of the lessee in the lease was sold under execution, and was purchased by John Kinnard, under whom the defendants hold.

Wall and Parham having failed to pay the plaintiff, and Kinnard apprehending difficulties in case of a sale under his mortgage, the following agreement was entered into between them: “ I hereby agree not to disturb John Kinnard in the possession and enjoyment of the lot of ground and the house thereon, which lease he acquired from William S. Parham, as long as said lease continues, that is to say, a lease bearing date the 24th day of March, 1840, and which is to expire on the 24th March, 1852; provided that the additional improvement made on a part of said lot by T. M. Jackson, and now in his occupancy, shall be considered as the property of said T. M. Jackson. July 5th, 1844. Milliken’s Bend. (Signed) H. P. Morancy.”

“And the above agreement is made by said Morancy of his free will, and without any compensation to him made by said Kinnard.

Witness, R. Garxano. (Signed) H. P. Morancy.”

This is a lawful contract, entered into for a consideration which is proved to be real, and which the plaintiff deemed sufficient at the time. The ground taken by the plaintiff that, it must be construed as extending to, and affecting only, the rights and claims of the plaintiff then in existence, is not tenable. As a mortgagee, the only way in which the plaintiff could disturb Kinnard in his possession, was by causing the land to be sold. The large amount due him on it, made it certain that he would become the purchaser, and this agreement was intended to have effect after he resumed the title. All contracts must be understood in the sense in which they have some effect, rather than in that in which they have none. The construction contended for by the plaintiff would leave this agreement without any effect whatever.

The lease could be transferred, and the defendants may avail themselves of the contract entered into by the plaintiff. There doing so is a sufficient acceptance of it. It is alleged that John Kinnard violated the condition of this contract, by making to the defendant a lease of all the lot and improvements, without reserving the portion occupied by T. M. Jaekson. We do not thus understand the lease; and as it is proved that Jackson is in the undisturbed possession of the ground and improvements reserved to him, we are satisfied that this contract has been executed in good faith. Judgment affirmed.


author: Kihg, J.

text:
    Foxworth et al., Executors v. Burckhalter.
    It is not essential to the validity of a sequestration bond, that it should be executed before the clerk of the court in which the action is pending, or any other public officer.
    Wkoro tii« Rnvcty in a sequestr ation bond removes beyond the jurisdiction of the court, the execution of another Rond with a surety residing within its jurisdiction, will be sufficient. C. C. 3012.
    Separate actions may be carried on against the same defendant, by the same plaintiff, for the same debt, where in one a judgment is prayed for against him as an absentee and his property is attempted to be reached by attachment, and the object of the other is to annul the sale of the same property, for the purpose of subjecting it to his claim.
    Where two actions are pending between the same parties for the same cause, the defendant, in case of their inconsistency, can only require that the plaintiff should elect which of the two he will proceed with. If one of the two be dismissed before any exception to their inconsistency, it is enough.
    APPEAL from the District Court of Washington, Burk, J.

      Halsey, for the appellants,
    cited C. P. 276. 1 Rob. 45.

      J. R. Jones and Childress, for the defendant.
   The judgment of the court was pronounced by

Kihg, J.

The plaintiffs have appealed from a judgment dissolving a sequestration, on exceptions pleaded by the defendant that the writimprovidently issued, the court being without jurisdiction of the cause, and that the surety on the bond was not such as the law requires. The facts are that, in July, 1845, Alexander Graham and Samuel Foxworth instituted a suit by attachment against Daniel Burckhalter, a non-resident, and caused several slaves in the possession of the present defendant, Henry T. Burckhalter, to be seized under the writ which issued in that proceeding. They alleged that they were creditors of the absentee by a judgment rendered against him in the State of Mississippi, in favor of Stephen M. Foxworth, of which they were the owners. The attachment was dissolved, on the 19th of November, 1845; on the same day an appeal was taken, and the judgment of the District Court was affirmed by us in April last. 2 Ann. Rep., p. 415. In June, 1846, while the appeal in the attachment suit was pending, Elizabeth, Foxworth and Samuel Y. Foxworth, in their capacity of executors of Stephen M. Foxworth deceased, instituted the present action against the defendant, Henry T. Burckhalter. Their claim is founded upon the same judgment claimed by Graham, and one of the present plaintiffs, in the attachment suit. They allege that, they have caused the judgment to be duly registered, and tobe declared executory in this State; that the defendant has in his possession several slaves belonging to the judgment debtor, Daniel Burckhalter, which he holds under a sale which they allege to be simulated and fraudulent. They pray that the sale be annulled, and that the slaves be subjected to the judgment obtained by the deceased, whose estate they represent, and for a sequestration of the slaves pending the suit. To this action the defendant pleaded as exceptions: 1st. That the court was without jurisdiction, and could grant no sequestration or further order in the cause, because an appeal had been taken from a judgment previously rendered upon the same matters involved in this controversy, which appeal was still pending when this action was commenced. 2d. That there was no legal surety on the hond, the surety haying left the jurisdiction of the court,

The judge considered that the law required in such cases a judicial bond to Refurnished, executed before the clerk or other competent authority; and the bond furnished by the plaintifls, being under private signature, the sequestration was dissolved. '

The judge, in our opinion, erred, in sustaining the exceptions filed by the defendant. We are aware of no law which requires sequestration bbnds to be executed before the clerk, or other public officer. The objection presented in the exception that the surety on the bond first furnished had left the jurisdiction of the court, was removed by the plaintiffs’ furnishing an additional bond, with a surety residing within the jurisdiction of the court, whose solvency is not questioned. C. C. art. 3012. v

Although the plaintiffs in both suits maybe considered to be the same, still the plea of the pendency of another action cannot, in our opinion, be maintained. The plaintiffs had two rights of action which were not exclusive of each other, and which they could maintain at the same time. Ia the one, they sought a judgment against the absent defendant, and to reach his property by an attachment; in the other, they seek to annul a sale of the same property, for the purpose of subjecting it to their claim. But if it be conceded that the two demands were inconsistent, the defendant could at most have claimed that the plaintiffs’ should elect which action they would pursue. C. P. art. 152. 7 Mart. N. S. 404. 5 La. 440. Prior to the filing of the exception, the first suit had been finally dismissed, and but one demand was pending. There was, therefore, no longer an existing ground for the plea of the pendency of another suit, and the alternative of a choice of the action to be pursued could not be presented. The plaintiffs are in no, worse position in consequence of the unfavorable termination ®f their first suit, than if that suit were still pending ; and, in the latter event, it is clear that they could elect which of the actions to proceed with, if the two were deemed inconsistent.

It is, therefore, ordered that the judgment of the District Court be reversed, that the exceptions pleaded by the defendant be overruled, and that the cause be remanded to be proceeded with according to law ; the appellee paying the costs of this appeal.