text:
    Lewis Shapp & Co. v. William Porterfield.
    The record of a suit brought by attachment against a supposed owner, in which the thing seized was released upon bond by such supposed owner, is not admissible as evidence of real ownership in an action between other parties, where the question relates to title, — but a judgment changing the ownership of the property would be admissible, in the same manner as a private writing, although the plaintiff in the suit pending had no connection with the former action.
    from the Sixth District Court of New Orleans, Howell, J.

      J. M. Chilton, for plaintiff. B. Egan, for defendant and appellant.
   Merrick, C. J.

This suit was commenced by attachment. The steamboat John Strader was seized as Poríerfield’s property. H. Devine intervened and claimed to be owner of the boat. His pretensions being sustained, plaintiff appealed.

Plaintiffs complain of the ruling of the District Court, and they have taken two bills of exception.

It seems, in a case instituted by another party against Porterfield and owners of the Strader by attachment, Porterfield released the boat upon bond. This suit was res inter alios acta, as to II. Devine, and was properly excluded.

The steamboat was under seizure at Vicksburg, Miss., in the suit of Shaw & Zunts v. A. C. Brown et al. It was there ordered to be sold, and II. Devine became the purchaser, Poríerfield and two others signing his bond as sureties for the price.

The court did not err in receiving the record to show title in Devine. It is true, that the plaintiff was no party to the suit, but then he had no interest in the matters in controversy in that suit, and if he was not bound by the admissions and judgment, still the change of the ownership of the steamboat Strader from Brown to Devine operated through the agency of that suit, was a result and fact which was admissible in evidence in the same manner as would have been the transfer by private writing from Brown to the same party.

As plaintiff does not claim title to the steamboat through Brown but through Porterfield, the want of registry of Devine's title cannot avail plaintiff. If the boat were to be considered the property of Brown, it would be equally fatal to plaintiff’s case.

The fact that Porterfield was captain of the boat, and on some occasions called the boat his, cannot defeat II. Devine’s title.

Judgment affirmed.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    R. W. Rayne v. David Taylor.
    In an action of damages for libel and slander, tlie truth of the words written or spoken, may be given in evidence as a defence to the action under such a plea.
    from the Second District Court of New Orleans, Morgan, J.

      Singleton & Bonford, for plaintiff. Durant c6 Hornor and A. N. Ogden <& Stansbury, for defendant and appellant.
   Buchanan, J.

This is a suit for damages for libel and slander, laid at thirty thousand dollars. The libel charged, is the answer filed by defendant, on the 15th November, 1855, in a suit instituted by plaintiff against him ; in which answer the defendant alleged that he had been defrauded by plaintiff. The slander charged, is the reiteration of the defamatory statements of defendant’s answer in that suit, alleged to have been spoken by defendant’s counsel and by defendant himself, in the presence and hearing of divers persons, and on numerous occasions.

On the trial of the cause, and after argument concluded, the Judge was requested by defendant’s counsel to charge the jury — that if the jury find, from the evidence, that the facts stated by the defendant in his answer were substantially true, there can be no verdict of damages against him. This charge was refused by the court.

We think the court erred. The Act of 15th March, 1855, relative to slander and libel, (session Acts, page 394,) provides, “ that whenever any civil suit for slander, defamation or libel, shall be instituted in any court of this State, it shall be lawful for the defendant to plead in justification the truth of the slanderous defamatory or libelous words or matter, for the uttering or publishing of which he may be sued, and in the trial of the issue in such suit, to maintain and prove his said plea by all legal evidence.”

In the present action, defendant pleaded that at the time he ordered the said answer to be filed, he did, and does now believe, that the said answer contained the truth, and that all its statements ivere true; and that he had, and still has reasonable and sufficient grounds for believing all of the said allegations to be true, &c.”

We understand this statute as constituting the truth of the words spoken or written, a defence to the civil action for slander or libel, and conclude that the jury should have been charged, as requested.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed; that the verdict of the jury be set aside and annulled; that this cause be remanded for a new trial, according to law, and that plaintiff and appellee pay costs of appeal.

Vookhies, J., absent.


author: Merrick, C. J.

text:
    B. Bacas v. Peter Klein.
    As attorneys-at-law are sworn officers of court, and as their services, though essential to the safe prosecution of a suit, cannot he obtained without compensation, there is no valid reason why the debtor and creditor may not make a law for themselves, by which the debtor shall charge himself with the costs of attorney’s fees, as he is by law charged with the taxed costs of the suit to recover tho debt.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    Xi. G. Legardeur, for plaintiff. F. Haynes, for defendant and appellant.
   Merrick, C. J.

This suit is brought to collect a note for $1,500, with eight per cent, interest, secured by mortgage. The mortgage contains a stipulation that in the event it shall be necessary to institute a suit to recover the amount of the note, the defendant will pay an additional sum, not to exceed five per cent, attorney’s fees. The defendant appeals. .'

He contends that the judgment is erroneous in condemning him to pay seventy-five dollars attorney’s fees, as that is equivalent to giving usurious interest.

He relies upon Article 1929 of the Civil Code, and 6 Rob. 216 and 3 An. 618, as grounds for the reversal of the judgment. The Article reads as follows :

Art. 1929. “ The damages due for delay in the performance of an obligation to pay money, are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered, lie can recover no more.”

The Article cited, fixes the basis of indemnity for the delay in the payment of the creditor, and however detrimental the want of the use of the money may be to the creditor or his business, he can recover no more than eight per cent, interest. He is not to be permitted to prove that such delay has occasioned him special damage. But the Article in question does not pretend to regulate anything more than the rate of damages for the delay in paying money. It leaves the question of costs for the recovery of it, untouched. Hence, in an ordinary case, the courts, notwithstanding Article 1929, condemn the debtor to pay not only the interest, but the costs, including costs of copies.

Now, as attorneys-at-law are sworn officers of court, and as their services, though essential to the safe prosecution of a suit, cannot be obtained without compensation, we cannot see any valid reason why the debtor and creditor may not make a law for themselves, by which the debtor shall charge himself with the costs of the attorney’s fees, as he is by law charged with the taxed costs.

The creditor then does not receive any compensation beyond the interest for the delay, but is reimbursed for the costs occasioned by the suit, whether the same be speedily determined, or be disposed of after much litigation. The covenant to pay the attorney’s fees is then only an indemnity for the costs expended in recovering and securing the capital itself.

The cases contained in 6 Rob. and 5 An. add nothing to the force of the Article cited. We, therefore, see no reason to overrule the cases of Race & Foster v. Bruen, 11 An. 34 ; and we announce this as the settled doctrine of the court.

The plaintiff recovers seventy-five dollars attorney’s fees, and we do not feel disposed to award damages as in case of a frivolous appeal, particularly as the defendant presents new authorities which he may have supposed would occasion a modification of the rule we have heretofore adopted.

Judgment affirmed.


author: Land, 3.

text:
    Peet, Simms & Co. v. G. S. Whitmore—McKleroy & Bradford, Garnishees.
    Where tho judgment does not liquidate the sum due by the party against whom it is rendered, it wants an essential requisite of a judgment final.
    PPEAL from the Sixth District Court of New Orleans, Howell, 3.

      T. J. (& A. J. Semmes, for plaintiffs. Clark & Bayne, for defendants and appellants.
   Land, 3.

This suit was commenced by attachment for the recovery of $3,471 54. McKleroy & Bradford, were made parties garnishees, to whom interrogatories were propounded, in answer to which they admit they have in their hands $1,661 22 in cash, and forty-three bales of cotton, the property of the defendant.

The plaintiffs obtained judgment against the defendant, and afterwards judgment against the garnishees, in these words :

“ It is ordered, adjudged and decreed, .that McKleroy & Bradford, garnishees herein, be condemned to pay to these plaintiffs, Peet, Simms & Co., $1,661 22, together with such further amount as may be due to the defendant, G. S. Whit-more, from the net proceeds of the said forty-three bales of cotton, when ascertained, and which shall comprehend and include all of said net proceeds, or such part thereof as together with the said sum of $1,661 22, shall pay in full the amount of said judgment, interest and costs, rendered in this case on the 3d of May, 1858.”

The record discloses the facts, that the execution which issued on this judgment against the garnishees, has been enjoined, and that a contest is going on between C. Yale, Jr. & Co., Smith <& Brother, and the plaintiffs, Peet, Simms & Co., for a priority of privilege upon the money, and the proceeds of the cotton which were in the hands of the garnishees.

These proceedings, however, are not before us, and the only question for our decision is, whether the judgment against the garnishees can be maintained.

The judgment does not liquidate the amount due from the garnishees, for the forty-three hales of cotton, and is, therefore, wanting in finality, which is an essential requisite of all judgments final. O. P. 539.

The judgment should have fixed contradictorially with McKleroy & Bradford, the amount due from them on account of the proceeds of the cotton, and for this error it must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment against the garnishees, McKleroy <& Bradford, be reversed, and that the cause be remanded to the lower court for further proceedings against them, according to law. It is further ordered and decreed, that the plaintiffs pay the costs of this appeal.


author: Cole, J.

text:
    Thomas P. Smith v. R. W. Adams & Co. et al.
    The 9th section of the Act of 1855, relative to District Courts for the parish and city of New Orleans} declaring that all successions shall he opened and administered in the Second District Court, the other District Courts of Now Orleans have no jurisdiction over suits instituted against a succession.
    The acceptor of a bill has no right to inquire into the consideration between the drawer and payee and betweon'the latter and a subsequent indorsee.
    Not even accommodation acceptors, and that to the knowledge of payee, have a right to plead in compensation or reconvention a debt due by payee to the drawer of a draft.
    PPBAL from the Fourth District Court of New Orleans, Price, J.
    XX Whitaker <& Fellowsfor plaintiff. Singleton cfe Clack, for defendants and appellants.
   Cole, J.

Plaintiff sues R. W. Adams <fi Co., and W. C. Templeton, the administrator of the succession of /. J. Kercheval, on a draft drawn by Kercheval in his lifetime on R. W. Adams & Co., and accepted by them, payable to the order of petitioner.

The administrator of Kercheval excepted to the. jurisdiction of the Fourth District Court, where the suit was brought, on the ground that the Second District Court of New Orleans, in which the succession had been opened, alone had jurisdiction.

The exception was properly sustained.

Art. 164 of the Code of Practice, provides, that in matters relative to successions, the defendants, though domiciliated elsewhere, must be cited to appear before the court of the place where the succession has been opened, in all suits brought by the creditors of the deceased, previous to the partition.

The 9th section of the Act of 1855, relative to District Courts for the parish and city of New Orleans, declares, that all successions shall be opened and administered iu the Second District Court.

The 11th section of this Act merely gives concurrent jurisdiction to the District Courts of New Orleans of civil cases, which are not referred to the jurisdiction of a special court, except, however, the First District Court, which is confined exclusively to criminal cases. Sess. Acts 1855, p. 315.

As, therefore, the administration of estates is referred specially to the Second District Court, the other District Courts of New Orleans have no jurisdiction over suits instituted against them.

Upon the merits, there was judgment for plaintiff against R. W. Adams dt Co.. and they have appealed.

The only question is, ■whether' appellants, as accommodation acceptors to the knowledge of plaintiff, can plead in compensation a debt due by plaintiff to Ker-cheval, the drawer of the draft.

It is well settled that an acceptor of a bill has no right to inquire into the consideration between the drawer and payee, or between the latter and a subsequent indorsee. Davidson v. Keyes, 2 Rob. p. 256. Debuys v. Longer & Johnson, 4 M. N. S. p. 288.

The total or partial want or failure of consideration, or the illegality of consideration, as a general rule, may be insisted upon as a defence or a bar between any of the immediate or original parties to the contract, as by the drawer against the payee, by the payee against his indorsee, and by the acceptor against the drawer. Story on Bills, $187.

Defendant insists that this defence fails only against bona fide holders, or those claiming through them, and that original parties can set up such defence as well as others, where the facts are fully disclosed. He refers to Story on Bills, $$188, 191.

, It is unnecessary to express any opinion upon this point on account of the view we have taken of the defence.

It appears that plaintiff sold his one-fourth interest in the steamboat Selma to Kercheval, for which he drew in payment the draft in contestation on R. W. Adams & Co., the defendants. That previous to the sale of the steamboat, some bales of cotton had been shipped upon her, which had not been called for on her arrival at her port of destination, and they were sold by the boat, and their proceeds were placed upon the suspense account of the books of the boat.

When the owner of the cotton called for its proceeds and was paid, the suspense account was credited with it.

It also is shown that plaintiff obligated himself in writing to pay his proportion of the cotton, provided Copt. Perry paid his proportion of the same.

The proceeds of the cotton were used for the expenses of the boat, until the owner demanded them.

The boat was sold before the proprietor of the cotton called for its proceeds, and consequently before it was known that the owner would ever be discovered. It is contended that plaintiff owes to Kercheval, the maker of the draft, and purchaser of plaintiff’s fourth interest, the one-fourth of the proceeds of the cotton, used to defray the expenses of the boat whilst plaintiff was part owner, and which the boat was obliged to refund to the owner of the cotton, and that defendants, as accommodation acceptors, are entitled to have deducted from the draft one-fourth of the proceeds of the cotton, on the ground that plaintiff knew defendants to be accommodation acceptors at the time they accepted the same.

The evidence in the record does not establish that defendants were accommodation acceptors, or that plaintiff knew such to be the fact.

The only testimony on this point is that of Perry, who testifies, he “ thinks Smith told witness that Kercheval had drawn on Adams for a part of the price, does not know for what amount.”

Even supposing, however, it should be admitted that defendants were accommodation acceptors, and that plaintiff knew such to be the fact, still defendants cannot plead in compensation and reconvention the one-fourth of the proceeds of the cotton, because this can only be considered as a debt due by plaintiff, if at all, to Kercheval, the purchaser of his fourth interest in the boat. It is a claim personal to Kercheval, which his administrator may demand. It may be, that in a contest between defendants and the succession of Kercheval, that the latter might show that they had secured defendants subsequently to their acceptance. It was only after the sale of the interest of plaintiff in the boat, that it became known that the proceeds of the cotton would have to be refunded by the boat, and it was only then that plaintiff became in reality indebted, if he is so, for one-fourth thereof, and this was after the acceptance.

It is clear that the acceptors cannot plead in compensation this debt of plaintiff to the drawer of the draft. It may be in a contest between plaintiff and the succession of Kercheval, that the former could offset the debt with claims against the estate, or show he was released.

Besides, there was no failure of consideration between plaintiff and Kercheval; the latter received the fourth interest of the boat which he had bought of the former, and for which the draft was given. The subsequent liability of Kercheval for a debt of the boat originating indeed before the sale may make plaintiff liable to him for the same, but does not prove that the fourth interest was not worth the amount given for it at the time of the purchase. As Kercheval was willing to give the draft and incur the risk of the owner of the cotton calling for the proceeds, and depend on the good faith of plaintiff to pay his proportion of the debt, the acceptor caunot compensate his acceptance with a debt of Kercheval, which does not belong to him. The fourth interest was a good consideration for the draft, and the good faith and ability to pay, if plaintiff were deemed a sufficient guaranty for the eventual liability of the boat, for his share of the debt for the cotton.

Judgment affirmed, with costs of appeal.


text:
    John Gauche v. C. A. Storer, Captain of Ship Martha J. Ward, and J. P. Whitney.
    The clause, “ The freight payable after receipt of the whole in good order,” contained in a bill of lading, has reference to the levee as the place of delivery and receipt, while the words “in good order” relate to the external appearance of the things received.
    from the Sixth District Court of New Orleans, Howell, J.

      G. £ C. E. Schmidt, for plaintiff and appellant. Benjamin, Bradford £ Finney, and T. J. Durant, for defendants.
   Cole, J.

The petitioner represents, that he is a merchant, and J. P. Whitney £ Co. are ship brokers and commission merchants, to whom a large number of domestic and foreign vessels are consigned, of which they take charge for the purpose of delivering the cargo, collecting the freight due thereon, &c.

That about October, 1855, the ship Martha J. Ward arrived at the port of New Orleans, from Liverpool, in England, laden with merchandise and having on board thirty-eight casks and seven crates of earthenware belonging to petitioner, shipped in good order at the port of Liverpool, and to be delivered in like good order, at the port of New Orleans, to petitioner ; the freight payable after receipt of the whole in good order.

That Storer, the captain of the ship, and Whitney £ Co., the agents thereof, combining for the purpose of injuring petitioner, refused to deliver the goods unless the freight for their transportation was previously paid to them on the levee.

That the said refusal, by impeding him in obtaining his merchandise, loss of sales resulting from the non-delivery, &c., have caused him damage to the amount of five hundred dollars.

Further, that the illegal and malicious conduct of defendants, in thus refusing to deliver the merchandise without payment of the freight thereof, has, by injuring his credit at home and abroad, &c., caused him damage to the amount of $4,500.

This cause was tried before a jury, who rendered a verdict in favor of the defendant,'and from the judgment of the court thereupon plaintiff has appealed,

Our opinion of this case renders it unnecessary to express any opinion upon the bills of exception. A careful perusal of the record satisfies us that plaintiff is not entitled to any damages.

The conduct of the defendants does not appear to have been actuated by any malice, but merely with a natural desire to be paid the reward of their labor upon the delivery of the merchandise, fearing that plaintiff might make objections to the payment of the freight, if he received the goods before settling therefor.

It is established that it is unusual to put in a bill of lading the clause “ The freight payable after receipt of the whole in good order.” In fact, none of the witnesses ever saw such a clause inserted in a bill of lading.

The whole case of plaintiff rests upon this clause. He contends that he was not bound to pay the freight until he should have received the goods at his store, and there to be satisfied that they were in good order, whilst the defendants insist that it was tthe duty of plaintiff to have opened the casks and crates upon the levee, and there to have examined them, in the event he was not satisfied with their external appearance as to their being in good order.

It is shown that it is not usual to deliver merchandise arriving from domestic or foreign ports, without the previous payment of freight, when it is consigned to those with whom the owners or agents of the ship have had antecedent difficulties in collecting their freight, or with whom they anticipate such impediments.

It is also established, tkát the agent of several ships had experienced difficulties with plaintiff in collecting his freight, and had been obliged to make several deductions, which he preferred losing rather than to institute legal proceedings for the same.

That the place of delivery of merchandise is the levee, and that in most cases the freight is exacted in from one to five days after the hauling away of the goods, according to the volition of the collector of the freight.

That in some cases, consignees examine crockery ware on the levee, when it is thought to be injured, unpacking the crates at the levee. This is insisted upon by the agents of ships, because the crockery ware is often more injured by being hauled through the streets of 3STew Orleans than by the voyage; that the crates can be judged by their external appearance, whether they have received injury upon the voyage, for if sea water has entered, it discolors the straw ; that the judgment of their arriving in good order is based upon their external appearance.

We are of opinion that the clause The freight payable after receipt of the whole in good order does not signify that the consignee is entitled to take the freight from the levee, the place of delivery, without the payment of the freight. It is shown that crockery ware, of which species of goods the merchandise of plaintiff consisted, is often injured by hauling from the levee to the store of the consignee, and also that it is very often broken in unpacking at the store. It would, therefore, be unjust to construe this clause to mean that the “ good order ” therein mentioned referred to the condition of the goods at the store and not at the levee.

The universal way of judging whether goods are in “ good order ” when they are received by steamboats, vessels, or other modes of carriage, is by their external appearance. If that appears to be good, the bill of lading is given, that they are received in good order.”

All the casks and crates of plaintiff are shown to have been in good order, so far as to external appearance.

The condition of the clause was, therefore, satisfied, and the defendants had the right to insist upon the payment of the freight before the goods were taken away.

If, upon unpacking them at the store, plaintiff had found them to have been injured upon the voyage, he would have had his action against the defendants, notwithstanding he had given his receipt for them as being in good order,” inasmuch as this related merely to their external appearance.

It is established, that plaintiff could have taken the whole of his casks and crates after they were put upon the levee, if he had wished, by paying the freight; that they were taken from the vessel in a reasonable time after her arrival, and were placed together, and separately from others, for the convenience of plaintiff; that plaintiff received and took away, paying the freight therefor, all his casks and crates except one, which he refused to haul away. He does not complain that any of the merchandise received was broken or injured, and the crate that remained appeared to be in as good order as those that he took away.

Upon the refusal of plaintiff to take the one crate that remained, it was sent by the defendants to a warehouse, to be stored.

If plaintiff had wished to examine the internal condition of the crates, he could have done so upon the levee. No reason appears why he declined taking the one crate, except that he did not wish to pay the freight until he had received- it at his store.

If plaintiff suffered any damage from not receiving the goods in time to supply his customers, it was his own fault, for he could have taken them sooner, if he had desired to pay the freight. Besides, the damages suffered by plaintiff in being prevented from selling the goods, is not clearly established. One of the witnesses supposes it was a certain sum, but he states no proper data upon -which his opinion is based. As to the injury to the reputation of plaintiff, it does not appear that it could be injured, as he alleges, at home and abroad, by making him pay his freight upon the delivery of the goods, as it is customary to make every one almost pay within a few days, or within twenty-four hours, as the collector thinks proper, after the goods are taken away.

Judgment affirmed, with costs.


text:
    E. Delespare, Wife of J. Vezin, Tutrix, &c., v. D. Warner et al.
    IVhere a petitory action has been brought to recover land sold under au execution, defendants should offer in. evidence tl\c record and judgment in tho suit under winch the execution issued.
    But where it is shown bjr the execution, and Sheriff’s return, and the notices served, that the property in controversy has been sold, and the defendant put in possession as owner, and that a part of the price has been applied to the credit of plaintiff, ho cannot bring a petitory action and ignore tho existence of the sale, and treat the proceedings as having no existence ; he must resort to an action of nullity to set aside tho sale, if it be irregular or illegal.
    from tho Second District Court of New Orleans, Morgan, J.

      V. F. Cotton, for plaintiff and appellant. L. U. Gaiennie and Hunt & De-negre, for defendants.
   Merrick, C. J.

This is a petitory action to recover a lot of ground in the Fourth District of New Orleans. The petition alleges that E. T. Parker (the Sheriff) and David Warner, threw the plaintiffs out of the premises, and took illegal possession of the same. Plaintiffs allege that the property belongs to the succession of J. M. Duberry, of which they are the representatives.

The defendants and warrantors claim that the property was regularly sold under an execution, issued on a judgment of O. Dauduc, against the plaintiff) to said Dauduc.

The defendants have offered in evidence the execution and notices served upon plaintiff, and Sheriff’s return showing the sale to Dauduc, but not the judgment.

Plaintiff contends, that there was a misdescription of the property sold, and also hat there is no evidence that there was any legal judgment rendered in the suit of Dauduc againse the plaintiff, on which the execution issued.

In the absence of the plan of C. A. Hedin, and parol testimony explanatory of the contiguous lots and streets, we are not able to say that the variance in the description contained in the notices served by the Sheriff on plaintiff, from the description contained in plaintiff’s petition and the inventory, is material. The maxim, Falsa demonstratio non nocet, cum de corpore constat, may perhaps apply. Greenleaf Ev., No. 301. •

It would have been more regular, if defendant had offered in evidence the record and judgment against the plaintiff. But, as it has been shown by the execution and Sheriff’s return, and the notices served upon the plaintiff, that the property in controversy has been sold and the defendant put in possession by the Sheriff as owner, and that some portion of the price has been applied to the credit of plaintiff) we are of the opinion that the plaintiff cannot bring a petitory action and ignore the existence of the sale, and treat the proceedings as having no existence. The District Judge did not, therefore, err in concluding that plaintiff must resort to an action of nullity, in order to set aside the sale, if it be irregular or illegal. D’Orgenoy v. Droz, 13 L. R. 395 ; Anderson v. Cede, 10 An. 269 ; Haydel v. Roussel, 1 An. 38 ; 6 Rob. 102.

¥e understand the judgment of the lower court to reserve to the plaintiff the right to attack the sale for any cause whatever.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, the plaintiff and appellant paying the costs of the appeal.


text:
    Joseph Moore v. Aug. W. Jourdan.
    Possession under an act of sale not recorded, is not sufficient notice to creditors and subsequent purchasers, to defeat the operation of the registry laws.
    A preemption right on a tract of land cannot be transferred until it be paid for, and a receipt obtained from the receiver.
    from the District Court of the Parish of Point Oo’upeé, Haralson, J.
    i John Yoist and U. B. & E. Phillips, for plaintiff. Provosty <& Jourdan, for defendant and appellant.
   Cole, J.

This suit was instituted by Joseph Moore, to recover from the defendant, A. W. Jourdan, a tract of land fronting on Bayou Lafouche, known as subdivision Mo. 1, of lot 4 of sec. 31, of township 2, range 8, and subdivision No. 1, of lot 4, of sec. 13, township 2, range 7 east.

This land was purchased by plaintiff by public act of sale from J. W. Mills, on the 19th of February, 185C, duly recorded on the 21st of the same month and year.

Mills acquired the land from the United States on the 1st of April, 1854.

Plaintiff also claims five dollars per acre for hire of the land since defendant has had it in his possession.

The defendant claims to be the owner of the land, from having bought it from Ira E. McGehee, of Arkansas, who purchased it from Mills, the plaintiff’s vendor, by private act, on the 2d of March, 1847, and alleges that Mills had then acquired a title to the same from the United States, and he specially denies that Mills purchased it in 1854. That if he obtained a receipt for it in 1854, the receipt was granted in error, and obtained fraudulently by Mills and plaintiff. That the second receipt was obtained for the purpose of conferring a title to the land to plaintiff. But, that should the second receipt be legal, it enures to the benefit of respondent.

Defendant also alleges that plaintiff knew of the sale of the land by Mills to defendant’s vendor, McGehee; that he assisted Mills to deceive the ^Register to obtain a receipt in order to secure the land to himself; that he acquired the land from Mills fraudulently, and with a full knowledge of the transfer of the same to McGehee, and that he paid no consideration for it. He also claims compensation for improvements in case of eviction in his amended answer, and reiterates the statement that Mills acquired no new title to the land by virtue of the receipt of 1854, but had already acquired the land from the government, on the 17th of December, 1844.

There was judgment for plaintiff, and defendant has appealed.

The sale from Mills to Moore is by authentic act, and was duly recorded on the 21st of February, 1856, two days after it was executed.

The title under which defendant claims, is a bond executed on the 2d of March, 1847, given by Mills to McGehee, for the sum of one thousand dollars, the condition of which is :

That whereas, the above bound James Mills has this day, by bargain and sale, relinquished all his rights and title to a certain tract of land lying on the Bayou Latanache, Slate and parish aforesaid, being the same on which the said James Mills and family now reside, and adjoining lands which the said I. E. Mc-Gehee recently purchased from Asa Brown, and for and in consideration of the said bargain and sale above named, the said I. E. McGehee has this day paid to the said James Mills, the receipt of which is hereby acknowledged, the sum of two hundred dollars in money, and the further sum of three hundred dollars in a draft on the mercantile house of Moon, Titus & Co., of Mew Orleans, payable at sight, which said draft, the said Mills binds himself to present for payment before the expiration of twenty days from the date hereof, and if payment of the three hundred dollars be made, then the said Mills binds himself by these presents to abandon the foregoing described lands within twenty days from the date hereof, and give to the said I. E. McGehee full, quiet, and peaceable possession of the aforesaid land, together with all the buildings thereon. Mow, if the said Mills shall strictly comply with the foregoing stipulations, then this obligation to be null and void, otherwise to remain in full force, virtue and effect.”

This document is certified to be a true copy from the original on file, and of record in the Recorder’s office. The certificate is dated i8th July, 1856, which is the day, we presume, that it was recorded, as we have no other evidence of its registry.

Moore's title was recorded on the 21st of February, 1856, about five months previous.

The Act of 1855, p. 335, provides, that no notarial act concerning immovable property, shall have any effect against third persons, until the same shall have been recorded in the office of the Parish Recorder, or Register of Conveyances of the parish where such immovable property is situated.

Even if Moore, at the time of his purchase, knew that the land had been sold to McGehee, still this would not benefit the defendant.

It cannot be admitted that possession under an act of sale not recorded, is sufficient notice to creditors and subsequent purchasers to defeat the operation of the registry laws. Poydras v. Laurans, 6 An. 772 ; Tulane v. Levison, 2 An. 789.

It does not, however, appear that Moore knew, or could have known, that Mills had sold the land to McGehee, because Mills only agreed upon certain conditions to give him possession of it.

But even if the bond had been recorded anterior to the sale to Moore, it would not appear to be valid as a sale, because by its terms the obligation was to be null if Mills complied with its conditions, and it appears that he did. It might be viewed as an agreement to sell, which would have authorized an action by McGehee to compel Moore to have passed a sale of the land to him.

In the sale from McGehee to defendant, only the right, title and interest of Mc-Gehee to this land is conveyed.

Plaintiff offered to prove that this bond was obtained by McGehee from Mills, by fraud and misrepresentation, and that it was given ■ by Mills in error, which was produced by the fraudulent misrepresentations of McGehee.

This testimony was ruled out by the District Judge, for the purposes for which it was offered, but was received for the purpose only of rebutting the charge of fraud set up by defendant.

The evidence also shows that Mills had entered the first lot; but his entry had been cancelled in 1846, on the ground that the front portion could not be entered separately from the back part, and the Register was instructed to notify Mr. Mills to come forward and enter the whole tract if he chose to do so, as his proof was regarded as sufficient, and if not, to return to him the money paid for the front lot. But it was not until the first of April, 1854, that he went to the land office and paid for, and received a new certificate for the whole tract.

Mills had, in 1847, at the time of the execution of the bond, only a preemption right on the whole tract, which could not be transferred until he paid for it, and obtained a receipt from the Receiver, which he did not do till 1854. Arbour v. Nettles, 12 An. 217 ; Penn v. Ott, 12 An. 233.

Judgment affirmed with costs.

Re-hearing refused.


author: Oole, J.

text:
    W. W. Gilkinson v. Steamboat Scotland and Owners.
    A witness is properly excluded on account of interest, where lie lias a liope of gain, although it he uncertain whether any advantage can arise to him, even if the decision he favorable.
    Where the owners of a steamboat acknowlege to have received into their custody property which they agreed to deliver to a particular house, and they failed to do this, hut delivered it to another house, the burden of proof rests on them, to show that they made this delivery for the account of the shippers.
    PPEAL from tlie Eifth District Court of New Orleans, Eggleston, J.

    Jjl Durant & Honor, for plaintiff and appellant. P. E. Bonford, for defendants.
   Oole, J.

On the eighth of September, 1851, plaintiff shipped on board the steamboat Scotland, whereof H. G. McComas was master, then lying' at New Orleans, and bound for St. Louis, sixty thousand feet of pine lumber, consigned unto Holmes & Dukey, or assigns, at St. Louis, at ten dollars per thousand feet for the freight thereof from the port of New Orleans to St. Louis.

There was judgment for defendants, and plaintiff has appealed.

It is the duty of defendants to explain what they did with the lumber, but they have not attempted to do this.

In their answer, they aver that the consignees of the lumber refused to receive the same, or to pay the freight due thereon; that defendants then placed it in the care of A. Giraldin & Co., a commercial firm of St. Louis, with directions to dispose of it to the best advantage for the owner.

They have, however, failed to show that they put the lumber under the care of Giraldin & Co. for the benefit of plaintiff.

On the contrary, they objected to testimony which might have elucidated their action with that house.

Our view of this case renders it unnecessary to decide upon the admissibility of the testimony of Moore.

The testimony of Sharpless was also objected to by defendants, on the ground of interest, and was properly excluded.

He was to have a part of the profits that should be made by the sale of the lumber in St. Louis.

It is contended that he is a good witness, because it is clear that there will be no profits, even if the highest market price at St. Louis should be received by the plaintiff; but the hopes of the witness, that perhaps there would be a profit, might have influenced his mind, for until the suit be finally decided, it cannot well be known if any profit will result from the speculation, or not.

Independantly, however, of the evidence of Sharpless, the defendants must be held responsible. They acknowlege to have received the property of plaintiff, and to have agreed to carry it and deliver it to a particular house. They ac-knowlege not to have done this, but to have given the lumber to another house. The onus probandi was on them to prove that they did deliver it to this other house for the account of plaintiff; but they have entirely failed to make any such proof.

It is established by a witness, that a lot of pine lumber was sold at St. Louis for $28 per thousand, on four months credit, whilst defendants were there with that of plaintiff, and that the purchaser said he would rather have given $30 for lumber like that of plaintiff.

The testimony indeed shows, that a panic existed at that time, and that the price of lumber had generally fallen ; but every thing is to be presumed against the unfaithful agent, and it is reasonable to suppose that defendants could have got the same price as that which was obtained for lumber then on the wharf, which was considered by the purchaser as inferior to that of the plaintiff.

Sixty thousand feet at $28 per thousand is $1680. From this must be deducted $600 for the freight, at $10 per thousand feet.

There is no evidence as to the commissions and charges, except that of Sharp-less. His testimony having been excluded, the right of action of defendant for the charges at St. Louis, such as commissions for selling the lumber, or wharfage, which the plaintiff would have been obliged to pay if the lumber had been sold for his account, must be reserved, if such right he has.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that plaintiff recover in solido from the defendants one thousand and eighty dollars, with five per cent, interest thereon, from judicial demand; that the privilege of plaintiff be recognised for the amount of this judgment, upon the property sequestered in this suit, that it be seized and sold to satisfy this judgment; that the right of action of defendants for charges upon the lumber, such as commissions for selling it, or wharfage, be reserved against plaintiff, to be urged in another suit, if any such he has; and that defendants pay the costs of both courts.


text:
    T. S. Dugan & Co. v. Edward Fulton.
    Prescription will bar an action, unless a case of inability to suo be fully made out.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Hunton & Miller, for plaintiffs and appellants. Geo. L. Bright, for defendant.
   Buchanan, J.

This is a suit upon an open account, and the defence is prescription. Plaintiffs endeavor to escape the effect of this plea, by arguing that the defendant had put it out of their power to sue him, by removing from the State in which both parties resided, Ohio.

But it is proved by two witnesses, that plaintiffs were informed that defendant resided in San Francisco, California. And in corroboration of this fact, the petition states, that in the year 1850, or thereabouts, the defendant left the the State of Ohio for California.

Under these circumstances, a case of inability to sue, is not made out, and the plea of prescription must prevail, under the doctrine of Suydam v. Kinney, 9 An. 316. See also 4 An. 418, and 10 An. 553.

Judgment affirmed, with costs.


author: Buchanan, J., Meehick, C. J.,

text:
    Mrs. C. B. Bowers v. Thomas Hale.
    Sections second and third of Act of 1855, require for the validity of acts of mortage hy married women, that the wife should be examined at chambers, by the Judge of the district or parish where she resides, separate and apart from her husband, touching the objects for which the debt is contracted, and that the Judge, upon being satisfied that the debt is solely for her separate advantage or for the benefit of her separate or dotal property, should furnish her with a certificate to that effect, which shall be annexed to the notarial act.
    A party interrogated as to whether there was not a balance due him at a certain time, has a right to add to his acknowlegement of such balance, that it no longer exists, having been discharged by payment.
    A natural obligation is a valid consideration for payment, and bars a demand for repetition.
    Art 2409 C. C. declares that “ the wife who has obtained a separation of property must contribute in proportion to her fortune and that of her husband, both to the household expenses, and to those of the education of their children. She is IjouncL to support those expenses alone if there remains nothing to her husband,” Art. 2412 C. C. means that the married woman shall not bind herself above and beyond the obligations imposed upon hor by Art. 2409.
    from the Sixth District Court of New Orleans, Howell, J.

      W. D. Hennen, for plaintiff and appellant. P. E. Bonford, for defendant.
   Buchanan, J.,

The plaintiff is a married woman, separated in property from her husband, who is proved to be insolvent.

She leased, in her own name, from defendant, a house belonging- to the latter, by notarial act before Graham, notary public in New Orleans, from the 1st November, 1855, to the 1st of November, 1856, for the yearly rent of twelve hundred dollars, payable monthly, in the manner and by the installments expressed in the Act.

In the same act, the plaintiff acknowledged herself to be indebted to defendant in the sum of three hundred and thirty-eight dollars, for rent to him due and remaining unpaid: and in liquidation of said year’s rent, (says the act,) and of the said debt of three hundred and thirty-eight dollars, making together the sum of fifteen hundred and thirty-eight dollars, the said mistress Bowers has given her twelve promissory notes, drawn to the order of and endorsed by herself, countersigned by her husband, and made payable, six for the sum of one hundred and fifty dollars each, in one, two, three, four, five and six months respectively, after date; one for the sum of one hundred and thirty-eight dollars in seven months after date, and five, each for the sum of one hundred dollars, in eight, nine, ten, eleven and twelve months after date.” To secure the payment of these notes, the plaintiff) by the same Act, mortgaged to defendant, a negro woman slave named Violette, the separate property of plaintiff. The parties after-wards agreed that the lease should terminate on the 1st October, instead of the 1st November, 1856, and the note for the rent of the month of October ($100), was given up by defendant to plaintiff. The sixth note, $150 ; the tenth, $100, and the eleventh, $100, -were protested at maturity for non-payment.

On the 16th October, 1856, Mrs. Bowers brought this suit, to annul the mortgage granted by her to defendant, on the ground that it was not clothed with the formalities required by the Act of 1855, (page 255,) to enable married women to bind their separate or dotal property; and on the further ground, that she was not indebted to defendant in the sum of three hundred and thirty-eight dollars, as alleged in the act of mortgage, but that the same was a debt of her husband, for which plaintiff was not bound. Upon this latter ground, she also demanded restitution of the unpaid notes No.’s 6,10 and 11, from defendant. De_ fendant pleaded a general denial, and that the plaintiff was separate in property from her husband, who was in insolvent circumstances; and that the premises leased were occupied by herself and family. Also claimed in reconvention the amount of the unpaid notes of plaintiff.

The second and third section of the Act of 1855, referred to in the petition, require, for the validity of acts of mortgage of this kind, that the wife must be examined at chambers by the Judge of the district or parish where she resides, separate and apart from her husband, touching the objects for which the debt is contracted, and that the Judge, upon being satisfied that the debt is solely for her separate advantage, or for the benefit of her separate or dotal property, shall furnish her with a certificate to that effect, which shall be annexed to the notarial act. This formality was omitted in the present case. 'Whether the Act of 15th March, 1855, governs mortgages made by a married woman separated by property, is not necessary for us to decide in this case, inasmuch as the appellee has not prayed for an amendment of the judgment appealed from.

The plaintiff, by a supplemental petition, propounded to defendant interrogatories on facts and articles. The fourth was as follows : was there not a balance due you on the 1st November, 1855, for the rent accruing before that date? Was not that balance three hundred and thirty-eight dollars, or thereabout ? If it was not that sum, then state its amount ? And was not that balance a balance due on the lease of the premises made by you to George P. Bowers, which lease is referred to in the first and second interrogatory ? ”

To this interrogatory, the defendant answered : “ There was a balance due me for about the amount mentioned in the interrogatory, but that amount (with the exception of fifty dollars) has since been paid. I was about to make a seizure of the furniture for the amount due, when at the special request and instance of Mrs. Bowers, I agreed to include the amount in the mortgage referred to in the petition. She promised, in case I would not carry my threat into execution, to pay the balance at the rate of fifty dollars per month, and accordingly some of the notes were given for one hundred and fifty dollars each, so as to include the extra fifty dollars per month to be paid by her on account of the balance. The balance has been paid by the payment of five of the one hundred and fifty dollar notes, in which it was included.”

On trial, plaintiff’s counsel moved to strike out all that portion of this answer, commencing with the words but that.” The motion was refused, and a bill of exceptions taken.

The question propounded was, whether a balance was due on the 1st November, 1855, upon George P. Bowers’ lease of the premises in question for the year preceding the 1st November, 1855. The response to this question was, that there was such a balance due at the date mentioned, but that the said balance had been paid, with the exception of fifty dollars. The remainder of the answer is an explanation of the manner in which payment had been made.

We think the party interrogated had the right to add to his acknowledgement of a balance due at a certain time, his declaration that the balance no longer existed, having been discharged by payment. Civil Code, Art. 2270 ; Code of Practice, Art. 353 ; 5th Martin, 667 ; 11 Martin, 222; 3 A. 648, and the cases there cited.

No attempt was made to rebut the answers of the defendant to interrogatories. It is, therefore, proved, that there was a balance due on the rent of the house occupied by plaintiff and her family, for the year ending the 1st November, 1855, and that tho said balance was nearly all paid by plaintiff previous to tbe institution of this suit. This is not an action to recover back money paid in error. It •was upon that ground the District Judge rejected the greater part of the plaintiff’s money demand. But as some members of the court are of a different opinion, (there being a prayer for general relief,) we will consider the case as if the plaintiff had demanded a restitution of the money paid, as well as the cancellation of her unpaid notes. And wo think that both demands should be rejected, upon the matters pleaded in the answer, which being established by the proof and admissions, show, first, a natural obligation on the part of plaintiff, which is a valid consideration for the payment and bars the demand in repetition; and secondly, a legal obligation, under Art. 2409 of the Civil Code, for the rent of the premises occupied by plaintiff and her family in the year 1855 and 1856. The plaintiff’s obligation to pay the rent of 1856, is indeed not disputed. But that for the previous year’s rent is equally clear.

In fact, this record presents the very case of the Art. 2409 of the Code. That Article says : The wife who has obtained the separation of property, must contribute, in proportion to her fortune, and to that of her husband, both to the household expenses, and to those of the education of their children. She is hound to support those expenses alone, if there remains nothing to her husband.” The plaintiff declares herself, in the notarial act of the 1st November, 1855, to be separated in property from her husband. The record of the suit of plaintiff against her husband for separation of property is in evidence. It was admitted on trial, that during the years 1855 and 1856, and up to the present time, there were numerous judgments unsatisfied, to a considerable amount, against her husband. She stated, therefore, nothing but the truth, when she declared herself in the notarial act, to be justly and truly indebted to defendant in the sum of three hundred and thirty-eight dollars for rent unpaid upon the previous year; for that rent came most clearly under the denomination of household expenses, and the balance due was about one-fourth of the year’s rent. The insolvency of plaintiff’s husband being admitted, and the possession of property in herself being proved, she was bound, under the law, to pay, not merely the fourth, but the whole of the rent. The Article 2412 of the Code, is therefore applicable to this case. For we have here an obligation which existed anterior to, and independently of her contract; an obligation imposed by the law, and which might have been enforced against her, had she never given her notes to plaintiff. The juxtaposition of the two Articles 2409 and 2412, forbids the idea of their inconsistency. The latter of the two, is to be taken to mean, that the married woman shall not bind herself above and beyond the obligations imposed upon her by the former.

It is a rule in the interpretation of statutes, universally recognised, that effect must be given to every part of the statute. And it may be safely asserted, that it is impossible to imagine a case to which the Art. 2409 will apply, if not to the case now under consideration. Reject its application hero, and you expunge it from the statute book.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed; and it is further decreed, that the costs of appeal be paid by plaintiff and appellant.

Meehick, C. J.,

dissenting. The case is correctly stated by the District Judge. He says:

“ Plaintiff sues for the annulment and erasure of a mortgage given by her to defendant to secure the payment of certain notes for rent, and for the cancellation of, and delivering of three of said notes yet unpaid by her, on the grounds that said act of mortgage was not executed in accordance with the provisions of the Act of 15th March, 1855, and that the notes thus given and secured, included the sum of $338, the amount of a debt due by her husband to defendant, which she was iuduced to assume, and for which she contends she is not liable.”

The act of lease and mortgage shew that the sum of $338 was added to, and included in the notes given for the rent, and the answers of defendant admit that plaintiff’s husband owed him a balance of $338, which, at the request of plaintiff, he agreed to include in the mortgage, and which she agreed to pay at the rate of $50 per month, hut he states that this balance, except $50, has been paid, and the question is whether or not plaintiff is to pay the $300 which defendant alleges is yet due on her contract of lease. She admits owing a balance of $12.”

“ The sum of $338, from which plaintiff seeks to be released as the debt of her husband, was added to the yearly rent and twelve notes given for the total, secured by mortgage on certain slaves of the plaintiff, hut the defendant contends, and so states in his answers to interrogatories on facts and articles, that the said sum of $338 was distributed in among the seven first notes, all of which have been paid except the sixth, and that consequently he is not bound under the pleadings to refund, but is entitled to judgment for the notes yet unpaid.”

“ Plaintiff contends that having assumed an obligation illegal and prohibited, she should be relieved from the amount thereof out of any portion not yet paid and asks that these notes be declared null.”

The District Judge came to the conclusion, that as the $338 was apportioned among the first seven notes, and all of them had been paid except one, that he could only relieve the plaintiff for the fifty dollars of the husband’s debt, supposed to be contained in that note, and he rendered a personal judgment against the plaintiff for the residue of the three notes remaining unpaid upon the plaintiff’s reconventional demand.

The contract entered into between plaintiff and defendant, was a single act containing several stipulations securing certain promissory notes in favor of defendant. Among others, it contains a stipulation reprobated by our law, viz : that the wife should pay a debt of her husband for $338, 0. O. 2412.

The defendant says, true it is, that the wife was not bound for this debt, but as I distributed this amount among' the first notes, and she has paid all but one, she cannot recover the money back, and as to the other notes, I am entitled to your judgment in my favor, as they relate to other portions of the contract. This reasoning appears to me to be falacious. The defendant admits, by this reasoning, that by the contract which he now asks us to enforce, he has committed a wrong to the plaintiff, and equity requires that courts of justice should not permit him to obtain an unjust advantage by a contract which he seeks to enforce. The legal or equitable maxims that “ no man shall be permitted to take advantage of his own wrong,” and “ he that asks equity must do equity,” ought to control this case. See also Theriet & Baron v. Voorhies, 12 A. 852. I do not understand that it was contested that the wife was bound for the rent prior to the act of mortgage.

The prayer for general relief, and the oral general denial to the reconventional demand, enable the court to render justice upon the merits.

I think the judgment ought to be reversed, and that there should be judgment in favor of defendant on the reconventional demand for $12.

See case of Provost v. Provost, 5 An. 572.

Land, J., concurred in this opinion.


author: Merrick, C. J. Cole, J.,

text:
    Mary E. Lyons, Tutrix, v. R. W. McRae—T. C. Dial, Third Opponent.
    Where a third opposition has been notified to the Sheriff, only after property has been seized, sold and the proceeds distributed among the judgment creditors, the third opponent’s privilege will not entitlo him to be paid out of the proceeds of the salo thus judicially made.
    PPEAL from the District Court of the Parish of Pointe Ooupée, Ratliff,, J.

      JA. U. B. & E. Phillips, for third opponent. T. J. & fV. PI. Cooley, for Pro-vosty, and P. H. Ray, for defendant and appellant.
   Merrick, C. J.

Thomas C. Dial claims a privilege for overseer’s wages, upon the proceeds of the sugar referred to in the case of the same parties, on the opposition of Claycomb.

This case differs from Claycomb’s case in this, that the opposition in that case was filed before the sugar was sold, and the seizing creditors might have seized other property. In this case, the opponent, who had aided the insolvent in sending off a portion of the crop to pay other debts, waited until after the Sheriff’s sale and the surrender, and had his opposition notified to the Sheriff, for the first time, after the Sheriff had settled with the attorneys of the seizing creditors for the proceeds of the sale subject to be refunded in case the claim of Claycomb should be sustained.

It is clear that Dial cannot avail himself of Claycomb’s opposition, and the parties had the right to settle for the proceeds in the hands of the Sheriff in their own way. It was a matter between the seizing- creditors, whether they would receive of the Sheriff drafts on his merchants, or other equivalents, for the proceeds of the sale, nor did it concern Dial whether the creditors had fully guaranteed the Sheriff against Claycomb’s demand or not. He could not claim the benefit of that guaranty for the purpose of sustaining his opposition.

As this opponent has aided other privileged creditors to obtain the proceeds of a portion of the crop, we think, in view of his tardy opposition, he should be left to assert his privilege upon such remainder of the crop as may be in the hands of the syndic, and that he should not be permitted to avail himself of the diligence of others after a distribution of the proceeds among themselves.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to the seizing creditors, and th t the third opposition of Thomas C. Dial be dismissed as to them, as in case of a nonsuit, he paying the costs of both courts.

Cole, J.,

concurring. I concur in the conclusion of Mr. C. J. Merrick, on the ground that the money made by the sale of the property seized was paid over to the seizing creditors before the opposition of Dial was served upon the Sheriff.


author: Vooehies, J.

text:
      W. A. Hanney v. John Healy.
    Whoro a judgment lias been rendered, accepting a surrender made by an insolvent debtor, and granting a stay of proceedings, according to the provisions of the 6th and 7th sections of the Act of 1855, and the Articles of the Civil Code 3051 et seq., the notice given to creditors in compliance with the above mentioned law, cannot, m case of informality in the return of the officer, as to the mode of making the service, prejudice or affect the shay of proceedings granted by the court.
    If a creditor wishes to question the legality of such proceedings, he cannot do so unless by a direct action to that effect.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      JO. G. L. Bright, for plaintiff and appellant. Collens & Woolridga, for defendant.
   Vooehies, J.

The plaintiffs have appealed from a judgment maintaining an exception, filed by the defendant, to their right to institute this suit. The ground upon which this exception is based is, that there had been a surrender made by the defendant, and accepted by the court, before this action was brought.

It is not necessary to inquire into the bill of exceptions on file in this case, and into the requisites of a return of the Sheriff as to the mode or manner in which the creditors of the insolvent have been notified. Suffice it to say, that in this instance, the defendant had filed his bilan, on which the plaintiffs were placed as creditors, and obtained from the court a stay of proceedings before the institution of the present action.

The 6th section of the Act of 1855, p. 433, provides: “ That whenever the judge shall be convinced that the debtor who wants to surrender his property has complied with all the formalities prescribed, he shall endorse on the schedule that the cession of all the property of the insolvent is accepted for the benefit of all his creditors, and shall order a meeting of the creditors, to be called in the manner and within the time prescribed for respites. Civil Code, Article 3051 et seq.”

The 7th section reads : “ When issuing the order for the meeting of the creditors, the judge shall order that all the proceedings, as well against the person as against the property of the debtor, be stayed.” C. C. 3054.

The notice given to the creditors, in compliance with the above provisions of the law, cannot, in case of informality in the return of the officers, as to the mode of malting the service, prejudice or affect the stay of proceedings granted to the insolvent by the court. If a creditor wishes to question the legality of such proceedings, he caunot do so unless by a direct action to that effect; and, in no event will he be permitted to disregard, and treat as an absolute nullity, a judgment accepting a surrender made by his debtor, and granting a stay of proceedings.

The exception was properly maintained, and the plaintiff’s action dismissed, with costs.

Judgment affirmed.


text:
    Succession of R. W. Powell—Oppositions of R. A. Bourke, Administrator, and Hopkins.
    The administrator is entitled to commissions only on the amount which comes into his hands, and for which he is responsible.
    The surviving partner who liquidates the concern, is not entitled to a judgment for any apparent balance in his favor, until he shows a full and entire settlement of the partnership affairs.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      Lea <® Marr, for Hopkins. J. Magne, for O. F. Weisse. Benjamin, Bradford c6 Finney, for Waterhouse. Chilton & Harrison, for administrator and appellant.
   Buchanan, J.

The administrator, and the late partner of the deceased, are appellants from a judgment rendered upon oppositions to the account of administration.

The following are the reasons given by the District Judge, for his judgment upon the claims of the appellants, rejected by Mm :

“The opposition to the claim of $6,442 16, on the part of the administrator, must be maintained.

“ He claims this sum as a commission of two and a half per cent, upon $165,759 87, which he avers were paid and received by Hopkins, the surviving partner. It is clear, in my judgment, that he is not entitled to this allowance. The value of the succession, as appears from the inventory, is $7,731 97. This is the amount which came into the administrator’s hands. This is the amount for which he gave bond — and this is the amount which he has to account for. To the charge of two and a half per cent, upon this amount, no objection is made; but I think the opposition to the other claim is well founded. The commission is allowed for the care, trouble, and responsibility of the administrator, with regard to the funds and property which came under his hands. This large amount was never in his keeping ; he was never responsible for it; his bond did not cover it; and I think it impossible to admit, that UDder these circumstances, the administrator should receive, as a commission, nearly, if not quite, the whole proceeds of the succession.

“ I am also of opinion, that the opposition to the claim of Hopkins, is well taken. Powell <& Hopkins were partners. The partnership was to continue after Powell’s death. Hopkins, as he had the right to do, continued the business. He has been liquidating the affairs of the partnership. They are not yet settled. By the accounts furnished, it would appear that Hopkins had paid the sums which he claims, and that these sums were paid by Hopkins, over and above the assets of the partnership. But the liquidation is not complete. There is no evidence of bad debts. The assets have not been disposed of, so far as the record discloses, and until the final settlement of the whole affairs, it will be impossible to say whether the succession of Powell will be indebted to Hopkins, or whether Hopkins will be indebted to the succession of Powell.

“ In this condition of the affairs of the parties, it seems to me it would be manifestly improper to give a judgment in favor of the liquidating partner, which would absorb the greatest portion of the small amount of assets in the hands of the administrator, when it might turn out that the liquidator, upon a final settlement of accounts, would be indebted to the succession.

“ The same reasons apply to the opposition of Hopkins, claiming more than was allowed him. Ilis opposition, in this regard, must be dismissed.”

The facts are correctly stated in this extract from the reasons for judgment o f the District Judge, and we concur in Ms legal conclusions from those facts.

Judgment affirmed, with costs ; and without prejudice to the claim of A. M. HopJcins, if any he shall be found to have, upon final liquidation of the partnership of Powell <& Hopkins.


author: Land, J.

text:
    James Todd v. James H. Shouse.
    Accommodation accoptors are not creditors of the drawer of a draft accepted by.tlicm, until after it has matured, and they have been obliged to pay it, andan attachment issued by them before maturity is not rendered valid by subsequent payment of the draft, which makes them creditors of the drawer
    An attachment must stand or fall according to the state of facts existing at the date of its issuing, and cannot be cured by a subsequent event.
    PPEAL from the Third District Oourt of New Orleans, Duvigneaud, J.
    XA C. Roselius and A. Phillips, for plaintiff and appellant. T. H. Kennedy, J. M. Chilton, and Waples 16 Eustis, for defendants and appellants.
   Land, J.

This suit was commenced by attachment on the 18th of July, 1857, for the recovery oí $2,100, alleged to be due for money “advanced and lent to the defendantOn the same day, the Sheriff states that he attached in the hands of Whitehead & Chambers, all the goods and chattels, rights, credits, monies and effects, in their possession or under their control, belonging to defendant, from which seizure nothing came into his hands.

On the 17th of November, 1857, the plaintiff filed a supplemental petition, making Whitehead & Chambers garnishees to the action, and propounding interrogatories to them, in answer to which, they say they have in their possession three hundred and one pieces of Kentucky bagging, which they believe belongs to the defendant.

On the 28th of November, 1858, the plaintiff filed a second supplemental petition, in which he alleged that the loan alluded to in his original petition, and constituting the basis of his action against the defendant, was made in the form of an acceptance of defendant’s draft for f2,100, dated July the 3d, 1857, and payable four months after date, and that at its maturity he was obliged to pay the same.

On the 11th of December, 1857, /. A. Twyman, J. R. Goodloe and /. E. Has-kins, intervened in the suit, and claimed the property attached, by virtue of an assignment made by the defendant to them, in the State of Kentucky, of all his property, for the benefit of his creditors.

On the 9th of January, 1858, a rule was taken on the plaintiff, by the attorney appointed to represent the defendant, to show cause why the attachment issued in this case, should not be dissolved, and the suit dismissed on the following grounds :

First■ — That the debt claimed of defendant was not due at the date of the attachment, and of the filing of the original petition, and that the affidavit for attachment is not such as the law requires, when the debt is not actually due.

Second — That nothing was attached under the original process.

Third — That the supplemental petition filed on the 17th November, 1857, and attempted attachment under the same, are not accompanied by an affidavit as the law requires. And,

Fourthly — That the cause of action set out in the original petition was abandoned by the filing of the supplemental petition, filed 28th November, 1857.

It is only necessary to notice the first of these grounds, for the dissolution of the attachment. In the case of Read et al. v. Ware, almost identical with this, the court say:

“ It cannot be said that, at the date of the attachment, the plaintiffs were creditors of the defendant for the amount of this accommodation acceptance. The holder was the creditor ; as between the plaintiffs and defendant, there was not an existing indebtedness payable at a future day. The subsequent payment of the bill by the plaintiffs, which made them the defendant’s creditor, could not re-troact so as to give validity to the attachment. An attachment must stand or fall according to the state of facts existing at the date of its issuing, and cannot be cured by a subsequent event. To say otherwise, would be to say that the defendant was liable to a double attachment at the same time, one by the bill holder and one by the accommodation acceptor.”

There is no error in the judgment of the lower court, making the rule absolute and dissolving the attachment. As there was no personal citation of the defendant, nor appearance by him, the judgment on tho rule terminates the suit for want of jurisdiction.

With the main action, the demand in intervention, which is but an accessory, also ends.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs. And it is further ordered and decreed, that the intervenors pay the costs of intervention in the lower court.

Corm, J., absent.


author: Buchnan, J.

text:
    Dubois & Mish v. A. Xiques, Syndic.
    Aresolutovy condition is implied iu all commutative contracts, to talco effect in case either of tho parties do not comply with their engagements.
    The dissolution of tho contract for non-complianco with its obligations, may be demanded by suit or by exception.
    The rights of property of an insolvent are vested by law in the syndic of his creditors.
    There is nothing inconsistent in a demand for the dissolution of a lcaso, being coupled with a demand for the rent up to the time that possession is delivered to the lessor.
    In a suit brought by a lessor against the syndic of an insolvont lessee, although tho lessor’s privilege can only be regularly considered upon a tableau of distribution, yet a prayer for gonoral relief 111 the petition, will enable tho court to reserve tho rights of all parties interested in tho matter.
    from the Fifth District Court of New Orleans, Eggleston, J.

      P. Childress and Lacy c6 Upton, for plaintiff and appellant. Durant <& Homar, for defendant.
   Buchnan, J.

Plaintiff leased to Hernandez certain premisos to be used as a cigar store, and for no other purpose, for the term of three years, beginning the 1st of September, 1856, at the rate of twelve hundred dollars per annum, payable in installments of one hundred dollars, on the first day of every month.

It was a condition of the lease, that the lessee should not sub lease the premises, without the consent of the lessor in writing.

The rent was paid punctually up to the 1st of March, 1858 ; but the lessee failed to pay the rent for the month of March, 1858, although demand was made for the same ; neither has any rent been paid since that time.

Herdandez, the lessee, having made a cession of his property, the defendant, Xiques, was appointed syndic of his creditors, and caused the aforesaid right of lease to be advertised for sale, at public auction, for account of Hernandez’s creditors.

On the 6th July, 1858, there being then four full month’s rent due and unpaid, the plaintiffs filed their petition in this case, setting forth the facts aforesaid, and prayed that the syndic and the Sheriff be enjoined from selling the lease aforesaid ; that the same be annulled, and possession of the leased premises delivered to jffaintiffs ; and for judgment recognizing their claim as a privilege, to be paid out of the proceeds of the sale of the fixtures on the premises leased, to the amount of four hundred dollars, due at the date of filing petition.

The legal formalities being complied with, a writ of injunction issued as prayed for. The syndic excepted to the petition, as containing no cause of action ; that the action to avoid the lease was a personal action against the lessee, and was lost by his cession of property; that the prayers for rent, and for the annulling the lease, are inconsistent; and that no action lies against the syndic for a monied demand.

A rule to quash the injunction upon the same ground, pleaded in the exception, was subsequently taken by defendant upon plaintiffs.

The exceptions and rule were sustained by the District Court, and the injunction dissolved; from which judgment the plaintiffs prosecute this appeal.

The contract between plaintiffs and Hernández is a commutative contract; and a resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements. C. C. 2041.

The dissolution of the contract for non-compliance with its obligations, may be demanded by suit or by exception. C. C. 2042.

In this case, the action was properly brought against the syndic of Hernandez’s creditors, in whom were vested by law, the rights of property of the insolvent. Acts of 1855, page 433.

The petition presents a case for the dissolution of the contract of lease. Apart from the general provision of law, conferring the right of action, upon the facts stated, we find it alleged, that the resolutory condition was expressed in the contract between the parties ; and that allegation is confirmed by the copy of the lease annexed to the petition.

There appears nothing inconsistent in a demand for the dissolution of the lease, being coupled with a demand for the rent up to the time that possession is delivered to the lessor. The former implies that a contract exists, which it is the purpose of the plaintiff to put an end to, by judgment of court. The latter requires that by the same judgment, it be decreed that the party in default shall pay the amount due under his contract, at the moment of its dissolution, and to the time of execution of the other branch of the action.

But there is no demand for a money judgment against the syndic of Hernandez. There is only a prayer for the recognition of a privilege, and if it be objected, as it may be, under our jurisprudence, that such a privilege can only be regularly considered upon a tableau of distribution, the prayer for general relief, in the petition contained, will enable the court to reserve the rights of all parties interested in this matter.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the exceptions of defendant be overruled, and the rule to quash the injunction dismissed ; that the defandant, Xiques, in his capacity of syndic of the creditors of A. Hernandez, pay the costs of said exception and rule, and of this appeal; and that the cause be remanded to the District Court lor further proceedings according to law.


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    Jules Tardos v. Ship Toulon and Owners.
    ■Where goods are delivered into tlie possession of a common carrier, it is for him to show that he used due care for their preservation, for the shipper is not supposed to he present during their transportation, and the goods arc in the custody of the owners of the vessel and their agents.
    Article 3204 of the Civil Code gives a privilege on the ship for damages due to freighters for the failure in delivery of goods which they have shipped, or for the reimbursement of damages sustained by goods through the fault of the captain or crew.
    from the Fourth District Court of New Orleans, Price, J.

      Clark & Bayne, for plaintiff and appellant. Singleton & Clack, for defendants.
   Cole, J.

This suit is to recover the value of two large looking-glasses and frames, placed by plaintiff on board the ship Toulon, to be transported from New York to New Orleans.

When the vessel arrived, and before the boxes were taken out, it was discovered that the glasses were broken.

The testimony establishes that the boxes containing the glasses were sufficiently strong; the planks of the boxes were of the thickness of an inch; the nails were very large, and such as are often used for boxes of this character. F' rty-four boxes, received about the same time by the ship Philadelphia, were received from plaintiff in good order. They were put up in the same kind of boxes as those bjr the Toulon, and were put up by the same persons about the same time; the boxes on the Toulon were marked “ glass ” in two places in large letters.

Mr. Hillard, the agent of the vessel, admitted to one of the witnesses, that the captain of the ship had acknowledged that the boxes had been broken “ on board ship,” and that the captain claimed that the boxes were not of sufficient strength.

There is testimony to show that the boxes were not adequately strong for glasses of the size of those shipped by the Toulon ; but the witnesses of defendant, who contradict those of the plaintiff, appear to have formed their opinion principally from their external appearance.

Hypothetical testimony as to the insufficiency of the strength of the boxes cannot outweigh the positive testimony, that boxes of a similar kind, and put up in the same way, arrived about the same time upon another ship, without being injured.

The bill of lading admitted the receipt of the boxes in good order, but had a stamp on the face, “ Not accountable for rust, breakage, or leakage, unless improperly stowed or handled ; contents unknown.”

“ Unless improperly stowed ” signifies that tlie ship shall not he liable if the merchandise be properly stowed. The proof of the character of the stowage is more within the power of the owners of the ship than of the shipper.

The goods are delivered into the possession of the common carrier, and it is for him to show that he used due care; for the shipper is not supposed to be present during' their transportation, and the goods are in the custody of the owners of the vessel and their agents.

Even conceding that the common carrier would not be liable for the destruction of the glasses under the exception of breakage, still, in order to exonerate him, it would be necessary to show that the boxes had been properly stowed.

The only evidence upon this point, is that of a stevedore, who discharged the Toulon. He says they were stowed on their edges, and were properly stowed for glass; he was the first one that came to the boxes, and found that the contents were broken.

The defendant has not sufficiently established that the boxes were so stowed as to prevent them from rubbing against other articles; they may have been upon their edges, and yet might have been in motion more or less during the voyage and the appearance of the boxes shows such to have been probably the case.

Defendant received the glasses in good order; it is his duty to explain satisfactorily the cause of their destruction. This he has not done. The evidence of the stevedore is more than counterbalanced by that of the testimony which shows the boxes to have been sufficiently strong, and that many other boxes similar to those shipped by the Toulon, and containing glasses, arrived uninjured; that several parts of the boxes appeared to have been rubbed by some hard substance, that they appeared to have moved about and to have been rubbed and worn by a part of the cargo near them.

It is also shown that broken glasses have no value at all, and that the frames would be but of small value except to a person dealing' in such articles.

There is no evidence to show that the frames without the glasses would have been of sufficient value to have paid the expenses of their public sale.

It is established that the glasses and frames were worth $350.

The judgment of the District Court rejected the demand of plaintiff, and rendered judgment against him upon the reconventional demand of $15 99, the amount demanded for the freight of the boxes.

Plaintiff is entitled to a privilege upon the ship for the amount due Mm. O. C. 3204, (S11. This court has no jurisdiction, on account of its amount, over the demand in reconvention.

It is, therefore, ordered, adjudged and decreed, that the judgment upon the demand of plaintiff be avoided and reversed; that plaintiff recover of defendants in solido throe hundred and fifty dollars, with five per cent, interest thereupon, from the 29th April, 185V, and the costs of both courts; that the privilege of plaintiff upon the ship Toulon for the payment of this judgment be recognised, and that she bo seized and sold to pay this judgment.


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    E. Rochereau & Co. v. Bark Hausa, Captain and Owners.
    Tho c.aptain and owners of a vessel are liable for the acts of the stevedores employed by them to load their vessels.
    from tlie Third District Court of New Orleans, Duvigneaud, J.

      J. Magne, for plaintiffs. W. D. Hennen, for defendant and appellant.
   Land, J.

The consignors of the plaintiffs shipped from Bordeaux some sixty-eight casks of wine, on board the bark Hausa, to be delivered in good order to the consignees at the port of New Orleans. On the arrival of the vessel at the latter port, eight casks were damaged and empty, or nearly so, and the small quantity of wine remaining was sour and worthless.

For the recovery of the value of the wine lost on the voyage, and of that deteriorated at the time of delivery, this suit was instituted.

The bills of lading contained the clause, “ free from brealcage and leakage,” and it is contended that this clause limits the liability of the defendants as common carriers, and that they are not responsible, unless the plaintiffs prove that the damage or loss of wine, was the result of their fault or negligence in the transportation of the casks.

In this case, it is unnecessary to decide the question of law as to the burden of proof, for the reason, that proof has been made by the plaintiffs.

Tho evidence, in this case, shows, that according to the custom in Bordeaux, stevedores are usually selected by the captain or owners of a yessel, and that tho latter are always responsible for the acts of the former in the matter of stowage.

Tho District Judge came to the conclusion upon the evidence before him, that the loss of wine was the result of damage done to the casks, whilst in the hands or under the control of the stevedores employed by the captain in loading the bark in the port of Bordeaux.

He says: On the other hand, the plaintiffs have proved by several competent witnesses, among them there were coopers, that the casks were perfectly well made, of the best materials, especially those which contained the best quality of wine. That according to their long experience in shipping casks of wine, the pressure, spoken of by defendants’ witnesses, could not have produced the leakage of the casks. Their opinion is, that the damage to the casks must have been done by the stevedores at the time they stowed the bark in Bordeaux, because the casks were staved, or dépointés, as they term it, and this could not be done but by a fall of the casks during the stowage. The court has arrived at the same opinion; if the bark was well stowed, if the pressure of the freight could not have occasioned the leakage, whatever heavy seas the bark may have encountered during her passage, the only cause must be ascribed to the stevedores while stowing the barh in Bordeaux.”

That the defendants are liable for the acts of the stevedores employed by them to load their vessel, is not questioned, and we have not been satisfied that the District Judge erred upon the facts of the case.

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


text:
    Mrs. Kron v. John Watson.
    The payment of rent in pursuance of the terms of the contract of lease, is an essential engagement on the part of the lessee, and his non-compliance with it, gives to the lessor a right to sue for the dissolution of the contract.
    1 PPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      P. Soulé, for plaintiff. Elliott and Clark & Payne, for defendant and appellant.
   Land, J.

This is a suit to dissolve a contract of lease, on the ground of nonpayment of rent, and for the recovery of rent alleged to be due, and to become due, during the pendency of this suit. It is the duty of the lessee to pay the rent at the terms agreed on, and if he fail to pay the rent, when it becomes due, he may be expelled from the premises. O. 0. 2680, 2682.

The payment of rent, in pursuance of the terms of the contract of lease, is an essential engagement on the part of the lessee, and his non-compliance with it, gives to the lessor a right to sue for the dissolution of the contract. Civil Code, 2041.

In this case there was judgment for the plaintiff, and the . defendant has appealed.

The answer is a general denial, and a plea of tender of the rent alleged to be due to plaintiff, before the institution of this suit.

The non-payment of the rent as alleged in the petition, was proved. The plea oí tender is not sustained by the evidence.

Following the plea of tender in the answer, is an allegation, that the amount of rent due to plaintiff is deposited — -but in support of this averment, there is no proof.

The judgment condemns the defendant to pay three hundred dollars for four month’s rent of the premises. The rent was at the rate of sixty dollars per month, and payable monthly, and the judgment is erroneous in this respect; it should have been for two hundred and forty dollars.

It is, therefore, ordered, adjudged and decreed, that the judgment, so far as it condemns the defendant to pay three hundred dollars for four months rent, be amended, and instead thereof: It is ordered, adjudged and decreed, that the plaintiff recover of defendant the sum of two hundred and forty dollars for four months rent, from the 20th of November, 1857, to the 20th of March, 1858, and that said judgment be in all other respects affirmed, with costs in the lower court. And it is further ordered and decreed, that plaintiff pay the costs of this appeal.


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    H. H. Zacharie v. G. H. & R. S. Kirk—W. L. Miller, Intervenor.
    Where the master of a boat contracts a tloht on account of the boat, the creditor has a right to sue either him or the owners of the boat, or both simultaneously.
    In a suit brought against the drawer of a bill of exchange, it is not necessary to constitute a waiver of want of notice, that an express promise be made to pay the bill absolutely, — it is sufficient, if by reasonable intendment the language imports or implies a promise to pay it; as a promise to pay if the costs are thrown out.
    A boat which has been sold is liable to seizure at the suit of the vendor’s creditors as long as it remains in the possession of vendor.
    PPEAL from tlie Fifth District Court of New Orleans, Eggleston, J.
    XX Durant & Hornor, for plaintiff. Lea <& Marr, for defendants and appellants.
   Land, J.

This suit was instituted on a bill of exchange for the sum of $351 50 drawn by George H. Kirk, to the order of plaintiff, on and accepted by R. S. Kirk & Co. The bill was drawn on account of the steamboat Messenger, and the petition alleges, that it was protested for non-payment, and that due notice was given to the drawer, George H. Kirk, who was at the time a part owner with Robert S. Kirk, and with him bound in solido for the debts of the steamer.

This suit was commenced by attachment, and the steamboat Messenger was seized as the property of defendants. William L. Miller intervened in the suit, and claimed the boat as his property by virtue of a purchase on the 28th day of June, 1858, from Robert S. Kirk, and the recording of his title at the Customhouse, in this city, on the same day.

There was judgment in favor of the plaintiff against the defendants, and also against the intervenor. The defendant, George H. Kirk, and the intervenor, IKL. Miller, have appealed.

The defendant contends, that his only liability to plaintiff, was that of the drawer of the bill of exchange, and that he was never notified of the protest for non-payment, and that he was thereby discharged.

The evidence does not show that George H. Kirk was a part owner of the boat, nor does it show that notice of protest for non-payment, was given to him, but it appears, that he was the master of the boat, and the special agent of R. S. Kirk, the admitted owner ; that the debt for which the bill was drawn by him, had been contracted on account of the boat, and that since the institution of this suit, he acknowledged his liability to pay it, by saying, in the language of the witness, “ that he would pay the claim, if the costs were thrown out.”

As master of the boat, he was personally liable for the debt contracted by him, and the plaintiff had the right to sue him, or the owners, or both simultaneously, for its recovery. Mead v. Buckner, 2 L. 284. Henshaw v. Rollins, 5 L. 335.

Having been sued on a bill of exchange given for a debt for which he was personally and absolutely liable, it is a fair presumption, without any evidence to the contrary, that he had full knowledge of the laches of the holder, the plaintiff, when he promised to pay the bill, if the costs were thrown out, which declaration, in our opinion, was a confession of his legal liability, and makes sufficient proof of a waiver of the want of due notice.

It is not necessary that an express promise should be made to pay the bill or note absolutely. It will be sufficient, if by reasonable intendment, the language imports, or implies a promise to pay it. Hence, it lias been held, that a promise in these words, “If the acceptor does not pay, I must; but exhaust all your influence with the acceptor first,” was a waiver of notice. Story on Promissory Notes, ?364.

The words “ if the costs were thrown out," we understand, to be an expression of unwillingness to pay the costs of suit, and not a condition, or limitation of his admission of liability to pay the bill. We are, therefore, of opinion, that the judgment ag’ainst the drawer is correct.

The intervenor, W. L. Miller, contends that the first Judge erred in refusing to receive in evidence the enrollment of the boat in his name, and a license issued in his name authorizing him to employ the boat in the coasting trade; and also, in refusing to receive the testimony of R. W. Adams, to prove, that he, the witness, held a part of the promissory notes given for the price of the boat, as collateral security for a debt due him by the vendor, R. S. Kirk.

If this testimony had been received, it would not have benefited the case of the intervenor. He was the bar-keeper of the boat, without, or with very limited means, and became the purchaser at the price of ¡¡511,000, for which he gave his promissory notes without security. There was no change in the officers of the boat, nor actual delivery of possession, or other circumstances indicating a change of property or ownership, save the paper title recorded at the Customhouse.

If the sale to Miller was not a pure simulation, the vendor was still in possession of the boat at the date of the plaintiff’s attachment, on the 18th day of October, 1858, and the boat was, therefore, under these circumstances, subject to seizure at the suit of the vendor’s creditors.

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

Merrick, C. J., concurring. I have some doubts in this case, but I yield them to the clearer convictions of my colleagues.


text:
    Lewis Selby v. The Levee Commissioners.
    An assessment made under the Act of 1857 cannot he aided hy the lien or privilege given hy the Act of 1858. The Legislature intended to authorize a specific tax hy the Act of 1857, a comparison of which Act with the previous Acts shows that the term u specifically on each and every acre,” was used in contradistinction to the ad valorem, tax of former statutes.
    It is not necessary that the voters who elect the Levee Commissioners should he equally assessed. Equality of taxation and representation, in inferior jurisdictions, is not essential under the Constitution.
    A party cannot he relieved from the payment of assessments and taxes on the ground that there might he an outstanding title in some one else ; it is sufficient that he claims and possesses as owner.
    Where lands are not benefited hy the levees, they are not within the spirit of the Act of 1857, and should not he taxed to meet them.
    A judgment rendered without reasons is unconstitutional.
    from the District Court of the Parish of Carroll, Farrar, J.

      L. Selby, for plaintiff and appellant. H. Short, for defendants.
   Merrick, C. J.

The main question in this case has been disposed of in the decision just rendered in the case of Walace v. Shelton et al. The case presents a few other questions.

I. The assessment was made under the Act oi 1857, and it cannot be aided by the lien or privilege given by the Act of 1858.

II. The Tax Collector did not err in seizing the land. The plaintiff, it appears from the testimony, gave him permission to seize the land, and furnished him with the titles to obtain a description of them.

III. The Levee Commissioners did not err in concluding that the Legislature intended to authorize a specific tax by the Act of 1857. A comparison of the Act of 1857 with the previous Acts, shows that the term “ specifically on each and every acre,” was used in contradistinction to the ad valorem tax of the former statutes.

IV. We are not aware of any provision of law which makes it necessary that the voters'who elect the Levee Commissioners should all be equally assessed, or that it is necessary that the voters of Catahoula should be excluded because they do not pay an assessment in this district. They are obliged to build levees upon the Red and Ouachita Rivers. The equality of taxation and representation in inferior jurisdictions, does not appear to have been considered-essential by the framers of the Constitution of 1852.

V. It is further contended, that a part of the swamp lands upon which the assessment is made, has not been pateuted, and plaintiff may yet be deprived of the ownership of the same by the Government of the United States. We do not think that a party can be relieved from the payment of assessments and taxes, on the ground that there may be an outstanding title in some one else. It is sufficient that plaintiff claims and possesses as owner.

VI. The Levee Commissioners have not made any assessments upon the region of country West of the Bayou Ma$on hills, nor the islands of the Mississippi. The plaintiff demands (in the event that the assessment should be held legal,) that the defendants be ordered to assess taxes on the lands between the Bayou Ma<¿on and Bceuff River, and on the islands in the Mississippi river. But as the levees of the parishes of Carroll and Madison are of no benefit to these lands, they are not within the spirit of the Act of 1857, and we cannot say that the Levee Oommissoners have erroneously exempted them from assessment.

VII. It is also objected, that the judgment of the lower court is unconstitutional in this, that it has been rendered without reasons. The objection is well taken.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed, by the court, that the injunction be dissolved and plaintiff’s demand be dismissed, the plaintiff paying the costs of the lower court, and the defendants the costs of appeal.

Buchanan, J\, and Cole, J., took no part in this decision.