author: Ilsley, J. Howell, J.,

text:
    Gustave Mouras v. Schooner A. C. Brewer, Captain and Owners.
    \V-here a statute lias been repealed since the rendition of a judgment, inflicting a penalty, in the court a quo, this court cannot affirm it.
    from the Second District Court of New Orleans, Morgan, J.

      G. Bufour for plaintiff. Glarlc & Bayne for defendants and appellants.
   Ilsley, J.

In this suit the plaintiff claims from the defendants in solido, with a lien on the schooner: 1. The sum of two thousand dollars, the value of his slave Arthur, alleged to have been illegally transported out of the State, some time in June, 1859, on board of the schooner A. C. Brewer.

2. The sum .of two hundred dollars, amount of damages alleged by plaintiff to have been sustained by him in consequence of the loss of his slave’s services, etc.; and, 3. The sum of five hundred dollars, the amount of the penal fine imposed by law in such cases, with privilege.

There was judgment in the Second District Court of New Orleans in favor, of the plaintiff, and against the defendants in solido, for the several amounts claimed, with interest and costs, but without a recognition of privilege.on the- schooner, as asked for by the plaintiff.

The defendants, who had pleaded the general issue, took a suspensive appeal from the judgment.

The main question involved in the case is exclusively one of fact; and, after a very careful perusal of the whole testimony adduced, in which there is some discrepa noy, we think it preponderates in favor of the plaintiff, and that-the law sustains his claim. 2294 C. 01 2299, Winston v. Foster, 5 R. 115.

We cannot, however, affirm the judgment» tolo ; as, since its rendition, the statute imposing the fine of five hundred dollars has been repealed, which takes from this court the power of imprisonment. See Quarles v. Evans, 543, 7 An. ; The State v. Johnson, 12 La. R. 547.

The'judgment of the lower courtis therefore reversed, and proceeding to give such judgment as shall have been rendered in said court, it is- ordered, adjudged and decreed, that judgment he and it is hereby rendered in favor of the plaintiff, and against the defendants in solido; 1. For the sum of two thousand dollars, the value of the slave ; and, 2. For the sum of four hundred dollars, for loss of his services, etc., with interest on, the whole from judicial demand, and that the costs of appeal be paid by appellant.

Howell, J.,

dissenting. I am of opinion that responsibility, under pleadings and evidence of this case, can be fixed upon the defendants only by virtue of the strict and severe provisions of the act approved March 25, 1840, and the several acts which it amends ; and that, as this legislation is now wholly abrogated, plaintiff is without remedy.

The purpose of those statutes was'a stern and stringent protection of this class of property from loss by the bad faith or negligence of those engaged in the navigation of water courses.

• Without them, the liability of navigators before our tribunals rests upon the general provisions of the commercial and civil law, and, under their application, I can find no fact in the record which makes the defendants responsible to plaintiff as charged.

It appears that defendants’ vessel was, for that voyage, chartered by an agent of the Haytien government to transport a number of emigrants to the island of St. Domingo, and that those in charge of the expedition, as well as the officers of the vessel, used every possible precaution, prior'to embarking, to avoid the occurrence of an arrest, such as that for which' the defendants are sought to be made liable.

If it be true that the man, claimed by plaintiff to be his slave,, was a passenger at the time, on defendants’ vessel, I cannot see 'that any principle of law, not contained in the above statutes, will make them responsible to plaintiff until it is shown that they, or those in their employment, knew him to be a slave, or that they were guilty of some neglect, imprudence, or want of shill. This" has not, in my opinion, been sjiown. The only witness who testifies positively that plaintiff’s slave was on board was not himself a passenger ; and he does not state that the officers of the. vessel had any knowledge of the fact; and no one witness establishes any act or negligence on the part of defendants, or those for whom they are answerable, calculated to make them responsible, independently of this special and repealed legislation.

There were several black persons on boardand, after the precautionary measures taken by them, there was nothing to excite their suspicions. They aré certainly not responsible for the devices or deceptions of their passengers.

The presumptions of law and the special safeguards in behalf of this particular class of property no longer exists.

After a careful examination of the cases of this nature in our books, the laws now applicable to the subject matter, and the pleadings and evidence in the record, I am constrained to dissent from the opinion of the majority of the court.

I think the judgment should be reversed,


source: Caselaw Access Project

author: Labauve, J.

license: Public Domain

text:
    Robert Moores & Co. v. George P. McConnell.
    An error of calculation, patent on the face of the record* made in the court below, will be corrected on appeal without suggestion.
    XX PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Fellows & Mills for plaintiff, Hunion é Miller for defendant and appellant.
   Labauve, J.

The plaintiffs claim against the defendant the sum of .$650 39, with interest from August 8th, 1854, as a balance due for lumber furnished, principally under a contract, and partly on account.

The defendant in the first place answers by a general denial, but ad" mits that he made a contract with plaintiffs, by which said plaintiffs bound themselves to furnish all the lumber to construct the fence around the House of Refuge, for the sum of $1,700. He avers that said plaintiffs failed to supply him with all of said lumber; that said plaintiffs were put in default for non-compliance with their contract; that he had to purchase lumber from other persons; that the lumber was not delivered at the place agreed to, but to a considerable distance therefrom, &c. He further says that he has paid said plaintiffs, on account of said contract, the sum of $1,336, and that he holds a promissory note of said plaintiffs for $100; making in all $1,436, which he avers is more than a full compensation for all the lumber furnished to him by said plaintiffs. He says he has sustained damages to the amount of $586 50, in consequence of the plaintiffs not complying with their contract; which sum he pleads in reconvention, and prays judgment accordingly.

The District Judge, after hearing evidence, testimony and arguments of counsel, gave judgment for plaintiffs as prayed for, but omitted to allow the defendant a credit for $36 50, for which the plaintiffs entered a remittitur at once bofore the court, and now pray that the judgment be modified accordingly.

We have not been favored with briefs of counsel, either oral or written. We are of the opinion that the judgment of the court below is correct, exclusive of the omission in not allowing the credit alluded to.

It is therefore adjudged and decreed that the judgment appealed from be amended so as to allow the said credit of $36 50, and that as amended it be affirmed, with costs.

Jones, J., absent,


author: Hyman, C. J.

text:
    Laurent Millaudon v. Charles H. Davis.
    Where an acting judge signed an order as “Judge of the Second Distriot Court,” omitting the word “judioial;”Seld: Thatitwas sufficient.
    from the District Court of the Parish of St. Bernard,

      Bermudez, J. P, A. JDucros for plaintiff. Q. S. Lacey for defendant and appellant.
   Hyman, C. J.

Defendant appealed from an order of seizure and sale.

The Judge of the Second Judicial District having recused himself, Judge Bermudez, by authority of section 32 of an act entitled “an act relative to district courts,” approved March 15, 1855, granted the order.

It is not contended that the order was granted on insufficient evidence, or that Judge Bermudez, as Judge of the Second District Court of New Orleans, was incompetent; but it is argued that, by the manner in which he signed the order, it does not appear in what court he was acting.

The judge, after writing the order, signed it thus : “NewOrleans, July 27th, 1861, J. Bermudez, Judge of the Second District Court, acting in the place of Judge Burthe, recused. ”

We think that the signing of the order in this manner shows that Judge Bermudez was acting as the Judge of the Second District Court of New Orleans, and not as Judge of the Second Judicial District of Louisiana.

The order of seizure and sale is affirmed, with costs of appeal.

Jones, J., absent.


author: InsiiEY, J.

text:
    Nimick, McCloskey & Co. v. George Ingram.
    A creditor of an insolvent debtor who opposes the appointment of syndic, or charges fraud against • the debtor, must do so within ten days next following the meeting of creditors, by written opposition, before the court, stating specially the several facts of nullity of the appointment or fraud alleged against the insolvent debtor. Any informality in the proceedings, when questioned, must be by direct action. No creditor will bo permitted to disregard and treat as an absolute nullity a judgment accepting a surrender.
    The acceptance for the creditors by the court vests in them all the rights and property of tho insolvent, whether placed on the schedule or not; and tho syndic may sue to recover them; but any creditor may show, provided it be contradictorily with the mass of the creditors, or their legal representatives, that any particular object or fund is not embraced in the surrendered estate, but is subject exclusively to his individual claim.
    from the Eiftb Distriot Court of New Orleans, Eggleston, J.

      Bur ant & Hornor for plaintiffs and appellants.

    Plaintiffs having seized the property of defendant cmfi.fa., were about selling it by the sheriff, when they were enjoined by John-Robertson, claiming ownership. The property was declared not Robertson’s, but the execution debtor’s. Ingram attempted to make a cession and thus to deprive plaintiffs of the effect and fruit of their execution. From a judgment sustaining this opposition plaintiffs have appealed.
    We submit: 1. The fruits of the litigation in the contest between plaintiffs and John Robertson belong to the plaintiffs, are their property, and cannot be taken away from them by the subsequent cession of the fraudulent debtor.
    There is certainly no principle of justice that would justify, on the part of the court, a course which would deprive the plaintiffs of the full benefit of their judgments. C. C. 1972. Townsend v. Miller, 7 A. 682, 632. Deewir v. Venzey, 8 A. 453. Freeman v. Creditors, 15 A. 397.
    2. The surrender of' the property was a pure sham, like the sale to John Robertson. The dates conclusively show this, e. g: the meeting of creditors is called for 21st July, 1859 : the proces-verbal is only filed on the 7th February, 1861, about tho very day the injunction in Robertson’s case was decided.
    3. The property in dispute never was surrendered to the insolvent’s creditors. His sham sale to Robertson was a perpetual estoppel to such a course. Freemans. Savage, 2 A. 269; also, 5 A. 16; 4 A. 416; 5 A. 107; 10 A. 530, 585; 14 A. 140.
   InsiiEY, J.

This is an appeal from a judgment rendered by the Fifth District Court of New Orleans, on a rule taken on the plaintiffs by the defendant, to show cause why- all process under their judgment in this suit, originally pending in the Fourth District Court, should not be stayed and set aside, as being in violation of a decree of said Fifth District Court, ordering all proceedings to be stayed against the property of the defendant, an insolvent debtor.

In order to comprehend the principal question involved in this controversy, it becomes necessary to make a comprehensive statement of all the facts which relate to it:

On the 16th June, 1859, the defendant Ingram made a surrender of his property to his creditors, in the Fifth District Court of New Orleans, and attached, to his petition for a cession, his schedule, mentioning thereon the names of his creditors, among’ which were those of the plaintiffs, Nimick, McCloskey & Co., their place of residence and nature of their claim.

On the same day the said court, by its decree, acccepted, for the benefit- of the'creditors, the-'cession made by the insolvent, ordered a meeting of the creditors to be held on a certain day, before a notary public, for the purpose of deliberating on the affairs of the insolvent, and of appointing one or more syndics ; and appointed an attorney to represent the ab■sent creditors. All judicial proceedings against the person and property of the debtor were, by said decree, ordered to be stayed.

Due and legal notice was given to the plaintiffs to attend the meeting of creditors, which was held on the 21st July, Í&59.

It was not until the 7th February, 1861, that a copy of the proces-.-'■yerbal of the -proceedings of this meeting were deposited in the office of the clerk of tbe said court, when, on motion of the defendant’s counsel, the said proceedings were approved "and homologated; and, the creditors not having attended the meeting and appointed a syndic, the court authorized the sheriff of the parish of Orleans to perform, in every respect, the . functions of a syndic.

On the 3d October, 1860, the plaintiffs caused to be issued front the Fourth District Oourt of New Orleans [where their suit against Ingram was pending), execution on their judgment, and under it seized, as the property of the judgment creditor and in his possession, to satisfy their claim, the contents of a certain liquor store.

Previous to the day fixed for the-judicial sale of the seized property, one John Robertson intervened by third opposition, and claimed it as belonging to him, in virtue of a sale thereof, which, by notarial act, bearing date 17th March, 1860, he pretended Ingram had passed to him; butit-having been proved on the trial of this third opposition that Ingram had always retained the actual possession of the property claimed by Robertson,. it was decided by the court that his title thereto was simulated and fraudulent, and his opposition was dismissed; whereupon the plaintiffs proceeded with their execution, and the sheriff’s sale of the seized property was advertised to take place on the 27th February, 1861.

On the 12th day of February, 1861, a rule was taken by Ingram, in the Fourth District Oourt of New Orleans, on Nimick, McOloskey & Co., to show cause why all the proceedings in the said suit against him should not be transferred to the Fifth District Oourt of New Orleans, and cumu-lated, with the insolvent proceedings.

This rule was tried contradictorily with the plaintiffs, and after argu- • ment. of counsel was made absolute, and from this decree so rendered no appeal has been taken.

On the 20th February, 1861, Ingram took out of the Fifth District Oourt a rule on the plaintiffs to show cause why they should not respect the order of the court, suspending all proceedings against him, and why all further action under the writ of ft. fa., sued out by plaintiffs on their judgment, should not be stayed and set aside.

This last rule, after trial and argument, was also made absolute, and from the decree of the court thereon the present appeal has been taken.

The appellants, Nimick, McOloskey & Co., urge in this court several grounds for the reversal of this judgment, which grounds substantially amount to this: That the plaintiffs, by their diligence and vigilance, have discovered the property seized by them, which was never surrendered by the insolvent to his creditors; and that, at their own cost, they have freed the said property from the fraudulent and simulated claim set up to it by a third person, and having thus made it available, they have the legal right to appropriate it to the satisfaction of their claim.

That Ingram having fraudulently attempted to screen this property from his creditors, it is legally incompetent for Mm to take any steps, in relation to the property seized, to affect their rights.

What these rights are it is not necessary for us to decide, and being satisfied, as we are, that they can only be determined contradictorily with the mass of the insolvent’s creditors, before the court seized of the concurso, as the whole proceedings in the suit pending originally in the'Fourth. District Court were, by the judgment thereby rendered on the 20th February, 1861, properly ordered to be cumulated with the insolvent proceeding in the Fifth District Court. See the case of Fabre v. McRea,, 14 Al. 648.

We are clearly of opinion that, however irregular the proceedings in insolvency may have been, and however fraudulently the debtor may have acted, the plaintiffs could not, on that account, disregard the behests of the decree of the court, which stayed all judicial proceedings against the insolvent and his property. They were parties to the proceedings, and were bound to respect them. Armstrong v. Mooney, 167, vol. 1 Rob.; Taylor et al. v. Their Creditors, 9 Rob. 376.

No objection seems to have been made to the appearance of Ingram, in the rules taken by him on the plaintiff, on the 12th and 21st February, 1861. It should have been made in the District Court by way of exception, if relied on, and all opposition to the legality or validity of the insolvent’s proceedings, on account of fraud by the debtor, should have been urged in due time, in the manner required by law. See || 22 et seq,, p. 265, Revised Statutes. It would have been too late, after the legal delay, even if the fraud had been discovered after its expiration. Mathews v. His Creditors, 11 Al. 36.

Any informality in the proceedings, when questioned, must be by direct action. No creditor will be permitted to disregard and treat as an absolute nudity a judgment accepting a surrender made by his debtor, and granting a stay of proceedings. W. A. Hayney v. John Healey, 12 Al., 424.

The acceptance for the creditors by the court of the ceded estate, .vests in them all the rights and property of the insolvent, whether placed on the schedule or not; and the syndic may sue to recover them. Dwight, syndic, v. Simon et al., 4 An. p. 490; and Dwight v. Smith, tutor, p. 33, 9 Rob. But any creditor may show, provided it be' contradictorily with the mass of the creditors, or their legal representative, that any particular object or fund is not embraced in the surrendered estate, but is subject exclusively to his individual claim. And this is the remedy of the plaintiffs, if any they have. See Marsh v. Marsh et al. 9 Rob. 47; C. P. 165, § 3.

There is no error in the judgment of the lower court, and it is therefore ordered that the same be affirmed; the costs of appeal to be paid by the plaintiffs and appellants.


text:
    Andrew McCullom v. Porter, Thomas & Foley.
    A depository is not answerable, in any case, for aots produced by overcoming force; such as fire, unless he failed to use proper diligence.
    A IlL PPEAL from the Sixth District Court of New Orleans,* Howell, J.

      Durant & Hornorfor defendants.

    The plaintiff sues the defendants for damages on a'n alleged refusal to deliver a portion of sugar confided to them, as depositees or bailees. There is no allegation in the petition, either of want of good faith, or of reasonable care, or of ordinary diligence. Under general principles of law, warehousemen “ are responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent.” 2 Kent, p. 591; La. Code 2908, 2909, 2910; 1 Larombifere, p. 406.
    As to force majeure: L. C. 2151, 2216, 2693.

      The burden of proof is on the plaintiff. After we had shown the loss by fire, if plaintiff still intended to hold us responsible for our fault, it is for him to prove it. Brileux on C. N. 1147, 1302; Troplong, Nantissement, § 432.
    Even under the Code Napoleon, 1733, which is directly the reverse of our Louisiana Code, 3493,' the burden cf proof is on the tenant only as to the immovable and not as to tho movables of the- owner. Sirey, .34, 2, 241; Larombifere, C. N. 1148. See also 2 Salkeld,.p. 655; and Beporter’s note in 7 Cowen, 500.
    * ‘A warehouseman is bound- only for ordinary care, and is not liable for a loss from accident when not in default; and not in default when he exercises such due and common diligence in the care of goods entrusted to him as he wopld bestow in the care of his own.v Edwards on Bailments, p. 284; Schmidt v. Blood, 9 Wendell, 271; Troplong, Dépót, ? 63 etseq.

    Additional authorities : Story on Bailments, § 442, p. 289 and note at foot of page; 4 Larombifere, p. 6.
   Labauve, J.

The plaintiff alleges that the defendants, commercial partners in tho city of New Orleans, are justly indebted in solido to him, in the sum of §11,680; for this, that, at divers times, from the 31st January to the 6th February, 1860, the defendants received on storage from him, and on his account, 170 hhds. of sugar, which they agreed to house and restore to him on demand, in consideration of a reasonable compensation for the storage and preservation; that on or about the 30th April, 1860, he made a demand for the delivery of said sugar, and that they restored to him only 24 hhds., having 146 hhds. which they have neglected and refused bo deliver, and for which they are bound to account, at the value the same bore on the 30th April, 1860; that said sugar was worth, at that time, §80 per hhd., malting- in the aggregate §11,680,

He prays for the delivery of said sugar, or, in default thereof, for its value, $11,680. •

The defendants admitted, in their answer, the storage of the sugar, 170 hhds; of which 146 hhds. perished by fire on the 24th April, 1860, so that they were only able to ‘deliver 24 hhds. out of the 170, on ae-o mnt of the same having been stored in a brick warehouse, and which escaped the fire; that this fire was, as to respondents, an inevitable casualty, for the effects of which they were not liable in law. They added a general denial, not inconsistent with the foregoing defence and statements. They claimed, in reconvention, of the plaintiff $169, for storage of sugar stored„with them. They prayed for judgment accordingly.

The court below, after hearing the testimony, gave judgment for the defendants, and the plaintiff appealed.

The destruction by fire of the warehouses where the sugar was stored, was proven, as alleged in the answer; at the time there was a large quantity of goods, sugar and cotton, stored in the warehouses, and there were many losers besides the plaintiff. The accident by overpowering force being clearly proven, it was incumbent on plaintiff to sustain his demand, to show that the loss had been caused by the fault or neglect of the defendants; nothing of this is shown; on the contrary, the defendants are proven to be careful men, attentive to their business; then- loss was heavy by this fire. We have carefully examined the testimony, which is very voluminous, and we see nothing to satisfy us that the District Judge has erred in coming to his conclusion. C. C. Arts. 2908, 2909, 2910; Story on Bailments, Art. 442; Edwards on Bailments, p. 284.

The plaintiff and appellant has made no appearance in this court.

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

Howblu, J., recused.


author: Hvman; C. J.

text:
    McCan & Harrell v. Steamer Golden Age, et als.
    Citation being the essentia] ground of all civil actions, in ordinary proceeding, the neglect of that formality annuls radically all proceedings had, unless the defendants have voluntarily appeared in the suit and answered the demand.
    from-the Fifth District Court of New Orleans, Eggleston, J.

      B. Egan, for plaintiffs.
   Hvman; C. J.

Judgment was rendered against defendant, Joseph B. Shannon, recognizing therein a privilege on the steamboat Golden Age. He has appealed.

This case has to be remanded, because defendant did not ap'pear and answer in the lower court, and citation was not served on him. See Code Practice, 206.

Judgment is reversed, and the case is remanded, to be proceeded in according to law.

Jones, J., absent.


author: Howuno, J.

text:
    F. Desplate v. N. St. Martin, et als.
    Where a, debtor waiv.es an appraisement, when called upon by the sheriff, of a,sale of his property on ft. fa., and purchases part of the property himself, he cannot complain of the irregularity of the proceedings.
    from the District Court of the Parish of St. Charles, BurtTie, J.

      8. F. Glenn and W. W. Sandlin foi' plaintiff and appellant.

    The. petition shows the nature of the action: a suit to annul a sale made by a sheriff without due appraisement or advertisement, and for damages caused thereby.
    We contend that the sale was invalid for the want of due appraisement, the formality of which is sacramental, and which cannot be waived by either party, and notice of which mnst be given in writing. C. P. 671. Says this honorable court in the case of Louis v. Gordy, 5 An. 570: “The rule that the formalities are to be strictly observed, is rather for the benefit of the debtor and purchaser than the creditor.” Again, in the case of Esnault v. Cooley, tutor, 16 An. 165, Chief Justice Merrick held that the waiver of the advertisement deprives a sale by the sheriff of its character as a formal sale. Where the law is sacramental the maxim of volenti non fit injuria does not apply. . His waiver of appraisement did not dispense with the responsibilities of the sheriff. A stipulation that a sale should be made without appraisement ought not to be enforoed. 15 An, 243. Damages are recoverable by Article 2295 of the Civil Code, and the decisions made under it. “A sheriff is hable in damages if defendant in execution lose by the property being sold in an illegal manner.” Orocker v. Watkins,' 4 Martin, 540.

      II. F. DeblieiiM for defendants.

    The plaintiff relies for recovery on the omission of the appraisement of the property seized; and, in argument, it is contended that there was no notice of seizure. As to this last point, the sheriff’s returns, as well as the sheriff’s deed, dispose of the question, for they say that notice was given, and all formalities complied with.
    As to the first ground, true it is shown that no appraisement was made ; but, at the same time, the evidence shows why it was not made, and that the defendant in execution dispensed with it.
    The testimony of a witness unimpeached and uncontradicted-, whose-testimony was unopposed, and to which the judge below has thought he must give entire evidence, shows that when Desplate was notified to appoint an appraiser he declined, not contumaciously, but for the reason, he alleged, that the property was mortgaged for enough to insure its sale at a sufficient price. When called upon-to signify his waiver in writing, he said there were persons enough around to bear witness to it.
   Howuno, J.

Plaintiff sues to annul a sale of his personal'and real property, made by the sheriff of the parish of St. Charles, under two writs of fi. fa., issued upon judgments against him in the District Court of said Parish. He complains that his property was “illegally seized and sold without appraisement, and without complying with any of the requisites of the law. ”

The sheriff’s return on the two wits, and deed of sale of the real estate, are in the usual form, reciting the seizure, notice, advertising and observance of the legal requisites. It appears, however, from the testimony of the witnesses,.that there was no appraisement of the property made; but it appears also that the defendant was present, and when called on by the sheriff to appoint an appraiser, he declined to do so, on the ground that the landed property was mortgaged for more than two-thirds of its value, and an appraisement was unnecessary. He also become the purchaser of the horse sold at the time. JIe thus waived the appraisement and ratified the sale, and cannot now be heard to complain for the causes urged by him. He has not shown that the property was sacrificed or sold for less than its true value-

judgment affirmed, with costs,


author: Jones, J.

text:
    James M. & W. H. Peterson v. Peter H. Willard.
    "Wh^re a suit is commenced by a writ of sequestration, the judgment of the court below should have been in rtm. alone, reserving to the plaintiffs their right to an action in personam.

    from the Fourth District Court of New Orleans, Price, J.

      J. N. Lea for plaintifirs.

    The plaintiffs, who are vendors of the property described in the petition, sue for the amount due them, and ask for judgment as claimed, with the privilege of vendors upon the property sold. This property being in the parish of Orleans, where the debt became due, the plaintiffs obtained a writ of sequestration, and caused a portion of the property subject to their lien to be seized by the sheriff of the parish of Orleans. Personal service of citation was made upon the defendant, to whom the property was released on his giving bond, according to law.
    The defendant filed a plea to the jurisdiction of the court, on the ground that his residence being in the parish of Jefferson, he could be sued only in that parish. This exception being overruled, the ease was tried oh its merits, and judgment was rendered in favor of the plaintiffs.
    Upon the merits of the case there is no defence, the debt sued for being established by notarial act. It is true the counsel for the appellant urges that the claim for $1,732 30 was payable only in instalments, whioh had not matured at the date of the seizure; but, apart from the fact that no exception was filed to the pre-maturity of the action, a reference to the notarial act itself will show that the utmost delay allowed for the maturity of these instalments was “four months from the date of the act,” which was passed on the 19th day of March, 1860, and a reference to the return upon the writ of sequestration will show that the seizure was not made until the 20th day of. July, 1860.
    It was not incumbent on the plaintiffs to show “ that the defendant had not used proper diligence to collect the assets of the partnership 1. Because the defendant had bound himself absolutely to pay the debt “within four months from the date of the act;” and, 2. Because if any facts existed which would have released the defendant from his obligation, it was his duty to have established such facts affirmatively.
    Passing to the merits of the exception of domicil, it is respectfully urged : 1. That, in the jurisprudence of this State, it is well settled that when a party seeks to exercise a lien or privilege upon property, and to subject it to the payment of his privileged claim, he has a right to assert his claim in the court having jurisdiction of the place where the property is situated; otherwise he would be without redress. See Henning v. Steamer St. Helena, 5 An. 352; Heirs of Lalauriev. F. A. Wood, 8 An. 366; 6-ails v. Schooner Osceolo, 14 An. p. 54. Indeed, this doctrine is so well settled that the appellant’s counsel has not contested it, but contends that, in such a ease, the judgment should be restricted to the enforcement of the privilege upon the property sequestered, and should not extend to a‘ personal judgment against the debtor.
    It is freely conceded that where the proceeding is in rem, and the jurisdiction of the court attaches only in virtue of the seizure of property, the judgment, as in the case of the attachment of the property of non-residents, could affect only the proceeds of the property attached. But this restriction could not, by fair and reasonable construction, be extended to eases where there was personal Service of citation, and an appearance on behalf of the defendant, as in the case at bar. Be this as it may, the defendant is estopped from urging any such plea. In the authentic act, which is the basis of this suit, the defendant contracts with the plaintiffs as “Peter H. Willard,-of the city of New Orleans.” Of course, sucha recital is not conclusive as against third parties not privy thereto, and as respects such third parties is open to contradiction. See Hill v. Spangen-berg, 4 An. p. 553; also Davis v. Binion, 5 An. 248. But in these very decisions the court carefully restrict the right to contradict the recitals contained in authentic acts to those who are not parties thereto, the court not considering such recitals, in contracts with third persons, as conclusive upon the party mailing them, in a contest with others upon a question of jurisdiction. It is manifest that, in a contest with a party to the act itself, no evidence would be deemed admissible to contradict any averment contained in the act. “Parole evidence shaE not be admitted against or beyond what is contained in an authentic act, nor on what may have been said before, nor at the time of making them, nor since.” Civil Code, ■'2256.
    "‘The truth or falsehood of the recital has nothing to do with the question. The prohibition rests upon considerations of pubEe policy, and the court will not enter upon an investigation, or adopt conjectures, concerning the importance or immateriality of recitals in an authentic act, in a controversy between the parties to the act. Every recital or averment in an authentic act is presumed to have entered into and formed part of the contract. It is to be remarked that nothing in the evidence shows a change of domicil after the execution of the act.

      Buchanan &■ Gilmore for defendant and appellant

    Plaintiffs claim of defendant a personal judgment for the sirm of $3,732 30, with privilege of vendor upon certain property (coal, carts and mules) which were sequestered.
    Defendant pleaded a declinatory exception,' that he resides and is domiciled in the parish of Jefferson, where his family dwell and where- is his principal estabhshment.
    On the trial of this exception, two witnesses, W. G. Coyle and W. H. Hosier, proved that defendant’s residence and that of his family was at the time, and had been for many years, in Jefferson City, parish of Jefferson, where he voted, etc. No evidence was offered to contradict this testimony, and we may therefore assume that the domicil of the defendant was, as alleged by Mm, in Jefferson parish.
    The court, notwithstanding) overruled the exception; and defendant pleaded the general issue (with a reservation of his exception).
    Judgment was rendered in the court below for the whole amount claimed against tlie defendant, with vendor’s privilege upon tlie property-sequestered. Defendant appealed.
    Since tlie appeal was taken defendant Las died, and Ms widow is made party defendant.
    We contend that the court has erred in overruling the declinatory exception, and rendering an unqualified personal judgment against defendant.
    The Article of 162 of the Code of Practice' lays down the general rule that civil actions must be brought before the judge having jurisdiction' over the place of domicil or residence of the defendant.
    The following Articles (163, 164 and 166) contain the exceptions to that'general rule. The present case falls within none of those exceptions.
    But we are free to admit that the Supreme Court, in the case of Heri-ning v. Steamer St. Helena, 6 An. B. 349, has extended the exceptions found in the Code, to the enforcement of special privileges wherever the movable property subject to such privileges might be found, although beyond the territorial limits of the parish of the debtor’s domicil: And in that case, the court overruled the case of Hollander v. Nicholas, 3 Bob': Bep. p. 7, in which the contrary doctrine had been maintained. But your honors will observe the reasons given by Judge Slidell, the organ' of the court:
    “There is much plausibility in the argument that defendants, so far as their personal liability is concerned, are entitled to the benefit of the1, general rule; and the tendency of our jurisprudence has been to protect, with strictness, the right of the citizen in this particular. Richard yI Kimball, 5 B. B. 142. But in our opinion the question whether plaintiff' shall be permitted to enforce hi3 privilege in any other forum than that' of the owner’s domicil, stands upon a very different footing. ” * * ******* “Undoubtedly, the privilege' is an accessory to the principal obligation; but it does not follow that the-remedy in rem and the remedy in personam are inseparable. .The mortgage creditor may seize and sell the land without resorting to the personal liability. So the pledgee may proceed to have the thing judicially sold, without cumulating a prayer for personal judgment. And in.the absence of any prohibition in the Code of Practice, we see nothing unreasonable in disconnecting the enforcement of the privilege from the personal pxiréuit, where it is impossible to pursue both together. Where there is a right there should be a remedy; it would be a mockery to acknowledge the right, and yet send a creditor to another forum, whefe the enforcement of the right would be impracticable..”
    The principle consecrated in this decision has been recognized and reaffirmed in the cases of Blanchard v. Davidson, 7 An. 664; Heirs of Lalarme v. Woods, 8 An. 366; Thorn <& McGrath v. Tyson, 9 An. 231; Gails v. Schooner Osceola, 14 An. 64. But in all of these cases the destine* tion between the remedy in personam and the remedy in rem, commented above by Judge Slidell, is carefully preserved. Indeed, your honors may observe, that all of those cases, with the single exception of the last? were'decided by Judge Slidell. We cannot doubt, that the true construction to be put upon those eases, restricts the right of the plaintiff to qq
      enforcement of his privilege, and does not extend it to a personal judgment against the debtor, outside 'of the parish of the debtor’s domicil. To give these dicisions the latter effect, would be to annul the Article 162 of the Code; than which it is clear nothing was further from the intention of the court.
    But in the present case, there is a personal judgment, with a vendor’s privilege upon certain effects.
    We submit that the judgment should have been purely and simply a judgment in rem; and that it is should be reversed by maintaining the declinatory exception as regards the remedy in personam ■ sought by plaintiffs.
   Jones, J.

This suit, as originally instituted, was by the plaintiffs against the defendant, to recover a personal judgment and to enforce the vendor’s privilege by writ of sequestration. The defendant pleads that his domicil was in the parish of Jefferson, where these proceedings in rem and in personam, and this suit should have been instituted. The court overruled this exception, and rendered judgment against defendant on the merits, with privilege on the property sequestered, from which judgment defendant appealed. In this court the defendant contends that the judgment of the lower court should have been purely and solely a judgment in rem, and that it should be reversed by maintaining the declinatory exception as regards the remedy in personam sought by plaintiffs. In this view of the law we concur. 8 An. 367.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be so amended as to restrict the operation of said judgment to the property sequestered, reserving to the plaintiffs their right to personal action against the defendant, at the parish of his domicil; that, in other respects, the judgment be affirmed; that the costs of the district court be paid by the defendant, and those of appeal be paid by plaintiffs and appellees.

InsMsy and HowEnn, J. J., absent.


author: Tlseey, J.

text:
    D. B. North v. T. P. Leathers.
    Where there is not in the transcript of appeal either a final judgment, signed by the judge, or suoh interlocutory judgment as may work irreparable injury, the appeal will be dismissed at the oosts of the uppellant.
    from tbe Fifth District Court of New Orleans, Eggleston, J.

      L. Madison Day for plaintiff. Roselius <& Philips for defendant and appellant.
   Tlseey, J.

The district judge granted an' appeal to defendant.

There is not in the transcript of appeal, either a final judgment, signed by the judge, or such interlocutory judgment as may work irreparable injury.

From such judgments only does the law grant the right of appeal, See Code of Practice, Arts. 546, 565 and 566; 7 La. Rep. 513.

Appeal rejected and dismissed, at the cost of appellant,

Howell and Jones, J.J,, absent.


text:
    Charles H. Davis v. Henry C. Millaudon, Agent.
    The reasoning and the opinion of a court upon a subject, on tho evidence before it, does not have the force and effect of the thing adjudged, unless the subject matter be definitely disposed of by the decree of the court.
    A tender, in open court, of the thing demanded is an admission that the thing itself is due, and is, therefore, inconsistent with the averment that the thing is not due ; neither can defendant withdraw his tender subsequently, so as to affect any rights the plaintiff may have acquired un dor it.
    The plea of payment is inconsistent ivith a general denial, consequently a plea of tender.
    The tender of a thing claimed in a suit, when made in the course of judicial proceedings, and in an unqualified and unrestricted manner, carries always with it the presumption which the law attaches to a judicial confession ; but, where such tender is made, not of the thing claimed, "but of something else, with a special reservation (if not accepted) of all legal rights, and with the special defence that the thing claimed is not actually due, it has not that conclusive effect.
    If one sells or alienates a piece of land, from one fixed boundary to another, the purchaser takes all the land between such bounds, although it gives him a greater quantity than his title calls for, and the surplus exceeds the twentieth part mentioned therein. Neither can there be increase or diminution on account of disagreement in measure.
    from the District Court of St. Bernard, FouThouze, J.

      GeorgeS. Lacey for plaintiff and appellant.

    Upon reading the brief by counsel for defendant and appellee, your honors will perceive that the grounds upon which they rely to maintain the judgment of the court a quo, are substantially as follows:
    I. This honorable court erred in concluding that the tender of land was an admission that the thing itself is due.
    H. That the plea of tender was rightfully 'withdrawn.
    HI. That the sale from defendant to plaintiff was one per aversionem, '■ and therefore does not give rise to an action for a dimiwtion pf price,

      IV. That, if the sale was one non per aversionem, the action of diminution will not lie, because “the value of the deficiency in the land sold is not one-twentieth of the total price stipulated in the act of sale, for all the objects sold.”
    L “This honorable court in concluding that the tender of land was an admission that the thing itself is due.”
    We have carefully read the brief of J. M. Dueros, Esq., which is solely directed to the solution of this point; but, we halve to confess, that we find in the argument nothing calculated to inspire us with the belief that the position is well taken.
    In his pleadings, the defendant alleged that, on the 19th of July, 1859, he purchased about two hundred and fifty acres of land, in the rear of that portion of the plantation which lies on the right bank of the bayou, and this lie tendered to the plaintiff, to be considered as forming a parcel • of his plantation, in lieu of the deficiency set up as a basis for recovery in diminution of price.
    Your honors, in considering the legal effect of that plea, held “that the plea of tender was an admission of a deficiency in the quantity of land sold, and was inconsistent with the plea of the general issue.”
    In what respect, was there error in the judgment of your honors ? Could the court have held otherwise than it did ? Was not the tender of land to supply a deficiency antagonistic to the idea of no deficiency ? Is not an offer to pay an admission that the sum offered is due ? Was not the offer, or tender to make good the deficiency, a legal admission that • there was a deficiency, and that defendant was bound to make it good ? And this, too, notwithstanding he declared “he did not intend to waive the benefit of the plea of the general issue.” Can the offer be regarded as a gratuitous donation, when no one, by law, is easily presumed to donate ? It seems to us a work of supererogation to. attempt to strengthen the position which this honorable court has taken in relation to the plea of tender; and we think your honors will long hesitate before overruling the opinion expressed in 14 Annual, 869, and adopting a conclusion, not only opposite to that opinion, but at war with reason and precedent. Conceding, however, for the sake of argument, that the plea of tender in this case did not admit a deficiency in the quantity of land sold, and that this court fell into an error in thus interpreting that plea, the question arises, can that error now be corrected ? We submit unto your honors that the effect of the plea of tender was directly presented for decision when this case was first brought up on appeal to this court; that it was then expressly decided; and the case was remanded to the lower court to be proceeded in upon the principles enunciated in that decision. The defendant did not think it necessary to apply for a rehearing ; the only mode prescribed by law, in which to have corrected the error, if the court had fallen into error. Under such circumstances, the opinion of this court, in 14 Annual, relative to the legal effect of the plea of tender, has become a res judicata, and that question cannot now be inquired into between the parties to this cause. In another and a future case, the court may lay down a different doctrine; for, as to such pase, the opinion in 14 Annual is but a precedent. It is otherwise, how-fever, with reference to the cause now before the court: it is a thing] adjudged.
    Would it not be strange did this court possess the power to determine • certain questions at issue between litigants; remand the cause to be tried upon the view enunciated by the court; and after trial, and upon second appeal, to reverse the former opinion, and a,dopt a conclusion directly opposite to the first decree ?
    2. “The plea of tender was rightfully withdrawn'.”
    Counsel for defendant, in their argument upon this point, have committed a two-fold error: one relating to the facts, the other to the law.
    They say, on page 3 of their brief: “The revocation was made under an order of court, which permitted the filing of the supplemental and amended answer, by which the withdrawal of the tender was made, and must, therefore, be considered as having been made with the assent or approbation of the judge a quo. Again, said withdrawal was effected ■without any objection or opposition from the plaintiff, who is, consequently, presumed to have acquiesced in it.”-
    In reply to this assertion on the part of defendant’s - counsel, we repeat the language of our origipal brief: “The withdrawal was an ex parte proceeding ; was in no way brought to the notice of plaintiff’s counsel, except by filing the record, and was not concurred in by him; nor was it allowed by the court.”
    It is contended by counsel for Millaudon, that the tender of land was-not accepted by plaintiff; that, until an acceptance was manifested, a judicial contract was not formed; and, therefore, the plaintiff possessed the right to retract and withdraw such tender. Decisions of the Court of Cassation and other French authorities are cited for the purpose of sustaining this position.
    We do not understand these authorities- as covering a judicial admission made under the circumstances connected with the plea of tender filed in this Case; nor do we think the French law can possibly go so far as to declare that a plea of payment or tender is ineffectual against the party thus pleading, until his adversary manifests an acceptance - thereof. Be this as it may, the rule which prevails under the jurisprudence of Louisiana is declared in Art. 2270, C. C.: “The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding. It amounts to full proof against him who has made it. It cannot be revoked, unless it be proved to have been made through an error in fact. It cannot be revoked on a pretence pf' error in law.” Art. 2264, C. 0., No, 4; 6 An. 719.
    Under Article 2270, no acceptance is requisite. A judicial confession once made, constitutes per se, not merely a-presumption, but amounts to full proof against him who has made it, and cannot be revoked, unless proved to have been made through an error in fact.
    3. ‘ ‘ The sale from defendant to plaintiff was one per aversionem, and therefore does not give rise to an action for a diminution of price.”
    The characteristics of the act of sale in question were laid before your honors upon the first appeal, for the purpose of obtaining a decision from the court, whether the sale was one per aversionem, or not. This court-held that it-was not a sale per aversionem, and remanded the caiise to enable the plaintiff to establish his demand in diminution, based upon the deficiency of land. The judgment of your honors upon the question per aversionem, like your opinion upon the plea of tender, forms res judi-cata; and the character of the act of sale in controversy is no longer open to inquiry. If, however, the court takes upon itself to investigate the nature of the present sale, then, in order to show that it is not one per aversionem, we refer to'our brief filed upon the first appeal.
    4. “If the sale was not one per aversionem, the action of diminution will not lie, because the value of the deficiency in the land sold is not one-twentieth of the total price stipulated in the act of sale, for all the objects sold.”
    We deem it unnecessary to take issue with counsel for Millaudon upon the question of law presented on page 5 of their brief. We may admit that the action for diminution of price, on account of a deficiency in the land sold, -will not lie, unless -the value of such deficiency equals one-twentieth of the total price stipulated in the acts of sale, for all the objects sold; or, we may assert, that the action guanti mmoris will lie, wherever there is a deficiency of one-twentieth in the land sold, regardless of the sum given for the totality. In both views, plaintiff’s action is fully made out by the evidence. If, as we have supposed in our original brief, the latter be.the correct principle, then this action is established by the act of sale showing 1,520 acres sold, and the report of the surveyor fixing the deficiency at 193 acres; 193 is more than one-twentieth of 1,520. If, on thecontrary, the rule of law has been properly expounded by counsel for defendant, and the view first above taken governs, then this demand is sustained by the act of sale, showing 1125,000, the price for the totality of property sold, and the testimony and pleadings in this case, fixing the value of the deficiency from $10,000 to $16,000. 10,000. is more than one-twentieth of 125,000.
    There is a wide difference in the value of the deficient land, as calculated by the counsel for the respective parties; but, in examining those calculations, your honoris will at once perceive that counsel for plaintiff has presented that which should be adopted by the court.
    Counsel for Millaudon have, unauthorizedly, located the deficiency in a particular part of the Davis plantation; isolated, as it were, from the rest of the place; regarded it as naked, and unimproved of itself, and deriving no value from the improvements of the plantation; and in this light has presented it for valuation. Counsel for Davis, however, gives no particular locality to the deficient land; regards it as making a part of a large-sugar plantation; reflects upon it a proportionate degree of the improvements made upon the plantation as a whole; views it in the exact condition which it was supposed to have, at the time of the sale, and by au average estimate, with the price of the entire land, determines the proportionate value of the 193 acres of which there is a deficiency. He. places the quality of the 193 acres upon an average basis; and, having thus fixed the character of the land, he arrives at its value by ascertaining the sum given per acre? at the time of the purchase by Davis, and muL tipíyifig that amount by 193. Ibis is, essentially, an avei-agé computa-' tion throughout; and, in cases of deficiency, that mode o'f ascertaining the damage sustained by the purchaser is the only one which can be Mooted. Where there is an eviction, it might, perhaps, be otherwise, The land from which the party maybe evicted can be examined; its condition, quality and value shown; and, under such circumstances, the relative instead of the average value of the-evicted premises might be the true criterion whereby to measure the damages sustained. Not so, however, where diminution of price is claimed on the ground of deficiency in the land sold.
    Chancellor Kent, in his Commentaries, p. 477, vol. 4, edition 1848, lays down the rule of computation in cases of eviction and deficiency, and in relation to the latter he says : “The measure of compensation for a deficiency in the quantity of land, in the case of a sale by the acre, unattended by special circumstances, has been assumed, in some cases, to be. the average and not the relative value. But, in cases of eviction, justice evidently requires that the relative instead of the average value be taken as the rule of computation. ” Such, likewise, seems to be the view taken by your honors, in the opinión reported in 14 Annual, 869. The language of Mr. Justice Land is : “If a vendor has the right to tender other lands in satisfaction of a vendee’s demand for a reduction of price, in consequence of a deficiency in the quantity of land sold, the tender should be of lands of the same quality and value as those actually conveyed, * And the same rule necessarily applies, when the deficiency is supplied otherwise than by a tender.
    J. M. J)uctros and Oyprien Dufour for defendant.

    The nature of this suit is well stated by the appellant’s counsel, as follows :
    “ This is an injunction suit, to arrest the execution of an order of seizure and sale, sued out for the collection of a mortgage note, given in part payment of the price of a plantation and slaves, purchased by the plaintiff from one Benjamin L. Millaudon. The ground upon which Davis now claims to maintain the injunction is a deficiency in the. quantity of land sold, exceeding one-twentieth, and which, he avers, has diminished the value of the plantation in the the sum of, at least, $16,000.”
    The answer of the defendant denies the right of the plaintiff to call upon him for a diminution of price, for various reasons. The principal reason is that the sale from the defendant to the plaintiff, being one from boundary to boundary, is a sale per aversionem, and therefore gives no right of action for a diminution of price.
    Article 2471, C. C.: “ There can be neither increase nor diminution of price, on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary.”
    The property sold is thus described in the act of sale, to wit: “ A certain sugar plantation situated on the Bayou Terre aux Bceufs, in the said parish of St. Bernard, known by the name of Ooiron’s estate, at about three miles from the river Mississippi, said parcel or tract of land being and lying on both sides of the said Bayou aux Bceufs, and measuring 1,620-arpents, and being bounded on both sides of the said bayou, on the up-¡ per line by land belonging to the heirs ol Joseph Ramirez, and on the lower line by land belonging to the estate of Joseph Sanchez.”
    Such is the description given of the property sold, and the question arises: Is this not a sale from boundary to boundary? It is impossible to imagine a case more in point than the present one for the illustration of what is termed in our jurisprudence a saleper aversionem.

    In O. H. Bavis v, Laurent Millaudon, the same point being raised for the same object, the court was called upon to determine the nature of this sale, and the court held : “The sale from B. L. Millaudon to Davis is a sale per aversionem. ” 14 A. 808; G. li. Bavis v. Laurent Millaudon.

    This case, however, has been once already on appeal before this court, and is now presented to your honors for the second time ; and the counsel for the appellant says, at page 5 of his additional brief : “ The characteristics of the act of sale in question were laid before your honors upon the first appeal, for the purpose of obtaining a decision from the court, whether the sale was one per aversionem., or not. This court held that it was not a saleper aversionem, and remanded the cause to enable the plaintiff to establish his demand in diminution, based ujdou the deficiency of land. The judgment of your honors upon the question per aversionem, like your opinion upon the plea of tender, forms res judicaia; and the character of the act of sale in controversy is no longer open to inquiry.”
    Thé counsel is clearly mistaken.
    This court has not held, in the judgment referred to, that the sale was not one per aversionem.

    The decision rendered upon the first appeal involved only matters incidental to the main issue; and the cause was remanded, not as the counsel says, “to enable the plaintiff to establish his demand in diminution, based upon the deficiency of land,” but, in the very terms .of the. decree, “remanded to the lower court for further proceedings according to law.” The record shows that, in the course of the first trial in the court below, the defendant filed a supplementary answer, in which, amongst other pleas, the following is to be found ;
    “ That, though denying the right of the plaintiff to call upon him for a-diminution of price, for the various reasons set forth in this and the original answer, yet, this respondent has purchased from the government, on the 19th day of July last, some two hundred and fifty acres of land, in the rear of that portion of the plantation which lies on the right bank of the bayou, which this respondent hereby tenders to said plaintiff, to be considered as forming a portion and parcel of his plantation.” .
    A fundamental error is in confounding as identical the plea of payment and the plea of tender.
    Payment is one of the modes by which obligations are extinguished. Art. 2126, C. C.
    It is a cardinal rule that every payment pre-supposes a debt. Art. 2129, O.O.
    It follows, of course, that whenever a plea of payment is entered it admits the pre-existence of the debt which it assumes to have extinguished.
    Hence, the Supreme Court has invariably held that the plea of payment $8 a peremptory exception; it is a plea going to extinguish the action. It must therefore be pleaded specially, and of course it assumes the preexistence of the claim, because a thing that was not could not have been, extinguished. 6 L. 457, Gleises v. Faurie.

    A tender, on the contrary, is a totally different plea. It is surely an admission of something, but a material inquiry arises as to the essence of the offer, in order to ascertain what is admitted. If it be an unconditional tender of the thing demanded, it is at once an admission of the right and a satisfaction of the claim of the other party. But if it is made without prejudice, in a manner showing the party is willing to submit to a sacrifice and to make a concession, the circumstance of such an admission cannot be disconnected from it. It is a most lamentable mistake to say that an admission, thus made, is inconsistent with g plea that the thing demanded is not due. The declarations and qualifications accompanying the tender, on the contrary, are most essential to give it its true character.
    “ The judicial confession is the declaration which the party makes in a judicial proceeding. It cannot be divided aginst him.” Article 2270, C. C.
    “A distinction is taken between the admission of particular facts and an offer of :a sum of money to buy peace. For, as Lord Mansfield observed, it must be permitted to men to buy their-peace without prejudice to them, if the offer should not succeed; and such offers are made to stop litigation, without regard to the question whether anything is* due or not. If, therefore, the defendant, being sued for £100, should offer the plaintiff £20, this is not admissible in evidence, for it is irrelevant to the issue; it neither admits nor ascertains any debt; and is no more than saying he would give £20 to be rid of the action.” 1 Greenleaf, \ 192.
    In a case where an offer to pay a portion of the debt was urged as an assent to the interruption of prescription, this court said :

      “We consider the conversation, taken as a whole, as a proposition by the defendant to buy his peace, as an offer of partial payment, .upon condition that the note should be given up to him, which proposition was declined, and so the position of the parties remained unchanged.” 9 A. 17, Lackey v. MacMurdo.

   InsiiEY, J.

This is an injunction suit, sued by Charles H. Davis, out of the Second Judicial District Court of the parish of St. Bernard, to stay proceedings via exeeutiva, which B. L. Millaudon was carrying on in the same court, for the collection of a mortgage note, given by Davis in part payment of the price of the Goiron Estate, which is described in the act of sale from B. L. Millaudon to C. L. Davis, as follows: “A certain sugar plantation known by the name of Goiron’s Estate, at about three miles; from the river Mississippi, said parcel or tract of land being and lying on both sides of the said Bayou aux Bceufs, and measuring fifteen hundred and twenty arpents, and being bounded on both sides of the said bayou, on the upper line by land belonging to the estate of Joseph Ramirez, and on the lower line by land belonging to the heirs of Joseph Sanchez” ; besides other property on and thereunto attached, the price of the whole property in block being a fixed one.

This is the second time that this case is presented to the Supreme Court for its decision (see 14 An. 868); and as great reliance is placed by Davis on the enunciation by the late Supreme Court, of certain principles, as final on the particular points passed on, and as having on those 'points the force and effect of res judieaia, it becomes necessary to determine now, whether this position be a tenable one.

On examining the decretal part of the judgment on the first appeal, we find that it merely avoids and -reverses the judgment of the lower court, and remands the case for further proceedings, according to law.

In Pepper v. Dunlap, 5 An. 200, it was held “that the reasoning and the opinion o'f a court, upon a subject on the evidence before it, does not have the forcé and effect of the thing adjudged, unless the subject matter be definitely disposed of by the choree of the court.” And Thompson v. Mylne, 4 A. 206, is upon the same point and to the same effect.

Marcadé. vol. 5, p. 386, says:

“ Qúant au point de’ savoir quand il y a res judicata, il est assurément bien simple, quoique controversé. La raison, d’aceord avec les textes et l’autorité de Pothier, dit assez que des la qu’un jugement est prononeé, des la que le point litigieux est jucliciairement décidé, il y a res judicata. Il est clair; au surplus, que la chose jugée n’existe jamais que dans le dispositif clú jugement, non dans ses motifs (qui ne pourraient étre con-sultes a cet égard que pour expliquer le sens d’un dispositif obseur); et seulement clans les parties de ce dispositif qui méritent vraiment ce nom parcequ’elles tr'anchent la contestation, et non clans celles qui ne pré-senteraient'que des énonciations. ”

See also Jackson v. Tiernan, 15 La. 485; Josephine v. Lee, 6 Wheaton, 109.

This court has, therefore, no hesitation in saying that all the matters presented to it in this case, whether arising out of the pleadings or the evidence adduced, remain under its entire control, unshackled by any previous action thereon, when it was examined on the first appeal. The opinions, and obiter dictu of our predecessors, particularly in suits which ■have once been submitted to them, and are again before this court for revision, are entitled to and will always receive due consideration; but, as the late court retained supervisory power over all the questions involved, -so will this court exercise the same power, discreetly, if the ends of justice can be thereby subserved.

The first question, then, is, as to the legal effect of the tender by Millaudon of other lands, to supply the deficiency in the tract sold by him to Davis; and on this point we are constrained to differ from the late court, which, however, only passed on it incidentally, in connection with a motion for a continuance, which had been overruled in the District court. The court, arguendo, on this point held, “that the plea of tender was an admission of the deficiency in the quantity of the land sold, and was inconsistent with the plea of the general issue, and this inconsistency was not avoided by the defendant’s declaration that he did not intend to waive the benefit of the latter plea.

A tender in open court of the thing demanded, or its equivalent, is certainly an admission that the thing itself is. due, and is, consequently, inconsistent until an averment that the thing is not due. It has ever been held that the 'plea of payment is inconsistent with á general denial; and a plea of tender cannot be less so.

After the rendition of the judgment remanding the case, Millaudon, by an ex parte proceeding, withdrew his tender, (which he could not do to affect any right Da-vis might have acquired under it,) but which he does not urge. See Boatner v. Scott, 1 Rob. 546; Kohn v. Marsh, 3 R. 48.

We will, therefore, proceed to examine the very important question, whether the qualified tender of other lands, with a concurrent reservation of all legal rights, and the special plea that he, Millaudon, was not legally liable for the deficiency, because the salé to Davis was one per aversionem, precluded him from availing himself afterwards of that defence.

The tender of a thing claimed in a suit, when made in the course of judicial proceedings and in an unqualified and unrestricted manner, carries always with it the presumption which the law attaches' to a judicial confession; but, when such tender is made, not of the tldng elcwmed, Ini of something else, with a special reservation (if the tender is not accepted as made), of all legal rights, and with the special defence that the thing actually claimed is not due, we cannot give to a tender so made the conclusive effect claimed for it by Davis. It was virtually an offer on the part of Millaudon to buy his peace, and to put a stop to litigation. If it amounted to anything at all, as an admission, it did not go to the extent that the thing claimed was due; but simply admitted that there was a deficiency in the measurement of the land sold, but it did not preclude the party from using the defence on which he relied, if his specific offer was not accepted. See Hough v. Vickers, 6 A. 724; Paillet, Manuel de Droit, note 17 to Art. 1356 N. C.; Merlin, verbo Confession, § 3; Brunoman, ad. 1. 28.

The main question is now reached, whether the sale from B. L. Millau-don to Davis was, or was not, one per a/versionem. The description in the notarial act of sale is the Ooiron Ssiate, lying on both sides of the bayou Terre aux Boeuf, between the plantations of José Bamirez and that of the heirs of Sanchez. The length of the lines fronting on the bayou is not given, but the superficial area of the property, amounting to fifteen hundred and twenty-five arpents, is expressed.

The circumstance that gives rise to the controversy now under consideration is, that in the description of the property sold, no rear boundary is defined; but that is an incident so common in the sale of lands lying on the rivers and bayous of this State, the primordial titles to which extend to the ordinary depth of forty arpents, that when in sales or other transfers of lands, so situated, no mention is made of the depth, that depth is always presumed.

It was so held in Carraby v. Desmare, 7 N. S. 664, by Judge Martin, (than whom no one was better acquainted, from long practical experience, with the mode in which rural property so situated was usually described), and he therein says: “In sales of lands on the Mississippi, the tract is sometimes described by the extent of its front and the names of the owners of the tracts above and below. Nothing is said of the owner of the tract in the rear, because, generally, the tract extends to another stream, or to an "uncultivated swamp. In such a sale, the ordinary depth of forty arpents is presumed as that which the vendor pos-SSSsed, unless the contrary is shown. Tlic question is one of intention as to depth, in the solution of -which the court is aided by the situation of the land and the price, etc.” The length of the front lines of the Coiron estate was not mentioned in the act of sale; but it can hardly be doubted that, in the sale of such a property, the vendee could have been ignorant of it; and the area being set forth, the depth of the tract could be readily ascertained. Had the lateral lines run parallel to each other on both sides of the bayou, there could have been no deficiency at all. The difficulty is caused by the converging eastern boundary line on the north side of 'the bayou; but, as Davis bought the land with sjjecial reference to that boundary, he must be presumed to have known in what direction it ran. There is, probably, no subject which has given cause more frequently for judicial investigation 'than that arising under Articles 2471 and 850 of the Civil Code. Our Reports teem with examples as to what do and what do not constitute sales per aversionem; and it is therefore not difficult to determine whether the sale of the Coiron estate belongs to that class or not. Among the numerous cases to which our attention has been directed, and which have otherwise fallen under our observation, there are some very similar, if not analogous, in their main features, to that of the Coiron estate; and they were all deemed sales per aversionem.

We give below the descriptions contained in the sales, extracted in each of the following cases:

1. In Brazeale & Sewell v. Bordelon, 16 La. Rep. 335, as follows:

“A certain tract or parcel of laud on which the said Perot and wife reside, situate in the parish of Natchitoches, on both sides of the Red river, containing about two hundred and twenty árpente, bounded above, on both sides of the river, by lands of the purchasers, and below, on the left (of the bayou), by lands belonging to them, and on the right (of the bayou) by land of Antoine Lenoid.”

In Préjean v. Giron et al., 19 La. p. 423, as follows:

One tract of land lying situate in the parish of St. Martin, at Cote Gelée, containing four árpente in front, with the depth that may be about thirty-five or forty árpente, the front of the said tract beginning at the extremity of the land of Pierre Giroir, bounded on the one side by the lands of Baptiste Comeaux, and on the other side by the lands of Madam Clark Beaton.”

In Saulet v. Trépagnier, 2 Rob. 358, as follows:

“ Ce qui compose bien Thabitation mentionnée aux présentes, de dix-sept árpente de face au ñeuve, sur une profondeur, qui sera déterminée par les titees ce qui agreé a Tacquéreur, bornée dans sa partie supérieure par Thabitation Dieudonné, et dans sa partie inférieure par celle de Mme. Yeuve Delhommer.”

In Nicholes v. Adams, 9 A. 117, as follows:

“A tract of land situate in this parish (PointeCoupée), at a place called ‘Village,’‘where the said vendor now resides, containing twenty-six ár-pente front, and bounded above by land of Elijah Adams, and below by land of Marcelin, f. m. c., with a special reservation of four superficial árpente from the upper line, which four acres have been sold by the present vendor to O. E. Hornsby; the tract, object of this sale, containing, pfter the above reservation, eight hundred and fifty superficial árpente, more or less. This land fronts on the Mississippi river, as appears by-titles referred to.”

In no one of the oases cited is there any reference -whatever to a rear boundary.

Wherever, as in many of the cases referred to, the tracts sold are of triangular form, with front and lateral boundaries described, or when, as principally in the sale of town lots, all the boundaries are described, they necessarily fall within the class of sales termed per aversionem.

But it will be seen that, in almost every case which were pronounced not sales per aversionem, no boundary whatever, or only one, w"as given.

It was so in Lacour v. Watson, 12 A. 215; Fisk v. Flemming, 15 La. 205; Hall v. Nevil, 3 A. 327; Boyce v. Cage, 7 A. 673; and they were necessarily excluded from that class of sales.

The sale of the Coiron estate was that of a specific thing, for a whole price in block; and, as it was held in Jackson v. Barringer, 15 John. Rep. 353, Davis “must be presumed to have known what land was contained in the expressed boundaries.”

The identical question, as to the character of this sale, has been already solved by the late Supreme Court, in the case of Laurent Millaudon v. Chas. H. Davis, in 14 A. p. 808. In that ease Davis sets up the defence of quanti minoris against L. Millaudon, who was prosecuting his claim, on a mortgage note, bearing on the Coiron estate, the payment of which Davis had assumed, as a part of the price of that property.

From what precedes, and in view of what we deem a fair legal construction of Articles 2471 and 850, C. C., enacted, in all probability, with a special view to the peculiar topography of the country, we conclude that the sale of the Coiron estate was one per aversionem.

Our attention has been called to several bills of exception, spread upon the record; but, as they all relate to the claim of Davis for a diminution of price, which we do not sustain, we do not deem it necessary to pass on them.

The judgment of the District Court must be, therefore, affirmed,

It is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, at the costs of the appellant.


text:
    Pierce Carey v. A. B. Courcelle, et als.
    "Where sub-contractors deliver defective work to the contractor, who receives it in that condition, and it causes damage to another, they will all be held liable in solido for the amount .of .the» damage so caused.
    from the Sixth District Court of New Orleans, Howell, J.

      Durant <& Hornor for plaintiff. Boselius & Philips for Bennett & • Lurges.

      J. L. Tissol and Filleulfor Courcelle.

    The defendant, Courcelle, undertook to build a verandah to a house situated on Marais street, between Customhouse and Bienville. He gave the contract for furnishing- the iron work to Bennett & Lurges, and the contract for slating to J. B. Brown, who employed the plaintiff as a slater. It is alleged that, on account of' a defect in the iron work furnished by Bennet & Lurges, the verandah fell out suddenly from the house to the ground, precipitating with it the. plaintiff, injuring him severely. c The plaintiff claims $10,000 damages, from Courcelle and Bennett & Lurges, in solido.

    The case was tried by a jury, who rendered a verdict in favor of' plaintiff for $1,000. The defendants have appealed from the judgment of' the District court.
    1. The relation of master and servant did not exist between Courcelle and Bennett & Lurges and Brown, and he cannot be made liable for the acts of Bennett & Lurges, according to Articles 2296 and 2299, C. C.
    Courcelle, Bennett & Lurges and Brown exercised independent employments ; they executed different and independent contracts; and, supposing any injury was caused by Bennett & Lurges and their servants, Courcelle is not liable for their acts.
    When he who does the injury, either in person or by his servant, exercises an indepedant employment, the party employing him is clearly not liable, as in the instance of a butcher who employs a drover, whose deputy does the mischief by his careless driving, or of a builder who Contracts to make certain alterations in a club house, together with the necessary gas-ñttings, and who employs a gas-fitter for the latter purpose, tinder a siib-contraet, through the negligence of whom or of whose servants the plaintiff sustains an injury; in these cases the relation of master and servant does not exist between the principal and the person who occasions the injury, and the former is therefore not liable for the misconduct of the latter. Broom’s Legal Maxims, No. 672, on the maxim, “Be-spondeat SuperiorPaley’s Agency, p. 296 and notes; Story on Agency, Hoi 453; Peyton v. Richards, 11 A. R. 62.
    2. If the relation of agent and principal, or servant and master, exists between Courcelle and Bennett & Lurges and their workmen, it also fexists between Courcelle and Brown and his workmen, and Courcelle, as Master* is not liable to one servant for damages resulting from, tho libgli-gence of another servant. Art. 2299, C. C., does not apply to such a case.
    The principle is that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow-servant, wherever he is acting in- discharge of his duty as servant of him who is the common master of both. Hubgh v. H. 0. & CarrolUon B. R. Co., 6 A. R. 497; Paley on Agency, 453 and notes; Kent’s Commentaries, vol. 2, p. 296; Story on Agency, 453 and notes; Howes v. Steamboat Red Chief, 15 A. R. 321.
   Labauve, J.

The plaintiff states, in substance, that the defendants, Courcelle and Bennett & Lurges, are indebted to him in solido in the sum of $10,000, for which he prays judgment; that he is a laboring man and a slater by occupation, and was employed in that capacity by Brown, to work on the verandah of a house in this city; that said Courcelle was the undertaker to put up the building for the owner, and that Bennett & Lurges were employed by him, the said Courcelle, to put up the said verandah, which was to be with iron bars projecting from the walls of the house, which iron bars were to be well fastened to the walls; and that said Bennett & Lurges constructed the said verandah so negligently that it was unsafe, and that when he went on top, to slate it, the whole entire work fell out suddenly from the house to the ground, precipitating petitioner with it; that petitioner was shockingly wounded and injured; that his leg was broken.in two places, etc.

The defendants answered by a general denial.

The jury having found a verdict for plaintiff, against the defendants in solido, for $1,000, the'court, being satisfied therewith, refused a new trial and gave judgment accordingly. The defendants appealed.

On the trial below Bennett & Lurges requested the court to charge the jury, “ that Bennett & Lurges, being under the supervision and control of A. B. Courcelle, they were bound to follow the instructions given to them by said Courcelle.” The court refused to give the charge as requested, and a bill of exceptions was taken to the opinion of the court. We think the court did not err. The charge was calculated to mislead the jury; the cause of action arose from a quasi-offence, and the subcontractors, Bennett & Lurges, were not justifiable, although under instructions, in doing the work in such a defective manner as to endanger the safety of other workmen that were to follow them in the completion of the verandah; they were responsible for their work.

A. B. Courcelle was the undertaker to put up the building ; he gave the contract for furnishing and putting up the iron work of the verandah to his co-defendants, Bennett & Lurges, and the contract for the slating he gave to T. B. Brown, who engaged the plaintiff as a slater to do. the work. The evidence shows that the iron bars of the verandah were not securely fixed on the house; and when the-plaintiff, with other workmen, went on the verandah to slate it, the whole work fell out suddenly from the house to the ground, precipitating- and injuring the plaintiff. The injury consisted in a comminuted or double fracture of the right thigh bens, besides a fracture of the two bones of inferior portion of the right leg, also a dislocation and fracture of tlie left foot, and fracture of the two inferior bones.

The plaintiff avers,'in substance, that the said Courcelle, the undertaker, was well advised that the said verandah was unsafe and had been negligently constructed by the said Bennett & Lurges, and that he received the work in its dangerous condition, thereby making himself liable with the others. The testimony shows that Courcelle was present when the bars of iron were fixed to the building, and, in fact, participated in the unsafe manner of fixing the iron bars to the house. Leon Gariday, a witness, says: “These iron bars merely went through the wall and extended on the roof, and were only wedged on both sides with wooden wedges, and not attached to any joint at all; and the front walls of the house extended up higher than the roof of the balcony, by the entire cornice of wall; and, besides the wooden wedges, there was nothing else to hold the upper iron bars into the walls. I made the observation of the fact to Mr. Courcelle, now in court.”

We are of the opinion that Courcelle, having contributed to the insecure manner of putting up the verandah, and having afterwards received the same in its bad and dangerous condition, made it his own work, and became liable with his co-defendants for the injuries sustained by plaintiff. This case comes clearly within the dispositions of Arts. 2294, 2295 of C. 0. The case that comes nearer to the one at bar is Peyton v. Bich-arás, where the facts are thus stated : “John McVitter was the undertaker of the building; McVitter made a special contract with Newton Richards to put up the iron front in question, of which McVitter furnished the materials; and Richards made another special contract with William Thompson to do the same work. William Thompson himself performed the work, with the assistance of laborers, hired and paid by himself. Just as the work was completed, the iron work and plates, or in-tablures, fell to the ground, in consequence, as witness thinks, of not being sufficiently propped with pieces of wood under the horizontal pieces, as is usual and necessary. Thompson himself and another workman fell to the ground with the work. After this accident, which caused the death of plaintiff’s slave, Thompson erected the work anew, and only received the stipulated compensation from defendant ($15) after the work was properly done and finished. We are of the opinion that Thompson, by whose fault, negligence or unskilfulness, this accident happened, was not the servant or overseer of defendant in the performance of this work.”

The difference between that ease and the one at bar is this: in that case Thompson had not completed and delivered his work to his employer, Newton Richards, and the workmen of Thompson had no right to look to Richards for any damages suffered by them in consequence of the fault or negligence of their employer; but, in the present case, Bennett & Lurges, sub-contractors had completed their work in an unskilful and neglectful manner, and delivered the same in that condition to Courcelle, the undertaker; this work was a part of the contract of Courcelle with the owner of the building; and he, Courcelle, by receiving it in that unsafe and insecure condition, became liable for the damages suffered by plaintiff. The receiving of the work by Courcelle did not relievo Bennett & Lui'ges óf théir responsibility towards those who were to complete the verandah by slating it. We think that the principles settled in the case of Clement Camp v. Church Wardens & Kirwan, 7 A. 321, support our views expressed herein.

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

Howedii, J., recused.

Jones, J. absent.


author: Hvman, C. J.

text:
    Timothy Connell v. J. H. Brown.
    Where the record does not show a transfer of a right to the plaintiff, the case will he remanded.
    from the Second District Court of New Orleans, Morgan, J.

      Buchanan <fi Gilmore for plaintiff. "Whittaker & Fellowes for defendant and appellant.
   Hvman, C. J.

Defendant has appealed from a judgment rendered against him in favor of plaintiff.

Plaintiff sued defendant for $427 22, on an account, for work done by E. D. White, in front of defendant’s real property.

He alleged that the claim was due to White, and that White had assigned it to him.

Defendant, in answer, first denied all the allegations of the plaintiff, and then made the following admission: “Admitted thatE. D. White performed the work set forth in his claim; that he, defendant, is entitled to deduction of $93 82 on the bill of said White, for work done; this amount, therefore, we plead in compensation and reconvention.”

This answer is an admission that the claim sued on was owing to White, but it is not an admission that plaintiff had any right or title thereto.

We have carefully examined the transcript for some .evidence, of transfer from White to plaintiff, and none has been found.

Plaintiff has not yet proved that he is the transferee of White, or that he has any right to the claim sued on.

The judgment of the lower court is reversed, and it is decreed that this cause be remanded to the District court for further proceedings therein. The plaintiff is to pay the cost of this appeal.

HowEim and Jones, J. J., absent.


author: Howeiii, J.

text:
    Pierre Diverges v. His Creditors.
    where, in complicated accounts between the syndic and the creditors, the court a quo appointed an umpire to decide, and an accountant to investigate the accounts, the judgment will be affirmed.
    from the Second District Court of New Orleans, Morgan, J.

      Boselius <& Philips for St. Homes, provisional syndic and appellant. L. Oastera for B. Sonlie, syndic.
   Howeiii, J.

This is a contest for the syndieship of the creditors of the insolvent, which involves the correctness of the accounts between said insolvent, as agent, and his principal, Mrs. de St. Romes.

Two auditors were appointed in the court below, whose reports are in the record, and in which they agree, except as to one item against, and two in favor, of the insolvent. Taking this result, as to the agreement in the debit and credit sides of the account as correct, it is unnecessary to enquire into the correctness of the three disputed items; for if they are all three decided in favor of the- appellant, it does not affect the judgment rendered by the District court. An umpire was appointed by the lower court, and this court has referred the record to a competent accountant, and the result of the investigation of both is to sustain the judgment. The examination which we have been able to make of the record does not lead us to any different conclusion.

It seems that Mrs. de St. Romes voted upon the sum of all the charges against her agent, without giving him the benefit of the credits to which her auditor considers him entitled, and which the evidence, so far as this controversy is concerned, does not disprove.

Under these circumstances, and considering that this proceeding is not conclusive upon the creditors, we do not feel authorized to disturb the judgment appealed from.

Judgment affirmed, with costs,

Jones, J., absent.


text:
    Henry Levy v. Mrs. J. Rose.
    WheTe a married woman is separated from her husband in property, and doing business as a public merchant, she cannot plead that the draft accepted by her did not inure to her personal benefit.
    from the Sixth District Oourt of New Orleans, Howell, J.
    6?. Schmidt for plaintiff. V. F. & J. B. Cotton for defendant and appellant.
   Jones, J.

The plaintiff sued Jenett Rose and others on a draft purporting to be drawn by the said Rose, through her husband, as her agent.

The evidence shows that the said Rose was a public merchant, separated in property from her husband, and that her husband had full power to borrow money on her account at the time the draft sued upon was executed.

Her defence is a failure of consideration and that the consideration of the draft did not inure to her personal benefit.

The proof in this case leads us to the conclusion that this defence is untenable. Her repeated confessions to different witnesses, made after the death of her husband, that she owed the plaintiffs money, and especially the precise amount represented in the draft sued upon, taken in connection with the fact that, at the execution of this draft, she was a public merchant, separated in-estate from her husband, who was her duly authorized agent to borrow money for her, render it certain that the draft in suit inured to her use and benefit.

Judgment affirmed, with costs.

Howeeii, J., recused.