author: Slidell, O. J.

text:
    President and Directors of the Bank of Louisiana v. Christopher Ford.—Louisa W. Ford, Executrix, Opponent.—Hewitt & Heran Plaintiffs in Monition and Appellants.
    F. died, leaving a will, by which he constituted Mrs. 3?. his executrix and univeral legatee. She qualified as executrix — but took no other judicial proceedings* — subsequently as heir, she sold to J. her interest in the estate, warranting the title to the property; J. covenanting to pay the debts, and gave him a full power of attorney to administer and sell. At a sale of the property provoked by a mortgage creditor, H. & H. became the purchasers, for $66,000. The executrix opposed the sale. By the Omri. — It does not appear that the succession is insolvent, and the debts to the unpaid creditors appear to amount to not more than $4,000. None of them are personally parties to this controversy, nor does the evidence satisfy us that their interests would be promoted by opening the sale. Under these circumstances, we think it would be inequitable to permit the sale to be questioned by the executrix.
    APPEAL from the Fifth District Oourt of New Orleans, I/i/oingston, J.

      Poole & Boselius, for opponent. Illsley, 6?. B. Duncan, and <?. Fustis, for appellant.
   Slidell, O. J.

(Voorhies, J., and Buchanan, J., absent.)

Hewitt & Heran are the bona fide purchasers at a judicial sale of a plantation and slaves. The sale was effected at the instance of a mortgage creditor. The price at which it was adjudicated was $66,000, which appears to have been a fair one. This price has been paid to the mortgage creditors, and the purchasers having gone into possession have expended a large amount of money, say $40,000, in improvements of the estate. No one objects to this sale but Mrs. Ford, in her capacity of testamentary executrix, and her opposition rests upon alleged infor-malities in the proceedings.

The only point which we deem it necessary to direct our attention is, whether under the circumstances, Mrs. Ford, in her capacity of executix, should be heard to question the regularity of this sale.

Her husband, Ford, the mortgage debtor, died leaving a will by which he made Mrs. Ford his sole universal legatee, and appointed her executrix, but without giving her seizin as such. She had the will probated and received letters in April, 1850; but took no other judicial proceedings, not even making an inventory, and has left the State permanently. As heir, she took possession of the estate, and in November, 1850, sold to one liter, her interest as heir for $5000, she warranting the title of all the property, and he covenanting with her to pay all the debts. On the same day, in her capacity of sole heir and executrix, she gave him a full power of attorney to administer, sell and dispose of all the property of the succession. Soon afterwards, the Bank of Louisiana took out an order of seizure and sale on its mortgage, and the property was adjudicated at Sheriff’s sale to Jiter for $70,000 ; but he not complying with the terms of his bid, it was adjudicated to Hewitt & Hercm for $60,000, who sc-t-tied with the mortgage creditors and went into possession as above stated. It does not appear that the succession is insolvent, and the debts to unpaid creditors appear to amount to not more than $4000. None of them are personally parties to this controversy, nor does the evidence satisfy us that their interests would be promoted by opening the sale.

Under these circumstances we think it inequitable to permit this sale to be questioned by the executrix, whom we consider as merely attempting to aid Jiter, her vendee and agent, in a speculation at the expense of these bona fide purchasers, under the guise of representing a small minority of the creditors whom she personally and Jiter are bound to pay. It is obvious under the facts above stated, that neither of them, Jiter and Mrs. Ford, would be permitted personally to question the sale on the score of the alleged informalities.

It is therefore decreed that the judgment of the District Court upon the opposition of said Louisa Ford, testamentary executrix of Christopher Ford’s will, be reversed, and that said opposition be dismissed, the costs thereof in both courts to be paid by said opponent. This decree being- made without prejudice to the rights of creditors of said succession, if any they have, to sue for the recission of said judicial sale.


source: Caselaw Access Project

author:
Ogden, J.
      Emerson & Huntington,

license: Public Domain

text:
    David A. Wogan v. W. W. Thompson.
    Insufficiency of demand of payment of promissory note to bind the endorser.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Ooold & StansburyT for plaintiff. Emerson & Huntington, for defendant and appellant.
   Ogden, J.

(Voomiies,, J.,. absent.)

The defendant relies for reversal of the judgment against him, on insufficiency of evidence to establish that the note was duly presented and payment demanded of the makers so as to charge him as endorser. The makers of the note were Oashin <& Go., a commercial firm composed of R. W. Oashin and- Thornton & Payne, At the maturity of the note, Oashin was dead, his administratrix had removed from the State, Thornton had absconded, and the Notary appears to have made the most diligent enquiry for the proper persons from whom to make a demand. He demanded payment of the syndic of the creditors of Thornton & Payne at their store, and also of the clerk, and on the afternoon of the same day Payne, one of the partners, understanding the Notary had been looking for him, called at the Notary’s office and told him he could not pay the note.

There seems to us to be no ground for objection to the testimony of the Notary, and that the case was fully made out on the part of plaintiff.

It is therefore ordered, adjugod and decreed that the judgment of the court be affirmed with costs, and thirty-five dollars damages for a frivolous appeal.

Emerson & Huntington,

for a rehearing.

The Notary states that he made careful search and diligent enquiries to find Oashin & Oo. This is not sufficient, as all of the authorities state. He should have specified what efforts he made and where he enquii-ed.

He swears positively that he made no efforts to find Thornton’s domicil, and on p. 11, he says, “I asked no one about the domicil of Fayne, except those in the store and at the boarding house mentioned, and Mr. Worjan, the holder, and I looked in the directory.”

His testimony shows, that he asked no one in the store about the domicil, except the person he calls the clerk, whose name ho admits he did not know, and who is fully proved not to have been a clerk of the drawees, but merely a clerk of the syndic.

In Landry v. Stansbury, 10 L. R. 487, the court say, that a demand of an administrator is insufficient, because ho would not be authorized to pay the note, &c. The syndic is not an agent or representative of the insolvent, but of the creditors, and therefore not being authorized to pay, a demand of him was useless. As to the person called the clerk, it is fully and clearly proved, that he was not a clerk of the insolvent, (See Admissions, p. 12,) of what avail then was it, to make demand of him?

The insolvents had surrendered their property and the store contents wore in the hands of the syndic. See p. 12. It was not their place of business, and they had abandoned it. Demand there was therefore insufficient. Louisiana State Insurance Co. v. Shamburg, 2 N. L. 511. Bayley on Bills, edition of 1836, p. 200. Bond v. Farnham, 5 Mass. 170, and Freeman v. Boynton, 7 Mass. 483. Story on Bills, p. 409, sec. 351.

One of the makers being dead, demand should have boon made of the survivors. Story on Bills, p. 425, sec. 362. Cayuga Bank v. Hunt, 2 Hill N. Y. R. 635.

As to these we respectfully refer to the authorities cited in our brief, p. 7, and especially to the case in 4 Howard, 262.

The uniform practice has boon to give damages only when the appeal was clearly made for delay, and never when the appellant may have fairly doubted the correctness of the judgment below. See cases cited in Ilcnnen’s Digest, p. 105, No. 3. We assure the court that this case was appealed by our advice, under a full conviction that the judgmeut was erroneous, and not lor delay.

Rehearing refused.


author: Buchanan, J.

text:
    State of Louisiana v. The Judge of the Second District Court of New Orleans. Widow Benjamin Poydras praying for a Mandamus.
    Plaintiff sued out execution against the heirs of Poydras, A rule was taken by the relator to set aside the execution on the ground, that execution could not be granted against a succession belonging to minors — accepted by the minors with thebenefit of inventory. The rule was dismissed, and the District Court refusing a suspensive appeal, a manclwmis was prayed for. By the Coivi't: The right of the plaintiff to execute the judgment which he has obtained for a sum of money can only be suspended upon a petition, affidavit and bond given for injunction. 0. P. 29S.
    The laws of 1S81 and 1838, relative to injunction of execution, afford a direct remedy against the securities in injunction bonds, which is not accorded in case of appeal bonds, i\t<mdmnus refused.
    JjlOR the relator, Janin.

   Buchanan, J.

The State of Louisiana sued the heirs of Benjamin Foydras for a large sum of money, and recovered judgment against them for the same. On appeal, the judgment was affirmed by this court; and when the decree of this court was recorded in that of the first instance, the counsel of plaintiff ordered a writ of fl. fa. to issue, which was done accordingly. Thereupon, Louis Janin, Fsq., of counsel for defendants, took a rule in the name of the present relator upon the Treasurer of the State, to_show cause, on a day named in the rule, why the execution should not be set aside, on the ground that the same was issued contrary to law, and should not have been granted against a sucoessiotl belonging to minors, and accepted by them under the benefit of an inventory only, the law prescribing a different remedy in such cases. No stay of proceedings was ordered pending the rule ; no application was made for an injunction. After issue joined and argument, the rule was dismissed; and the mover in the rule applied for a suspensive appeal from the judgment dismissing the rule, which was refused by the District Judge.

The relator, upon this state of facts, has applied to this court for a writ of mandamus to the District Judge, “ requiring him to allow a suspensive appeal in the premises.”

The application is inadmissible on the face of the petition. The relator desires to substitute an appeal in the place of an injunction. That cannot be consistently with existing laws. The right of the plaintiff to execute the judgment which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond given for injunction. Code of Practice, 304. Amendment of Article 298 of the Code of Practice, Act of 7th April, 1826, section 9. The laws of 1831 and 1833, relative to injunction of executions, afford a direct remedy against the securities in injunction bonds, which is not accorded in the case of appeal bonds.

Again, it is the province of the Judge of the court which has recorded the judgment, to decide in the first instance, upon the presentation of a petition to that effect, whether a legal cause for the issuance of the writ of injunction exists, by reason of illegality in the execution of the judgment previously rendered and affirmed by this court. O. P. 617, 623, 629. The jurisdiction of the District Court, in virtue of those articles, over the subject matter, cannot be evaded, in the mode sought by the relator.

Mandamus refused, at costs of relator.


text:
    Dennis Cronan v. Executors of John McDonogh et al.
    Suit against executors involving title to land — Held: The universal legatees should have been made parties.
    APPEAL from the Second District Court of New Orleans, Lea, J.
    £r. B. Duncan, for plaintiff. Boselius and Grivot, for defendant and appellant.
   Slidell, O. J.

(Voorhies, J., absent.)

The suit presents a contest respecting the title of real estate, and resulted in the court below in a decree adverse to the succession of McDonogh. We think the exception pleaded by the executors and reiterated in their answer, that they were without capacity to stand in judgment alone in this controversy, should have been sustained. The universal legatees of McDonogh, should have been made parties with them. C. P. 123.

Judgment reversed, cost of appeal to be paid by plaintiff, and cause remanded, with leave to make the universal legatees of McDonogh parties.


author: Ogden, J.

text:
    Charles Robinson et al. v. James P. Freret, Sheriff, et al.
    Construction of a lease.
    Petition for injunction to stay a sale, in the answer to which damages were asked on the injunction bond against principal and sureties. By the Com't;

    The injunction does not arrest a judgment for the payment of money; the Act of 1831 was, therefore, inapplicable, and the surety was not a party to the suit. The answer does not contain a re-conYentional demand for damages arising eso delicto — but sets up a claim for damages on the bond against the principal and surety — which cannot be done in the same suit in which the injunction was granted, unless it is a case arising under the provisions of the Act of 1831, where a judgment for money is enjoined.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      Rurel and Roselius, for plaintiffs and appellants. Mott & Fraser, and Hunton & Bradford, for defendants.
   Ogden, J.

(Voorhies, J., and Buchanan, J., absent.)

In a suit of the Pelican Dry Dock Company, against Robinson, Hyde & Maekie, in which the company, among other things, demanded the sale of a lease of certain lots of ground in Algiers, for a division of interest between the parties; a judgment was rendered by consent, decreeing the sale of the lease of the dock-yard at which the dock of the company was moored. Hyde & Maekie, after the judgment was rendered, sold their interest in the lease to Penneyar & Martin, and they, in conjunction with Robinson, applied for and obtained an injunction to prevent the sale of the lease, which was advertised to be made by the Sheriff, in pursuance of said judgment. The plaintiffs state, in their petition, that they object to a sale, as it would enure to their great damage, and their right to the injunction is placed, in argument, on the ground, that the defendants, the Pelican Dry Dock Company, have no joint interest in the lease, and that no right of theirs was involved in the sale which it is represented in the petition for injunction, was ordered for the purpose of settling the partnership differences between Robinson, Hyde & Maekie. The lease of the ground from J. B. Oliver, agent, &c., was made by notarial act, and after setting forth that the lessors have leased the premises to Robinson, Hyde & Maekie, at an annual rent of two thousand dollars for the term of six years, with a privilege to the lessors of prolonging the lease at their option for a further period of four years, the act goes on to recite, that the chairman of the board of managers of the Pelican Dry Dock Company had intervened in the act, and declared that it had been agreed between them and the lessors, that the sectional floating dry dock of the company, should be located in front of the lots thus leased, with the privilege and right of the company to use the same for the purpose of carrying out its operation during the term of the lease and the renewal, if any, of the same, on the condition that the company contribute for one-half of the rent, as stipulated in the lease. Immediately after that declaration by this party intervening in the act, is a clause in the following words : “ And that accordingly acting as aforesaid, he does hereby bind and obligate the said Pelican Dry Dock Company to pay punctually, in the manner above expressed, the one-half of the aforesaid rent to be paid by the above named lessees; and hereby furthermore binding the said company unto and in favor of the above named lessors, as security for the said lessees, to the extent of one-half of the rent aforesaid ; all of which is hereby accepted by the said Jean Baptiste Oliver, in his said capacity.”

The record is extremely voluminous, embraces other matter having a connection with the subject, but which we omit to state, as they are not material for properly understanding- the question to be decided, which relates to the proper construction of the above clause in the lease. It is conceded, that if under that clause in the lease, the defendants contracted the obligation of sureties for Robinson, Hyde& Maehie, they had such an interest in the lease as entitled them to have it sold. Wo consider that, taken in connection with other parts of the act, it evidences a sub-lease by Robinson, Hyde <& Maeltie, to the defendants, of such portion of the promises as should be necessary to locate their dock and carry out its operations, for which the company bound themselves in favor of the lessors, to contribute one-half of the annual rent; it further evidences the assent of the lessor to this sub-lease, on the condition, that to the extent of one-half of the annual rent for the whole term, the company should be responsible to the lessor as the security of the lessees; so that, if from any cause the sub-lease should bo afterwards rescinded and the company released from their obligations in favor of the lessees, they should still remain bound and liable to the lessor as the securities of the lessees, for one-half of the rent. The lessor had a right to impose this as a condition of his assent to the sub-lease, and it is expressed in clear and unequivocal language. The company did not bind themselves to pay to the lessor one-half of the annual rent — the obligation to pay the one-half of the rent was an obligation contracted in favor of the lessees as the consideration for the sub-lease of such portion of the premises as was necessary to carry on this business of the company. The clause by which the company furthermore bind themselves as sureties for the lessees, for one-half of the rent, shows that the parties did not understand that a direct obligation was contracted by the company in favor of the lessor to pay half the rent — the suretyship on the part of the company, so far as the lessor was concerned, was the real obligation entered into in substance as -well as in form, and while we agree with the counsel for the plaintiff's, that the denomination of a contract by a particular name, does not necessarily determine its true character, we think it is clear that the parties in this instance, contemplated precisely such a contract as they styled this to be. It is further to bo added, that the sub-lease did not exclude the lessees from the employment of such portion of the promises, as was not required for the business of the company, and that there was therefore such a joint interest in the lease, as the lessors acknowleged, when they consented to a judgment being-entered up on the motion of the defendants, and in conformity with the prayer of their petition for a sale, to effect a division of interest between them. We think there was no ground for the injunction by which the sale was arrested. The defendants have asked for an amendment of the judgment of the court below in their favor, awarding them damages as claimed in their answer. It is averred in the answer, that the injunction was vexatious, illegal and wrongful, and had caused damages to the defendants in the sum of §300, for which judgment is prayed against the plaintiff and their sureties in the injunction bond in solido.

The injunction did not arrest a judgment for’ the payment of money — the Act of 1831 was therefore inapplicable, and the surety was not a party to the suit. The answer does not contain a rcconventional demand for damages, arising ex delieio, but sets up a claim for damages on the bond, against both principal and surety, which cannot be done in the same suit, in which the injunction was granted, unless it is a case arising under the provisions of the Act of 1831, when a judgment for the payment of money is enforced. We will, however, amend the judgment so far as to reserve to the plaintiffs the right of suing for damages in a separate action.

It is therefore ordered and adjudged, that the judgment of the court below bo amended, by reserving to the plaintiffs the right to sue for damages for the wrongful issuing- of the injunction ; and that so amended, the judgment of the court below be affirmed, with costs in both courts.


author: Slidell, O. J..

text:
    State v. J. Rebassa.
    The law requiring the keep'ers of coffee-houses to pay $6T for a license, is constitutional; it operates uniformly upon all persons of tlie same class, to wit, keepers of coffee-houses,
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J,
    Gaiennié, for plaintiff. Garrol,. for defendant and appellant
   Slidell, O. J..

(Voohhies, J., and Buciianah,. J.,- absent.)

This suit was brought before a Justice of the Peace to recover $07, for the defendant’s State license, as keeper of a coffee house, for the year 1852.- On appeal by the defendant to the District Court, two points were made. 1st.- That the law giving the tax collector the right of seizing and selling the property of those who are assessed for taxes, is unconstitutional. 2d. That the tax on different kinds of retailers not being uniform, the tax is unconstitutional. The District Judge affirmed the judgment, and the defendant appealed to this court.

Of the first point we have no jurisdiction in this cause. The amount in dispute not exceeding $300, our jurisdiction is confined to the question of the constitutionality and legality of the tax. Albert v. Brewer, 9 An. 64. Constitution, Art. 02.

If we consider this class of exactions as falling within the purview of the first clause of Article 123, still we think it constitutional; because it operates uniformly upon all persons of the same class, to wit, all keepers of coffeehouses. The defendant is required to pay the State what other keepers of coffee-houses are required to pay, no more and no less. See State v. Poydras, 9 Annual.

It is therefore ordered that the appellant take nothing by his appeal, and that he pay the cost thereof.


author: Slidell, C. J.

text:
    State v. Thomas Hawthorn et als.
    Witnesses for* the accused to contradict a witness for the State who had denied, on cross*-exammation, having sworn to certain statements, cannot be heard after the testimony on the part of the defence is closed, and after the District Attorney has offered testimony to sustain the character of the State’s witness, but which he had withdrawn upon the defendants’ counsel stating that he had no intention to impeach the character of the witness.
    APPEAL from the First District Court of New Orleans. Robertson, J.
    Attorney General, for the State. Larue & Whittaker, Budd and Lambert, for appellants.
   Slidell, C. J.

Under the circumstances stated in the bill of exceptions, we think the District Judge did not err in refusing to receive the testimony offered. Judgment affirmed, with costs.

Bill of exceptions alluded to by the court:

Be it remembered that on the trial of this case, the testimony of A! Dennis was taken for the prosecution, and in the cross-examination he was asked whether he did not on a day named, before the Recorder of the Second District of New Orleans, swear that he had kicked Hamilton Rowan, on the day in question, on his breast and hands, as he was about ascending from the main to the poop deck; that he answered, no; whereupon Recorder Ramos, of the Second District, and Henry (7. Reiley wore offered by defendants to contradict said testimony. It was objected to by the District Attorney; the objection was sustained by the court, and defendants, through their counsel excepted to said decision.

By the Oourt. — These witnesses were introduced after the testimony had been closed on the part of the defence, and after the District Attorney had offered testimony to sustain the character of the State’s witness, Capt. Dennis, but which he had withdrawn, upon defendants’ counsel stating that they had no intention to impeach the character of the witness. The court believes that to prove a witness has sworn falsely is an attack upon the character of the witness.

(Signed)

J. B. Robertson, Judge.


text:
    Succession of Henry Puck.-Henry Clausen, Under Tutor, Appellant.
    The widow having contracted a second marriage, without being continued in the tutorship by a family meeting, the tutorship is forfeited, and she cannot be reinstated as natural tutrix, but must give bond as dative tutrix.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Budd, for the under-tutor, appellant. VanDalsen, for appellee.
   Buchanan, J.

(Voorhies, J., absent.)

The widow Buck having married again without causing a family meeting to be previously convened for the purpose of continuing her in the tutorship by nature, was deprived of the same by judgment of court. She subsequently prayed that a family meeting might be convened for the purpose of naming a tutor or tutrix to her minor child, Adelaide Puck. The family meeting was held accordingly, and recommended that Mrs. Spindler (widow PueTS) should he reinstated as natural tutrix. The proceedings of the family meeting were homologated, and the under-tutor has appealed from the judgment of homologation.

The family meeting erred in recommending that the mother should he reinstated as natural tutrix. The law does not sanction such a proceeding. The right of natural tutorship being forfeited by a second marriage, the mother could not be appointed, except as dative tutrix, and upon the condition of giving bond as dative tutrix. See Webb v. Webb, 5 An. This is the construction which we put upon the vote of the family meeting; agreeing in that respect with the views of the District Judge, as expressed in his conclusions in the decision of a rule to set aside the judgment of homologation; which rule was properly dismissed by the lower court as irregular.

The judgment dismissing the rule is affirmed; that homologating the proceedings of the family meeting is amended, by requiring Mrs. Spindler, the mother of the minor, to give security as required for a dative tutor, within ten days from the recording of this decree in the District Court. The costs of the rule to dismiss, in the District Court to he paid by the appellant, and those of this Court by the appellee.


text:
    State v. Jones.

      Holmes and Jones agreed to purchase a schooner on joint account. Holmes gave Jones his note for one-half the purchase money to be delivered to the owner of the schooner, which note Jones converted to his own use. Held: This was a breach of trust under the Statute of March 8th, 1845.
    APPEAL from the First District Court of New Orleans, Lwrue, J.

      A. P. Field and Morse, Attorney General, for the Stale. VanDahen, for defendant and appellant.
   Ogden, J.

The defendant having been indicted and convicted of a breach of trust, under the Statute of the 8th of March, 1845, brings the case up on an exception to the refusal of the Judge below to charge the jury, that if they believed from the evidence that there was an agreement between Holmes, the prosecutor, and the defendant to purchase a schooner on joint account, and that Holmes had placed a note in defendant’s hands to be delivered to the owner of the schooner, in payment of his half of the price, but which note the defendant had not delivered, hut negotiated, then it was not a breach of trust under the Statute.

The court refused to give that charge on the ground that it did not apply to the case, and correctly charged the jury what are the essential ingredients to constitute the offence.

We think the court did not err. The agreement between Holmes and Jones to purchase the schooner on joint account did not deprive the transaction of the character of an agency, undertaken by Jones for Holmes in purchasing the one-half interest in the schooner for him.

The judgment, of the court below is therefore affirmed with costs.


author: Campbell, J.

text:
    State v. William Johnson and Andrew Melville.
    A man’s concubine is a competent witness in his behalf.
    APPEAL from the Pirst District Court of New Orleans, Robertson, J.

      Morse, (Attorney General,) for the State. Waples, for defendant and appellant.
   Campbell, J.

(Voorhibs, J., and Buciianan, J., absent.)

The only question for our decision, is presented in a bill of exceptions taken by the defendants, on their trial for murder, to the refusal by the court to permit Martha Field, who was offered as a witness, to be sworn and examined in their behalf.

In answer to questions propounded to her on her voir dire, she declared that she had lived with Melville, one of the accused, as man and wife, for four years; but that she had never been his wife — had never been married to him.

We think the Judge erred in deciding that these facts destroyed the competency of the witness. .In our opinion, they affected her credibility only. She not only declares herself not to be the wife of the prisoner Melville, but for ought that appears, the parties never were reputed to be husband and wife, or supposed themselves married, or that she bore his name, or that either of them ever acknowledged or avowed that that relation existed between them. The answers convey to our minds the idea, that though they lived together as man and wife, that is, cohabited, she was his concubine or kept mistress, and not his wife.

The facts do not bring the case within the questionable rule invoked by the State, as established by the decision of Lord Kenyon, when Chief Justice of Chester, which decision seems never to have been reported, but is stated by Richards, Chief Baron, in Campbell v. Tremlows, 1st Prier, 81. In that case, the woman had for a long time cohabited with the man, and was acknowledged and passed as his wife. Even under these circumstances, her incapacity has not only been doubted, but it is believed the current of authority is against the decision. Wharton’s Orim. Law, p. 290.

The rule excluding husband and wife as witnesses for or against each other, is founded chiefly on principies of public policy, which lie at the foundation of civil society ; and its disregard would tend, by destroying the confidence which should always subsist in that sacred relation, to impair its sanctity.

“ This rule of protection,” remarks the late Dr. Greenleaf, in his admirable treatise on the Law of Evidence, vol. 1, s. 389, “ is extended only to lawful marriages, or at least, to such as are innocent in the- eye of the law.” “ If,” he adds, “ the cohabitation is clearly of an immoral character, as, for example, in the case of a kept mistress, the parties are competent witnesses for and against each other.” This doctrine is asserted in the case of Batthews v. Galindo, 4 Bing. 610, and was adopted by our own courts as the true rule, at an early day.

In the case of M. Cornier v. Couet, 2 M. R. p. 56, a witness having been objected to, on the ground that defendant lived with him as his wife, though they were not married, was permitted to testify; the court holding that this went only to the witness’ credit, not to his competencjL We assent to the correctness of this decision, and are unwilling to disturb it.

It is for these reasons ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and this case remanded for a new trial, with instructions to the said court not to reject Martha Field, as. a witness in behalf of defendants, on the ground stated, and otherwise to proceed in conformity with law and the opinions herein expressed.


text:
    Legget & Brothers v. H. L. Potter.
    Where a devolutive appeal has been taken, it is a waiver of the right to a suspensive appeal, and plaintiff may have execution before the lapse of ten days.
    APPEAL from the Eourth District Court of New Orleans, Beynolds, J.

      Elmore & King, for plaintiffs and appellants. Benjamin, Miaou & Finny, for defendant.
   Campbell, J.

On the 1st of December, 1853, final judgment was rendered in favor of plaintiffs.

On the next day, defendant applied for and obtained a devolutive appeal.

The day following, (December 3d) plaintiffs issued execution.

On the 6th of the same month, defendant took a rule on plaintiffs to show cause why the execution should not be quashed, on the ground that it was prematurely issued, and the rule having been made absolute, plaintiffs appealed.

The question presented is, whether (the case being appealable) plaintiffs were warranted in issuing execution until after the expiration of ten days from the notification of judgment?

The act was manifestly irregular, unless by taking a devolutive appeal, defendant is to be regarded as having waived the delay. The object of the delay is, that the party against whom judgment has been rendered, may have time to consider whether or not he will take a suspensive appeal, and, in case he shall do so, to allow him a reasonable time to procure his security, and do such other acts as may be necessary. This reasonable time is ten days. It is for the benefit of the judgment debtor; but like any other privilege, may be waived; and this waiver, together with the waiver of a suspensive appeal, we think was virtually made, when defendant obtained his devolutive appeal. The appeal was granted and the appellee duly cited ; and it is well settled, that by the fact of citation, the jurisdiction of the appellate court attaches, and that of the District Court is, except for certain special purposes, divested. See Hen. Dig. p. 73, verbo Appeal, vii, No. 8, and the authorities there cited. Nor could the appellant, under these circumstances, dismiss the appeal, without the consent of the appellee.

The conclusion to which we have arrived, is supported by the ruling of the court in Hatch v. English, 12 R. 136, in which it was held, that though a defendant, against whom afi. fa. has issued, before notice ofjudgment, may have it quashed, and a suspensive appeal allowed ; yet, if he contents himself with taking a devolutive appeal only, he cannot afterwards complain.

It is for these reasons, adjudged and decreed, that the judgment of the District court, be annulled and reversed; and that there be judgment in favor of the appellant, discharging the rule and reinstating the execution. The costs of both courts to be paid by appellee.


text:
    Tufts, Fermor & Co. v. Joseph R. Beard.—S. Hollingsworth, Opponent.
    An order of seizure and sale cannot be granted without evidence of the assignment of the note, or mortgage — both of which, to justify proceedings via executvva, should be made to appear by authentic act. The Judge can take cognizance of no matter resting en pcois.

    APPEAL from the District Court of the Parish of Jefferson, Cla/rke, J.

      Goold, for plaintiff. Walker & De France, for opponent and appellant.
   Campbell, J.

(Vooruies, J., and Buchanan, J., absent.)

Tufts, Fermor & Go., claiming by virtue of various endorsements, to be the holders and owners of certain mortgage notes, signed by J. B. Beo/rd and payable to his own order, and endorsed by said Beard and others, obtained, upon exhibiting said notes, with a copy of a public act of mortgage (with which they were identified) from Beard to Henry Blood, an order for the seizure of the mortgaged pro-property. Under this order, a sale was made and the property adjudicated to John Steep.

From this order, decreeing the sale of the mortgaged property, S. Hollings-worth, who claims to be the owner of the property seized and sold, has taken this appeal.

Appellant claims that the judgment ordering the sale of the property b e reversed; that the proceedings under it be annulled, and he restored to the possession of his property.

The order of seizure and sale was improperly made by the Judge below, it having been granted without evidence of assignment to petitioners of either the notes or mortgage — both of which, to justify proceedings via executiv a, should have been made to appear by authentic act. The Judge can take cognizance of no matters resting en pais. Fitzwilliams v. Wilcox, 7 R. 303. Lee v. Drummond, 4 L. 321. French v. Mechanics' and Traders' Bank, 4 An. 152.

Steep, to whom the property was adjudicated, not being before us, we cannot inquire, on this appeal, into matters subsequent to the order directing the seizure and sale. Any relief to which the appellant may be entitled for alleged irregularities after the judgment, must be sought by a direct action.

It is ordered, adjudged and decreed, that the order of seizure and sale appealed from be annulled, reversed and set aside, and the suit dismissed at the costs of appellant.


text:
    Elizabeth Brown, wife of John F. Clew, v. George L. Brown, Executor.
    It is not necessary, in order to make an appeal suspensive, that the costs should be included in the amount of the bond.
    O. P., 5T5
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin & Mieou, for plaintiff. D. N. Hennen, for defendant and appellant.
   Ogden, J.

(Voorhies, J., absent.)

The question involved is, whether, to render an appeal suspensive, under Art. 575 of the Oode of Practice, the costs must be included in estimating the specific sum for which the judgment was rendered. The costs of suit are due to him in whose favor a judgment has been rendered, as a consequence of the judgment and without being claimed in the petition or mentioned in the judgment, and they are to be taxed when the judgment comes to be executed. O. P., Arts. 157, 551, 552.

It has not been the practice to include them in estimating the specific sum for which the judgment was rendered. In the case of Ross v. Pagoud, 2 L. R., 85, a judicial interpretation was given to the law on this subject, by which it was determined that the interest, accrued up to the rendition of the judgment, should bo included as part of the judgment. If the costs had been considered as part of the judgment, the court would have said so; but so far as we are informed, such an interpretation was never before contended for, and the practice has been in conformity with that decision.

A bond being required, exceeding by one-half, the judgment, including interest accrued to the date of its rendition, the appellee is well secured under that interpretation, for the costs and all future interest.

Judgment is therefore affirmed with costs.


author: Buchanan, J. Slidell, C. J.

text:
    S. O. Nelson & Co. v. John C. Simpson—Hill, McLean & Co., Appellants.—Bradley, Wilson & Co., Prehn, Clegg & Co. and S. O. Nelson & Co., Appellees.
    An attachment by mesne process can be legally made only in one of two ways: either by the actual seizure and detention of the property of the debtor, or by garnishment process; that is to say; by service of citation upon the debtor of defendant.
    An exception, probably, exists to this rule, where a man attaches a debt due by himself to the person whom he sues; but this exception is eco Tteoessitate, the quality of the debtor and creditor being blended in the same person.
    A garnishment undery?er£./fcicfoi$, under the provisions of the Act of 1889, is, by the terms of the Act, deemed to be made only from the date of the service of the interrogatories.
    Plaintiffs sold certain bales of cotton to defendant, upon which P. & 0. made advances, received the bills of lading and warehouse receipt, and took possession of the cotton. Defendant did not pay for the cotton, and plaintiff sequestered the cotton, claiming vendor’s privilege. P. & 0. bonded the cotton. Subsequently other creditors of defendant sued out attachments. P. & C. shipped the cotton to Liverpool. After re-imbursing themselves, there was a balance in the hands of P. & 0. j"By fke Court. — this balance P/wm, Clegg & Co. hold for defendant or for any of his creditors to whom the court may adjudge it. Their possession is not a possession adverse to that of the plaintiff vendee. The proceeds of the goods represent the goods-, at least for the surplus due defendant in account current.
    If the vendee sell the goods before he has paid for them, the money due by the second vendee will represent the goods, and the first vendor’s privilege will attach thereon.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Semmes & Kdwards, for Kill, McLean & Oo. and Bradley, Wilson & Go. Clark axAHunton & Bradford, for appellees.
   Buchanan, J.

(Voorhies, J., absent.)

Writs of attachment were issued by the plaintiffs, and by two other creditors of the defendant, on the same day, the 9th June, 1851.

They were executed as follows :

That of plaintiffs by a general notice of seizure of moneys, effects, rights and credits, in the hands of Prehn, Glegg & Go., on the 9th June, 1851.

That of Hill, MoLean & Go. by a general notice of seizure in the hands of the same parties, on the same day, but at a later hour than that of plaintiffs; and also by service of citation, petition and interrogatories to Prehn, Glegg & Go., as garnishees, on the the 14th June, 1851,

That of Bradley, Wilson & Go. by service of petition, citation and interrogatories to Prehn, Glegg & Go., as garnishee, on the 12th June, 1851.

All of these attaching creditors have obtained judgments against the defendant, and upon a rule to which they were all parties, it was decreed by the District Court that the funds in the hands of Prehn, Glegg & Go. be paid to Bradley, Wilson & Go., as being the first to make the garnishees parties by actual citation. From this judgment the plaintiffs and Hill, MoLean & Go. have appealed.

It has been settled by two decisions in 6th Annual (Stockton v. Downey and Page v. Ginens) that an attachment by mesne process can only be legally made in one of two ways: either by the actual seizure and detention of the property of the debtor, or by garnishment process, that is to say, service of citation upon the debtor of the defendant. An exception probably exists to this rule, where a man attaches a debt due by himself to the person whom he sues ; but then the exception is ex necessitate, the quality of the debtor and creditor being blended in the same person; and the idea of a man citing himself to appear and answer to his own demand, being an absurdity.

In the present case there has been no actual seizure and detention of the debtor’s property under any of the attachments. But in two of them there was garnishment process, under the writs of attachment and before judgment, as required by Art. 250 of the Code of Pi’actice. The plaintiff also issued garnishment process, but not under his writ of attachment. His garnishment was under th a fieri facias issuod in execution of his judgment, and was based upon the Act of 1839 (Session Acts 166.) By the terms of that statute, his levy was only deemed to be made from the date of the service of his interrogatories, consequently long after the attachment in the other two cases.

Plaintiffs also claim the vendor’s privilege upon a portion of the funds in the hands of Prehn, Glegg & Go. This claim is resisted on the ground that the property sold was no longer in the possession of their vendee, the defendant, when the suit was brought, and that the privilege of vendor was consequently lost under the Art. 3194 of the Code.

The demand of plaintiffs is based upon a sale of cotton. Defendant managed to obtain delivery of the cotton without paying for it, and procured advances upon it, from Prehn, Glegg & Go., by putting the latter in possession of bills of lading and cotton press receipts for the property. The plaintiffs sued out a sequestration, alleging privilege of vendor, under which they sequestered, on board ships in port, two hundred and forty-one bales cotton ; and at a cotton press one hundred and one bales more, being a portion of those sold by them to defendant. The property thus sequestered was bonded by Prehn, Glegg & Go., on the 11th June, 1851, before the attachments of Bradley, Wilson & Go. or Hill, McLean & Go. were levied. Prehn, Glegg & Go., after bonding, forwarded the cotton to their house in Liverpool, who sold there “ on account and risk of John G. Simpson," and have rendered accounts sale, and an account current, showing a balance to the credit of defendant, after re-imbursing themselves, advances and charges, of §1165 51 upon cotton sequestered by plaintiffs.

This balance Prehn, Olegg & Go. hold for defendant, or for any of his creditors to whom the court may adjudge it. Their possession is not a possession adverse to that of the plaintiffs’ vendee, as in the case of Fetter v. Field, 1 An.; Laughlin v. Ganahl, 11th Rob., or Lee v. Galbraith, 5th An. The proceeds of the goods represented the goods, at least for the surplus due defendant in account current. In the case of Thayer v. Goodale, 4th La., the court held that if the vendee sell the goods before he has paid for them, the money due by the second vendee will represent the goods, and the first vendor’s privilege will attach thereon. This dictum of Judge Martin seems applicable to the present case.

The plaintiffs’ claim is limited, as shown by their rule, to the balance due defendant upon the books of Prehn, Olegg & Oo., arising from the sales of the cotton which defendant bought of plaintiffs, being $1165 51, as above stated. This sum they are entitled to receive in preference to the appellees.

Hill, McLean & Co. have also appealed from the judgment, upon the rule for distribution. Their answer to the rule claims the privilege of vendor. That question has been already decided against them, quoad Prehn, Clegg & Co. See 8th An., Hill, McLean & Co. v. Simpson. The decision in that case does not, however, conclude them from reasserting their claim contradictorily with the other attaching creditors of defendant, upon the balanee to the credit of the latter, in the hands of Prehn, Olegg & Oo. Upon the views which we have expressed, they are entitled to a judgment for the portion of that balance, proceeds of the cotton by them sold, being the sum of $3111 85.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that the appellants, S. 0. Nelson & Go., recover out of the fund in the hands oí Prehn, Olegg & Oo., $1165 51; that the appellants, Sill, McLean & Oo., recover out of the same fund $3111 85, and that the appellees, Bradl/y, Wilson & Oo., pay costs of the rule for distribution and the appeal.

Slidell, C. J.

Concurring with my brethren on the subject of the vendor’s privilege, I have not deemed it necessary to form an opinion on the question of the effect of a notice of seizure, unaccompanied by interrogatories, &c., in cases of attachment.


author: Ogdex, J.

text:
    State v. Lewis Lovenstein.
    No distinction is made between the default of a juror who has not appeared, and one who after appearing in court was absent when he was called. In either case if a sufficient number of the panel are present the jury will be completed from them, unless the court, in its discretion, should defer the trial, in order to bring in the defaulting juror by attachment.
    Decision in /State v. MeLam, 4 A. 635, affirmed.
    An assault with a dangerous weapon is punishable under the Act of 1849, though there be no intent to hill.
    Under the Act of 1829, it is not necessary that the weapon with which the assault was made should have been concealed.
    APPEAL from the First District Court of New Orleans, Bóbertson, J.

      Morse, Attorney General:
    1st. An assault with a dangerous weapon, is one offence, and carrying concealed weapons is another, and they are distinct crimes and differently punished. See Acts 1829, Feb. 7, Bullard & Curry, 270.
    2d. In all criminal proceedings in the Criminal Court of the First District for crimes and offences, punishable by not more than two years hard labor, the proceedings may be by information. See Acts 1841, March 8, B. & 0. 282.
    3d. An assault with a dangerous weapon is only punishable by one year at hard labor. Acts 1829, B. & C. 270.
    4th. The court properly refused to delay the trial on account of the absence of Durrive, while the panel was still unexhausted.

      Durant & Horner, for appellant:
    The accused was proceeded against hy the District Attorney in New Orleans, in the way of information, under the 4th section of an Act of 7th February, 1829, B. & 0. Dig. p. 270, for assaulting one Louis Oroizy with a dangerous weapon, &c.
    The prisoner was found guilty by the jury and after an ineffectual attempt to arrest judgment, was sentenced to fine and imprisonment, and has appealed. r First — The appellant complains that the court below refused to allow him the benefit of being tried by the jurors as they were called from the jury list by the Sheriff. It appears that when the jury was being empannelled, the name of Edward Durrive was called as a juror from the list, but he did not answer, and the Sheriff declared that he had left the court room ; the prisoner insisted that Durrive should be presented to him for his choice, but the court refused this demand, and ordered the Sheriff to proceed and call the next juror on the list. See Bill of Exceptions, Record, p. —. In this the court below erred.
    See 1 Chitty’s Criminal Law, p. 532 :
    Ryland’s Crown O. C., page 6.

      Second — The appellant contends that the District Attorney had no right to proceed against him by way of information.
    See Act of March 8, 1841, page 59 ;
    Act of March 12, 1818, B. & C. Dig. page 192;
    Act of January 16, 1821, sec. 3, B. & 0. Dig. p. 193;
    Act of April 2, 1832, B. & C. page 196 ;
    Act of February 10, 1813, B. & C. page 182;
    Act of May 15,1846, page 45 ;
    Act of April 30, 1846, sec. 1, page 32;
    Act of April 30, 1846, sec. 6;
    Act of April 28, 1853, sec. 1, page 190;
    Act of April 28, 1853, sec. 6.
    The last quoted act contains no provisions in regard to informations similar to the Act of 1846.

      Third — The appellant contends that the crime charged in the information is not defined by any statute of the State, and does not make him liable to be punished. See the State v. Mix, 8 Rob. 550.
    The terms “ or with intent to kill” are merely explanatory of the words “ with a dangerous weapon.”
    The French text must now be called in to our aid.
    Constitution of 1852, Art. 129.
    See the French and English texts of sec. 3, Act of 25th March, 1844, page 80.

      Fourth — The appellant contends that the information is defective, because it does not charge that the weapon was concealed.
    See Act of March 25, 1813, 2 Mar. Dig. 264 ;
    Repealing Act of 19th March, 1818, 1 Mar. Dig. 879 ;
    Amending Act of 7th February, 1829, B. & C. Dig. sec. 4, p. 270;

      Montesquieu v. Heil, 4 L. R. 61;
    Laws in pa/ri materia are taken as one.

      Sogers v. Beiller, 3 Martin, 672.

      Me Gar tee v. Orphan Asylum Society, 9 Cowan, 507.
    9 Bacon’s Abridgment, 243 Phil. 1846.

      Pean'ce v. Atwood, 13 Mass. 324.
    This is requiring a strict construction in favor of the appellant, and such is the true spirit in which criminal laws are to be construed.
    See Boston Law Reporter, August 1853, p. 200.

      Beginw v. HaA'tnett, Jebbs Crown Cases, 801.

      Statutes with regard to assault — B. & 0. Dig. p. 259 see. 89, p. 246 sec. 24, p. 248 sec. 82, p. 251 sec. 52, p. 266 sec. 116 and 117.
   Ogdex, J.

(Vookhies, J., absent.)

One of the jurors of the panel who had been in court during the day and preceding the trial of the prisoner, having been called and not appearing, the prisoner objected to the Sheriff’s proceeding to call another juror and requested that the Sheriff should be directed to bring forward the defaulting juror, to bo presented to him. The court having refused to do this and ordered the jury to be empannellod without the absent juror, the prisoner excepted. We think the court did not err. No distinction is made between the default of a juror who has not appeared and one who after appearing has made default. In either case if a sufficient number of the panel are present, the jury will be completed from them, unless the court in its discretion should defer the trial, in order to bring in by attachment the defaulting juror.

The prisoner was convicted under the 4th section of the Act of 1829, of an assault with a dangerous weapon, and moved for .an arrest of judgment on several grounds.

1st. That the proceeding against him by way of information was unautho-rised by law. The point made by counsel in support of this ground was expressly overruled in the case of The State v. McLane, 4th Ann. 435, in which it was decided that the statute of 8th March, 1841, authorizing proceedings by information in certain cases in the Criminal Court of the First District, was applicable to the First District Court of New Orleans, which after the Constitution of 1845, was substituted in place of the former Criminal Court of the First District. The decision in that case does not rest alone on the reason stated among' others, that the Act of 1846, organizing the courts for the parish and city of New Orleans, directed that informations should be filed in the First District Court., and the omission to insert a similar clause in the Act of 1853, organizing- the First District Court of New Orleans, under our present Constitution can not, in our opinion,, have the effect of making any change in the mode of prosecuting offences before that court, as it existed under the laws applicable to the court for which it was substituted.

2d. The next ground relied on, is that the statute of 1849, does not make an assault with a dangerous weapon an offence, unless coupled with the intent to kill, which is not charged in the information. The words of the statute are: “ that whoever shall, with a dangerous weapon, or with intent to kill, make an assault upon another person, &c.” The words or with intent to kill,” it is contended are explanatory of the words “ with a dangerous weapon,” and the French text of the statute in which the conjunction and is used instead of the disjunctive^ or., is relied on in support of this interpretation. In the case of The State v. Mix, 8th Rob. R. 549, the English text was considered by the court as expressing the true meaning of the Legislature, and as being free from any ambiguity. The meaning of the Legislature would appear to be to punish the offence of assaulting another, either with a dangerous weapon or with the intent to kiE even by the use of a weapon not in itself dangerous, but so used as to manifest the intention of killing, thereby creating two distinct and substantive offences. We think the offence was punishable under the statute as charged in the information.

The third and last ground relied on, is that the information is defective, because it does not charge that the weapon was concealed. The statute of 1829, on which the information is based, was an amendment of an Act of 1818, entitled, “ An Act against carrying concealed weapons and going armed in public places in an unnecessary manner,” and it is urged that the Act of 1829, must therefore he taken and construed as if it had been part of the Act amended under the above title and as having reference to concealed weapons. We do not think such an interpretation would be in accordance with the meaning of the Legislature, and the strictest-construction which is invoked in favor of the appellant, would not authorise us to disregard the evident meaning and intention of the statute as derived from its language.

The judgment of the court below is therefore affirmed with costs.


text:
    Richard Suydam v. Henry L. Kinney.
    Change of residence by the maker of a promissory note will not interrupt prescription — where such change is known to the plaintiff — and where the collection of the note has not been shown to be impracticable.
    Case of Boyle v. 4 Ann. 418 — too broadly stated.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. Livingston, for plaintiff and appellant. John B. Grymes, for defendant.
   Buchanan, J.

(Voobhies, J., absent.)

This suit was brought in July, 1851, upon two notes of hand made at New York on the 15th April, 1837, payable respectively,, seven and twelve months after date ; also, upon an account for dry-goods sold at New York, in 1880. The defence is prescription. The plaintiff has attempted to prove an acknowledgment of the debt, by propounding interrogatories to the defendant. But the answers to interrogatories peremptorily deny that any such acknowledgment was ever made. Failing in this, the plaintiff relies upon the fact that defendant removed from Illinois, the place of his residence, when the notes were made, to Texas, in the year 1839 ; and contends that this removal, by rendering the collection of the debt more difficult, relieved plaintiff from the operation of the laws of prescription.

We think, with the District Judge, that the removal of the defendant to Texas, has not interrupted prescription. The residence of defendant is shown to have been well known to plaintiff, and no impracticability of enforcing the collection of this debt by legal process at any time since its maturity, is proved. The rule on this subject is correctly stated in McMasters v. Mather, 4th Ann. 418. See also, McClintock v. Gamble, 9 Ann. The case of Boyle v. Mann, 4 Ann. 170, is too broadly stated. The prescription of promissory notes is peculiarly favored by our law. It runs against minors, interdicted persons, and absentees.

Judgment affirmed, with costs in both courts.


text:
    D. Edwards v Ann Green, his Wife
    Parties who did not contract marriage under or with reference to the laws of this State, cannot, in our tribunals, base an action for divorce on matter's which occurred in another State before they had acquired a domicil in this. Although it may be competent in a suit here to offer evidence of such matters, as tending to establish the habit of which complaint is made.
    APPEAL from the Pifth District Court of New Orleans, Buahanm, J.

      JE. G. Mix, for plaintiff and appellant. G. Boselius, M. Hahn and JP. A. JDuaros, Jr., for defendant.
   Campbell, J.

(Buchanan, J., dissenting.)

This is a suit for divorce. The parties were married in Great Britain, in 1831. Soon after their marriage, they removed to this country and for many years thereafter resided in Ohio.

During the last eight or ten years, plaintiff, who is an engineer or machinist, has been in the habit of following his vocation in this State and in Texas, the pursuit of which occupied his attention some eight or ten months of each year, during which time ho was necessarily absent from the matrimonial domicii, which was in Cincinnati, where he had a house in which his wife and family resided, and where they seem to have been provided with all the comforts suitable to their condition. Having recently established himself in this city, he procured a house here for the residence of his family, and removed them in the spring of 1851. Some three weeks after their arrival, plaintiff left the common residence which ho had provided for his family, and though he still continued to supply them with all things necessary, in October of the same year instituted this suit.

He claims a divorce on various grounds. That relied upon, is habitual intemperance.

The defendant, admitting the marriage, denies the allegations of plaintiff’s petition, claims alimony pending the suit, and, charging her husband with abandonment and with defamation of her character contained in the averments of his petition, prays by way of reconvention for a separation from bed and board and a separation of property.

Judgment was rendered in favor of defendant and against the plaintiff on liis demand. It was further decreed that he should pay to her a monthly allowance, and that the demand in reconvention on account of abandonment, remain open for further proceedings, in accordance with Article 143 of the Civil Code.

A careful examination of the testimony bearing upon this branch of the case, satisfies us that the judgment of the District Court is erroneous. We do not think that tho withdrawal of plaintiff from the common dwelling, under the circumstances, proved such an abandonment, as in Article 141 of the Civil Code gives rise to the action of separation from bed and board. If, as we are inclined to believe, tho object of tho husband was to provide a separate residence, pending the suit which he contemplated bringing, his withdrawal cannot be said to have been “without a lawful cause.” Nor is it an answer to this view, to say that, though he left tho common dwelling early in June, he did not institute his suit until the 28th of October, inasmuch as the approaching summer vacations of court would, in all probability, have prevented a trial; or it may be, that the husband hoped that during this interval, the situation of his wife would prompt her mind to such reflections as would induce a chango in respect to the habit complained of.

With regard to the plaintiff’s demand, we are of opinion that, under the evidence offered he, is not entitled to a divorce. Even though it he conceded that the testimony adduced by plaintiff establishes that defendant, during her residence in Cincinnati, was an habitual drunkard, it does not appear that the habit continued after the spouses, by their removal to New Orleans, subjected themselves and the marital relations subsisting between them, to the jurisdiction of our laws; and we hold it to be sound doctrine, that parties who did not contract marriage under, or with reference to the laws of this State, cannot base, in our tribunals, an action for divorce, on matters which occurred in another State, before they had acquired a domicil in this, although it may be competent, in a suit here, to offer evidence of such matters, as tending to establish the habit of which complaint is made.

Plaintiff’s witnesses, with the exception of his mother alone, depose to facts which occurred long before the removal of the parties to this State. Isaac Edwards, a brother’, speaks the of habits of defendant before 1848, a period anterior to the enactment of the law making habitual intemperance a ground for divorce. He had never seen her since Doc., 1848, until last winter, when he visited the children of his brother, who were living with her, when, to use his own language, “ ho saw nothing of any consequence.” Nor does it appear that this suit could be maintained under the laws of Ohio.

Mrs. Qoodloe, another witness whose testimony is much relied on, states on cross-examination, that all the matters related by her happened four or five years ago. Indeed, the only witness who proves drunkenness on the part of defendant after her arrival in New Orleans, is the mother of the plaintiff, and she swears to but one instance, which, she says, was the immediate cause of the separation between them; nor does it appear that before this time the husband had any knowledge of the intemperate habits of his wife.

Giving to this testimony the fullest effect that can be claimed for it, it does not, in our opinion, establish habitual intemperance on the part of defendant, since she has become amenable to our laws regulating the conduct of married persons, though it may establish an isolated case of drunkenness.

It is proper too, to remark that Mrs. Riley, w'ho descended the river with the parties when they removed to this place, and who has since heen intimate with and a frequent visitor of defendant, and Mary Riley, the only servant employed in the house, who went to live with the defendant only a few days after the separation, and w'ho has constantly resided with her since, both depose to the uniform propriety and sobriety of defendant’s conduct and her exemplary treatment of her children. Dr. Ridgley, too, who as the physician of the family since their arrival in New Orleans, has frequently visited the house, deposes to the good conduct of defendant.

It is ordered, adjudged and decreed that the judgment of the District Court bo annulled and reversed, and that there be judgment against the defendant on her demand in veconvention, dismissing the same. It is further adjudged that on the principal demand for a divorce, as set forth by plaintiff in his petition, there be judgment in favor of the defendant, as in case of nonsuit. The costs ‘ of both courts to be paid by plaintiff, as head of the community.

Rehearing refused.


author: Slidell, C. J. Slidell, 0. J.

text:
    The State of Louisiana v. C. Redmond.
    Defendant, an attorney at law, was fined and imprisoned for filing an argument in the Supreme Oourt, which was held to be indecorous and disrespectful to the court and to one of its members.
   rjlHE following is the argument filed :

Now comes into court, the appellant in the above entitled suit, by his counsel, and prays leave respectfully to file this, his exception and recusation to the competency of the Hon. A. M'. Buohanan, one of the Judges of this honorable court, to hear or determine, or to assist in hearing or determing this appeal, on the ground, that the same was taken from the final decision of the said Hon. A. M. Buchanan, whilst presiding as Judge of the Fifth District Oourt of New Orleans.

ARGUMENT.

We contend, that the Judge® quo is not competent to review his own opinion as a member of this honorable court. Such competency could only be founded on the inadmissible supposition that he had failed in the court below to discharge the trust reposed in him to the utmost extent of his ability.

Ilis honor below, not merely refused the plaintiff a new trial, but he stigmatized the plaintiffs appearance in court, as an audacious attempt to release himself by a fraud upon the law, from all the duties of a husband and a parent. The appellant might perhaps indulge in the forlorn hope of inducing his honor a quo to reconsider his views of the law, but to delude himself into the belief, that he can alter or modify his stem appreciations of the facts of this cause, would be the perfection of irrationality. Under these circumstances, it is most respectfully submitted to the court and to all its members, that, if unfortunately this appellate tribunal should concur in the judgment of the court below, the moral sanction of such acquiescence would be materially weakened by the participation therein of the magistrate who rendered the original decision.

The appellant -would more particularly beg leave to endeavor to impress on the minds of the court, the conviction that in creating or oven in recognizing certain causes of recusation, the Legislature never dreamt of confining to that meagre catalogue, the discretion of the courts on the subject of judicial incompetency.

It would be scarcely possible, or if possible, scarcely respectful to the court, to enumerate one tithe of the causes of disqualification which, beyond nil per adventure, would render a Judge incompetent to perform at all the functions of his higher station.

Suffice it to say, that all the defects of mind, body or character, to which frail humanity is subject, would, when manifested with a certain degree of intensity, warrant the total exclusion of the Judge from his bench. Who will contend that the madman, the felon, the mesmerist, the spiritual rapper, &c., &c., are entitled to set in judgment on the lives and fortunes of the community? No sane man. Nor does the Code of Practice set up any such absurd doctrine. The causes of recusation which it enumerates, are simply placed beyond the pale of judicial discretion — that discretion yet remains vital, though latent in the breast of the court, inherent as an indispensable accessory to the faithful administration of the trust which the law has reposed in it.

The exercise of this discretion cannot be fettered by any inference deduciable from the practice of the Federal Courts. First, because that system is by law established. Second, because the reason of the federal law does not appty. The District Judge, sitting as Circuit Judge, can pronounce no final opinion; but, on the contrary, the Circuit Judge is deputed by law to examine whether or not the decision of the District Court does not warrant an appeal. The appellate jurisdiction of the Circuit, considered as intermediary between the Supreme and the District Courts, is simply a contrivance, whereby the former tribunal is sought to be relieved of a vast number of frivolous appeals, which would seriously obstruct the progress of the most important litigation. On behalf of the Supreme Court, the member thereof who acts as Circuit Judge, is simply commissioned to inquire how far, in a certain class of cases, the right of appeal shall extend, and to what points that appeal shall be restricted. The true, the final appeal to the Supreme Court of the United States, involves only questions of law; whereas, in the present instance, the Judge is expected to change his most hostile view of the facts of the plantiff’s cause, simply because he has changed his seat from one court-room to another.

It is equally self-evident, that an infinite variety of circumstances may conspire to incapacitate a Judge, quo-ad a certain given case.

Let us suppose, that the Judge is not merely a witness, but a, partieeps-cri-minis, and having to pronounce on his own guilt or innocence. De Armas trying the case of Plicque v. Lebeau ; Garland, that of Smith v. McDonogh. It may be objected, that a pecuniary interest would have excluded them as witnesses, and would have warranted their recusation as judges ; but the witness may be released. Whereas there can be no compromise as to the dignity or purity of the administration of justice. But we may suppose a moral interest more violent and overwhelming than any mere pecuniary interest

Could Julius Caesar have sat as Judge to determine the continency of Cleo-patria, and when he himself was charged by the plaintiff with making his (the plaintiff’s) hearth desolate? Instances of this kind might bo multiplied ad infinitum,.

Again; The Judge a quo has a pecuniary interest in the issue of this appeal, for the reversal of his judgment would open the door to an action of slander against him. Vide reasons for judgment.

The following order was made:

Slidell, C. J.

It is ordered that 0. Redmond show cause on Wednesday, the 12th inst., at 10 A. M. in open court, why he should not be punished for a contempt of this court, committed by presenting in open court on Monday, the 10th instant, and filing a certain argument in writing, signed by him as an attorney at law, in the case of Daniel Edwao’ds v. Anne Oreen, on the ground that said argument is indecorous and disrespectful to this court and one of its members, and violates the 486th Article of the Code of Practice; and lot notice of this order be given to the Attorney General.

Answer of the defendant to the rule ;

Defendant, for answer to the order heroin taken against him, why he should not be punished for contempt, most respectfully represents :

That in filing the argument referred in said order of court, this respondent had no intention to commit, or suspicion that he was committing, any violation of the rules of decorum which ought to obtain in the administration of justice, or that any portion of said argument, could be construed into a contempt of the authority or dignity of the Supremo Court of the State of Louisiana. Moreover, respondent prays leave to add, that in the case of Edwards v. Green, wherein said argument was filed, he did not consider the Judge a quo as forming a constituent portion of the Supreme Court, and that he, respondent, had the same right with freedom to comment on the judicial acts and arguments of the said Judge a quo, as if he had not been promoted to a seat in this honorable court.

Moreover, that the objections urged to the competency of said Judge, wore conscientiously entertained by respondent, and not put forth for any other purpose than that of enabling the appellant to obtain a fair, impartial and constitutional trial of her appeal.

Judgment on rule:

Slidell, 0. J.

(Voorhies, J., and Buchanan, J., absent.)

A rule having boon taken in this matter, upon Chandes Redmond, to show cause why he should not bo punished for a contempt of this court, committed by presenting in open court, on Monday, the 10th inst. and filing a certain argument in writing, signed by him, as an attorney at law in the case of Daniel Edwards v. Ann Green, on the ground that said argument is indecorous and disrespectful to this court and one of its members, and violates the 486th Article of the Code of Practice, and the said G. Redmond having this day appeared, and having shown by his answer no sufficient cause; and especially"said answer being insufficient in this, that it does not disclaim an intention to insult the Honorable A. M. Buchanan, one of the justices of this court, sitting at the time said argument was presented and filed, and on the contrary is considered as virtually reaffirming the allegations of said written argument, touching said justice; and the court considering the 48Gth Article of the Code of Practice, the Act of March 27, 1823, and the power and duty of the court in such cases, and being of opinion that said written argument is disrespectful to this court, and especially to one of the justices thereof.

It is ordered, that said Charles Redmond be imprisoned for twenty-four hours in the parish prison, and that he pay a fine of $60, and the costs of this proceeding.


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    D. Edwards v. His Wife.
    The circumstance that a Judge of theSupreme Court tried a case as District Judge, affords no grounds to object to his trying the same case in his capacity as appellate Judge.
    APPEAL from the Eifth District Court of New Orleans, Buchanan, J.

      C. Redmond, for defendant.

      f\For the argument of Mr. Iteámo/id, t.ee the preceding case. — Rep.

   Slidell, C. J.

The court is of opinion that the motion for recusation is not sustained by any provisions of the Constitution or laws.

It was argued that the participation in the decision of this cause by a member of this court, who, as District Judge, rendered the judgment now presented for revision, involves an inconsistency with the full benefit of the right of appeal given by the Constitution.

The Constitution requires this cause to be determined by this Court, of which the Justice referred to in the motion is a member. It must be considered as having silently left to the discretion of the Legislature the power to designate causes of recusation; a power exercised by Legislatures under former Constitutions, which were in like manner silent. There is no Statute recognizing such a ground of recusation, and therefore we think the appellant has no right to recuse the Justice ; and on the contrary, it would seem that the appellee would have a right to require him to sit, if for example his presence were necessary for a quorum, or if the question arose whether another Judge could be called in under Article 70.

If, however, for the purposes of argument, it were conceded that this court could hear a motion for recusation upon any ground not mentioned in the Constitution or Statutes, we have to observe that the inconsistency said to be involved does not seem to us to exist; and a reference to the organization and practice of the courts elsewhere will show that it is not so considered. And let it be remarked that in some of the instances to which wo are about to allude, the participation, by a Judge who had previously acted in the cause, in its subsequent revision, is not accidental and unforeseen, but on the contrary foreseen and in the usual course.

Thus, the Justice of the Supreme Court of the United States determines a cause as Circuit Judge, and afterwards is a member of the tribunal which revises his own decree.

So in the English Court of Common Pleas, the Chief Justice and his Associates individually hear causes, and afterwards sit together and determine upon the correctness of the ruling of the individual Judge.

The practice is the same in the King’s Bench and in the Court of Bxehequer.

In New York, under their new Constitution, the Court of Appeals is composed in part of Judges of the Supreme Court; and in Pierce v. Delamantu, 1 Comstock, p. 1, it was held that it was the right and the duty of the Judge of the Court of Appeals to take part in the determination of causes brought up for review from a subordinate court, of which he was a member, and in the decision of which ho took part in the Court below. The opinion to that effect was delivered by Bronson, J., who had acted as Chief Justice in the determination of the same cause by the Supreme Court, and was concurred in by all the members of the Court. It is also stated that three of them, to wit: Jewett, O. J., who had been a Justice of the Supreme Court, Ruggles, J., who had been a Circuit Judge, and Jones, J., who had been Chief Justice of the Superior Court of the city of New York, subsequently took part in reviewing their own decisions while sitting in the several courts which have been just mentioned.

In that opinion it was forcibly remarked — “ There is nothing1 in the nature of the thing which makes it improper for a Judge to sit in review upon his judgments. If he is what a Judge ought to be, wise enough to know that he is fallible, and therefore ever ready to learn • honest enough to discard all mere pride of opinion, and follow truth wherever it may lead, and courageous enough to acknowledge his errors, he is then the very best man to sit in revision upon his own judgments. He will have the benefit of a double discussion. If right at first, he will be confirmed in his opinion; and if wrong, he will be quite as likely to find it out as any one else.”

If wo had leisure to make the enquiry, wo should find repeated instances of what has occurred in this tribunal, a Judge concurring, upon the revision, in the reversal of his own opinion; a circumstance not surprising, when it is considered that in courts of first instance points often arise requiring prompt action, without previous elaborate argument, while in the revising tribunal abundant leisure for investigation is afforded to counsel and the court

It is not improper to remark that if the subject wore presented to legislative consideration, a strong argument against the expediency of such an exclusion could he found in the fact that from sickness or other unavoidable cause, this bench frequently is not full, and the administration of justice might be much interrupted by the want of a quorum. The members of the present bench have held the office of District Judge; and hereafter, from time to time, the bench may be similarly composed.

We may add that uniformity in the jurisprudence of a court of last resort is highly important; and to this end, it is desirable that the decisions of this court, as far as conveniently may be, should be the result of the deliberation of all its members.

Motion discharged.

      Talce for example, Lord Denman’s opinion in Powell v. Davies, 5 Barn. & Athol, 368, and Lord Abinger’s in Jamies v.-, Meeson & Wilsby, 29.


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    City of New Orleans v. Nelson Anderson.
    The ordinance of the city of New Orleans of 19th March, 1834, which mates it unlawful “ to build any stable, or -establish any cowhouse in the interior of the city, or any of the incorporated suburbs” — cannot be construed to apply to such additions to tire limits of the city as subsequent legislation might make.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      W. B. Hennen, for plaintiff. Bmvis & Dugué, for defendant.
   Buchanan, J.

The petition complains, that the defendant, some time since, commenced building within the corporate limits of the city of New Orleans, to wit: within the fourth district, on the north side of Washington street, between Gamp-and Magazine streets, a stable and cowhouse for more than three cows, in violation of the ordinances of said city, and particularly of an ordinance passed March 19th, 1834; that he was duly notified to desist from proceeding with said buildings, but refused to obey said notice. It concludes by a prayer for injunction, and that defendant be condemned to pay a fine of one hundred dollars, and to remove his cows and building complained of.

The answer is a general denial; and a pica of unconstitutionality of the ordinance. Judgment was rendered for praintiffs, from which defendant appeals. It is proved that the stable of defendant in question is worth more than three hundred dollars.

The petition was filed the 1st April, 1853. The evidence fixes the erection of the building complained of, in the course of March, 1853. At that time, the premises were within the limits of the city of New Orleans, by the effect of the Act of the 23d February, 1852, No. 72 of the session Acts, entitled an Act supplementary to an Act to consolidate the city of New Orleans, and providing for the incorporation of the city of Lafayette with the city of New Orleans. That Act was promulgated the 4th March, 1852. The first section provides “ that the city of Lafayette be aud the same is hereby incorporated with the city of New Orleans for municipal purposes only; that said city of Lafayette shall form part of the city of New Orleans, and as such shall be governed by all the laws relative to the city of New Orleans, and shall be entitled to all the rights, privileges and immunities enjoyed by said city of New Orleans, under existing laws.”

In virtue of this statute, it is contended that the city ordinance of New Orleans of the 19th March, 1834, upon which this suit is Lifted, is applicable to a stable or cowhouse erected, since the consolidation Act, on Washington street, in the Fourth District of tho city of New Orleans, which is identical with the former city of Lafayette,

There has been a discussion at bar of the meaning of the word “ laws,” in the section just quoted; the counsel for defendant contending that it should be intended, solely, of Acts of the Legislature, and not city ordinances. We think it unnecessary to go into this question, because, even adopting the construction of plaintiff’s counsel, we think this action cannot be maintained. The ordinance of the 19th March, 1834, is in the following words:

“ Section 1. Resolved, that from and after the promulgation of the present resolution, it shall not be lawful for any person to build any stable or establish any cowhouse, in the interior of the city, or any of the incorporated suburbs.

“Section 2. Resolved, that any person who, in violation of the present resolutions, should establish one or more stables or cowhouses, where more than three cows should be kept, within the above described limits, shall be liable to a fine,” &c.

This ordinance contains a measure of police regulation. — the prohibition of exercising a particular kind of business, within certain territorial limits..— What are those limits? The extent of the city of New Orleans, as it existed and was defined by State laws, at the time of the passage of the ordinance, in March, 1834. By reference to the different Acts on this subject, (Greiner’s Digest, Nos. 1981, 1982, 1983,) it will be found that the city of New Orleans was first incorporated in the year 1805, with very extensive limits indeed. — ■ nearly if not quite equal to those at present comprised within the parishes of Orleans and Jefferson united. In 1812, those limits were contracted, so that the city extended from the Nuns’ plantation (Felicity Road,) above, to the Canal des Pécheurs below, including the settlements of Bayou St. John. In 1818, the upper limit of the city was extended to the plantation of Miss Ma-carty, (present city of Jefferson.) In 1833, by an Act approved April 1st, of that year, the faubourgs Nuns, Lafayette and Livaudais, were separated from the city of New Orleans, and formed into a distinct corporation and body politic, by the name and style of “ City of Lafayette.” This corporation subsisted, by virtue of several Acts of the Legislature, passed in the years 1835, 1831 and 1846, until the consolidation Act of 1853, which merged it in the corporation of New Orleans.

Washington street, the seat or location of the defendant’s stable, is in the old faubourg Livaudais, consequently not within the limits of the corporation of New Orleans in March, 1834. And the subsequent change of the territorial limits of New Orleans can have no effect to expand or contract the space within which the police regulation contained in the ordinance referred to, should be operative. Penal statutes should be strictly construed: and in a prosecution under the ordinance, it was essential to prove that the stable was erected within the prohibited limits. So far is this from being proved in the present instance, that the contrary is substantially alleged in the petition.

The counsel for plaintiff, perceiving this difficulty, has called our attention to an ordinance of the city of Lafayette of the 6th March, 1850, which prohibited the establishment of a dairy any where between the river and Nayades street. But this is not a prosecution for a violation of any ordinance of the city of Lafayette. If it wore, we would have to decide whether those ordinances are still in force in the Fourth District of New Orleans.

Judgment reversed, and judgment for defendant, as in case of nonsuit, with costs in both courts.


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    Eugene Rousseau, Receiver, v. William Lum et al.
    Simulated sale set aside. Attempt by fraudulent vendor to screen his property from his creditors, will avail no person who is party to the fraud.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Janin & Taylor, for plaintiff. Stockton & Steele, for defendants and appellants.
   Slidell, C. J.

In 1845, Bonaffe & Go., who are now represented by Rousseau, obtained a judgment in Mississippi against John Lane. The execution thereon being returned nulla bona, a decree, rendering the judgment executory, was obtained in December, 1845, in the District Court for Madison parish, in this State, and it was recorded in the mortgage office.

At this time, John Lane was the owner of a valuable plantation in Madison parish, which was incumbered by various mortgages. Among them was a mortgage granted by John Lane to the Merchants’ Bank for $22,000, and seven per cent, interest from the 9th of February, 1889, and another mortgage granted by him to the same bank for $80,000, with like interest from the 20th of March, 1840.

On tlie 7th of January, 1840, Bonaffe & Go. issued execution on their judgment in Madison parish; but, before any seizure, John Lane sold the plantation to his son, Edwa/rd M. Lane, by notarial act bearing date the 18th of January, 1840. This sale purports to be made for the price of $1000 cash. It is stated that the property is subject to certain mortgages and judgments therein enumerated, among them the mortgages to the Merchants’ Bank and the Bonaffe judgment, and that the crops are to be applied by the purchaser to their payments; but it was expressly stipulated, that he was not to be personally responsible for them.

The Merchants’ Bank’s mortgage for $30,000, was assigned to the Franklin and Lafayette Banks; and these institutions in April, 1848, transferred one-half of the mortgage debt to William Lum, the partner in law of E. M. Lane, for a consideration of $10,264 44, cash, and promised to transfer the remaining half to him in consideration of four drafts drawn by E. M. Lane on Hill, McLean & Go., and endorsed by John Lane, for a like amount, when the drafts should be paid. These drafts were paid at maturity by the acceptors, to wit, in October and November, 1848, and on the 18th January, 1849, the Franklin and Lafayette Banks trasferred the remaing half of the mortgage debt to Lum.

On the 17th of July, 1849, Wiliiam Lum filed his petition in the Fourth District Court of New Orleans, in which he alleged that John Lane was indebted to him, under the mortgage in question, in the sum of $30,000, with interest thereon at the rate of seven per cent, per annum, from the 20th of March, 1840, subject to two payments made, one on the 20th day of March, 1841, and one on the 27th day of December, 1841, and praying to have the mortgaged property seized and sold to satisfy the debt. To this petition an answer was filed by John Lane, through his attorney in fact, on the same day, (the 17th of July, 1849,) confessing judgment according to the prayer of the petition, and judgment was rendered accordingly on the same day, which was signed on the 19th of the same month, on which day an execution was issued on the judgment, directing the mortgaged property to be seized and sold to satisfy it.

Under the execution so issued, the mortgaged property was seized, and, at the sale, was adjudicated to William, Lum, the plaintiff in execution, for the price of $40,830 cash, which was two-thirds of its appraised value, and the sum of $3,574 44 only of the amount of the price was credited on the execution, whilst the remainder of it, amounting to $38,355 50, was declared to have been left in the hands of the purchaser to satisfy the first mortgage existing on the property, to wit, the mortgage granted by John Lane, in 1839, to the Merchants’ Bank of New Orleans, to secure the payment of $33,000, with interest thereon, from the date of the mortgage.

A short time after this adjudication to William Lum, the plaintiff, in his capacity of receiver for A. Bonaffe S Go., instituted this action to annul the judgment rendered in the case of William Lum against John Lane, under the authority of which the adjudication was made, and to set aside the Sheriff’s sale of the property in question, as obtained and made in fraud. In plaintiff’s petition, filed on the 8th November 1849, he alleges in substance, that the sale made by John Lane to Edward M. Lane, on the 13th of January, 1846, was a mere simulation. That the transfers made by the 'Franklin and Lafayette Banks of Cincinnati to William Lum, of the mortgaged debt of $30,000, contracted by John Lane to the Merchants’ Bank of New Orleans, in 1840, were so far as to William Jjum also simulated, and were obtained by him in fraud and by collusion with John Lane and Edwan'd M. Lane. That the consideration received by the banks was in truth paid out of the produce of the property held by Edward M. Lane, under color of the simulated sale made to him by his father John Lane, on the 18th of January, 1846, and that the confession of judgment by John Lane in the suit of William Lum against him, and the purchase by William Lum, at the Sheriff’s sale under the judgment, were both made in fraud and collusion between John Lane, William L/um and Edward M. Lane, and were absolutely null and void.

The three defendants answered separately, each, however, appearing by the same counsel. John Lane alleged that the debt upon which the judgment was confessed, was justly due, and a subsisting debt at the date of the judgment for its whole amount. He denied that he furnished any portion of the money by which Lum acquired it, or had any connection with its purchase, and asserted, that his sale of the plantation to his son was made in good faith. Edward Lane denied the frauds alleged; averred himself to have been a purchaser in good faiththat he furnished no portion of the funds with which Lum paid for the mortgage ; that he surrendered the plantation to the Sheriff on Bum's execution, because ho could not pay the debt, and had no longer any interest in the controversy. Lum, after an ineffectual attempt to avoid a trial on the merits, likewise answered, denying all fraud; alleging his purchase of the mortgage from the Lafayette and Franklin Banks, and the payment of the entire consideration out of his own means. He alleged, that at the time he gave the banks the four drafts of Edwan'd M. Lane, Mill, MeLean & Go. refused to accept them, unless he would guarantee to them the receipt of funds to meet them ; that the Lanes did not put the drawees in funds, and that in consequence he was obliged to pay Mill, MeLean S Go. the whole sum oí $10,364 44. He averred that the amount for which the judgment was confessed, was actually due, and that the amount of $38,356 56, which he retained in his hands from the price, at the Sheriff’s sale, was a then subsisting debt. That if it was not, he is entitled to be paid §46,326 56, in preference to any other creditor.

Upon these issues, the parties went to trial, and upon the evidence adduced, the court below made a decree annulling the judgment obtained by Lum and setting aside the Sheriff’s sale. From this judgment, all the defendants have appealed.

An examination of the evidence has fully satisfied us, that the District Judge did not err in annulling the judgment and sotting aside the sale. We think it clear that there existed between these parties a fraudulent combination to deceive and baffle a portion at least of the creditor's of John Lane, of whom the plaintiff was one.

When the sale was made by him to his son, he was insolvent, and the seizure upon the judgment was impending. The terms of the deed are entirely out of the usual course of business, and indicate what the vendor afterwards expressly avowed, that it was made for the purpose of keeping his creditors from selling him out. As, however, Ediocord M. Lane readily assented that Lum should oust him, and now disclaims any interest in this controversy, that sale requires no further consideration, except' so far as its simulation forms a link in the chain of circumstances going to show the relation of these parties, and the animus of these transactions.

With regard to the confession of judgment and the sale, a brief recapitulation of the prominent indicia of fraud is necessary. Some of the circumstances are less grave than others, and taken alone, might be insufficient to prove it'; hut when aggregated, they demonstrate conclusively the had faith of the defendants.

John Lane was an insolvent debtor. Edward M. Lane, his simulated vendee, was his son, and well acquainted with his pecuniary condition. Lwm was the father-in-law of Edward, and from this relation, as well as from other matters in evidence, must be considered as well aware of John Lane's insolvency. Although Earn was the ostensible purchaser of the $30,000 mortgage, the proposition for the purchase and the negotiation in relation to it, were made on the part of John Lane. The drafts to pay for the half of the purchase were drawn by E. M. Lane to the order of his father, and accepted by Sill, McLean & Go. on the credit of the Lanes, and the promise of shipment of the crops of the plantation to the acceptors, and not upon a guarantee of L/um, as alleged in his answer. Lum has not proved that ho gave the drawee a valuable consideration for these drafts, and the clear inference from the evidence is, that they were given to him to enable him, pro tanto, to purchase the mortgage for the benefit of the Lanes.

The original intention of Lum and Lane, we think, was that Lum should advance $10,000 towards the purchase of the mortgage, and Lane contribute a like amount by means of his son’s bills on his factor, and that Lwm should take the transfer in his own name, thus screening the transaction from Lane's creditors, and at the same time protecting Lum to the extent of his advance of $10,000. When the bills of Lane given to the banks were paid, the one half of the mortgage debt being thus acquired by the debtor, it would seem, was extinguished in fact, by confusion, although nominally outstanding; and the idea of Lwm to treat it as security for the amount he afterwards paid Sill, McLean & Go. for their balance in account current against Lane, was an afterthought. But however this may be, certain it is, that these acceptances were partially paid out of the shipments of cotton from the plantation standing in the name of E. M. Lane, whom, for all the purposes of this transaction, we consider identical with John Lane.

In his petition, Lum alleged that the whole amount of the original loan made to Lane in. 1840, by the Merchants’ Bank, was due to him, with the exception of two payments in March and December 1841, of $2,100 each, and John Lane, in his answer, confesses the amount of idebtedness to be as alleged. But it is proved that there were other payments made prior to the year 1848, namely, to the Franklin Bank, $4815 90, and a like amount to the Lafayette Bank, being a total of $9631 80 beyond 'the amount of credit mentioned in I/um’s petition.

Again — parties acting in good faith — one to enforce, and the other to effect the payment of a debt, would charge themselves, when the only property out of which the payment could be expected, was disposed of at Sheriff’s sale, no more to third persons than the property was really bound for. But in this case, as appears from the Sheriffs’ deed, Lum pretended to retain in his hands the sum of $38,255 56, as due on the Merchants’ Bank mortgage given by Lane in 1829, for 22,000, and interest, when in point of fact a much less sum was due on the mortgage. The mortgage in question was conditionally reduced to $19,608 51, on the 17th of April, 1847, and was then made payable in one, two, three and four years, with interest at the rate of six per cent per annum, as shown by deed of that date, executed between Edward M. Lane and Morrison & Oo., the ,’transferrees of the mortgage, which deed was recorded in the mortgage office of the parish of Madison, before the Sheriff’s sale.

It is said the mortgage purchased by Lum was a valid mortgage, and that he had a right to buy it and to enforce it. It is true he had a right to buy it; and so far as his own means, and not those of the debtor were used in the purchase, he had a right to enforce it by true and lawful proceedings. But he had no right, as against creditors, to hold himself out in a judicial proceeding as the hclder of a mortgage for $9631 80 more than was in truth left unpaid to the mortgage creditors. Ho had no right, as against creditors, to hold himself out as the sole transferree of the Merchants’ Bank mortgage, when in truth he had bought it in part with the means of the debtor. The plaintiffj in this case, had a right to know the true position in these particulars, of the party who was seeking to effect a judicial sale of property upon which he was a subsequent mortgage creditor. Untruly to swell the amount of the anticedent incum-brance, was calculated to deter this subsequent creditor and others from an attempt to compete at the sale with Lum, and such a course pursued in collusion with the debtor, was a fraud, which we think entitles this subsequent creditor to ask that the judicial purchase by the plaintiff in execution beset aside, and the mortgaged estate exposed anew to a fair competition.

Judgment affirmed, with costs.