text:
    McCrea v. Marshall.
    $7here in answer to an action to recover an amount agreed to be deducted from tlie price of land purchased by plaintiff on account of a deficiency in the quantity, defendant avers that there was no deficiency, the burden of proving that there was no deficiency is on him, he pleading it specially as matter of defence.
    Contracts or agreements relative to personal property, or for the payment of money, above five hundred dollars in value, must be proved by at least one credible witness, and other corroborating .circumstances. C. C. 2257.
    jA. purchaser of property entitled to a deduction from the price, will not lose his right to such deduction, by failing to assert liis claim at the time that an order of seizure and sale is taken out by the vendor. Per Curiam; The fact that he abstained from availing himself of the right inaformer suit, docs not preclude him from claiming the amount in another action. C. C. 2265.
    APPEALS from the Commerpial Court of 1STew Orleans, Watts, J

      Eggleston, for the plaintiff. Stevens and Grymes, for appellant.
   The judgment of the court was pronounced by

King, J.

On the 7th of March, 1842, the plaintiff McCrea, purchased from Thomas Barnard, a tract of land, lying in the parish of Terrebonne, represented in the act of sale to contain 760 acres, for the price of $6080, for which sum the purchaser gave his promissory notes, bearing eight per cent interest from .their date, and a mortgage was retained upon the land to secure their payment.

In 1843, Marshall, the defendant, purchased those notes from Barnard. Pending the negotiation for their transfer, both parties were notified by McCrea, .that a deficiency of 190 acres had been discovered in the quantity of the tract. Acting tqion the supposed truth of this representation, a deduction was made by Barnard, of $700 or $800 from tho price which Marshall w&s to have paid for the notes. After the maturity of two of the notes, Marshall obtained an order .of seizure, by virtue of which the mortgaged property was sold on tho 24th June, 1844, and produced $7600, of which sum, $7206,99 were applied to the .extinction of his claim, that being the full amount of the notes, with the interest from thoir dato to the day of sale.

McCrea instituted this suit against tfro defendant for the recovery of tho sum •which had thus been deducted from the price of the notes, with interest from the 7th March, 1842, alleging that the reduction had boon made for his benefit, and that Marshall had promised to give him the credit. There was a judgment in the court below in favor of the plaintiff for $750, from which the defendant has appealed. The plaintiff, in his answer to the appeal, asks that the judgment of the inferior court be so amended as to allow him interest, as claimed in his petition.

The character of the transaction between Barnard and Marshall, the understanding of the parties in relation to it, and the assumpsit of Marshall, are to be found in a letter from the latter to McCrea, dated at New York, August 8th, 1843, from which the following is an extract:

“On my airival here, yosterday, I received your favor of the 16th ult., and now haston to reply to your enquiries. I settled with Barnard by his deducting some $700 or $800, for the land you say is short. This was the only and the best settlement I could make, as he had all lire law on his side,- the land having been described in the deed by metes and bounds. Had hard work to get what I did. In truth, I considered it so much saved ; for, agreeably to tho law, my lawyer informed me Barnard was not bound to you for any deficiency, but only to me by way of misrepresentation, and even that, perhaps, somewhat doubtful. You are actually bound in the whole amount of the notes to tho holder of them — still I am willing to allow you the amount I got oil, less the expenses incurred in making the settlement.”

The defences which Marshall opposes to the plaintiffs action are:

1st. That there was no deficiency in the quantity of the land.

2d. That the contact between himself and the plaintiff was subsequently modified, and the credit to be given made to depend upon prompt payment of the notes, which condition was not complied with.

3d. In this court ho pleads, that the judgment ronderod for the seizure and sale of the mortgaged property has the force of the thing adjudged against the claim of the plaintiff.

I. It does not appear, nor is it material to the presentinquiry, whether there wa3 or not a deficiency in the quantity of land conveyed by Barnard to McCrea. From the evidence, it is clear, that Marshall, acting upon the suggestion of the defendant, obtained a deduction of $700 or $800 from the price which he was to have paid for the notes. It is equally clear, that tho understanding of tho partios» at the time, was that the deduction was made for the benefit of McCrea, and that Marshall subsequently promised to credit him with the amount. It further appears, that Marshall has collected from Me Urea the full amount of tho notes, with eight per cent interest from their date.

If, however, it were import,ant to ascertain whether the deficiency exist or not, the burthen of proof rests upon tho defendant, who pleads it specially as matter of defence.

The fact that ho subsequently caused the land to be seized and sold, representing it in the proceeding and sale to contain seven hundred and sixty acres, is not sufficient proof to establish that to be tho quantity of tho tract; and this is the only evidence in support of that averment.

II. An effort was made, upon the trial, to prove that, in January, 1844, a different contract was entered into between Marshall and McCrea, in relation to tho sum deducted from the price of the notos; but we consider the evidence adduced for that purposo insufficient. The proof of contracts or agreements above fivo hundred dollars in value, must bo made by at least one witness, and other corroborating circumstances. A single witness has testified in relation to it, and the record furnishes no additional circumstances in support of tho alleged agreement. Civil Code, art. 2257. 3 La. 211. 19 La. 2C5. 2 Rob. 211.

III. In support of the plea of res judicata, tho defendant relies upon the order granted for the seizure and sale of tho mortgaged property, contending that the plaintiff should have urged his claim in that proceeding. It was not pleaded, however, in compensation, or otherwise, and has never been in contest between the parties, or the subject of judicial inquiry, until the commencement of this suit. The fact that he abstained from availing himself of it in a former suit, does not preclude him from claiming tho sum in a separate action. 6 Mart. N. S. 252. Civil Code, art. 2265.

Tho court below awarded to tho plaintiff $750, which we think just; but it erred, in our opinion, in not allowing eight por cent interest upon this sum, from the date of the notes to that of tho sale; and further, in not allowing interest upon tho principal sum, from judicial demand. Marshall has collected from tho plaintiff the full amount of tho notes, with eight per cent interest from their date. Had the credit due been given, to talco offect from the date of tho notes, interost upon that sum would have ceased to accrue; and Marshall would have collected upon his execution, the price of the land, less $750, with eight per cent interest from 7th March, 1842.

It is, therefore, ordered and decreed, that tho judgment of the Commercial Court be amended; and that, in addition to the sum of $750, awarded in said judgment to the plaintiff, he rocovcr of tho defendant the sum of $137,50, being tho interest at eight per cent, from tho 7th March, 1842, to the 24th June, 1844, upon the said sum. It is further ordered that the plaintiff have legal interest upon $750, from judicial demand. In other respects, said judgment is affirmed, with costs.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Rasch v. His Creditors.
    Tlio syndics of the creditors of an insolvent by whom bank stock had boon pledged to secure the payment of aloan, cannot resist tho right of tho creditor to have the stock sold for the re-payment of the amount loaned, on tho ground that the salo could only be made at a great sacrifice. There is no alternative, but to redeem,,the stock by paying tho debt for which it was pledged, or to sell it.
    from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Eustis, C. J.

The insolvent had pledged to the New Orleans Improvement and Banking Company one hundred and live shares of the capital stock of the' company, to secure the payment of a sum of money loaned.

The creditor applies to the court to compel the syndic to sell this stock, in-order that the proceeds may be applied to the extinguishment of tho dobt.

Wo do not seo how the right of the creditor can be questioned to have the thing pledged to him sold, nor do we think that any thing is gained to the creditors of Rasch, by protracting the liquidation of the affairs of tho syndicate by delaying to dispose of tho property surrendered.

Marsoudet, for the appellants. Roselius,- for the syndics.

If a great sacrifice would be made by the sale, there is nothing to prevent the I’eiIemPl:i011 °f tbs stock by the creditors of Rasch ; but there is no other alternative but the payment of the debt to the creditor, or tho sale of the stock by the syndic.

The judgment of the District Court is, therefore, reversed, and the syndic ordered to sell the stock, as prayed for by the appellants; the appellee paying costs in both courts.


author: Eusíis, C. J.

text:
    Fernandez v. Bein.
    Wliove the highest anil last hid, made at a judicial sale, is insufficient to discharge a mortgage existing on tho property entitled to a preference over the claim of tho judgment creditor, there can he no adjudication. C. P. 684.
    One to whom a slave, advertised for sale as in a state of unconditional slavery, is adjudicated nt a judicial sale, cannot he compelled to comply with his bid, if it turn out that' the slave is a statn-Ubei\

    APPEALS from the Parish Court of New Orleans, Maurian, J.

      Deslix for the appellant. Denis and Pilot, contri.
   Tho judgment of tho court was pronounced by

Eusíis, C. J.

On tho 18th of October, 1842, Eulalie Cheval, a free person of color, sold to tho defendant a certain negro slave, named Sarah, then about nineteen years of age, for the sum of $420, on a credit of six months.

For this sum she gave a note, endorsed by her husband, bearing interest, of which the plaintiff is the holder. To secure the payment of this note and interest, the defendant executed a mortgage on the slave Sarah, which mortgage was duly assigned to the plaintiff.

The plaintiff prayed for an order of seizure and sale of the slave, to satisfy the debt, interest and costs.

The note was identified by the notary with the mortgage; and the remedy which the plaintiff seeks is dependent on the act of sale and mortgage before recited.

The sheriff’s return states that tho slave was adjudicated to J. J. Jandot, for $600; but that nothing came to his hands from the sale, by reason of Jandot’s not complying with the conditions of it.

A rule was taken on the sheriff, at the instance of the plaintiff, to show cause why he should not pay the plaintiff the amount due on his note. Tho answer of tho sheriff charges that Jandot has refused to pay the price, on account of certain mortgages recited in the recorder’s certificate ; and because tho slave Sarah is only a slave for a term of years, or a statu-liber, and not a slave for life ; and that she was advertised, unconditionally as a slave.

Jandot, being called in as a party by the sheriff, makes substantially the same pleas for the non-payment of the price of the slave.

I. As to the mortgage. The recorder certifies that tho slave is subject to a mortgago of $1000, by act passed before Ducatel, notary, dated 6th December, 1841, and recorded on tho 1st of February, 1842, granted by Eulalie Cheval to Edward Jones. This mortgage is recited in the act before mentioned by which the slave Sarah was sold to the defendant. In this act, Theodule Drou-et, of this city, intervenes and declares that, “being the last bearer of the above two mentioned notes of $500 each, forming the amount of $1000, mortgaged in favor of said Edward Jones, he doth by these presents, give a full discharge and entire release of the mortgage mentioned in the certificate hereto annexed.”

We have not before us the act of Dec. 6th,. 1841, in which the mortgage is stipulated, and we do not see ány sufficient connection between this mortgage of 351000 and the declaration of Drouet, to authorise us to determine that it is a lawful release of the mortgage; and we presume the recorder of mortgages came to the same conclusion. At all events, the mortgage is not proved to have been released, and we must consider it as still existing.

The bid of Jandot was for 35600. If the mortgage for 351000 existed, it is obvious that, under the 684th article of the Code of Practice, there was no sale.

II. But if the mortgage did not exist, the plaintiffs situation is not benefitted by it. He can have no rights over the slave mortgaged, other than his assignor the vender, had. In the sale for tire price of which this note is given, there is this condition:

“ The present sale is further made under the express condition, without which it should not take place, that, in case during the space of ten year's from this day, the father of said slave Sarah, Francis Lockwood, should be willing to purchase his said child, Sarah, or, in case of her father’s death, said Sarah should be willing to use the same privilege of purchasing herself, said Mrs. J. D. Bein, duly authorized by her husband, promises and obligates herself, her heirs and assigns, or any other possessors after her, of said slave, to desist of the possession of said Sarah, in favor of her father, said Francis Lockwood, or of herself, his said daughter Sarah, provided he or her should reimburse to said Mrs. Bein, her heirs or assigns, or any lawful possessors of said slave, the above specified sum of 35420, the amount of the present sale.”

By this clause, so far as relates to the vendor and vendee, this slave obtained the privilege of becoming free by purchasing herself in a certain event. If, during the ten year's subsequent to the sale, her father should die, and she pay the sum of $420 to the purchaser, or her assigns, so far as these parties were concerned, the slave, Sarah, would be entitled to her freedom. Civil Code, arts. 37,193, 194, 195, 196.

She became a statu-liber — her condition was thereby changed, and the plaintiff is estopped by his own act from treating her as a slave for life. She was advertised for sale as a, slave unconditionally, and she was, by the plaintiff’s own contract, that is by the contract of which he claims the benefit by assignment, in enforcing the payment of the price by a judicial sale, created a slave for years, and, as such, she ought to have been advertised.

It must be understood, that our opinion of the change of condition of this slave, is confined exclusively to the party before us as plaintiff, and the obligations of the purchaser at the sheriff’s sale.

III. If the mortgage existed there was no sale ; and, if it did not exist, there was no legal advertisement. Either hypothesis is fatal to the plaintiff's pretensions. Judgment affirmed-


author: Slidell, J.

text:
    Pailhes v. Thielen
    Tile return made by a sheriff on a fi. fa. is not conclusive against third persons. Parol evidence is admissible to explain circumstances connected with the proceedings mentioned in tlio return.
    A sheriff in whose hands a fi. fa. had been placed, levied it on certain twelve-month bonds belonging to the debtor, in the hands of another sheriff, who refused to deliver them on the ground that his costs in the action in which the bonds were taken, hadnot been paid. The creditor made no offer to advance the costs, nor propounded interrogatories to the officer in whose hands the bonds were, as a garnishee. In an action against the sheriff for damages, in consequence of his failure to advertise and sell the bonds: Held, that the officer in whose hands the bonds were seized, was entitled to retain them till his costs were paid; and that the facts show no want of diligence on the part of the defendant.
    from the District Court of the First District,

      Buchanan, J. Deslix for the appellant. M'oselius, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Many of the facts connected with this action are recited at length in the case of Simpson v. Allain, decided by the former Supreme Court, in May, 1844. See 7 Robinson, 500.

Referring to the recital there made, we only briefly state, now, such facts as are indispensable to the consideration of this cause, including some that were not in evidence in that suit.

Simpson sued Madame Wiltz and the present plaintiff, on a note. Madame Wiltz was drawer; Madame PailMs was endorser. Judgment was obtained against Madame Wiltz. Simpson issued execution, and the writ of fieri facias-was returned as will presently be stated. Judgment was obtained against Madame PailMs. One Davis paid -the amount thereof to Simpson. Madame-PailMs subsequently reimbursed to Davis the amount he had paid for her.

On the same day that the payment was made to Simpson by Davis, an order of court was made, on Simpson’s motion, subrogating Madame PailMs to Simpson’s lights, on a suggestion that she, as endorser, had paid Sinpson the debt, interest and costs.

The plaintiff now attempts to make Thielen, a former sheriff of the District Court of the First District, liable, on the ground that, through his laches, Simpson failed to collect the money from Wiltz, under his fieri facias — that Simpson-consequently exacted payment of her, the endorser — that she now stands subro-gated to Simpson’s rights — and that the- sheriff is, consequently, responsible to. her for the amount thus paid to Simpson.

The return upon the writ of fieri facias, issued at the suit of Simpson against Madame Wiltz, is as follows: “Rec’d 14th January, 1843. My predecessor had seized, on the same day, in the hands of Valerien Allain, Esqr., Sheriff of the parish of Orleans, two notes or bonds, of Charlotte Gambes, favor of Augier & C. Cabowret, received by the said sheriff Allain, in the case of Adéle Mon-treuil, wife of Evariste Wiltz, v. Moreau, dated 25th June, 1842, at 12 months ;• one for $469,60, and the other for $100. No other property found to seize, after due demand of both parties. Returned 4th Monday of February, 1843.

(Signed,) A. Meynier, Deputy Sheriff. ”

When this writ was received, Thielen was sheriff: before it was returned,. Thielen was superseded in office by Lewis; and this return was made by Leivis? deputy. 'Having established these facts, Thielen offered to prove by several witnesses, what really occured in the execution of the fieri facias. The plaintiff excepted, on the ground that the proposed testimony would contradict the return. The court received it, and the plaintiff took his bill of exceptions. The court below did not err. The return was not made by Thielen, and is not evidence against him. The testimony, moreover, does not contradict, but only explains circumstances connected with .the proceedings stated in the return.

This testimony, thus excepted to, but received by the court, establishes, that Thielen having laid a siezure in Allain’s hands, called repeatedly on Attain to deliver the bonds; and to these repeated demands, Attain, as he had a right to do, refused to accede, on the ground that his costs in the suit of Wiltz v. Moreau, in which case he had received the bonds in payment of the price of property sold by him under -fieri facias, had not been paid. The efforts of Thielen and his deputies to get the bonds, were frequent and earnest. Simpson's counsel called to ask why the bonds were not advertised, and was informed that Thielen could not advertise them, because he could not get possession of them. Simpson did not offer to advance the amount of Attain's costs; he did not, before the expiration of the writ, propound interrogatories to Attain as garnishee, nor did he, or his counsel, express any dissatisfaction with the sheriff’s reason for not advertising. For what was done by his successor in office, it cannot be pretended that Thielen should be answerable; and as far as his own doings are concerned, Thielen appears to have acted with diligence and zeal, and with the knowledge and implied approbation of Simpson, the plaintiff in execution. Even if the subrogation acquired by Madame Pailhes, in the manner already stated, would extend to a cause of action of Simpson against the sheriff, Thielen, for alleged laches, which seems questionable, she could certainly stand on no better footing than Simpson; and Simpson could not, under the evidence, have made Thielen hable.

Judgment affirmed.


author: King, J.

text:
    Haydel v. Roussel, Executor.
    An answer praying for an amendment of tlie judgment "below, filed-on the day on which the case was fixed for trial, is too late. C. P. S90.
    A receipt given by an heir for a certain sum “in full payment of the principal and interest coming to him from a particular succession/' willbe considered, in the absence of any evidence of a contrary intention, as extending to all his claims as heir of the deceased. C. C. S6§„ 1940 § 4. 1942.
    The nullity of a receipt in full and discharge given to a tutor, executed by a minor after her emancipation, by notarial act, resulting from its not having been preceded by the rendering of a. full account and the delivery of vouchers by the tutor ten days previously, as required by art. 355 of the Civil Code, is a relative, not an absolute nullity; and the act must have its effect, even between the parties, until annulled in a direct action.
    'Compensation can take place only where the relation of debtor and creditor exists simultaneously.
    from the Court of Probates of St. John the Baptist, Le Blanc, J.
   The judgment of the court was pronounced by

King, J.

The plaintiff has instituted this action against the testamentary '’executor of her late tutor, CJmstojohe Hijmel* deceased, for the purpose of compelling him to render an account of the tutorship, and to pay over to her the amount of her inheritances from the successions of her grandfather, her mother, and her uncle, which she avers were either received by her tutor or lost by his neglect.

C. Hymel, the grandfather of the plaintiff, died in 1828, leaving four children, viz: Christophe, Benjamin, Jean, and Milite, mother of the plaintiff, and a succession, consisting, among other things, of six promissory notes, falling due respectively in March, 1830, 1831, 1832, 1833, 1834 and 1835. A short time after his death, and before his succession had been partitioned, his son Benjamin also died, leaving as his only heirs his two brothers Christophe and Jean, and his sister Milite, the mother of the plaintiff. The six notes, or their proceeds, were then divided among the three survivors, who were the only heirs of both the father and the brother.

In 1833 Milite died, leaving as her only heirs two children, Amelia, the present plaintiff, and 'Emilie, both minors, to whom then- father, Moise Haydel, was appointed the natural tutor.

The two notes which matured in 1834 and 1835 fell in the partition to Jean Hymel, who died in 1833 or 1834, leaving as his only heirs his brother Chris-tophe, who inherited one half of his succession, and either his sister Milite, or her two children Amelia and Emilie, it does not clearly appear which, who inherited the other half.

Moise Haydel was removed from the tutorship of his two minor children by a decree of the Probate Court, rendered on the 20th June, 1835 ; and on the 4th April, 1836, Christophe was nominated as their tutor by a family meeting, but neglected to take his oath of office, or to furnish bond until the 18th October, 1838. As tutor, he received the two notes of $2,833 33, which became due in 1834 and 1835, which were found after his death in the possession of his agent.

Emilie, the sister of the plaintiff, married in 1842, settled, shortly after that, with her tutor Christophe for her share of her mother’s succession, with the exception of the price of a slave which had not been collected, and in October of the same year died, leaving as her only heirs, her father Moise, who inherited one-fourth of her succession, and the plaintiff, who inherited the remaining three-fourths.

On the 27th July, 1844, Mo'ise made a donation to the plaintiff of his portion of the inheritance from his daughter.

The plaintiff, who is thus the sole representative of her mother, and of her sister Emilie, claims from the succession of her late tutor, Christophe Hymel:

1st. One-half of the succession of her late uncle Jean, including the two notes, each for $2,833 33, due in March, 1834 and March, 1835, which had fallen to him in the partition, with five per cent interest from their respective maturities.

2d. The entire proceeds of the sales of the effects of the succession of her mother Milite, and of those in community between the latter and her husband, averring them to be either the proceeds of the separate property of the mother, <or to belong to her heirs in virtue of her dotal and paraphernal rights.

3d. Her rights and those of her sister Emilie in the succession of their grandfather.

Credits are allowed for the sum of $1,934 37, received from her tutor with five per cent interest from the 5th June, 1840, and for the share of Emilie in the mother’s succession, with the exception of the price of the slave Sarah.

.The answer of the defendant was a general denial of indebtedness, and several pleas in compensation..

The Probate Judge considered that the settlement of Emélie with her tutor, and her receipt, included the succession of the uncle Jean, rejected all the plaintiff’s claims as heir and representative of her sister, with the exception of her portion of the price of the slave Sarah, and decreed to her one-half the nett amount of her mother’s succession, one-fourth of the succession of Jean Hymel, including the two notes of $2,833 33 each, and three-fourths of the price of the slave Sarah, the remaining fourth having been improperly extinguished by compensation as will hereafter appear.

The plaintiff being dissatisfied with the judgment, has appealed. The defendant, in his answer to the appeal, filed on the day that the cause was fixed for trial, asks that the judgment be amended, by allowing several sums pleaded in compensation, which were rejected in the court below. It is objected that the answer comes too late.

The 890th article of the Code of Practice is conclusive upon this point: “ The appellee shall be allowed to file his answer until the day of argument, if he only prays for a confirmation of the judgment with costs; but if he demand the reversal of any part, or damages against the appellant, he shall file his answer at least three days before that fixed for the argument, otherwise it shall not be received.” 7 Mart. N. S. 271. 14 La. 132.

It will not, therefore, become necessary to consider several of the points presented in the appellee’s answer.

The principal contest upon this appeal has arisen upon the construction and effect to be given to the receipt of Emélie to her tutor. The act is dated the 16th April, 1842, and its material clauses are in the following words:

“ Appeared, Chrislophe Hymel, tutor of Amelia Haydel and Emélie Haydel, children and heirs of Moise Haydel and Mélite Hymel, who, in good current money, etc., pays unto F. H. Haydel, and his wife, the said Emélie, hereto authorized, etc. by her husband, the sum of two thousand one hundred and thirty-one dollars sixty-two and a half cents, the amount due by the said Hymel, tutor as aforesaid, to said Emélie, principal and interest; and the said Felix and his wife Emélie, hereby acknowledge the receipt of said sum of two thousand one hundred and thirty-one dollars sixty-two cents, in full payment of the principal and interest coming to them from the succession of the said Mélite Hymel, deceased, wife of Moise Haydel; except, however, so far as relates to the said Emélie's share in the price of the slave Sarah, sold, etc., and the price thereof not yet paid. They, the said Felix and wife, request of me, the judge, to erase the mortgages imposed by law on said Hymel, as tutor as aforesaid, for the amount herein above specified as paid.”

The plaintiff contends that this receipt is to be construed to relate alone to the effects included in the inventory of the mother’s succession, that such was the understanding of the parties, and that there was no intention to relinquish the rights accruing from the successions of the grandfather and uncle.

The defendant, on the other hand, affirms that it is a final settlement, and complete discharge of the tutor from all his liabilities as such, and extends to the successions of the uncle, Jean, and the grandfather.

There is no evidence in the record showing that the intention of the parties differed from the plain and obvious meaning of the language used in the receipt. In the absence of such proof, it must be governed by the ordinary and well-known rules of interpretation : “The intent is to be determined by the words of the contract, when these are clear and explicit, and lead to no absurd consequence.” Civil Code 1940, § 4.

Terms of art, or technical phrases, are to be interpreted according to their received meaning with those who profess the art or profession. Civil Code, art; 1942.

The words of the receipt are clear and unambiguous. Payment is acknowledged in full of the principal and interest coming from the succession of the mother. Succession signifies the estate, rights and charges, which a person leaves after his death. Civil Code, art. 868. Among the rights belonging to the succession of Melite, were, as we have seen, those derived from the succession of her father by inheritance, and these were consequently comprehended in the receipt. No reference is made in the act to the succession of the uncle Jean, nor does it appear whether or not his sister Melite survived him. The doubt and uncertainly in which this material fact has been left, both by the pleadings and the evidence, presents an insuperable obstacle to the determination upon this appeal of all the matters in controversy between the parties. The only testimony touching it is the admission that the deaths occurred as stated in the petition, and the petition does not aver which died first.

If Milite survived Jean, she was one of his heirs ; and, in that event, her succession, at her death, consisted in part of her inheritance from him, and was included in the receipt. But if, on the contrary, Jean survived his sister, one-half of his succession fell immediately to Amelia and Emilie, and is not embraced within the terms of the act.

The difficulty of determining the extent to which the instrument affects the plaintiff’s claims, arises from no obscurity in its terms, but from defect of testimony. We think that justice requires that this branch of the case should be remanded.

In order to escape from the operation of this act upon her claim, the plaintiff contends, in this court, that it is wholly null and void, having been preceded by no rendition of accounts, and delivery of vouchers by the tutor, ten days previous to the receipt, as required by law. Civil Code, art. 355. 2 La. 520.

The right of a party to treat acts of this description as nullities collaterally, was presented to the late Supreme Court, in the case of Collins v. Collins’ Administrator, under circumstances very similar to those of the present, when it was held “ that the act must have its effect until annulled by a direct action.” The nullity was considered not to be absolute, but relative only. In that case, as in the present, the plaintiff was pursuing the representative of his former tutor’s succession, for the amount of his inheritances. 10 La. 269. 9 La. 305.

But the plaintiff is further concluded from now asserting the nullity of the act, by the averments in her petition, in which she treats it as valid, and admits, in express terms, that her sister had settled with her tutor for her share of her mother’s succession, with the exception of the price of a slave. Having acknowledged its validity in her pleadings, she cannot treat it as void in this suit. It must have its effect between the parties, and to determine that effect, further testimony will be necessary.

The court below decreed a part of the plaintiff’s claims to have been extinguished by compensation, under the following circumstances: Christophe, the tutor, was the holder of notes of Moise Haydel, the last of which was prescribed in 1841. Erhilie, the daughter of Moise, died in October, 1842, when he, as one of her heirs, for the first time became the creditor of the tutor. Thus the relation of debtor and creditor never existed simultaneously, and no compensation could have taken place. The effect of the prescription was to extinguish the notes, which could only have been revived by a subsequent contract, and none such has been shown. The compensation, therefore, was improperly allowed, by which the plaintiff’s claim for $45, with interest from the 3d April, 1836, was extinguished. The plaintiff, however, has withdrawn his plea of prescription, as far as relates to this item, and it does not become necessary to correct the error.

£. L. Johnson, for the appellant. Benjamin, for the defendant.

As far as the judgment of the Probate Court has ascertained the claims of the plaintiff in the successions ofh.er mother and uncle by direct inheritance, with the exception of the sum of $45, it has been acquiesced in as correct, and to that extent must be affirmed. But as far as it has determined her rights as the only representative of Emélie, by heirship and donation, we are of opinion it is unsupported by the testimony, and must be sent back for further proof.

It is, therefore, ordered and decreed, that so much of the judgment of the Probate Court as decrees to the plaintiff, the sum of $2,548 83, with legal interest thereon from the 5th June, 1840, until paid, be affirmed. It is further ordered, that so much of said judgment as decrees that the receipt of Emélie Haydel and her husband to her tutor Christophe Hymel, dated the 16th day of April, 1842, was a full discharge of her claims against her tutor for her rights accruing as heir of Jean Hymel, be annulled and reversed, and the cause remanded for the purpose of ascertaining the dates of the deaths of Milite Hymel- and Jean Hymel, and of determining, after having ascertained those facts, the rights of the parties according to the-principles announced in this decree; the defendant paying the costs of both courts.


text:
    Landry v. His Creditors.
    Where the provisional syndic of an insolvent makes himself an inventory of the effects ear rendered, he will not be entitled to extra compensation for his services, though it may have' required several days to complete the inventoiy. His services must be considered as-compensated by his commissions.
    from the Parish Court of New Orleans, Maurian, J.
   The judgment of the court was pronounced by

Slidell, J.

A tableau of distribution having been filed in this case by eastern, the syndic, Jarvis, who had been provisional syndic, filed an opposition. From a decree sustaining a portion of this opposition of Jarvis, the syndic has appealed. The appellant calls upon us to correct the judgment of the' court below, so far as it allows two items claimed by Jarvis, in his opposition.

The first item was thus described in the account annexed to the opposition of the provisional syndic:

“For tailing inventory of goods surrendered, $50.”

The only testimony with regard to this item is as follows i One witness says,, that “ Jarvis took an inventory of the goods surrendered by Landry to his creditors, and contained in bis drug store. It took five or six days to take that inventory.” Another witness, a druggist, says, “he considers the charge.of the-provisional syndic a moderate one, for making the inventory of the drug store in this case. He would not certainly make it for such a small charge.”

Castora, syndic and appellant, pro se. Greiner, on the same side. Winthrop, contrá.

The opponent has not stated this sum, in the account annexed to his opposi-lion, as an expenditure to a person employed by him, nor has he proved such ’ 1 . _ ., . , „ , • . employment, nor its necessity. It would seem, from the mode oi charging this item and from the testimony, that he made the inventory himself. If so, his own services must be considered as covered by his commissions.

It was the opponent’s duty, if the case was otherwise, to allege and show it. We then would have considered the necessity and reasonableness of the disbursement. We think the court erred in allowing this item.

The other item claimed by the opponent was $100, charged as follows in the account annexed to his opposition :

“ Cash paid John Winthrop, attorney’s fees, $100.”

The syndic had only made a provision of $50 for this item, and the opposition of the provisional syndic represents that he had paid to his counsel $100, and asks the reimbursement to himself of what he had thus expended for professional services. Winthrop filed no opposition, nor is he before us either as appellant or appellee. The contest is between the syndic and Jarvis, the provisional syndic; and the question is, shall Jarvis be paid out of the funds of tlie estate the money he has thus paid to the attorney employed by him 1

Testimony was given on both sides, and without exception, on the subject of the reasonableness of the sum thus disbursed, and the extent and nature of the professional services. It is contradictory. The judge below was satisfied that the disbursement was not extravagant. It was a question of fact, and we cannot say that the court below erred.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be so far amended, as to disallow the item of $50 for taking the inventory, and that in other respects, said judgment be affirmed; the appellee, Jarvis, paying the costs of this appeal.


author: Rost, J.

text:
    Stockton v. Craddick.
    The defendant in a rale appealed from a judgment rendered in favor of plaintiffs; but the transcript contained no copy of the proceedings and judgment in an action which the nature of the rule .showed must have been produced by the plaintiffs on the trial, and the certificate of the clerk showed that no such copy had been filed in the cause. Held, that the appellant cannot be made responsible for the neglect of the plaintiffs, and that the judgment must be reversed, and the case remanded for further proceedings.
    from the Commercial Court of New Orleans, Watts, J.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sued out two writs of attachment on notes of the defendant, and the sheriff attached under them town lots supposed to belong to the said defendant. The latter made a full appearance, by his attorney; tho causes were tried separately, decided in favor of the plaintiff, and the attachments maintained.

On motion of defendant’s counsel, a new trial was granted in both cases, and they were afterwards consolidated.

The consolidated cases were subsequently tried, and decided in favor of the plaintiff, for the whole amount of his claims, with interest from judicial demand.

During the pendency of this suit, T■ R. Hyde and J. P• Clapp, judgment creditors of one J. J. Hall, gave notice to the plaintiff in this suit that the lots attached by him were the property of Hall, and that they had instituted a suit in the District Court for the purpose of avoiding the sales under which the defendant claimed, on the ground of simulation. After the judgment rendered in the consolidated cases, Hyde and Clapp came into court and took a rule on the plaintiff to show cause why the attachments levied in the two cases should not be set aside and dismissed, on the following grounds:

1st. That the property attached has been decreed by the District Court to be the property of J. J. Hall, and liable to execution in favor of the plaintiffs in intervention, and that the several conveyances from J. J. Hall to the defendant have been decreed to be simulated.

2d. That the judgments obtained by the plaintiffs in intervention against J. J. Hall were recorded, and operated as a mortgage upon the property attached, before the levy of the attachments.

3d. That while the suit to annuli the sale was pending, and before judgment, the plaintiff in this case was notified of said suit.

This rule was continued, by consent, from time to time, and no objection as to the manner of proceeding appears to have been made by the plaintiff’s counsel. It was finally made absolute, and the attachments set aside.

The plaintiff appealed from the judgment in the consolidated suits, and also from the decree making the rule absolute.

The record comes up with a certificate of the clerk that it contains a transcript of all the proceedings and of all the documents, except tire laws of the S tate of Mississippi, filed in the cause wherein Richard C. Stockton is plaintiff and Joseph N. Craddick is defendant. The judge certifies that the transcript of the record contains all the evidence, with the exception made in the clerk’s certificate, adduced by the parties on the trial of the cause in the first instance. Upon examing the record, we find that it contains none of the evidence adduced' on the trial of the rule between the plaintiff in the suit and tire plaintiffs in intervention. From the nature of the rule, however, the proceedings and judgment in the case of the plaintiffs in intervention against Craddick must have been produced by them on its trial. As it appears from the clerk’s certificate that they were not filed, the appellant cannot be made responsible for their neglect. We concur in the opinion of the late Supreme Court in tlio case of Escurieux v. Chapduc, 4 Rob. p. 325. This branch of the cause must bo remanded.

In the appeal between the plaintiff and defendant, the defendant prays for a' reversal of the judgment. The court of the first instance was of opinion that the claims of the plaintiff were fully sustained, and that the special defences set up by the defendant, were not proved in a manner to entitle him to relief. After a careful perusal of the evidence we are satisfied the judge did not err. The failure of consideration is not proved, and the only fact satisfactorily established by the defendant is, that his credit was bad when his notes became due.

The plaintiff having abandoned the ground upon which he appealed against the original defendant, must pay a portion of the costs.

It is, therefore, ordered and adjudged, that tho judgment rendered by the court of the first instance, between the plaintiff and defendant,tbe affirmed, and that the judgment making the rule absolute be recorded, the attachments reinstated, and tins cause remanded to be proceeded in according to law so far as the original plaintiff and the plaintiffs in intervention are concerned, each paying one half of the costs of this court.

Stockton, appellant, fro se. Steele, on the same side. Mott and Micou, contri.


text:
    Lefebvre, Syndic, v. De Montilly.
    To support the plea of res judicata the judgment must be between the same parties, and the cause of action the same.
    Creditors have a right to cause to be set aside all conveyances made by an insolvent, within the three months next preceding his failure, which give an unjust preference to one or more of his creditors. Whenever an action is commenced to set aside a conveyance alleged to have been made under such circumstances, it is for the defendant to show that the property was sold to him for a true and just consideration, by him delivered, bona fide, at the time of such sale or transfer. Stat. 20th February, 1817, s. 24.
    from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Rost, J.

The syndic of the creditors of the defendant’s husband has instituted this action against her to set aside a sale, or elation en paiement, of immov-ables and slaves, made to her, by her husband, twenty days before his voluntary surrender to his creditors.

He alleges that Louis Lefebvre, a judgment creditor of the insolvent, made opposition to his discharge, and charged him with fraud in this transaction, that a jury found the said insolvent guilty of fraud, and that the judgment of the court was in conformity with law on such a verdict.

The defendant avers that the sale complained of was made to her in good faith to pay a part of her dotal and paraphernal rights and separate estate; that the judgment obtained against her husband in the District Court by Louis Lefebvre, on his opposition to the discharge of her husband on the ground of fraud, by reason of this conveyance to her, has been reversed by the Supreme Court, and her husband fully acquitted. See 18 La. p. 383. She maintains that this judgment has the effect of res judicata between her and the plaintiff.

This action was dismissed in the District Court, and the plaintiff appealed.

The plea of res judicata cannot be maintained. The plaintiff was not made a party to the former suit, and the proceedings had therein were in relation to him res inter alios acta. Besides this, the cause of action was not the same.

The legislature has seen fit to attach a penalty to the commission of fraud by insolvents against their creditors. It was the object of the judgment creditor to enforce that penally in the former suit; he succeeded in the court of the first instance, but, on appeal, the Supreme Court reversed the judgment, on the ground that what had been done by the insolvent was done openly and publicly, and that the creditors were apprised of it by the Ulan in which the transaction complained of was described in all its details. The court was of opinion, that in order to constitute fraud, two conditions are necessary — the intention of defrauding, and an actual loss sustained by the creditors. They reversed the judgment,, because the fraudulent intent was disproved by the acts of the insolvent. But the eventus damni remains to be litigated between the creditors and the present defendant, and forms the object of this suit.

Grivot and Costera, for the appellant. Canon, for the defendant.

Creditors have the right to cause to be set aside all conveyances made by the insolvent within the three months next preceding his failure, giving an unjust preference to one or more of the creditors. Whenever such an action is instituted, it is incumbent upon the defendant to show that the property was sold to him for a ti-ue and just consideration, by him bona fide delivered at the time of such sale or transfer. Act of 1817, s. 24.

The giving in payment complained of was passed en tiempo inhábil, and the defendant has not brought herself within the proviso of the section above referred to. We will leave her claims against her husband to be proved in the general administration of his assets; but the giving in payment from her husband to her must be avoided.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the sale or giving in payment made to the defendant by the insolvent De Montilly, on the 30th November, 1840, by act passed before Jules Mossy, a notary public, be annulled and avoided, and the property conveyed by it delivered to the plaintiff to be disposed of according to law; reserving to the defendant the right to litigate and establish in the general con-curso of the creditors, any claims she may have against her husband, or upon the property surrendered by him. It is further ordered and adjudged that the defendant pay the costs in both conrts.


author: Kwe, J.

text:
    Hadwin v. Fisk.
    The general mortgage resulting from the registry of a judgment in the office of the recorder of mortgages, cannot, without the consent of the judgment creditor, be restricted to any particular real property, though freo from encumbrance and more than sufficient to secure the debt. The stat. of 11th March, 1830, relative to tutors and curators, gives no authority to any court to change or impair the security which the law gives to a judgment creditor.
    from the Commercial Court of New Orleans, Watts, J.
   The judgment of the court was pronounced by

Kwe, J.

The plaintiff obtained a judgment against the defendant, which he caused, immediately upon its rendition, to be inscribed at the office of the recorder of mortgages. The defendant, thereupon, took a rule, upon the plaintiff to show cause why the general mortgage thus recorded should not be raised and restricted to certain real property, which he 'avers tobe free from incumbrance, and ample to secure the amount of the judgment. A notary was appointed to inquire into the title to the property proposed to be specially hypothecated, and to ascertain whether it was free from incumbrance. His report upon the matters thus referred to him proving to be satisfactory, the rule was made absolute, and a decree rendered ordering the property described in the rule to be specially mortgaged in favor of the plaintiff, for the purpose of securing the amount of his judgment, and further that the recorder of mortgages should giant certificates that the remaining property of the defendant was free from any mortgage resulting from the plaintiff’s judgment. From this judgment the plaintiff as annealed.

C. M. Jones, for the appellant. Elwyn and Roselius, for the defendant.

The judge founds his decision upon the act of 1830, relating to tutors, which b® cons^0rs has introduced a new principle into our jurisprudence, .and confers authority upon courts to give relief to parties whose property is affected by general mortgages, by substituting special hypothecations, when this may be done without injury to the creditor. We think the court erred. A judgment becomes, as soon as it is pronounced, the property of the person in whose favor it is rendered, takes effect as a mortgage from the day when it is duly recorded, and may be enforced upon all the immovables and slaves which the debtor owns or subsequently acquires. These rights remain untouched by the act of 1830, the proper interpretation of which does not, in our opinion, vest courts with authority to diminish, or in any manner impair, or change, the security which the law gives to .the creditor resulting from judgments. It is, therefore, ordered that the judgment of the Commercial Court be annulled and reversed, and that the .rule be discharged; the defendant paying the costs of both courts.


text:
    Gueno et al. v. Soumastre.
    Whore the right'fcfexact payment of anoto is made to depend upon a condition, prescription will not commence until the condition Iras been fulfilled. Prescription does not begin to run tmtU'aright'of action has accrued.
    from the District Court of the First District, Buchanan, J.

      JD., and J. Seghers, for the plaintiffs. Morel, Canon and Preston, for the .appellants.
   The judgment of the court was pronounced by

King, J.

Mathieu Queno died in the year 1835, leaving, as his only heirs, three children, viz : the defendant, who was of full age, and the two plaintiffs, who were minors. Felix de Armas was appointed tutor to the latter.

■On the 6th January, 1838, the effects of the deceased were sold at public auction, pursuant to an order of the Court of Probates, when three lots of ground were adjudicated to the defendant for $6450, of which sum one-tenth was payable in cash, and for the remainder the conditions of the sale required that notes should be given satisfactorily endorsed, payable at twelve and eighteen months, with ten per cent interest after maturity, and their payment secured ;by a mortgage upon;the adjudicated property;

On the 26th of December, 1838, the defendant and Be Armas, the latter acting as the tutor of the minors, entered into a notarial act, in which, after reciting the previous probate proceedings, the adjudication to the defendant, and her desire that a formal transfer should be made to her of the three lots, or rather of two-thirds of them, as she already owned one-third by right of inheritance, a formal sale was passed to her. They proceed to state that the adjudication to her amounted to $6450, and that the sum for which she would be accountable would, consequently, be $4300; but, in as much as none -of the debts of the succession -had .as yet been paid, and as F. Be Armas was charged by Mrs. Soumastre with the final settlement of the affairs of the succession, it was. agreed fhat'Dc Armas should receive the cash, and the proceeds of the notes arising from'the sales to strangers; that an interest account should be kept between tho parties, at the rate of five per cent upon the sums that the defendant should have to receive or pay in cash; that Mrs. Soumastre should furnish her notes for the full amount of her purchases, less the tenth payable in cash; that De Armas should effect as soon as possible a settlement of the succession; whereupon Mrs■ Soumastre should furnish new notes for the amount which she should be found to owe to the minors, and that these should be secured by a mortgage upon the adjudicated property.

Pux’suant to the stipulations of this actj'two'notes for the balance due on the adjudication were given by the defendant, payable to the order of De Armas ; and this payment, as well as that of the tenth required in cash, and such other sum as might be found upon a final settlement to be due to the minors, was secured by a mortgage. These notes appear to have been left in the hands of the notary before whom the act was passed, from whence they were not withdrawn for several year’s.

De Armas died without having settled the succession of Gueno, or collected the notesjmade by the defendant, or rendered an account of his tutorship. The plaintiffs instituted suit against his succession, from which, as it proved to be insolvent, only a part of their claim wash-ecovered. They now aver'that their father’s succession is composed of the sum thus recovered, and of the sum retained by Mrs. Soumastre,|of which they claim two thirds, and allow as a credit the amount collected from De Armas’ succession.'

The defendant contends that this suit must necessarily be based upon the two notes, which are the only evidence of her indebtedness, and that these .have been extinguished by prescription, the last having matured in July, 1839, whereas this suit was not instituted until January, 1845.

This plea of prescription presents the principal issue in the cause, and would be fatal to the claim of the plaintiffs, but for the act of 26th December, 1838.

The evident intention of the parties to that instrument appears to us to have •been, that the notes given by the defendant should remain in the hands of the tutor, who was also defendant’s agent, and should not be exigible until a final settlement of the succession had been made, as her indebtedness to her co-heirs ■could not be determined until this had been effected. This was a condition upon which the collection was made by the contract to depend, and it has never been fulfilled. If suit had been instituted upon the notes previous to the settlement stipulated in the contract, it is admitted by the defendant that the proceedings could have been enjoined; and the principle is well settled that until the right of action has accrued prescription does not commence to run. No such final settlement appears ever to have been made; until it was made the right of action remained suspended, and with it the prescription. 2 Mart. N. S. 432, 433, and the authorities there cited. Merlin, Repert. verbo Prescription, § 17.

The defendant pleaded in reconvention several sums of money expended for improvements made upon the property adjudicated to her, taxes paid, and an account for the board of the plaintiffs. These claims were properly rejected. The improvements were made and taxes paid upon properly of which the defendant was the owner, and the claim for board is not supported by the evidence.

Judgment affirmed.

       The judgment below was in favor of the plaintiffs for $3,428 55,¡with interest, and a special ■mortgage on the property purchased.


author: Ecjstis, C. J.

text:
    City Bank of New Orleans v. Walden.
    To support a plea of lis pendens, tlie cause of action in the two suits must bo allegad and shown to be the same.
    The stat. of 10th March, 1834, for the further assurance of the titles of purchasers at judicial sales, relates only to informalities in the decrees under which judicial sales are made, or in the proceedings connected with such sales. It extends only to matters of form, and does not operate on any matter dehors the proceedings.
    A judgment dismissing a bill in chancery, rendered on a demurrer which embraced the whole merits of the case, will support a plea of res judicata.

    APPEAL by the assignee of Walden, a bankrupt, from a judgment of the District Court of the First District, Buchanan, J., dismissing an opposition made by the assignee to the homologation of a monition sued out by plaintiffs.

      Lockett and Micou, for the plaintiffs. G. W. Christy, F. B. Conrad and Hoffman, for the appellant.
   The judgment of the court was pronounced by

Ecjstis, C. J.

The City Bank of New Orleans, having pm-chased certain real estate in the Second Municipality at sheriff’s sale, applied, on the 23d of January, 1843, to the District Court for confirmation of their title, under the monition law of 1834.

The sale was made under an order of seizure and sale issued from said court, at the instance of the appellees, against Daniel T. Walden, on the 27th June, 1842.

The confirmation of the sale was opposed by the assignee of Walden. The opposition, which was filed on the 28th February, 1843, alleged that a suit was then pending before the District Court of the United States for the Eastern District of Louisiana, between the assignee of Walden, in bankruptcy, and the Appellees, in which the assignee was claiming this very real estate because of certain defects in and the nullity of said pretended sheriff's sale, and averred that until the decision of that suit no proceedings can be had in relation to the monition.

The opposition then states that, on the 18th of June, 1842, Walden applied for the benefit of the bankrupt law, and, on the 18th of July following, was decreed a bankrupt; that this real estate formed part of his property surrendered to his creditors; that the appellees acquired no valid title to the real estate purchased, by reason of the bankruptcy of defendant, the sale having been made subsequently to the application of Walden in tile bankrupt court.

The opposition goes on to charge the consequences of the application for bankruptcy on the rights of the appellees as creditors, as affecting the validity of the sale in question; that the appellees had full knowledge of the proceedings; that there was no proper party to the proceedings under which the sale was made, after the application of Walden to the bankrupt court; and that the real estate was sold without the formalities required by law for the forced alienation of property.having been complied with. It contains other allegations, mostly inferential, which it is not material to the present inquiry to repeat. The appointment of the assignee is not questioned.

On the 6th June, 1845, this case came on for a hearing before the District Court.

The suit in the District Comí of the United States, which the assigneo had pleaded as lis 'pendens, was, in May, 1845, decided against the assignee.

The bill of the assignee, on a demurrer which embraced the whole merits of the case, had been dismissed.

Where a suit is dismissed upon a hearing on the merits, it is ordinarily a ^ar to another bill; but where there is a reservation without prejudice, or the grounds of the dismissal are some defect of form not going to the merits, it is no bar to a suit for the same subject matter. Story’s Equity Pleadings, § 456, and notes.

There was then an end of this suit, and it could present no longer any impediment to the decision of tire court, under the monition law of 1834.

The assignee of Walden then made application to the District Court for leave to assign a further ground of opposition to the confirmation of the appel-lees’ title, and that was that a suit was then pending, which the counsel for the assignee stated had been filed the day before, in the Circuit Court of the United States for the Fifth Circuit, Eastern District of Louisiana, between the assignee and the appellees, in which the assignee claims the real estate in question, and that the validity of the appellees’ title, and the legality of the sheriff’s sale of the 27th June, 1842, are therein contested and put at issue. This was assigned as a cause for suspending any further proceedings in relation to the confirmation of the title of the appellees.

The District Court overruled this application. The opposition of the nssignee was afterwards dismissed, and the sheriff’s sale homologated and confirmed.

In our opinion the District Court did not err, in refusing to allow the assignee to file his additional opposition as before recited.

In order that the existence of another suit should, in any event, suspend proceedings like these, it certainly must be alleged to be for the same cause of action. There is no such allegation — the assignee claimed the property itself, and the inquiry in the suit in the Circuit Court relates to the validity of the appellees' title, and the legality of the sheriff’s sale. In what respect was the sale illegal ? What is the illegality complained of? Was it of form, or substance? The monition act only purports to cover illegalities of form, and these were not alleged to be in controversy in the Circuit Court suit.

Take the allegation of the assignee, that there was no proper party to the proceedings under which the property was sold, subsequent to the application in bankruptcy. This is an illegality in the sale, on which the assignee of course relies, as he has formally alleged it. But this defect, if it existed, would not be covered by the monition act. It is clear that whenever a plea of Us pendens is made, the identity of the causes of action in the two suits must be alleged, and not left to inference and conjecture. In this case there is no such allegation, and the application of the assignee ought not to have been allowed.

There are other grounds on which we should come to the same conclusion. After the termination of the suit in the District Court, the case rested on the issues made up by the assignee in his opposition, and it was not competent for him, by instituting afterwards a suit in another court, to prevent the action of the District Court in a matter of which it had lawfully jurisdiction and cognizance.

The monition act of 1834, under which the present proceedings are instituted, was passed for the protection of Iona fide purchasers at judicial sales from litigation concerning matters of form, a non-observance of which by public officers frequently exposed purchasers to unreasonable and vexatious suits. The difficulty of administering and preserving proofs of the observance of formalities,. rendered oases of this kind, in the hands of the unscrupulous, the instruments of great annoyance and expense to those who had purchased and paid for property exposed for sale under the authority of our courts.

This law relates to informalities in the decrees under which judicial sales are made, and to irregular, illegal and defective proceedings connected with the sales.

We do not understand the operation of this act to extend beyond matters of form, nor that it purports to operate on any matter dehors the proceedings. 12 La. 560. 16 La. 590.

So far as relates then to the subject embraced within this law, and which is now before us, we find the sale legal and regular.

Were we to go out of this law, and consider the other matters urged by the assignee in his opposition, we should oppose to him the judgment of the District Court of the United States on his bill, which we have before noticed, and which stands as res judicata in favor of the title of the plaintiffs and appellees.

All the allegations of the opposition are re-stated in this bill, as grounds for defeating the appellees’ title under the sheriff’s sale. The judge, in his opinion in this case, considers the proceedings under the order of seizure and sale as not affected by the proceedings in bankruptcy.

Judgment affirmed.


text:
    Newman v. Wilson et al.
    A sheriff of another State may sue to recover sequestered property fraudulently taken out of his possession, and he will be entitled to recover the amount of the expenses he has been compelled to incur in order to recover it.
    from the District Court of the First District, Buchanan, J.

      Huston and Finney, for the plaintiff. Durant, for the appellant.
   The judgment of the court was delivered by

Slidell, J.

The plaintiff alleges that, as sheriff of Adams county, in the State of Mississippi, he had levied a writ of attachment in the suit of one Cartwright against the present defendant, McNamar, upon certain timber, which he took into his possession, and appointed Wilson, also a defendant in this suit, as keeper, to take charge of and retain possession of the property under the writ. That Wilson and McNamar together, fraudulently carried off the timber, and brought it to New Orleans. He claims damages, asks for a sequestration of the timber, and also a decree restoring the property to him.

The defendant McNamar, pleaded that the petition exhibited no cause of action, which plea, we think, was properly overruled, for the sheriff had certainly a right to bring suit to obtain possession of property thus fraudulently taken from his official custody, and to recover damages for the expense he had been put to in pursuing the property. See Sewell on Sheriffs, p. 429. The pretence that the sheriffs own deputy assisted in carrying off the property, and that, therefore, the action cannot be maintained, is absurd ; for it is alleged that the conversion was the fraudulent act of the deputy and McNamar. The plaintiff appointed him to take care of the property, and the running away with it was a violation of duty in which McNamar is alleged to be a fraudulent participant, and must be considered also as tho instigator, being the owner and defendant in attachment.

Tlie defendant bonded the properly, and, pending tho cause, paid Cartwright, the attaching creditor, tlie amount of his claim, so that when the cause camo to trial, the only subject of litigation was the claim of damages. The evidence shows that the plaintiff had been put to tlie expense of sending a special agent from Mississippi in pursuit of the property, who, on finding it here, instituted this suit. The expense of retaining counsel to conduct the proceedings was also shown. The court gave judgment in favor of the plaintiff for $ 171 and costs of suit against McNamar, who has appealed. The damages thus awarded we consider reasonable.

Tlie only other matter requiring notice is, a bill of exceptions taken by the defendant McNamar, to an order of court, compelling him to answer certain interrogatories going to establish the official capacity of the plaintiff, and tlie institution of proceedings in the attachment suit in Mississippi. We deem it unnecessary to pass upon the bill of exceptions, otherwise than by saying that these facts were sufficiently established by other testimony to which no exception was taken. Judgment affirmed.


text:
    Bank of Louisiana v. Farrar et ux.
    Sect. 32 of the stat. of 7th April; 1824, incorporating the Bank of Louisiana, which authorizes a wife, arrived at the age of majority, to bind herself jointly and in solido with her husband, in any hypothecary contracts or obligations entered into by her husband with, or in favor of the bank, according to the true intent and meaning of the charter, was not repealed by the subsequent enactment of art. 2412 df the Code of 1S25. That article made no change in the existing law. As to the power of the wife to hind herself with her husband, there is no difference between the 61st law of Toro, and art. 2412.
    Sect. 32 of the charter of the Bank of Louisiana, which authorizes a wife to hindherself jointly or in solido with her husband, in hypothecary contracts or obligations entered into by any individual with or in favor of that bank, does not limit such authority to contracts authorized by the 13 th paragraph of the 15th section of the charter. It empowers the wife to bind herself in any contract which any individual may lawfully make with the hank under its chav, ter. The words “ according to the true intent and meaning of this act” in the 32d section, refer to all mortgages which the hank may, under its charter, lawfully taire, and not merely to loans made under the provision in the 13th paragraph of the 15th section.
    PPEAL from the District Court of the First District, Buchanan, J. j£1l Plaintiffs allege that Preston W. Farrar and his wife, on the 19th April, 1838, in the State of Mississippi, acknowledged themselves to be jointly and severally indebted to them in tíre sum of $29,000, being for a loan of money made to them on that day by plaintiffs; which they promised to pay on tho 19th April, 1839, executing their joint and several bond for the amount, and mortgaging a plantation and slaves in the parish of Rapides, to secure the payment thereof. Plaintiffs allege that defendants have repaid but a small part of said loan, leaving a balance due of $27,472 53, with interest at nine per cent a year from the 19th April, 1840. The bond and mortgage were annexed to tho petition, and both recite that the debt was contracted for “a loan of money this day made to us by said corporation,” &c. The answer of Eliza J. Farrar, admitted that the bond and mortgage were signed by her; averred that, as to her separate property and her matrimonial claims upon the property of her husband, the bond and moitgago wore null and void; that one undivided half of the plantation and slaves so mortgaged, was her separate paraphernal property, inherited from her father; that, at the time of signing tho bond, she was in no manner indebted to the petitioners; that she has never, at any time, directly or indirectly, by payment to herself or to any agent, received any loan from them, nor any benefit from any such loan; that the bond and mortgage were not given to secure any loan or discount made by the petitioners to herself or to her husband, as is untruly stated therein, but to secure a debt due by her husband to Hermann, Briggs & Co., a commercial firm in New Orleans, who, being indebted to tho petitioners, transferred to them the debt due by her husband; that the said bond and mortgage were executed in violation of the petitioners’ charter, and of the settled policy of the State, which will not permit a wife to become the surety of her husband; that when she executed the mortgage, she was entirely ignorant and uninformed of its nature and effect upon her own- rights; that it was not read to her before she signed it; and that she was not informed by the judge, at any time or in any .manner, of the nature- of her legal rights, and- of the obligations and renunciations contained therein; and that she did not declare to the judge that she wished to avail herself of the act of 27th March, 1835, as is erroneously stated therein. She prays for judgment in her favor, and to be-dismissed with costs.
    P. W. Farrar made no defence, and a judgment by default was confirmed' against him.

      llsley, a witness for the defence, stated that he was the- general agent and corresponding clerk of Hermann, Briggs & Co., and had the whole charge of their office; that the defendant, P. W. Farrar, had'an account with them, which was settled on the 26th May, 1838, when they gave him credit for $24,443 25, the proceeds of notes discounted for his benefit in the Bank of Louisiana; that P. W. Farrar obtained a loan from the Bank of Louisiana, the amount of which was transferred to Hermann, Briggs Sf Co., who, with the proceeds, paid a debt which they owed to the bank; that P. W. Farrar did not draw any portion of the proceeds of the loan from the bank; that Hermann, Briggs Sf Co., had failed; that the loan was obtained by a mortgage of real estate, executed by Farrar and his wife; that the bank delivered to Hermann, Briggs & Co., their notes for the amount of the loan to Farrar, with the exception of $818 83, which was-passed to the general account of Hermann, Briggs Sf Co.,- that when the settlement was made, and Hermann, Briggs Sf Co. gave P. W. Farrar credit for $24,443 25, there was a balance in his favor of $3,520 10, which was settled by their giving P. W. Farrar notes from their port-folio for the amount. A series of letters from Hermann, Briggs Sf Co. to P. W. Farrar, written shortly before the loan was negotiated, were offered in evidence, urging Farrar to obtain the loan from the bank, for the purpose of paying off the debt which he owed to them. This testimony of llsley was excepted to by plaintiffs as inadmissible to contradict the declarations of the defendants made by notarial act, but was admitted by the court.
    There was a judgment below against the defendants in solido, for $27,472 53, with interest at nine per cent a year from the 19th of April, 1840-, till paid, with a mortgage on the property described in the petition. The defendants appealed.

      L. Peirce, for the plaintiffs.
    The testimony of llsley was inadmissible. The defendant E. J. Farrar was authorized to bind herself. There is no evidence of any of her separate property having been mortgaged, nor of any peculiar arrangement with the Bank of Louisiana as to tho loan made in this case.

      P. Hunt, for Ü10 appellants.
    1. By art. 2412 of the Civil Code, a wife cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.
    "When the law incapacitates persons from malting contracts of a particular kind, its provisions eannot be evaded by giving to those contracts a different form from that forbidden by law, where, in substanee, the contract is that prohibited. It will not permit that to be done indirectly, which it forbids to be done directly. 8 Mart. N. S. 693. 7 Ib. N. S. 251, 64, 341. 5 Ib. N. S. 431. 4 Robinson, 509.
    .2. It is said, that the 82d section of the charter of the bank furnishes an exception to the rule, that a wife cannot bind herself for her husband’s debts. Granted; but, being in derogation of the general policy of the State, this section must be construed strictly. This section declares that, “ In all hypothecary contracts or obligations entered into by any individual with or in favor of the said president, directors and company of the Bank of Louisiana, according to the true intent and meaning of this act, it shall be lawful for the wife of such individual to'bind herself jointly and in solido with him; and in such case the property and rights of the said wife, either dotal or of any other description, shall be affected by said contracts or obligations ; provided,” etc. ‘
    Upon’’this it is to be observed: 1st. That the property of the wife can only be affected by the hypothecary contract or obligation; and 2d. That the hypothe-cary contract must be entered into, “ according to the true intent and meaning of this act.”

    Now, in-order to determine this intent and meaning, and to give due effect to these words of the act, we must examine the other provisions of the charter. The 15th section of the charter lays down certain rules, whieh it declares “shall form and be fundamental articles of the said corporation.” The 13thrule under this section, is in the following words : “ Two millions of the capital stock of this bank, shall be appropriated to the sole purpose of being loaned upon notes or bond secured'by mortgages on immovable property,” etc. The hypothecary contracts entered'into with the bank, according to the true intent and meaning of its charter, as described in the 32d section, are, therefore, such contracts as are described in this rule; in other words, to use the language of the 13th rule itself, they are notes or bonds secured by mortgages on immovable property upon which money is loaned by the bank.

    The loan of money is essential to the validity of the contract. It must be a direct and bond fide loan — such a loan as the 13th rule of the 15th section specifies, and.none other. The'legislature has so .limited and restrained the exception in favor of the bank.
    3. Was there such a loan made by the bank to P. W. Farrar and his wife, as the charter of the bank contemplates ? There was not. The evidence shows that the bank had loaned a large amount to Hermann, Briggs & Co., and was anxious to secure the payment of it. Preston W. Farrar was indebted to Hermann, Briggs Sf.Co. on his separate, personal and individual account. The object and motive of the bank were to obtain a substitution of solvent persons for Hermann, Briggs Sf Co., who were under protest. Hermann, Briggs & Co. transferred the debt of Farrar to the bank; and the bank agreed .to aceept the same, upon the condition that Mrs\ Farrar's property should be mortgaged to secure the payment of her husband’s .separate and individual debt. The transaction was made to assume the form of a loan, or discount on a bond secured by mortgage of Mrs. Farrar's property. The discount, so far as the defendants were concerned, was merely nominal. Not one dollar was paid to Farrar or bis wife. A pr^ forma check was drawn to the order of Farrar and wife, and was endorsed by them; and tho bank transferred tho amount of the bond to the credit of Herman, Briggs Sf Co. on the books of tho bank. Tho amount of Farrar’s indebtedness to Hermann, Briggs Sf Co. was less than the amount of the bond discounted ; they, therefore, opened their portfolio, and gave him notes for the difference between tho bond discounted and his note to them.
    By these means, it was hoped that tho mortgago of Mrs. Farrar’s property, •would secure the ultimate payment of tho debt due by her husband to Hermann, Briggs Sf Co., which they had transferred to the bank; and that tho bank, by this species of novation or substitution, would receive tho amount duo by Her-mann, Briggs Sf Co., and render Mrs. Farrar liable in fact for her husband’s indebtedness.
    Will the court enforce this contract, and render her thus liable ? Is tho trans.action a bond fide loan on a hypothecary contract, according to the true intent and meaning of the charter of tho bank ? She calls upon the court to protect her, and not to suffer her to become the victim of this management on the part of the bank and its creditors; to preserve her rights, in conformity with the set•tled policy of the Stato; and not, by extending an exception beyond its express and reasonable limits, to overturn the genoral law of the land.

      H. A. Bullard, on the same side.
    1st. In the construction of statutes effect is to be given to every word, if possible. The expression, “according to the ■true intent and meaning of this act,” cannot be rejected as surplusage. Only bond fide loans to husband and wife, to bo reimbursed in five annual instalments, are embraced. In such cases, and to such extent only, is the incapacity of the .wife removed, or modified.
    2d. Laws made in derogation of prohibitory statutes are to be strictly construed as relates to disabilities, and will not be extended beyond the cases expressly embraced within them. See 11 Peters, 420. Suppose a minor engaged in commerce authorized to mortgage his estates for a loan of money, could he validly contract a mortgage as security, and to pay a pre-existing debt of his partner, due to the lender himself?

    3d. The charter authorises the wife to bind herself jointly, or jointly and severally, with her husband, for a loan, presumed to be for the joint benefit, to furnish means to be employed advantageously for the community.
    4th. The section of the charter which defines the powers and capacities of the bank, gives it generally a capacity to take security by mortgage. This is not a corporate franchise, but merely a capacity in common with natural persons of .full age, necessarily implying that such mortgages may be stipulated with persons capable, according to lawfor the time being, to mortgage their property.
    5th. The contract is not a loan within the true intent and meaning of the charter. The lender was the creditor of P. W. Farrar, and no money was paid. It was turned over to pay the pre-existing debt — a mere novation. The form only of a loan was given it, to disguise the payment and the husband’s debt, and to evade the prohibitory clause of the Code, art. 2412. The question is, to what extent has the charter modified the incapacity of married women ?

      6th. The law existing in 1824, and in force when the charter of the Bank of Louisiana was passed, to wit, the old Code, provided that a corporation might be repealed entirely by the legislature, if necessary or convenient for the public interest, provided that when such corporation imports a contract upon the faith of which individuals havo advanced monoy or engaged llioir property, provision is made to reimburse such advances, or for making full indemnity to such indi-victuals. Civil Code, art. 438. Tho bank was established on that condition.
    A privilege to raise monoy by lottery, unlimited as to time in the grant, may bo limited by the legislature, without violating a contract, or infringing upon any vested right. It did not form a part of the contract between tho State and the bank, that married women should always bo capablo of contracting, whatever mischiefs might result from such a capacity. 3 Story on the Const. 1386.
    See the Lottery caso in 2 Robinson, 273. 3 Howard, 550.
    7th. The new Civil Code has repealed the clause in the charter of the Bank of Louisiana. The Code was promulgated in 1825 ; tho charter in 1824.
    8th. Courts will look to the real character — the essence of contracts, and not stick at the external forms. Where a series of transactions between A. and B. began with a loan of money on mortgage, and ended with a vente d remiré, tho sale will still be regarded as nothing but a mortgage in disguise. Contratpig-noratif. Merlin, Questions do Droit, verbo Contrat Pignoratif, 278. Fa-culté de Rachat, 108. Patterson v. Bonner, 14 La. 215.
    9th. The bank has no vested interest in the capacity of any class of persons to enter into particular contracts with it. The capacity of particular classes of persons depends absolutely on the will of the legislature. The Code is not unconstitutional. The charter modified the previous law. The Codo declared a complete disability, and repealed tho charter quoad the capacity of married women to contract. See Hyde v. Planter’s Bank, 8 Robinson.
    10th. Renunciation before a notary public now essential to bind married women. B. and C.’s Digest 553.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 19th of April, 1838, at Woodville, Wilkinson county, State of Mississippi, Preston W. Farrar and his wifo acknowledged themselves to be jointly and severally indebted to the plaintiffs in the sum of $29,000, for a loan ofmoney stated to have beenon that day mado to them by the plaintiffs, which they acknowledged to have received, and which they bound themselves to pay on the 19th of April, 1839, fixed. To secure tho payment of this debt, on the same day and at the same place, the parties mortgaged to the plaintiffs a certain plantation and slaves in the parish of Rapides.

The plaintiffs contend that, under the 32d section of the charter of the Bank of Louisiana, Mrs. Farrar bound herself jointly and severally with her husband, amd that her rights and interest in the property mortgaged are affected by this obligation. The section reads as follows: “In all hypothecary contracts or obligations entered into by any individual with, or in favor of tho president, directors and company of tho Bank of Louisiana, according to the true intent and meaning of this act, it shall be lawful for the wifo of such individual to bind herself jointly and in solido with him, and, in such case, the property and rights of said wife, either dotal or of any other description, shall be affected by said contracts or obligations, provided said wife be of age of majority at the time of entering into such contracts or obligations.”

The charter of tho bank was passed on the 7th of April, 1824, and it is contended on the part of Mrs. Farrar, who is the sole appellant, that this section is repealed by article 2412 of the Civil Code, which provides that, “ Tho wifo, whether separated in property by contract or by judgment, or not separated, -cannot bind herself for her husband, nor conjointly with him, for debts contracted .by him before or during the marriage.”

The Code was promulgated and went into effect in May, 1825. The article 2412 was not contained in the old Code of 1808, but was one of the amendments proposed by the commissioners in their projit to the legislature. Vide projét, page 70.

The question of the repeal of this section by the Code is not one of the construction of conflicting statutes, but rather of the interpretation of a system of laws. The body of law, promulgated under the title of the Civil Code of the State of Louisiana, is not to be considered technically as a statute, but as a Code, and effect must bo given to its provisions as such. It becomes necessary to state what the law was, on this subject of the incapacity of married women to bind themselves for the debts of their husbands, previously to the Code of 1825.

The 61st law of Toro was then in force, and it provided as follows: “From henceforth it shall not be lawful for the wife to bind herself as surety for her husband, although it should be alleged that the debt was converted to her benefit; and we do also order that when the husband and wife shall bind themselves jointly in one contract, or severally, the wife shall not be bound in any thing, unless it shall be proved that the debt was converted to her benefit, and she shall then be bound in proportion to what shall have been so applied. But if the debt so applied to her use served only to procure that which her husband was obliged to supply her with, such as food, clothing and other necessaries, then we say she shall not be bound in any thing.” Novissima Recopilación, XO, 11, 3.

It was contended that this law of Toro was repealed by the Code of 1808; but the Supreme Court held otherwise, and the provisions of the Code and of the Spanish law remained equally in force. Durnford v. Gross, 7 Martin, 489.

By the Code of 1825 the Spanish laws on that subject were repealed, and this article, and others of the Code in pari materia, became the law on the subj ect of the disabilities of married women to contract.

The article 2412, under consideration, we consider as making no change in tho law as it then stood, but as an embodiment of its different provisions and of the jurisprudence at the time it was enacted.

The exception in section 32 of the charter existed before the Code, and as no change was made in the law we see no reason why it should be held to be repealed by the enactment of article 2412. It was an exception to the former law; it remains an exception to this. There may be some difference between article 2412 and the law of Toro concerning the proof; but as to the power, or faculty of the wife to bind herself, there is no difference. ,

Wo do not understand that, by a revision of the laws, and the enactment of a law in which no change purports tobe made of tho legislation on that subject, where there is no clause of repeal, nor any intimation of the legislative will to that effect, that a special privilege in favor of a public institution can be held to be repealed. We do not understand such to be the legal intendment of the article under consideration. All laws must be taken and considered as forming a part of one system, and be construed with reference to each other.

In Louisiana special laws form a large portion of our legislation. It is one of the evils of the times. An effort was made in the late convention to place some restraint on what was felt to be an abuse in legislation. It failed, and special legislation is apart of our system. We cannot hold this section to be repealed by what we consider an implication; for the exception of the 32d article is no more in contradiction with article 2412, than it was to the laws in reference to which it was passed; the relation it bears to each is to all intents and purposes identical.

But if we had any difficulty in ascertaining the intendment of this article, it vanishes when we take into consideration the facts attendant on its enactment, and the subsequent legislation on this subject. The charter of the bank was passed, in April, 1824. At that time the projét, in which this article figures, was before the legislature, and had received a most elaborate discussion. The i-emoval of the disability and its establishment were made at the same session. This charter was a matter of most serions interest to the agricultural interests of the State. It was for the relief of that interest, and on its credit that the bank was established. The State owned one-half its stock, and, by its bonds, provided one-half of its capital. The agricultural interest could not be reached without a removal of this disability on the part of married women, who owned a large portion of the best estates, and who had rights on the lands and slaves of the planters to a still greater extent. To suppose that the legislature, at the time of making this provision for the security of the loans in which one-half the capital of the bank was to be invested, would render it inoperative by means of a general law, is inconsistent with all ideas not only of probability but of legislative propriety. The hypothesis brings us to a conclusion from which a court of justice must recoil.

But the subsequent legislation is still more conclusive on this point. All the banks chartered by the legislature since 1824 have the same provision in their favor, as to the power of married women to bind themselves, as that contained in the charter of the Bank of Louisiana.

The establishment of banks necessarily threw upon them the business of lending money, and we can say, without danger of exaggeration, that nine-tenths of the whole debt due by the landed interest in this State, was due to the banks ; so that, as far as the general policy of the State can be inferred from legislation and its necessary result, it was in favor of removing the disabilities of married women to bind themselvesfor the debts of their husbands, rather than of restraining them from making such contracts. The cases under the exception far exceed those under the operation of the rule. We believe such to be universally the case wherever the prohibition existed.

In Rome, a woman could not become a surety for another. The Senatus-consultum Velldanum destroyed the obligation. Justinian afterwards permitted yvomen to renounce the exception which the Senatusconsultum gave them. This law was in force in the parts of France under the jiu'isdiction of the parliament of Paris, and the prohibition of the Senatusconsultum became useless, in consequence of its renunciation being made a matter of course by notaries. Pothier on Obligations, No. 388.

By the laws of Spain the wife could bind herself for her husband’s debts, provided she renounced the law of Toro. Beauregard v. Piernas, 1 Martin, 294. Banks v. Trudeau, 2 Martin N. S. 39. Perry v. Grebeau, 5 lb. 19. 7 Martin, 489.

In France, under the Napoleon Code, the wife labors under no disability to bind herself for the debts of her husband, since the repeal of the Senatuscon-sultum Velldanum.

The authorities on this subject are collected and well stated, in the learned argument by the counsel for the plaintiff in the case already cited of Darnford v. Gross.

In England, and in most of our sister States, where, by marriage, the legal existence of the wife is incorporated in tho person of tho husband, the right of the wife to bind her separate estate by contract, can no longer be questioned. 1 Blackstone, 442. Story’s Equity, § 1400, 1401, and notes.

Being, therefore, of opinion that the section under consideration is not repealed, it is unnecessary to examine the questions concerning the power of the legislature over personal rights and disabilities, or the nature and character of tho privilege given to the bank by this section.

It is next urged, on behalf of the defendant and appellant, that, at the time she signed the bond and mortgage sued on, she was not indebted to tho bank, that she never received any sum of money loaned by the bank, nor was ever, directly or indirectly, benefitted by the money alleged to have been loaned to her husband; that, in point of fact, the bond and mortgage were not given to secure any loan or discount made by said bank to the defendant, or to her husband, but to securo a debt duo by the husband to third persons, and that, for that reason, the bond and mortgage did not create such an hypothecary contract as a married woman is authorized to mako under the charter.

The facts of the case, wo infer from the evidence and written argument of tho counsel, to bo, that previous to tho execution of tho bond and mortgage, the bank held notes of Hermann, Briggs & Co., to an amount exceeding that mentioned in the bond ; that that house had stopped payment, and the husband of the defendant was its debtor; that on this bond and mortgago a loan was eifect-ed from the bank, tho whole proceeds of which were not actually paid in hand to tho husband and wife, but of which a large portion was transferred to the credit of Hermann, Briggs & Co., on the joint check of the parties to the bond, the bank delivering up to Hermann, Briggs & Co. their notes for nearly the amount, excepting a sum of $818 83, which was passed to the general account of Hermann, Briggs & Co.

The portion of the loan passed to the credit of Hermann, Briggs & Co., was $24,443 25, and tho entry is made in their books on tho 26th May, 1838. This sum exceeded the debt due by Mr. Farrar to Hermann, Briggs & Co., who refunded him the difference, $3,520 18. Of the disposition of the difference between the proceeds of the loan, $29,000, less the discount, and the amount transferred by the check of Mr. Farrar to Hermann, Briggs & Co., wo have no evidence before us.

It is very far from being clear to us that this transaction, so far as the bank is concerned, is not a loan. No privity on the part of the bank is proved to have existed as to the future disposition of the proceeds of the bond, still less any condition imposed to appropriate them to the payments of the debts due the bank by Her-mann, Briggs & Co. Wo should hesitate beforo we could infer such an agree-vment from the fact that a portion, even a large one, had been so appropriated, on the joint check of the parties. The amount thus passed to the credit of Her-inann, Briggs & Co., was not the whole proceeds of the loan, and exceeded tho debt due them by Mr. Farrar by some $3,500.

The argument is that, if tho proceeds of this obligation were thus applied to the payment of the debt of a third person, there was, in fact, no loan, and that wo must not look to the form, but to the substance of the contract; that by the 32d section of the charter, tho hypothecary contracts to which the wifo can become a party, nro by tho terms “ according to the true intent and moaning of this act,” limited to the caso provided for in tho thirteenth paragraph oftho fifteenth section, which contains certain provisions — fourteen in number — which are declared to b& fundamental articles of the constitution of the corporation. This paragraph provides that “two millions of the capital stock of said bank shall be appropriated to the sole purpose of being loaned upon notes or bonds, secured by mortgages on immoveable properly, to the satisfaction of the board,” &c.

There having been no loan made within the intendment of this paragraph, it is contended that the obligation of the wife is not within the authorization provided for by the 32d section. But the section does not even mention loans. It provides for all hypothecary contracts or obligations, entered into by any individual with, or in favor of the bank, according to the true intent and meaning of the charter. Any contract that any individual may lawfully make with the bank, according to the terms of the charter, is certainly comprehended within this section. Can the bank make or receive any other hypothecary contracts, except for loans, under the thirteenth paragraph? The charter certainly provides for other cases. In section 9th, with the general powers, is given the power to take mortgages and pledges; to discount, upon banking principles, on such credit and on such security, as they (the directors) may think adviseable.

In section 28 it is provided, that “ all hypothecary bonds loaned upon, and all mortgages given to secure the payments of notes discounted by any of said offices of discount and deposit, shall be made,” &c.

In other sections the general terms, all mortgages, are used, and this 32d section has the equally, if not more comprehensive terms of all hypothecary contracts or obligations entered into by any individual. The terms ‘■'■according to the true intent and meaning of this act,'" we understand to refer to all mortgages which the bank, under its charter, may lawfully receive in the proper and just exercise of its powers, and not merely to loans made under the provision for the appropriation of the fund to be loaned to the landed interest. We do not understand that there is any ground for such a limitation. There is none expressed, nor can any such inference be drawn from the words used.

If the contract made by Mr. Farrar is binding upon him, under the charter of the bank, it was one to which the defendant and appellant could become a parly, and bind her property for the performance of it under the 32d section.

The bond and mortgage, having been passed out of the State, was duly recorded in the parish where the property was situated, and our attention has not been directed to any matter of form which affects their validity.

Judgment affirmed.