author: Buchanan, J.

text:
    State v. Patterson.
    Tlxc arrival of a vessel at New Orleans, after refusing to obey tlio orders to remain in quarantine at tlie Quarantine Station, in tbe parish of Plaquemines, is an offence committed in the parish of Orleans, and triable in the First District Court of New Orleans. Session Acts 1855, p. 316, § 6.
    Tlio proclamation of the Governor is the only evidence admissible to prove that the port of departure of the vessel was an infected place ; but, being matter of ovidence, it need not be set forth in the information.
    PPÉAL from tlie First District Court of New Orleans, Hunt, J.

      E. W. Mo'ise, Attorney General, for the State. W. J). Hennen and W. H. Hunt, for appellant.
   Buchanan, J.

An information, filed'by the Attorney General in the First District Court of New Orleans, charged that the defendant arrived at the Quarantine Ground in the parish of Plaquemines, with the steamship Star of the West, under his command, on the 28th July, 1856, from an infected place, to wit, from Havana, in the Island of Cuba; that he was directed by the proper officer at the Quarantine Station to anchor his ship at the Quarantine ground, and there to remain with his ship during the period assigned by law for her quarantine, to wit, ten days; all of which the said Patterson, master as aforesaid, neglected and refused to do, — but, before the expiration of the ten days aforesaid, brought his said ship to the port and city of New Orleans, contrary to the form of the statute.”

Defendant having been convicted upon this information, by the verdict of the jury, moved in arrest of judgment on the two following grounds :

1st, That the First District Court of New Orleans was without jurisdiction to try the cause.

2d. That the offence charged in the information, is not charged with legal certainty.

■ I. The argument of defendant’s counsel upon the first ground divides itself into two branches, namely : that the prosecution is based upon alleged violations of the Act to establish quarantine laws for the protection of the State, (Session Acts of 1855, No. 336); that by the 19th section of that Act, all violations of the same, at the Quarantine Station on the Mississippi River, and at the Rigolets, are triable by the Criminal Court of New Orleans, not by the First District Court of New Orleans.

But granting that the First District Court of New Orleans was the court intended' by the Legislature, it is urged that the conferring upon that court, of jurisdiction over offences committed in the parish of Plaqueminés, is contrary to Article 103 of the Constitution, which declares, that the accused shall have a speedy public trial by an impartial jury of the vicinage: — meaning, of the parish where the offence was committed.

Both these branches of the argument take for granted that the offence is charged to have been committed in the parish of Plaquemines, at the Quarantine Station on the Mississippi River, within the limits of that jsarish.

But such does not appear to be the fact. The information charges that the defendant, being ordered by the proper authority at the Quarantine Station to come to anchor, and to remain at said station for the space of ten days, not only refused to obey said orders, but brought Ms -vessel to New Orleans, before the expiration of the ten days. The offence is therefore charged as having been complete only upon the arrival of the steamship Star of the West at New Orleans ; and in so charging, the information followed the words of the statute, which says, section 13, page 414 : “ Every master of a vessel, subject to a quarantine or visitation, arriving in the port of New Orleans, who shall refuse or neglect either, first, to proceed with or anchor his vessel at the place designated for quarantine at the time of his arrival; second, to submit his vessel, cargo and passengers to the examination of the physician, and to furnish all necessary information to enable that officer to determine what quarantine shall be fixed for his vessel; third, to remain with his vessel at the quarantine ground during the period assigned for her quarantine, &c., shall be guilty of a misdemeanor, and be punished, &c.”

The refusal to obey the orders to remain in quarantine was, therefore, no offence against the statute, unless the vessel arrived in the port of New Orleans. The arrival of the Star of the West at New Orleans was an offence committed in the parish of Orleans, and triable in the First District Court of New Orleans, in which this prosecution was instituted. Acts 1855, p. 316, g 6.

II. It is said the description of the offence in the information was wanting in legal certainty in this : that it avers the steamship Star of the West came from an infected place,” instead of averring, as it should have done, that the steamship came “ from a place which had been proclaimed by the Governor of the State to be an infected place.”

The 13th section of the Quarantine Act, upon which the prosecution is based, commences by enacting that the Governor shall issue his proclamation, upon the advice of the Board of Health, declaring any “ place where there shall be reason to believe a pestilential, contagious or infectious disease exists, to be an infected . place, &e.” The section applies to vessels arriving “ from such infected place.” In a prosecution upon this section, it is plain that the only evidence admissible to prove that the port of departure of the vessel was an infected place, is the pro-^ clamation of the Governor. But this matter of evidence needs not be set forth' in the information. The State is not obliged to give notice to the accused, in the act of accusation or indictment, of the evidence by which it is intended to support the accusation. 1st Chitty, 231.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    J. A. Barelli v. J. Y. Szymanski.
    The lessee of mortgaged property holds his lease subject to a dissolution by the judicial salo, which may take placo to enforce the mortgage.
    If aftor the sale such lessee continues to enjoy the property, he will bo bound for the ront to tho purchaser, notwithstanding ho may have paid his negotiable notes, in tho hands of third persons, which were givon in consideration of tho ront at the time tho loase was executed.
    from the Second District Court of New Orleans, Morgan, J.

      M. M. Cohen, for plaintiff and appellant. Semmes <& Labat, for defendant.
   Land, J.

On the 11th of January, 1854, L. A, Pellerin mortgaged, by notarial ■ act, to the plaintiff, J. A Barelli, certain lots of ground with the improvements thereon, situate in the city of New Orleans.

On the 22d of March, 1856, the mortgaged property was offered for sale by the Sheriff, in virtue of a writ of seizure and sale issued at the suit of the mortgagee, and adjudicated to him.

In the meantime, on the 10th of April, 1855, Pellerin, the mortgagor, leased the mortgaged property to the defendant Szymanski, for a term of three years, and in pursuance of the terms of the lease, the lessee executed his promissory notes payable to his own order and by him endorsed, for the whole rent to become due, and delivered them to Pellerin. This suit is to recover the sum of $1250, the amount of rent that became due for the months of September, October and November, 1856.

The defence is, payment to a bona fide holder of the promissory note given to the lessor, for the rent demanded. The want of notice of plaintiff’s claim to the rent for which the note was given. The neglect of plaintiff to obtain possession of the note from the lessor, and his knowledge of the existence and contents of the contract of lease at the time of his purchase, and his ratification and adoption of the contract after the Sheriff’s sale.

The mortgage granted to the plaintiff was a security for his debt, and gave him the power of having the mortgaged property seized and sold in default of payment, for the satisfaction of his claim. C. C. Art. 3245. The mortgagee expressly obligated himself not to alienate, sell or encumber the property to the prejudice of plaintiff’s right of mortgage.

The rights of plaintiff, as mortgagee, were fixed and vested at the date of the execution and registry of the act of mortgage, as well against third persons as the ¿mortgagor. The important right vested i;Uikp_was the right to causethe mortgaged property to be seized android — in default of payment for the satisfaction of Si's*d'5'bh irree from any alienation or..sale, subsequently made] or ..encumbrance ¡created bv the mortgagor on the hypothecated property.

•• This right thus vested could not be modified or impaired, by any act or contract \ subsequently entered into between the mortgagor and other parties without the I consent of the mortgagee.

The right to sell in default of payment carried with it the correlative right to buy the property free from alienation or encumbrance, and the plaintiff consequently became the purchaser of the mortgaged premises, subject only to the claim of third persons as they existed at the date of the registry of his act of mortgage, and free from all others subsequently acquired.

• Mortgagees could be easily deprived of the security of their mortgages, through 'the agency of contracts of lease of the character of the one made by defendant with Pellerin, if such contracts were binding upon them. Long leases with the future rents secured by negotiable paper in the hands of third parties would greatly depreciate the value of mortgaged property at judicial sales, made for the fpayment of the debts of hypothecary creditors.

lease was dissolved by the judicial sale to the plaintiff, and he, as purchaser, had his election to make it his own contract with the consent of the lessee, or to repudiate it, and demand immediate possession.

It therefore results, that plaintiff, as owner, was entitled to the fruits and revenues of the property from the date of the sale, and that defendant is liable to him for the rent claimed in this suit, unless plaintiff has done some act by which his right has been lost or forfeited.

The record does not show either a remission or renunciation of the claim for rent on the part of the plaintiff, but, on the contrary, a demand of it from the defendant.

It is true, defendant has paid his note given for the rent to the holder thereof. This obligation he incurred by giving his note for future rent, which might become due, as in this case, to a third party.

That the holder of the note had a right to demand and receive payment of itj from defendant is not doubted, but payment of the note was not a payment to thel right person of the rent due the plaintiff, as owner of the promises.

Future rents may become due and payable to third persons, and whenever a lessee gives his negotiable notes for the payment of future rents, he incurs the risk, if the property has been previously encumbered, of having to pay the notes to a bona fide holder, and also the rents for which they were given, to a third person.

For a paymeut to be valid it must be made to the creditor, or to some person having power from him to receive it, or authorized by a court or by the law to receive it for him. O. C. Art. 2136.

The defendant, however, insists, that the plaintiff has no greater or other rights than Pellerin, the lessee, had, for the reason, that plaintiff adopted and ratified the contract of lease. The evidence does not sanction this position. The plaintiff consented to a continuance of the lease, but demanded payment of the rent to himself, and so informed defendant before the payment of the note to the holder.

It is, therefore, ordered, adjudged and decreed, that tho judgment be avoided and reversed, and proceeding to render such judgment as should have been rendered by tho lower court, it is ordered, adjudged and decreed, that plaintiff recover of the defendant the sum of twelve hundred and fifty dollars, with five per cent, per annum interest on the same, from the first day of September, 1856, and costs in both courts.


author: Cole, J.

text:
    Jos. Noland and Honoré Morancy v. J. B. Bemiss and wife.
    A judgment by default having boon duly confirmed, and the judgment signed after the lapse of three judicial days, tho defendant took a rule on the plaintiff to set aside tho judgment, on the ground that an answer had been filed after the submission of the cause and before its decision, which rule was made absolute and a new trial granted. Held: That the plaintiff not having appealed from the judg • ment on tho rule, it could not bo revised on tho appeal taken by the plaintiff from a subsequent judgment in favor of defendant.
    One who was not a creditor of the husband at the time of the wife’s obtaining a judgment against him, of separation of property, cannot successfully attack such judgment, without proof of fraud on the part of the wife.
    APPEAL from the District Court of the Parish of Jefferson, Burt'he, J.

      A. Steele, for plaintiffs aud appellants. C. Roselius, for defendants.
   Cole, J.

The origin of this litigation is three promissory notes, amounting to $2,500, executed by J. B. Bemiss the 30th January, 1846, payable in 1, 2 and 3 years, with eight per cent, interest from date until paid.

They were executed to H. P. Morancy, tutor of a minor, Victoria Morancy.

A mortgage was made on the same day by J. B. Bemiss, to secure the payment of the notes given.

This mortgage was on his supposed one-fourth interest in the lands known as the Friend Lands, and also on certain negroes.

Joseph Noland intermarried with Victoria Morancy, and H. P. Morancy, the tutor, transferred these notes to Noland as part of the separate property of .his wife.

But a small part of the notes having been paid, Noland instituted an ordinary action, without claiming the mortgage, and recovered judgment for $2,350 on the 5th of May, 1852, with interest, &c. No mortgage or privilege having been asked for, none was allowed.

This judgment not being paid, Joseph Noland, on the 28th of June, 1854, for use of I-L P. Morancy, who claims to have paid Noland and to have a transfer of the judgment, institutes suit on this judgment, in the parish of Jefferson, against J. B. Bemiss and Mrs. Elizabeth M. Bemiss, for the purpose of subjecting certain property in the parish of Jefferson, held by Mrs. Bemiss as her separate and paraphernal property, to the payment of this judgment debt, alleging fraud and collusion between Bemiss and wife in a certain judgment which she obtained for her separate property; and now, for the first time, the mortgage executed on the third of January, 1846, is set up and claimed to be enforced upon certain property in the parish of Jefferson, in which property the proceeds of the Friend Lands, it is alleged, are invested.

The first question that arises is, whether plaintiff can have the benefit of the first judgment which was rendered in this case, and which was in his favor. The judgment on the second trial was in favor of defendants.

It appears that a judgment by default was taken, and the default confirmed, and the judgment was signed on the 3d February, 1855, after the lapse of more than three judicial days from the date of its rendition.

On the 26th of February, 1855, a rule was taken to set aside the judgment, on the ground that an answer had been filed, after the submission of the cause, and before its decision.

Upon trial of the rule, the judgment was set aside, and a new trial was granted.

It is unnecessary to express any opinion upon the judgment upon the -rule; for if plaintiff were dissatisfied therewith, he was bound to have appealed from the same.

After the decision upon the rule, the whole case was ended; it was in reality almost the same as if the suit had been dismissed, and no appeal had been taken from the judgment of dismissal.

A new trial having been accorded after the decision upon the rule, the only questions before us are those which arose upon the new trial.

The decision upon the rule produced thé same effect as if the case had never been tried, so far as relates to our jurisdiction of the matters at issue on the first trial, and it was the duty of plaintiff, if he wished to be relieved, to have appealed from the judgment upon the rule, which set aside entirely all that had been done upon the first trial.

Upon the merits, plaintiff cannot succeed, because :

1st. He was not a creditor of J. B. Bemiss for the notes now sued upon at the time of the separation of property between J. B. Bemiss and his wife.

It appears that Mr. Gibbon liad purchased, in 1839, certain property for Mr. Bemiss, from a desire to benefit Mrs. Bemiss.

Afterwards, by a compromise between H. P. Morancy, the tutor of Victoria Morancy, (to the succession of whose father the property bought by Gibbon had belonged), acting by the advice of a family meeting, and John B. Bemiss and Ilenry Gibbon, the property was .surrendered to Morancy; the unpaid notes of Gibbon were cancelled, and he gave to Morancy his notes for $2,500, which he paid, and Bemiss gave his notes now sued on for $2,500.

This compromise took place in January, 1846.

From this statement it appears, that up to this time, Gibbon owed to Mr. Morancy, and not /. B. Bemiss ; but, upon the supposition, that Bemiss was responsible to Gibbon, and really owed for the price of property, bought by Gibbon at his request and for the benefit of his family, still the compromise entirely novated the original debt of Gibbon or J. B. Bemiss.

The old notes were cancelled, and Gibbon and Bemiss gave notes, each for $2,500. The notes of Bemiss were given to extricate Mr. Gibbon from the purchase of the property and from any liability he might be equitably or legally under.

The notes were, therefore, given on account of a new contract entered into long after the 3d of May, 1845, the day upon which the judgment of separation was rendered.

Besides, even if it should be said there was no novation, and that the debt for which these notes were given existed before the judgment of separation, still the debt was due to Morancy, as tutor, and not to him personally.

The judgment upon the notes of Bemiss was transferred to Morancy individually, many years after the separation of property, so that Morancy became the creditor of J. B. Bemiss many years after the judgment of separation of property.

As then, Morancy was not a creditor of J. B. Bemiss at the epoch of the judgment of separation of property; and further, as the judgment does not appear to have been obtained by collusion in order to defraud Morancy of recourse upon the property of J. B. Bemiss, Morancy cannot, therefore, now contest the judgment of separation. Morris v. Williams, 6 An. 391.

2d. At the time that J. B. Bemiss gave a mortgage on the Friend Lands, the title was actually in Mrs. Bemiss.

In the absence of any proof of fraud on her part, this action of her husband cannot affect the property with any mortgage.

Judgment affirmed, with costs.


author: Merrick, O. J".

text:
    Hughes, Hyllested & Co. v. Klingender Brothers—W. Mure, Intervenor.
    A creditor whose debt lias been secured by a conveyance of property to a trustee, with authority to sell, and pay the debt, cannot claim such property as owner ; and when attached, cannot set asido the attachment, upon giving bond, and take possession ofit during the pendency of the litigation.
    Such a conveyance would only give him the right to onforco the execution of the trust, and make him a creditor with a privilege.
    from tlie Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford & Finney, for plaintiffs. William B. Hennen, for intervenor and appellant.
   Merrick, O. J".

The plaintiff and others having attached, the ship Warbler, of Liverpool, William Mure, as the agent of the Bank of Liverpool, through his counsel, has taken a rule upon all parties to show cause why he should not be authorized to take the ship into his possession during the pendency of this litigation, upon giving bond. He bases his application upon the allegation that, during the litigation in these cases, great expense will be incurred by the detention and custody of the ship, and produces an instrument executed by the owners in Liverpool, England, for the security of the bank, by which the ship is conveyed to Joseph Layton in trust, with authority to sell and pay the bank, &c.

The intervenor relies upon the cases, of Park v. Porter, 2 Rob. 344, The Ohio Insurance Co. v. Edmondson, 5 L. R. 296, and Art. 21 0. C., in support of the motion.

The instrument produced by the Bank of Liverpool does not purport to convoy the ship to the bank, but to a trustee; the bank is therefore not the owner. At common law, the instrument, we suppose, would be considered (as between the parties at least) to convey the legal title in the ship to Layton. The only rights the Bank of Liverpool could have, would be a right in chancery to enforce the execution of the trust.

Hence, the most favorable footing on which the claim of the intervenor can be placed, is that of a creditor with a privilege. It has, therefore, no right to the possession of the property, and must enforce whatever rights it may have upon the proceeds, precisely as the attaching creditors are compelled to do.

The law confers upon the defendant only the right to set aside the attachment by giving bond. C. P. 259 ; Acts 1852, p. 165. It is not conferred upon the creditors.

It is true the courts have allowed, under an equitable construction of the Article, an intervenor having possession and claiming to be owner, to bond in order to avoid the great injury which third persons might suffer by the unjust seizure of their property. We see no reason to adopt a construction which shall confer this right upon creditors, particularly as the Legislature has recently revised the Article of the Code of Practice, without extending it to other persons than defendants.

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


author: Merrick, C. J.

text:
    M. Emanuel v. C. T. Mann—Beers & Bogart, Intervenors.
    Whore plaintiff sacs oat an attachment, and a third party intervenes claiming tho goods attached as vendor, having tho right of stoppage in transitu, and bonds tho property soized — 2-Idd: That if he fails in his intervention, although his bond may not bo made iu conformity to law, ho and.his surety are nevertheless bound to satisfy any judgment that may be obtainod against tho defendant.
    In such a cas3, the return of nulla bona upon an execution issued against the defendant, is sufficient to render tho suroty upon tho bond of the intervenor liable.
    APPEAL from tlie Fourth. District Court of New Orleans, Reynolds, J.

      John M. Chilton, for plaintiff. Mott t& Fraser, for appellant.
   Merrick, C. J.

Tho appellant’s counsel state the case as follows :

“ In this case the plaintiff sued out an attachment, when Beers & Bogart intervened and claimed the goods as vendors, having the right of stoppage in transitu, and bonded the goods soized, on which they were put in possession of the goods. On the trial of the case, the claim of the intervenors was dismissed, and subsequently a rule was taken on the surety on the bond of the intervenors, J. Wright, to show cause in ten days, why he should not pay the amount of the judgment, &c.; to which he replied, that the rule is premature, as there has never been an execution against his principal, and cites; as authority, Godman v. Allen et al., 8 An. 381.”

The defence to this action is purely technical. By intervening and bonding the property attached, the intervenors have relieved it from the lien of the attachment, and removed it from the jurisdiction of tho court. Now, if they can defend themselves on the bond, they will defeat plaintiffs’ claim altogether. In construing the obligation of Beers & Bogart, and Wright, their surety, we must look at tho law and ascertain on what condition the property was to be delivered to them. It was on condition that they would satisfy such judgment to the amount of the value of the property attached, as might be rendered against the defendant in the pending suit. Acts 1852, p. 155, sec. 1. The condition of the bond, as written, is that the defendants or intervenors shall satisfy such judgment as shall be rendered against them, or either, in the suit pending to the extent of the valuation of the property released. The principal obligation was, therefore, to satisfy whatever judgment should be rendered against the defendant, and it was the duty of the intervenors so to word their obligation, as the condition, on which the property was to be delivered them. They cannot, therefore, be heard to construe their obligation so as to defeat the law. Slocumb v. Robert, 16 La. 174 ; 7 An. 570.

Having failed in their intervention, they and their surety are responsible upon the bond. The return of nulla bona on the execution against the defendant, Mann, is sufficient, and the intervenors could not defeat plaintiff’s demand by paying the costs on the intervention or requiring an execution against themselves. The case cited in 8 An. 381, differs from the present in this, that no judgment had been rendered against the third opponent.

Judgment affirmed.


author: Land, J. Land, J.

text:
    J. H. Gails v. Schooner Osceola, Master and Owners.
    Novation does not take place unless by the terms of the agreement, or a full discharge of the original debt.
    Where the proceeding is in rein founded on a privilege, the defendant cannot except to the jurisdiction of the court, on the ground of his domicil being in a different parish from that where the seizure was made.
    from the Sixth District Oourt of New Orleans, Howell, J.

      Singleton & Claclc, for plaintiff. P. Childress, for defendants and appellants.
   Land, J.

This suit was commenced by a provisional seizure for the recovery of the sum of $456 40, alleged to he due for materials furnished and work and labor done on the schooner Osceola, for which the plaintiff claimed a privilege on the vessel.

The defendant excepted to the jurisdiction of the court, on the grounds that his domicil was in the parish of Livingston, and that the plaintiff’s privilege, if it ever existed, had been lost by limitation. He also moved to set aside the writ of provisional seizure. His exceptions were overruled, and he answered to the merits by pleading a general denial, payment, novation, and a demand in recon-vention for $1200.

The general denial was waived by the pleas of payment and novation. Dean v. Jackson, 1 N. S. 172 ; Furgurson v. Thomas, 3 N. S. 75 ; Judice v. Brent, 6 N. S. 226.

These pleas admitted the former existence of the draft, and the defendant thereby assumed the burden of proof on himself to show that the debt had been extinguished in one of the modes pleaded in his answer.

Prom the evidence, it appears that the plaintiff and defendant, G. W. Watterson, the owner of the schooner, had a settlement of accounts for the materials furnished and the work done on the Osceola, and that the plaintiff signed a receipt at the foot of his account, in these words :

Eeceived, April 5th, 1857, from G. W. Watterson one hundred dollars in cash and an order on S. Newburger for the balance in full.”

It is well settled law, that where the creditor “ receives in payment of Ms debt” either the note of his debtor or that of a third person, or a draft upon a third person, it is a novation of the debt, which is thereby extinguished with all its aeeessory rights and privileges. Barron v. How, 2 N. S. 144; Abat v. Nolté, 6 N. S. 637 ; Hunt v. Boyd, 2 L. 111; Walton v. Bemiss, 16 L. 140 ; White v. McDowell, 4 A. 543.

In the case of Barron v. How the account was receipted as follows : “ Eeceived payment by David Falcott’s notes at three and four months.”

. In the case of Abat v. Nolté the proof was direct that the draft had been received in payment of the antecedent debt. In the case of Hunt v. Boyd, the account was receipted as follows : Eeceived payment by draft of John Boyd & Co. at thirty days sight. In the case of Walton v. Bemiss the account was receipted thus : “ Eeceived payment by note payable at four months.” In the case of White v. McDowell the account was receipted : “ Eeceived payment by note of Elizabeth Boss.”

In all these cases there was an express acknowledgment in writing, or direct proof that the note or draft had been received in payment.

In the case before the court there is no such express admission or direct proof that the order or draft on Newburger was received by the plaintiff in payment of the balance of his account. The draft was received for the balance in full ; and it is as just and reasonable to say that it was received in full of the account when paid, as to say it was in full payment of the account.

Novation is not presumed, it must be express, or result clearly from the terms of the agreement, or from a full discharge of the original debt. O.'O. 2186.

The defendant has, therefore, failed to prove a novation of his .original debt, and has likewise failed tojjrove its payment.

As to the reconventional claim of defendant, we are of opinion that his settlement of accounts with the plaintiff on the 5th of April, 1857, was a waiver of any demands that he might have had against plaintiff growirig out of his contract for materials and repairs to the schooner Osceola.

The exception to the jurisdiction of the court was properly overruled ; the proceeding was in rent founded on a privilege which attached to the schooner. Hennen v. Steamer St. Helena, 5 An. 352.

The privilege was not prescribed at the date of the seizure. The vessel was in possession of the plaintiff, undergoing repairs, on the 22d of March, 1857, and this suit was commenced and the schooner provisionally seized on the 13th of April following. C. C. 3212 ; Lee v. Creditors, 2 An. 599 ; Scott v. Creditors, 3 An. 40.

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

Same Case — On a Re-heaRing.

Land, J.

The only evidence offered by defendant to prove his reconventional demand, related to damages alleged to have resulted from the delay of plaintiff in completing the repairs of the schooner. This delay and the damages consequent thereon were known to defendant before his final settlement with plaintiff on the 5th of April, 1857.

If there was a defect in the repairs, discovered after the settlement, no evidence of the fact was offered on the trial. Nor was there allegation or proof of error in the settlement.

Re-heáring refused.


text:
    J. C. & C. Van Wick, Executors, v. J. Rist.
    Wlioro tlio capacity of a testamentary executor has been recognized, and ho has been authorized to act as such by the judgment of a competent tribunal, an objection cannot bo entertained collaterally, that ho is a foreign executor and has not given the security required by the Act of the Legislature of 1842.
    Where a total want of consideration is alleged to avoid an act, and only & partial want of consideration is shown by the evidence, without any tender of restitution of what was received, the plaintiff will be nonsuitod.
    Ho who seeks equity, must do equity.
    PPEAL from the District Court of East Feliciana, Ratliff, J.
    xjl W. F. Kernan and Bowman & Balee, for plaintiffs. Muse & Hardee, for defendant and appellant.
   Buchanan, J.

The proof of the capacity of plaintiffs and of their authority to act within the State of Louisiana, is found in the. order of the Clerk of the District Court of East Feliciana, of the 31st of December, 1855, that the will of Cornelius C. Van Wijck be filed, registered and executed ; and that the plaintiffs be recognized as testamentary executors of the said Cornelius C. Van Wyclc, and authorized to act in said capacity in the State of Louisiana. It is objected, that the Act of 1842 requires that foreign executors shall give bond and security before being authorized to act as such in Louisiana. But this objection cannot be entertained collaterally. The court will presume that all the formalities required .by law were complied with, in aid of this judgment of a tribunal whose competency in the subject-matter is not disputed.

The plaintiffs sue to set aside, for fraud and error, the entry of satisfaction of a judgment rendered in two consolidated cases. The judgment was rendered on the 30th of April, 1844; and the entry of satisfaction upon the judgment docket is as follows :

“ These judgments satisfied, as per power of attorney to me; August 4th, 1845. (Signed) Z. S. Lyons, Plaintiffs’ Attorney.”

The petition alleges that the consideration of this entry was a tract of land of four hundred acres; which tract of land petitioners have since ascertained to have no existence; and that the satisfaction of plaintiffs’ judgment was, therefore, destitute of all consideration whatever, and void for error on the part of the plaintiffs, caused by fraud on the part of the defendant.

On the trial, the witnesses offered by the plaintiffs themselves, prove that there was another consideration for the entry of satisfaction of judgment in question, besides the land mentioned in the petition, to wit, a negro boy.

This showing renders it unnecessary that we should pass upon a variety of legal questions presented by the record.

It is clear, that the action, in its present shape, cannot be maintained.

The plaintiffs have declared upon a total want of consideration, and they have proved a partial want of consideration. It was their duty to have tendered restitution of the negro boy, or of his value. He who seeks equity, must do equity.

The judgment of the District Court is, therefore, reversed, and judgment is rendered for defendant and appellant, as in case of nonsuit, with costs in both courts.

Mekeick, C. J., took no part in this decision.


author: Merrick, C. J. Land, J.

text:
    White & Trufant v. Cazenave et al.
    An appeal will lio from an interlocutory order dissolving an injunction in accordance witli tho provisions of Article 307 of tlio Codo of Practice, when the facts show that such an order will work irreparable injury to the plaintiff in injunction.
    Article 56D of tho Codo of Practice allows an appeal in all casos where an interlocutory order may work an irroparablc injury. Held: That an order which necessarily compels a party, in order to protect his rights, to institute another suit for the same cause of action, is one from which an appeal will lie under this Article of the Code of Practice.
    When an appeal is taken from an ex parte order, under Article 307 of the Code of Practice, dissolving an injunction, tho necessary consequence of maintaining the appeal is to revorso tho order dissolving tho injunction. ¡

    from the Fourth District Court of New Orleans, Price, 3.

      Benjamin, Bradford <& Finney, for-plaintiffs and appellants. Roselius and Collens, for defendants.
   Merrick, C. J.

“ This suit was brought to enforce a specific performance of a contract between the plaintiffs, White c6 Trufant, and Isaac Osgood, one of the defendants.

“ The plaintiffs allege that on the 28th April, 1848, they purchased from Samuel Paclcwood a plantation and slaves, situated in the parish of Plaquemines, for $225,000 ; that afterwards, on the 11th March, 1853, they entered into a private agreement with Isaac Osgood, (carried out by an authentic act, passed on the 17th March, 1853,) by which they sold to Osgood an undivided moiety of the plantation and slaves for $65,000 cash, but with the further condition that ho should advance the necessary funds to take up their notes in favor of tho vendor, maturing in 1854, 1855 and 1856, amounting together to $77,771 30, and with the express stipulation and agreement that they should cultivate and manage the plantation, and that their one-half part of the crops should be handed over to said Osgood, who was to sell the same with his own half for the best price he could obtain, and appropriate the proceeds to the repayment of his advances, till the final liquidation of the amount, with interest at eight per cent, per annum.

“ That this sale was made to Osgood at his own instance, and in pursuance of his unsolicited overtures : that Osgood was a man of great wealth and of high and established credit, and the plaintiffs consented to the sale for the inadequate price above stated, in order to secure the association and aid of a capitalist of ample resources to make the requisite advances, and allow them time by the assiduous devotion of tlicir industry to the management of the plantation, to redeem their undivided half-interest therein.

“ That the contract was in all things duly and faithfully 'complied with, till in the commencement of the year 1855, the said Isaac Osgood, apparently supposing-that the plaintiffs were entirely in Ms power and at Ms mercy, repudiated Ms agreement, for the purpose of evicting them from their remaining- interest in the plantation, which he might thus acquire at a reduced price, or of compelling thorn to submit to still more onerous terms, which he might dictate.”

That, accordingly, he refused to make any advance to take up the note held by Samuel Paclcwood, maturing- on the 1st of March, 1855, but that his co-dcfen-dant, P. A. D. Cazenave, took up tho note, and received a subrogation from Paclcwood to his mortgage on the plantation, and then applied for an order of seizure and sale, under which the plantation and slaves were adjudicated to him, on the 2d of June, 1855, for $122,500.

“ That while these proceedings were in progress, the plaintiffs, finding themselves abandoned and betrayed by Osgood, and unable, in their unexpected distress and difficulty, to make any other arrangements, entered into an agreement with the said Cazenave, whereby it was stipulated and agreed that he should reconvey the plantation to them for $191,520, payable in ten annual instalments, with interest at eight per cent, per annum ; but with the condition that if they should be unable to make the first payment of $20,520, due on the 15th of March, 1856, the agreement should be null and void, and the plantation should remain the property of said Cazenave.

That the plaintiffs made the stipulated payment of $20,520, on the 16th of March, 1856, and received a reconveyance of the plantation and slaves on the terms and conditions of the agreement set forth.

“ That as plaintiffs are now informed and believe, the said Cazenave acted in the premises at the suggestion and for the account of Osgood; that he was interposed for the purpose of enabling Osgood to evade and defeat the rights of the plaintiffs under and in virtue of his several engagements with them.

“ And finally, the plaintiffs aver their readiness to carry out the agreements with Osgood, and pray that a specific performance thereof be decreed and enforced against him.

“ On filing their petition, the plaintiffs, upon their proper affidavit and bond, obtained an injunction against both Cazenave and Osgood, restraining them from parting with, or disposing of, or taking any proceedings at law, for the enforcement of the payment of the mortgage notes received by Cazenave for the retransfer above stated, against the plantation and slaves so retransferred, till the further order of the court.”

On the 31st of March, 1858, the defendant, Cazenave, applied, by petition, to the Judge of the Fourth District Court, who granted the injunction, for a dissolution of the same, so far as he was restrained from taking proceedings at law for the inforccment of the three notes described in plaintiffs’ petition, upon giving bond in conformity to Article 301 of the Code of Practice.

The order dissolving the injunction was granted him, on executing his bond in favor of plaintiffs in the sum of $25,000.

Immediately after giving bond, it seems, Cazenave obtained an order of seizure and sale against the plaintiffs on the notes so released. The plaintiffs thereupon applied for and obtained a suspensive appeal from the ex parte orders dissolving the injunction.

The defendant moved to dismiss the appeal on the ground that the order cannot work an irreparable injury.

It is urged by defendants, that if an appeal of this kind is favored, the whole object of Art. 30V O. PI would be defeated ; that “ it would be vain for the District Judge to grant the dissolution of an injunction under that article; to exercise the discretion there vested, for the interposition of an appeal would at once render judicial action nugatory, though the law, on its face, contemplates no appeal; but, on the contrary, the evident intention is to relieve the party from interruption.”

The answer to this is, that the Article of the Code of Practice only confers on the District Court the discretion to dissolve the injunction on the party’s giving bond, where the act prohibited is not such as may -work an irreparable injury. Now, where the District Judge, through error, embraces, as within this article, a case not contemplated by it, one where the prohibited act may work an irreparable injury, an appeal must lie by the express terms of Art. 5C6 of the Code of Practice.

In the case of De La Croix v. Villéré, 11 An. 39, we set aside a similar order, being of the opinion that the act prohibited might, if executed, work irreparable injury.

The question then must be determined by the facts and circumstances of each case, and in order to test the plaintiffs’ right to the present appeal, we are forced to consider whether the court erred in granting the order. If it did err, an appeal lies by the very terms of Articles 307 and 566. If it did not err, the appeal must be dismissed.

In the consideration of the question before us, the allegations of the plaintiffs’ petition must be taken as true, and Cazenave must be viewed as a person interposed for Osgood ; Osgood should be considered the owner of the notes, and that the order of seizure and sale issued in Cazenave’s name for his benefit.

Now the plaintiffs would have the right to oppose the same defence to the order of seizure and sale in the parish of Plaquemines that they do to the notes here, and obtain the same judgment there that they arc entitled to in this suit, and it may be urged that the prosecution of a legal right can never work an irreparable injury, for the party sued may offer an issue before the court, and adduce his proofs and obtain justice before the one court as well as the other. This may bo true as a general proposition, but, in the case before us, we have to consider the petition as true, as just observed, and it then follows that Cazenave has instituted, or may institute, an order of seizure and sale upon notes fraudulently obtained, and which do not rightfully belong to him, the consequence of which is to drive the party to an injunction or opposition, or run the risk of a sale of the plantation to some third party, and thus defeat the plaintiff’s demand for a specific performance altogether.

No argument is required to show that the latter consequence would be an irreparable injury involving as it does the loss or transfer of a plantation. It has also been held by this court in several cases, that where the consequences of an interlocutory order are such, that they cannot be remedied by a final decree, and the party will be driven to another action to obtain his rights, it is an irreparable injury, from which he may appeal. The obtaining of executory process in the parish of Plaquemines is intended to obtain satisfaction of the notes by the sale of the plantation. If defendant succeeds, his promissory notes have been paid, and their return on the final decree in this case will be the return of so much waste paper. Plaintiffs, to maintain their rights, will therefore be driven to another injunction, in which they will be forced to set up the same issues and demand the same judgment as they do in this case. But what will prevent the defendant from dissolving that injunction in the same manner and upon precisely the same grounds as in this ? It is but another stop in the proceeding. The Article 566 of the Code of Practice allows an appeal where an order may work an irreparable injury and it appears to us that an order which necessarily compels a party, in order to protect his rights, to institute another suit for the same cause of action is covered by the Article. See case of the State v. Judge of Fifth District Court, 12 An. 455, and authorities there cited, viz : 6 L. R. 435 ; 14 L. R. 245 ; 12 L. R. 137, 148 ; 15 L. R. 481; 2 Rob. 342.

We do not consider that the injunction has the effect of preventing defendant from suing upon his notes, for he can set them up in the present suit by way of a reconventional demand against the plaintiff, and demand judgment thereon See Acts 1839, p. 64.

The cases in 12 R. and 2d and 4th An., cited by the defendant, were considered in the case in 11 An. 39.

It is, therefore, ordered, that the motion to dismiss the appeal in this case be overruled.

Spojtoed, J., took no part in this decision.

Same Case — Pinal Decision.

Land, J.

This is an appeal from an ex parte order of the District Judge under Article 307 of the Code of Practice, dissolving the writ of injunction issued in this case.

A motion was made to dismiss the appeal, and the motion was overruled.

The reversal of the order dissolving the injunction is a necessary consequence of the judgment maintaining the appeal.

It is, therefore, ordered, adjudged and decreed, that the order of the District Judge, dissolving the writ of injunction in this case, be annulled, avoided and reversed, and that said writ of injunction be reinstated and declared in full force, and that the cause bo remanded to the lower court for further proceedings according to law, and that the defendants and appellees pay the costs of this appeal.


text:
    State, ex rel. Dodeman, for mandamus, v. The Judge of the Fourth District Court.
    A mandamus will not be granted by the Supreme Court, to compel a District Judge to rescind an order granting an appeal.
    ON application for a mandamus to the Judge of the Fourth District Court of New Orleans.

      A. Bodin, for relator.
   Buchanan, J.

The petition of the relator sets forth, that an appeal has been granted by the District Judge, returnable the 4th Monday of January, 1860, from a judgment rendered on the judicial admissions and confessions of the appellant.

Relator avers the order granting the appeal to be contrary to Article 567 of the Code of Practice, and prays for a mandamus, to compel the District Judge to rescind the order of appeal.

' In support of this application, the relator has referred us to 4th Robinson, 85, • 5th Robinson, 447, and 5th Annual, 233 and 597. The cases cited are cases where, either applications were made for mandamus to allow appeals from judgments on confession, or where this court dismissed appeals, regularly before it, on the ground that the judgment appealed from was rendered upon confession. Neither of these is the case before the court.

The District Court having exercised its legal authority in granting the appeal, this court cannot anticipate the return of the appeal, by entertaining at this time, what is in substance a motion to dismiss the appeal. The transcript of the record is not yet filed in this court, and it is possible that it never will be filed.

Rule nisi refused.


text:
    John W. Wood et als. v. Samuel S. Harrell.
    Where an appeal lias been taken by the defendant and warrantor, and tho defendant alone files an appeal bond, It is presumed that the warrantor has abandoned liis appeal, and in such a case the plainlifl: cannot complain, as ho has no judgment against tho party called in warranty. Objections to the sufficiency of the security on the appeal bond, should be made in the court below.
    No judgment having been rendered in favor of the plaintiff against the warrantor, there can be no objection to the warrantor signing, as surety, the appeal bond given by defendant.
    The law does not make it absolutely necessary for the Clerk to affix tho seal of the court, to his certificate attached to tho transcript of the record.
    Where plaintiffs bring a petitory action to recover a slave, alleging that their right of proporty in tho slave was derived by inheritance from their mother, and subsequently attempt to amend their petition by demanding in the alternative, if the court should be of opinion that the slave was the community proporty of their father and mother, that they be decreed tobo tho owners of one-half of the slave claimed, and at tho same time expressly adhere to their original demand. — Held: That tho two domands are inconsistent, and that the District Court did not err m rejecting the alternative demand.
    Parol ovidonco is inadmissible to show that a slave was received by tho husband, in lieu of money due his wifo from her father’s ostate.
    Proporty bought by the husband in his own name, and paid for with the separate funds of his wifo, is not tho proporty of his wifo, but tho fact of his having paid for it out of tho separate funds of his wife, gives to hor a mortgage for tho amount thus used, which in a proper form of action may be enforced on any property of tho husband.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff,

      J. B. Smith, P. Pond and John McVea, for plaintiffs and appellees. Muse & Hardee, for defendant and appellant.
   Buchanan, J.

Plaintiffs and appellees move to dismiss this appeal, on the following grounds:

1st. That the warrantors, who are appellants, have given no appeal bond.

2d. That tho appeal bond filed by defendant is defective, inasmuch as the surety on that bond is one of the warrantors, who is also an appellant of record.

3d. That the certificate of the Clerk of the District Court to the transcript of appeal has not the seal of the court.

I. Judgment was rendered upon the verdict of a jury, in favor of plaintiffs, against defendant, for certain slaves and their hire; and also in favor of defendant, against his warrantors, for the value of said slaves and their hire. On motion, an appeal was allowed to the defendant and warrantors. The defendant alone has filed an appeal bond. From this it would seem that the warrantors have abandoned their appeal. But that is no concern of the plaintiffs. They have no judgment against the warrantors, nor have they asked any such by their pleadings.

II. Objections to tho sufficiency of the security upon the appeal bond should have been made in the court below. As already observed, the judgment against tho defendant is entirely distinct (being- in favor of a different party) from that against the warrantors. No reason is seen why the warrantor, if she possessed the legal requisites, might not be the security of the defendant upon his appeal bond in this case.

III. The law does not in express terms require the seal of the court to the certificate of the Clerk to the transcript of appeal. C. P. 585, 896, 898. If it did, as the want of a seal is an irregularity clearly not attributable to the fault of the appellant, it would merely justify us in allowing time to rectify it. Acts of 1839, p. 170 ; Acts 1855, p. 314. But that would not be necessary here. The Clerk certifies the record, under his signature official and the seal of said court,” although no impress of the seal appears in the space reserved for that purpose in the margin of the certificate. See Conway v. Erwin, 1 An. 391; Medley v. Voris, 2 An. 140.

The motion to dismiss is overruled.

Plaintiffs claim a negress slave named Harriet, and her issue, in possession of defendant, as their property by right of inheritance from their mother, Winifred Hurst, deceased wife of Anderson Carla; their mother, as they allege, having-inherited said slave Harriet from the estate of her father, Henry Hurst.

Defendant and warrantors deny specially that plaintiffs’ mother inherited the slave Harriet from her father, as the plaintiffs pretend. They aver that the said slave was adjudicated, at a probate sale of Henry Hurst’s estate, to Anderson Carle, by whom she was sold to Hezekiah Harrell, from whom defendant derives J title. Defendant pleads tho prescription of five, ten and fifteen years, and avers an open and undisturbed possession in himself and his authors, by virtue of a title translative of property.

Several years after issue thus joined, plaintiffs attempted to amend, by demanding, in the alternative “ if the court should be of opinion, after hearing all the evidence, that Harriet was community property of their father and mother,” that a decree might be entered up in their behalf for the one-half of the slaves claimed. At the same time, not relinquishing, but expressly adhering- to, their original de • mand.

The District Court rejected this alternative demand; to which plaintiffs ex- j cepted. This ruling was correct. The two demands were inconsistent. Had they been presented in the same petition originally, the defendant might have refused to answer until the plaintiffs had made their election, whether they demanded a whole or only an undivided half ownership of tho slave in question.

The court also correctly rejected parol evidence that the negro woman Harriet was received by Winifred Hurst, in lieu of money due her from her father’s estate, for the price and sum of five hundred and ninety-one dollars. Such testimony was not only, in effect, making out a title to a slave by parol, but it contradicts the written and recorded evidence in the cause. Tho proces verbal of the probate sale of the effects of Henry Hurst’s succession, given in evidence by plaintiffs themselves, shows that the slave Harriet was adjudicated to Anderson Carle, at such sale, by the parish Judge, for the sum of five hundred and ninety-one dollars, on a credit of one and two years, for his notes with good and approved freehold security, with ton per cent, interest from date of purchase until paid, and special mortgage until final payment.

All the cases quoted by the counsel of plaintiffs, in opposition to the ruling of the court upon this point, viz, Dominguez v. Lee, 17 La. 295 ; Terrell v. Cutrer, 1 Rob. 367; Rousse v. Wheeler, 4 Rob. 114; Stroud v. Humble, 2 An. 930 ; and Metcalf v. Clark, 8 An. 286 — are cases -whore the purchase was made cither in-the name of the wife alone, or of the wife and husband jointly. In which cases, proof was admitted, as against creditors of the husband, that the purchase price was paid out of the separate funds of the wife ; and it was held, that, although in general purchases during marriage would make the things purchased common property, according to Article 2371 of the Oode, yet, if the thing purchased by the wife were paid for out of her -separate funds, the property would become pa-raphernal, provided the wife had not parted with the administration of her para-phernal estate. See the language of Judge Simon in Rousse v. Wheeler.

Now, there is nothing analogous to those cases in the present. Harriet was not purchased in the name of Mrs. Carle individually, or jointly with her husband, but in the name of her husband alone. The proof offered, was proof of a different contract — a sale to a different vendee — which (as the object sold was a slave) could not be proved by parol.

Even supposing that Carle made use of his wife’s separate funds to pay for the property thus acquired in his own name, that would not, under the authority of the case cited, have made such property hers. It would only have given rise to a mortgage for the amount of the separate funds thus employed, which, in a proper form of action, might have been enforced against Carle’s property, or property alienated by him in the hands of third persons.

But in referrence to this question of the manner in which the slave Harriet was paid for by Carle, we have in evidence :

1st. The final account of administration of Henry Hurst’s estate, and the judgment of the homologation of the same, rendered on the 3d of February, 1829, which were given in evidence by plaintiffs, and are entirely inconsistent with the parol evidence offered by them and rejected by the court. For in that account the administrator charges himself with all the notes given by the purchasers at the probate sale above mentioned, (including Carle) as so much cash received by him; and the judgment of homologation fixes the distributive shares of the eight heirs of Henry Hurst, (including Mrs. Carle,) without any deduction made for any thing paid on account of her share, or received pro tanto in lieu of her share. Yet this account was filed, and this judgment of homologation rendered, more than three years after the probate sale, and more than one year after the last of Carle’s notes for Harriet and for the other slaves and movables, purchased by him at the said sale, had fallen due.

The record thus given in evidence by plaintiffs, is corroborated by another record offered in evidence on the part of the defence, but which was rejected by the District Court, and which comes up annexed to a bill of exceptions. It is an extract from the record of sales and mortgages of the parish of St. Ilelena, duly certified to be a correct copy by the Recorder- of said parish. It recites a conveyance by the parish Judge and by the curator and curatrix of Henry Hurst’s succession, of slaves and movables adjudicated to Anderson Carle at the probate sale of the 26th December, 1825, with mortgage granted by said Carle for the security of the payment of two notes, at one and two years, given by him for the price of adjudication.

This act of sale and mortgage, of the same date with the probate sale, is copied at full length, with a certificate appended, signed by L. H. Moor, parish Judge of St. Helena, that he had compared it with the original, and having found it correct, had admitted it to record on the 29th of December, 1825.

Across this record is written another certificate, signed by Burlin Childress, parish Judge of St. Helena, that the notes described therein wore acknowledged before him by the curator of Henry Hurst’s succession, to have been paid, and that the mortgage was thereupon cancelled, of date the first of Pebruary, 1830.

The objection made to this certified extract from the parish records of St. Helena, and which was sustained by the District Court, was, that said document was not an original act, but only a copy of a copy. This objection was improperly sustained.

The certificates of the two parish Judges, one of the 29th December, 1825, that the mortgage had been recorded — and the other of the 1st of Pebruary, 1830, that the mortgage had been erased — were certainly originals, of which the parish Recorder was the legal custodian, and of which his certified copy is authentic proof. The first of those certificates recites the conveyance and mortgage very properly, in order to prevent all uncertainty as to the objects of the mortgage. The certified extract thus offered, was clearly not only good evidence, but the best evidence of the inscription of the mortgage granted by Carle upon the slave Harriet, and of its radiation.

This document was not at all needed by the defendant as evidence of the contract of purchase by Carle, out of which the mortgage originated. That contract had already been proved by plaintiffs, when they gave in evidence the proses verbal of sale.

Again: There is no reason to suppose that the original of the act of sale and mortgage, which appears to have been offered to the parish Judge for record, was ever in the possession of the defendant or warrantors. The parties to that act were, the representatives of Henry Hurst on the one side, and Anderson Carle on the other side. The latter of those parties was the father of the plaintiffs ; the former are their near relations, and have been examined by them under commissions in this suit, as witnesses..

But we repeat, that we view the copy of the act of mortgage as mere matter of recital and reference in the certificates of inscription and of radiation, which ought not to have had the effect of excluding those certificates as evidence. It will be unnecessary to remand the cause on account of the rejection of this document, inasmuch as we have it before us, and full effect may be given to it, the only objection to its admissibility being overruled. With it, nay oven perhaps without it, the claim of plaintiffs to the ownership of the slave Harriet, and her issue, is disproved.

The judgment of the District Court in favor of plaintiff's and appellees is, therefore, reversed, and judgment is hereby rendered in favor of defendant and appellant, and against plaintiffs, with costs in both courts.

Mereick, O. J., recused himself in this case, having been of counsel.


author: Cole, J. Oole, J.

text:
    Frellsen, Stevenson & Co. v. Thomas C. Anderson.
    "Wlioii new proceedings of garnishment are commenced, tUo original proceedings are presumed to be abandoned.
    A seizure made on an execution which has expired, is illegal and void.
    The Act of 1855, which authorizes a Sheriff, in cases of garnishment, to retain a copy of the writ and proceed on that in the same manner as though the original was in his hands, does not empower the ShoriíT to effect more with the copy than ho could with the original execution. He could not, with the copy, make new seizures on expired writs.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      O. H. Hdme and Serrones é Labatt, for plaintiffs and appellants. Elmore & King, for defendant.
   Cole, J.

T. C, Anderson, residing in the parish of St. Landry, being indebted to Frellsen & Co., pledged to them four promissory notes given by T. A. Cook, also a resident of that parish, for $5,000 each, secured by mortgage, payable respectively on the 1st of April, 1856, ’7, ’8 and ’9.

On the 11th of December, 1856, Frellsen & Co. commenced proceedings in the Sixth District Court of New Orleans, to collect their debt by the sale of the notes pledged, and on the 17th of January, 1857, the Sheriff, on execution issued in the case, seized and took into his possession the pledged notes.

Before this seizure, they had remained in possession of Frellsen S Co.

Previous to the sale of said notes by tbe Sheriff, Anderson sold Ms interest therein, after the payment of the debt of Frellsen & Co., to Forestier, at private sale, for fifteen hundred dollars cash.

On the 21st of March, 1857, two days before the Sheriff’s sale, Forestier took the present rule upon the Sheriff, Frellsen <& Co. and Anderson, to show cause why the surplus, after paying Frellsen & Co., if there was any, should not be paid over to him.

The notes were sold by the Sheriff on the 23d of March, for $19,000 cash, leaving $8,080 in the hands of the Sheriff after paying Frellsen & Co.

Before the rule taken on the 21st of March against the Sheriff and others by Forestier, as assignee of Anderson, was tried, Punderford and others, who are appellants, took a rule and filed an intervention, claiming the fund as seizing-creditors under executions issued on various judgments recovered against Anderson in the parish of St. Landry, all which executions, they aver, were levied on the notes in the hands of Frellsen & Co., by process of garnishment, or by actual seizure by tbe Sheriff, prior to tbe alleged assignment to the appelleeuForestór.

Forestier answered the intervenors’ rule, denying the existence of the judgments against Anderson, the issuance of executions thereon, the fact of- seizures having been made under those executions, and asserting the illegality and invalidity of all tbe proceedings on behalf of the intervenors.

Anderson filed a general denial.

The plaintiffs’ answered, that while tbe notes were held by them in pledge, they wore seized under various writs of garnishment issued on the judgments of the intervenors ; that their claim had been satisfied out of tbe funds in tbe Sheriff’s hands, and disclaimed any interest in tbe controversy.

By agreement ol counsel, the rule was consolidated with the intervention, and the case was tried on the rule taken by Forestier.

The principal question in this case is whether the seizing creditors of Anderson have the right to be paid their judgments out of the balance of the notes after satisfying the claim of Frellsen & Co. in preference to, Forestier, the assig-nee of the residuary interest of Anderson, after the payment of the judgment of Frellsen & Co.

The judgment of the lower court was in favor of Forestier, and the interve-nors have appealed.

Forestier, by the assignment, has a superior claim to the fund, unless the garnishments and seizures on which intervenors rely are valid, and it appears to us that they are illegal and inoperative.

1. Even admitting that the original proceedings of garnishment were legal; they were abandoned by the institution of new proceedings, and these were void because these new proceedings of garnishment were commenced long after the execution had run out.

2. The subsequent seizure of the notes after the abandonment of the garnishment proceeding, was illegal and void, because it was made on an execution that had long before expired. The Act of 1856, Sess. Acts, p. 253, cannot heal this defect. This Act authorizes the Sheriff, in cases of garnishment, to retain a copy of the writ, and proceed on that “ in the same manner as though the original was in his hands.” It does not empower the Sheriff to effect more with the copy, than he could with the original execution ; he cannot, by virtue of the copy, make new seizures on expired writs.

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

Same Case^ — On a Re-hearing.

Oole, J.

Upon a reexamination of this case, we can perceive no reason for changing the opinion heretofore given.

Towards the close of the opinion we said : “ The subsequent seizure of the notes after the abandonment of the garnishment proceeding, was illegal and void, because,” &c.

The singular term seizure” was used, because it was applied to all the cases of seizure considered as one, inasmuch as they were characterised by the same illegal features, and the same remarks applied to the whole of the cases.

It is, therefore, ordered, adjudged and decreed, that our former decree remain undisturbed.^


author: Buchanan, J. Buchanan, J.

text:
    Succession of Samuel Broom.
    When tho record does not show that tho amount in disputéis over $300, and the hiatus is not supplied "by an affidavit, tho appeal will he dismissed.
    The practice of introducing all the mortuaria of a succession in mass, when it is only intended to prove . a fact or a date, is abusive, inasmuch as it is calculated to create unnecessary costs, and to confuse the issues.
    A re-hearing will not bo granted when the evidence relied upon to support the application is only to be found in a different transcript from thatof the appeal, which the parties had agreed might bo referred to, but to which, by its title or number, no reference was made in the argument of tho cause
    It is the settled practice of tho court not to notice in applications for re-hearing, points which were not made in the argument of the cause.
    from the Sixth District Court of New Orleans, Howell, J.

      D. N. Hennen, for appellant. Durant & Ilornor, for appellee.
   Buchanan, J.

Certain heirs of this estate took a rule upon.the administrar tor, under the Act of 1855, p. 79, jS5, to show cause why he should not furnish new and additional security for his administration, on the ground that the present securities are insufficient.

They have appealed from a judgment discharging the rule.

The appellee now moves to dismiss the appeal, on various grounds, of which one alone requires notice, viz, that the amount in dispute does not exceed three hundred dollars.

The record does not show the amount in dispute; and this hiatus has not been supplied by an affidavit on behalf of appellants.

Appeal dismissed, with costs.

Same Case — On a Re-hearing.

Buchanan, J.

The appellant, in his petition for re-hearing, refers us to evidence which was not noted in the transcript, nor indicated in a proper manner either in the written agreement of parties, or in the argument upon the motion to dismiss in this court.

The note of the evidence in the transcript is as follows :

“ Plaintiffs offer in evidence the mortuary proceedings of the estate of Samuel Broom.

“Also, copy of petition in the case of Fonda, executor, v. Broom <& Hennen.”

After appeal granted from the judgment of the District Court, the following agreement was entered into by the counsel of appellant and appellee.

“ It is agreed that the Clerk, in making up the transcript of the record for the appellant, may omit the mortuary proceedings in Samuel Broom’s estate, and the copy of the petition in Fonda, executor, v. Broom, & Hennen, introduced in evidence ; leaving to each party the right to refer, in the Supreme Court, to the transcript of record therein filed, containing said mortuary proceedings and petition.”

In the printed argument of appellant’s counsel, upon which the cause was submitted, the following passage contains the only indication of the record evidence intended by the above extracts from the transcript of appeal in this cause.

“ I. The matter in dispute exceeds the sum of $300 — appears by the inventories of Broom’s estate — the claim of $250,000 brought by Fonda v. Broom, (see note of evidence,) and for which claim or debt, bond should be given, C. 0.1120, (bad debts alone being excepted.) ”

In this extract, no reference is made to any record of this court by its title or number, in which the evidence is to be found. Without such particular reference there was nothing before the court on which it could act.

The appellant seems to have supposed that it was the duty of the court to hunt up, among its records, the evidence alluded to, or to tax its recollections of appeals heretofore decided.

The practice of introducing all the mortuaria of a succession in mass, when it is only intended to prove a fact or a date, which may be shown by a particular document, is abusive, inasmuch as it is calculated to create unnecessary costs, and to confuse the issue.

We had occasion to say very lately in the case of Price v. Emerson, that it is not necessary to give in evidence all the mortuaria ; and that decision was only a confirmation of settled principles of practice.

We have thus shown that the opinion delivered in this cause was right in saying that “ the record does not show the amount in dispute between the parties appellant and appellee.” After that decision rendered, the appellant in his petition for re-hearing, informs os that the evidence upon which he relied is to be found in record No. 4698 of the docket of this court at pages 1 and 121. This information eomes too late. It is the settled practice of this court not to notice, in applications for re-hearing, points which were not made in the argument of the cause.

Re-hearing refused.


author: Spofford, J. Land, J.

text:
    Lavinia Dodd et al. v. Succession of D. L. R. Orillion.
    Where during the marriage an undivided interest in a plantation fell to the wife, as paraphernal property, the husband never taking possession, but of which tile management and administration was given by the wife and her coproprietor to an agent of their own selection — Held : That of this part of his wife’s paraphernal estate the husband never had the possession and enjoyment, neither was it administered by him and her indiscriminately.
    The fact that the husband was consulted by the wife’s constituted agent as to the crops, settlement of accounts, &c., subject always to the ratification of the wife, did not change the character of the administration.
    from the District Oourt of the Parish of Iberville, Beale, J.

      Zenon Labauve, for plaintiffs. II. F. Deblieux, for defendants and appellants.
   Spofford, J.

The only question presented by this case is whether certain property admitted to have been the paraphernal property of the plaintiff, Lavinia Dodd, was retained under her administration, or was administered cither by her husband alone, or her husband and herself indifferently, during the community between them.

In the latter case the revenues of the property would, of course, fall into the community. C. C. 2363, 2371.

If she retained the administration, the fruits were paraphernal; and so the District Judge decreed them to he.

The property in question consisted of an interest of three-eighths in a certain plantation which fell to her during the marriage as paraphernal property. Her husband never took possession of this property. But, immediately upon its acquisition, the plaintiff entered into a contract of partnership with her coproprietor and sister, Mrs. B. Beblieux to carry on the plantation. Both partners appointed Mr. B. Beblieux the manager or administrator of the property of which they were coproprietors. Mrs. Orillion thereby showed her, intention of keeping this property out of the hands and control of her husband. B. Beblieux was constituted her agent, not her husband’s agent. The property continued thus until the death of Mr. Orillion. He never entered into the possession and enjoyment of this part of his wife’s paraphernal estate, nor was it administered by him and her indiscriminately.

The fact that he was consulted by Mrs. Orillion’s constituted agent, as to the crops, settlement of accounts, &c., subject always to her ratification, does not change the character of this administration. It was an administration of the wife, and not of the husband.

Judgment affirmed.

Same Case — On a Re-hearing.

Land, J.

A re-hearing was granted in this case. The law and evidence have been reexamined. We are satisfied that the judgment first pronounced was correct.

The' acts of the husband did not constitute either a separate or joint administration of the paraphernal property of his wife. They were acts that naturally resulted from the relation of husband and wife, and can not in law be .considered as substantive acts of administration, by which rights to property are acquired.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs, as it was by the judgment heretofore pronounced in this cause.


text:
    Charles D. Stewart et al. v. Police Jury of Pointe Coupée.
    There can bo no vested interest in any inhabitant in the public highways ancl bridges, as that also would imply a right to control the action of the Police Jury. Citizens are subject to the legal ordinances of the Police Jury as they are to the laws.
    APPEAL from the District Court of the Parish of Pointe Coupée, Ratliff, J.

      J. H. Halsey, for plaintiffs and appellants. A. Provosty, for defendants and appellees.
   Merrick, C. J.

Plaintiffs’ counsel states their case as follows, viz :

“ This case comes up from a decision of the District Court upon a peremptory exception to plaintiffs’ demand.

“ The facts of this case are these : By a resolution of the Police Jury of the parish of Pointe Coupée, passed at a regular session on the 7th day of September' 1857, the parish, or the Police Jury as its agents, proposed to build all bridges upon public roads across natural drains and bayous, that were thirty-five feet long and upwards : a provision was attached to the resolution, which required that commissioners should be appointed by the Jury, who should measure the length of the bridge or bridges to be built, and estimate the cost of building the bridge or bridges so to be built at the parish expense ; they were furthermore empowered to contract with any builder for the building or constructing of the bridge or bridges, without any further authority from the Police Jury than was conferred upon them by their appointment as commissioners, and before any special appropriation was made for the costs of building the bridge or bridges so adopted by the parish as public works, and to'be built at the parish expense.

“ Under the provisions of this law an application was made on the 1st day of June, 1858, by the inhabitants of Bayou Letsworth, through a petition or memorial to the Police Jury of the parish, presented by the member of the district in which police jury ward this bayou is situated. This petition was made and presented in order to obtain for Bayou Letsworth the benefit of the before-cited resolution, and asked that the proper steps should be taken by the Jury, so that the six bridges which are on the public road on the west side of the Lets-worth and which cross bayous falling into that bayou, should be built under the provisions of that law.

“ According to, and under the special provision of the beforementioned resolution, commissioners were appointed by the Police Jury, on the 1st day of June, at a regular session, to measure the length of the said six bridges, and to estimate the cost of making them, they complied with the law, and made their report through the same member who had presented the original petition, but deeming it the more expedient plan, and having in view the avoidance of all difficulties which might arise between them and the contractor or contractors who might purchase the building, as by the tenor of the resolution first recited, they were empowered to let them out at contract to the lowest bidder, without further authority, they asked of the Jury an appropriation which they deemed sufficient to build the bridges, the appropriation was refused, and subsequently, at the same meeting of the Police Jury, the law making it the duty of the parish to build all bridges that may hereafter require to be built across natural drains, was repealed. The refusal to appropriate, and the passage of this repealing law, gave rise to the present action by the plaintiffs, in order to compel by law the performance of what is considered by them as a contract mutually agreed upon, and the obligations of which were mutually entered into in good faith, from the time of the de- . mand by plaintiffs through their memorial, which they consider as an acceptance . on their part of the proposal to build the bridges at the parish expense.”

The judgment of the lower court being in favor of the defendants, the plaintiffs appeal.

We think it quite clear that the plaintiffs’ counsel has not stated any cause of action. A certain portion of the sovereign power has been delegated to the police juries. Among other things, they have the power to make all such regulations as they shall deem expedient “ as to the proportion and direction, the making and repairing of the roads, bridges, causeways, dikes, levees and other highways.

This grant of power is entirely inconsistent with any control on the part of the inhabitants of certain neighborhoods oyer the roads and bridges made under the general ordinances of the parish.

There can be no vested interest in any inhabitant in the public highways and bridges, as that also would imply a right to control the action of the Police Jury. A thing incompatible with a delegation of power to be used for the greatest good to the greatest number.

There was no contract, because a contract implies at least two parties who enter into an engagement. Nothing has been stipulated between Charles D. Stewart and the other inhabitants of Letsworth. They are citizens, subject to the legal ordinances of the Police Jury as they are to the laws, without power to prevent a repeal or modification, except in common with the other citizens, through the ballot box or the proper representations made to the members of the Police Jury themselves. See Layton v. City of New Orleans, 12 An, 515.

Judgment affirmed.


author: Meeeick, 0. J.

text:
    State v. William Hunter.
    The District Attorney is not bound, under tbe 15tli section of tbeAct of 1855 cc relative to criminal proceedings,” to enter a nolle prosequi in a case of assault and battery which has been compromised, the section not being imperative, but merely permissive.
    from the District Court of the Parish of Lafourche, Roman, J.

      E. Marvin, District Attorney, for the State. Thibodeaux & Blalce, for defendant and appellant.
   Meeeick, 0. J.

“ At the May term, 1858, of the District Court of Lafourche, William Hunter was indicted for assault and battery in and upon the person of one André Mecquet. A true bill having been found by the Grand Jury, and defendant having been called for arraignment, declined pleading to the indictment for the reason that said assault and battery had been compromised, and produced as evidence of this fact a written compromise entered into between Mecquet and defendant, accompanied with the necessary vouchers establishing the payment of all costs.

Defendant having, nevertheless, been ruled to plead to the indictment, entered his plea of ‘ not guilty ; ’ was, thereupon, put upon his trial, found guilty by the petty jury, and sentenced by the court; defendant having reserved the point as regards the power of the District Attorney to indict and the court to try him for said offence, in view of said compromise.

“ The decision of this case turns upon the construction to be given to the 15th section of an Act ‘relative to criminal proceedings,’ atp. 152 of the Acts of 1855, which reads as follows :

“ That in all cases of assault and battery and misdemeanors, when the parties compromise, and the prosecution is withdrawn, no charges shall be brought against the parish, the parties compromising shall pay all costs in such cases; it shall be lawful for the Attorney General or District Attorney to enter a nolle prosequi.”

The case, therefore, presents the question, whether this section of the statute is imperative upon the District Attorney, requiring him to enter a nolle prosequi where the parties have compromised an assault and battery or other misdemeanor and paid the costs, or whether the Act is only permissive and Ihe District Attorney allowed, but not commanded, to enter a nolle prosequi.

We concur with the defendant’s counsel, that in construing this section it is proper to consider the reason and spirit of it, and the cause which induced the Legislature to enact it. But in doing so it appears to us, that we cannot overlook the object of the criminal law. It is not enacted for the purpose of compelling the violator of the laws to render justice to those he has injured, for civil actions are sufficient for this purpose. It is enacted for the purpose of redressing the injury done to the State by the disturbance of the public peace and the disquiet which is inspired among good citizens by wrongful acts, and to deter others from like offences by the public example which is made of the offender, as well as sometimes to place it out of his power, for a time at least, to renew his attacks against the public peace.

- Now, if it were in the power of the offender to compromise with those he had injured, against the wishes of those intrusted with the execution of the criminal law, these very purposes would be defeated. For just in proportion as the offence should be aggravated in that proportion would be the exertions used to bring about a compromise, and deprive the injured laws of their sanction.

Thus, the offender who is bound for the civil injury as well as the penalty denounced for his misdemeanor, would be enabled to escape punishment by making reparation for the civil injury alone.

Again, all those misdemeanors and assaults committed by the bold and unscrupulous upon the good-natured, the weak or timid would be wholly unpunished, as such offenders would find no difficulty in procuring, by intimidation or cajolery, evidence of a compromise. It would, therefore, seem that the power to compromise misdemeanors ought not to be left exclusively to the injured party. Thus, if we look at the section with reference to objects of the criminal law, we shall find no difficulty in concluding that the State never intended to p&rt with its control over prosecutions for assaults and battery and misdemeanors. But it sometimes happens, that offences are committed under such circumstances as imply no-real intention of violating the law, and assaults are sometimes made under a misapprehension of facts and a momentary ebulition of anger, and without much harm to the party injured. In such cases, where the injured party voluntarily comes forward and declares that he is satisfied, and desires the prosecution to be dropped, the public justice gains nothing by a further prosecution, and the law permits the District Attorney to enter the nolle prosequi. On the other hand, the production of a written compromise of an assault and battery by the bully, and the terror of a neighborhood, might be an aggravation of the public injury and a just cause for a more rigorous prosecution in order that there might be an adequate vindication of the laws.

We have no doubt that the statute in accordance with its very terms is permissive only, and we have no hesitation in affirming the judgment of the lower court.

J udgment'affirmed.