text:
    No. 1559.
    W. H. Letchford & Co v. V. Richard & Co.
    To bind the endorser on a promissory note, notice of protest and dishonor must be given by the holder.
    Where the proof of notice of dishonor is vogue and uncertain the endorser will be discharged.
    APPEAL from the District Court, Parish of Lafourche, Gates, J.

      Belcher <& Beattie, for plaintiffs and appellees.

      Bush <& Goode, for defendants and appellants.
   Larauve, J.

This suit is brought against the defendants as endorsers of a note for $2,128 22.

The petition alleges that plaintiffs are the holders of said note -which, at maturity, was duly protested for non-payment, and that the defendants were duly notified thereof.

The answer denies the liability of the defendants, who are in no manner bound, as the requirements of the law have not been complied with to fix the liability of said defendants, in giving notice of dishonor and protest of said note.

The Judge below, after hearing the evidence, gave judgment for plaintiffs, and the defendants appealed.

The plaintiffs, to recover under their allegation, must show protest, and that the defendants were duly notified thereof.

It appears that since the protest which is in evidence, D. I. Ricardo, the notary who protested the note, has died, and that many of his records have been destroyed by fire; and that Hugh Madden, who was in his employ as a deputy, is also dead; that the usual diligence and business habits were exercised by the deceased notary; that the records of said notary havo been searched for the certificate of notice of protest of said note, but that it could not be found; that the said notary and his deputy, Madden, were very particular in making protests and demands for payments and notifying the parties interested; that as to the service of notice of protest, one witness, James P. Waters, only, swore that he believed the notice had been duly served, because it was the custom of the office to notify tho parties interested.

This is all the evidence adduced in support of holding the defendants liable as endorsers, and' it is clear that all that can be inferred from such testimony, only creates conjectures, and not presumptions as required by law. C. C. Arts. 2263 and 2267.

We are of opinion that the judgment appealed from, is not supported by proof, and that it must be reversed and changed as in a case of non-suit.

It is therefore ordered and decreed that the judgment of the lower Court, be annulled and reversed. It is further ordered and decreed that plaintiffs’ demand be dismissed as in a case of nonsuit, and that they pay costs in both courts.


source: Caselaw Access Project

author: Ilsley, J.

license: Public Domain

text:
    No. 1572.
    Richard C. Bond v. Ezra Hiestand.
    The form of citation and the manner in which parties may be brought into court are entirely within the legislative control.
    The act of the Legislature, prescribing the form of proceedings for enforcing the collection of taxes due the city of New Orleans, by advertisements in the official newspaper, in lieu of a petition and citation is constitutional.
    The act of the Legislature of 1859, relative to the collection of taxes in the city of New Orleans, is not repealed by the act of 1865, creating courts in the parish of Orleans.
    APPEAL from the Third District Court of New Orleans, Emerson, J.

      Breaux & Fenner, for plaintiff and appellee.

      E. Hiestand, in propria, persona.
   Ilsley, J.

The defendant has appealed from a judgment directing him to put in suit immediately, regardless of amounts, and in the alphabetical order, prescribed by the act of 1859, (No, 175, page láO,) relative to the collection of municipal taxes in New Orleans, before the several District Courts of New Orleans, therein named, all unpaid bills, for taxes due the city, and now in his hands.

He contends, substantially, that the citation of, delinquents by the city treasurer, in the shape of an advertisement in the official paper, is unconstitutional, and, further, that the law invoked was repealed by the act of 1805, (No. 44, page 82,) concerning the jurisdiction of the District Courts of New Orleans.

The relator, who is a citizen and tax-payer, relies on section 107 of the city charter as amended in 1858, which provides, “that, on the second day of July of each and every year, or as soon thereafter as practicable, the city treasurer shall make, or cause to be made out, a correct alphabetical list of all the unpaid tax-bills remaining in his hands, and shall hand over said bills to the assistant city attorney, taking his receipt for the same; and the said assistant city attorney shall immediately put in suit, in a court or courts of competent jurisdiction, all - unpaid bills for taxes levied on property assessed in the several districts of the city.

And the relator also relies on the act of 1859, aforesaid, which provides for the publication, by the treasurer, of the names of delinquent taxpayers, and the institution of suits against them, as follows: “All bills from A to D, inclusively, before the Second District Court; all bills from E to J, inclusively, before the Third District Court; all bills from K to N, inclusively, before the Fourth District Court; all bills from O to R, inclusively, before the Fifth District Court; and all bills from tí to Z, inclusively, before the Sixth District Court.

The first ground of objection urged, has been so frequently and so conclusively settled in this Court, that it can no longer be considered a tenable one.

The constitutional provision invoked, does not apply to citations. The form of a citation and the manner in which parties may be brought into court are entirely within the legislative control; so much so, that in proceedings for enforcing payment of taxes due the city of New Orleans, a constructive notice by advertisement in the official newspaper, in lieu of a petition and citation, has been uniformly held to be constitutional and binding. 3 Martin, 720; Act 15th April, 1853, No. 121; Act 1858, No. 85, page 57; Act 1859, No. 175, p. 140; 10 An. 727, 764, 771; 11 An. 146, 338, 420; 12 An. 751; 13 An. 405.

The second objection presents no greater difficulty.

The law of 1859, aforesaid, is a special statute, forming part of the charter of the city of New Orleans, and cannot be considered as repealed, unless expressly or by conflicting legislation in pari material.

Subsequent laws do not repeal former ones by containing different provisions; they must be contrary. 5 N. S. 528, 575; 6L. 135; 16 An. 379.

A particular law is not repealed by a general law, unless they be so repugnant that both cannot stand under'any circumstance.

Different laws on the same subject, if not absolutely inconsistent, must be considered and construed ás oné.

10 Martin 172; 9 An. 64; 12 An. 498,-S05.

Prior, will not be repealed by subsequent, laws from the mere fact that they differ. A repeal will be implied only where the last statute contains provisions irreconcilable with those of prior laws. A repeal by implication is not favored by law.

C. O. 23; 2 An. 919; 3 An. 399; 13 An. 329, 383.

Statutes of a general nature do not repeal particular statutes enacted for the benefit of public corporations as part of their charter. 1 An. 49.“

We do not consider the act of 1865 as modifying or repealing the act of 1859, relative to the collection of municipal taxes in New Orleahs; it must, therefore, be carried out as originally intended by the' Legislature.

It is'therefore ordered that the judgment of the District Court be’ affirmed, at the costs of the defendant and appellant.


text:
    No. 1583
    Robert Patterson & Co v. Robert A. Owen et als.
    Where the record contains no certificate of the clerk, or judge, and there is no special verdict, bill of exceptions, statement of facts, nor assignment of errors, in the transcript, the appeal will be dismissed on motion.
    APPEAL from the District Court, Parish of Lafourche, Gates, J. '

      Bush & Goode, for plaintiffs.

      W B. Koontz and E. W. Blalce, for-defendants.
   Ilsley, J.

The motion to dismiss the appeal in this case must prevail, because:

1st. There is no certificate of the judge or clerk, that the transcript contains all the evidence on which the case was tried.

2nd. There is no speoial verdict, bill of exception, statement of facts, nor assignment of errors, filed within the prescribed time, nor any other’ means by which the correctness of the judgment can be examined. 2 How. 76.

It is therefore ordered, adjudged and decreed that the appeal be dismissed, at the costs of the appellant.


text:
    No. 1623.
    New Orleans Canal and Banking Co. v. Samuel Templeton.
    The Supreme Court of Louisiana takes judicial notice of orders issued by competent military authority.
    Where a promissory note negotiable in form, has been endorsed in blank, the law presumes that such endorsement was made on the day of its date.
    The endorsement of a promissory note in blank is prima facie evidence of a full consideration.
    Where the defendant alleges that the endorsement was made after maturity, the burden of proof is on him to show the fact.
    The legal presumptions in favor of a party relieve him from the necessity of adducing any evidence, until they are rebutted by proof.
    The policy of the law is favorable to the holder of negotiable commercial paper, and requires very cogent evidence to convict him of bad faith.
    A JuL PPEAL from the District Court, Parish of Carroll. Farrar,, J.

      Sparrow & Montgomery, for plaintiff and appellee.

      W. G. Wyly, for defendant and appellant.
   Ilsley, J.

This suit is instituted by the plaintiff, as the endorsee and holder of two promissory notes, drawn by the defendant to the order of Rochford, Brown & Co., and by them endorsed in blank, to recover from him the amounts of the said notes, with interest and costs.

The defendant excepted to the plaintiff’s right to prosecute this suit in its corporate name, in consequence of the forfeiture of its charter by the suspension of specie payments, and the Court below referred the exception to the merits.

An answer was filed on the 11th October, 1867, in which a failure of consideration was set up, as also, fraud and collusion between the payees, Rotchford, Brown & Co., and the plaintiff. It was, also, in the said answer alleged that the notes sued on had been novated and renewed, and that they had been fraudulently transferred to the plaintiff, after their respective maturities. By a supplemental answer, the defendant averred that the notes sued on were executed for the purchase of negroes, and that the consideration thereof has failed.

Judgment was rendered in favor of the Bank for the whole amount claimed by it, and the defendant has appealed.

This Court takes judicial notice of orders issued by competent military authority, as stated by it in Lanfear v. Mestier, 18 An. 497, and in Taylor v. Graham, ib. 656, and when this suit was instituted, there was no impediment from any military order extant to the Bank’s standing in judgment; nor had the charter of the Canal Bank, been judicially determined in a suit brought for that purpose; so that no advantage can bo taken of the forfeiture itself, or of any cause of forfeiture by any defendant in any collateral action. 13 La. 497; 5 An. 179; 9 An. 265.

The notes sued on are negotiable in form, and the law presumes, that being endorsed in blank, they were so endorsed on the day of their respective dates, (Bailey on Bills, Boston edition, 1836, p. 137;) and this is prima facie title in the endorsee. (1 Hen. p. 180 § 1.) And the endorsement is prima facie evidence of a full consideration. Bailey on Bills, 378 ; 5 Cranch, 322.

If a defendant, in order to let in equities between him and the payees, allege that the notes were endorsed after they became due, the burden is upon him to show it. Bailey on Bills, 137; Jordan v. Downes, 9 Rob. 265.

All these legal presumptions, in favor of the plaintiff, relieve him from the necessity of adducing any proof, until they are rebutted. 5 An. 560.

It has been, however, held by this Court, that the defendant is dispensed from producing proof to destroy these presumptions, if he simply alleges an equitable defence against the payee, and charges fraud in the transfer; that such a defence throws the burden upon the plaintiff to prove that he isa bona fide holder for value. 3 N. S. 292; 13 La. 76. But, we are at a loss to comprehend how upon principle, presumptions of law must yield to a mere declaration of a defendant who sets up a charge of fraud, which is, except in cases of bankruptcy, never presumed. 2 Hen. 1040 § 1.

We deem it to be incumbent on the defendant to sustain his defence, to rebut by proof, the presumptions of the law, which for useful and practical purposes, the law raises in favor of holders of negotiable paper, as was held'in Wheeler v. Maillot, (Opinion Book, No. 35,p. 679,) particularly when, as in this case, facts constituting the alleged fraudare affirmative, and not negative in their tenor. In the case of Greenwood v. Lowe, 7 An. 199, this Court, observed, “the law, from considerations of public policy, and in order to favor the circulation of bills of exchange and other negotiable paper, looks with favor upon the bolder of a bill, and requires very cogent evidence to convict him of malafides.”

We are satisfied from the evidence in the record, which is not rebutted, that the plaintiff is the bona fide holder of the notes sued on, endorsed and transferred to it, previous to their maturity, for a good consideration, without notice, andthatno want of consideration, even by the emancipation of slaves or otherwise, between the original parties, can be urged against the plaintiff.

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


author: Hyman, C. J.

text:
    No. 1387.
    The State of Louisiana v. E. Rose and H. Abrahams.
    In criminal trials the judgment of the Court must follow and conform to the verdict of the jury.
    Where the verdict of the jury is “guilty as accessory,” and the judgment of the Court on the verdict condemns the party to suffer the penalties ot the crime of accessory "before the fact, the judgment of the Court will be annulled, the verdict of the jury set aside, and the case remanded tobo proceeded with according to law.
    An accessory before the fact is equally guilty with the principal, and on conviction must suffer the same penalties. The punishment of an accessory after the fact is only fine and imprisonment.
    A ¿JL PPEAL from the First District Court of New Orleans, Abell, J.

      B. L. Lynch, for State.

      P. Soulé <& L. Gharvet, for defendants. A. P. Field for Abrahams.
   Hyman, C. J.

Harris Abrahams, having been indicted as an accessory before the. fact to the crime of arson, and having been sentenced to suffer the punishment prescribed by law for suoh offence, has appealed.

On trial, the jury rendered against him the verdict “guilty as accessory,” and the question is, whether he could be condemned as accessory before the fact, under such a verdict?

A person may be guilty of the crimes of accessory before and of accessory after the fact, but the crime of accessory before the fact is different from the crime of accessory after the fact, and the punishment for their offences are also different.

The accessory before the fact is subject to the same punishment as the principal offender. The accessory after the fact is subject only to fine and imprisonment, or both. The verdict “guilty as accessory,” is not an unambiguous response to tbo charge of guilt as accessory before the fact, for the v/ords of the verdict may as well apply to guilt as accessory after the fact, as to guilt as accessory before the fact, and the Judge in sentencing Abrahams, had to interpret the verdict, as the jury did not expressly find Abrahams guilty of the offence as charged, or as an acces-' sory before the fact; by supposition only could the Judge determine that the jury had found him guilty as accessory before the fact.

Let the sentence of the Judge and the verdict of the jury, as to Harris Abrahams, be set aside, and let the case be remanded to be proceeded with according to law against him.


author: -‘IiiSley, J.

text:
    No. 1556.
    Raymond P. Gaillard v. His Creditors.
    A respite is based on the supposed solvency of the debtor.
    Where a party offers himself as a judicial surety, he must have sufficient property to satisfy the obligation thereby incurred: the fact that he has asked a respite from his creditors will not disqualify him.
    The fact thata party is not able to satisfy promptly, with ready money, all his liabilities, is no evidence of his insolvency.

      APPEAL from the District Court, Parish of Lafourche, Gates, J.

      . Bush & Goode, for Mrs. Scott et ais.

      Buruiegrés & Blalce, for Guillará et als.
   -‘IiiSley, J.

This is an appeal from a judgment on a rule taken in the District Court of Lafourche, by Mrs. Margaret Scott, a creditor of the insolvent, Raymond P. Gaillard, upon him, as syndic of his insolvent estate, calliug upon him to justify his sureties, as such.

The rule, after trial, was dismissed by the Judge of the Court below. Jules Labatut, the surety objected to,'had a short time previously to ,his signing the syndic’s bond, applied to the Court of his domicil for a respite, and in his petition he represents, “ that he finds himself unable, at present, to meet his engagements duo, or as they becomo due; and some of his creditors have already instituted suits against him, and others are about following their example.” ... .In view of the circumstances, ho hopes that the holders of the notes and drafts endorsed or accepted by J. Labatut, or Jules Labatut & Co., will be willing to consent to a remission of a portion of these liabilities, which remission he solicits to the extent of twenty-five per cent., besides the interest on the capital, to be able to settle with certainty within the terms he asks of (one, two and three years) all the j ust claims which now exist against him. ” And this clause in the petition, ¡which is cited with emphasis in the brief of the plaintiff, is deemed by her conclusive evidence of Labatut’s inability to act as a valid surety for the syndic, Gaillaird.

If, as we apprehend it, a respite is based upon the supposed solvency and not insolvency of the debtor, (Sumner v. Dunbar, 12 An. 182,) we can perceive nothing in the cited clause to destroy this presumption, nor .indeed anything more than is usually inserted in petitions for respite.

The solicitation of the debtor for a remission of a portion of his debts, which is deemed inconsistent with a solvent condition, is a relief which the law itself contemplates in proceedings for respite. See article 3061 Civil Code.

In judicial sureties, the parties, contracting as such, must have sufficient property to satisfy the obligations thereby incurred; and if they possess it, the fact that they have asked a respite from the creditors will not disqualify them.

A man’s assets may be largely in excess of his liabilities, although he may not, from the force of circumstances, have, at the moment, the available means in money to satisfy them.

This, according to the weight of evidence in the record, was the condition of the surety, Jules Labatut.

Such was the conclusion reached by the District Judge who tried the rule, and whose peculiar province it was, by the act of 1855, No. — , to pass on the sufficiency of the non-resident surety, and upon such proof as he might deem necessary.

It is therefore ordered, adjudged and decreed that the judgment of the Distriot Court be affirmed,- at the oosts of the appellant.


author: InsnEr, 3.

text:
    No. 1492.
    State of Louisiana v. Peter Cook.
    It is no objection to tbe validity of an indictment that several offences of the same nature, and upon* which the same or a similar judgment may be given, are charged in different counts; nor is the prosecuting officer obliged to elect on motion of the accused.
    The method of stating the same accusation in different ways, iu separate counts, is adopted in order to prevent a variance from the proof on trial.
    The objection that a witness was an accomplice goes to his credibility, but does not affeol his competency.
    An accomplice is a competent witness, but his testimony requires some confirmation, aliunde.

    A witness in a criminal trial is not bound to criminate himself; but this is a right which he may waivo if he chooses.
    It is the duty of the District Attorney to cause a list of the jurors to be served on the accused before trial, but it is too late, after the trial, to urge this objection.
    The indictment charges the accused with the crime of robbery, without stating that the act was done feloniously, or that the goods were taken from the person of another, or in his presence by putting him in fear: Meld — That the indictment is defective in not containing the essential substantive averment “ feloniously,” required by the common law in criminal pleading, which system of oriminal pleading was adopted by the Legislature of Louisiana in 1805.
    These essential substantive averments in a bill of indictment, required by the common law, are not dispensed with by the statute of 1855. This statute was not intended to make a radical change in the system of criminal pleadings, but to simplify it, and correct some supposed deficiencies.
    A .¿APPEAL from tlie District Court, Parish of East Baton Rouge, Posey, 3.

      J. C. Stafford, District Attorney, for State.

      R. B. White, and JS. W. Robertson, for defendant and appellant.
   InsnEr, 3.

The defendant appeals from the judgment of the Court a qua, condemning him to imprisonment, at hard labor, in the penitentiary for a term of fourteen years, upon a verdict of guilty on an indictment for robbery; and he relies upon several grounds to arrest the judgment, and set aside the verdict of the jury.

1. As to the motion made by the accused, that the District Attorney should elect one count of the indictment under which to proceed.

The accused is indicted for the crime of robbery. The indictment contains two counts; in the first count the accused is charged as principal in the first degree; in the second count, he is charged as principal in the second degree, together with others.

These are but different ways of stating the same thing; the same crime growing out of the same facts. The crimes charged are precisely, of the same nature, and subject to the same punishment; and, according to the cases of State v. Crosby, 4 An. 434, and State v. McLane, 4 An. 435, maybe charged in different counts of the same indictment, and the prosecuting officer is not bound to elect. Arch. Crim. Plead, p. 70, 60, 61, ed. 1835.

This method, the same accusation in different ways, in separate counts, is adopted in order to prevent a variance from the proof on the trial. 12 An. 391.

The accused cannot complain that the principal in the first degree mentioned in the second count, had not already been tried, or was not tried at the same time. See R. S. p. 176, § 85. Archibald Crim. Plead. 7.

2d. As to the objection of the witness Picou.

Here the counsel seem to have confounded two separate things. ■

If Picou were on trial,his own confession could not be used against him, if obtained by improper means, as by duress, threats, or promises by persons in authority. See Archibald Crim. Plead. 117, etc.

But it is not Picou who is on trial. Undoubtedly, the fact that this witness was an accomplice, had been imprisoned illegally, was influenced by threats or promises, goes materially to affect his credibility as a witness, and is to be properly weighed by the jury, in considering what weight ought to be given to his testimony, but it does not affect his competency, as a witness.

'An accomplice is a competent witness, but his testimony requires some confirmation, aliunde. Archibald Crim. Plead. 148.

There is no bill of exceptions showing that the Judge charged the jury incorrectly on this point.

The witness could not be forced to criminate himself. But this is a privilege of his, which he can waive. There is no reason to suppose that the Distict Court maltreated the witness. The Court in such cases usually informs the witness of his right, ¿nd must be presumed to have done its duty in this respect; but, no one can complain of this omission, except the witness.

3d. It is objected that a copy of the indictment and a list of the jury were not served upon the accused before the trial.

This should have been done, and it was the duty of the prosecuting officer to attend to it, but it is too late after the trial, to urge the objection. State v. Hernandez, 4 An. 370. State v. Howell, 3 An. 50.

4th. As to the indictment.

The accused is charged with robbing Mrs. Clark of thirty dollars and two Derringer pistols, without stating the act to be done feloniously, and with no allegations of taking from the person of another, or in his presence or against his will, or with violence, or by putting in fear.

By our law (R. S. 138 $ 25,) robbery is made punishable by imprisonment at hard labor for not more than fourteen years. Our statute does not define robbery, any more than it does murder, or any other great crime. But it says, (R. S. p. 160 § 1.) that, all crimes, offences and misdemeanors shall be taken, intended and construed according to, and in conformity with, the common law of England. This is a very old law, passed in 1805, which has been never meddled with by subsequent Legislatures. It is, in fact, a part of our bill of rights.

We then must have recourse to the common law of England, to see what constitutes the crime of robbery. Blackstone and Hawkins, (see Archibald Crim. Plead. 224,) say, it consists in the felonious and forcible taking from the person of another, or in his presence, against his will, of any chattel, money or valuable security to any value, by violence or putting him in fear.

All these facts are set forth succinctly, but clearly in the indictment for robbery, according to the English practice, fib. p. 124,) and must be held necessary averments. ■

The word “robbery,” is not used in the indictment.

As the law stood up to 1855, the indictment was clearly void, and the judgment would have been arrested, and the prisoner discharged.

Has the statute of 1855, (R. S. pp. 173, 178,) cured the defects in this indictment? We think it would be to give to this statute an undue and dangerous extension, not dreampt of by the Legislature in passing it, to hold that the accused could be sentenced under such an indictment as this.

We consider the indictment, not formally, but radically and fundamentally defective, and that no judgment can be pronounced sentencing the accused to imprisonment, although *he has been found guilty by the verdict of the jury.

“All the ingredients of the crime with which the defendant is charged, the fads, the circumstances and intent constituting it, must be set forth with certainty and precision, without any repugnancy or inconsistency, and the defendant charged directly and positively with having committed it.” Arch. Crim. Plead. 27.

The statute of 1855 was not intended to make a radical change in the system of criminal pleadings, but to simplify it, and correct some supposed deficiencies.

This statute obviates the disastrous effects frequently arising from a variance between the statements of the indictment and the evidence; makes more ready the description of instruments stolen or forged; allows a defendant to be found guilty of an offence less than that charged, if of the same nature; abbreviates the form of the indictment for certain crimes, as murder; declares certain averments, frequently found in certain indictments, immaterial, and authorizes the omission of them, and declares that the objections “for formal defects shall be taken by demurrer, or motion to quash each indictment before the jury shall be sworn, and not afterwards.”

But this statute very evidently makes no change in the law, as to the questions, what is a formal, and what is a substantial, averment in an indictment.

Considering the indictment before us with the light offered by the general law upon the subject and the statute of 1855, we have to decide whether it contains any defects, and if so, whether the defects are merely formal defects, or defects in matters of substance.

1. The act charged is not said to be committed feloniously. The felonious intent is necessary to constitute the crime of robbery, and it must be alleged expressly (perhaps under our system equivalent words might answer,) in the indictment. The proof must also substantiate this averment, “The goods must appear to have been taken animusfurandi,” as in other cases of larceny. (Arch. C. Plead. 228.) Here, then, is a substantial defect, and enough, in itself, to sustain the motion in arrest of judgment.

2. The indictment does not set forth the “facts” and “circumstances.” These are set forth as succinctly as possible in the English form of indictment. Arch. Crim. Plead. 224

To say that the defendant robbed, &e., is not sufficient. Robbery is a technical term, a highly complex term, and cannot be fully understood except by one acquainted with English law. The crime of robbery is the legal inference from the commission of certain acts under certain circumstances and with a certain intent,, these acts, circumstances and intent must be set out in the indictment.

The case of the State v. Stiles, 5 An. 324, (see opinions delivered by Chief Justice Eustis,) though decided before the act of 1855, seems to confirm these views, as to what are the material averments required in an indictment.

The statute of 1855, (R. S. 173,§ 75,) provides that it is not necessary in an indictment for murder, to set forth the manner of the means of killing; but only that the defendant “did feloniously, willfully and of his malice aforethought kill and murder. ” These are precisely the important facts charged in the indictment according to the English form, and in the very words there used. See Arch. Crim. Plead. 314.

But the word “rob” forms no part of the indictment for robbery, according to the English form, and if any rule of analogy from these provisions of the statute of 1855, might be supposed to affect the case of an indictment for robbery as far as concerns the facts and circumstances, and thus militate against the views above expressed; yet, on the other hand, the rule from analogy would seem to confirm the views above expressed, as to the necessity of stating the felonious intent in the indictment.

The English form of indictment have been in use for many years; they have stood the test of time; they can hardly be bettered in respect of clearness, fullness and succinctness, and it is very desirable that prosecuting officers would observe them more strictly; they would save the courts the necessity of deciding many perplexing questions unnecessarily raised.

By reason of the insufficiency and want of certainty in the statement of the offence charged against the defendant in this case, the judgment of the District Court must be arrested; but for the reasons given by this Court in the case of the State v. Hews, 10 An. p. 197, we will not order the prisoner to be discharged.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed.

It is further ordered, that judgment against Peter Cook upon the bill of indictment preferred against him by the Grand Jury of the Parish of East Baton Rouge, on the 4th day of March, 1867, (a copy whereof is found in the record of this cause,) be arrested, and that the prisoner be detained in close custody as the law directs, until the next session within and for the Parish of East Baton Rouge, then and there answer to a new bill of indictment, or other proceeding that may be preferred against him for the crime of robbery, committed on- the person of Mrs. Clark, with which he now stands charged, and to abide the orders of the District Court of the Parish of East Baton Rouge, thereupon.


author: Howeul, J.

text:
    No. 1558.
    Succession of Pierre Lagarde.
    own name and to his own credit, he thereby becomes personally responsible to the estate for the amount.
    ÍTho administrator received Confederate treasury hotes in payment of debts due the estate: Helds— That such notes, having no legal existence or Value, could not be recognized as receivable in extinguishment of debts or obligations due the succession, and the administBator became personally responsible to the estate for the amount thus received.
    PPEAL from the District Court, Parish of Lafourche, Gates, J.

      Burguierés & Blake, for appellants.

      Belcher & Beattie, for appellees.
   Howeul, J.

The only question presented in this proceeding is, whether or not the administrator can be held responsible to the succession for the sum of $400, deposited by him for safe-keeping with a commercial firm, and lost to the succession by the failure of said firm, and the further sum of $2,184 11, alleged to have been received and still held by him, i,n Confederate notes. The Judge, a quo, held him responsible, and he has appealed. . . ,i-

It is admitted that he deposited the $400, as stated, in his o.wn name, and he thereby made the commercial firm his own depositary, and he was properly held liable for the amount thus lost. He was not authorized as administrator to make such a deposit of the funds of the succession. " As to the Confederate notes, it has been frequently decided that they never had any legal existence or value, and cannot be, recognized eis receivable in extinguishment of a debt or obligation to be enforced by the tribunals of this country. See the case of Cockburn v. Wilson, recently decided. Judgment affirmed.


author: Howebb, J.

text:
    No. 1584.
    J. B. Labadiole v. Treville Landry, et als.
    To bind the endorser on a promissory note, demand of payment must be made by the holder,at maturity.
    Where payment of a promissory note cannot be demanded at its maturity, a demand should be made as soon thereafter us practicable, and the burden of proof is on the holder to show that demand could cot have been made at an earlier date.
    It is not necessary that demand of an inland bill or promissory note be made, nor that notice of dishonor be given, by a notary public. Demand may be made and notice given by any competent witness. 19 An. p. 64. ,
    APPEAL from the District Court, Parish of West Baton Rouge, Pose?/,. J.

      Favrol <& Lamon, for plaintiff and appellee.

      Barrow & Pope, for defendant and appellant.
   Howebb, J.

This is an action against the maker and the payee of a note due in all the month of March, 1865, and payable at the Recorder’s office of the parish of West Baton Rouge, on which there is a credit of a partial payment, on 1st March, 1865, to which the payee and endorser sets up the defence of want of legal protest and notice. Judgment was rendered against the defendants in solido, and the endorser alone has appealed.

All the parties reside in the parish of West Baton Rouge, where the note was executed and payable.

The protest was made by the Recorder, on the 24th November, 1865, nearly seven months after the maturity of the note. But the plaintiff contends that this delay was reasonable and excusable, because there was no officer in the parish competent to make a protest at an earlier date. The Recorder says that he was sworn on the 9th of October, 1865, and commenced officiating on the 11th of same month, under a commission from Governer Wells; he says, also, that from 1862, up to his appointment in 1865, he acted under a commission from Governor Moore, and he was never interrupted by Federal authority in the discharge of his duties; but some Federal soldiers came into his office (at what date he does not state) and mutilated his records, and he had to remove them. He re-inscribed a mortgage in 1864. We infer from this that a demand could readily have been made at his office at the maturity of the note by the holder; and there is nothing to show that notice thereof could not have been given to the endorser. A notarial protest is not essential in the'case of inland bills and notes. A demand may be made and notice given by any competent witness* 19 An. 64,

We think, as plaintiff received a partial payment within a month of the maturity, and all the parties resided in the same parish, where it is shown the Recorder’s office, at which the note was payable, was accessible, no impossibility of making a demand and giving notice at maturity is shown, and that the endorser is released. .

It is therefore ordered that the judgment against Valiere Landry, the endorser, be reversed, and that there be judgment in his favor, with costs in both courts.


author: Labauve, J.

text:
    No. 1609.
    Succession of Thomas R. Sutton.—Opposition to Appointment of Administrator.
    The appointment of an administrator is not necessary where there are no debts against the succession, Where a party claims the administration of an estate, on the ground that he is a creditor, it is incumbent on him bo show by evidence that the debts which he claims are jusb and valid.
    Thomas R, Sutton died leaving a widow with one minor child, issue of the marriage, and one minor child issue of a former marriage. Zenas Preston, the maternal grandfather of the minor of the first marriage, applied for the administration of the estate, alleging that he was a creditor of said minor. The surviving widow opposed his appointment on the ground: 1st, that he was not a creditor. 2d, that there were no debts against the estate. 3d, that she was qualified as the natural tutrix to her minor child, and as such, had the right to administer the estate: Held— ■ That there being no evidence in the record showing that Zenas Preston was a creditor of the estate, he could not bo appointed administrator, and the widow Sutton, having qualified as natural tutrix to hex minor child, and Zenas Preston having failed to qualify as natural tutor to his grandson, the widow lias shown the best right to the administration.
    PPEAL from the District Court, Parish of Tensas, Farrar, J.

      Farrar <& Beeves, for appellant.

      Aroni & Collier, for appellee.
   Labauve, J.

Thomas R. Sutton, died in February, 1867, leaving two minor sons, William Preston Sutton, born in his first marriage with Martha Lucinda Preston, a daughter of Zenas Preston, applicant for the administration, and Daniel Carroll Sutton, the issue of his last marriage with Anna Maria McCulloch, the opponent.

Zenas Preston, the maternal grandfather of the first minor, William Preston, applied for the administration of said succession, alleging himself to be a creditor, and also asking to be appointed as the legal tutor of his said grandson.

The widow of the deceased, opposed this application upon the following grounds :

1st. That no appointment was necessary, because there were no debts.

2d. .That there being no debts, Preston could not be a creditor, and if he was, théfe was enough to pay him.

3d. If administration was necessary, then as natural tutrix of her son and as owner of a large community interest with her said deceased husband, she was entitled to be preferred to Zenas Preston.

The District Judge rejected the application of Preston, and appointed the widow as administratrix of said estate. Zenas Preston appealed.

The application of Preston was filed on the áth of March, 1867, and on the 7th of same month the widow opposed it as stated above.

The alleged claim of Preston, as a creditor, is predicated upon the following account:

1867. — The succession of Thomas R. Sutton, deceased, in account with Zenas Preston.

To board, clothing, tuition, &c., of William Preston Sutton, from the 15th February, 1852, to the 15th February, 1867;

To doctor’s bills paid during the 15 years,- averaging per year...... $30 00

To clothing, per year.........................................130 00

Boarding, $25 per month.....................................300 00

To servant hire, at $60 per year for five years $300, making an average for 15 years of $20 per month..................'. .'2000 00'

Cash actually paid to Miss Kewman for tuition for 15 years ■ $66 66 per year......................................... 66 66 "

Boarding teacher during the time, one year, at $30, is $300, making an average for 15 years of $20 per year........,..... 20 00

560 66

Making for 15 years a total of..............$8,409 90

This alleged claim is so extravagant and extraordinary on its face; that without better proof than is found in the record, it cannot be expected and presumed that it was ever understood by the parties that the father was to pay such charges; from all the circumstances in the case, it would appear to have been a benevolent parental act of affection from the grandfather towards his grandson, and that therefore, he did not anticipate and expect reimbursement of these expenditures which seem to have been intended by him, to be gratuitous. Yerrete v. Belanger, 6 An. 111.

We cannot therefore, for the present, as the case stands before us, consider Zenas Preston a creditor of the estate so as to entitle him to the administration as such; at the same time, we do not intend to prejudice his rights as a creditor.

The record informs us that widow Sutton was duly qualified as natural tutrix to her minor child, and nothing shows that Zenas Preston has been qualified according to law as tutor to his grandson. He maynever qualify, and we are bound to try the issue upon the evidence before us, and not upon the right that the parties have and which they might never exercise or be unable to exercise as prescribed by law. So, we conclude that the widow has shown a better right than Preston to the administration, even if Preston were a creditor. Civil Code Art. 1037, 1035.

The Judge below was of opinion that the appointment of an administrator was necessary, and we are not prepared to say that he erred; it was a matter left, in great part, to his sound discretion as.a probate judge.

The conclusion we have come to, dispenses us from passing on the bill of exceptions, as it is unnecessary to do so.

The judgment appealed from is affirmed, with costs.


author: HowEnn, J.

text:
    No. 1590
    John Williams v. Fred. Greiner.
    An action in damages for a tort, in taking and appropriating the personal goods of another, is prescribed by the lapse of one year from the commission o£ the offence.
    An action for the recovery on an open account is prescribed by three years.
    APPEAL from the District Court, Parish of Lafourche, Gates, J.

      Bush & Goode, for plaintiff and appellee,
    if. I). Jordan, for defendant and appellant.
   HowEnn, J.

Plaintiff claims the value of four hogsheads of sugar and three hundred and twenty barrels of corn, alleged to have been taken and carried áwáy from his plantation, without his.consent, by the defendant, and appropriated to .the use of the latter, in the months of November and December, 1862. The defendant, besides a general and special defence, pleads the prescriptions of one and three years. Judgment was rendered against him, and he has appealed.

, We think the plea of prescription should have, .been maintained. The alleged taking and carrying away occurred between the 3d and the 12th or 15th of. November, 1862, and citation in this suit, was served on defendant on the 28th of November, 1865. If the action is considered as one in damages for a tort, in taking and appropriating personal property, as set out in the petition, it'is prescibéd by one year. If it be viewed as a suit upon an open account, it is prescribed by three years, which elapsed before the service of citation herein.

It is therefore ordered that the judgment appealed from be reversed, and that there he judgment for defendant, with costs in both courts.


author: Howebii, J.

text:
    No. 1173.
    A. J. Delaporte, Admr. v. A. Bourg, Sheriff, et als.
    Where judgment has been rendered in the District Court, before emancipation, for the enforcement of . payment for a slave, the Supreme Court will not now affirm, neither will they.reverse said '• judgment, but; will simply dismiss the appeal.
    The doctrine in the case of Waitvoright v. Brblges, (19 A. 234,) reaffirmed.
    APPEAL from the District Court, Parish of Terrebonne, Gates, J.

      Burguierés <& Blalce and F. 8. ■ Goode, for plaintiff and appellee.

      Louis Bush, for R. Patterson & Co.
   Howebii, J.

In 1860, R. Patterson & Co., appellants, being the holders of a written obligation for a portion of the price of certain slaves, secured by mortgage, instituted thereon á hypothecary action against the third •possessor, obtained judgment recognizing a mortgage on the said slaves, and caused one of them to be seized. Theplaintiff, as administrator of the debtor, enjoined the sale on grounds which it is unnecessary to notice. In 1865,' the appellants answered the petition of injunction, claiming the 'usual damages, and the value of the slave as special damages on the ground that, but for the injunction, (which issued illegally,) they would have realized their claim. Upon trial the injunction was dissolved, without damages.

According to the doctrine settled in the case of Wainwright v. Bridges, 19 A. 231, and reaffirmed in several subsequent cases, the obligation in the suit enjoined cannot be enforced, and there being no such property to fee sold, it would be useless to perpetuate the injunction. On the other hand, we cannot condemn the plaintiff to pay damages for arresting the execution of an obligation which cannot be enforced. We conclude therefore, that' the demand of the appellants for damages cannot be allowed, nbr the prayer of the plaintiff to perpetuate the injunction be granted, We must dispose of this appeal as we did in the case of Henderson v. Montgomery, 18 A. 211, in which a similar question arose.

It is therefore ordered that the appeal herein be dismissed; with costs.


author: Howell, J.

text:
    No. 1560.
    Max Bourgeois, Administrator, v. Billin & Perkins.
    Where the consideration of a promissory note is shown to be the price of a slave, payment cannot be judicially enforced.
    The doctrine in the case of Wainioriglit v. Bridges, (19 An. 23á,) reaffirmed,
    APPEAL from the District Court, Parish of Lafourche, Gates, J.

      W. Hall, for plaintiff and appellant.

      Belcher & Beattie, and 23. W. Blnlce, for defendants and appellees.
   Howell, J.

This is an action on a promissory note, the consideration of which is shown to have been the value of a slave; and for the reasons given in the case of Wainwright v. Bridges, 19 A. 234, the judgment of the District Court is affirmed.


text:
    No. 101.
    J. B. Kirtland v. Wm. H. Harris.
    Where the defendant, sued as endorser on a promissory note, propounds interrogatories to plaintiff, a non-resident, on facts and articles, the law requires that they must be answered under a commission, and if the plaintiff make answers responsive to the questions asked, without a commission, they will be excluded on trial.
    Where a commission has issued according to law to take the answers of plaintiff, a non-resident, to interrogatories, and it is not shown that sufficient time has not elapsed for the return of the commission, the fact that it is not returned is not good ground for a continuance of the cause.
    APPEAL from the Distict Court, Parish of Carroll, Farrar, J.

      Sparrow t& Montgomery, for plaintiff and appellee.

      W. G. Wyly, for defendant and appellant.
   Howell, J.

The defendant is sued as payee and endorser of a bill of exchange. The answer is a general denial, which afterward is amended by propounding interrogatories on facts and articles to plaintiff. At the trial defendant moved for a continuance on the ground that the commission to take the answers of plaintiff, residing out of the State, had notbeen returned; the counsel of plaintiff then offered, as a substitute, the answers of said Kirtland, taken without a commission in Memphis, Tennessee, responsive to the interrogatories, which the Court received in evidence, and defendant reserved a bill of exceptions.

The admission of the answers so taken was irregular. The statute of 10th February, 1843, requires specially, “ that when the party interrogated resides out of the State, his answers shall be taken by commission.” It is the duty of his counsel in the cause to obtain the commission for the purpose, and have it executed according to law.

But we do not think the bill of exceptions presents a legal ground for a continuance. It does not appear that sufficient time had not been allowed for the party interrogated to answer. What his remedy was, under the circumstances, is not for us to suggest. All the advantage he can now claim at our hands is to exclude the answers upon technical objections, as the plaintiff seems to have intended honestly to answer the interrogatories.

Without these answers there is sufficient evidence to make out plaintiff’s case. The bill of exchange, the protest and the evidence as to the notice of the dishonor, establish defendant’s liability as endorser. We are fully satisfied that he had notice, as he acknowledged the receipt of the letter containing it. Judgment affirmed.


author: Labauye, J.

text:
    No. 1598.
    Caroline and Helena Durrive; Coralie Harris and Husband; Felix A. Ducros and Generes; Edmond Soniat Duforsat et als. v. Philip B. and Maria L. Key.—Consolidated Cases.

    Mortgages are slricli juris, and cannot be extended by implication to cover obligations other than those mentioned in the act.
    Philip B. and Maria L. Key executed two acts of mortgage on real property in favor of Edward Durrive <fc Co., of the city of New Orleans, for the sum of thirty-two thousand dollars, in the aggregate, and authorizing said mortgagors to draw on the mortgagees from time to time, as they may require the same, with the understanding that the total amount of their indebtedness shall never exceed at any one time the sum of thirty-two thousand dollars, to be evidenced by the account current of such advances, to be kept by said firm. After the morgage was executed, the mortgagors executed a large number of notes, to their own order, by them endorsed, which were delivered to Edward Durrive & Co. and by them endorsed and negotiated, and the net proceeds credited to Philip B, and Maria L. Key in the account current. These notes, which subsequently fell into the hands of third parties, plaintiffs in this cause now seek to make the property mortgaged subject to these notes. The last account current shows that the amount of the mortgage, $32,000, has been overdrawn independent of the notes: ¿reíd — That, under this state of facts, Edward Durrive &Co. had no mortgage executed in their favor specially to secure the promissory notes thus executed by the mortgagors and could transfer none to the subsequent holders of the notes; that the holders of the notes have no mortgage on the property thus mortgaged to secure advances to the mortgagors, because it does not so specify that these notes are secured in the act of mortgage.
    APPEAL from the District Court, Parish of Iberville, Posey, J.

      Samuel Matthews, for appellants.

      Barron <& Pope, for appellees.
   Labauye, J.

This is a contest among the plaintiffs as holders respectively of certain notes executed by the defendants, and alleged to he secured by a mortgage on certain property of the defendants, and in regard to the preference or rank, of mortgage.

The District Court, having decided that the plaintiffs were all concurrent mortgage creditors, and that their claims, which were liquidated by judgments, should be paid out of the proceeds of the mortgaged property in the proportions they respectively bear to the whole; the plaintiffs in the first cases, Nos. 173 and 180, took an appeal to this Court.

Philip B. and Maria L. Key, by two acts of mortgages, one passed before Joseph Pardo, June the 25th, 1859, and the other, before Adolphe Grass, on the 15th June, I860, mortgaged their plantation to Edward Durrive & Go., in the one act, to the extent of $12,000, and in the other, to the extent of $20,000, for the following consideration, to-wit:

“Whereas Edward Durrive & Co., of the city of New Orleans, have agreed to make advances in cash for the use and benefit of Philip B. and Maria L. Key, from time to time, as they may require the same, upon the drafts of the said Philip B. Key, drawn in his own name and that of his mother, Mrs. Maria L. Key, on the said Edward Durrive & Co., with the understanding that the total amount of their indebtedness to the said firm shall never exceed at any one time the sum of twenty thousand dollars, (as expressed in one act, and twelve thousand dollars as expressed in the other,) to be evidenced by the account current of such advances, to be kept by the said firm, and all which advances are to bear interest at the rate of eight per cent, per annum, until reimbursed by the said Philip B. and Maria L. Key, and in order to secure the said Edward Durrive & Co. the full reimbursement of all such advances and interest and attorney’s fees, the said Philip B. and Mariá L. Key do specially mortgage and hypothecate, etc. ”

Here Mows the description of (¡he property mortgaged,

Upon these securities it appears from a current account between the parties to these acts, and introduced in evidence', commencing on the31kt May, 1861, and closed on the 3íst August, 1862, that the defendants executed a large number of notes to their own order, and by them endorsed, which were delivered to Edward Durrive & Co., who also endorsed and negotiated them, and the net proceeds were credited in the current account to said defendants; that they also sent to market sugar and molasses which were sold by said Edward Durrive & Co., and put to the credit of said defendants; and Edward Durrive & Co. also received for defendents, proceeds of property at Carrollton, $5000, which was placed to the credit of defendents, amounting in all to...............$43,531 76 That the debit side of the account consisting in notes, drafts, money, supplies, &e., amounting to.....................$84,152 90

Left a balance due E. Durrive & Co. of......................$40,621 14

On the 31st August, 1862, the said E. Durrive & Co., retained fourteen notes of the defendants and which figured on the debit side, and credited them with the same, amounting to,. $34,850 00

Leaving still due a balance of....................$5,771 14

So, that on that day, the defendants o-wed really to E. Durrive & Co., in cash and their fourteen notes, the above balance of $40,621 14.

The notes sued upon, amounting to $20,550, being a part of the fourteen above mentioned, are also charged to debit of said defendants, and comprised in the said sum of $84,152 90. They were negotiated and transferred respectively to the plaintiffs by said Edward Durrive & Co., with a subrogation to their mortgage.

The question is: Are the notes sued upon, secured by the mortgage given by defendants to Edward Durrive & Co. ?

It is clear that this mortgage was not granted to secure any distinct and separate advances, drafts or any thing else charged on the debit side of the account current between the parties, but to guarantee the balance which might be due the mortgagees. The total amount of defendants’ indebtedness to Durrive & Co. was not to exceed at any one time the sum of $32,000, to be evidenced by the account current of such advances; this shows that the indebtedness of the mortgagors, should result from the balancing of the account, and that it is only then that it would be known. The account in evidence commences on the debit side, by charging the defendants with a balance of $1,620 73, showing that another and former account had already been balanced, and this balance is merged into a new account current. These notes are not more secured by the mortgage than any other item charged to the debit, amounting altogether to $84,152 90, when said mortgage only secured $32,000. Mortgages are stricti juris; they cannot be extended by implication to secure any other obligation than that expressly mentioned. 11 An. 175. This mortgage necessarily contemplated that the balance found due by the defendants, was secured by it, and not each and every item of the account. 7 An. 298.

We conclude that Edward Durrive & Co., had no mortgage to secure separately the notes sued upon, and could transfer none to the transferrees and holders of said notes.

It is therefore ordered and decreed that the judgment appealed from be so amended as to strike out that part recognizing and allowing a mortgage, and that, as amended, it be affirmed; the appellants to pay costs of appeal.


author: IxiSeey, J.

text:
    No. 1588.
    John Gauche v Joseph Gondran.
    Where a party acknowledges the correctness of a debt and promises to pay it after prescription has been acquired, with a, full knowledge that the debt is prescribed, he thereby waives the benefit of the plea of prescription.
    APPEAL from the District Court, Parish of Ascension, Beauvais, J.

      B. J5T. Simms, for plaintiff and appellee.

      W. G. Lewis, for defendant and appellant.
   IxiSeey, J.

The plaintiff claims from the defendant, as a balance of account for goods and merchandise furnished him during the years 1860 and 1861, amounting to- the sum of six hundred and twenty-seven dollars and seventy-six cents, with interest and costs.

The answer is a general denial, and the prescription of two and -three years. .

The lower Court gave judgment for the plaintiff for the whole amount of his claim,, and the defendant has appealed.

There are extant upon the record three bills of exceptions, which, as they are not urged in this Coui-t, are deemed waived. (14 An. 721; 16 An. 87.) The plaintiff’s claim, a merchant’s account, was prescribed on the 8th May, 1864, as there is nothing in the record to show that during the three years the plaintiff could not act, either in consequence of the occlusion of the courts or for any other reason.

His petition was not filed in Court until the 12th April, 1867 (R. S. section 30, article C. C. 35f)3.) Rut after prescription was acquired the defendant voluntarily renounced it. (Art. 3423 C. C.) In 1866, he acknowledged the debt to the plaintiff’s agent and promised to pay- it. This is proved by the agent, and is corroborated by the defendant’s answers to interrogatories on facts and articles, taken as confessed, and otherwise. See the case of Levistones v. Marigny, 13 An. 354, 5; and authorities therein cited. The defendant’s renunciation of prescription was entirely free and spontaneous with full knowledge of his debt being prescribed-, of which he has not proved his ignorance. See Troplong, Prescription, pp. 68, 69, l 54 and 55.

The plaintiff’s claim was due to him in 1866, and since then no- pre« scription has run. against it.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed, at the costs of tile appellant.


author: Hyman, C, J.

text:
    No. 1079.
    Alphonse Drez v. Mathew D. Logan.
    Where no error in the judgment of the District Court is pointed out, and none appears from tho record, the Supreme Court will dismiss the appeal, and award damages to appellee.
    APPEAL from the Fifth District Court of New Orleans, Beaumont, J.

      J. L. Tissot, for plaintiff and appellee.

      Fellows & Mills, for defendant and appellant.
   Hyman, C, J.

Defendant has taken a suspensive appeal from an order of seizure and sale, commanding the sheriff of the Parish of Orleans to seize and sell a lot of ground with the improvements thereon, to pay the sum of $325 30, with interest.

He has not pointed out any errors, and, in examining the transcript, we have not perceived any. ....

The appeal was evidently taken for delay, and the plaintiff, has asked for damages because of the frivolousness of the appeal.

Let the decree of the District Judge be affirmed, at the costs óf déféndant, and let the plaintiff recover of defendant twenty-five dollars as damages.


text:
    No. 1564.
    James A. Guyther v. Mathurin Bourg.
    A waiver of protest, by the endorser, written on the back of a promissory note, operates a waiver of demand on the maker.
    The waiver of protest and notice of dishonor by the endorser of a promissory note is not such an agree* ment as requires a United States internal revenue stamp placed thereon to admit it in evidence.. •
    APPEAL from the Distriot Court, Parish of Lafourche, Gates, J.

      W. Hall, for plaintiff and appellee.

      Belcher <& Beattie, for defendant and appellant.
   Hyman, C. J.

Defendant, sued as endorser of a note payable to his order, is appellant from a judgment rendered against him thereon.

He contends that his waiver of protest and notice of dishonor of this note, wherein he declared that he held himself responsible on the note as if it had been duly protested and notice of protest served on him according to law, did not waive a demand for its payment on the maker, and that demand of payment on the maker should have been' proved, before he could be made responsible on the note.

The position assumed by defendant is erroneous. The note could not have been properly or duly protested, unless a demand for' its payment had been made on the maker and the demand' is waived by waiving protest on the note. Hennen’s Digest, page 205, No. 9. •

Defendant objected to the introduction in evidence of the waiver of protest and notice because it was not stamped, and he refers us to acts of Congress in regard to the same. The acts declare that an agreement- or contract shall not be received in evidence without being properly stamped; The acts evidently referred to original agreements by which parties intended to bind each other, and not to a waiver of some condition of the .contract or some right thereunder. t

The acknowledgment of an agreement would not make the acknowledgment the agreement, nor does a waiver of a right under a contract make the waiver the contract, as the contract must have existed before the waiver was made.

Judgment affirmed at defendant’s costs.


text:
    No. 1568.
    Evariste Lapine v. New Orleans, Opelousas and Great Western Rail Road Company.
    Rail-road companies are responsible in damages for tho destruction or injury done to horses, mules, or other stock, by runriing over them on tho track, and tho burden of proof is on the company to show that the accident was unavoidable.
    The amount of damages is the value of the stock destroyed.
    APPEAL from'the District Court, Parish of Lafourche, Gates, J.

      Bush■ & Goode, for plaintiff and appellee.

      Winchester Hall, for defendants and appellants.
   Howell, J.

The defendants have appealed from, a judgment condemning them to pay the value of two horses, killed by their freight-train, while passing in daylight through the plantation of the plaintiff.

An examination of the evidence in the record, and the briefs of counsel, has not convinced Us that the Judge, a quo, has erred. There was negligence on the part of defendant’s employes in not adopting the usual means to avoid such an accident. The preponderance of evidence is that the usual mode' to frighten animals off of rail-road tracks is to blow the steamTwhistle, which was not done in this instance. By the testimony of the engineer and conductor, the only witnesses for defendants, it appears that the horses were running in front of the locomotive when struck, and we must think that if the speed of the train had been checked instead of increased, as it was, they would have escaped. The account given by these two witnesses of the occurrence does not relieve them from the charge of such negligence as makes the defendants liable; while the witnesses for the plaintiff strengthen the correctness of tho District Judge’s conclusion. His estimate of the value seems to be a just one under the evidence, being nearer the minimum sum.

Judgment affirmed.


text:
    No. 1578.
    Logan Railey v. Andrew H. Gay.
    Where a party sold a horse during the late war to be used in the interest of the rebellion, he cannot enforce the payment of the price in the courts of the country; the sale being made for an unlawful , purpose.
    A lx PPBAL from the District Court, Parish of Iberville, Posey, J.

      W. B. Bobertson, for plaintiff and appellant.

      Barrow & Pope, for defendant and appellee.
   Howell, J.

This is an action by the payee against the drawer of a sight-draft, dated in Kentucky, on 7th October, 1862, and protested for non-payment, in the parish of Iberville, on 26th November, 1866; the defence to which is that the consideration is one that cannot be recognized by the courts of the country, being the price of a horse purchased by defendant, from plaintiff, "to be used, with the knowledge of the latter, in the service and aid of the late rebellion.

The defence is sustained by the evidence, and there can be no question as to the principle of law, that-obligations or cpntracts, with such cause, cannot be enforced in our tribunals.

Judgment affirmed.


author: Howdll, J.

text:
    No. 1562.
    Helen A. Moore et als. v. Edward Moore et als.
    By the act of the Legislature of 1844, page 99, the survivor has the usufruct of the share of tho deceased partner in community. The usufruct under this statute is governed by the rules relating to that subject in the Civil Code.
    By Art. 538, C. O. “ The natural fruits, or such as are the produce of industry, hanging by branches or by roots, at the time when the usufruct is open, belong to the usufructuary.
    The failure of the husband to open the succession of his deceased wife, and inventory the property of the community, or give bond, does not annul or suspend the statutory usufruct, nor does it make him liable to account to the children of the marriage for the revenues due to him from the moment the usufruct accrued. He is in possession of right under the law, and canso continue, until a partition, or a second marriage.
    From the date that the survivor in community contracts a second marriage, he is bound to account to the heirs (children,) of the former marriage for the rents and revenues arising from the use of ■ the share of the deceased in the community.
    Only the heirs having an interest in the community of their deceased mother, who are subject to tho tutorship of their father by reason of their minority, have a legal mortgage on the property of their father, to secure the restitution of their interest of which the father has had the usufruct. -
    The Supreme Court can only settle the rights of parties as between the appellants and appellees, and not between the appellees inter eese.

    APPEAL from the District Court, Parish of Iberville, Posey, J.

      Bunn & Herron, for plaintiffs. W. J3. Robertson, for defendants.

      S. Matthews, for ihtervenors.
   Howdll, J.

Plaintiff, Helen A. Moore, demands of her father, one of the defendants, an account of his administration of the estate of her mother, who died on 27th August, 1855, alleged to consist, at the time, of lands, slaves; personal property, and a growing crop of sugar cane, corn, &c., and the revenues thereof; also, a judgment of partition decreeing her one-fourth of her mother’s estate in kind, or by licitation, secured by a tacit mortgage, alleging that her father failed to have an inventory made until March, 1862, when he contracted a second marriage, in which he omitted to include the crop of 1855, and other assets, and that he is liable as negotiorum gestor and natural tutor. The three other heirs, cited as defendants, appeared and joined in the prayer of the plaintiff. The father answered, admitting his liability to account for the growing crop of 1855, which he estimates at $20,000, net, alleging that the slaves, stock, and other movables were lost by the effect of the war without his fault; that he has settled in full with two of his children; that by law he had the usufruct of the decedent’s property until his second marriage in April, 1862, since which time the crops yielded no revenues, and praying that the demands of his said two children be rejected. The plaintiffs filed what is termed an opposition to this answer as not containing a full statement of his indebtedness, and claimed the rents of the lands, and movables, and hire of the slaves from the expiration of the usufruct to final partition.

Sosthene and Ennemond Boissac intervened, alleging that the defendant Edward Moore became their tutor on 10th February, 1858, and as such, he is indebted to each of them in the sum of $3,401 72, with legal interest, and a tacit mortgage from said date on all of his property; that this suit is instituted by fraud and collusion to cover his property with a mortgage in favor of his children, to whom he owes nothing, having paid them more than their shares in their mother’s estate, and praying that the demand for an account he rejected; that the defendant,. Edward-Moore, baye judgment against Ms children, severally, for the excess paid them, with a tacit mortgage in his favor; that the partition prayed for be effected by a sale at auction for cash of all the community property; one-half of the proceeds to be allotted to the defendant, and the other half, less the amounts due him, to be divided among the four children; that the sums due them (intervenors) be paid out of the proceeds, which may be due to them from the sale here prayed for, and that a new inventory be made as a basis of said partition. Upon a special application by the heirs an inventory was ordered and made, and pending the proceedings, the defendant filed a new suit against his children, praying for a sale of the community property, to which they assented. This property was all sold in block for cash, purchased by two of the heirs, and the proceeds retained by them under another agreement, to be distributed by the judgment in this case. All the parties demanded the sale of the property.

Judgment was rendered, ordering the defendant, Edward Moore, to account for $57,331, including the crop of 1855, one-fourth to each heir, requiring one to collate $8000, granting them a legal mortgage on the real estate of their father, from 26th August, 1855, and condemning the intervenors to pay costs of intervention; from which judgment the intervenors have appealed. They contend that the defendant owes nothing to his children, that their own legal mortgage attaches, and that their claims, liquidated by judgment with mortgage, must be paid out of the proceeds of the property sold.

The first question to be settled is, whether cr not the growing crop of 1855 was community property?

By the act of 1844, (p: 99,) the defendant held in usufruct, from the moment of her death, the share of his deceased wife in the community inherited by their children, (see 12 A. 457); and it was held in the Succession of Fitzwittiam, 3 A. 489, that the usufruct under this statute is governed by the rules relating to that subject in the Code. Art. 538, C. G. declares that “ the natural fruits or such as are the produce of industry, hanging by branches or by roots, at the time when the usufruct is open, belong to the usufructuary. Fruits in the same state at the moment when the usufruct is at an end belong to the owner, without being obliged to compensate the other for either work or seeds.” The failure of the husband to open the succession of his wife, and inventory the property of the community, or give bond, if necessary, does not annul or suspend the statutory usufruct, nor make him liable to account to the children of the marriage for the moneys due to him from the moment the usufruct accrued. He is in possession of right, and has a right to so remain until a partition. (See Succession of Viaud, 11 A. 297.) Hence, the defendant in this case was not bound to account to his children for the crop of 1855, which was hanging by the branches or by the roots, at the death of his wife, on the 27th August, of that year, and it must be omitted in fixing his indebtedness.

It is shown that in 1863, he sold mules, sheep, and other stock, belonging to the community, to the amount of $4,370; one-half thereof coming to his children is $2,185, adding to which four years’ interest at five por cent., $437, makes $2,622 due the latter for said item. The rents of the whole property for 1862,1863,1864 and 1865, are shown to be $20,000, and the rent for 1866, @8000; the half of these is @14,000, and the interest at 5 per cent, from the end of each year is @1,450, making- @15,450, which, added to the first item for the stock, makes @18,072, as the total in favor of the four heirs, and the sum of @4,518 apparently due to each by tbe defendant.

But only the portion coming to plaintiff, Mrs. Carter, less the sum of @716 40, already received by her at different dates, is secured by a legal mortgage, as the record shows that she is the only one of the children who was ever subject to tutorship; and as we are authorized only to settle the rights of the parties, as between the appellants and appellees, and not between the appellees inter sese, they not having joined in the appeal, we cannot render judgment against the father for the sums in favor of the children respectively. The only interest which the appellants, who are the intervenors, can have in this litigation is to secure their mortgage rights against the defendant, their tutor, and to do this they'can show-what sums with mortgage, if any, have preference over their mortgage; and we have seen that only Mrs. Carter’s claim for @3,801 60, against her father, has such preference.

It is therefore ordered that so much of the judgment appealed from as recognizes and grants a legal mortgage in favor of plaintiff and her co-heirs on the real property of defendant, Edward Moore, from 26tb August, 1855, and condemns the intervenors to pay costs of intervention be reversed; and it is now ordered that the plaintiff, Mrs. Helen A. Moore, wife of Eugene Carter, be decreed to have a legal mortgage, dating from August 26th, 1855, for the sum of @3,801 60, on the real property of the defendant, Edward Moore, and to be paid said sum by preference out of the one-half of the proceeds, in the hands of the purchasers, of the community property, sold herein, on 5th January, 1867, coming to the defendant, her father. And it is ■ further ordered, that the intervenors, Sosthene M. and Ennemond Boissac, be decreed to have a legal mortgage, dating from the 10th February, 1858, on the real property of the said defendant, Edward Moore, for the amounts of their judgments respectively, rendered on the 15th May, 1867, in suits Nos. 445 and 740 on the docket of the Fifth Judicial District Court for the parish of Iberville, and that said judgments, interests and costs, be paid next in rank to the said Mrs. Helen A. Moore, wife, <fcc., with vendor’s lien on the property sold herein out of the said proceeds in the hands of the purchasers of said community property, coming to the defendant, Edward Moore, with their costs of intervention in the lower court, and if not paid, execution to issue in their favor under this decree.

It is further ordered that, as thus altered and amended, the judgment of the District Court be affirmed. The appellees to pay costs of appeal.

Rehearing refused.


text:
    No. 1110.
    Ambrose Lanfear v. Joseph Duraind et als.
    Where the certificate of the clerk of the District Court shows that the record of appeal is not such as the law requires, and the appellant has not filed an assignment of errors within ten days after tlhQ filing of the record, the appeal will be dimissed.,
    APPEAL from the District Court, Parish of St. Charles, Beauvais, J,

      Jules Béjéan, for plaintiff,

      T, A, Barilette, for defendants,
   Labauve, J.

We regret to be compelled, ex proprio molu, to dismiss this appeal.

The clerk certifies:

“That the above fifty-eight pages contain a true, correct and complete transcript of all the documents filed, and the proceedings had (excepting the testimony of Mr. Duraind and Mi'. Deslisle on their voir dire, and of Lafills for defendants, taken on trial of the exception of defendants, on their vernacular tongue, which testimony was not ordered to be reduced in writing,) in the suit entitled “Andrew Lanfear v. Joseph Duraind, Ed. Paradis, Sam’l Deslisle and Louis Cliamberg, No. 613, of the docket of suits of this court, and in which suit Ambrose Lanfear is plaintiff, and Joseph Duraind et ais. are defendants.”

It is evident that this certificate is so incomplete that we are not enabled to examine the matters argued or contested below. Code of Practice, Arts. 895 and 896. In such a case the appeal must be rejected, with costs, unless the appellant has filed an assignment of errors of law appearing on the face of the record, within ten days after the record was brought up. Code of Practice, Art. 897.

This appeal was applied for, and granted by the Judge, on the 4th of October, 1866, returnable before this Court; no return-day was fixed by the order, and it was filed in this Court on the 10th December, 1866. It is on the 3rd of February, 1868, only, that the appellants have filed a document, which they call a brief, assigning great many errors. We do not take it to be an assignment of errors; but admitting it to be such, it was not filed within ten days after the filing of the record, and it was too late; therefore the appeal must be dismissed. Code of Practice, Art. 897; 6 L. 144, 157, 209; 1 R. 460; 4 R. 147; 14 An. 303.

Appeal dismissed, with costs.

Rehearing refused.


author: Tauiafeeeo, J. Howell, J. Ldsley, J.

text:
    No. 897.
    Edward Jacob, Administrator, v. Thomas L. Macon, Executor of Charles D. Yancey.
    Where the testator bequeathed to his wife ten thousand dollars, and subjoined to the bequest a desire that she should use the same for the benefit of her brothers and sisters, (designated by name,) according to her best judgment and discretion : Hdú, — That this was an absolute bequest in favor of the wife, and that she had the absolute disposal of the money bequeathed.
    The desire of the testator is simply addressed to the conscience of the devisee.
    A 1JL PPEAL from1 the Second District Court of New Orleans, Bermudez, J.

      E. Phillips, for appellant.

      Semmes & Mott, for appellee.
   Tauiafeeeo, J.

Charles D. Yancey died in July, 1861, leaving a widow and a minor child. He left a will, among the provisions of which is the following clause:

“I give and bequeath to my wife the further sum of ten thousand dollars, which I desire her to use for the benefit of her brothers and sisters, Eugene, Louise, Mathilde and Louis H. Malarcher, according to her best judgment and discretion, which is to be paid after the discharge of the debts; and, provided further, the same shall not exceed the full amount coming to the heirs and children aforesaid of Robert S. Yancey.”

The testator’s wife died in. January, 1862, having survived the child; the legatees named in the will, and Camille Malarcher, a sister, being her only heirs. The four brothers and sisters named as legatees claim this legacy, in their own right, as legatees. They also, by an amended petition, claim it as heirs of their deceased sister, Mrs. Yancey. Mrs. Camille Malarcher intervened, claiming a portion of the legacy as an heir of her sister, Mrs. Yancey. This suit is brought by the administrator of Yancey’s estate and the four legatees against the executor to compel him to pay the legacy.

The executor answered that the bequest is a substitution or fidei-commissum, and null and void; that the succession of Yancey is still in course of liquidation; that large debts against it are remaining unpaid, and if the clause of the will, under which the plaintiffs set up the demand, be valid, still, by its conditions, the amount to be paid is contingent, and not at present ascertainable. Judgment in the court below was rendered in favor of the defendant, declaring the nullity of the donation as a trust or fidei-commissum, reprobated by law. From this judgment the plaintiffs have appealed.

The only question submitted to the Court is, as to the validity of the legacy.

The ten thousand dollars are given to the wife, not for her own use and benefit, but for the benefit of her brothers and sisters. She is not to appropriate it in any manner except for their benefit. She is clothed with a discretion which is limited. She is to determine the mode or manner and the proportions in which the legacy is to be distributed. But she is not vested with the power to withhold it. The proviso at the end of the clause renders the amount to be paid contingent. The testator appointed his wife executrix, and the defendant and another executors of his last will and testament. This legacy, it may be assumed, was to be discharged by the wife as executrix.

Our Code has not abolished naked trusts, uncoupled with an interest, to be executed immediately. Mathurin v. Livaudais, 5 N. S. 302. Henderson v. Ross, 5 An. 472. Here the wife has no interest in the donation, but is charged to return the thing to a third party upon the happening of a future event, which may soon occur, or be protracted for a length of time. The seizin of the executors commenced in July, 1861, and the debts of the estate, after a period of six years, remain unsettled. We can not regard the clause of the will under consideration as constituting that kind of naked trust tolerated by our law; nor can we assimilate it to that class of fidei-commissa, in which the donee is not charged to preserve the property during his natural life, and in which it is not tied up in his hands, nor where he is forbidden to alienate it; but where the property is to be transferred to a third person only in case the first donee should not convert it to his own use. In such a case the Udei-commissum is null, being in violation of a prohibitory law, but valid as to the first donee. Beaulieu v. Ternoir, 5 An. 476. Neither is the intended donation to the brothers and sisters of the testator’s wife a substitution. But as the terms of the bequest imply the charge to preserve and return the thing to the persons intended to be benefitted by the legacy, it must be held to import a disposition reprobated by law, and that it is, therefore, null and void. Civil Code, article 1507.

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

Howell, J.

In concurring in the opinion and decree in this case, I deem it necessary to say that the time limited by the executor for pay-ing the legacy can have no influence in determining the character of the legacy, as by law it could not be paid before that period.

On Rehearing.

Ldsley, J.

A rehearing having been granted in this case, we have again directed our attention to the following disposition or bequest in the last will and testament of Charles D. Yancey, in order to ascertain if it is null and void, as containing a substitution or fidei-commissum.

The bequest is as follows:

“I give and bequeath to my wife the further sum of ten thousand dollars, which I desire her to use for the benefit of her brothers and sisters, Eugene, Louise, Mathildé, and Louis H. Malarcher, according to her best judgment and discretion, which is to be paid after the discharge of the debts; and provided further, the same shall not exceed the full amount coming to the heirs and children of Robert S. Yancey. ”

The testator, by the disposition just recited, gives and bequeaths to his wife, to be paid to her absolutely, after the discharge of the debts, ten thousand dollars, provided this sum does not exceed the amount coming to the heirs and children of Robert S. Yancey.

He desires her to use the money for the benefit of her brothers and sisters, but she has the absolute disposal of it and may spend the money donated. 13 An. 122-8; 17 An. 231.

This lacks every feature of a substitution. It whs held in Beaulieu v. Ternoir, “it is an essential requisite of a substitution that the thing given be tied up in the hands of the first recipient during his natural life.”

II faut, says Marcadé, vol. 3, p. 368 $11, qu’il y ait substitution, que le bénéficiare soit vraiment obligé par l’acte:

18 De conserver la chose donnée;

2s De la conserver jusqu’á sa mort;

32 Pour la rendre a une persono e désignée.

C. O. 1507; 5 Toull. No. 27; Rogron, Art. 896. Trop. Donations and Testaments, No. 10, Pecquet v. Pecquet, 17 An. 230; 4 An. 204.

The desire or request of the testator, Charles D. Yancey, is simply addressed to the conscience of the devisee. 8 An. 259; 10 An. 417; 5 Toull. Don. et Test. 111, 117; Cass. 1856, p. 557; Story’s Equity, 1069, 1070; 5 Zacharie, 248, 249, note 17. Siry C. annoté, Art. 896, Nos. 2, 3 and 4.

We do not consider the bequest a trust; but if it were ono, it would bo at most a simple fidei-commissum, which, though a nullity, would not carry with it the nullity of the donation to the testator’s wife. See 5 An. 481.

By agreement of parties, this is the only question submitted to us in this ease for solution, and although the conclusions we have now reached differs from that previously arrived at, we deem it the correct one.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that judgment be and the same is hereby rendered in favor of Edward Jacob, administrator of the succession of Mrs. Feliece Malarcher, deceased widow of Charles D. Yancey, and against Thomas L. Macon, executor of the last will and testament of Charles D. Yancey, predeceased, for the sum of ten thousand dollars, amount of the legacy to Feliece Malarcher, the wife of Charles D. Yancey, made to her in his last will and testament, and that the said succession of Charles D. Yancey pay the costs in both courts.


text:
    No. 1624.
    A. Leggett, Administrator, v. Henry Goodrich.
    The act of Congress of 17bh July, 1862, entitled “an aot to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” was enacted in the interest of the Government, and not for the benefit of those against whom its provisions arc directed, and the nullity of transfers therein denounced relates to sales made to defeat the rights of the Government.
    Where a party has made a contract in violation of the confiscation laws, he cannot, in order to relieve himself, invoke the nullity therein declared.
    Defendant, Henry Goodrich, executed his throe promissory notes in favor of A. Legget, administrator, for six thousand dollars, the price of a tract of land, which he purchased on the L6th day of July, 1862, at probate sale, secured by mortgage on the land; plaintiff instituted an hypothecary action to force the payment of the notes, which the defendant resists on the grounds that the sale was a nullity, having been made in violation of the confiscation laws of the United States passed on 17th of July, 1862, the proclamation of the President of the United States, and the military orders of the commanding general: Held — 'That the defendant, having alleged and shown that he was, at the date of the sale thus made, engaged in open and aotive rebellion against the Government, was not in a position to invoke the benefits of the nullities of the sale declared by law, in order to relieve himself from the obligations which he had contracted.
    PPEAL from the District Court, Parish of Carroll, Fai'rar, J.

      W. G. Wyly, for plaintiff and appellant.

      BeFrance & Belony, and Sparrow & Montgomery, for defendant and appellee.

      Brief of plaintiff and appellant.

      * * * But the most remarkable feature of the case is the point upon which the Judge, a quo, decides. He decides that the defendant should be relieved from his onerous contract of sale, because he has alleged and proved himself to be a criminal.
    Defendant proves by his attorney of record, E. J. Delony, Esq., that he is a very unworthy man; that as postmaster of the United States, he swore to support the Constitution thereof, and afterwards, to-wit: in 1862, committed treason against the United States- by aiding in levying war against the same; “that during the year 1862, witness heard defendant say that he assisted in equipping one or more military companies for service in the armies of the late Confederate government,” etc. — See Record, page 15.
    Defendant’s attorney testifies that defendant, “ Goodrich, on the 18th December, 1862, was aiding and assisting the late rebellion against the United States. ” This was urged as the ground why he, Goodrich, should be relieved from liis onerous contract of sale made on that day with the late Samuel Neill.
    A man who has proved that he has attemped to destroy the life of the nation, asks the Court on that ground to do him a favor, to release him from an onerous contract. If lie, Goodrich, had been loyal, he could not liave asked this favor of the Court; but conceiting that his own crime gives him merit, he boldly asks the Court to relievo him from his onerous contract, and. expects a generous Government to do more for criminals than it could do for its loyal citizens. Treason is the worst crime known to the law; yet the District Judge felt obliged to relieve the defendant, Goodrich, and give him judgment, because he proved himself guilty of treason.
    The act of 17th July, 1862, to suppress the rebellion and discourage treason, has been most singularly interpreted by the Judge, a quo. Has treason been discouraged by beneii.tting the defendant, in relieving him from his contract with the late Samuel Neill? It is to encourage treason to thus reward men who have made their own crime the ground why they should be'released from their contracts. An act to discourage treason is thus construed to encourage it. (See Statutes at Large, No. 12, pages 589,590.) Not satisfied with proving defendant, Goodrich, the gravest criminal, the counsel for defendant was permitted to prove the deceased, Samuel Neill, was also guilty of treasonand had not returned to his allegiance up to his death, in 1863, although plaintiff’s counsel objected to any testimony calculated to criminate the deceased. (See Record, pages 15 and 16.) Plaintiff’s counsel objected to any proof of crime against the deceased, but his objection was overruled by the Court and the testimony received. * * ****** * * *
    If a lenient Government declines to enforce confiscation laws upon parties to the rebellion, does that justify avowed criminals to enrich themselves by judgments of Courts relieving them from their onerous contracts?
    Can laws of confiscation, enacted in the interest of the Government, with the view to suppress the rebellion and punish treason, be so construed as to benefit persons claiming merit for their crimes? See Statutes at Large, No. 12, pages 589, 590, 591. ******
    But the law of 17th July, 1862, upon which this order is made, does not contemplate any advantage to one of the parties, who avows his own criminality.
    The object of the act is explained by its preamble, to-ivit: “An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” See Statutes at Large, No. 12, pages 489, 490, and 491. Section 5 of said act declares “ that to insure the speedy termination of the present rebellion it shall be the duty of the President of the United Staes to cause the seizure of all the estates and property, money, stocks, credits and effects of the persons herein after named in this section, and to apply and use the same and the proceeds thereof for the support of the Army of the United 1 States,” etc., etc.
    It is upon section 6 of said act that defendant relies; but an enlightened interpretation of said section would only construe invalid, sales made to defeat the confiscation denounced in a previous part of said section. * x
    It would be the strangest interpretation possible that the defendant, Goodrich, should be relieved from the payment of the notes herein sued upon after having undisputed ownership of the land ever since the day of sale, to-wit: December 16th, 1862.
    It is therefore contended that the defendant has judicially admitted the existence of the debt, after pleading thereto in reconvention. That the amended answer filed without leave of the Court cannot raise new issues, nor contradict the judicial admissions of defendant. That the act of 17th July, 1862, has no reference to the case at bar, and that the plea of defendant’s own crime cannot relieve him from his onerous obligation.
   Howell, J.

This is an hypothecary action to recover the amount of three promissory notes, given for the price of,. and secured by mortgage on a tract of land, situated in the parish of Carroll, the sale of which was made on 16th December, 1862. The defence is that said notes, by a clause in the act of sale, were to be applied to the payment of a prior mortgage on said land in favor of one Mrs. Caroline Bell, which the vendor failed to do, and in consequence the contract of sale was void, and the cash, portion of the price is claimed in reconvention. By ah amended answer, the nullity of the sale was further alleged, on the ground that both vendor and vendee were aiding and abetting the late rebellion, in violation of the proclamation of the President of the United States, and the orders of the commanders of this department. Judgment was rendered in favor of defendant annulling the sale, and plantiff appealed.

The first ground of defence is untenable, as plaintiff, in his capacity of administrator of the vendor, asks judgment for the purpose of appropriating the sums claimed according to the stipulations of the contract, and there is nothing to show that Mrs. Bell was to take the notes instead of the money. Defendant, the vendee, would not be relieved from payment by the transfer of the notes to her, and the suit is virtually for her benefit.

The second ground is still less tenable.

We do not consider that the laws of Congress, the proclamation of the President, and the orders of the military commanders referred to can be invoked, in such a case as this, by one who alleges his own violation of them. We view the law of Congress, passed on 17th July, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” as enacted in the interest of the Government and not for the benefit of those against whom its provisions are directed, and that the nullity therein denounced relates to sales made to defeat the rights of the Government.

It is therefore ordered that the judgment appealed from be reversed; and it is now ordered that there be judgment in favor of plaintiff, administrator of the succession of Samuel Neill, and against defendant for the sum of $6,000, with 8 per cent, interest on $2,000 thereof, from January 1st 1864, on $2,000 from January 1st 1865, and on $2,000 from January 1st-1866, with mortgage and vendor’s privilege on the land described in the petition, to-wit: N. E. ^ and E. % of N. W. % of section 36, T. 19, R. 9 East; also W. % of W. yz and S. E. of S. W. of section 30, T. 19, R. 10 East, containing 440 acres, with all the improvements thereon, from 16th December, 1862, and that a writ of seizure and sale issue against all of said land for the purpose of paying plaintiff in his said capacity, said sums to be applied according to the stipulations of the contract of sale and mortgage herein sued on. Defendant and appellee to pay costs in both courts.

Rehearing refused.


author: Labatjve, J.

text:
    No. 1129.
    Mrs. Elizabeth Parker v. Smith Broas et als.
    Parol evidence is admissible to prove want of consideration of a promissory note secured by a public act of mortgage, where the basis of said notes was Confederate treasury notes.
    The orders of General Butler of May 1st and May 18bh, 1862, permitting the circulation, for a limited period, of Confederate notes, did not give validity to those notes.
    APPEAL from the Fourtb District Court of New Orleans, Théard, J.

      J. McGonnell and C. JB. Singleton, for plaintiff and appellee.

      Gollens & Wooldridge, for defendants and appellants.
   Labatjve, J.

On- the 16th May, 1862, the plaintiff, Elizabeth Parker, borrowed of the defendants, Smith Broas et als., the sum of seven hundred dollars in treasury notes of tho so-called Confederate States, and gave hor note for the same, and, in order to secure the payment of said notes, she gave a special mortgage upon a lot of ground situated in this city. The note having become due, the defendants obtained an order of seizure and sale, and plaintiff enjoined the sale on the ground that the consideration of the note was illegal and immoral and against the policy of the law, being Confederate money.

The Court below, after hearing the evidence, made the injunction perpetual, and the defendants appealed.

On the trial below, plaintiff offered parol evidence to show the considertion of the note, and that it was Confederate money; defendants objected to the evidence as being inadmissible to vary or contradict the public act of mortgage; tho Court overruled the objections and admitted the testimony. The Court did not err; the parol evidence was legal to prove want of consideration of tho note. Besides, it is now admitted in this Court by defendants that tho note was given for Confederate notes, but they insist that at the time of its execution, the currency of such notes was legalized by orders of General Butler, of the 1st and 18th of May, 1862. Wo do not understand these orders to have made these Confederate notes currency; but the General only abstained, on certain representations, from prohibiting them absolutely, and he permitted them to circulate among those that would be inconsiderate enough to receive them, until further orders. He did not intend, for he had no power to do so, to make legal currency out of such papers which were issued and put in circulation in the community to overthrow the Government of the United States.

It is unnecessary to repeat that the consideration of the note sued upon, was immoral and illegal; that question is now too well settled.

We are of opinion that the District Court made a proper application of the law.

The judgment appealed from is affirmed, with costs.