author: Merkick, C. J.

text:
    John Culbertson, Receiver, v. John Hall.
    Liability of maker of guarantee notes to the Merchants’ and Planters’* Mutual Insurance Company, fixed according to the principles laid down in the case of McIntosh and the same company.
    xi PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Durant & Ilornor, for plaintiff. Upton, for defendant and appellant.
   Merkick, C. J.

The defendant was one of the subscribers of the Merchants’ and Planters’ Insurance Company, now in liquidation, the plaintiff being receiver appointed by the court.

On the 1st of November, 1849, the defendant subscribed and delivered to the company (which was conducted on the principle of a mutual insurance company) his promissory note, payable twelve months after date, or sooner, if required to meet assessments made by the company, for the sum of $1000. The defendant having paid various sums to the company in premiums on insurances, the same were credited on the note, which reduced it to $'16&. The balance was then included in a larger note, to secure the same and certain premiums, and the original note delivered to the defendant. The company having been forced into liquidation, after having met with losses, suit has been brought by the receiver to collect of the defendant the amount of his original note to the company.

It is contended, on the part of the plaintiff, that the pretended payment of the notes, by the application to them of the premiums paid in, is not such a payment as will discharge the maker, especially as there are debts due by the company on account of losses, to secure the payment of which these notes were given.

According to the principles settled by this court in the case of McIntosh v. the same company, we think that the maker of the note is responsible upon it, notwithstanding its surrender, to meet any debts arising from losses during the year ensuing its date.

The tableau filed by the receiver shows that there are over $11,000 of debts of this class arising during this period.

The receiver is entitled, therefore, to recover on the note sued on for the amount for which judgment was rendered by the lower court — it being understood that if anything should remain after an application of the funds collected from the first class of debtors on the “ guarantee” notes, in accordance with the principles settled in the case of McIntosh v. The Merchants’ and Planters’ Insurance Company, such debtor would be entitled to his proportion of the balance in the hands of the receiver.

We do not deem it important to notice the numerous objections made by the defendant’s counsel.

It is sufficient to say that the proceedings in the forced surrender occasioned by the forfeit were properly offered in evidence against the defendant, who was one of the subscribers to the company. .Being also one of the subscribers, he cannot be permitted to allege error as to the object for which the note was given, nor defeat the rights of creditors by the mistaken views of himself and the actuary.

Judgment affirmed.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    A. G. Penn v. J. J. Watts and Wife.
    The rule is well settled that where the maker of a promissory note cannot be found, payment must be demanded at his domicil, if within the State.
    XX PPEAL from the District Court, Eighth District, Parish of Livingston, Wat-tersan, J.

      Martin, for plaintiff. Jones, Duncan and Á. Hennen, for defendants and appellants.
   Voorhies, J.

The defendants are appellants from a judgment rendered against them as endorsers of two promissory notes, of whieh they were the payees, dated the 3d of January, 1848 — one of which, payable in two and the other in three years from date. There is no mention made in them of the place where made nor where payable.

The ground on which the appellants claim to be discharged is, that no demand of payment has been made upon George W. Parker, the maker, either personally or at his place of residence, when the notes matured. The notes were respectively protested at maturity in New Orleans, at the instance of the Union Bank of Louisiana, and, according to the certificate of the notary, the maker and endorsers were notified thereof through the mail, by letters severally addressed to them at Springfield, parish of Livingston, La. On the 12th of May, 1854, the plaintiff purchased the assets, debts and effects belonging to the branch of the Union Bank at Covington, then in the possession of Mr. L. Spring, in which the notes declared upon were comprised. It is under this conveyance that he holds. He alleges in his petition that the maker, at the date of the protest, had absented himself from the State, so that his domicil could not be found by the notary, after diligent search and inquiry, to make a formal demand upon him ; that all .was done which was within the power of the then holders of said notes to effect said demand. We infer from the evidence that these notes were taken and discounted by the Covington branch of the Union Bank, in the usual course of business; and it would be unreasonable to suppose that it was done without a knowledge of the parties and of their place of residence. The fact that the notices of protest were addressed to the maker and endorsers at Springfield would seem to imply such knowledge; it is corroborated, too, by the plaintiff’s allegation, that the maker had absented himself from the State when the protests were made. Although such an allegation was made, yet no attempt appears to have been made to substantiate it on the trial below. On the contrary, the testimony of Henry Kinchen, Jr., shows that the maker resided in the parish of Livingston, where he has resided ever since. Besides, the two notes were paraphed by “ Henry W. Warrell, Recorder,” then residing at Springfield.

We consider the rule to be well settled, that, where the maker of a promissory note cannot be found, payment must be demanded at his domicil, if within the State. (2 N. S. 511.) In the case at bar, we think it clear that the holders were bound to make a presentment, either to Parker personally or at his domicil in the parish of Livingston. See 6 Ann., 59.

The case of White v. Wilkinson, 10 Ann., on which the plaintiff relies to exempt him from the operation of the general rule, appears to us to be clearly distinguishable from the present. There, it appeared that the note was dated at New Orleans, and that the holder or notary did not know the domicil of the maker, and could not ascertain it after diligent inquiry. In such a ease the presumption arises that the note is payable where it is dated. But here the notes, as we have seen, bear no internal evidence of the place where they were given. We are therefore of opinion that the judge a. quo erred in holding the appellants liable as endorsers.

It is therefore ordered and decreed that the judgment of the court below be avoided and reversed, and that the appellee’s demand against the appellants be rejected, with costs.


author: Spoíeord, J.

text:
    Frederick Tresca v. Joseph H. Maddox.
    Action against the proprietor of a newspaper for damages for a libel.
    In actions of this character malice is often implied*. At common lawj if the words spoken or published are themselves actionable, (as if they import arr accusation of an indictable offence,) malicious intent is an inference of law, and therefore needs no proof. In this dase malice does not mean a spite against the individual, but mahis animus, a wanton disposition, grossly negligent of the rights of others.
    The defendant had' a right to repbrt the fact that the plaintifiihad been arrested and held for examination on a particular charge. But he had no right to'go beyond this, and assume the guilt of the plaintiff upon an ex parte charge, heap accusations of other crimes upon his head without any foundation, and vilify his character, except upon the responsibility of proving the truth of his accusations when sued for libel, and th'at they were made with good motives and for justifiable
    The fact that defendant recanted the charges against the plaintiff the day after they were made was proper to be considered by the jury in estimating damages, but could not exonerate plaintiff en-
    The satisfaction expressed by plaintiff at the apology and recantati'on made by defendant' was not a w'aiver of his claim for damages, as it was consistent with a reservation of his right to’ sue, if he thought proper.
    Although the libel was written by one of defendant’s employees in the regular course of his employment, yet defendant was responsible, and though wholly without mordí turpitide, yet damages could be recovered against him without special proof of the pecuniary amount actually suffered.
    In all appealable cases the jury are judges both of the law and-fact, but in all cases the Judge may be required by the counsel of either party to charge the jury in writing.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Rand, & Bm'tlette, for plaintiff. Durant té Honor, for defendant.
   Spoíeord, J.

(Merrick, C. J., absent.) The defendant has appealed from a judgment for $1000; rendered against him* upon the verdict of a jury as damages for the publication of a libel against the .plaintiff in the Crescent newspaper.

The plaintiff, caiptain of a schooner in the Tampa Bay trade, was arrested in New Orleans in July,-1862', and imprisoned upon an affidavit made by a policeman before one of the Recorders, to the effect that he had been informed, and verily believed that the plaintiff, and others on board his schooner, the George Lincoln, were guilty of robbing the dead bodies of certain persons who had been killed by an explosion upon the steamboat St. James, and had been found floating upon the lake.

The defendant, proprietor of the Crescent newspaper, was not the writer, and perhaps was absent at the time. But one of his regular employees, having learned of the arrest of the plaintiff, and read the affidavit made against him, before any examination was had, wrote and caused to be published in the defendant’s paper the exaggerated and inflammatory article which constitutes the libel in question.

This article assumes and proclaims the guilt of the plaintiff, and, going far beyond the affidavit really made, treats of his general character and history as that of a noted criminal. It speaks of his “suspicious-looking schooner known to be manned by some nurslings of crime long marked by the officers of the law,” and of her owner, whom the Captain of Police “had known through long years for his piratical inclinings,” and adds that “a land and water rat was this skipper of the schooner, and a pet of criminal justice during many a day.” Oapt. Tresea and his crew, described by name, are said to have come into port “flushed with successful booty, and bold through previous immunity,” and to have been immediately arrested by the vigilant police; and Tresea especially is painted as “a brawny, thick-set, low-browed bandit, and to all appearances,

* As mild a mannered man
As ever scuttled ship or cut a throat.’ ”

The article created a sensation, as it was probably intended to do. And although it shortly turned out to be wholly unjustifiable and mostly untrue, it is proved to have caused the plaintiff the loss of some freight the next trip of his schooner. Upon the preliminary examination, there appeared to be no evidence to criminate him, and his reputation as an honest and inoffensive citizen was vindicated by subsequent articles in the [Crescent, written by the employee who had penned the libel.

The answer of the defendant admits that he published the article charged as ¡a 'libel, and admits that it was false.

By way of defence, there is a denial of malice in the publication ; an averment that the records of the Recorder’s court, of which it is customary for newspapers to make notes, had misled the defendant; that on discovering the error he had instantly retracted it publicly in his newspaper, and that the petitioner had expressed and confessed himself satisfied with the amende.

The first point relied upon by the defendant is, that there was no malice in the publication. No express malice was pr5ved. Indeed it may be assumed that the defendant, when he made the publication, did not know who Captain Tresea was, and therefore could have had no special malice against him. But in actions of this character malice is often implied. At common law, if the words spoken or published are in themselves actionable, (as if they import an accusation of an indictable offence,) malicious intent is an inference of law, and therefore needs no proof. 2 Green. Ev., § 418 (4). In this case malice does not mean a spite against the individual, but malm animus, a wanton disposition, grossly negligent of the rights of others. ¥e think the jury might properly have inferred such malice under the circumstances of the case. Cauchoix v. Dupuy et als., 3 L. 208.

Asa chronicler of events that actually occurred, the defendant had a right to report the fact that the plaintiff had been arrested and held for examination on a particular charge. But he had no right to go beyond this, assume the guilt of the plaintiff upon an ea> parte charge, heap accusations of other crimes upon his head without any foundation, and vilify his character before the public, except upon the responsibility of proving the truth of his accusations when sued for libel. The tenor of the article in this case was to charge the plaintiff with the high crime of piracy. The defendant has not shown that he had any grounds to suppose such to have been, as charged, the occupation of the plaintiff, or that the charge was made with good motives and for justifiable ends.

The reparation made by recanting the charges the day after they were made, was proper to be considered by the jury in estimating the amount of damages, but could not, as the appellant contends, exonerate him entirely. The injury had been done. Vox semel músa non revertit. The slander, circulated by one issue of the paper, could not be wholly obliterated by the recantation in another. All who saw the first may not have seen the last. And it is difficult wholly to restore a reputation thus positively and publicly accused of the highest crimes known to the law.

It is urged that the plaintiff is debarred from a recovery by the expression of his satisfaction at the apology and retraction published by the defendant. This is something like the plea of accord and satisfaction of the common law. 3 Black. Com., p. 16. A bargain of this kind could be enforced under our law, as it is competent for the injured party to release his claim for damages. But it must appear that he has released it, or expressly agreed to waive his action for the consideration named. The proof here wholly fails to sustain the existence of such waiver on the part of the plaintiff all his expressions being consistent with a reservation of his right to sue if he thought proper.

The defendant took a bill of exceptions to the refusal of the Judge to charge the jury as follows:

“Eirst. If the jury think, from the evidence, that the publication was not made by Maddox maliciously, and with moral turpitude, then no verdict of damages can be given without special proof of the pecuniary amount suffered.”

The court did not err, because Maddox, not making the publication personally, but through one of his employees in the regular course of his employment, for whose act he was legally responsible, might be and was wholly without moral turpitude in the affair, and yet damages could be given' without special proof of the pecuniary amount suffered. In estimating damages for offences and quasi offences, much discretion is left to the jury.

The second instruction asked and refused was: “That in all cases where the law gives the individual an action of damages, he has the right to take in compensation such satisfaction as may be agreeable to himself, and not forbidden by law; and if the jury think, from the evidence, that the plaintiff, Tresoa, expressed himself satisfied with the apology and public retraction of the charges made against him, then in law the plaintiff has had reparation for his injury, and is not afterwards entitled to an action of damages.”

A¥e think there was no error in refusing this charge, because a bare expression of satisfaction at the apology and recantation would not operate a release of the right of action. The expression might have been made without any intent or agreement of the parties to that effect, and then would not bar the action. We have clearly stated that we think it was made without any such intent or agreement.

The Judge, therefore, ruled-correctly, although we think the reason given by him for his ruling was unsatisfactory. He stated that the Act of 29th January, 1847, (Acts, p. 28) declaring that the jury shall be the judge of the law and and the facts in all prosecutions for libel, dispensed him from charging the jury upon the law at all. If this statute refers to civil actions for libel, which seems doubtful, it does not exonerate the Judge from the duty of giving the jury a knowledge of the law applicable to the case. In all cases, civil as well as criminal, the jury are judges both of the law and the facts. C. P. 520; Bostwick v. Gasquet, 10 Rob. 81; The State v. Ballerio, (ante. p. 81.)

But in all appealable cases the Judge may be required by the counsel of either party to charge the jury in writing. Acts 1855, p, 300; Bull. & Curry’s Dig., p. 525.

• In all cases it is his duty to give them a knowledge of the definitions and principles of law applicable to the case. They have the power to disregard his instructions, but in practice they seldom do. They are not presumed to know the law, or to be able to judge unaided between the conflicting doctrines invoked and advocated by counsel. The stability and uniformity of the administration of justice require that a learned and impartial Judge should enlighten jurors as to the rules of law which, in his view, are essential to a just decision of the cause before them.

The exceptions, however, were only taken to the refusal of the Judge to charge as requested. As we find no error in that refusal, it is unnecessary to remand the cause.

Complaint is made of the amount of the verdict. It was not made a ground of the motion for a new trial that the verdict was excessive. Considering the enormity of the libel, the absence of any reasonable justification for it, the excitement it created in the public mind against the plaintiff, the injury done to his feelings and his social position, we do not think we are justified by the precedents in disturbing the verdict. See Daly v. Van Benthuysen, 3 An. 69.

Judgment affirmed.


author: Merrick, C. J.

text:
    Susan McCall, Tutrix, v. Edward Henderson and Wm. C. Decamp.
    Action of redhibition may be prosecuted against an absent defendant by attachment, where the plaintiff alleges that she made a tender of the slaves, and demanded a rescission. In such a proceeding the defendant is properly represented by a curator ad hoc, and service of citation is regularly made by posting on the door of the court house.

      By the Gov/rt: The third objection is, that the person signing the attachment bond was not authorized to sign the same. We agree with the defendants’ counsel that the filing of a power of attorney under private signature, at the trial of the exception, is not proof of its existence at the suing out of the attachment, though it purports to bear the same date. But we find that the party signing the bond was examined as a witness. The objection and testimony seem to have been submitted to the jury, and we cannot say they erred in their conclusion.
    Where a bill of sale of slaves is dated in this State, a parly will not be permitted to show that the sale was made in another State, in order to ingraft on it the laws of that State.
    Where a sale of slaves is made to a minor, without the intervention of the tutrix, or a family meeting, the tutrix may sue for the price paid, upon a mere tender of the slaves at any time, whether they were subject to redhibitory vices or not.
    APPEAL from the District Court, Tenth District, Parish of Tensas, Snyder, J.

      Farrar, for plaintiff. Montgomery, for defendants and appellants.
   Merrick, C. J.

This suit, which is an action of redhibition, was commenced by attachment Various objections were made to the proceedings, which we will notice in the order presented by defendants’ counsel.

1st'. It is objected that this suit cannot be maintained, because the rescission of the sale of a slave is not a matter giving our courts jurisdiction over the absent owner, and nothing short of personal service, or the domicil of the party in the State, will sustain an action of this kind. The case of Stephens v. Graves, 9 An. 239, is cited as supporting this position. The case before us differs from the case cited in this : this suit is commenced by attachment, and a debtor of the defendant, who is cited as garnishee, admits that he owes defendant a sum of money which he has in his hands; the case cited appears to have been commenced by a simple appointment of a curator ad hoc; the plaintiff in this case, before bringing her action, alleges that she made a tender of the slaves, and demanded a rescission of the sale; in that case the curator ad hoc appears to have been appointed for the purpose of representing the defendant in the demand for a rescission, the preliminary steps as well as the final judgment. We are of the opinion that defendant was properly represented in this case by a curator ad hoc, and the service of the citation was regularly made by posting on the door of the court house.

2d. It is further contended, that the action cannot be maintained because the attachment can only.be resorted to where there is a debt, and that in the redhibitory action there cannot be any debt due the vendee until the sale has been rescinded. This reasoning would have great force in a case where there had been no tender and demand for a rescission, but as already been stated, in this case it is alleged that such demand has been made, and the defendant had been put in default. Damages, therefore, in the nature of a debt ex contractu, were due the plaintiff. The rescission of the sale, formally pronounced by the court, would only be for the benefit of the defendant. He having been put in default, the slaves were at his risk. This view of the case disposes also of the objection to the affidavit.

3d. The Third objection is, that the person signing the attachment bond was not authorized to sign the same. We agree with defendants’ counsel that the filing of a power of attorney under private signature, at the trial of the exception, is not proof of its existence at the suing out of the attachment, though it purports to bear the same date. But we find that the party signing the bond was examined as a witness. The objection and testimony seem to have been submitted to the jury, and we cannot say that they erred in their conclusion.

4th. The objection to the sufficiency of the sureties on the attachment bond was not made with the other formal objections contained in the exceptions. As the District Judge was not called upon to pass upon this exception, we shall not disturb the finding of the jury on the same as a part of the merits.

6th. The fifth objection is as to the ruling,of the Judge refusing to receive parol proof to show that the slaves were sold in the State of Mississippi, and the price paid some time previous to the date of the act of sale, and that said slaves were sold with the express understanding that they were not to be removed to the swamps of Louisiana; that the purchaser knew when he bought them that they were unsound, and that the contract was governed by the law of Mississippi. The ground of the refusal was, that the testimony would contradict the written bill of sale, and the Judge adds the further reason that Edwin McOall was no party to any of the transactions attempted to be proved.

The bill of sale, or receipt for the price in the nature of a bill of sale, bears date: “Tensas parish, La., February 18th, 1864.” In it the defendant acknowledges to have received of Edwin McOall, the minor, eighteen hundred dollars, the price of the slaves, and binds himself to warrant said slaves to be sound in body and mind, and slaves for life. If it were conceded, as we infer from the bill of exceptions it was, that Edwin McOall was not a party to the proceedings attempted to be proved, the ruling of the District Judge was urn questionably right. The bill of sale bears date in Louisiana, and we do not think the defendant should be permitted to show by parol that the sale was made in another State in order to ingraft on it the laws of that State. The sale having been made to the minor without the intervention of the tutrix, or a family meeting, we do not see what would prevent a suit by the tutrix for the price paid upon a mere tender of the slaves at any time, whether they were subject to redhibitory vices or not.

We will remark in conclusion, that although the foregoing objections have been urged with great ability in the brief filed by defendants’ counsel, we are not satisfied that any error has been committed to the prejudice of the defendants. The finding of the jury will therefore remain undisturbed.

Plaintiff’s counsel prays, in the answer to the appeal, that the judgment should be so amended as to allow the defendant interest from the judicial demand. ATe think the judgment should be amended in that particular.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be so amended as to allow the plaintiff interest at the rate of five per cent, per annum on the sum of nineteen hundred dollars from the seventh day of December, 1854, until paid, and it is further ordered that the judgment so amended be affirmed with costs.


author: Buchanan, J.

text:
    Thomas Medley & Co. v. Jno. J. Hughes.
    Where, by the fault of the shipper, there Was no bill of lading on board the vessel, so that the ship’s agent did not know to whom to deliver the goods, and notice was published in a newspaper (taken by plaintiffs) that the ship was discharging, and subsequently the goods were stored with the ship’s agent, Where they were destroyed by fire, the ship will not be responsible.
    -ÍJL PPEAL from the Eifth District Court of New Orleans, Buchanan, J.

      L. Pierce, for plaintiffs and appellants. Goold and Howard, for defendant.
   Buchanan, J.

This is a suit upon a contract of affreightment for non-delivery of goods shipped per bark Catharine, from Philadelphia to New Orleans. The proof is that the goods were put on board of the vessel, but the bills of lading were only sent down by the shipper to be, signed two days afterwai’ds, at which time the vessel had sailed. The bills of lading were signed by the house which was the agent of the ship for procuring freight. Owing to this circumstance, the bark Catharine had no bill of lading on board for these goods, and her commander and agents in New Orleans were not aware that there were goods on board consigned to plaintiffs. Mr. Fosdiak, the agent, proves that had he known this fact, he would have sent the goods from the vessel to plaintiff’s store. As it was, notice was given to consignees by advertisement in the .Commercial Bulletin (a newspaper taken by plaintiffs) that the ship was discharging. After this notice, the goods were discharged upon the levee, where they remained until the next day, when they were carted to the store of the agent of the ship. The night afterwards a fire broke out in the neighborhood, which spread to the store in question, and consumed it with its contents, including the goods of plaintiff.

We think the ship is not responsible for the loss. Everything was done that was practicable under the circumstances to fulfill the carrier’s obligations.

This case is distinguished from that of Kohn & Bordier v. Packard, 3 L. R. 227, in this, that it is proved plaintiffs’ took the newspaper in which the notice to consignees per this ship, to- attend and receive their goods, was published. The want of a bill of lading on board the vessel was the fault of the shipper of the goods. The ship’s agent acted properly in storing the goods after remaining on the levee a reasonable time without being called for by the consignees. And the destruction of the goods by fire was an accidental and uncontrollable event, for which the carrier is not responsible. C. C. 2725.

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


author: Spgffoed, J.

text:
    New Orleans and Carrollton Railroad Co. v. Thomas B. Harper.
    An admission of the execution of a note, accompanied by an assertion that it was not really due because it had been extinguished by compensation, is not such an acknowledgment as will interrupt prescription.
    Depositaries holding by a precarious tenure cannot prescribe on the thing thus held. But the deposits made with plaintiff’s bank were not real but irregular deposits; the ownership of the identical money deposited passed to the bank, and the relation of debtor and creditor in a cash account arose between the parties.
    A corporation may plead prescription.
    Code, 3424,84T6, 8486.
    APPEAL from the District Court, Eighth District, Parish of St. Tammany, Watterson, J.

      J. R. & J. D. Jones, for plaintiff. A. Hennen, for defendant and appellant.
   Spgffoed, J.

This is a suit on a negotiable promissory note, alleged to have been signed by Harper & Merrick, commercial partners, for $200, due January 12th, 1843.

The defendant, Harper, was cited on the 27th September, 1850.

In his answer he admitted the execution of the note, as alleged, but denied that he owed plaintiffs anything; he averred that, prior to the execution of the notes, Harper & Merrick had leased the New Orleans and Carrollton Railroad from the plaintiffs, and that there were mutual accounts between them growing out of said business connection, and that plaintiffs were indebted to Harper & MervioTo in an amount near $1200, which more than compensated and had extinguished the note sued upon. The defendant prayed for judgment in recon-vention, he being sued in a parish different from that which was the domicil of the plaintiffs.

In an amended answer the defendant increased his demand in roconvention to the sum of $4000.

To the demand in reconvention the plaintiffs pleaded the prescription of ten years.

There was judgment in favor of the plaintiffs for the amount of the note, with legal interest from judicial demand, and judgment against the defendant on his reconventional demand.

In this court the defendant has pleaded the prescription of five years to the plaintiffs’ demand on the note.

The plaintiffs suggest that their demand is below our jurisdiction. There is a demand in the petition for seven per cent, interest since the maturity of the note, which brings the amount sued for within our jurisdiction. Although this interest was not allowed, and no amendment has been asked for in this court, we are not satisfied that the allegation was inserted in the petition in bad faith, with a view to make the case appealable. The note was payable to the bank of plaintiffs, an incorporated institution, with special privileges, and there may have been a convention between the parties as to interest, of which the evidence was not attainable.

-The plea of prescription, filed by the defendants in this case, must prevail. The plaintiffs have not asked that the cause be remanded for a trial upon that plea, but have rested their case upon an alleged interruption of prescription, said to have taken place by the acknowledgments of the defendant made in 1847.

The statements of the defendant are proven by one witness, the secretary of the plaintiffs. Those statements should be considered together. So considered they do not amount to an “acknowledgment of the right” of the creditor in the sense of Article 3486 of the Code. The acknowledgments amounts only to an admission of the execution of the note; accompanied by an assertion that it was not really due because it had been extinguished by compensation. See Lackey v. Macmurdo, 9 An. 15; Succession of Jewell, ante. p. 83.

The reeonventional demand is also barred by the prescription of ten years. It is a demand on an account simply, or a demand growing out of alleged errors in an old account.

The defendant and his partner Merriclc leased the plaintiffs’ railroad, with permission to throw up the lease on certain conditions, and to settle as stewards of the company. They availed themselves of this privilege, and the accounts sought to be reconsidered in this case, and which have made a voluminous record, are the debtor and creditor accounts between the company and its lessees and stewards, as far back as 1837 and 1838.

The defendant seeks to escape the plea of prescription by taking the position that the bank belonging to plaintiffs was the depositary of the funds paid in by the lessees, Merrick & Harper, and that prescription cannot be pleaded in case of a deposit. It is true that depositaries, holding by a precarious tenure, cannot prescribe on the thing thus held. 0. C. 3476. But the deposits made in the plaintiffs’ bank were not real but irregular deposits; the ownership of the identical money deposited passed to the bank. The relation of debtor and creditor in a cash account arose between the parties. The Article 3476 of the Civil Code speaks only of causes which present the prescription aaquirendi causa from running. It is the prescription Wberamdi causa which is pleaded by the plaintiffs, and which is applicable to the reeonventional demand of the defendant for alleged errors in stale accounts, although most of the credit items in those accounts consist of bank deposits.

But it is said the plaintiffs have tacitly renounced the right to plead prescription, first, by producing the accounts in answer to the defendant’s prayer; second, by opposing the report of the creditors, and, third, by pleading payment and settlement of the accounts.

jj. js j.rue a renunciation of prescription may be inferred from every act or faofc wjjich manifests the will of the debtor to renounce, either expressly or by clear implication. C. C.3424. We find no indication in the acts of the plaintiffs above referred to of any intention to renounce prescription.

Finally, it has been urged that inasmuch as a corporation has no soul, it cannot plead prescription. This would seem to be a better reason for holding that it can.

It is ordered and decreed, that the judgment of the District Court be avoided and reversed ; and it is further ordered, adjudged and decreed, that there be judgment against the plaintiffs on the principal demand, and judgment against the defendant on his demand in reconvention ; it is further ordered, that such of the costs in the District Court as grew out of the principal demand be borne by the plaintiffs, and such as were occasioned by the reconventional demand be paid by the defendant, and that the plaintiffs and appellees pay all the costs of this appeal.


author: Mekeick, 0. J.

text:
    Henriette Bonvous v. Martha Brown.
    The deed of the Tax Collector cart have no effect without the production of the assessment roll which stands in the place of a judgment.
    APPEAL from the District Court, Third District, Parish of Jefferson, Burthe, J.
    Seghers, for plaintiff. Boselius, for defendant and appellant.
   Mekeick, 0. J.

This is an action of jactitation, accompanied by an injunction. Plaintiff alleges that she became the owner of the lot in controversy on the 5th day of January, 1830, and that she has been in the possession of it ever since. The defendant alleges that she became the owner of the lot by virtue of a purchase at a tax sale on the 1st day of November, 1851, the property having been assessed in the name of Henriette Bonvous, f. w. c.

The plaintiff exhibits a notarial act of sale to her, bearing the date alleged, and shows several years possession. The defendaet offers in evidence the deed of the Collector of Taxes. It recites that the taxes were due by Annette Bamais. No other testimony was offered by the defendant. Plaintiff’s counsel urges, among other objections, that the deed of the Tax Collector cannot have any effect without the production of the assessment roll, which stands in the place of a judgment. The authorities fully sustain this view. 4 A. 252, Hughes v. Barrow; 6 N. S. 348; 7 L. R. 50; 10 L. R. 283, Reeves v. Towls. It is unnecessary, therefore, to consider the other objections to the defendant’s title. •

Judgment affirmed.


author: Lea, J. Spofford, J.,

text:
    Thomas R. Dixon and Eliza N. Dixon v. Reuben Chadwick.
    Suit to rescind sale of slaves. Judgment for plaintiffs and damages allowed.
    Want of tender under the circumstances of this case, is a fatal obstacle to plaintiffs* recovery.
    Spofford, J., dissenting.
    The well established rule requiring a tender where the tender is not impossible, nor even inconvenient, results from the general doctrine of commutative contracts, and affords a salutary check against fraud, concealment, and the after thoughts of self-interest. The vendor, warned in time, may take back his property and by attention save it. The vendee, who, having discovered a redhibitory defect, neglects to notify the vendor by an offer to restore the thing, seems to take the risk of its perishing from that cause upon himself. Spofford, J., dissenting.
    APPEAL from the District Court, Tenth District, parish of Tensas, Snyder, J.

      JParrar, for plaintiffs.

      Beeves & Biscoe, for defendant,
    cited, on the question of tender: Janin v. Traullin, 4 La. 198; Barret v. Bullard* 19 La. 281; Fazende v. Eagan, 9 Rob. 806 ; Bach v. Barret, 2 An. 955 ; Fisk v. Proctor, 4 An. 592.
   Lea, J.

This is a suit to recover the price of two slaves sold by the defendant to the plaintiffs, in the capacity in which they present themselves before the court, on the ground of alleged redhibitory defects existing at the time of the sale. The defendant admits the sale, but avers that the slaves were sold as unsound; that he made a full disclosure of the fact that they were diseased, before the sale, and that the plaintiffs took upon themselves the risk of their recovery.

Preexisting redhibitory defects in both the slaves, being sufficiently established by the evidence, and admitted of record, it was incumbent upon the defendant to prove affirmatively, that he made a full disclosure with reference to their condition. It is shown that both of the slaves died of incurable maladies, although they received careful treatment under proper medical advice. No bill of exceptions was taken to the admission of any portion of the evidence offered on the trial, nor to the charge of the court under which the jury found a verdict for the plaintiffs. The evidence being conflicting and the solution of the issue between the parties being dependent exclusively upon the credibility of the witnesses, we do not feel at liberty to disturb the verdict of the jury, so far as it determines the question of factupon which it is based; but that fact carries with it a liability for damages. The defendant admits that he knew of the unsound condition of the slaves at the time of the sale. He is therefore liable in damages caused by the trouble and expense, shown to have been incurred during the sickness of the deceased slaves.

The evidence does not enable us to arrive at any other than an approxima-tive estimate of the value of these services. We think $100 will be a sufficient remuneration of all necessary charges incurred. Under the circumstances as disclosed by the evidence, we think a tender of the slaves to plaintiffs, was unnecessary, if not impracticable.

It is ordered, that the judgment appealed from be amended, so as to read as follows:

It is ordered, that the plaintiffs for themselves and for the use of their minor daughter, Mary O. M. Dixon, as set forth in their petition, do have and recover of the defendant, Beuben Chadwick, the sum of $900, with interest thereon, at the rate of five por cent, per annum, from the 11th day of December, 1854, till paid, with costs of suit, together with the costs of this appeal.

Spofford, J.,

dissenting. I think the plaintiffs should suffer a non-áuit.

On the merits, the evidence is vague and obscure.

But the want of a tender, under the circumstances of this case, seems to me to be a fatal obstacle in the plaintiffs’ way.

They alleged, in their petition, that they had demanded a rescission of the agreement to sell, tendered back the slaves, and asked for a returp of the price, which the defendant had refused. 1

In his answer, the defendant averred that the plaintiffs kept the slaves until the day of their death, without ever offering to return them, or expressing the slightest dissatisfaction on account of their health. '•

The only evidence on the subject, thus distinctly put at issue by both parties, is that of a witness, who testifies that he heard the defendant offer “to back out of the trade, but Mr. Dixon (one of the plaintiffs) said he¡ did not think he could do it.” This conversation is said to have been held on the 20th of January, 1854, which was a month after the trade is alleged by plaintiffs to have been made, and the slaves delivered, and some days at least áfter the plaintiffs had been apprised by their physician of the maladies complained of.

There is nothing in the record from which I can infer that it was impossible or even inconsistent for the plaintiffs to offer to return the slaves, after discovering the redhibitory vices.

The well established rule, requiring a tender in such cases, results from the general doctrine of commutative contracts, and affords a salutary check against fraud, concealment, and the after thoughts of self-interest. The vendor, warned in time, may take back his property, and by attention, save it. The vendee, who, having discovered a redhibitory defect, neglects to ndtifythe vendor by an offer to restore the thing, seems to take the risk of its perishing from that cause, upon himself.


author: Spofford, J.

text:
    Succession of Pierre Cousteaud.
    A memorandum, book, kept wholly in. the handwriting of the deceased, is admissible in evidence to show his indebtedness to a surviving partner,
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    Grandmont, for curator, appellant. Pobert, for opponent.
   Spofford, J.

Pierre Oousteaud and Jean Arnaud were partners in the cooperage business. Oousteaud died, and Arnaud administered upon his succession.

Upon filing his account and statement of debts, Arnaud put himself down as a creditor of the partnership for the sum of $551 48, for moneys advanced by him during the partnership, as per the book kept by the deceased, and accounts annexed.

This item was opposed. Arnaud, to sustain it, offered the book of accounts, kept wholly in the handwriting of the deceased Oousteaud, on which the sums paid out and received by each partner appear to have been carefully entered. Arnaud himself being unable to write, his counsel moved that auditors he appointed to examine the hook, and report what*balance, if any, was due Ar-naud. The court refused, and a bill of exceptions was taken.

In this final judgment the court wholly rejected the claim of Arnaud against the partnership, on the ground, it is said, that the legal presumption ;was, that Arnaud's advances were made out of partnership funds.

■An inspection of the memorandum book kept by Gousteaud himself, shows a prima faoie case of indebtedness by the partnership to Arnaud. It is not rebutted by any counter evidence. We think the Judge erred in rejecting Arnaud's claim entirely, and shall therefore remand the cause. A report of auditor’s would facilitate the court in coming to a correct result upon the accounts as they were kept by Gousteaud. Without evidence to show that the memorandum book was not correctly kept, or did not embrace all the accounts, there should be judgment in favor of Arnaud for whatever balance the book may show to be due him.

Judgment reversed, and cause remanded for a new trial as to the claim of Arnaud, the costs of the appeal to be borne by the opponents and appellees.


author: Lea, J.

text:
    Brander, Williams & Co. v. Isaac Lum.
    Suit upon a factor’s account.
    Where the defendant had never acquiesced in the account as rendered, and there was no contract for interest, the plaintiffs can only recover legal interest.
    The charge of forty-five cents per bale, made against defendant, for drayage, labor, storage, weighing, etc., of defendant’s cotton, cannot be recovered, unless actually paid by plaintiff.
    In reply to interrogatories, plaintiffs said that “ they are in the habit of taking out open policies from the insurance offices against fire and river navigation, to cover shipments of all cotton that may be made to them, etc,-” and that “ they pay the premiums of insurance, which they charge in the account of sales to the planter.” This answer was made in reply to an interrogatory asking if the insurance was made in a mutual insurance company, “ and what dividend or scrip plaintiffs had received.” Answer held to be unsatisfactory. By the Court: As the defendant is charged with the premiums, it is'but fair that he should be credited with, at least, the value of such amount of scrip as, under a fair apportionment, he would have been entitled to receive.
    APPEAL from the District Court; Ninth District, Parish of Concordia, Gooley, J.

      Farrar & Torh, for plaintiffs and appellants. Stacy & Sparrow, for defendant.
   Lea, J.

This is a suit for a balance due by a planter upon a factor’s account for advances, commissions, supplies furnished, etc.

The defendant, in addition to the general denial, pleads the illegality of certain items in the account, alleging that the same is made up of usurious charges of interest, commissions, and compound interest, and of incorrect charges for drayage, storage, labor, weighing and fire and river insurance.

As respects the interest account, the plaintiffs are placed in this dilemma. If the defendant has promised to pay the interest at 8 per cent., together with the commission of 2& per cent, for advancing, as set forth in the account, the contract is clearly usurious, and the plaintiffs can recover nothing but the principal sum advanced. If, however, there was no agreement with reference to the payment of interest, and the plaintiffs have merely claimed more than the law allows, the Act of 1844, imposing a forfeiture of the stipulated interest in usurious contracts, would not be applicable; but the plaintiffs, in such case, can recover only the legal interest to which they would be entitled upon advances made by them as factors. See Lalande v. Breaux, 5th An., 507; also Barret v. Chaler, 2d An., 876.

Upon a careful consideration of the evidence, we think the defendant did not, at any time, acquiesce unconditionally in the account as it is sued upon, and that, as there was no contract for usurious interest, the plaintiffs are entitled to recover legal interest upon their advances from the respective dates at which they were made.

With reference to the charges for drayage, storage, labor, weighing and insurance, the plaintiffs were interrogated under oath, whether they had paid those charges as detailed in the account, and if so, to whom. The answers to these interrogatories are unsatisfactory, at least so far as they relate to dray-age, labor, storage, weighing, etc., for which a charge of 45 cents per bale is made in each of the accounts of sales rendered. The plaintiffs do not say unequivocally that they paid tin's amount. If they did not pay it, they have no right to claim it from the defendant; if they did, they should have said so in terms not open to misconstruction. Their answer to the interrogatory on this point is as follows: “We make a contract every year, for the entire year, with the cotton press, for the storage of all the cotton that may be forwarded to us, and we pay the cotton press therefor. The contract that we make with the cotton press, embraces drayage, labor and storage, and when we make up our account of sales against the planter, whose cotton has been shipped to us and stored at the cotton press, we charge him with the items of drayage, labor and storage. We paid the cotton press, according to the contract, the charges. This is the mode of transacting business in New Orleans, and in conformity with the mercantile custom and usages in such cases in this city.”

Now, there is nothing in this answer from which any one would necessarily infer that the plaintiffs were subjected to an outlay of 45 cents per bale, for expenses incurred in the drayage, storage, weighing, etc., of the defendant’s cotton, nor is the court informed by what process of calculation the plaintiffs considered themselves entitled to charge the defendant with the precise sum of 45 cents per bale, for drayage, storage, labor, etc. There is nothing reprehensible in such a contract as that detailed in the plaintiffs’ answer, but, no matter how comprehensive the contract may be, there must be some means of arriving at the precise amount chargeable upon each bale of cotton which is the subject of the contract. The plaintiffs admit this conclusion by making a precise charge of 45 cents per bale. The defendant had a right to know how it was paid, and to whom. He was entitled to the benefit of any contract which his mandatary may have made on his behalf, and he was at least entitled to such an explanation of the terms of this contract as might satisfy him that the factor realized no profit by the arrangement, at his expense. We think the District Judge was right, under the circumstances, in rejecting the answer as not legally responsive to the question propounded. As respects the items charged for fire and river insurance, the answers of the plaintiffs are not such as to enable the court to ascertain or determine precisely the rights of the defendant. To the question whether they (the plaintiffs) had effected insurance on the defendant’s cotton, and if so, in what office, and if in a mutual insurance, what dividend in scrip or money they had received.

They answer (substantially) that “ they are in the habit of taking out open policies from the insurance offices, against fire and river dangers, to cover the shipments of all cotton that may be made to them, except as to such as they are directed not to insure, and they pay the premium of insurance which they charge in the account of sales to the planter. This was done by them in this instance, and the insurance office was paid by them, and they charged and claimed the same from said I/u/m.”

The defendant is not informed in what office his cotton was insured, nor what amount of dividend (if any) in scrip or money would have been due to him under a fair apportionment of the gross sum received by the plaintiffs. Whether the defendant would or would not have been entitled to any reimbursement under an equitable apportionment of the scrip or the proceeds realized therefrom, it is clear that a statement might have been made which would have enabled the defendant to ascertain, at least approximatively, what his rights were, and it is equally clear that no such statement has been made. The only difficulty in attaining such a result, must be one of calculation. As the defendant is charged with the premiums, it is but fair that he should be credited with, at least, the value of such amount of scrip as under a fair apportionment he would have been entitled to receive.

The answers of the plaintiffs on this point being unsatisfactory, the entire claim for insurance must be disallowed until it can be determined upon a proper examination of all the testimony necessary to its final adjustment.

Deducting from the charges against the defendant, those for drayage, labor, storage, weighing and insurance, the same not having been satisfactorily established by legal evidence, and reducing the charge for interest from eight to five per cent., and rejecting also the charge of $82 09 for advancing, we find that the plaintiffs would be entitled to an amendment of the judgment in their favor, by increasing the same from $1884 89 to $2650 50.

It is ordered, that the judgment appealed from be amended so as to read as follows:

It is ordered, that the plaintiffs, Brander, Williams & Co,, do have and recover of the defendant, Isaac Lum, the sum of $2650 50, with interest thereon at the rate of five per centum per annum, from the 17th day of December, 1852, till paid, with costs in both courts, and that upon the charges in the plaintiffs’ account for drayage, storage, labor, weighing and insurance, there be judgment as in case of non suit.


author:
Spoffokd, J.
     Vookhies, J.,

text:
    James C. Yeatman v. James L. Crandall, Sheriff
    Article 12T of tbe Constitution of 1845, and 128 of the present Constitution, refer to State taxation in its proper sense, for general or State purposes When it says tliat taxation shall be equal and uniform throughout the State, it points directly to. its object, which is to regulate the mode of filling the State Treasury. It does not take away the power of making focal assessments for local improvements, upon the equitable principle that he Who reaps the benefit must bear the burden.
    The Act entitled “ An Act forming a levee district, to be composed of the parishes of Carroll, Madison and Catahoula, for the better protection of the same from inundation,” approved March 18, 1852, is constitutional.
    That Act is not repealed, so as to exempt the plaintiff from paying the amount of his tax, by the Act “ To reclaim and drain the swamp and overflowed lands donated to the State of Louisiana,” &c., approved April 30,1853.
    APPEAL from the District Court, Tenth District, Parish of Madison, Snyder, J.

      Hynes, for plaintiff and appellant. Short cB Parham and Caldwell, for defendants.
   Spoffokd, J.

The plaintiff seeks to enjoin tho collection of a levee tax, on the ground that the statute authorizing it is unconstitutional, null and void.

The Act referred to is the “ Act forming a levee district, to be composed of the parishes of Carrol], Madison and Catahoula, for the better protection of the same from inundation,” approved March 18th, 1852, (Sess. Acts, p. 284,) amended March 25th, 1853, (Sess. Acts, p. 44), and repealed as to Catahoula April 28th, 1853, (Sess. Acts, p. 203.)

The 2d section of this Act provided “ that for the purpose of building or making and repairing all levees in said levee district, an annual ad valorem tax of one-and-a-half per cent, on all the alluvial lands in the parish of Carroll, between the foot of the Bayou Mason hills and the Mississippi river, and all the alluvial lands in the parish of Madison except Diamond Island Bend, and all alluvial lands in the parish of Catahoula, be and the same hereby is levied; tho value of said lands to be assessed by the assessment-rolls of each of said parishes.”

This Act is said to impugn the rules laid down in Artiele 127 of the Constitution of 1845, corresponding to Article 123 of the present Constitution. “ Taxation shall be equal and uniform throughout the State. After the year 1848 all property on 'which taxes may be levied in this State shall he taxed in proportion to its value, to he ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shall he levied ; the Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”

This Article refers to State taxation, in its proper sense, for general or State purposes. When it says that taxation shall he equal and uniform throughout the State, it points directly to its object, which is to regulate the mode of filling the State Treasury. It does not take away the power of making local assessments for local improvements, upon the equitable principle that he who reaps the benefit. must bear the burden. It does not say that the State shall build all the parish jails and court-houses, erect all the levees, drain all the swamps, open all the streets, fill up all the urban lots, and make the nameless other improvements which particular localities demand, and pay for the sum out of one common fund, levied ad valorem upon all tho property in the State.

It is notorious that an acre of land pays twice as great a tax for local purposes in one parish as an acre of equal value pays in another parish. Yet no one thinks the Constitution infringed by such a state of things.

It is enough that State taxes for State purposes are equal and uniform and ad valorem; for local improvements, each subdivision of the State maybe required to pay iu proportion to the cost or value of the improvements made for the benefit of the particular locality. Another interpretation of Article 127 would defeat its spirit and aim, by ah application of its letter to matters which were not in the contemplation of its framers. It would he the height of inequality and injustice to make the prairies of Attakapas contribute ad valorem to the building of the levees of the Mississippi, without getting a contribution in return.

But this ground, which was mainly relied on in the printed argument of the appellant, was abandoned in the oral argument; and it was conceded that the Legislature might lawfully erect any portion of the State it saw fit into-a district for special local improvements, and assess the cost of such improvements upon that district alone. But it was urged that in such case the whole district so parcelled oat should be subjected to the rule of equality and uniformity by which the Legislature is bound to exercise the taxing power.

An assessment for levee purposes is not a tax, in the strict legal sense of the term, although it is true the Legislature has called it so in the Act whose constitutionality is attacked. See Crowley v. Copley, 2 Ann. 330; State v. New Orleans Navigation Company, 11 M. 324; Worsley v. Second Municipality of New Orleans, 9 Rob. 333; Lafayette v. Orphan Asylum, 4 Ann. 2, and cases there cited.

But a principle of equity, which exists independent of any constitutional recognition, would dictate that the assessment should Be made upon the land of each proprietor, as nearly as practicable, irr proportion to the benefit received.

To secure an exact equality, in this as' in everything else dependent upon human government, is impossible. Perfection in legislation is the dream of visionary minds.

If the Act before us is not clearly obnoxious to that equitable principle which-was sought to be embodied in Article 127 of the Constitution, it is our duty to maintain it, in view of the immense practical benefit it confers upon the region of country which it protects from inundation.

The objections are, that the hill lands of Carroll and the whole of Diamond Island Bend in Madison, embracing about 60,000 acres of alluvial land, are not assessed for the special tax, although they are nominally within the levee district pointed out in the title of the Act.

The answer is, that they reeeive no benefit from the levees, because the laws of nature protect the hills from overflow ; and it is not yet necessary to protect Diamond Island Bend by a levee, which would have to extend fifteen miles along the bank of the Mississippi river, because only a few individuals live in the Bend, and they are employed in cutting cord-wood for steamboats.

We think the answer a satisfactory one. So far from violating the principle of equality, these exceptions were made to preserve it. The lands exempted get no benefit; they should not, then, bear any burden.

There are some minor objections urged in the brief, which seem to have been waived in the oral argument.

The fact that the Commissionefs have neglected to obey an injunction of the law requiring them to have the levee built and repaired, by preference, from the Bayou Mason hills to the Mississippi, would be relevant if a mandamus were sought to compel them to execute this provision; but it is not perceived what connection it has with the constitutionality of the Act.

The fact that certain alluvial lands in parishes back of this levee district have been incidentally benefited by the levees, without contributing to their erection, is but an illustration of the difficulty of equalizing such burdens exactly. When the law was passed the levels were not, it is presumed, precisely known ; and this incidental advantage to remote lands may not have been foreseen or could not then be measured, even by an approximate calculation. Experience may dictate more satisfactory legislation in future; but the vague admissions upon the record as to this point do not authorize us to annul the law from whieh the plaintiff has derived a conceded benefit.

We do not find that the Act of March 18th, 1852, forming the levee district was repealed so as to exempt the plaintiff from paying the amount of his tax, by the Act of 30th April, 1853, to reclaim and drain the swamp and overflowed lands donated to the State of Louisiana by the Congress of the United States. (Sess. Acts 1853, p. 289.) See the same Act, as amended March 16th, 1854, 510, (Sess. Acts, p. 94.) The supposed clashing of the two levee systems was guarded against by a provision in the Act of March 18th, 1852, section 26, which declared that “ all levees which may be erected, in whole or in part, under this Act, and which may be selected by the State as a part of the general levee system, shall be paid for out of the proceeds arising from the sale of the swamp and overflowed lands, on the warrant of the President of the Board of said Commissioners — which sum of money, when received by said Board of Commissioners, shall be distributed pro rata amongst those persons who may have paid their taxes levied under this Act.” (Acts 1852, p. 237.) The Act of March 18th, 1854, (Sess. Acts, p. 156,) was passed in pursuance of the same idea.

The appellant insists that, as he cannot be said to have abused the equitable remedy of injunction, the District Judge erred in condemning him to pay ten per cent, upon the amount enjoined, as damages.

As the amount enjoined bears no interest, we should be obliged to award eight per cent., and the difference is too trifling to furnish a reason for reversal of the judgment.

No amendment has been prayed for by the appellee.

The judgment is therefore affirmed, with costs.

Vookhies, J.,

(concurring.) I have been led to reconsider the opinion to which I assented in the Benton street case and the case of Cumming v. The Police Jury of Rapides.

The doctrine of those cases, so far as it makes Article 123 of our present Constitution apply to special assessments for local improvements, like streets in the city, levees, &c., in the country, it seems to me will lead to the inequality which it was the object of that Article to prevent. I yield my former impressions on this point to those of a majority of the court, the more readily, because the Supreme Court which sat under the Constitution of 1845, and five of the seven judges with whom I have sat upon this bench, have concurred in holding that the Article in question was not intended to apply to municipal or local taxation for local improvements.

I concur in the judgment in this case.

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


author: Buchanan, J. Merrick, C. J., Spofford, J.,

text:
    Alexander Brother, Syndic of the Creditors of Peter Conrey v. James Saul et al.
    In May, 1850, 0. deposited certain shares of bank stock with S., as collateral security for the payment of $10,000 due S. On the 10th of June, 1851, O. executed a power of attorney to S., authorizing him “ to sell, transfer, and assign unto himself, or any other person or persons,” the shares of bank stock. On the 29th of August following, under this power, an actual transfer of the stock was made to S. In the mean time, say about the 1st of July, 1851, 0. came under protest — and, on the 7th of November of the same year, made a cession of his property. His syndic, the plaintiff, instituted this suit, alleging that C. was in insolvent circumstances on the 10th of June, 1851, as well as on 29th of August, and to the knowledge of defendant. He prays that the transfer be set aside, and that' the stock be decreed to belong to him in his capacity as syndic.

      J5y the court: We have here a pledge of the stock made in good faith, to secure a tona fide debt, at a time not suspicious, and by which no creditor was injured. The allegation of the petition, that Convey was insolvent on the 10th of June, 1851, and that to the knowledge of Sami, is disproved by the evidence, and even by the admissien of the plaintiff. Simultaneously with the pledge of the stock, the power of attorney was given, purporting to be for value received and irrevocable. Those clauses sufficiently indicate the interest of Saul in the object of the mandate — the stock. That interest was an interest of pledgee. As pledgee he had no power to sell the object pledged, unless by virtue of a judicial order ; and the power to him to do so, was a nullity, even between the parties. C. C. 8182. It follows that the transfer which was made of the stock under this power, was also a nullity. But the nullity of the assignment of the ownership of the stock, leaves defendant's right as pledgee in full force.
    As to any informality in the pledge, as for instance, the want of the act of pledge required by Article 8125 of the Code, the syndic of the pledgor cannot disturb the pledge on any such ground, when the contract was made in good faith, and no creditor was injured thereby.
    The pretended pledge of the bank stock was void as to other, and even subsequent creditors of C., and it invested S. with no privilege upon the stock, under Articles 8124, 8125 of the Civil Code, which were in full force at the time. Spofford, J., with whom concurred Lea, J., .dissenting.
    XX PPEAL from the Second District Court of New Orleans, Lea, J.

      Bradford and Hunton, for plaintiff! Finney and Benjamin, for defendant and appellant.
   Buchanan, J.

On the 10th of June, 1851, Peter Oonrey, Jr., being indebted to James Saul, the defendant, in the sum of ten thousand dollars, made his note, payable to the order of the latter, for that amount, with six per cent, interest from date; and, in case of default, interest at eight per cent, from demand.

On the same day, Hr. Oonrey delivered to defendant two hundred shares of the capital stock of the Mechanics’ and Traders’ Bank, and executed his power of attorney in the following terms:

“ Know all men by these presents, that I, the undersigned, for value received, do hereby irrevocably constitute and appoint James Saul, of New Orleans, to be my true and lawful attorney, for me, and in my name and behalf, to sell, assign, and transfer unto himself, or any other person or persons, two hundred shares in the capital stock of the Mechanics’ and Traders’ Bank of New Orleans; and further, one or more persons to substitute with like power. In witness whereof, I have hereunto set my hand, this 10th of June,, 1851.' Peter Oonrey, Jr.”

On the 20th of August, 1851, defendant, then being in New York, substituted, by letter, Edward Rawle, with special power to transfer to himself (defendant) the two hundred shares of .bank stock in question.

On the 29th of August, 1851, Edward Bawle, made a transfer of the said shares of stock on the transfer book of the bank, in the following words:

“ For value received, I do hereby assign unto James Saul, all my right, title and interest, in two hundred shares of the capital stock of the Mechanics’ and Traders’ Bank of New Orleans, on which has been paid fifty dollars on each, being the same as described by a certificate issued to me, numbered 1047, dated 19th of April, 1850, -which certificate is null and void.

Peter Conrey, by E. Rawle,

Of this transfer, witness, substituted by James Saul.

P. Arnouil. Edward Rawle.*”

Peter Oonrey, Jr., made a cession of his property to his creditors, on the 7th of November, 1851; and this suit was brought the syndic of his creditors, on the 9th of June, 1852, to make and annul the transfer of stock of the 29th of August preceding, as made in fraud of Gonrey's creditors and to their injury.

The petition alleges, that Oonrey was in insolvent circumstances on the 10th of June, 1851, as well as on the 29th August, 1851, and wholly unable to meet his liabilities, at both of those dates, to the knowledge of defendant. It concludes by a prayer, that the assignment and transfer of the aforesaid two hundred shares of stock, be declared null and void, and the same recognized and decreed to belong to petitioner, in his capacity of syn-dict, together with all dividends which have accrued, and may hereafter accrue thereon.

On the trial, it was admitted, that Oonrey, was solvent and rich, until the news reached New Orleans, about the 1st of July, 1851, of the protest of his bills on Samuel Jaudon, of New York.

It was also admitted, that when Saul wrote to Mr. Bawle, authorizing him to transfer the stock, which was on the 20th of August, 1851, he was aware of the insolvency of Jaudon and the protest of Oonrey.

It is proved, that the exchange operations of Oonrey with Jaudon, were very extensive — the amount of the drafts of the former on the latter being about half a million — and that Gonrey's credit was affected by the protest of those bills.

It is also proved, that Oonrey and Saul both married sisters of Jaudon ; and from this connection, it is argued, that defendant must have been intimately acquainted -with their affairs.

Whether Saul's knowledge of Jaudon's insolvency, necessarily implied a knowledge of ’Gonrey's insolvency at the date proved, or whether, in fact, the proof of Oonrey being under protest on the 29th of August. 1851, is tantamount to proof of his being insolvent at that date, in the sense of Article 1980 of the Code, are questions which it is deemed unnecessary to decide, inasmuch as we consider the assignment of the stock by Oonrey, represented ¡by Bawle to Saul, to be void for an entirely different reason.

There is no doubt of Saul’s being a lona fide creditor of Oonrey, to the amount of ten thousand dollars, on the 10th of June, 1851. That debt was represented by a promissory note of that date, and was made up of a note of •<$8,500 of the 9th of August, 1850, and of $1,500 paid by Saul to Oonrey, on the 10th of June, 1851. The note of $8,500 was itself a renewal of a note for a much larger amount ($12,000) given by Oonrey to Saul, for money lent, on the 1st’ of December, 1849.. The certificate for the two hundred shares of Mechanics’ Bank stock, had been deposited by Gonrey in Saul's hands, as far back as May, 1850, as collateral security of the first of those notes; and the notes of $8,500 and $10,000, were intended to' be secured by the said shares of stock. The certificate of said stock was placed in Mr. Saul’s hands, with that view. We have here a pledge of the stock made in good faith, to secure a bona fióle debt, at a time not suspicious, and by which no creditor was injured. The allegation of the petition that Gonrey was insolvent on the 10th of June, 1851, and that to the knowledge of Saul, is disproved by the evidence and even by the admission of the plaintiff.

Simultaneously with the pledge of the stock, the power of attorney already mentioned was given, purporting to be for value received and irrevocable. Those clauses sufficiently indicate the interest of Saul in the object of the mandate — the stock. That interest, as we have seen, was an interest of pledgee. As pledgee, he had no power to sell the object pledged, unless by virtue of a judicial order; and the power to him to do so, was a nullity, even between the parties. 0. 0., Art. 8132. It follows that the transfer, which was made of the stock, under this power, was also a nullity.

But the nullity of the assignment of the ownership of the stock, leaves defendant’s right as pledgee in full force. See Partee's Syndic v. Corning, 9 An. 539.

And as to any informality in the pledge, as for instance, the want of the act of pledge required by Article 3125 of the Code, it has been settled in the same case, that the syndic of the pledgor cannot disturb the pledge on any such ground, where the contract was made in good faith, and no creditor was injured thereby. In this case, the defendant had possession of the stock as a security for Gonrey’8 indebtedness to him, from a period antecedent to the existence of any debt upon Gonrey's schedule, which is in evidence.

It is therefore adjudged and decreed, that the judgment of the District Court be amended ; that the transfer of two hundred shares of Mechanics’ and Traders’ Bank stock from Peter Gonrey, Jr., represented by B. Pawle to defendant, on the 29th of August, 1851, be declared null and void; that defendant be recognized as pledgee of the said two hundred shares of stock, for the security of a debt of ten thousand dollars, with interest at six per cent, from the 10th of June, 1851; that the injunction herein issued, be perpetuated, so far as it prohibits the transfer of said stock by defendant, and dissolved so far as' it prohibits defendant from receiving the dividend or dividends upon the same ; that said dividend or dividends heretofore declared, be credited upon the debt due defendant, as aforesaid; that the stock be sold by the Sheriff, for cash, to pay the said debt; and the surplus of proceeds of sale, if any, to bo paid over to plaintiff. The costs of the District Court to be paid by defendant, and those of appeal by the appellee.

Merrick, C. J.,

with whom concurred Voorhies, J. I concur in the opinion of Mr. Justice Buchanan, because I consider the former decisions overruled by the recent decisions of this court in the cases of Campbell v. Slidell, 5 An. 274, and Partee, Syndic, v. Corning & Co. 9 An. 539. Moreover, these late authorities meet the equity of this case.

Spofford, J.,

with whom concurred, Lea, J., dissenting. Upon the authority of the cases of Saul v. His Creditors, 5 N. S. 569; Devlin v. His Creditors, 2 La. 361; Canizo's Syndic v. Cuadra, 2 L. 459; and Shaw, Syndic, v. Newton, 3 L. 528, I think the judgment appealed from in this case, should be affirmed.

The pretended pledge of the bank stock was void as to other and even subsequent creditors of Conrey, and it invested Saul with no privilege upon the stock, under the Articles 3124, 3125 of the Civil Code, which were in full force at the time.

There is certainly an equity in favor of the defendant, but no stronger equity than existed in favor of the pretended pledgees in the analogous cases cited above. So well settled was the judicial construction of Article 3125, that it was found necessary to change the law by the legislative enanetment “ concerning pledges,” approved February 12th, 1852, (p. 15.) That Act would have been unnecessary, if the courts already had power to relieve creditors who had attempted to secure themselves by taken pawns, in disregard of the provisions of Article 3125.

As the Act of 1852 can have no retrospective operation, I think we are without power to relieve the defendant, notwithstanding the hardship of his case.


author: Spoppokd, J. Voobhies, J., Spofford, J. Spofford, J.

text:
    Heirs of Dupuy v. Dupont and Wife.
    A simulated sale made by a father to a daughter and her husband, which is really a donation in disguise to the daughter, is without any more effect than if made to the daughter alone.
    The rule that simulated contracts of a father when attacked by his forced heirs are only to be set aside in so far as they impair the UgiU/me of the heirs, does not seem to apply to the case of a simulated sale of land or slaves to a favorite child. Code 2419,1805-6-7-8-9-10,1826,1488.
    The action en declm'aUon de swvulaUon may be instituted by the parties to the act, and their heirs and legal representatives, as well as by third persons, with this distinction, however, that the latter are allowed to have recourse to parol evidence to contradict the authentic act, whilst the former are precluded from the exercise of this right. (Voorhies, J-., with whom concurred Buchanan, J., dissenting.)
    Heirs, except when suing to recover their legitima, stand in the same situation and enjoy the same and no other rights than those which were held by their ancestor. But when they sue for the recovery of their UgiUme, they are considered as third persons, or creditors. This difference is the result of the recognized distinction between the general rights of heirs and their rights to the UgiUme, the one being derived from the ancestor, and the other from the law. (Vooruies, J., with whom concurred Buchanan, J., dissenting.)
    The presumption of simulation established by Article 2456 of the Code is inoperative with respect to the parties to the act, and therefore to the heirs, in a case where the heirs derive their rights from the ancestor, a party to the act. (Vooruies, J., with whom concurred Buchanan, J., dissenting.)
    An 'vndirect donation is based upon a real contract, and is an advantage conferred upon the other contracting party under color of a real contract for the whole, whilst a disguised donation, whether it assumes the form of a direct sale to the party to be benefited, or of a sale to an interposed person, is wholly a simulation. The i/ud/irect donation is, therefore, a real contract, with the exception of the advantage indirectly conferred; but the dÁsgxUsed donation is a simulated contract. (Yoorhies, J., with whom concurred Buchanan, J., dissenting.)
    The indirect, or disguised donation, clothed with the form of a sale, if made to a stranger, would be good as a donation, if there were no prejudice to the UgiUme, but should the UgiUme be impaired, it would be subject to reduction. 'When such an advantage is conferred upon a co-heir, it is not only subject to reduction, but, in the cases pointed out by law, may be liable to collation. Where, however, such advantages are conferred upon incapable persons by a' disguised donation, they are absolutely null, while, by an indirect donation, they are simply reducible. (Yoorhies, J., with whom concurred Buchanan, J., dissenting.)

      The allegation in plaintiff’s petition, that the husband is an interpósed person for the benefit of his wife, does not deserve serious consideration, because the act of sale was passed to both husband and wife. (Voorhies, J., with whom concurred Buchanan, J., dissenting )
    At the date of the sale tp the death of the vendor the parties lived in the same house, from which it must be inferred that delivery accompanied the act of sale, for it is well settled, that where a vendor and vendee live in the same house, possession follows title. (Voorhies, J.j with whom concurred Buchanan, J., dissenting,)
    The relationship between the parties does not of itself constitute a badge of fraud or simulation. (Voorhies, J., with whom concurred Buchanan, J , dissenting.)
    Code 20,1376, Í747, 2417, 2454, 2455, 2456,1275,1305,1329,1834,1335.
    APPEAL from the District Court, Fourth District, Duffel, J.

      Berault, for plaintiffs. Roselius and Mlleul, for defendants and appellants.
   Spoppokd, J.

This suit appears to have been properly brought by virtue of an express provision of the Civil Code.

“The sales of immovable property or slaves, made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovables or slaves sold, at the time of the sale.” O. C. 2419.

The views we may happen to entertain of the policy of laws cannot control, or in any way affect the legal rights of parties which may be submitted to us for adjudication ; we are not permitted to distinguish between odious laws and laws entitled to favor. C. C. 20.

The District Judge, after hearing the witnesses, came to the conclusion that the sale in question contained a donation in disguise, and that no price was paid by the vendees; and he has given his reasons for judgment in a learned and elaborate opinion.

After a careful scrutiny of the evidence, a majority of this court are unable to dissent from his conclusions.

The plaintiffs are forced heirs of the deceased vendor, Antoine Dupwy, being his children by his first marriage.

The defendants, his vendees, are his daughter by a second marriage, and her husband, Dupont.

The sale was made to the defendants jointly, and produces in substance the same effect as if made to the wife alone, for in that case the property would have vested in the community if it passed at all. The petition expressly put at issue the verity of the sale; but the vendees have made no attempt to prove that a price was paid, except by showing that Dupont was an industrious man, and had money.

On the other hand, the negative is supported by strong circumstantial evidence, the only evidence of which the nature of the case seems to admit.

The sale purports to have been made about six years before the death of Dupwy. It comprised half his land and all his slaves. But no change of possession followed the deed. The defendants exercised no act of ownership until Dupuy died. For nearly six years, and up to the moment of his death, the pretended vendor, although his vendees lived in his house, continued to control the property exclusively, as owner, cultivating the soil and working the slaves, calling them his land and his slaves, and giving them in to the Parish Assessor as his own.

■On one occasion, long after the pretended sale, ho made oath before the Assessor that the land and slaves in question wore his, in the presence of Dupont, one of his vendees, and without contradiction from him.

Under these circumstances, it is difficult to suppose that the parties regarded the sale as a reality.

The only reasonable hypothesis is, that it was resorted to as a device, to take effect only after the death of the vendor, by shifting the regular course of descent in favor of his child by the last marriage.

That no price was paid, may be inferred not only from the circumstance that the parties never, during- the partnership, treated the sale as a contract having a real existence, but from the facts that Dupuy never acquired any other property after the sale, and that no money was found in his succession at his death. He continued actively engaged in planting after the sale as before, and nothing is suggested to render it probable that he spent more than he made.

Dupont had some money, it is true, but he bought slaves from other persons, paid for them, and took possession.

We find in the record no legal evidence that he paid a dollar to Dupuy, and sufficient presumptive evidence that he did not.

With the District Judge we think he should derive no benefit from his own extra-judicial statements, made after the controversy arose.

The rule that simulated contracts of a father, when attacked by his forced heirs are only to be set aside in so far as they impair the Ugitime of the heirs, does not seem to apply to the case of a simulated sale of land or slaves to a favorite child. O. 0. 2419, 1305-6-7-8-9-10, 1326, 1488.

The District Judge decreed that the sale should be set aside, and the property declared to belong to the succession of Antoine Dupuy. It would have been more formal to have declared the sale a disguised donation to the daughter, and decreed that she should collate the property in a partition to be made hereafter among the heirs of Dupuy. “The advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, where a father has sold a thing to his son at a very low price, or has paid tor him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.” 0. 0. 1326.

.As there is enough in the record to show that the decree, as rendered by the District Judge, will produce substantially the same result as a more formal judgment it need not be disturbed.

Judgment affirmed, with costs.

Voobhies, J.,

(with whom concurred Buchanan, J.,) dissenting. The plaintiffs, who are the forced heirs of Antoine Dupuy, deceased, demand the nullity of an act of sale from their ancestor to Jacques N. Dupont and his wife, Irma Dupuy, their co-heir, on the ground, as alleged in their petition, “that the said sale was simulated and merely intended to favor, contrary to law, the said Irma Dupuy, to the detriment of your petitioners, the said sale being fraudulent, as never having been accompanied by possession, or even assessed in the name of the said Dupont and wife, he, the said Dupont, being interposed for the benefit of his wife.”

By giving to the above allegations the utmost latitude of construction, it will appear that the plaintiffs base their action on the following grounds:

1st. That the act of sale, beingasimulation, is an absolute nullity, the estate of Antoine Dupuy deceased being still the real owner of the property in controversy.

2d. That the sale is a disguised, or an indirect donation to their co-heir, Irma Dupuy, through the interposition of her husband, to their detriment as co-heirs, and in violation of their rights to the legitime.

Their action has a three-fold character, being, firstly, an action “en declaration de simulationsecondly, an action to set aside a disguised, or indirect donation in violation of their legitime; and thirdly, an action to set aside a sale, containing an advantage or extra portion in favor of Irma Dupuy.

I. The action en declaration de simulation may be instituted by the parties to the act, and their heirs and legal representatives, as well ashy third persons, with this distinction, however, that the latter are allowed to have recourse to parol evidence to contradict the authentic act, whilst the former are precluded from the exercise of this right. Heirs, except when suing to recover their legitime, stand in the same situation, and enjoy the same and no other rights than those which are hold by their ancestor. But when they sue for the recovery of their legitime, they are considered as third persons or creditors. This difference is the result of the recognized distinction in our jurisprudence between the general rights of heirs and their rights to the legitime, the one being derived from the ancestor and the other from the law. In the case of Rachel v. Rachel, 4th Ann., 501, the courf said r “The action of forced heirs, in which the sale from a parent to his children is attacked as a disguised donation, is not derived from the ancestor, but from the law. So far as their legitime is concerned, they are not heirs but creditors.” Hence, in the action “en declaration de simulation,” independently of their rights to the legitime, the rights of heirs must be regulated by the rules which would have applied to a similar action on the part of the ancestor. The act of sale from Antoine Dupuy, deceased, to the defendants stands unimpeached by any counter-letter, and the plaintiffs have not thought proper to probe the conscience of the defendants; but they urge that the sale, never having been accompanied by possession or delivery, is presumed by law to be simulated. C. 0. 2456. The presumption of simulation established by this Article of the Code, is inoperative with respect to the parties to the act, for the Article provides: “In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and, with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” Inasmuch, therefore, as the plaintiffs claim as heirs from their ancestors in this branch of the case, so far they cannot be viewed as third persons, and benefit by this presumption of law so as to throw the burden of proof on the vendees. The balance of the evidence being parol is unavailable to the plaintiffs to establish the alleged simulation, in so far as their legal rights as forced heirs are not concerned.

II. The second ground of nullity is, that the sale covers a disguised or indirect donation to Irma Dupuy, through the interposition of her husband, to the detriment of the plaintiff’s legitime. It is important not to lose sight of the distinction which exists between a disguised donation and an indirect donation. The latter is one which is based upon a real contract, and is an advantage conferred upon the other contracting party, under color of a real contract for the whole; whilst a disguised donation, whether it assumes the form of a direct sale to the party to be benefited, or of a sale to an interposed person, is wholly a simulation. The indirect donation is, therefore, a real contract, with the ex-cepfcion of the advantage indirectly conferred; but the disguised donation is a simulated contract. 6 An. 673. Let us consider what would be the effect of an indirect or disguised donation to a stranger. Should such an advantage he extended to any person but a co-heir, without prejudice to the légitime, the act, though clothed with the form of a sale, would, however, be valid as a donation. But should the légitime be impaired by such a disposition of his property by the ancestor, then the donation, whether disguised or indirect, would be subject to reduction. Whenever such an advantage is conferred upon a co-heir, besides the right of reduction, the other co-heirs are entitled, in the cases pointed out by law, to demand its collation, hut this will be considered in its place. There being no law prohibiting a parent from donating property to one of his children, or even a stranger, apart from the légitime, it follows that a disguised, or indirect donation in such cases cannot be considered as void, but merely reducible according to circumstances. However, in cases where such advantages are made to incapable persons, another distinction prevails: the disguised donation is affected with absolute nullity, and the indirect donation is simply reducible. In the case of Thibodaux, 6 An. 673, the court observed that Art. 1747 of the Civil Code contains two separate dispositions: one by which the spouses are incapacitated from giving to each other more than the law permits, in which case the excessive donation is reducible: and the other declaring null and void all donations disguised or made to persons interposed. This distinction of reducible donations between husband and wife, and donations which are null and void on the ground of interposition or disguise, came to us from the Roman law. See Digest, book 24, title 1, law 5, paragraph 6; Pothier, Donations entre Mari et Femme, No. 78.

It was recognized by the late Supreme Court in the case of Casanova’s heirs v. Acosta et al., 1 L. R. 185. It was also recognized by the French Commentators under a similar disposition of the Code of France. 5 Toullier, Nos. 76, 83, 901, 902.

The allegation in the plaintiff’s petition that Dupont is an interposed person for the benefit of his wife, does not deserve serious consideration, because the act of sale was passed to both the husband and wife. On the hypothesis that the sale is a disguised donation to the prejudice of the plaintiffs’ légitime, it appears to mo that the proper remedy would be for them to sue for a reduction, instead of the nullity of the sale, in the absence of any legal objection to the vendor’s right to make a donation to the defendants. But has it been shown that the act of sale was a simulation, covering a disguised or indirect donation to the defendants in violation of the plaintiffs’ rights as forced heirs ?

On the 9th December, 1844, Antoine Dupuy conveyed to the defendants, by authentic act, a small tract of land of three-fourths of an arpent in front by forty in depth, with the double concession, described to be bounded above by the land which he then owned and occupied, and also a negro woman and her five children, for the price of $2000 cash. There were no improvements on this land, on which Dupont has, since the death of Dupuy, constructed fences and a levee. The vendor died in 1850. Thus the land in dispute and the lands owned and occupied by Antoine Dupuy, originally formed but one tract, which was assessed in the name of the latter, and, it appears, continued to be so assessed until the year 1851, and in 1845 it was assessed at $1500. The slaves were also assessed in the name of Antoine Dupuy. From 1845 to 1850 there was only one slave, and in 1850 three slaves, assessed in the name of Dupont,. and in 1851 the land and eleven slaves were assessed in his name, the land at $2000 and the slaves at $6500. One of the plaintiffs’ witnesses testifies that Antoine Dupuy, in 1846, gave in, under oath, the land and slaves in question to be assessed as his property, in the presence and within the hearing of Dupont. Another witness testifies that Antoine Dupuy, in speaking of the property, always said my land, my negroes, and whenever Dupont loaned anything from the plantation it made the old man angry, and Dupont knew it. Here it is proper to notice that none of the implements of husbandry, or things attached to the land on which the parties resided, constituted any part of the property conveyed to the defendants. One of the witnesses testifies that the land in question was worth from $2000 to $2500; another witness, that it was worth $3000, and both concur in their testimony that the slaves were worth $1500. It is admitted that the land on which Antoine, Dupuy resided constituted the only property which he owned at the time of his death.

On the other hand, it is shown that Dupont was an industrious mechanic, and remarkably economical. In October, 1843, it appears he had in deposit upwards of $2000, wages which he had earned. He was married about this time, and lived with his wife in the same house with his father-in-law, until the period of the latter’s death. One of the plaintiffs’ witnesses also testifies that Dupont, in conversation with him, expressed the pain he felt on account of the bad terms on which he was with the heirs of Antoine Dupuy in relation to his purchase of the property in dispute, on account of which, Dupont said, he had only paid $1400, leaving a balance of $600 still due by him; and that if the heirs would reimburse him the amount he had thus paid, as he thought an injustice had been done to them, he would be willing to annul the sale.

This constitutes the substance of the evidence on which the plaintiffs rest their claim for redress against an act which they allege to be in fraud of their rights as forced heirs. In this respect they have been allowed the benefit of resorting to parol evidence for the purpose of impugning a solemn act of sale from their father. In this they have not succeeded. However-, before dismissing this subject, it is proper to notice more specially the evidence in relation to the question of simulation. At the date of the act of sale, and up to the time of the death of Antoine Dupuy, the parties lived together in the same house. Erom this it must be inferred that the tradition or delivery of the property accompanied the act of sale, (C. C., Art. 2454, 2455,) for it is well settled that where the vendor and vendee live in the same house, possession follows title. 3 N. S. 337; 19 L. R. 349; 1 R. R. 41; 11 ibid, 533. The fact of the relationship between the parties does not of itself constitute a badge of fraud or simulation, (9 M. R. 649; 1 N. S. 835; 19 L. R. 600; 6 N. S, 643,) nor does the fact that the property continued to be assessed in the vendor’s name, and the other circumstances of the case, afford sufficient ground to establish the alleged 'simulation.

III. The third objection which the plaintiffs raise to the validity of the act of sale is, that it contains an advantage or extra-portion in favor of Irma Dupuy, or, in other words, such a donation as she is bound in law to collate. It is hardly necessary to state that collation is due only by heirs to their coheirs, and not by strangers. The sale, so far as Dupont, the husband, is concerned, could not in any event be subject to the provisions of the Code regulating the mode of making collation; and, as regards the vendee, Irma Dupuy, who is the plaintiffs’ co-heir, the form of the present action is radically defective. Collation is an incident of the action of partition, and the party who is subject to this demand has certain rights to exercise in complying with it, such as to make the collation in kind or by taking less, etc. See C. C., Art. 1275, 1306, 1329, 1334, 1335.

I am, therefore, of opinion that the judgment of the District Court, ought to be reversed, and rendered in favor of the defendants, reserving, however, the plaintiffs’s right to any claim for collation which they may have against the said Irma Dupuy.

A rehearing was applied for, when the following order was made:

Spofford, J.

Ordered that a rehearing be granted only as to the propriety of amending the decree so as to order the collation of the property in controversy, a majority of the court being of opinion that the rehearing should be restricted to that question.

Upon a rehearing:

Spofford, J.

It is ordered that the decree heretofore rendered in this cause remain undisturbed.