author: Buchanan, J. Oole, J., Meebick, O. J.,

text:
    Henry W. Cater, for use of the Central Bank of Alabama, v. H. B. Merrell & Co.
    In the contract of pledge, the mention of the amount of tho debt intended to bo seenvod, roquivotl by Article 3125 of tho Civil Code, is in no sonso a formality. It is essential to tho contract, and as such not abolished by section 2d of the Act of 1855 relative to pledges.
    from the Fourth District Court of New Orleans, Price, J.

      Semmes <& Labatt, for plaintiff and appellant. Singleton & Clack, for defendants.
   Buchanan, J.

We are of opinion that the answer of the garnishee and ap-pellee, Eagar, to the two sets of interrogatories propounded to him by plaintiff, and the documents annexed to those answers, give the date of the advance by Eager to defendants, and of the instrument of pledge subscribed by defendants for the security of that advance, with sufficient precision.

But the objection, made to the validity of the pledge appears well founded. The instrument of pledge does not state the amount of the debt which it was given to secure. It reads as follows : ’ .

For value received, I hereby pledge to J. Eager, Esq., all right, title, and in-tercst that I have, in six hundred and twenty-nine bales of g'unny bags, to be disposed of by him at any time he may think proper.”

The Civil Code, Art. 3126, provides that the privilege of the pledgee of movable effects, “ shall take place against third persons only in case the power is proved by act made either in a public form, or under private signature ; provided that in this last case, it be duly registered in the office of a notary public, at a time not suspicious; provided also, that whatever may be the form of the act, it mentions the amount of the debt as well as the species and nature of the thing given in pledge, or has a statement annexed thereto of its number, weight and measure.”

The Act of 1815, page 348, relative to pledges, section 2d, has modified, in some respects, the law as laid down in this Article of the Code quoted. The section reads as follows :

“ All pledges of movable property may be made by private writing, accompanied by actual delivery; and the delivery of property in a warehouse, shall pass by a private assignment of the warehouse receipt, so as to authorize the owner to pledge such property; and such pledge, so made, without further formalities, shall be valid as well against third persons as against the pledgees thereof, if made in good faith.”

By comparing this law with the 3125th Article of the Code, it is obvious that the clause without further formalities,” means the registry of private acts of pledge in the office of a notary public, required by the Code. But the mention of the amount of the debt intended to be secure, like that of the specific property pledged for the security of the debt, is in no sense a formality. It is essential to the contract of pledge — so essential, that without such mention, the contract would be unintelligible.

For what is a pledge? It is an auxiliary contract for the enforcement of any lawful obligation. C. C. 3100, 3103. It results from this definition, that there should be no uncertainty or ambiguity as to the nature and extent of the principal obligation, which it is the object of the pledge to aid and enforce.

Otherwise, it is impossible to ascertain the nature and extent of the rights and obligations of the pledgor and pledgee, reciprocally, from the instrument itself. Recourse would necessarily be had to parol proof, to explain the intention of the parties. And thus the object of the law which requires this contract to be reduced to writing, would be defeated, and the door opened to the perpetration of frauds upon the parties contracting, and upon their creditors.

The garnishee cannot, therefore, retain possession of the proceeds of the gunny bags of defendant, under his so called pledge; and the rule which calls upon him to pay over said proceeds to the Sheriff, must be made absolute.

On the trial of this rule, the garnishee offered proof that he was a commission merchant or factor. The District Court properly refused such evidence. It seems to have been offered for the purpose of establishing a different privilege upon the gunny bags, from that of the pledge, which was the only privilege asserted in the answer to interrogatories. But the appellee should have laid the foundation of such proof by a third opposition, which he has not done, but which he is, probably, still in time to do.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the rule be made absolute; that the appellee, Jennison Eager, pay into the hands of the Sheriff, within three days, the sum of sixteen thousand seven hundred and seven dollars and eighty-four cents, proceeds of gunny bags of defendant in liis hands, in part satisfaction of the execution levied in this ease without prejudice of said Eager’s right to claim the said proceeds, by way of third opposition, under the privilege accorded by law to consignees, commission agents or factors; and that the appellee pay the costs of this appeal.

Oole, J.,

concurring. Articles 3121 and 3122 of the Civil Code, are explanatory of what species of property may be pledged. They declare that: “ One may pawn every corporeal thing, which is susceptible of alienation. One may even pawn money, as security for performing or refraining to perform an act. One may, in fine, pawn incorporeal movables, such as debts and other claims of that nature.”

Articles 3123, 3125, 3121, 3128 and 3129 of the Civil Code, explain the formalities necessary for the execution of pledges.

Articles 3121 and 3122, defining the kind of property that may be pledged, are not affected or changed by the Acts of 1852 and 1855.

These Acts are identical, except that in the Act of 1855, there is a section repealing all laws contrary to its provisions, and all laws upon the same subject-matter, except what is contained in the Civil Code and Code of Practice. These Acts do not relate to the nature of property that may be pledged, but only to the formalities to be pursued, and, therefore, affect the several Articles of the Code already quoted, relative to the forms necessary for the creation of pawns.

These Acts make three distinctions as to the kind of formalities necessary for the perfection of the pledge.

The first section refers to the pawning of promissory notes, bills of exchange, stocks, obligations or claims upon other persons, and the only formality required as to them is, that the debtor shall deliver to the creditor the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights so pawned.

The second section refers to movable property, exclusive of the species mentioned in the first section, and provides that pledges of movable property are to be made by private writing, accompanied by actual delivery. It explains only as to one class of movables the manner of delivery, declaring the delivery of property or deposit in a warehouse, shall pass by the private assignment of the warehouse receipt.

This section only requires a private writing or act under private signature, according to the French text, and the delivery for the perfection of the formalities of a pawn.

The third section relates to credits not negotiable ; it only requires for the perfection of the formalities of the pledge of this kind of property, that notice of its being pledged must be given to the debtor.

The property averred to be pledged in this case is gunny bags. The second section of these Acts then is applicable to their pledge.

This section requires that the pledge bo made by private writing.

In order to determine what is necessary to put into the private act, we must refer to the Articles of the Civil Code, defining a pledge, for the Articles already quoted and the Statutes of 1852 and 1855, do not explain the nature of pledge, but merely state the property that may be pledged, and the necessary formalities.

Articles 3100, 3102 and 3103 declare, that the pledge is a contract by which one debtor gives something to his creditor as a security for his debt, that a thing is said to be pawned, when a movable thing is given as security, and that every lawful obligation may be enforced by the auxiliary obligation of pledge.

. The moaning’ then of the declaration in the second section of these Acts, that a pledge may he made by private writing is, that the parties may make a written contract in which it shall be specified that the debtor gives a certain thing which must be mentioned to his creditor, as a security for a debt which must also be specified.

The object of the law in requiring it to be in writing, is that the whole contract should bo manifested.

If this were not the object, then there would have been no necessity of declaring that the contract of pledge should be in writing.

Besides, if it be not necessary to mention the debt which was to bo secured by the pledge, then, by parity of reasoning, there would be no use to insert in the private act, the nature and amount of the property pledged.

The word pledge is used in the Statutes of 1852 and 1855, in the sense of the definition of Article 3100 of the Civil Code, which defines the contract of pledge, and as the second section of these Acts require the contract to be in writing, the private act between parties must contain what is declared to be essential by this Article, to constitute a pledge, that is a declaration of the thing given in pledge, and of the particular debt for which the thing is pledged.

In the present case, there is no particular debt specified in the act of pledge. It merely says, “ for value received I hereby pledge,” &c. The words “ value received,” do not explain the particular debt for which the gunny bags were pledged, and, therefore, this act of pledge does not create a pawn within the definition of Article 3100 of the Civil Code.

I, therefore, concur in the decree.

Meebick, O. J.,

dissenting. I cannot think that the mention of the amount of the debt in the act, is of the essence of the contract of pledge. It appears to me to be nothing more than a formality.

Under the general provisions of the Code in regard to contracts, it is not necessary to specify the consideration or cause of an agreement. In the language of the Code, “ an agreement is not the less valid, though the cause be not expressed.” O. C. 1888,1894.

This being the general law, any provision in regard to certain special contracts, which required the consideration to be specified or expressed in them, prescribed nothing more nor less than an additional formality or form. Such was the special law of the Code, requiring the amount of the debt to be expressed in the contracts of pledge and mortgage, which they secured.

The formalities required by the Code for the act of pledge, had come to be considered a burden and impediment to commercial transactions, when the Statute of 1852 was passed.

The Article 3125 required the pledge to be executed in notarial form, or by act under private signature, registered with a notary, in order to protect the pledgee against third persons, and whatever the form of the act, these further formalities, viz, that it should mention the amount of the debt, the species and nature of the thing given in pledge, or have annexed thereto a statement of its number, weight and measure.

And the preceding formalities were required in pledges of obligations, negotiable or not negotiable, as well as of movables.

In addition, if an obligation not negotiable were pledged, the Code required that a copy of the act at large should be duly served on the debtor of the credit pledged. If the obligation were negotiable, the law required it to be endorsed by the party pledging’ it. Commercial men are proverbially careless of forms, and these provisions of the Code became a snare to business men and were a fruitful source of litigation. Hence the Act of 1852, reenacted in 1855, ought to be construed so as to advance the remedy.

It provided for two classes of objects susceptible of being pledged, viz, movables and incorporeal rights.

The latter were the subject of the first section, which discards every formality presented by the Code, except delivery. It declares : That when a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations, or claims upon other persons, he shall deliver to the creditors, the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights so pawned; and such pawn so made without further formalities, shall be valid as well against third parties as against the pledgors thereof, if made in good faith.”

Here then no private act is recorded, or notarial act required — no description of the property pledged ; no statement of the amount of the debt, and no in-dorsement of the negotiable paper, and no notice except a simple notice in the case of paper not negotiable.

Now, if it were important that the amount of the debt secured by the pledge, should be specified in writing, the lawgiver would certainly have prescribed the formality in this class of pledges which are the most easily concealed from other creditors and third parties, and are the most common mode of securing loans of money.

It cannot be denied, that this section has repealed the formalities of Article 3125 of the Code, as it respects all the objects of pledge mentioned in the first section of the Acts of 1852 and 1855.

If so, can any good reason be given why the same Article is not also repealed by the second section of the Act as to movables ? Is not the reason of the law the same ? Its language is just as forcible. It is as follows :

“ Be it enacted, &c., That all pledges of movable property may be made by private writing, accompanied by actual delivery; and the delivery of property on deposit in a warehouse, shall pass by the private assignment of the warehouse receipt, so as to authorize the owner to pledge such property; and such pledge so made without further formalities, shall be valid as well against third persons as the pledgor thereof, if made in good faith.”

Here again the Act makes no mention of the recording of the private act of pledge; no mention of a particular and detailed description of the property pledged, or amount of the debt to be secured, but it expressly declares, that all pledges of movable property may be made by private writing, accompanied by delivery, and the same shall be valid without further formality.

It has been suggested, that if the amount of the debt is not specified in the private writing, it may give rise to great frauds. But this could not have been the motive of the lawgiver in requiring a private writing. Had it been, he would have required a private writing, specifying the debt in cases of pledges of bills of exchange, promissory notes, obligations and stocks, the most frequent objects of pledges. Moreover, he would have required the private act to be recorded, to prevent its subsequent change or modification, and to give third persons a clew to its contents, instead of trusting it entirely to the secret keeping of the pledgee.

But it is supposed, that it cannot be a private writing in the sense of the Act, unless it specifies the amount of the debt to secure which it is given. The description of the debt is but an expression of the cause of the contract. The old law expressly made such statement in the act of pledge, an essential formality. The new law appears to me to repeal the formality, and place the contract of pledge on the footing of ordinary contracts in this particular.

I do not think it essential now to describe with absolute precision, tho debt or things pledged. It may bo done in general terms, or oven omitted as to the debt, the cause of the contract. In my opinion, a private writing in these words, “ I hereby pledge to A B, all the gunny bags I have this day delivered him, to secure to him the amount I owe him by promissory notes,” would be valid under the Act. So too I think the private writing in question sufficient. The Civil Code has (as already observed) declared that an agreement is not the less valid, though tho cause be not expressed. O. 0.1888. When, therefore, Merrell declares that he pledges to Eager the 629 bales of gunny bags, for value received, the Civil Code permits the latter to offer testimonial proof of the cause of the pledge, proof explanatory of the value received,” viz, the nature and amount of the debt secured. C. C. 1894; 3 An. 235 and 281.

But suppose it be held that the formality required by Article 3125 of the Code, to mention the amount of the debt duo, has not been repealed by the Act of 1852. Will an erroneous description of the debt vitiate the Act ? If the creditor mistakes the amount of his debt, is he, as in case of the registry of the mortgage, to lose the surplus ?

Under the old law, there was some reason why the amount of the debt should be specified in act of pledge. It was because, by the registry of the private act, and by the notarial act itself, publicity was given to the act of pledge, and third parties, by diligence, were enabled to know the terms thereof. This reason has ceased, by permitting verbal pledges of obligations, and the delivery of the private writing to the custody of the pledgee or the parties, in case of other movables.

In this instance, the amount of the debt and the contents of the private writing are disclosed by the answers of. the garnishee to the interrogatories propounded by the plaintiff. I can see no good reason why the garnishee should be deprived of his pledge.

It will also be observed, that the act of pledge in this instance, (under the fourth section of the Act,) authorizes Eager to dispose of the gunny bags without the intervention of justice. This fourth section of the Act also corroborates the views I have taken, inasmuch as it permits the parties to agree to the sale or other disposition of the thing sold by the pledgee, without tho formalities of a suit or any intervention of justice. This liberal provision oí law is certainly in contrast with the formalities required by the Code, and gives us a further insight into the intention and scope of the Act.

The Act of 1852 was, at the time of its passage, looked upon as removing the vexatious restrictions imposed by the Code, upon this mode of raising money and securing debts, and, as such, was received with great satisfaction by the commercial community, and I am unwilling, by any construction of the Act, to revive any of the formalities prescribed by tho Code, and (as I think) repealed by the sweeping provisions of the Acts of 1852 and 1855.

I think the judgment ought to be affirmed.


source: Caselaw Access Project

author: Merrick, O. J. Buchanan, J.

license: Public Domain

text:
    Helene Barbet v. Alexander Roth.
    Article 1481 0. 0., wlitcli declares that “ donations inter vivos or mortis causa, cannot exceed two-tliirds of the property, if tho disposer, having no children, leave a fathor or mother, or both,” would clearly govern in cases where the ascendant, whether fathor or mother, ivas tho solo heir at law to the inheritance.
    Articles 899 and 900 which make tho disposable portion three-fourths, apply to cases whore tho testator leaves other heirs who would be entitled to a share in tho inheritance, in tho absence of a will.
    from the Sixth District Court of the Parish of Iberville, Beale, J.

      S. Matthews, for plaintiff. Z. Labauve, for defendant and appellant.
   Merrick, O. J.

The defendant married the daughter of the plaintiff in 1832. The marriage was dissolved by the death of defendant’s wife in 1858. Prior to her death she executed a will, wherein she made her husband her universal legatee. The testatrix left no decendants, nor brothers or sisters, and her only surviving ascendant is the plaintiff, who has instituted the present suit, to reduce the legacy to the defendant to the disposable portion. Tho District Court reduced the disposable portion to two-thirds of tho estate, and defendant appeals.

The case involves a construction of Article 1841 C. C. which declares, that " donations inter vivos or mortis causa cannot exceed two-thirds of the property, if the disposer, having no children, leave a father or mother, or both.”

But Articles 899 and 900 of the Code, give to the surviving parent one-fourth of the estate, and Article 1482, says that the heirs named in the two preceding Articles, are called forced heirs, because the donor cannot deprive them of tho portion allowed them by law, except in cases where he has just cause to disinherit them.

Under the last Article, in the case of Cole’s Heirs v. Cole’s Executors, 7 N. S. 414, it was held, that in the case where a father or mother only survived, the disposable portion was three-fourths. Plaintiff’s counsel question the correctness of the decision, as it appears to annihilate Article 1481 of the Civil Code. But that case must be examined in reference to the facts on which it was decided. The testator left a mother and a brother, or brothers and sisters. Ilis will was in favor of a brother. Now, if he had died intestate, his mother could not have inherited more than one-fourth of the estate. It was, therefore, probably deemed by that court unreasonable to construe the Article in question, so as to give tho mother more than one-fourth, simply because the testator had expressed his desire that she should not receive anything, and that his brother should receive the whole estate. But in the case before us, the mother is herself the heir-at-law to the whole inheritance.

The will deprives her of an estate which is given to her by tho law. The Article in question presents no difficulty as applied to the present case, and we think it ought to be carried into effect. The law says, that where the testator having-no children, leaves a father or mother, or both, tho disposible portion shall not exceed two-thirds of the property.

The ease provided for has occurred, the mother coming to the estate as sole heir and not in concurrence with brothers or sisters.

Judgment affirmed.

Buchanan, J.

I concur in the decree in this case; but would prefer not to -|3e understood as recognizing, even by implication, the correctness of the doctrine of tlie case of Cole’s Heirs v. Cole's Executors, in 7 N. S., upon the subject of the legitime of deeondants in a testamentary succession. My impression is, that the doctrine there enunciated by Judge Porter, as the organ of the court, is contrary to Article 1481 of the Code. The language of the learned Judge expresses but little confidence in the correctness of his conclusion. He says : “ "We cannot untie the knot; we must cut it.”

Now, it seems to me, that there is a very simple and obvious way of reconciling- Articles 899 and 900, with Article 1481 of the Code, tVhicli is, to consider the first as a statute of distributions for intestate successions ; the second, a statute of distributions in successions testamentary. One is an allotment made of a man’s estate, when he has not chosen to make any allotment of it himself. The other, a restriction upon the disposing power of a man over his own property, by testament.

The doctrine of Cole v. Cole, if adhered to, would expunge the Article 1481 from the Code. That doctrine is substantially as follows : The Article 1481 is unreeoncilable with Articles 899 and 900; therefore, it must yield to those Articles ; and, consequently, the legitime of a father or mother of a decedent who leaves a brother or brothers, is, in no case, more than one-fourth of the succession. Now, besides the fundamental error in the premises, which I think I have demonstrated above, to wit, the want of incompatibility of the Articles, the conclusion is erroneous, even if the premises were correct; for it is a rule of interpretation sanctioned on various occasions, that when two Articles of tho Code cannot be reconciled, the last in order and highest in number, prevails over the other. Johnson v. Pilster, 4 Rob. 71.


author: Land, J.

text:
    Alfred Vienne v. M. Harris, Jr., et al.
    "Where a slave has "been purchased with warranty, and is afterwards sequestered while in the possession of a lessee, against whom suit is brought for his recovery, and immediate notice is given by the lessee to the vendee, who likewise gives immediate notice to the vendor, of tho institution of said suit, with a request that he defend it, or furnish the vendee tho necessary means for maintaining his title to the slave, and tho vendor promises to defend the action himself, which lie fails to do, and tho suit goes by default against the lessee, if neither the vendee nor tho vendor is a party to the suit, it is the fault of the latter, and as against his vendee ho cannot protect himself by claiming, “that an eviction of property can only be on final judgment, where tho vendor or vendee is a party to the suit, and where the title to the property is directly drawn in question.”
    In order to establish that a commercial partnership is not bound by the act of one of tho partners, in auy particular matter, it is necessary expressly to deny his authority, and to disclose by evidence, the nature of their commercial business.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    xx W. D. Hennen, for plaintiff. J. T. Ellison, and Race S Foster, for defendant and appellant.
   Land, J.

On the 5th of January, 1857, tho plaintiff purchased from M. Harris, Jr., a negro man, for the price of one thousand dollars in cash.

In this act of sale, Micajah Harris, Sr., intervened in his capacity as member of the commercial firm of Harris & Levi, and declared that ho obligated his said firm to guarantee the title to the slave sold, and promised and bound said firm to reimburse unto the purchaser any and all loss that he might sustain in consequence of a defect in title, character, or by eviction, or otherwise.

The plaintiff hived the slave to C. Johnson, master of the steamboat Lccompte, running in the Red River and Texas trade, and the slave was sequestered on the 16th of March, 1857, in the county of Oass, in the State of Texas, at the suit of J. Spealce, administrator of the estate of C. M. Hunt, on the ground of ownership and possession by the deceased at the time of her death in June, 1855.

On the return of the boat to this city, Johnson gave notice to the plaintiff, of the institution of the suit in Texas, and of his dispossession of the slave by virtue of the sequestration.

The plaintiff thereupon immediately gave notice to the defendant, his vendor, of the institution of the suit, the seizure of the slave, and the danger of eviction, and called upon the defendant to defend the suit, or to furnish him with the necessary means of maintaining his title to the slave.

In reply, the defendant promised to go into Texas, bond the slave, and restore him to plaintiff.

The administrator obtained a judgment for the recovery of the slave, and this suit is brought against the defendants upon their obligations of warranty for the recovery of the price paid, and hire at the rate of thirty dollars per month from the 16th of March 1857, and the further sum of one hundred and fifty dollars.

The defendants are Micajah Harris, Jr., Micajah Harris, Sr., and the commercial firm of Harris <& Levi, who filed separate answers. Micajah Harris, Jr., admitted in his answer, the sale of the slave, and his sequestration in the State of Texas as alleged, and averred that he had employed an attorney at law to defend the action. This answer was adopted, and made a part of the separate answers of Micajah Harris, Sr., áñd of the commercial firm of Harris <& Levi. The latter however, deny all liability on their part as a commercial firm, allege that they are engaged in business as cotton factors and commission merchants, and that the guarantee of the title of the slave was not in the scope of their partnership business.

On the trial of the cause, the defendants counsel requested the court to charge the jury as follows :

First.'That an eviction of property can only be on final judgment, where the vendor or vendee is a party to the suit, and whore the title to the property is directly drawn in question.

Second. That if the jury believe from the evidence, that an action of sequestration was brought on the 16th day of March, 1857, against Johnson, in possession of the slave Joe. Harris, the vendor, and Vienne, the vendee of said slave, being neither of them parties to said action, and that Johnson made default and suffered judgment, dispossessing him of said slave on the 9th day of October, 1857, the jury must find for the defendant.

The charge thus asked was refused, and the defendants took their bill of exceptions, and insist in this court, that the Judge below erred in refusing the charge.

From the transcript of the suit in Texas offered in evidence, it appears that the action for the recovery of the slave was not defended, and that the cause was tried on default by a jury, and that in pursuance of the verdict, a judgment was rendered in favor of the administrator. Nor does it appear from the transcript, that either the plaintiff or defendant ever made themselves parties to the suit.

It was in reference to this state of facts, that defendants counsel asked the charge to the jury. We think that the charge was properly refused, under the peculiar fads of the case.

Johnson, the lessee of the slave, was sued for his recovery — ho gave immediate notice to his lessor — who likewise gave immediate notice to his vendor, the defendant, who promised to defend the action, hut failed to do so.

' And, if neither the vendor nor vendee of the slave was a party to the suit, it was the fault of the former, and he cannot he permitted, as against his vendee, whose title and possession he was bound to defend — to talce advantage of his own neglect or laches. The plaintiff has been evicted by a final judgment of a court of competent jurisdiction, after notice to, and refusal, on the part of his vendor to defend the action, and his right to sue on the obligations of warranty is perfect.

The commercial firm of Harris <& Levi, do not, in their answer, expressly deny the authority of M. Harris, Sr., to bind the firm in the matter of the guarantee of the title of the slave; nor does the record disclose the nature of their commer~ dal business, beyond their own averment.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


author: Buchanan, J.

text:
    Benjamin E. Edwards v. Succession of E. M. Daley et al.
    The decision in the case of Gray v. Traflon, 12 M. 702, reaffirmed — to the ciToct that an order given on an attorney at law for the amount of a claim placed in his hands for collection, is sufficient evidence of a transfer.
    Where an administrator contests the consideration of such an order, the burden of proof is certainly upon him to establish want of consideration.
    from the Second District Court of New Orleans, Morgan, J.

      B. E. Edwards, in pro. per. and Carleton Hunt, for plaintiffs. Durant c6 Hornor, for defendants and appellants.
   Buchanan, J.

The deceased, E. M. Daley, gave an order on plaintiff, an attorney at law, to pay over to Elias M. Green, the amount -of a claim against one Giddings, which Daley had placed in plaintff’s hands for collection.

The question to be decided in this case is, whether this order is evidence of a transfer to Green. This question must be solved in the affirmative, on the authority of Gray v. Trafton, 12th Martin, 702.

In that ease, it was so held in opposition to an attaching creditor of the party who had given the order, — a stronger ease than the present, where nobody, except the administrator of Daley, contests the right of the party in whose favor Daley made the order.

The administrator contests the consideration of the order. His right to do so is not very clear; but if admissible, the burden of proof is certainly upon Mm, to establish want of consideration. 5 Rob. 276.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    State of Louisiana v. Slave Jack.
    Under the 11th section of the Act of 1806, which embraces every species of criminal homicide known at common law, and the subsequent legislation on the subject, a slave may be found guilty of manslaughter.
    The Act of 1857 notices only the crime of willful murder committed by a slave, but is silent as to any other species of homicide. It cannot, however, be supposed, that it was intended to do away with the prosecution of criminal homicides short of willful murder.
    The 35th section of the Act of 1S57 provides, “That in all cases where a slave is charged with a crime punishable with death, or imprisonment at hard labor for life, the jury shall have a discretionary power to commute the penalty and inflict a lesser punishment.
    Section 29th, Act of 1857, declares that, “ Whenever the punishment is left by law to the discretion of the court, it shall in no case extend to the privation of life or limb.
    APPEAL from the First District Court of New Orleans, Hunt, J.
    XX E. W. Mo'ise, Attorney General, for the State, appellant. Race & Foster for appellee.
   Voorhies, J.

The prisoner, prosecuted for the murder of the slave Joe, was found guilty of manslaughter by the jury, who thereupon decreed his punishment by five years imprisonment with hard labor, and the infliction of the whip at stated periods during the incarceration.

The verdict of the jury was set aside, and judgment arrested by the District Judge, on the ground, that a slave cannot, under our laws, be found guilty of the crime of manslaughter, and because the commutation' of punishment in the case at bar, apart from the cruelty of the substituted penalty, is unwarranted in law.

The Attorney General appealed.

By the Act of 1806, all homicides committed by slaves, except such as are the result of accident, or take place in the defence of their masters or employers, are punished capitally. Tide Act 1806, p. 202, sec. 31. This section stands unre-pealed up to the present time ; for the subsequent statutes passed by the Legislature for the purpose of punishing the willful murders committed by slaves, were but the re-enactment, to that extent, of the 11th section of the Act of 1806, which embraced every species of criminal homicide known at common law. As the law stood prior to the Act of 1857, a slave might be found guilty of the crime of manslaughter ; and we have abundant authority to that effect. 11 An. 736, State v. Adeline; 3 An. 398, State v. Lewis; 6 An. 595, State v. Jackson; 10 An. 461, State v. Dick.

The Act of 1857 notices only the crime of willful murder, committed by a slave, but is silent as to any other species of homicide ; it cannot, therefore, be seriously contended, that its repealing clause has done away with all prosecutions for criminal homicide short of willful murder, as were provided for by anterior legislation-A different construction would, besides, lead to the absurdity, that the slave, unlike the freeman, is at liberty to perpetrate any homicide, except willful murder : a state of things which, it will be admitted at once, never was contemplated by the Legislature.

The verdict found by the jury against the prisoner, Jack, was manslaughter, a species of criminal homicide punishable capitally, when committed by a slave. The action of the jury, so far, was in accordance with the statute ; but, had they the right to substitute for the death penalty, the punishment by incarceration in the State Prison, coupled with the lash ?

The 35th section of the Act of 1857, (p. 233,) provides, “ That in all cases where a slave is charged with a crime punishable with death, or imprisonment at hard labor for life, the jury shall have a discretionary power to commute the penalty, and inflict a lesser punishment.”

The statute leaves it to the sound discretion of the jury to substitute the lessor for the greater penalty: that is the meaning of the commutation of punishment there provided for. And as regards the limits imposed by law in the exercise of the discretionary power of punishment, vested in the special tribunal for the trial of slaves, the 29th section of the Act of 1857, p. 232, is explicit: — •“ "Whenever the punishment is left by law to the discretion of the court, it shall in no case extend to the privation of life or limb.”

By the former laws, now repealed, as being upon the same subject matter, the rule was : “ That in all cases where capital punishment, or imprisonment at hard labor for life, is inflicted for any crime committed by a slave, the jury trying the same shall, in its discretion, pronounce sentence of death, imprisonment at hard labor for life, or for a shorter term in prison, or in irons in the service of his master, or order that corporeal punishment be inflicted.” Act 1843, sec. 7. As the matter now stands, the jury may apply any lesser punishment, provided it “ does not extend to the privation of life or limb.” Had the discretion of the jury, in the case at bar, been subject to be regulated by the provisions of the Act of 1843 , we would have had to consider the question raised by the prisoner’s counsel, as to whether both corporeal punishment and imprisonment at hard labor could be inflicted. But as the law now stands, this question cannot arise, and we think, that the infliction of both, as stated in the verdict of the jury, was a lesser punishment in comparison with the death penalty, and that the District Judge should have passed sentence accordingly.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that this case be remanded ; that the verdict of the jury be reinstated, and that the District Judge pass sentence in accordance with said verdict.

Merrick, 0. J., took no part in this case.


text:
    Estelle Bienvenu, Wife of Jules Buisson, v. Her Husband.
    It is impossible to give a defamitory intention and effect to epithets applied by a husband to his wife, when no one was present but the spouses themselves, although such epithets would have had much gravity had they been uttered in the presence of any third person
    Facts which might have given ground for p, separation from bod and board, are extinguished by a reconciliation. C. C. Art. 149.
    It is only where a subsequent cause is proved to have arisen, sufficient for the basis of the action of separation, that Article 150 C. C. will entitle the plaintiff to urge a cause precedent to the reconciliation.
    A rcconventional demand on the part of defendant for a separation on the ground of abandonment, is not admissible. A particular form of procedure is required by the Code for obtaining a decree of separation on this ground, and to that form the defendant must have recourse for relief.
    from the Third District Court of New Orleans, Duvignaud, J.
    P. Soulé and C. Bierwenu, for plaintiff. H. Dugué, for defendant and appellant.
   Buchanan, J.

Tlie plaintiff sues for separation of bed and board, upon the

allegations that her husband has on various occasions exhibited a violent and qnavelsome disposition; that he has cursed, insulted, outraged and defamed plaintiff ; that he has cruelly and inhumanly abused, insulted and threatened her children, by a former marriage ; that the conduct of her husband has rendered their living together entirely insupportable ; and that she has taken refuge at the house of her father, where she now resides.

The proof is very tar short of these grave allegations. It may be summed up in three facts :

1. Mrs. Buisson complained to her mother, that her husband, in a quarrel which had occurred between themselves, when nobody was present, had permitted himself to apply to her three epithets, which are certainly among the worst and the most defamatory, that the French language affords. When plaintiff made this complaint to her mother, she had abandoned the conjugal domicil, and was at the house of a married sister. Plaintiff’s mother, thereupon sought an interview with her son-in-law, whom she reprimanded for the gross and insulting language addressed to his wife. Defendant confessed that he had used the words attributed to him by his wife, excused himself on the ground of having been in a passion when he spoke them ; professed repentance, and begged forgiveness. The parties were reconciled, and plaintiff returned to her husband’s house.

2. Subsequently to the occurrence just related, and five months before the institution of this suit, the defendant, in the presence of the mother and the sister of his wife, declared that he had given his wife money to buy trifles. Plaintiff denied that he had dono so. Whereupon defendant became furious, shook his fist in his wife’s face, caught himself by the hair with both hands, and left the room. The witness of this scene remarks, that it was true defendant had given his wife the money, as alleged by him, and that her denial of the fact was a joke — (une plaisanterie.)

3. The third fact, which goes to make up plaintiff’s case, wo will give in the words of her sister and witness :

“ Witness asked defendant, if it was true that he had said, that he would not have his well enclosed, in order that he might see the children of his wife drowned therein, and swollen like toads. Defendant confessed to her that he had said so, but that it was in a moment of anger.”

We do not find, in the facts recapitulated, any sufficient foundation for a judgment of separation of bed and board. The parties are both very young ; are proved by their own witnesses to be of hasty temper, although of good hearts, and their quarrels are the quarrels of children. The epithets applied by the defendant to the plaintiff on one occasion, would have had much gravity, had they been uttered in the presence of third persons. But spoken, as they were, when no one was present but the spouses themselves, it is impossible to give them a defamatory intention and effect. And if the impression which they produced upon the plaintiff, was so painful, as to make her quit the conjugal roof — a circumstance natural enough in a lady of refined manners and education — yet a reconciliation followed, almost immediately, upon acknowledgment of his error, made by the husband. He solicited the forgiveness of his wife, according to the witnesses, in a manner which displayed, most unequivocally, his profound contrition ; and that forgiveness was graciously accorded him. This first and most serious ground of plaintiff’s action was, therefore, extinguished by the reconciliation. 0. 0.149.

And as no subsequent cause, which we can regard as at all sufficient for a basis of the action, is-proved to have arisen, the Article 150, which otherwise would have availed to entitle the plaintiff to urge the precedent cause at this late date, has no application to the present case. The doctrine of Mareadé, on this point, vol. 1, p. 606, No. 767, paragraph 2, and No. 768, paragraph 2, appears to us contrary to the intention of the lawgiver, as manifested in the Articles of the Code.

Defendant demands a separation for abandonment, by way of reconvention. A particular form of proceeding is required by the Code, for obtaining a decree of separation on this ground. To that procedure, the defendant must have recourse for relief.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the demands of plaintiff and defendant be rejected, without prejudice to the right of defendant to proceed against plaintiff, in legal form, for abandonment of the conjugal domicil. And it is lastly ordered, that the costs of suit be equally borne by plaintiff and defendant, with the exception of those of appeal, which are to be paid by plaintiff.


author: Vooehies, J.

text:
    George Moore v. Estate of Alexander Gordon, (W. G. Bakewell, Executor,) and John M. Bell.
    An appeal will not lie from, an interlocutory decree overruling the exception that petition discloses no ground of action.
    from the Fourth District Court of New Orleans, Price, J.

      V. F. Cotton, for plaintiff. Gaither <& McPheeters, for defendants and appellants.
   Vooehies, J.

The plaintiff sued the Sheriff of the parish of Orleans and the legal representative of the estate of Alexander Gordon, deceased, for damages for the illegal seizure and sale of his property, by virtue of an execution issued in the case of W. E. Bakewell, Executor, v. Schofield & Wilkerson.

The executor of the estate of Alexander Gordon, deceased, excepted to the plaintiff’s demand, on the grounds that the petition discloses no cause of action, and that the cause of action therein set forth has already been decided on a former occasion between these parties. The District Judge overruled this exception, and the defendant appealed.

"We are not called upon to examine into the merits of these somewhat inconsistent exceptions, relied upon by the defendant; for the decree of the lower court being interlocutory, aud not liable to cause an irreparable injury, the plaintiff’s motion to dismiss must prevail. C. P. 566.

It is, therefore, ordered and decreed, that this appeal be dismissed, at appellants’ cost.


author: Cole, J.

text:
    Edward King v. City of New Orleans.
    Whore plaintiff received warrants for money due him on a contract, without objecting, or taking them under protest that thoy were not for the whole sum duo, his endorsing the warrants will preclude his claiming afterwards that they were not drawn for a sufficient amount.
    from the Third District Court of New Orleans, J.

      Collens <& Woolridge, for plaintiff and appellant. J. J. Michel, for defendant.
   Cole, J.

Plaintiff represents, that on the 19th July, 1850, he entered into a contract with Municipality No. 2, whereby he bound himself to repair, during the term of two years, from the 8th July, 1850, the streets and sidewalks then made, within the Third District of the Municipality; that the city of New Orleans, now representing the Second Municipality, is indebted to him for the seven months ending on the 8th December, 1851, and for the month ending on the 8th of July, 1852, at the rate of §625 per month, according to contract.

The defence is a plea of payment for seven months, and a general denial as to the last, or eighth month.

There was judgment for defendant, and plaintiff has appealed.

Whatever rights plaintiff might have had, the warrants endorsed by him show that he submitted to the correctness of the reductions. These warrants specify the amounts due plaintiff for the seven months. If plaintiff wished to object to the deductions made by the Surveyor and Comptroler, his duty was to have made objections thereto. But, instead of receiving the amounts allowed, under the protest that they should not be deemed the whole due him, he endorses the warrants, and thus recognises that nothing more is coming to him but that certified to he due to him therein. The letters written by him to the corporation cannot rebut the effect of Ms endorsement, as he does not therein speak of or allude to the warrants.

The evidence satisfies us that the plaintiff is not entitled to recover upon any part of his claim.

Judgment affirmed, with costs.


author: Cole, J. Merrick, O. J.,

text:
    Louis Emmerling v. James Graham.
    A party cannot recover from a Notary Public, for having neglected to protest a note legally, when, by his own laches, he has put it out of his power to subrogate the Notary to his rights as thoy existed at the date of protest.
    from the Fifth District Court of New Orleans, J.

      O. & C. E. Schmidt, for plaintiff and Durant & for defendant and appellee.
   Cole, J.

Plaintiff alleges that the defendant, who is a Notary Public, is liable to him in the amount of the note sued upon, &c., for having neglected to give proper and due notice of protest thereof to the endorser, Kelly, whereby he failed in a suit against Kelly, to recover from him the amount of the note.

There was judgment in favor of defendant, and plaintiff has appealed.

The defendant has plead the prescription of one, three and five years.

Plaintiff cannot maintain this action, because he cannot now subrogate defendant to his rights at the date of the protest, or indeed to any rights whatever ; for at the date of the service of the citation in the suit against the endorser, and also at that of the present suit, more than five years had elapsed from the maturity of the note, and it was prescribed.

If plaintiff should be paid by defendant in place of the endorser, the defendant ought to have his recourse against the maker, but plaintiff, by his laches, has permitted the prescription to accrue in favor of the maker, and it would not be just to allow plaintiff to recover from the defendant for his negligence, when by his own he has rendered it possible for the maker to defeat the claim of the defendant.

Judgment affirmed, with costs.

Merrick, O. J.,

concurring. A Notary is a public officer, and is commissioned as such. I think the plea of prescription of one year may be maintained, and I prefer to concur on this ground. C. 0. 2295, 3501.


author: Yoorhies, J.

text:
    Jno. M. E. Sharp v. G. Y. Bright et als. — Wm. Beatty, Surety.
    A surety on a sequestration bond cannot be proceeded against by rule or on motion.
    The failure on the part of a surety, against whom a rule has been taken, to answer the rule, cannot be construed as a waiver of his right to except to such proceedings.
    PPEAL from the Fourth District Court of New Orleans, Price. J.

      Mott & Fraser, for plaintiff. E. Hiestand, for defendants and appellants.
   Yoorhies, J.

The only question presented for adjudication in this case is, whether the surety on a sequestration bond can be proceeded against by rule or on motion. As this surety is not a party to the suit, in the progress of which the bond is taken, he cannot, in the absence of express legislation to that effect, be sued in the summary way.

It has already been held, “ that the right to proceed by rule, or on motion, implies the pendency of a suit between the parties, and is confined to incidental matters, which may arise in the progress of the contestation, except in certain cases where a summary proceeding is expressly allowed by law.” Vide 3 An. 434, Baker et als. v Doane et als.; 6 R. 437, Thomas, Adm’r., v. Bourgeat, Ex’r.

In cases of attachment, there is express legislation authorizing summary proceedings against the surety (Act 1839, p. 162); but there is no such provision for sequestration bonds.

The rule taken by the plaintiff against Wm. Beatty, the surety on the sequestration bond furnished by the defendants, was unauthorized; and the judgment of the District Court, making him responsible summarily for the amount of the judgment obtained against Ms principal, must be reversed; unless, as contended by the plaintiff, the appellant has waived his objection by bis failure to file an exception to that effect. Had be joined issue on the merits of this rule, and proceeded to the trial without insisting on his objection to a summary proceeding', then the authorities quoted by the appellee would apply, and the appellant would be held to have waived his right to except. But his mere failure to appear to answer the rule cannot preclude him, on the appeal, to avail himself of this radical defect in the proceedings.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, without prejudice to the right of the plaintiff to proceed via ordinaria against the appellant, Wm. Beatty, on the sequestration bond.

It is further ordered and decreed, that the plaintiff pay the costs in both courts.


author: Merrick, C. J.

text:
    Kuenzi & Co. v. Elvers, Bojé & Co.—Mana, McGregor & Co., Consolidated.
    Bills of exchange drawn m a foreign country, and payable in another foreign country, although drawn against a shipment made to the city of 2srew Orleans, aro governed by the laws of the country whoro they are drawn.
    In the absence of proof in a suit brought upon such bills here which have been protested for non-aocep-tance and payment, the laws of the country where such bills were drawn with regard to bills drawn there upon other foreign countries, must be presumed to be the same as our own, and ten per cent, damages will be allowod
    from the Second District Court of New Orleans, Morgan, J.

      Johnson & Denis, for plaintiff. H. T. Hays, for defendants and appellants.
   Merrick, C. J.

These two cases were commenced by attachment upon bills of exchange to the amount of £10,000, drawn by the defendants in the fall of 1857, at Rio de Janeiro, on a house in London, and protested for non-acceptance and payment. The bills appear to have been drawn against a shipment of coffee to a house in this city. That is, it was expected that the drawers would place themselves in funds by re-drawing on the consignees in New Orleans.

On the trial of these cases, (now argued together by consent) no evidence was offered of the laws of Brazil, where the bills were drawn. The defendants have paid the amounts specified on the face of the bills, and the only question submitted to this court for its determination is, whether or not, the plaintiff can recover damages at the rate of ten per cent., as allowod by our statute on bills of exchange drawn in Louisiana on foreign countries, and there protested for non-payment or non-acccptance.

The bills drawn in Brazil, (although against a shipment of coffee to this city) were payable in London, and are governed by the laws of Brazil, the country where they were drawn. Story on bills, 397. But the record does not furnish us any proof of those laws. In the absence of proof, the laws of that country, in reference to bills drawn there upon other foreign countries, must be presumed to be the same as our own, and the damages claimed must be allowed. See Anderson Conn v. Folger, 11 An. 270.

In the first of these cases, viz : Kuenzi & Co., v. Elvers, Bojé & Co., the judgment must be affirmed with costs; in the second case, viz : Mana, McGregor & Co., against the same defendants, the judgment must be amended so as to allow the plaintiffs the additional sum of $3433 10, it being ten per cent, damages on the protested bills, the defendants paying the costs of appeal in that case.


text:
    Thomas Orman v. Julian Neville.
    A record of judicial proceedings in another State, is sufficiently authenticated when certified to by a Judge, before whom, it appears from the record itself, all the proceedings in the case were had, and who states in Ins certificate that ho is one of the Judges of the court, and that all the Judges of said court aro equal in authority, and each one is authorized to sign such a certificate.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      jlX Waples <& Eustis, for plaintiff and appellant.' P. E. Bonford, for defendant.
   Voorhies, J.

The plaintiff obtained a judgment against the defendant in the Court of Common Pleas of Hamilton County, Ohio ; and had it revived by scire facias on the 12th day of March, 1853. This judgment is the basis of the present demand, to which the defendant opposes the plea of prescription and the general denial.

On the trial below, the plaintiff offered in evidence the transcript of a record from the Court of Common Pleas, to prove the revival of this judgment; but, on motion of the defendant’s counsel, the document was rejected, on the ground “ that the certificate of the Judge to the said transcript, did not show that the said Judge was sole Judge, or presiding Judge, or Chief Justice.”

This ruling is erroneous ; it appears by the document itself, that the case was tried, and the judgment of revival signed, by A. C. W. Carter, as president Judge ; the certificate given by him states, that he is “ one of the Judges of the Court of Common Pleas, for the First District, within and for the State of Ohio, the same being a court of law and record, in and for the county of Hamilton, and the said Judges being equal in authority, and each authorized to sign such certificates.” 2 La. 338, Dismuke v. Musgrove ; 2 N. S. 497, Kirkland v. Smith ; 2 An. 646, Newman v. Goza.

With regard to the prescription of judgments, the Statute provides the lapse of ton years. Act of 1855, p. —. As ten years have not elapsed since the revival of the judgment obtained by the plaintiff against the defendant in the State of Ohio, the plea of prescription cannot prevail in this instance.

It is, therefore, ordered, adjudged and decreed, that the plaintiff do have judgment against the defendant, for the sum of two thousand seven hundred and eight dollars and sixty-one cents, with six per cent, per annum interest, from the 6th day of November, 183V, on the sum of two thousand six hundred and ninety-six dollars ; and on the balance, from the 12th day of March, 1853, subject to the credit of six hundred and forty-one dollars and twenty cents. It is further decreed, that the judgment of the District Court be avoided and reversed ; the defendant and appellee paying costs in both courts.


text:
    Canfield S. Martin v. His Creditors, and the Creditors of T. J. Casey & Co.
    Alterations in a -warehouse receipt after its delivery, are presumptive evidence of fraud ; and the authenticity and importance usually attached hy the law to those instruments mado in good faith, do not attach to such an instrument.
    The bona fide possession of a warehouse receipt is legal evidence of possession ; and where different parties are in possession of such receipts, the earliest must prevail.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    xi. Durant <& Hornor, for Tufts & Hobart and Reed & Co. Gaither <& McPhee-ters, for Pármele & Bro. Emerson & Huntington, for H. Hathaway. Singleton & Clack, for Keep, Bard & Co. Benjamin, Bradford & Finney, for H. Renshaw, syndic.
   Buchanan, J.

There arc three parties appellant.

1. William H. Hathaway.

2. Tufts & Hobart.

3. Reed & Co.

There was a fourth, Parmele & Brother, but their appeal has been dismissed on appellant’s motion.

1. Hathaway claims the cargo of the ship William Sprague, under a sale made to him by Tufts & Hobart, for account of Thomas J. Casey, and a warehouse receipt signed by Casey, dated 2d January, 1858.

At the time of the trial of the various oppositions in the court below, it was proved that there remained in the salt warehouse of Casey é Co., 12,650 bushels of the cargo of the William Sprague.

The judgment of the District Court awarded this salt to Keep, Bard & Co.

The evidence shows that the ship William Sprague arrived in the port of New Orleans, in December, 1856. Her cargo, consisting of 20,650 bushels of salt, was deposited in the warehouse of T. J. Casey & Co., whose warehouseman, {Hugh O’Donnell,) delivered to the vessel when she was discharged, or sent to the office of the consignees in town, the following warehouse receipt, written by himself:

“ December 26. Received from ship William Sprague, in warehouse, 10,325 tubs salt. Hugh O’Donnell, Olerk for Brooklyn Warehouse.”

But the recéipt as exhibited in evidence, reads as follows :

Arrived December 26. Received from ship William Sprague, in warehouse, for account of Keep, Bard <& Co., 10,325 tubs salt. Brooklyn Warehouse No. 3 ; storage chargeable to T. J. Casey.

Hugh O’Donnell, Olerk for Brooklyn Warehouse.

T. J. Casey.”

All the words found in the second of the copies above, which are not in the first, are proved to have been interpolated after the receipt was delivered by O’Donnell, and to be in the handwriting of Thomas J. Casey, the insolvent, with the exception of the words, “ for account of Keep, Bard & Co.,’’ which are in a handwriting which the witness, O'Donnell, does not recognize.

It is further proved by the book-keeper of Keep, Bard & Co., examined as a •witness for them, that the cargo of the William Sprague was purchased of the importer, by Keep, Bari S Co. and Thomas J. Casey, on joint account; the profit or loss on the resale to be equally divided. This witness declares positively in his examination in chief, that the salt was paid for by Keep, Bard & Co. But on cross-examination, this fact is left in great doubt; and the broker, through whom the purchase was negotiated, declares that the cargo of the William Sprague, was sold by the consignee of the vessel, on the 22d of December, 1856, to T. J. Casey.

Thomas J. Casey, in May, 1857, borrowed of Tufts & Hobart, $11,917 75 on a pledge of this cargo of salt and two other cargoes ; and Tufts & Hobart, on the 23d December, 1857, sold the cargo of the William Sprague, through the same broker, who had sold it to Casey. This sale was made with the knowledge of Casey, as proved by the broker; and was ratified by Casey, as shown by the warehouse receipt to Hathaway, of date the 2d of January, 1858, signed by Casey himself.

Under this state of facts, we think the court below erred in awarding the remnant of the William Sprague’s cargo, remaining in the warehouse, to Keep, Bard é Co.

Casey is an absconding debtor, who has been sued for a forced surrender. His business was that of a salt warehouseman; and this record abounds with proof, that during a year and more previous to his absconding, he was engaged in defrauding the persons who had salt stored in his warehouse. The receipt, without a date, upon which the appellees, Keep, Bard & Co., rely, suspicious as it is from the material alterations made in it after its delivery, becomes doubly so, from the proved dishonesty of the party who made those alterations.

The law attaches a great importance and authenticity to warehouse receipts; but we do not understand this authenticity as attaching to a receipt, which is proved to have been altered after its delivery by the warehouseman. The latter is without power to make such alteration; and the fraudulent intent of Casey in making this alteration in this instance, is evident.

Again, it is not correct to say, that the legal title of the salt was in Keep, Bard <& Co. We have other evidence on this subject than their warehouse receipt, introduced without objection, and, in part, by themselves.

The most favorable view of the case of these appellees, under the somewhat conflicting testimony of their book-keeper and of the broker, is, that Keep, Bard <& Co. were joint owners with Casey, of the cargo of the William Sprague.

The salt was, in this view, as much under the control of Casey, as under that of Keep, Bard S Co.; perhaps more so, as the storage was chargeable to Casey, by the terms of the interpolated receipt.

Casey, as we have seen, first pledged the salt to Tufts <& Hobart, and then sold it to Hathaway, the appellant. He has, in all probability, defrauded his partners, Keep, Bard dt Co.; but Hathaway, was no party to the fraud. His purchase was bona fide, and in our opinion Keep, Bard <& Co. cannot repudiate it.

2. Tufts <& Hobart claim the cargo of salt of the ship Bamberg, stored in Casey & Co.’s warehouse. This cargo was sold by the importers, Harrison <fi Co., to T. J. Casey, on the 28th of November, 1857, being then on board ship, or stored in the bonded warehouse kept by Casey <& Co.

Tiromas J. Casey <& Co. sold this cargo to H. Leland & Co., on the 9th of December, 1857, and delivered to the purchasers, on the same day, a warehouse receipt for the same, being 7793 bags coarse Liverpool salt, and 1850 bags fine salt.

On the 18th December, 1857, Casey (for account of T. J. Casery & Co.) sold the same cargo of the Bamberg to Rugely, Blair & Co., who sold to Tufts & Hobart. The cargo remained in the warehouse during these different sales.

The appellants, Tufts é Hobart, argue that their purchase of this salt should prevail over the anterior one of the appellees, H. Leland t& Co., because the sale to the latter was unaccompanied by delivery. The bona fide possession of a warehouse receipt, is legal evidence of possession ; and this is the character of the possession of both parties. The earliest must, therefore, prevail.

3. Reed & Co. claim 11,760 sacks salt in the Zinc Warehouse, upon a warehouse receipt. The Judge below was of opinion that the salt was not sufficiently identified to justify him in awarding it to this claimant.

The salt which remains on deposit in the Zinc Warehouse is 20.200 sacks. Of this amount, there was adjudged by the court below :

To P. A. Oiraud & Co.8,650 sacks.
To the State Bank.3,470
To Drury A. Hands.1,690
13,810
Which deducted from total in store as above.20,200
Leaves amount not identified by any other claimant, in Zinc
Warehouse. 6,390

As no opposition is made by any other party to this record, to the recovery, by appellants, of the six thousand three hundred and ninety sacks remaining in the Zinc Warehouse, as above, we think it equitable that the same should be awarded to the appellants, Reed <& Co., whom the record shows to have acted in good faith, and to have taken all precautions usual among men in trade who are dealing with those whose probity they do not suspect, to ascertain the existence of the merchandise respecting which they are dealing.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the claim of William H. Hathaway, be reversed ; that the syndic deliver to the appellant, William H. Hathaway, 12,650 bushels of salt of the cargo of the ship William Sprague, or so much thereof as may now remain on storage in Brooklyn Warehouse No. 3, upon said Hathaway paying to said syndic all costs and expenses for storage, reserving to said Hathaway, the right to contest the storage account for deficiency of salt; that the claim of Keep, Bard & Co. to the cargo of the ship William Sprague, be dismissed ; that as regards the appellants, Tufts <& Hobart, the judgment of the District Court be affirmed; that as regards the appellants, Reed & Co., the judgment be amended, and that the syndic deliver to said Reed & Co., 6,390 sacks of salt in the Zinc Warehouse, or so much as may be left therein, after satisfying the judgments of the District Court in favor of P. A. Oiraud & Co., of the Louisiana State Bank, and of Drury A. Harris, upon the same conditions as above expressed with regard to the appellant Hathaway.

It is lastly adjudged and decreed, that the costs of the interventions of the appellants and appellees in both courts, follow the judgments rendered upon the . said interventions severally.


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

text:
    Thomas McKnight v. C. Connell and Parker, Sheriff.
    Where a cause has boon previously put at issue, and the object oí' filing interrogatories is simply to procure proof, and not to bring tlie party into court, the consent to a continuance by defendant, and tho declaration of plaintiff’s counsel that he will amend Ins petition and propound interrogatories accordingly, is not an agreement that binds the party to amend, if he subsequently finds that he has sufficient proof without, he is not bound by such consent to propound interrogatories in order to be permitted to obtain judgment.
    In such a case the want of service of the interrogatories is not one of those vices of form which give rise to the action of nullity.
    A party acting in good faith cannot be deprived of a judgment on such grounds.
    A deputy Sheriff who has not made the service of a petition and citation, or other proceeding, has no authority to make the return.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      JCi. Benjamin, Bradford <® Finney, for plaintiff. Collens <& Woolridge, for defendants and appellants.
   Merrick, C. J.

This suit is brought to annul a judgment obtained by the defendant Connell v. McKnight, the plaintiff, and injoin the execution. Tho judgment of the lower court was in favor of the plaintiff annulling the judgment.

The original action was commenced the 17th of April, 1855, against Thomas Hunt, and the plaintiff, McKnight, by personal service upon both. On an exception taken by McKnight, the suit was dismissed as to Hunt.

The defendant, McKnight, filed for answer a general denial the 28th of January. 1857.

On the 17th day of June, 1857, the case came up for trial, and some evidence having been taken, the case was continued for furthí r evidence in order that the plaintiff might file the interrogatories propounded to the defendant;and the attorney for the plaintiff then stated that he would file an amended petition and propound interrogatories accordingly.

The attorney for Connell two days afterwards filed his interrogatories on facts and articles, and obtained the order of the Judge upon the plaintiff to answer. The interrogatories and citation were placed in the hands of the Sheriff the same day, June 19th, 1857, and they were returned personally served on McKnight, the 8th day of July following.

In November, the interrogatories on facts and articles were taken pro confessis, and the case, after having been regularly called, fixed for trial, and posted up during two weeks agreeably to the rules of the court, for the 17th day of December, 1857, was tried that day; the names of the counsel for both parties being also posted up, they were sent for on the day of trial.

Connell’s counsel was present, the defendant’s counsel were absent. Judgment was rendered upon the interrogatories taken as confessed, and the proof in favor of Connell for $337 80 and interest.

The Sheriff’s return to the interrogatories, purports to have been made by Wm. H. Wilson, deputy Sheriff, who certifies that McKnight was personally served.

Another deputy Sheriff was placed upon the stand on the trial as a witness in this case, who testified without objection, that he was the person who made the service of the interrogatories and citation, and that the return was not correct; that he did not make the service upon Mr. McKnight personally, but that having been at McKnight’s house almost daily for about fifteen days, he found a white person on the premises, and delivered the interrogatories to him. A son-in-law of plaintiff testifies that the plaintiff was absent at the time on official business in Artanicas, and that he, the witness, resided in the house at that time, but he has no recollection of having received the interrogatories, and thinks he should have remembered the fact if he had.

The plaintiff having thus shown the falsity of the Sheriff’s return, and that there was no personal service, contends that he has brought his case within the rule laid down in 3 An. p. 647, and “ has exhibited matter which makes it against good conscience to execute the judgment, — matter of which the injured party could not have availed himself in the former litigation,” having been prevented from availing himself of his just defence by the false return of the Sheriff, inasmuch as by the agreement of Connell to propound interrogatories to the plaintiff, the latter had the right to rely upon the service of the same as a further notice of Connell’s intention to proceed to the trial of the case.

It appears to us, that this position of the present plaintiff cannot be maintained. It is not pretended that Connell acted otherwise ihan in good faith. He had instituted a suit previously against another party, for whom it was protended McKnight acted as agent and had failed in that action, and now, having instituted suit against McKnight, as principal, it was supposed the answers of the latter might disclose another party responsible to the plaintiff for the paving, the ground of the indebtedness.

The cause had been put at issue previously, and the object of filing interrogatories was to procure proof, and was not to bring the party into court. The consent to a continuance, and the declaration of counsel that he would amend and propound interrogatories, were not an agreement which bound the party to amend if he subsequently found that he had sufficient proof without, and when, therefore, he propounded his interrogatories, he was not complying with an agreement without which he could not have been permitted to obtain judgment. It was precisely as if he had declared that he would take the deposition of a witness and a continuance had been consented to in order to enable the party to do so. It might not be very honorable to decline afterwards to take the deposition, but such consent could not be considered a binding condition, precedent to the recovery of judgment.

When Connell, therefore, procured the order of the court on the 11th day of November, to take the interrogatories as confessed, he was acting in good faith, and in enforcing what appeared to him and the court as an undoubted right.

The case being at issue, it was then properly set for trial, and posted up for two weeks in conformity with the rules of the court. It was the duty of Mo-Knight, if he had any objections to make, to appear and make them before or at the trial in December, and not doing so, if he has suffered any detriment, it has been the result of his own negligence. A party acting in good faith cannot be deprived of a judgment on such grounds.

In conclusion, we take occasion to remark, that a deputy Sheriff who has not made the service of a petition and citation or other proceeding, has no authority to make the return, and that the conduct of the two deputy Sheriffs in this instance, is deemed by the court unwarranted in law.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and we do now order, adjudge and decree, that the injunction sued out in this case be dissolved, and plaintiff’s demand be rejected, and that said Thomas McKnight, and Joseph West, his surety, be condemned, in solido, to pay three per cent, interest per annum on the sum of $337 80 from the 15tli day of February, 1858, until this decree becomes executory, and fifty dollars damages, for the wrongful issuing of the injunction, and that the said plaintiff pay the costs of both courts.

Buchanan, J.,

concurring. I concur in the decree in this cause, being of opinion that the petition and the evidence do not present a case for the action of nullity of a judgment, under Arts. 606 and 607 of the Code of Practice.

There is no allegation, and no proof, of the judgment having been obtained through fraud or ill practices on the part of the party [Connell) in whose favor it was rendered. C. P. 607.

The want of service of the interrogatories on McKnight, was not one of those vices of form which give rise to the action of nullity ; and which are enumerated in Art. 606 of the Code of Practice. None of the cases quoted in plaintiff’s brief cover the present. In one, Norris v. Fristoe, 3 An., which goes the farthest towards extending the action of nullity, it was held that the party complaining cannot be relieved, if he has been guilty of any laches or negligence. Now, it is admitted in argument, and appears from the record, that the case of Connell v. McKnight, was regularly fixed for trial and tried in December, 1857, and that the defendant therein, plaintiff here, was not present in person or by counsel.

This is certainly imputable to him as laches, — moreover, it does not appear that the interrogatories, which had been taken pro confesses, by an order of court, rendered a month previously to the trial, were offered in evidence by Connell ; and, indeed, if they had been, it is doubtful, as suggested by one of plaintiffs counsel, whether the implied confession of their truth would not have been favorable to MeICnight’s cause, instead of prejudicial to it. The other evidence taken on the previous trial, and copied in the record, appears to me amply sufficient to justify the judgment of Connell v. McKnight, without taking the interrogatories into account. Be that as it may, plaintiff’s remedy was by appeal alone, at least as far as Connell is concerned.

I see no reason for questioning the entire fairness and correctness of the conduct of Connell and of his counsel. It is, therefore, not against good conscience to execute the judgment.

Cole, J., concurs in this opinion.


text:
    Succession of John McLaughlin.
    Where a pass-book has been kept by a party with a merchant, although every entry of items bought lias been made by the merchant or his cleric, yet the book is the property of such party, who is presumed to have examined it, and if he has made no objection to its contents, may be compelled to produce the same, and it may be offered in evidence against him.
    from the Second District Oonrt of New Orleans, Morgan, J.

      Q. Legardeur and L. Costera, for appellees. T. Gilmore and P. E. Bon-ford, for appellants.
   Merrick, C. J.

Two appeals have been taken in the present case from the judgment upon the account filed by the executor and opposition thereto. The testamentary executor and the universal legatee appeal from the allowance of $250 to the counsel of Davis, (who had been appointed curator of the estate,) and $200 allowed to the attorney for absent heirs.

Davis appeals from the refusal of the District Judge to allow him commissions.

The inventories of the of the succession amount to the sum of $23,506 80, and $20,823 in assets have been delivered the legatees.

The counsel employed for Davis, curator, conducted the mortuary proceedings until the testamentary executor was appointed, and the universal legatee put in possession.

These services were beneficial to the estate, and the District Judge did not err in allowing $250 under the proof in this case.

The appointment of an attorney to represent the absent heirs was a necessary proceeding. The Judge did not err in making the appointment, as is manifest from the silence of the testamentary executor and universal legatee, when it was in their power to have opposed the appointment, or at least to have moved the court to rescind the order.

As the absent heirs do not receive any portion of the estate, and as the legatees obtain what otherwise would be in part coming to the absent heirs, and as the action of the attorney for the absent heirs has thus been useful to the legatees, we think the District Judge did not err in ordering the executor to pay the amount allowed the attorney for absent heirs out of the estate, there being no other fund out of which he could be paid.

The District Court did not err in permitting the “ pass-book” kept with Davis to be offered in evidence. It was the testator’s book, notwithstanding the entries of the items bought at the store of Davis by the testator were made by Davis or his clerks. The pass-book was examined (we must presume) by McLaughlin, and not having' been objected to by him, Davis had the right to compel the production of the same, and to offer it in evidence when so produced. Pratt v. McHatton, 11 An. 264.

Davis was appointed curator, gave bond, and obtained his letters of curator-ship on the estate. It is true he did not obtain possession of the property because he was prevented by the universal legatee. But having caused the seal to be affixed, and the inventory to be taken, and being recognized by the decree of the court as curator of the succession, his rights to some compensation were fixed by such decree. See succession of Elizabeth Chaney, Opinion Book 27, p. 483, not reported.

We think Davis should be allowed one-fourth of 2J per cent, commissions on the inventory which he caused to be taken. But the one-fourth commissions ought to be deducted from those allowed the testamentary executor, and as the amount for both commissions and account do not equal Davis’s liability to the estate, he must be left to oppose the same in compensation when a demand is made upon him on account of such indebtedness.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be amended so as to reduce the amount of commissions allowed the testamentary executor Boyce, and increase the sum allowed the universal legatee, by the sum of one hundred and thirty-one 77-100 dollars, and that said Davis’s right to plead the amount of said one-fourth commission, viz: $131 77, and said account for $35 85 and interest, in compensation pro tanto of any sum due by him to the succession be recognized and reserved to him, and that the judgment of the lower court so amended be affirmed ; the costs of the appeal to be paid by the said succession.


text:
    E. Wood Perry v. Alfred Kearney.
    "Where the execution of a judgment has been enjoined, and defendant admits, upon being interrogated, a partial payment of such judgment, the injunction should be perpetuatod for the amount admitted to have been paid, and dissolved for the remainder still due.
    The plaintiff and his surety on the injunction bond are bound in solide to defendant for damages only on the amount for which the injunction is dissolved.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      XL F. Perrin, for plaintiff and appellant. G. L. Bright, for defendant.
   Land, J.

The plaintiff enjoined the execution of a judgment against him, and in favor of the defendant for the sum of eight hundred and fifty-one dollars and thirty-four cents, on the ground of payment and satisfaction, with an order on the New Orleans Oil Manufactoring Company. To prove the grounds alleged in the petition for an injunction, the plaintiff propounded interrogatories to the defendant, who answered as follows:

“ I received on said judgment $525 60 in merchandise after the judgment was rendered, and have always been ready and willing to credit the defendant with said amount. On the day the execution issued in the suit of Alfred Kearney v. E. Wood Perry, my attorney instructed the Sheriff in writing to credit Mr. Perry on said fi. fa., with the aforesaid sum of $525 60. I have received nothing more from E. Wood Perry since the rendition of the judgment. But before the rendition of the judgment, Mr. E. Wood Perry gave me on account of the notes sued upon by me, Ms note for $100, which was paid. I have always been ready and willing to credit Mm with the amount, though legally, he could not claim it after the rendition of the judgment.”

The defendant, in Ms answer to the petition, admitted the facts above stated to be true.

There was judgment, dissolving the injunction, and condemning the plaintiff, and Ms surety on the injunction bond, to pay twenty per cent, damages on the sum of $225, and costs of suit.

This judgment is erroneous in not perpetuating the injunction, for the amounts admitted by the defendant to have been paid, and in condemning the plaintiff to pay the costs of suit.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the injunction issued in this case be perpetuated for the sum of six hundred and twenty-five dollars and sixty cents of the judgment in favor of defendant against the plaintiff, and dissolved for the balance of said judgment, to-wit: the sum of two hundred and twenty-five dollars and seventy-four cents, and that the plaintiff, and Henry Perry, his security on the injunction bond, be condemned in solido to pay to defendant twenty per cent, damages on the said sum of two hundred and twenty-five dollars and seventy-four cents, the balance due on said judgment. It is further ordered and decreed, that the defendant pay the costs of the lower court, and also the costs of this appeal.


author: Buchanan, J. Merrick, 0. J.,

text:
    William Lewis v. Richard S. Morgan.
    In a redhibitory action for disease in a slave, it is necessary that there be an allegation and proof of a tender in order to recover; and that such tender should be made if practicable, before the institution of the suit.
    There are two exceptions to this rule. First, when an actual tender is not possible ; and second, where defendant has done some act, or made some declaration which demonstrates that a formal ofler to return the thing sold would have been fruitless.
    It is not a sufficient excuse for want of tender, that it was impracticable at the time of instituting the suit, if it was practicable at any time between the discovery of the vice and the institution of the suit, or even before the trial.
    PPEAL from the District Court of the Parish of St. Helena, Wilson, J.
    JJL Penn é Martin, for plaintiff. E. P. & T. C. W. Ellis, for defendant and appellant.
   Buchanan, J.

This is a redhibitory action for a disease in a slave, sold by defendant to plaintiff. The appellant asks for the reversal of a judgment, on the ground, among others, that no tender of the slave is either alleged or proved.

It is the well settled doctrine, that allegation and proof of a tender are indis-pensible to recovery in an action of this kind ; and that the tender should be made, if practicable, before the institution of the suit. 2 N. S. 466 ; 4 La. 193 ; 19 La. 283; 9 Rob. 306 ; 1 An. 389 ; 2 An. 955 ; 4 An. 562 ; 10 An. 127 ; 11 An. 209.

Two exceptions to this general rule, are recognized by the decisions :

First — When an actual tender is not possible; and

Second — Where defendant has done some act, or made some declaration, which demonstrates that a formal offer to return the thing sold, would have been fruitless. 1 An. 44 ; 4 An. 344.

It is contended by appellee, that this case comes within the first of these exceptions — -that defendant was an absentee from the State when this suit was instituted.

The evidence shows that the sale took place- on the 25th of March, 1858, defendant being then a residfent of Amite city, and plaintiff residing within six miles of Amite city, which was his post-office ; that the disease of the slave was discovered by plaintiff within three or four days after the sale ; that a physician was immediately called in, who pronounced the disease to be of several months standing ; that defendant continued to reside in Amite until the latter end of May, or beginning of June, being two months or more after the sale ; that on his departure, defendant left an agent in the parish, who, it is reasonable to believe, was known to plaintiff, since the fact was notorious in Amite city, and that agent was made garnishee in this action,

It is, therefore, perfectly evident that there was no impossibility or even inconvenience, in making the amicable demand to rescind the sale, accompanied with an offer to return the slave. This suit was brought in September, 1858, and no tender appears to have been made, either before or since suit brought. We note this latter fact, although Judge Martin held, in Barrett v. Bullard, 19 La. 283, that the offer to return must always precede the institution of a suit. The same doctrine was held in Fisk v. Proctor, 4 An. 562.

We are of opinion that this suit must fail, for want of allegation and proof of a tender of the slave.

The vondee lias one year to institute the action of redhibition, and, as a consequence, may at any time previous to the institution, make a tender to the vendor. But if he brings his action at once, and does not wait until i.he twelfth month is about expiring, he cannot, on the trial of the case, give as a reason for not alleging and proving a tender, that he has the whole year for that purpose. The tender, if it can be made, must precede, if not the institution of the suit, at all events the trial.

The question upon which this case turns is this : Was it practicable for the plaintiff at any time, since the discovery of the redhibitory vice, and before the trial, to make a tender ? The test is not the practicability of the offer of tender at the time of instituting the suit, but at any time since the discovery of the' redhibitory vice or defect. It may be very easy for a vendee to do so during nearly the whole period of time previous to the institution of his action, and the matter become impracticable at the time, but it could hardly be said that in such a case, the exception of impracticability would prevail. The law dispenses with a tender, in such contingencies, because it requires nothing to be done in vain ; and, applying this principle to the case at bar, it will appear, that since the discovery made by the plaintiff of the redhibitory defect of the slave purchased by him of the defendant, over two months elapsed, during which it was practicable and easy to make a tender. Having failed to do so, his suit should be dismissed.

This conclusion is not at variance with our decision in the case of Dixon v. Chadwick, reported in II An. 215. That case was decided upon its peculiar circumstances, which brought it within one, if not both, of the exceptions to the general rule, mentioned above. Judge Lea, the organ of the majority of the court says: “ Under the circumstances, as disclosed by the evidence, we think a tender of the slaves by plaintiffs, was unnecessary, if not impracticable.”

The circumstances, alluded to by the Judge, are not detailed in the opinion, but appear from the record, which is before us, to be as follows :

Plaintiff bought of defendant, two women slaves, and paid for them, without any writing passed at the time. It was, however, understood and agreed, that an act of sale should be made, expressing a full warranty of the soundness of the slaves, except an obstruction of the monthly discharge in one of them. Defendant, subsequently, caused an act of sale to be drawn up by a notary, declaring that there was no warranty of the health of the slaves sold, it being understood between the parties that they were constitutionally unsound.

He tendered this deed to the plaintiffs, who refused to accept it, as being contrary to their verbal conventions; the parol proof of which was received, without objection on the trial. Defendant, upon this refusal, threw the deed on the floor at plaintiff’s feet, and left the house.

It was considered by the majority of the court, that the act of defendant, in tendering a false bill of sale to plaintiffs, and in insisting upon their receiving it indicated a determination, on his part, not to rescind the sale; which rendered a formal tender unnecessary, because it would have been fruitless. We also considered, that the feeble and bedridden condition of the slaves, at the time of this conduct of defendant, (they being both sick of pulmonary consumption, of which they shortly afterwards died,) rendered their removal from plaintiff’s house impracticable, without inhumanity. Hence the language of Judge Lea, in the opinion, as quoted above.

Judge Spofford dissented from that decision, as the report of the ease shows because a tender was alleged in the petition, and denied in the answer ; and be-canse the learned Judge thought that the facts of the case disclosed no impracticability nor inconvenience in the return of the slaves. There is surely nothing in either of the opinions delivered in Dixon v. Chadwick, that militates against the well established doctrine of tender, as a prerequisite to recovery in the redhi-bitory action. We entertain no doubt of the correctness of the decision in that case. It was, in fact, a case within the recognized exceptions to the general rule.

To use the language of Judge Martin, upon this very subject, in Barrett v. Bullard, exceptio probat regulara.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment for defendant, as in case of non-suit, with costs of both courts.

Merrick, 0. J.,

dissenting. The main question presented in this case, is whether, under the circumstances,.an actual tender of the slave, and demand of a rescission of the sale previous to the institution of this action of redhibition, were necessary to the maintenance of the action.

In my opinion, the present case does not come within the general rule.

The proof shows that the defendant is a practicing physician ; that he carried the slave in a carriage to the house of the plaintiff, six miles from Amite City, in the parish of St. Helena, at the time he negotiated the trade, and returned with her the same day ; that he represented her a strong, healthy, field hand, capable of doing as much work as a negro man belonging to plaintiff, named George ; that he desired that the bargain should not be spoken of. That within three or four days after the delivery of the slave and completion of the contract, it was discovered that the woman was afflicted with some disease, and a physician was called to treat her complaint; the disease proved to be what the physician calls procedentia uteri, and is of a character to render the slave utterly valueless. The sale was made the 25th of March, 1858, and the defendant left the parish and State in May or the first of June following. The suit was commenced by attachment the 18th day of September. It appears that defendant had an agent at Amite City, for some collections; but there was no publication of the agency, and it is not shown, nor pretended, that the agent had any authority to rescind the sale or receive the negro, nor that plaintiff had any knowledge of the agency, although it was supposed to have been notorious in Amite City, which, a witness thinks, is the place of plaintiff’s post-office.

It is not shown that plaintiff knew the slave was utterly worthless when defendant left the State.

An exception was taken to the petition, that it did not allege the slave to be afflicted with any disease known to the laws of Louisiana.

It was not objected, that a previous tender had not boon made.

The petition was amended to cure the defect, and thereupon a general denial was filed as an answer.

The testimony was received without objection, and the case must be disposed of upon the evidence, under the uniform decisions of this court.

If there wore any law requiring the vendee to tender the slave, and demand a rescission, as soon as he had fully ascertained that the slave was affected with a redhibitory disease, I should be of the opinion that the defendant was exempt from its operation in this instance; because it does not appear, that ho had fully ascertained the character of the disease before the suit was brought, and the law gave him the right to elect whether he would sue for a reduction of the price, or bring a simple action of redhibition. C. C. 2519, 2522.

If the demand for rescission be an amicable demand, as assumed in the opinion of the majority of the court, then no amicable demand was needed in this case, because the defendant was an absentee, and in such cases it is lawful to attach when you can find property. Millaudon v. Beazley, 2 An. 916.

But I maintain, that the tender and demand of a rescission are something more; they are, in the nature of a putting in mora, and although not within the provisions of Article 190ñ of the Oivil Code, have been adopted by our courts as within its spirit.

Now, the right to put the opposite party in default, or to make an amicable demand, exists as long as the action exists, which they perfect. In the case of Hall v. Lorente it was held, that a condition might be performed and a party put in default sixteen years after the party had acquired the right to demand a performance. See 3 An. 2'75.

The lawgiver has declared, that the vendee shall have the right to bring his action of redhibition at any time within one year after the sale, and in some cases, within one year after he has discovered the vice. C. 0. 2512, 2524. Now, when the lawgiver has conceded the action, he has conceded the right to make all demands and tenders necessary to make the action available. Q.ui concedit aliquid, concedit omne sine quo, concessio est irrita.

The lawgiver has not said that the vendee shall have an action if he makes a tender and demand as soon as he discovers the vice which gives rise to his action; but has declared that he may bring his action at any time 'within the year. The courts cannot distinguish where the lawgiver has not distinguished. Where, then, is the text of law, or the well considered authority, which adds this new condition to this otherwise clear principle of law ? I am aware of none. That the lawgiver never intended such a condition, is evident, I think, from the two Articles already cited.

One provides that, where the seller, not being domiciled in the State, absents himself before the expiration of the year following the sale, the prescription remains suspended during his absence. Now, the cause of action is declared to exist without any putting in morn previous to his departure.

The other Article declares, that if the seller knew the vice, the action of redhi-bition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. 0. 0. 2524. Here again, the action continues a year after the vice has been discovered, and the lawgiver has annexed no proviso that the vendee shall make a demand and tender the first opportunity, or within a reasonable time. He has the entire year after the discovery, to make the demand and bring his suit.

So of the case before us. The plaintiff had the entire year in which to make the tender, and demand the rescission. The defendant could not deprive him of that right by absenting himself from the State. If the tender and demand became impossible by the act of the defendant, his act cannot be permitted to prejudice the plaintiff’s right.

In the case of Smith v. Taylor, 10 Rob. 133, it wa,s held that the vendee could not be deprived of any part of the year, even by a casualty, and that although he had had eleven months and twenty-nine days in which he might have brought his action, he was entitled to the last day of the twelfth month, and as it was not possible, owing to the absence of the clerk, to file his suit that day, his right should be suspended until the impediment was removed. The court said “ The plaintiff had until the last day of the year to commence proceedings, and was not obliged to procure process of citation before.”

So in the case of Dixon v. Chadwick, 11 An., tlie plaintiff had at first sufficient time to have tendered the slaves to the defendant; but as they died before the expiration of the year, their delivery became impossible before plaintiff’s right had become barred by prescription.

The proof of the contract of sale by parol did not vary the rights of tlie parties in that case. The question which we now have under consideration was discussed, and the opinion of the majority of the court received my unhesitating concurrence on this question alone, and met with Mr. Justice Spofford’s dissent. What other considerations may have operated upon the minds of other judges, I do .not pretend to know. I know no provision of law requiring' a tender after suit brought. The decree could produce the effect intended by the tender.

I am of the opinion that the defendant, in this case, must have known of tlie redhibitory defect, and I can see no reason why he should be permitted to defraud tlie plaintiff out of the price of the slave. The District Judge, who saw and heard the witnesses testify, has found for the plaintiff, and 1 do not think his judgment ought to be disturbed.