author: .Buchanan, J. Buchanan, J.

text:
    P. A. Rost and Jonathan Montgomery v. Heirs of Henry Doyal.
    Where the testator had directed his slaves after a certain period to be emancipated and sent to Africa, and some of them were held in indivisión with his partner, who refused to give his consent to tho emancipation, and became the purchaser from the heirs of their undivided half of the negroes— Held: That tho provisions of the will in regard to such of the testator’s negroes became inoperative.

      k PPEAL from the District Court of the Parish of Ascension, Duffel, J.
    P. Soule, for plaintiffs.

      Elmore & King and Benjamin, Bradford & Finney, for defendants.
   .Buchanan, J.

By the last will and testament of Stephen Henderson, made in 1837, and probated in 1838, it was provided (Art 6, note to page 459 of the 5th Annual Reports,) that the slaves upon the various plantations of the testator, and which belonged to himself individually, should be sent to Africa, as free persons, with an outfit of one hundred dollars each, at stated periods, within twenty-five years after his death.

And the 8th Article of the same will (p. 460 of the 5th Annual, in note,) contains the following disposition :

“ Some arrangement must he made with Henry Doyal, who is one half owner of the Mount Iloumas plantation and slaves, by selling the land to him at the end of the first five years; ho iu the meantime must liquidate his account at his leisure, paying no more interest upon any balance that may be due to my estate than six per cent, per annum. The negroes upon the Houmas estate to be emancipated upon the same conditions as those upon the other plantations, one-half of them being already my property. Mr. Doyal would, no doubt, make an agreement with the executors for those belonging to him.”

Prom the first sentence of this Article, it would appear that the slaves, as well as the plantation belonged to tho testator and to Doyal, jointly, each for an undivided half; while from the last sentence it would seem that a portion of those slaves belonged to Mr. Doyal solely.

The fact is, as shown by the subsequent proceedings of the parties interested, that the first statement was the correct one. Each and every slave attached to the Mount Houmas plantation belonged jointly to the two partners in the plantation, Henderson & Doyal. The testator evidently contemplated that Doyal would agree that the slaves thus jointly held, should be sent to Africa. But in this he was mistaken. Doyal positively refused to give his consent to anything of the kind; as appears from the following extract from a notarial act signed by the said Henry Doyal, bearing date of the 1st June, 1839, which is in evidence; and the said Henry Doyal has further declared that, whereas the said late Stephen Henderson did, by the said last will, direct his testamentary executors to make some arrangements with him, the said Henry Doyal, and to pay him a certain sum of money to consent and permit that all the slaves attached to the Mount Houmas plantation may be emancipated and sent to Africa in the manner and at the time provided by the last will of the said late Stephen Henderson, and that the said slaves receive each one hundred dollars; now he, the said Henry Doyal, here declares, that he does hereby expressly refuse his assent to the execution of this, or of any part of the will of the said late Stephen Henderson, relative to the emancipation of the said slaves attached to the Mount Houmas plantation ; and that as owner of the undivided half of the said slaves, he objects to their emancipation, and formally denies the right of the said late Stephen Henderson to emancipate any of the said slaves without his consent.”

By the same notarial act, which contains the above recited clause, the heirs at law and residuary legatees of Stephen Henderson, who had been sent into possession of his estate by decree of the Court of Probates of New Orleans, dated the 24th May, 1839, sold to Henry Doyal the undivided half-interest of their ancestor, Stephen Henderson, in the Mount Houmas plantation and in the slaves attached to the same (one hundred and sixty-nine in number), for the price ot one hundred and twenty-five thousand dollars, in ten promissory notes, payable at different periods from one to five yeoys from the date of the sale and of the notes, (1st of June, 1839.)

Three of those notes are the subject of the present suit.

The signature of Doyal to the notes is admitted; but the defendants claim an allowance of twenty per cent, upon the appraised value of the slaves attached to the Mount Houmas plantation, and sold with said plantation by the notarial act of the 1st of June, 1839, in deduction of the three notes now sued upon, being one of the notes payable in four'years from date, and two of the notes payable in five years from date of the said sale.

This claim or pretension of the defendants is based upon the following clause of the notarial act of sale aforesaid :

“ It is further agreed by and between the parties hereto, that the present sale is made and accepted on the condition, that in case the Court of Probates for the parish and City of New Orleans, or any court having competent jurisdiction in the matter, shall decide, that the undivided half of the slaves attached to the said plantation, and belonging to the estate of the said late Stephen Henderson, are to be sent to Africa in obedience to the last will of the said late Stephen Henderson, and are entitled to receive each one hundred dollars, the said Henry Doyal shall, as he does hereby bind himself, comply with such part of the judgment of said court on the subject, and that in such case, a deduction of twenty per cent, on the appraised value of the said slaves, as the same are appraised in the inventory of the said plantation and slaves made by the Hon. Edward Duffel, Parish Judge in and for the parish of Ascension, on the 6th day of April, 1838, shall be made from the 1st installment of the purchase price of the said plantation and slaves, or from any other installment of the said purchase price, as the said parties may agree upon.”

The condition contained in the above- recited clause, did not suspend the payment of the price of the sale, and the defendants have failed to show that the condition has over happened. The decision of this court in 11th An. 543, relied upon by defendants’ counsel, was not “ that the undivided half of the slaves attached to the plantation, and belonging to Stephen Henderson, are to be sent to Africa." The decision in 11th An. was professedly based upon the decision of our predecessors in 5th An., p. 468, that the 8th section of Henderson’s will, as to the liberation of the slaves on the Mount Houmas plantation, could only operate, if at all, upon such slaves, as by a partition íd hind with Doyal, should be set off to Henderson’s succession in exclusive ownership.

Wo acted, in 11th Annual, upon this hint of our predecessors, and decreed, in a suit between Henderson’s heirs and Flenderson’s executors, to which Doyal was not a party, that all the slaves of which Henderson’s estate was sole owner, either at the time of Henderson’s death, or by partition in kind with Hoyal, made since Henderson’s death, should be sent to Africa, provided they were willing to go.

Now, so far from any slaves having been set off to Henderson’s succession by a partition in kind with Boyal, the evidence shows that the parties interested in those slaves have rendered such a partition impossible by the sale which has been made to Boyal of all the interest of the succession of Henderson in said slaves.

There is a plea of prescription filed by defendants; but it is proved that prescription was interrupted by written acknowledgements of indebtedness made at various times by Henry Boyal, with the avowed intention of interrupting prescription.

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

Same Case — On a Re-hearing.

Buchanan, J.

In affirming the judgment of the District Court by our former decision rendered herein, it escaped our notice that the said judgment contained a clause which is inconsistent with the view that we have taken of the controversy between the parties.

The clause referred to reads as follows :

“ It is further ordered, that the Houmas -plantation and slaves be seized and sold according- to law, to satisfy the amount due, as aforesaid, on the above recited mortgages, including the costs ; said sale to be made subject to. the clause in the sale from the residuary legatees of the late Stephen Henderson to Henry Boyal, in relation to the emancipation of the undivided half of all the said slaves and their issue.”

This portion of the judgment italicized by us is in direct conflict with the reasons assigned by this court for its decree, inasmuch as a partition of the slaves, in view of such emancipation of an undivided half, is held by us to have been rendered impossible by the acts of the parties.

It is, therefore, adjudged and decreed, that our former judgment and decree rendered in this cause be set aside and avoided ; and it is now ordered, adjudged and decreed by the court, that the judgment of the District Court from which this appeal is taken, be amended, by rejecting- therefrom tho clause which directs that the sale of the Houmas plantation and slaves shall be subject to the clause in the sale from the residuary legatees of the late Stephen Henderson to Henry Boyal, in relation to the emancipation of the undivided half of all the said slaves and their issue; that in other respects, the.said judgment be affirmed, with costs of the court below ; those -of appeal to be paid by plaintiffs and appellees.

Duffel, J., absent.


source: Caselaw Access Project

author: Duffel, J.

license: Public Domain

text:
    Mummy, Luling & Co. v. J. A. Haggerty & Co.
    A party seeking to recover must make his claim certain, it is not sufficient to render it probable.
    The acts of a principal will not amount to a ratification of a contract, when they arc entirely based upon the representations of the agent, who was himself deceived as to the real existence of the thing which was the object of the contract.
    There can be no valid ratification when the contract is without an object.
    ■Where a factor, acting as the agent of another party, has employed a broker to make a purchase, and such broker, without seeing the merchandise, acknowledges a constructive delivory on a simple inspection of an entry in the books of the vendor and constituted depositary, it is such an act of imprudence as will render the factor liable for any loss that may occur from the bad faith of such vendor.
    PPBAL from the Fifth District Court of New Orleans, Eggleston, J.

      Hunt & Denegre, for plaintiffs.

      . T. J. & A. G. Semmes, for defendants and appellants.
   Duffel, J.

This suit is brought to recover from the defendants the sum of $5,497 50, with interest from March 2d, 1858. There ivas judgment in the District Court in favor of the plaintiffs for the amount claimed, and the defendants appealed.

The only item in dispute is the sum of $4,502 25, it being the cost of a cargo of salt imported in the ship Humber. We will give a brief history of the case as disclosed by the evidence.

It appears that the defendants being dissatisfied with the sale of 9,171 sacks of salt, effected by the plaintiffs, according to a contract of pledge, said salt being held by plaintiffs, as collateral security, for advances made to defendants, they, the defendants, authorized one I. M. Abrams, (who it seems acted alternately on various other occasions, as the broker of the oiie or the other firm,) to call on the plaintiffs “ and ask them to replace the old salt by buying a cargo of new at fifty-seven and a half cents,” being two and a half cents per sack more than the price obtained for the old salt; said Abrams thereupon made to the plaintiffs this proposition, “ to buy new salt, or replace the old by new, at fifty-seven and a half cents,” when the following correspondence was interchanged :

New Orleans, March 1, 1858.
“Messrs. J. A. Haggerty & Co., present:
“ Dear Sirs — Agreeably to our verbal communications, and in consideration of seven hundred and fifty dollars cash being paid, and your note at sixty days satisfactorily endorsed, being given in liquidation of the balance, which, after the sale of fifty coils rope, may remain to your debit, we will accede to your request, and advance the cost of another cargo of new salt at fifty-seven and a half cents per sack, the said salt to remain in our possession, for your account, as collateral security of your note at sixty days, inclusive of interest, at eight per cent, for its cost. It is particularly understood, that the charges accruing on the salt, while in warehouse, such as fire insurance and storage, shall be paid by you monthly in cash, we having the privilege to sell the said salt, on or after the maturity of your said note, unless then paid in full, and to hold you responsible, for any short proceeds which such a sale, less two and a half per cent, commission,_may leave against you. We are yours, very respectfully,
“ Mummy, Luling & Oo.”
“ New Orleans, 1st March, 1858.
Messrs. Mummy, Luling <& Co., present:
“ Gentlemen — In reply of your note of to day, we have to state, that we are not in a condition to offer an endorser ; or any other paper than our own in settlement of the account between us. As we consider the sale of our salt at fifty-five cents, made in opposition to an agreement entered into with your broker, and Mr. Weeks, your representative, we think that we are acting equitably in the matter, by proposing to pay two and a half cents per sack on the lot of new salt, which you offer to buy, to replace our consignment of old salt reported as sold, as aboved named at 55 cents. We further agree, to pay the storage and fire insurance on the new lot proposed to be bought, and stipulate that it shall be sold within sixty days, if the above terms suit; we will pay interest to day of sale of salt, from the maturity of our note held by you, at the rate of ten per cent, per annum ; but are not in a situation to pay in addition to the above named charges, a commission of two and a half per cent.
“ Very respectfully,
(Signed) “ J. A. Haggerty & Oo.”

It was after the above correspondence, that Abrams (we quote from his testimony) received instructions from the plaintiffs to buy the new salt, which he did, after having ascertained from the defendants that the matter had been settled. It was the cargo of the Humber ; the purchase was made in the usual manner in which salt is bought; the witness adds, that he took more than ordinary precaution in effecting the purchase; examined the salt which stood on the books in the name of Casey & Co., as having been transferred to them by James Wilson <& Co., whom he knew had imported the same. He was thus particular, because Casey had been speculating largely in the article, buying at large prices and selling at low ones; Casey had in his warehouse, probably one-third of all the salt then in market; his integrity and good faith was not at that time questioned. Witness obtained the receipt for the price, and the warehouse receipt from Casey & Co., and delivered the same to the-house of plaintiffs.

The defendants knew that the salt was the cargo of the ship Humber, but the witness did not communicate to them the name of the vendor, and thinks that he did not communicate to them where the salt was stored. The defendants instructed the witness, to sell the new salt at a fixed price, provided the plaintiffs were satisfied, and the salt was finally sold.

Shortly after this last sale, Casey absconded, when it was discovered that Casey had, prior to the purchase effected by Abrams, sold the same salt to two other parties, and to another party subsequently to such purchase by Abrams.

It is also in evidence, that there were twenty-nine claimants of salt in the insolvency of “ C. S. Martin v. His Creditors and The Creditors of T. J. Casey & Co.,’’ some laying claim to several different cargoes, which were also claimed by others.

The plaintiffs having, in consequence of the prior right of the first purchaser of said salt from Casey, refunded to their vendee the amount by him paid, which amount they themselves had paid over to the present defendants, now seek to recover the same from the latter.

The defendants, in their brief, contend that Abrams acted as the agent of the plaintiffs, who were, in this transaction, their factors; and that in as much as they, the plaintiffs, did not, in fact, buy any salt, and, therefore, never were in possession of the same, they have no cause of action. Besides, the plaintiffs having waived the actual delivery of the salt, and accepted in lieu of it the warehouse receipt of the vendor, who was also the warehouseman, they have, by such unusual and imprudent conduct, forfeited all right of action against them.

In as much as the parties, plaintiffs and defendants, mutually charge in argument, that 1. M. Abrams was, and acted as, the agent of the other party, we will again turn to the testimony. The witness, Abrams, says, that: He carried several messages to and fro between the parties. These messages were in relation to the purchase of the new cargo. The reasons for these messages, witness thinks, were, for one, Mr. Luting had reluctance to advance the price for the new cargo ; and for another, there was a difference of two and a half per cent, on the new cargo.”

Another witness, J. J. Weeks, the chief clerk of the plaintiffs, says in substance, that the proposal to buy the new salt, was made by Abrams in behalf of defendants, who agreed to pay the differance in the price, two and a half cents per sack, which proposal was answered by letter copied above ; that the letter was opened by the defendants in his presence, and after reading it, they, with the exception of the two and a half per cent, commission, acceded verbally to it. Witness is positive that it was Mr. Abrams who came with the proposal to buy the new salt on behalf of defendants. Abrams acted as the broker. The proposal to buy the new salt included with it, that Mr. Abrams should be the agent to effect the purchase. Mr. Abrams was the broker who made the sale of the old salt.”

The plaintiffs admit, most emphatically, that the plaintiffs acted as the agents of the defendants; the petition sot forth, “ that all the above matters arc set forth in the account-current hereto annexed and made part of this petition ; that said Haggerty & Co. neglect to pay petitioners said sum, or any part thereof, although in regard to the transactions relative to the salt, petitioners acted solely as the agents of said Haggerty <& Co.,” and we have on the debit side of said account-current on the date of 2d of March, 1858 : “ to costs of 7,830 sacks Liverpool salt, cargo of ship Humber, purchased for their account at fifty-seven and a half cents per sack, ®4,502 25.”

With this fact patent before us, we will require positive and conclusive evidence to shift the position of the parties, so as to represent Abrams as the agent of the defendants and the plaintiffs merely as advancing the required funds to Abrams. The conversations between the defendants and Abrams do not warrant such a conclusion; still less the letter from the defendants to the plaintiffs. Abrams received his instructions to buy from the plaintiffs and returned to them the account of sale and warehouse receipt; the defendants are not even informed by their pretended agent, of the name of the seller and of the warehouse containing the salt. The only testimony, in opposition to this array of concurrent evidence, is that of the chief clerk of the plaintiffs, and it is not of a character to carry conviction, but is, in a degree, at variance with the statements furnished by the plaintiffs and with their books. Abrams was on the stand, yet he was not interrogated on this particular. A party seeking to recover, must make his claim certain ; it is not enough to render it probable. Adams v. His Creditors, 14 La. 454 ; Skipwith v. His Creditors, 19 La. 198.

The acts of the defendants did not amount to a ratification, for they were entirely based on the representations of the plaintiffs, who were themselves deceived as to the real existence of the thing which was the object of the contract. C. C. 1887, 1890, 1875, 1815, 1818, 1840 ; Bradford v. Cook, 4 An. 229; C. C. 2252.

Wo conclude from the evidence, 1st, that there was, and could be, no valid ratification, for the reason that the contract was without an object, a substance ; 2d, that Abrams was, as between the parties, a mere negotiator to induce the plaintiffs to buy new salt to replace the old salt, and that otherwise he acted as the broker of the plaintiffs; and, 3d, that the plaintiffs acted as the agents and factors of the defendants.

We will now examine if the plaintiffs, as factors, have any just claim against the defendants for the amount invested in the purchase of the new salt. It is evident, that although the price was paid as charged, there never was a sale for the want of an object. 0. 0. 2414.

It will be conceded, that a mandatary is responsible for any damage that may result from his neglect of duty and want of prudence. C. C. 2971, 2972, 2993; Kirkby et al. v. Armistead, 11 R. 81; and his liabilities attaches equally to the acts of the sub-agent. C. C. 2976 ; Hennen’s Digest, vol. 2, p. 892, No. 2.

The question which now presents itself is, did the plaintiffs, or their agent, Abrams, who made to them a report of the contemplated purchase, and returned to them the account of sale and warehouse receipt, both emanating from the same source, act prudently and in accordance with a -well established and acknowledged custom ?

The broker, Abrams, did not see the salt, but acknowledged a constructive delivery on a simple inspection of an entry in the books of the vendor and constituted depositary. In the ordinary transactions between individuals, no prudent man would have so acted ; and we do not think that tho evidence is such as to authorize us to declare the practice sanctioning- commercial dealings. 0. (J. 3, 1961.

It is, therefore, ordered, that the judgment of tho lower court be reversed. It is further ordered, that the plaintiffs have judgment against the defendants, A. Haggerty & Co., and the individual members of said firm in solido, for tho sum of nine hundred and ninety-five dollars and twenty-five cents, with interest at six per cent, per annum from 2d of March, 1858, till paid, and the costs of the court a qua. It is further ordered, that the claim for the new salt, being four thousand five hundred and two dollars and twenty-five cents, be, rejected ; and that the plaintiffs pay the costs of the appeal.

Land, J., absent.


author: Voorhies, J.

text:
    Union Bank of Louisiana v. Ira Bowman.
    Wlioro a suit lias been brought by a bank to recover tlio price of property sold, and during tho pendency of the action, a third party is subrogated to tho rights of tho bank, such third party will bo competent to stand in judgment as mtorvenor, although the deed of sale under which ho claims, was not accepted by him until after the expiration of the hank's charter — provided, the legality and sincerity of the transaction is not otherwise questioned.
    APPEAL from the District Court of the Parish of Tensas, Farrar, J.
    7?. J. Bowman, for defendant and appellant.

      T. P. Farrar and A. Snyder, for intervenor.
   Voorhies, J.

This suit was brought against the defendant to enforce a claim for which, he is liable individually, and as third possessor of mortgage property. The defendant pleads a failure of consideration, averring that the land sold to him is deficient in quantity, and that a large portion of it is in the adverse possession of other parties.

The case having been decided in the District Court, the judgment was, on appeal, affirmed, so far as regards the hypothecary action, but reversed and remanded for a new trial, so far as concerned the defendant personally. 9 An. 195.

The case was again considered in the court below ; but, in the meantime, Alfred Penn intervened, miho suit, claiming, by virtue of a subrogation from the bank. The former’s capacity to stand in judgment is questioned, on the ground that he has not accepted the deed of sale from the latter, before the expiration of the charter. I-Iad this been a donation, there might be some plausibility in the arguments presented by the defendant on this branch of the case. But the intervenor has a deed of sale, in which it is stated that he has paid the stipulated price, previously to the execution of the deed ; nor is the legality and sincerity of this transaction otherwise questioned. The intervention was, consequently, well founded.

The defendant is entitled to relief, on account of the deficiency of one hundred and twenty-two 44-100 acres, which are in the adverse possession of one William Lizenbij, and have never been delivered to the former by his vendor. But the evidence does not enable us to ascertain the value of this portion of the land, relatively to the stipulated price of the sale. The defendant purchased, for the sum of $5,284, the tract -of land in question, together with forty-eight shares of stock in the Union Bank. He furnished his notes for $3,000, and assumed to pay his vendor's debt to the bank, for the sum of $2,284. What has become of the above notes, the record does not disclose. And, with regard to the stock, it appears that the account continued to be kept in the name of John Gazle, the defendant’s vendor. In this respect, the evidence is not sufficiently explicit.

The defendant avers, in his answer, that he has been compelled, in order to obtain possession of his vendor’s land, to purchase the outstanding title of one Bowles; but there is nothing to prove that Bowles had such a title, or that his title, if any he had, was superior to that of John Gazle.

It is, therefore, ordered and decreed, that the judgment of the District Court, be avoided and reversed; the appellant paying the costs of the District Court, and the appellee and intervenor, the costs of appeal.

It is further decreed, that the land in question be seized and sold for cash, to pay to the intervenor the sum of two thousand and forty dollars, with interest at the rate of ten per cent, per annum, from the first day of April, A. D. 183C, and two dollars costs of protest, subject to the following credits, viz : one hundred and twenty dollars paid on the 1st day of April, 1836 ; one hundred and twenty dollars paid on the 27th of May, 1836 ; seven hundred and twenty dollars paid on the 24th of May, 1852 ; and four hundred and eighty dollars paid on the 1st of January, 1853 ; together with all the costs of the court below — ■ the said sum, when realized, to be paid to Alfred Penn, intervenor in this case, in due course of administration of the estate of Ira Bowman, deceased, the original defendant.

It is further ordered and decreed, that Alfred Penn, do have judgment for the aforesaid amount against the defendant individually, the said amount to be paid in due course of administration of the estate of Ira Bowman, deceased, subject however, to the right of the administrator, to a pro rata deduction of an amount equal to the relative value of the one hundred and twenty-two 44-100' acres, which were not delivered to the defendant.

And it is further ordered, that this case be remanded, for the purpose of fixing-said relative value, so as to discharge for that amount, and proportionally, the personal indebtedness of the defendant, Ira Bowman, deceased, to the plaintiff and intervenor ; but that, in other respects, this judgment to be final and executory — the said pro rata deduction not to affect the proceeds of the sale of the property, as above ordered.

Merrick, O. J., having been of counsel in this case, recuses himself.


author: Buchanan, J.

text:
    Walter O. Winn et al. v. Bennett S. Dickson and H. H. Womack, Curator.
    To the action of nullity nono can bo parties, except those who were parties to the judgment sought to be annulled.
    "Where a party suing to annul a judgment of partition, on the ground of error in the description of the owner of lands, is shown to have suffered no injury, and the execution of the judgment would not be against good conscience, and where it is not shown that there was fraud or ill practice on the part of him who sought such partition — but that the mistake complained of arose from the carelessness of the party suing to annul — Held : That such error m description is not a sufficient cause of nullity.
    Tn a petitory action to recover property which lias been sold under a judgment of partition, as belonging to the succession of one brother, while m reality it belongs to that of anothor, the parties plain - tilt being the legal heirs to botVi, will not bo hold to have warranted the title of the purchaser, when the record does not show that they ever accepted the .succession of the first, or did any act of heir-ship which would make them responsible.
    APPEAL from the District Court of the Parish of DeSoto, Creswell, J.

      C. Roselius, Elam & Wimple and W. B. Lewis, for plaintiff and appellant..

      T. J. Semmes, Winans and John W. Landrum, for defendant.
   Buchanan, J.

The plaintiffs sue for the nullity of a judgment of partition rendered in the suit of H. H. Womack, Curator, v. Walter O. Winn, No. 324 of the docket of the Eighteenth District Court for the parish of DeSoto. They also cumulate with this action, in their petition, a petitory action for certain lands purchased by defendant, Dickson, at Sheriff’s sale, made in execution of the said judgment of partition.

Por a proper understanding of the case, it is necessary to state what were the proceedings that led to the judgment sought to be annulled.

On the 17th of January, 1856, the present defendant, Womack, curator of the vacant succession of Basil Q. Rigg, filed a petition, in which he alleged that the intestate, Basil Q. Rigg, in his lifetime, was joint owner with one Richard Winn, also now deceased, of certain lands situated on Rod River, in the parish of DeSoto; that Walter 0. Winn is the only surviving heir and legal representative of the said Richard Winn ,- that it is necessary to have a partition of said lands; and that said partition cannot be made in kind, but must be made by sale; and concluded by praying for the appointment of experts, for an inventory of the lands to be partitioned, for citation to Walter O. Winn, and for general relief.

The answer and amended answer of Walter 0. Winn in said suit, filed in March and in October, 1856, acknowledged the joint ownership of the lands to be in himself and in the succession of Basil Q. Rigg; and pleaded various matters of exception and defence.

Upon this issue, the suit was tried ; and judgment was rendered on the 11th of December, 185G, by which it was decreed that a partition of the lands mentioned in the plaintiff’s petition be made by sale or licitatiou ; that a writ of sale issue to the Sheriff of DeSoto, commanding him to cause said lands to be duly advertised and appraised, and to sell the same to the highest bidder for cash, provided said lands bring their appraised value; and that, if the said lands should sell for cash, to pay to the plaintiff, Womaclc, curator of Basil Q. Rigg, one-half of the price, less one-half of the costs of suit, and to the defendant, Walter 0. Winn, the other half of the price, less one-half the costs of suit. A suspensive appeal .from this judgment of partition was granted, on motion of defendant, Winn, at the same term of court at which the judgment was rendered, returnable in the Supreme Court at Alexandria, on the 1st Monday of August, 1857. But this appeal was abandoned, no appeal bond being filed. The judgment was accordingly executed by a writ of sale, issued the 29th December, 1856, under which the land was advertised and appraised ; aud on the 7th February, 1857, was adjudicated to the defendant in the present suit, Bennett S. Dickson, as the last and highest bidder, for cash, for the appraised value of the land, to-wit, ten dollars per acre; which price was paid by said Dickson to the Sheriff.

The ground of nullity of the judgment of partition, alleged herein, is error in the description of the owner of one-half of the land partitioned, in this, that the said land, instead of being, as alleged in those proceedings, the joint property of Walter 0. Winn and of the succession of Basil Q. Rigg, was in truth and in fact, the joint property of Walter 0. Winn, and of the succession of Edward G. Rigg.

The plaintiffs in the present action are, 1st, Walter 0. Winn, and 2d, the next of kin and lieirs-at-law of Edward G. Rigg, deceased.

The defendants are, 1st, II. II. Womaclc, curator of Basil Q. Rigg, and 2d, Bennett S. Dickson.

The two causes of action herein cumulated, appear not only to be distinct, but to have different parties plaintiff and defendant. And first, of the action of nullity. To this action, none are parties but those who were parties to the judgment sought to be annulled. Trichel v. Bordelon, 9 Robuison, 191. Those parties are, the plaintiff, Winn, and the defendant, Womack.

As between those parties, is the error complained of a sufficient legal ground for the nullity of the judgment of partition?

The Code of Practice, Article 605, declares that the causes for which the action of nullity of a judgment will lie, are two-fold : those which relate to the forms of proceeding, and those which appertain to the merits.

Winn’s cause of complaint in the present instance has evidently nothing to do with the first of these classes. The Article 607 of the Code of Practice declares what are the grounds of nullity of the second class. It reads as follows :

“ A definitive judgment may be annulled in all cases where it appears that it has been obtained by fraud, or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the Judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

The plaintiff! Winn, claims to be relieved under this Article ; and his counsel argues that the particular instances of ill practice specified in the Article arc not restrictive of its application, but that they are given merely by way of example and illustration. He quotes, upon this point, the case of Swain v. Sampson, 6th An. 800, in which the court said, referring to the case of Tristoe v. Norris, 3d An. 646, “ we there held, that to annul a judgment, a case must bo exhibited which would make it against good conscience to execute the judgment; matter of which the injured party could not have availed himself in the former litigation, or of which he was prevented, by fraud or accident, of availing himself. The matter must also be such as the party, by the use of reasonable diligence, could not have known; for if there have been laches or negligence, that destroys the title to relief.”

Tested by the rule thus laid down in the cases of Norris v. Tristoe and Swain v. Sampson, we do not find that a cause of nullity has been made out, under the Article of the Oode. For, in the first place, there is no fraud or ill practice charged against the plaintiff in the partition suit, defendant herein. It is proved that he opened the succession of Basil Q. Rigg, and caused the lands to be inventoried as the property of that succession jointly with W. 0. Winn, upon information furnished by Winn himself, and at the solicitation of Winn. Nay more, when the suit was instituted for partition, Winn, although opposing the demand, formally and repeatedly admitted in his pleadings that his co-proprietor in these lands was the succession of Basil Q. Rigg. Thus, the error of which Winn now complains was, in fact, an error originating with himself, and confirmed by his judicial admission.

Secondly, it was not against good conscience for the defendant, Womack, to execute the judgment. The notice given on the day of the Sheriff’s sale, in the form of a verbal declaration by Winn’s attorney, that other parties were interested in the land than those mentioned in the pleadings and judgment, could not have the effect of an injunction to stay the Sheriff’s sale. Womack was not bound to believe that declaration in the face of everything that had occurred in court. On the contrary, Womack, who was acting in a representative capacity, was bound to proceed in the accomplishment of his trust as curator, in the execution of the judicial order to sell the property as belonging to the estate which he was administering, in the absence of any counter-order or injunction.

Thirdly. Winn suffered no injury by the execution of the judgment of partition. He never pretended, and does not now pretend, to have been the owner of more than one undivided half of the land — precisely the quantity which was sold, as belonging to him. The sale was made strictly in conformity to a decree rendered contradictorily with him, after the legal advertisements upon an appraisement made by an appraiser appointed by himself; and the price was paid to the Sheriff by the purchaser, in gold, according to the requisition of Winn’s counsel.

Fourthly. The error of which Winn now complains, could not have happened, but for gross and unaccountable negligence and laches on the part of Winn. The records of the Land Office at Opelousas 'show that these lands were purchased from the United-States by Richard Winn and Edward G. Rigg jointly. These records were open to the inspection of plaintiff, Winn, at all times, as well before and during the progress of the partition suit, as after the judgment rendered in that suit. Before Womack’s application for letters of curatorship, Winn had been requested to give the name of his partner in these lands, and had given the wrong name. His carelessness in not examining the records of the Land Office, is the only apparent reason for this mistake. He cannot, under the authorities cited by his counsel, make that carelessness a ground of claim to relief against the judgment of partition.

The other branch of this case is a petitory action in which the heirs of Edward G. Bigg are to be considered as plaintiffs, and Bennett S. Diclcson as defendant. At the sale in execution of the judgment of partition, of which we have already spoken, the defendant, Diclcson, purchased the interest of W. 0. Winn, who is admitted by his co-plaintiffs to have been the owner of one undivided half of the land claimed. By such purchase Dickson is vested with Winn’s title. The evidence leaves no doubt on our minds that the other undivided half of the land, which was also bought and paid for by Diclcson, and of which the price (under the judgment in the partition suit,) went to the curator of Basil Q. Bigg’s succession, in reality belonged to Edward G. Bigg’s succession, which does not appear to have ever been the subject of administration.

When the plaintiffs, collateral relations of Edward G. Bigg, shall have caused themselves to be put in possession of his estate, by judgment of a competent court, they will have their action of partition against the defendant, Dickson, in which the questions of the claims for clearing land, &c., raised in these proceedings, may be discussed and decided. We think them premature and out of place in this suit. It is argued by defendants’ counsel, that the plaintiffs, who claim as heirs of Edward G. Bigg, should be held to warrant the title of Diclcson under the purchase of this undivided half from the succession of Basil Q. Bigg, on the ground that those plaintiffs, standing in precisely the same relationship to Basil as to Edward, who were brothers, and who both died unmarried, are as much the heirs of the one as of the other.

But to this it seems to be well replied, that the plaintiffs have never (that the record shows) accepted the inheritance of Basil Q. Bigg, and have done no act of heirship, which would make them responsible.

The judgment of the District Court is, therefore, amended ; and judgment is hereby rendered in favor of defendants against the plaintiff, Walter'O. Winn; and against the heirs of Edward G. Bigg, plaintiffs, as in case of nonsuit; the costs of the lower court to be paid by plaintiffs; and those of appeal, in equal proportions, by the plaintiff and appellant, Winn, and by the defendant and appellee, Dickson.

Land, J., having been of counsel for defendants, recused himself.

Merriok, O. J., took no part in this decision.


text:
    J. Tujacque v. M. Weisheimer et al.—City of N. Orleans, Warrantor.

      By the City Ordinances, the Commissaries of the markets are authorized to have disturbers of the public peace arrested; and the arrest of an individual, on the charge of taking possession of another’s stall in market, without bis permission, is unlawful, unless ordered by the Commissary.
    The damages assessed at $--hold to be reasonable.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      C. Dufour, for plaintiff.

      J. J. Lugenbuhl, for defendants and appellants.

      J. J. Michel and J. Villeré, for warrantor.
   Buchanan, J.

This is an action for damages for a malicious arrest.

The plaintiff is a butcher in the Port Market. The defendants are farmers of the revenue derived from the stalls in said market.

Plaintiff was arrested on the 3d of April, 1858, by a policeman, at the request of the defendant, Blaise, for talcing possession of a stall without his permission.

When arrested, plaintiff was taken by the officer to the police station, where he was detained as prisoner. At the time of his arrest, he left his stall unattended, covered with butcher’s meat.

The Commissary of the market proves that plaintiff had the permission of the defendant to occupy said stall.

The defendant’s counsel justify the arrest on the ground that plaintiff was dis turbing the peace, and quote page 149, No. 435 of the City Laws and Ordinances. But the ordinance quoted authorizes the Commissaries of the marlcets to have disturbers of the public peace arrested ; and the Commissary, examined as a witness, testifies that, so far from authorizing this arrest, he remonstrated against it as soon as it came to his knowledge; and that he procured the release of plaintiff.

The evidence makes out a clear case against the defendant and appellant, Blaise, of malice and want of probable cause in procuring the arrest and imprisonment of plaintiff and appellee.

The damages assessed by the District Court appear to be a moderate atonement for the outrage complained of.

Judgment affirmed, with costs.

Land, J., absent.


author: Merrick, C. J.

text:
    G. R. Spalding v. Mr. and Mrs. E. Godard.
    Whore ii woman at tlie timo of her marriage was in possession of certain lots, as lessee, upon which she had constructed houses, and derived a profit by sub-leasing them, and there was an agreement that at the termination, of the lease it might be renewed — Held: That if by the marriage contract this continued paraphernal property, and was administered by her through her agents, and at its expiration, the lease was renewed by her in her own name, it remained, after renewal, paraphernal property, and was not liable for debts of the community.
    A married woman is not a public merchaut within the moaning of the Code, unless she carries on a separate business from her husband.
    APPEAL from tbe Sixth District Court of New Orleans, Howell, J.

      George 8. Lacey, for plaintiff.

      E. Bermudez, for defendant and appellant.
   Merrick, C. J.

The defendants were married in this city, on the Tth of May, 1855, having the same day entered into a marriage contract. A community of acquets and gains was stipulated.

Mrs. Godard was at that time, and previously had been in possession, among other things, of certain property, five lots of ground at the corner of Burgundy and Conti streets, in this city, as lessee, on which she had placed certain wood buildings. The lease was to terminate the 1st of January, 1859; but it seems there was a verbal agreement that it should be renewed for six years, on the same terms. When this verbal agreement was entered into, (whether before or after the marriage,) does not appear. The property was leased to her for per month. By means of her improvements, she could re-let for $ 160 or $1 per month.

By the marriage contract, the lease was declared to be a paraphernal effect of the wife, together with the building's which she had erected upon the property, with her own funds. The lease and buildings were estimated in the marriage contract at $2,000.

Sirs. Godard appears to have retained the administration of the property, through her agents, after the marriage.

On the third of December, 1857, Sirs. Godard, by notarial act, with the authorization of her husband, renewed the lease for six years, and stipulated the right to remove the buildings which she had placed upon the same, at the termination of the lease.

Mr. Godard was an asronaut, and also gave exhibitions as a magician. Mrs. Godard assisted, and ■' in the magical performances was the important actor,” although she did not appear before the public. She also superintended the making of the balloons, and even made excursions. The witness says, “ she appeared to have control of the funds appertaining to the exhibitions. Godard always applied to her for money ; she kept the cash ; she was boss."

At St. Louis, on the 18th day of- May, 1858, Mr. and Mrs. Godard, by an instrument under seal, made a mortgage or conditional sale, of the lease of the property above described, to secure $2,398 37, payable March 1,1859.

They thereby transfer the lease to Spalding, under the description of property “ leased to said Mrs. Godard," &c.

The condition in the act is, that if the debt shall be paid, the transfer shall bo null; otherwise to remain in force, and Spalding to collect the rents.

Plaintiff also binds himself to cancel and anmil the instrument so soon as the debt shall be paid, whether from the revenues of the property or otherwise. The debt was for balloons, magical apparatus, &c., sold by Spalding to Godard and his wife.

Plaintiff commenced his action against defendants’ agent, and enjoined him from paying over the rents to the defendants.

Wo are oí the opinion, that the lease, after its renewal, remained the paraphernal property of the wife as before. It is true, that it does not appear when the agreement to renew was made. But it is evident that it was the additional buildings put upon the property before the marriage, which enabled the defendant, Mrs. Godard, to make a profit, by sub-leasing, and the object of the renewal must have been to avail herself of her own buildings. Having stipulated in the marriage contract, that the buildings and lease should remain paraphernal, having administered her own property by her agent, and having’ renewed the lease in her own name, it must be considered paraphernal.

The employment of Mrs. Godard cannot be assimilated to that of a public merchant; neither was it separate from her husband. 0. 0.128.

The debt contracted at St. Louis, was a debt of the community, and as a consequence, Sirs. Godard was not bound for the samo, either in person or property.

This disposes of the whole ease.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court as to the said Mrs. Agiaé Blanchet, wife of said Eugene Godard, be avoided and reversed, and that the said injunction be dissolved ; and that there be judgment in her favor, and against the plaintiff’s demand against her, and that she recover her costs in both courts.

Land, J., absent.


text:
    Glasarian Clark and Husband v. Pauline Hébert, Widow Kirkland, as Tutrix, &c.
    In order to annul a judgment, a direct action of nullity must bo instituted in the same court which lias rendered the judgment;&emdash;but when an action is made the basis of another action in another court, the party sued may plead in defence nullity arising from the want of proper parties.
    ■Whore a party intends to avail himself of a decree as an adjudication upon the subject-matter in controversy, and not merely to prove collaterally that the decree was made, he must show the pro-, ceodings upon which the decree was founded, the whole record which concerns the matter in question ought to be produced.
    APPEAL from the District Court of the Parish of WestBaton Rouge, Beale,o.

      George L. Bright and McCutchin & Stewart, for plaintiff and appellant. Barrow & Pope, for defendant.
   Buchanan, J.

This is a suit upon a judgment rendered in another parish, than the one in which the present suit is instituted.

Plaintiff and appellant objected to an amended answer filed by the defendant on the grounds:

1st. That the said amended answer attacks a judgment rendered in another court.

2d. That the allegations of the amended answer are inconsistent with those of the original answer.

On the first ground : a direct action of nullity' must bo instituted in the same court which has rendered the judgment&emdash;but when an action is made the basis of another action, in another court, the party sued may plead in defence, such nullities as are here pleaded.

On the second ground : -we agree with the Judge below, that the pleas of the two answers are not inconsistent.

Plaintiff excepted to a second amended answer, on the same grounds as above stated, and on the further ground, that the judgment, which is the basis of the present action, constitutes res judicata between the parties to this suit.

The last ground was properly overruled. . It constituted no reason lor excluding the amended answer, which sat up various claims against the minor for payments made on her account by her tutor, Vincent Kirkland.

It might, possibly, have been a good ground for excluding evidence under the said amended answer, had the judgment been given in evidence. It would then have appeared whether the conditions of the presumption of the thing adjudged, as defined in Article 2265 of the Code, existed, in reference to the claim sot up in the second amended answer.

But the judgment in question is not in evidence in the cause, having been excluded by the District Court, for reasons which form the subject of the third of the plaintiff’s bill of exceptions, which is as follows :

The plaintiff offered in evidence a copy of the judgment of the District Court of the parish of Livingston, and of tha fi. fa. issued thereon, which are the foundation of this suit; to which the defendant objected, upon the ground that a judgment of another court could not be given in evidence, without the production of the whole record&emdash;which objection was sustained by the court, and the evidence was ruled out; to which ruling, an exception was taken.

The appellant’s counsel urges in support of this bill of exception, the decisions of this court in Stafford’s Succession, 2 An. 886, and Price v. Emerson, 14 An. 141; in which cases, it was held that the production of the entire record of mortuary and insolvent proceedings is not necessary.

But it must be observed, that in the cases cited, the party offered a portion of such proceeding's, merely to prove an isolated fact in the proceedings, not at all involving the whole settlement of the insolvent or intestate estate under administration. Whereas, it seems that the judgment against plaintiff’s tutor, was but the compliment or consummation of the whole administration of the ancestor of defendants, for which they are sought to be made liable, and that the rule in 1 Greenleaf, section 511 is applicable.

The general rule, says that author, is, that when a party intends to avail himself of a decree, as an adjudication upon the subject-matter, and not merely to prove collaterally that the decree was made, he must show the proceedings upon which the decree was founded. “ The whole record,” says Chief Baron Comyns, “ which concerns the matter in question, ought to be produced.” We find no error in the ruling- of the court below.

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

Land, J., absent,


author: Vookhies, J.

text:
    Dennis Hills, Administrator, v. Daniels & Long.
    Whore the contract of deposit stipulates no reward for the preservation of the thing deposited, and tile depositary acts at the request of the owner, he is not bound to use more than ordinary prudence.
    Tile proof of negligence on the part of a depositary is sufficient to render him liable for the loss of cash deposited with him; but in order to establish Ins liability for a draft that has disappeared, it is necessary that the depositor show some lops he has incurred by its disappearance.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Wm. H. Hunt t& Denegre, for plaintiff.

      Michel & Koontz and Race efi Foster, for defendant and appellant.
   Vookhies, J.

W. B. Henderson, a passenger ou board the Bonita, owned by the defendants, deposited in the latter’s hands, for safe keeping, the sum of $1130 in gold, the sum of $405 in paper money, and a sight draft for the sum of $1400.

When the boat reached the city, Henderson went ashore and came back in the course of an hour, accompanied by three persons. He asked for the money deposited ; and the defendants, if one of the witnesses must be believed, refused to comply. Another witness testifies to the contrary. Bo this as it may, Henderson subsequently requested Captain Daniels to have the articles deposited for safe keeping in the city until the next day, when the former intended to leave on a boat.

Daniels deposited the money and draft in the hands of J. Spealce & Co., his commission merchants. The articles were placed in an iron safe for the night, it being understood, that they would be claimed the next day. The next morning, the money and the draft had disappeared from the safe.

The question is now raised, as to the liability of the owners of the boat and of their commission merchant for the restitution of the deposit.

So far as Daniels S Long are concerned, we are satisfied, from the evidence, that they acted prudently in depositing the articles in the hands of their commission merchant, with whom they had been dealing for a considerable time, and whose standing or credit at the time, was good. This was a gratuitous contract, and the depositary was ■ acting at the request of the owner. The defendants, Daniels & Long, therefore, were not bound to use more than ordinary prudence. C. 0. 2908.

The defendants, J. Spealce & Co., have not accounted satisfactorily for the loss of the property deposited with them ; the evidence upon which they rely to prove the larceny of the money and of the draft, besides being incomplete, implies negligence on their part. Their liability attaches fully for the amount of cash deposited with them. C. 0. 2928. But, as regards the draft, the case is different. The plaintiff has not shown any loss incurred in consequence of the disappearance of this instrument.

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

It is further decreed, that the plaintiff’s demand against the defendants, Daniels & Long, be rejected, with costs in both courts.

And it is further ordered and decreed, that the plaintiff, D. Hills, adm’r, do have judgment against J. Spealce & Co. for the sum of fifteen hundred and thirty-five dollars, with legal interest from judicial demand ; the defendants paying the costs of plaintiff’s suit in the court below, and the plaintiff paying the costs of appeal.

Land, J., absent.


text:
    H. D. Mandeville et al., Trustees, v. M. E. Huston.
    The fact that a persou lias voted in this State, and even become a candidate Tor the Legislature here, is not sufficient to show a change of domicil from another State, if it bo proved that he nevor made a permanent change in his residence.
    In a suit brought by the trustees of a Mississippi Bank to recover money duo on a judgment obtained by them in the' State of Mississippi, which jndgmont was barred by the statute of limitations there — Held: That the Act of the Legislature of the 27tb of May, 1846, was intended to prohibit the exercise of any right which the laws at home did not- permit to be exorcised there ; and that, whore a bank could not exercise a right growing out of a judgment in Mississippi, on account of the statute oflimitations, tiio Act of 1846 would prevent its exercise here.
    The doctrino of the interruption of proscription is not admitted at common law to the extent allowed by the Civil Law; the maxim there is, that when the statute of limitations has onco commenced to run, it never stops on account of any subsequent disability. But by the law of Mississippi, an exception is made to this general rulo in favor of tho first absence of the debtor from the State at the time of the accruing, or after the accruing of the action, which is alono to be doduoted.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      T. O. Morgan and Fuqua & Kilbourne, for plaintiffs.

      Muse & Hardee and Benjamin, Bradford S'Finney, for appellant.
   Merrick, C. J.

Tho Planter’s Bank of Mississippi obtained two judgments in 1843, against Gen. Felix Huston aDd others, in the courts of Mississippi.

The Planters’ Bank subsequently made an assignment of the judgments with other effects to trustees for the payment of debts. Afterwards, the charter of the bank was declared forfeited. The trustees being desirous of enforcing these judgments, brought suits in chancery on the same, and obtained decrees in each, the same being signed on the 3d day of July, 1850. They, the judgments, amount to $22,971 34, with interest at seven per cent, thereon from July 2d, 1850, until paid.

The present suit is instituted by the said trustees of the Planters’ Bank to recover said sum from the defendant, as executrix of the last will and testament of Fellx Huston, deceased.

The right of the trustees to stand in judgment is no longer an open question. Walworth et al. v. Routh, 14 An. 205.

The main defence to this action, is the statute of limitation of seven years of the State of Mississippi, which we have had occasion recently to consider in the case of Morton Hamner v. Valentine, 15 An. The case differs from that, however, in several particulars.

In this case, the proof shows that for a time previous to the rendition of the decrees in the chancery cases, and up to his death in 1857, Felix Huston had his habitual and usual domicil in Adams County, Mississippi. During all this period, he was subject to the jurisdiction of the courts of Mississippi; so that process at any time might have been served upon him. His friends and neighbors knew of no other 'domicil.

At the same time, he had a plantation upon Thompson’s Creek, in the parish of East Feliciana, in this State, which engrossed much of his care and attention. He visited it often, but (with perhaps a single exception in 1853) his visits were short, never occupying more than two or three weeks; yet, he seems to have had the intention at least, at times, of making East Feliciana his permanent domicil. Ho has boon known to vote there, and in 1853 was a candidate for the Legislature. He also signed acts describing himself as of that parish. Suits were commenced against him there, and the executrix applied for letters testamentary in the same parish. One witness, Gen. Cole, who knew well how much of his time was spent in East Feliciana, says : “ The family domicil of Gen. Huston was in Adams County, Slate of Mississippi, to my knowledge, from the year 1844 up to the day of his death.” This is corroborated by other witnesses of much respectability. The family physician says : “ Gen. Felix Huston spent much of his time at his place on Thompson’s Creek, Louisiana, but was hardly ever absent from his residence near Washington in this (Adams) county for more than two or three weeks at a time, and since 1850. Witness considered his residence to be in this county, and does not know that he resided in Louisiana, although ho liad a plantation there. All witness knows in relation to the residence of Gen. Felix Huston in Louisiana since 1850, is, that he frequently left his residence in Mississippi, and visited his plantation on Thompson’s Crook, Louisiana, where he would sometimes remain a week or two, or longer, and return to his home in this county. Such visits hardly ever exceeded three weeks at a time, and most usually but a few days.”

We assume, therefore, that the true and principal domicil oil Felix Huslon was in the State of Mississippi from 1850 to the day of his death. See 7 An. 411.

This being conceded, the defendant then contends, that she is permitted by law to avail herself of the Mississippi statute of limitations of seven years as a defence to the judgment.

She not only relies on the Act of 1855, cited at length in the case of Morton & Hamner v. Mark Valentine, 15 An., but also of the Act of 27th May, 1846, p. 161, in these words : “ Be it enacted, Sc., That no bank or oilier corporation of any other State, or of any foreign country, nor any creditor under them, under assignment or otherwise, shall, in seeking to enforce the collection of debts due by the citizens of this State, exercise any right which such bank or other corporation, or such creditor under them could not exercise by virtue of the laws of the State, or of the foreign country in which such bank or corporation is situated.”

The question we now have to decide under this statute will be best understood by adopting the words of plaintiff’s counsel in stating it. He says :

“ But it is urged, that the Acts of the Legislature of Louisiana of May 27th, 1846, (p. 161,) and March 15th, 1855, (p. 224,) have naturalized the laws of Mississippi upon the subject of prescription, and so far as foreign judgments are concerned, made them our own. We are not disposed to question the correctness of this position. We admit that if the eight has ceased to exist in Mississippi, it can have no legal existence here, or in the language of the Act of 1846, that no creditor can ‘ exercise any right which such creditor could not exercise by virtue of the laws of the State or foreign country ’ in which the debt was contracted. The Act of 1855 is to the same effect. The question then arises, have the plaintiffs lost their right in Mississippi, is their judgment barred by the statute of that State? ”

Counsel then distinguish between the right and the.remedy, and sum up on this branch of the case in these words :

“ The law of Mississippi gives the judgment creditor two remedies, or rather points out two modes of keeping his judgment alive, of neither of these can he avail himself before our courts, the loss of both remedies would carry with it the loss of the right itself; but the loss of only one leaves the right intact. And so long as that exists, our courts will accord a remedy consistent with our laws. And that is, not to allow him to have his Mississippi judgment revived by scire facias, or grant him an execution upon it; but he is permitted to sue on it in the ordinary way, and obtain a new judgment.”

The candid admission of counsel, as to the meaning of the Act of 1846, gives us more confidence in our own conclusions upon the meaning of the same. The Planters’ Bank, we are informed by the record, was ousted of its franchises, and declared to have forfeited its charter in June, 1845. Other Mississippi banks, doubtless suffered the same fate about that time. The Act of 1846 was passed with reference to the state of things then existing in our contiguous sister States.

If the right spoken of in the Act of 1846 be any right growing out of the obligatory force of any contract or judgment, or if it be any other vested right, it is a thing guarded by the Constitutions of the United States and of this State, and the legislation was idle, because such rights could not be less nor greater here than at home. That the statute has reference to remedies, is more apparent from its phraseology, that in “ seeking to enforce the collection of debts ” such foreign bank shall not exercise any right which it could not exercise by virtue of the laws of the State in which such bank is situated. The thing prohibited is not then any absolute right per se, but the exercise of a right which tice laws at home did not permit to bo exercised. The lapse of time required by the statute of limitations at home would be a bar- by law to the exercise of a right under a contract or a judgment. And, inasmuch as a bank could not exercise such right at home, it must follow, we think, that the Act of 1846 (among- other things) prevents the exercise here.

The inquiry is then left, what remedy, if any, have the plaintiffs by the laws of Mississippi ?

The judgments on their face appear to be barred by the 8th section of the statute of limitations of Mississippi, which bars the actions of scire facias and debt upon judgments by the lapse of seven years. Now, as the common law gives only two actions upon judgments, viz, scire facias, and debt, we cannot understand to what other action plaintiffs’ counsel refer in the passage we have cited from their brief. 1 Ohitty’s Pleadings, 103. By the laws of Mississippi, prima facie, their clients stand in this position : they cannot take out execution, because the defendant, Huston, has departed this life, and an action must be brought to enforce the decree against his representatives. They cannot bring an action, because the only two actions which will lie upon judgments are barred by the statute of limitations.

The only question remaining to be considered is, whether there are any circumstances which will take the case out of the statute of limitation. We do not understand the doctrine of the interruption of prescription to be admitted at common law to the extent allowed by the civil law; on the contrary, the maxim is that when the statute of limitation has once commenced to run, it never stops on account of any subsequent disability. 1 Bouvier’s Inst., p. 338, sec. 865. By the eleventh section of the statute of limitations of Mississippi, an exception is made to the running of the statute in- cases where a person against whom there is a cause of action, is out of the State where the action accrues, or goes out of the State subsequently. In such case, the time the debtor is absent is to be deducted. We are not advised whether, or not, the 11th section was intended by the lawgiver to apply to judgments. We will assume that it was so intended. It is held by the courts of Mississippi, that it is only the first absence of the debtor from the State at the accruing-, or after the accruing- of the action, which is to be deducted; that so soon as the debtor returns, the statute recommences to run and continues to run on uninterruptedly until completed. No one visit of the testator to Louisiana in 1850 or 1851, could, therefore have defeated the statute. See Ingraham & Read v. Bowie, 4 George Miss. Rep., p. 20; see also Vide v. Chewning’s Heirs, 2 George Miss. Rep., p. 201. In one of the chancery suits, the administrators of the estate of one Burns, a co-defendant, were made parties by scire facias. From the judgment, rendered on the 3d day of July, 1850, they prosecuted a writ of error to the High Court of Errors and Appeals, on their own accounts. It was by mistake accompanied by a writ of supersedeas as to the whole case, instead of themselves alone. If the time which was apparently lost by the supersedeas be deducted, the seven years have not elapsed as to one of the judgments. The supposed supersedeas, however, cannot have any influence on the plea. The writ of error sued out was not intended to affect the rights of the other defendants, and could neither occasion the affirmance or reversal of the judgment as to them. The testimony of two members of the Mississippi bar on this point is explicit. They say : “ The right of Mandeville et al. to execute then-decree was not affected by the writ of error as against Gen. Huston.” It seems they could at any time have had the writ quashed. Their suffering- it to stand was purely voluntary on their part. It does not appear to bo a case excepted from the operation of the statute of limitations. It did not, therefore, prevent the plaintiff's from bringing their actions of debt or scire facias, and was no legal impediment or bar to the same.

This view of the case makes it unnecessary to consider whether the taking out of letters testamentary in Louisiana is such a coming into the State, after the accruing of the statute of limitations, as to give the defendant a valid defence also under the Act of 1855.

In the case of Walworth et al. v. Routh, 14 An. 205, the Act of 184G was neither pleaded nor relied upon in argument.

It is, therefore, ordered, adjudged and decreed by tho court, that the judgment of the lower court be avoided and reversed ; and it .is now ordered, adjudged and decreed by the court, that there be judgment in favor of the defendant, and against the demands of the plaintiffs, with tho costs of both courts.

Land, J., absent.


author: Land, d.

text:
    Mary Sturges, Executrix, v. John B. Taylor.
    Where property, upon which a privilege exists, has been purchased at Sheriff >s sale, and after tho privileged creditor has obtained judgment against tho formor owner of the property and a recognition of his privilege, the purchaser pays the amount of the judgment — Held: That by Art. 679 of C. P., he was bound to extinguish' the judgment, and the fact that he was the vendor of the property, and that it was sold at his suit to pay the purchase price, would not release him from the obligation, and that his payment does not give rise to any subrogation, by operation of law, to the rights of the judgment creditor against the former owner of the property.
    APPEAL from the District Oourt of the Parish of East Feliciana, Ratliff, J.

      Muse & Hardee, for plaintiff and appellant.

      R. L. Bowman, for appellee.
   Land, d.

J. S. R. Guay, the testator of the plaintiff, purchased two certain lots of ground, and the improvements thereon, the property of the defendant, at a Sheriff’s sale, for the price of five hundred dollars, subject to the payment of the mortgages and privileges existing on the same. At the date of the sale, a privilege existed on the property for the sum of three hundred dollars, in favor of Stephen Yarborough, for materials furnished to the defendant, and used in the construction of buildings on the premises. After the Sheriff’s sale, Yarborough obtained judgment against the defendant, for the amount of his claim, with a recognition of the privilege on the property sold. The amount of this judgment was paid by the plaintiff, as executrix of the purchaser Guay, and this suit was instituted by her for the purpose of being subrogated to all the rights of Yarborough, in the judgment obtained by him against the defendant.

The Code of Practice declares, that “ when there exists a mortgage or privilege on the property put up lor sale, tho Sheriff shall give notice, before he commences the crying, that the property is sold subject to all privileges and hypothecations, of whatsoever kind they may be, with which tho same is burthened, and with the condition that the purchaser shall pay in his hands whatever portion of the price for which the property shall be adjudicated, may exceed the amount of the privileges and special mortgages, to which such property is subjected.” Article 619.

It is evident, that it was the duty of the purchaser, under this Article of the Code of Practice, to have retained in his hands, out of the price for which the property was adjudicated, a sum sufficient to pay the privileged debt in favor of Yarborough; and the fact tiiat he was the vendor of the lots, and that they were sold at his suit, to pay the purchase price, and bought in by himself, did not release him from that obligation. Diggs v. Green, 15 La. 416.

The payment of the judgment against the defendant by the executrix of the purchaser, was but the performance of his own legal obligation, and did not give rise to any subrogation, by operation of law, to the rights of Yarborough, the judgment creditor, in favor of the purchaser or his legal representatives, because he was bound to pay and extinguish the judgment with a portion of the price of the adjudication, or to abandon the property to the privileged creditor for that purpose.

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

Merrick, O. J,, having been of counsel in the case of Yarborough v. Taylor and Guay, declined to sit in this case.


author: Merrick, 0. J.

text:
    Heirs of Benjamin Williams v. Mary Ann Hardy, or Williams.
    Whore a testament purporting to be of the olographic kind, is not entirely written by the testator, it is null.
    Where a party enters into a second marriage, children of the first surviving, he is incapable of giving to his intended spouse more than one-fifth of his estate in usufruct.
    Where the community has been waived, by the marriage contract, between husband and wife, the law does not, in that case, create the presumption that the property belongs to the husband.
    PPEAL from the District Court of the Parish of Livingston, Wilson, J.

      II. Duncan, for plaintiffs and appellants.

      A. Hennen, for defendant.
   Merrick, 0. J.

This suit is brought by the plaintiffs to be recognized as heirs of the deceased, Benjamin Williams, to correct the inventory, and to annul an alleged olographic will made in favor of defendant. The suit was commenced by sequestration, and property to the amount of $2,149, not inventoried, was sequestered.

The defendant answered, setting up a marriage contract, in which the testator acknowledged himself to owe the defendant $1,000 for money lent at various times ; she sets up an olographic will in her favor ; alleges that she is owner of the property sequestered ; that the inventory is a true one ; that she was proceeding, as executrix, to settle up the estate as far as the assets would go ; and reconvenes and claims judgment against the plaintiffs, absolutely, as heirs, for the $1,000 acknowledged to be due her by the marriage settlement.

The case was tried by a jury and a judgment rendered against the plaintiffs, on their demand to be recognized as heirs, and to annul the will, &c., and in favor of the defendant for the property sequestered, and also in her favor and against the plaintiffs jointly, for the sum of one thousand dollars. This judgment, we may observe in passing, is erroneous on its face.

If the plaintiffs are bound to the defendant as heirs, their right to inherit the estate of their ancestor cannot be refused them.

The will was admitted to probate as an olographic will. It was not entirely written by the testator, and is null. Indeed the counsel for the appellee says, his client claims nothing under it. The judgment was also erroneous in maintaining the will.

The marriage contract is contested by plaintiffs, and they allege it to be fraudulent. It is a singular instrument.

The first clause states, that the intended husband brings into the marriage, no moneys, property or estate whatever, but acknowledges himself to owe his intended wife “ one thousand dollars cash received from her at various times.”

The second declares that the intended wife brings in, “ as her marriage portion or dower,” the $1,000 due by her intended husband.

The third stipulates, that said sum “ shall constitute and become the paraphernal and dotal property and funds" of said intended wife, and that there shall be no community of acquets and gains.

This marriage contract must be examined in relation to the state of facts existing when it was executed. Neither the subsequent meritorious conduct of the •wife, and her capacity for business, nor the infirmities of her husband subsequent to that period, have any legal bearing upon the issue in this case. After her marriage, she had no "claim upon her husband for services rendered him during its existence.

The intended marriage being a second marriage, children of the first surviving, the testator was incapable of giving to the defendant more than one-fifth of his estate in usufruct. C. 0. 1745 ; 13 An. 143, 245.

■ The disparity between the parties might, itself, induce the suspicion of a desire to evade this provision of the law. But the proof, we think, shows satisfactorily that the testator, if indebted to the defendant at all, was indebted only for a small sum for wages as a servant.

The proof shows, that the deceased, who had been in the customhouse in this city, was appointed keeper of the Pass Manchac Light-House in 1850, and that he kept the light-house from 1850 to 1858, and that he was allowed a salary of $600 for himself, and $300 for an assistant. It is shown that he was a steady man, and could have saved money on this salary ; that when he went there in 1850, (his first wife being then alive,) to take charge of the light-house, he brought with him a negro woman and “ a lot of very good household furniture.” The marriage with defendant took place the 12th of May, 1851. In the interval, then, the testator must have lost his first wife.

The proof shows that the defendant was, previous to her marriage, a servant at a boarding house in this city, and that her wages were worth twelve or fifteen dollars per month. She went from the city as a servant, into the employment of the testator at the light-house. When she went over, she took nothing except her wearing apparel. She left the testator some time after, and returned to the city. He wrote for her to come back. She stated to a witness that the testator owed her fifty dollars, and she would go back and work a while on that account. She is not known to have had any other resources but her labor.

There is, however, some discrepancy in the testimony, as to the time when the defendant went into the employment of the deceased; one of the witnesses speaks of it in 1852 or 1853. It must have been between 1850 and May 12, 1851, as the same witness says, it was before defendant’s marriage.

Under this state of facts, the presumption is created, that the sum mentioned in the marriage contract was a fiction. If there were anything real in it, and the defendant had loaned the testator money prior to her marriage, it ought to have been shown, in order to rebut the plaintiffs’ proof. The judgment against the heirs for the sum of money specified in the marriage contract, must also be reversed.

There is reason also to suspect, that the negro man purchased in this city in July, 1856, in the name of the defendant, as her separate property, might have been paid for out of the annual salary of the testator. He was in the receipt of $900 per annum, and the wife was in the receipt of nothing. Tet, at the end of eight years, his estate consists of a steer, a gun, and some household furniture, all valued at $215, whilst the property acquired and claimed by the wife, amounts to $2,400, besides her judgment against the heirs!

But as there is no community between the deceased and the defendant, we shall not disturb the finding of the jury as to the title to the slave Simon, for the law does not create the presumption in such case, that the property is that of the husband. If the wife has used the funds of the plaintiffs' ancestor in making the purchase, it can be shown in adjusting any claim which we may reserve her in this decree. Should she claim under the Act of 17th of March, 1852, the plaintiffs would, perhaps, have but little interest in making the investigation, for the value of the slave in her hands, would lessen her claim by so much upon the estate.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the plaintiffs be recognized as the legal forced heirs of the said Benjamin Williams, deceased. It is further ordered, adjudged and decreed, that the said pretended olographic will, bearing date October 11th, 1856, be declared null and void, and that the said Benjamin Williams died intestate. And it is further ordered, adjudged and decreed, that a supplemental inventory be made of the real estate in the possession of the deceased at the time of his death, and that all of the property sequestered, (except said slave Simon, and such other property as had been already inventoried,) also any other property belonging to the deceased at the time of his death, which may be found. And it is further ordered, adjudged and decreed by the court, that the reconventional demand of the defendant be rejected, and judgment rendered thereon in favor of the plaintiffs, the right being* reserved to the defendant to claim of the succession of the said Benjamin Williams, deceased, any sum which she may be able to establish by proof, for money lent or wages due her prior to her said marriage ; also, without prejudice to any right she may have under said Act of the Legislature of 17th of March, 1852, and, also, without prejudice to the plaintiffs’ right to claim for any funds of the said Benjamin Williams, deceased, used by the defendant in the purchase of the said slave Simon. And it is further ordered, that the defendant pay the costs of both courts.

Land, J„ absent.


text:
    C. Cummings and Husband v. J. H. Erwin.
    Whore the tutor or a minor dies out of the State in hopeless insolvency, leaving no property whatever upon which to administer, the minor cannot be required, under the circumstances, to sue for a rendition of accounts, as a condition precedent to the institution of tho hypothecary action.
    Where property lias boon sold to satisfy a mortgage claim, as a gonoral rule, tho payment to tho Sheriff will not exonerate the purchaser, for tho latter is required to retain the balance in his hands in order to satisfy special mortgages of subsequent dato. The Sheriff has no right to collect this surplus ¡ but at the same time, if tho funds are paid over to him, and ho pays the special mortgage, the purchaser is thereby exonerated.
    I PPEAL from the District Court of the Parish of Iberville, Beale, J.

      Samuel Matthews, for plaintiffs and appellants.

      Barrow & Pope, for defendant.
   Voorhies, J.

The plaintiff sets up a right of mortgage on property formerly belonging to the community between her deceased father and mother, but now held by the defendant, by virtue of a purchase at Sheriff’s' sale. After the death of her father, the property in question was adjudicated to her mother, under the provisions of Article 338 of the Civil Code. Subsequently, this property was sold for the purpose of satisfying the mortgage and vendor’s privilege, which encumbrances were superior in point of dignity and date to the mortgage reserved in favor of the plaintiff. The defendant paid over the purchase price to ■the Sheriff, who, in his return, states that he paid the same over to the parties entitled thereto, after deducting the costs.”

Two questions are presented for adjudication. The first, whether the plaintiff can institute this hypothecary action, without having previously obtained a judgment against her tutrix'; and the second, .whether the payment to the Sheriff has exonerated the defendant.

I. The plaintiff’s tutrix died out of the State of Louisiana, in hopeless insolvency, leaving no property whatever upon which to administer. The plaintiff cannot be required, under the circumstances, to sue for a rendition of account, as a condition precedent. Lex non cogit ad impossibilia.

II. The Code of Practice provides, Art. 707 : That “ the Sheriff shall require of the purchaser, the payment of the price, to the amount of the privilege or special mortgage of the seizing creditor, and the purchaser shall apply the surplus of the price, if there be any, to paying the special mortgages existing on the property, subsequent to that of the suing creditor.”

As a general rule, the payment to the Sheriff will not exonerate tho purchaser ; for the latter is to retain the balance in his hands, in order to satisfy special mortgages of subsequent date. The Sheriff has no right to collect this surplus ; but, at the same time, if the funds are paid over to him, and he pays the special mortgagee, it is evident that the purchaser is thereby exonerated.

It must be remarked, in the present cause, that the tutrix was, in her individual and representative capacity, the seized debtor; and that it was to her, that the surplus funds, if any, were to be remitted by the Sheriff.

From the Sheriff’s return, we might infer, that the balance was paid over to the plaintiff’s tutrix. We will, however, not conclude the party, but remand the case to enable her to disprove this fact.

It is, therefore, ordered and decreed that the judgment of the District Court be avoided and reversed, and that this cause be remanded for further proceedings according to law, the appellee paying the costs of appeal.

Duffel, J., absent.


text:
    Abraham Parker v. Louis F. Jonté.
    In an action for lüe settlement of partnership accounts, where it appears that the parties have kept books of their daily affairs, they should be shown to bo clearly erroneous, before a party should bo permitted to recover beyond the same, for a matter which ought to have been entered regularly every day.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      M. M. Reynolds, for plaintiff.

      Durant & I-Iornor, for defendant and ap-
    pellant.
   Merrick, C. J.

This suit is brought to recover of the defendant $15,000,. his share of the amount of profits alleged to be in defendant’s hands, from a partnership in the butcher’s business, carried on in four stalls in the old Meat Market of the Second District, from June, 1854, to 29th of May, 1857 ; and also to recover $3,000 for the profits on the lease oí the whole market for the year 1857.

The books of the partnership were burnt, and the only evidence remaining of the state of accounts between the partners, are two balance sheets taken from the books, one by the witness, Smith, in February, 1857, and the other by one Frank, after the dissolution of the partnership.

Auditors were appointed, and having taken the statement made by Frank, as the basis of their report, they found that plaintiff had received $8,979 94, and the defendant, $5,559 14. The remaining assets being only $7,218 86, and the liabilities being $9,232 11, left $2,717 02 in plaintiff’s hands — to creditors $2013 25, and to defendant $703 77. This report was set aside, and the case was, by consent, referred to the court for trial.

On the trial before the court, the balance sheet of February 1, 1857, alone, was offered in evidence.

Judgment was rendered in favor of plaintiff for $3,775. So far as it respects the lease of the market for 1857, it is useless to inquire whether there was or was not a partnership, for the proof is far from showing a profit. Notes given for the monthly rent were protested, and the parties were obliged to assign the lease to their sureties.

One witness swears that the defendant stated, that it was impossible that he could owe plaintiff more than $4,000. We think, under the circumstances, that no importance can be attached to this testimony, for the other witnesses present at the time, state that the defendant refused to allow plaintiff’s demand, and the parties and their friends separated without effecting anything.

C. O. Smith, plaintiff’s witness, who had been a clerk for the parties, swears, that he told Jonté, “ that if the outdoor expenses would be allowed, that Mr. Parker would have a claim of some $4,000 against Jonté. Mr. Jonté absolutely refused to admit this item, and they came to no settlement.”

. The other witnesses who were present for the purpose of effecting a settlement, heard no such admission from the defendant. Had it been made, it would have doubtlessly been accepted, as plaintiff at that time claimed only $4,000 or $5,000 of defendant, and in 1855, he sold out his entire interest to defendant for $500, and defendant received Mm back as a partner some months after.

The main ground of controversy appears to be a claim for $5,400, being $1,800 per annum, or $5 per day, alleged to have been spent by Parker in treating and soliciting business.

A witness, who is in plaintiff’s employment, is of the opinion, that the expense would be from $2 to $4 per day.

The witness, Smith, says : “ Very often when Mr. Parker would collect bills, he would make a deduction of so much as had been expended for the business of the concern, and this was charged in the books of the partnership, with the knowledge of Mr. Jonté, to the expense account. Those amounts, whenever they came in, were never charged to Mr. Parker’s private account, but to the expense account of the firm, but sometimes he made no returns at all, and did not mention what he had spent. He was very careless to ido it.”

The question, then, arises, was it not plaintiff’s duty to render a fair account at the time, of what he spent for the benefit of the firm ? If he was careless in mentioning the amount of his expenses, may he not. also have been equally careless in accounting for sums collected ? "Why (if plaintiff had any claim) was this thing permitted to remain three years without any credit for the same on the books, except when he chose to retain money to pay expenses ? If the firm was indebted to him at the rate of $1,800 per annum, why did he sell out at the end of the year for $500 ? And how much (at those times the witness calls very often”) did he deduct from the collections on this account ?

It is evident that the claim is involved in obscurity and uncertainty. As the parties kept books of their daily affairs, they should be shown to be clearly erroneous, before a party should be permitted to recover beyond the same, for a matter which ought to have been entered regularly every day.

This item being disposed of, the judgment has no sufficient basis.

The balance sheet of February, 1857, shows, that plaintiff had received $4,600, and the defendant only $1,624 47. The open accounts amounted to $11,485 90 and bills receivable, &c. $1,047 82. The liabilities were $8,925 41. If the open accounts had all been available, on a division, the plaintiff would have been entitled to claim in the partition, only $316 39, and the defendant would have been entitled to $3,291 92.

The proof shows that the partnership continued for nearly four months after this period. The witness state, that not over $6.000 of the accounts could be collected, and from seven to nine thousand dollars of them, with other property were transferred to liquidate a single debt of $5,600, which figures on the February balance sheet as only $1,192 25.

There is nothing to show, that the defendant has collected the assets of the firm.

It follows that the plaintiff has shown no right to a judgment for any sum of of money against the defendant, neither does it appear (the debts being- in part unpaid) that there will be anything left for a partition.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment 5f the lower court be avoided and reversed ; and that there be judgment in favor of defendant as in case of nonsuit; and that he recover his costs in both courts.

Duffel, J., absent.


author: Buchanan, J.'

text:
    Celestine Porée, f. w. c., v. Gustave Valische.
    An appeal will not lie to tlio Supreme Court in an injunction suit arresting tlio execution or a jnrtgmont for less than three hundred dollars, although tlio property seized is wortli more than throe hundred dollars, and an unreal demand for a larger amount of damages is claimod in the petition.
    AFFEAL from the Sixth District Court of New Orleans, Ilowell, J.

      H. R. Gradmont, for plaintiff and appellant.

      G. A. Breaux, for defendant.
   Buchanan, J.'

On motion to dismiss appeal :

The ground on which this motion is based, is want of jurisdiction ; the amount in dispute being less than three hundred dollars.

Facts :

Defendant sued and obtained judgment against plaintiff for $137 91, with $4 50 costs of protest, and interest from 3d September, 1859, until paid.

The present suit is an action of nullity of said judgment, accompanied with an injunction against the execution of the judgment.

Plaintiff claims five hundred dollars damages ; and it was proved in the court below, upon a rule taken by plaintiff for an appeal, that she had boon served with notice of seizure of property in execution, worth more than $300. It was also proved, that plaintiff, herself, had pointed out this property to the Sheriff for seizure.

Under the authorities, this large claim for damages must bo treated as unreal, and only intended to afford a pretext for a recourse to this court, in a cause where tlio true matter in dispute was below our constitutional jurisdiction. Marsh v. Briant, 9 Rob. 7; New Orleans v. Cuesta, 10 An. 724; Holland v. Duchamp, 12 An. 784.

Appeal dismissed, at costs of appellant.

Land, J., absent.


text:
    Nouvet, Syndic, v. Bollinger et al.
    It is nota cumulation of inconsistent demands for a party seeking to recovor his slave, to ask his value in the event of not being able to recover the slave himself.
    Where the ancestor of a party has parted with a slave, for the express purpose of defeating the rights of creditors, an action will lie to recovor the value of the slave thus sold or removed.
    As a general rule, the powers of tile syndics of creditors are only those of administration ; but under the authorization of the courts, he may make sales of property, aud by their aid may recover damages for property destroyed or abstracted from the mass, when otherwise there would be a failure of justice.
    Tile adjudication of a slave woman at Slieriff’s salo does not pass the title to her child under ten years of age who has been neither seized, advertised nor sold.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Cottons, for plaintiff.

      Johnson & Denis, for defendant and appellant.
   Merrick, C. J.

This suit has been brought to recover the slave Ellen SliocJcleij, or her value, $700, and a negro girl named Susan, the child of a slave named Ellen Humphrey.

The plaintiff claims that the insolvent, Balletin, made a donation of the slave Ellen ShocJcley to Mrs. Bollinger (who had full knowledge of his insolvency), in order to placo her beyond the pursuit of creditors, and avers the nullity of the act of donation, whether deemed fraudulent or not. ■ The plaintiff also avers that said slave has disappeared from the possession of the insolvent and Mr. and Mrs. Bollinger, and petitioner verily believes was sold by Mrs. Bollinger for $700 to some distant purchaser.

Defendants, heirs of Mrs. Bollinger, admit they arc not in possession of the slave Ellen ShocJcley, and deny all other allegations as to the same. Bollinger claims title to the girl Susan. He alleges, that he bought the mother of Susan at Sheriff’s sale when the child Susan was but throe years of age, and avers that the child became his in virtue of that sale.

The case presents the following questions of law, viz :

1.Can the plaintiff claim in the same petition the slave, and in the event of non-delivery, her value? And if so, can a suit bo maintained against a party not in possession ?

2.Can the syndic sue for the value of the slave, and thus convert property into money;

3.Did the adjudication of the mother at the Sheriff’s sale have the effect of transferring the negro child under ton years of age to the purchaser of the mother?

I. Can the purchaser compel the adjudication of the child, now over the age of ton years, to himself?

I. The suit is well brought in the alternative, and there is no cumulation of inconsistent demands. The plaintiff only asks the value of the slave in the event lie cannot recover the slave herself.

If the defendant’s ancestor parted with the slave for th* express purpose of defeating the rights of the creditors, there can be no doubt that an action will lie to recover the value of the slave so sold or removed. The action is well known in the civil law as the action de alienatlone judicii mutandi causa facia. And so it is said concerning such sale, itaque si alterius provlncice hominem, aut poientiorem nobis, appossuerit adversarium, tenebitur. Dig. 4, 7, 1. So Maekelday says: Lorsque l’aliénation, qui n’est jamais rescindée elle-méme, consiste on ce que le possesseur d’une chose l’aliéne dans la craintc d’etre actionné rclativement á cette chose, celui a qui cette aliénation porte prejudice a une action in factum en dommages-intéréts eontre celui qui aliene.” Partie Géuérale, see. 256, edition 1846. See also 7th Savigny, see. 316, No. 1, to the same effect.

The action by our law is included under the general provisions of Art. 2294 of the Civil Code.

II. It is true that, in general, the powers of the syndic of creditors are only those of administration ; but under the authorization of the courts, he may make sales of property. And we can see no reason why he should not also be permitted, by the aid of courts of justice, to recover damages for property destroyed or abstracted from the mass, when otherwise there would be a failure of justice. He is responsible only to the creditors for his management of the property entrusted to him, and the defendant who has alienated property which did not belong to him, has no interest in inquiring into such administration. It is sufficient for him to know that he is protected from a second recovery by the judgment.

Ill and IV. The child of Ellen Humphrey having neither been seized, advertised or sold with her mother, did not' pass by the Sheriff’s sale. Perhaps this might have been a ground for annulling the sale of the mother, but it certainly gave the purchaser no title to the child; and as the child is now over ten years of age, it is idle to inquire whether ho could or could not have compelled the insolvent before his surrender, to have transferred the child to him also.

The judgment of the lower court orders the defendants to deliver the slave Ellen Shockley to the plaintiff within ten days after the notification of the judgment, and in default thereof to pay $700 and interest. Although the proof is not very satisfactory on the question of value, the defendants have no reason to complain, for they have not disclosed where the slave is. If she be in their power, they can produce her. Certain it is they ought not to derive a profit from their wrongful acts. See Acts of the Legislature of 1856, p. 180.

Judgment affirmed.

Duffel, J., absent.