text:
    No. 2805.
    Escoubas et al. v. Louisiana Petroleum and Coal Oil Company
    Iu interpreting agreements, an elementary rule is to construe the clauses together, giving to each tbe-senso which resul.s from the whole instrument.
    Parties are put in mora by demanding that they do that which, in a legal sense, they ought to do and can do.
    A distinction exists in this regard between a modus and a suspensive potestative condition. The former is obligatory and payable, and if the party bound is passively violatinghis ob igation, ho must be put in default before an action will lie. The latter is one whoso accomplishment depends on personal choice; the party on whom it is imposed is free to accomplish it or not; and to put him in default would be a vaiu thing, since it would be to demand that ho should do what he is under no obligation to do.
    An agreement was made between plaintiffs, owners of mineral lands, and the- assignor oi defendants, of a twofold character, including a license to mine, and a lease for ten years in
    • case of successful discovery. The defendants lost all rights thereund ir by the lapse of time, no workable quantity of petroleum having been discovered within a period limited by the contract. The plaintiffs tkon agreed to refrain from declaring a forfeiture of this contract for ten years from its date, provided the defendants would carry on the search for petroleum constantly and without cessation. Held — That the latter agreement was conditional; that its conditional was suspensive and potestative, and that when the defendants failed to carry on their search for petroleum, the plaintiffs were entitled to declare the forfeiture of the contract by suit, and claim possession of their lands, without a formal putting in default.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.
    IF. JB. Koonts & Elliott, Christian Boselius and Albert Voorhies-, for plaintiff aud appellant. A. H. & H. W. Ogden and J. D. Hill, for defendant and appellee.
   Howe, J.

On the fifth of October, 1865, Hilaire Escoubas and Trusión Lowell entered into an agreement in writing, with J. W. Mallet., by which it was stipulated that the latter should have “the entire, absolute and undivided control of all petroleum, mineral, oil or other similar products existing beneath the surface of the land ” owned by the former, in Calcasieu parish, and described in the first article of the agreement, and “ the right to bore, dig and mine for said petroleum or similar product, to extract the same, to prepare it for market by refining or otherwise, to transport, sell and dispose of said petroleum in any way he might sec fit, and in general to have and enjoy all the mineral rights of the parties of the first part (Escoubas and Lowell), in and with reference to said land. The above rights aud privileges to continue for the term of ten years from the date of the signature of this contract.”

By the second, third, fourth and fifth articles of the agreement, the party of the second part, Mallet, had the right to occupy such land as might he necessary for such buildings as would be required for operatives, etc., and for the prosecution of the “proposed workings;” the right to cut certain timber and wood; the right of pasturage for animals to be employed in the work, and the right of way for necessary roads — these privileges to continue for ten years.

By the sixth and seventh articles, Mallet agreed to pay the sum of $20,000 in cash, by November 1, 1865, and in the event of oil or petroleum being found in workable quantity,” to pay to the parties of the-first part one-half the gross product of such oil or petroleum.

, The tenth article is as follows: .

In the event that the said party of the second part, his agent or assigns, shall not, before the thirty-first of December, 1866, make experimental borings on said land, and obtain oil or petroleum in workable quantity, all rights of the said party of the second part, his-agents or assigns, growing out of this contract, shall cease, (without any claim on the part of the said party of the second part, his agents or assigns, to restoration of any portion of the above stipulated payment of $20,000); but in the event that oil or petroleum shall be found upon said land prior to said thirty-first of December, 1866, all said rights shall continue for the full term of ton years.”

On the first of June, 1866, Mallet transferred his rights under this, agreement to the defendants in this action. No petroleum was discovered in “ workable quantity ” within the time limited by the tenth article, namely, the thirty-first of December, 1866. On the fourth of January, 1867, Escoubas and Lowell made an agreement with the defendants, recognizing this transfer, and the pendency of certain claims to the land by a third party, and covenanting in consideration of the premises, “to extend the forfeiture of said contract and lease of the fifth of October, 1865, aforesaid, as set forth in the tenth section of said contract, from the thirty-first of December, 1866, up to and until the thirty-first day of December, 1863;” and further agreed “not to declare a forfeiture of the lease now transferred to and being the property of said company ” (the defendants) “ during the unoccupied term of said lease; provided, however, that said company shall, use every exertion to develop the resources of said lands, and shall continue constantly and without cessation to carry on the work necessary to procure oil or petroleum upon said lands, and shall operate-upon said lands to the fullest possible extent for the production of petroleum or coal oil, it being understood, however,’ that said work shall not be considered as having ceased should the company be prevented temporarily from continuing the same by inevitable accident, overpowering force, or the act of God.”

The defendants proceeded with the work, and bored.one well to the depth of twelve hundred and thirty feet, but failed to discover petroleum in “ workable quantity.” At'the depth, however, of about four hundred feet, they penetrated a bed of crystalized sulphur, of remarkable thickness, and this discovery’"appears to be the cause of the-controversy now before us.

This action is instituted to recover possession ot the lands in question, on the allegation that the defendants were without means, money or credit to carry on the works, and that the work had been discontinued ; that it was not being carried on to the fullest extend possible-for the production of oil or petroleum, and not in such a manner as ■said company was.bound to do to avoid the forfeiture of the lease.

The defendants answered by denying generally the allegations of the petition, except as admitted in the answer. They admitted the ■execution of the several agreements above mentioned, averred that the tenth section of the act of fifth of October, 1865, was annulled and abrogated by the agreement of January 4, 1867, (from which we have quoted the clause to which the defendants here refer), and declared that they had fully complied with the conditions of this clause by continuing constantly and in the most judicious manner to carry on.the necessary work to procure oil and petroleum. They, also, made a reconventional demand for damages.

The plaintiff filed a supplemental petition, alleging that after the •commencement of this suit, eleventh of August, 1869, and up to the time of the filing of the supplemental petition, the defendants had ■ceased all work, and had abandoned the work and left the premises; and this was met by a general denial and a further reconventional •demand for damages.

It appears by the record that the parties agreed that the question of the right to the sulphur should be determined in this controversy; the ■defendants claiming the whole of it, and the plaintiffs making a similar exclusive claim on their part. The judge a quo arrived at the •conclusion that the non-compliance with the condition imposed on the defendants is to be considered as a passive violation of the contract, ■and that a putting in mora was an indispensable prerequisite to maintain the action. Beyond this, he was of opinion that the defendants had not violated their agreements, and that they were entitled, on principles of equity, to one-half, the net profits of the prospective sulphur mining. The prayer of jilaintiffs for possession was, therefore, rejected, as well as the reconventional demand of the defendants ; and a judgment rendered, decreeing the defendants to be entitled to the •exclusive control of the digging and boring of all mines on the property leased, including the sulphur lately discovered, and the plaintiffs •entitled to one-half the net profits arising from the digging of said mines, etc. Both parties complain of the judgment. The plaintiffs have appealed; and the defendants, answering, pray that it bo ■amended in their favor so as to give them all the sulphur during the remainder of the ten years, half of it thereafter, in perpetuity, and their damages in reconvention.

The pleadings, the testimony, and the printed and oral discussions in this case, have taken a wide range, but we do not find ourselves called upon to pass on all the questions raised. Taking up those which we deem essential to a proper decision of the controversy) we ■are, in th§ first place, satisfied, from an examination of the testimony, that no petroleum was found up to December 31, 1885, nor was any found in "workable quantity up to December 31, 1868. Of this there is no dispute. We further find that the defendants had not, up to the institution of this suit, in August, 1869, used every exertion to develop the resources of the lands in question, and had not constantly and without cessation carried on the work necessary to procure oil or petroleum,” and had not “ope'ráíed upon said lands to the fullest possible extent for the production of petroleum or coal oil.” On. the •contrary, we .find in June, 1869, the work abandoned, the defendants •deeply in debt, their treasury empty, and their engineer deserting them because his wages remained unpaid. We find the desperate •expedient suggested of paying the workmen in stock of the company. We find that thereafter, and up to November, 1869, the-same condition of affairs, as alleged in the supplemental petition. Indeed, we gather from the whole record that the search for petroleum in this instance, as in thousands of others, was a failure, and was abandoned by the defendants; who devoted their energies, thenceforward, to an endeavor to procure some means, not for the further search for petroleum, but for the mining of the sulphur, to which they claimed a right.

Upon this state of facts, what is the legal result ? In interpreting the agreements of October 5, 1865 and January 4, 1867, we must follow the familiar rule of construing the clauses together, giving to each the sense which results from the whole instrument. Domat, p. 1, b. 1, t. 1, § 2; C. C. 1950. We find the first agreement twofold — a right to mine for petroleum and similar products (and whether this included the right to mine for sulphur we are not called on to determine), and, in the event of successful mining, a right for ten years from the date of the agreement to one-half the gross product. The tenth article of the agreement, which we have quoted, repels the idea of an absolute, unconditional lease of the property for ten years. On the contrary, if tlm search for petroleum was unsuccessful up to December 31, 1866, all tlierights of the party of the second part were to cease; and they did «ease, for the search up to that time was unsuccessful. If on the first January, 1867, the plaintiffs had demanded possession of their lands, it can hardly be imagined that the defendants would have resisted the •demand, or would have claimed that they must first be put in mora. Defendants are put in default by demanding that they do something that in a legal sense they ought to do, and can do.

Now, on the fourth of January, 1867, another agreement is made, the important clauses of which we have quoted. By this the plaintiff entered into two obligations — the one absolute, the other conditional. They said, in effect, to the defendants : “ The agreement with Mallet, of which you are transferrees, is forfeited, but we now promise to waive that forfeiture. Up to the thirty-first of December, 1868, the svaiver is absolute. But, beyond that time, we will create a conditional obligation, its condition shall be suspensive, and, so far as you are concerned, potestative. We agree not to do a certain thing, provided you do something which lies entirely in your volition. If you will continue, unremittingly, to mine for petroleum, we will refrain from declaring a forfeiture which already exists.” This construction disposes, at once, in the negative, of the question whether a formal putting in default was necessary. We must, distinguish in this regard between a 'modus and a condition proper. The former is obligatory, and if the party bound is passively violating his obligation he must be put in default. But the condition in this case, at once suspensive and potestative, is one whose accomplishment depends on personal choice, and the party on whom it is imposed is free to accomplish it or not. “Je vous donne lo fonds cornélien, si vous faites telle chose; voilk une condition. Jo vous donne le fonds cornélien, ü la charge par vous de faire telle chose; voibi un mode, parce que la charge qui vous est imposée ne suspend ni ne retarde l’exócution de notre convention, et que son iuexócution, de votre part, doit seule entrainer sa rósolution. C’est bien la le caractére essentiel qui distingue le mode de la condition suspensive, dont il se separe par les caracteres de la condition résolutoire, et encore par ceux qui lui sónt propres. Dans les conditions dont l’accomplissement depend d’un fait personnel, colui d qui il est imposé est libre de l’áccomplir ou non.” * * * “ Le mode, au contraire, est une chose, ou un fait, stipule pour soi-méme, ou pour autrui, obligatoire et payable.” Larombiére, Obligations, vol. 2, pp. 6 and 7.

It would in this case, therefore, have been a vain thing for the plaintiffs to have demanded from the defendants the doing of something they were under no obligation to do, and the putting in mora Avas unnecessary, or, rather, legally, impossible.

We are constrained therefore, to conclude that the plaintiffs are entitled to the possession of the lands. It is therefore ordered that the judgment appealed from be avoided and reversed, and that the plaintiffs have judgment as prayed for, for possession of the lands described in their petition, that a writ of possession issue in due time therefor; and that the defendants pay the costs of both courts.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 2662.
    A. H. D’Meza v. L. F. Generes et al.
    A mortgago 2nay be given to secure a debt tliat has no legal existence at its date, as well as to secure a lean that is to be obtained in tho future on the faith ot its security. In this case the loau was not made until more than two years had elapsed from the date of the mortgage. Held — That the loan having.beea 2nade on the faith of the security of the mortgage, ii was binding on the property mortgaged to tho extent of the amount loaned from the date of the loan.
    Subsequent mortgagees have the right to dispute the \ alidity and amount of any prior mortgage.
    If the validity of a mortgage has been attacked by a subsequent mortgagee, the party against whom the attack is made, must be ^«.rmitted to show, by evidence, its real character and * consideration.
    An injunction by a subsequent mortgagee, restraining tho purchaser irem settling with the prior 2nortgagee, is not a cas¿ where a judgment has been enjoined, and no damages will be allowed.
    APPEAL from Seventh District Court, parish of Orleans, Oollens, J.

      Saucier cfc Michinard, for plaintiff and appellant. 0. Dufour, for defendants and appellees.
   Howe, J.

The contest in this case is between the plaintiff, a judicial mortgagee, whoso judgment was rendered upon a claim originating in 1867, and was recorded November 26, 1869, and the defendant, Generes, a conventional mortgagee, whoso mortgage was executed and recorded in the year 1862. The allegation, upon which 'the plaintiff attacked the security of Genérés was, that the consideration of tho mortgage given to the latter was illegal, and contrary to public, policy; being a loan by Genérés to Beverly, the common debtor, of $8000 in Confederate treasury notes. This allegation was not established, but, on tho contrary, disproved. It appears, however, from the evidence, that on the twelfth of May, 1862, Beverly made his note for $8000, to his own order, and indorsed in blank, au.d delivered it to Genérés, and on the same day executed his mortgage in favor of Genérés on the property whoso proceeds are here in dispute. The mortgage recites that Beverly is justly indebted to the mortgagee “for money to him lent in the presence of the notary and witnesses;” but it appears that no money was loaned at that time. On the twenty-fifth of July, 1864, the following memorandum appears to have been written on tho back of the note: “This note is reduced by partial payment to the sum of $3000, payment whereof is extended for two jrcars from this day, the interest for one year having been paid in advance, and interest for the second year payable at the expiration of the first year.”

The explanation of this memorandum appears to be that, on the twentyrfifth of July, 1864, Genérés did actually loan to Beverly, upon the security of the note and mortgage, the sum of $3000 in United States treasury notes. The judge a quo, in his opinion, says upon these questions:

I find that the note, the act and the memorandum are, all three, false.

First — Beverly did not receive, on the twelfth of May, 1862, any value for the note.

“Second — Genéres did not lend him $8000 (not oven a dollar) ia presence of the notary; and

“Third — The note was not reduced by partial payments on the-twenty-fifth of July, 1864; for, instead of being reduced from something to less, it was on that day raised from nothing to something;; from zero to $3000; the very reverse of what the memorandum states;.

“ The true fact, favorable to Genéres, which commands attention and regard, is, that there was, indeed, a loan actually made by him to-Beverly on the twenty-fifth of July, 1864, and that this loan was made on the security resulting from the mortgage act and note created May 12, 1862. A reliance on this security was expressly extended and contemplated. This security was the real consideration that induced; Genérés to make the loan, and it is therefore certainly equitable that, to the extent of the actual loan, Genérés should have the benefit of this security.”

Upon the authority of the case of Pickersgill v. Brown, 7 An. 297, the judge a quo then proceeded to give judgment, dismissing the plaintiff’s demand and maintaining the mortgage in favor of Genéres for the sum of three thousand dollars, with interest from July 25,1865.

The plaintiff, who has appealed, contends, with much earnestness,, that the mortgage of Genéres had no legal basis, there being at the time of its execution “no legal obligation, no vinoulum juris, whose performance was to be secured.” This point was fully discussed in the case of Pickersgill v. Brown, and upon the same authorities cited by plaintiff.. And this case is more free from doubt than that. In that case the court decided that the priority of Brown related back to the date of record of the mortgage. In this case it is not necessary to go to that extent. It is enough to say that it appears from the record, as a whole, that Beverly made his note and mortgage in 1862; that he delivered the note to Genérés for negotiation; that in July, 1864, three years before the plaintiff became a creditor of Beverly and five years before he became-a mortgagee, Generes, on the faith and security of the note and mortgage, loaned the sum of three thousand dollars in lawful money. Here was an obligation, surely; and Generes is protected for all ho demands, even if we should admit that the mortgage had rank only from the twenty-fifth July, 1864, the date of the actual loan thereon, and we do not perceive that the plaintiff, who chose to loan Beverly money throe years after, has any reason to complain of this priority.

The plaintiff reserved a bill of exceptions to the ruling of the court a qua in permitting evidence of the real intent and consideration of the mortgage. The court did not err. The plaintiff himself provoked the inquiry, and can not object to its being pushed to the extent of finding out the real truth.

The reality of the act and mortgage wore attacked by one not a party to it, and the contest was not between the contracting parties.

Tlie plaintiff, in commencing- this action, procured an injunction against the purchaser of the property to restrain him from settling with Generes. The appellee has prayed in this court for an amendment of the judgment so as to decree damages and counsel fees. This can not be permitted. It is not a case where a judgment has been enjoined.

For the reasons given, it is ordered that the judgment appealed from be affirmed, with costs.


author: Wyly, J.

text:
    No. 2681.
    Liquidator of the Clinton and Port Hudson Railroad Company v. Samuel Lee.
    A judgment ordering the liquidator of the Clinton and Port Hudson Railroad Company, an insolvent corporation, to collect, forthwith, sufficient funds to pay the creditors aud bondholders ot the corporation, is not a moneyed judgment and is not prescribed by the lapse of ten years without reinscription or revival.
    A compromise entered into between the liquidator of the Clinton and Port Hudson Railroad Company and the State, a creditor and bondholder, under the authority of an act of the Legislature, whereby the State agreed to take ten cents on the dollar, is not binding on the. other creditors and bondholders of the corporation, and the liquidator can not set up in bar to the right of other creditors to recover, that he has entered into a compromise with the State at ten cents on the dollar.
    The fact that the State has seen proper to compromise her claim against the company, with the stockholders, at ten cents on the dollar, furnishes no reason why the other creditors should be barred from collectingthe whole amount of their claims.
    The cancellation of the mortgage, as follows, “this mortgage has been canceled on the original by the receipt of Charles McVea, liquidator, as far as the State is concerned,” is not a cancellation of the mortgage as to other croditors. In making such inscription on the Jace of the mortgage, the liquidator acted only on behalf of the Stale, under a special statute, and his act did not affect the other mortgage creditors of the insolvent corporati.n,. whom he did not represent.
    from the Fifth District Court, parish of East Feliciaua. Posey, J.

      McVea & Kilbourne, for plaiutiff and appellant. Muse- ■(& Philips and Gross & Pardee, for defendant and appellee.
   Wyly, J.

This is a suit to collect $21,200 on a mortgage given by the defendant to secure two hundred and twelve shares of stock subscribed by Mm to the Clinton and Port Hudson Railroad Company, as well as to secure tbe payment of any loans effected or to be effected by said company, as contemplated in its original charter, and also by the act amending- the same, approved fifteenth February, 1837.

The defendant excepted to the action, on the ground that the liquidator had entered into an arrangement with him, pursuant to the act of 1858, in which lie received ten per cent, of the amount of hia subscription of stock in payment oí tlie mortgage, and that said liquidator canceled tbe same, whereby ho is estopped and absolutely barred from instituting this demand on tlie same mortgage.

He also excepted on tlie ground that, under the acts of the Legislature providing for the appointment of a liquidator of the Clinton aud Port Hudson Railroad Company, the power of the liquidator extends to the collection of the assets and subscriptions of stock only for the payment of the debts of the corporation; that there are now no debts to be paid; that the judgment in suit No. 1169, entitled -Gas Light Company v. Haynes, Liquidator, by virtue of which said company claims to be a creditor, has long since been prescribed, moro than ten years having elapsed since its rendition, and no revival thereof being made, according to law.

The exception was sustained by the court and plaintiff’s demand was dismissed, on the ground that there are no debts due by the insolvent corporation, in the opinion of the court, the judgment in the suit styled New Orleans Gas Light Company v. B. Haynes, Liquidator, being prescribed.

The plaintiff has appealed.

We can not concur in the opinion arrived at by the learned judge. The act of 1853- makes the prescription of ten years applicable to judgments for money, and provides the only means by which their extinguishment from that cause can bo averted.

The characteristics of a money judgment may be ascertained from article 3289 of the Civil Code and articles 628 and 641 of the Code of Practice. Tested by these, we do not think the judgment entitled The Gas Light Company v. B. Haynes, Liquidator, is a money judgment. That judgment is for no specific sum in money, it simply orders the liquidator to recognize the bonds and coupons held by the plaintiff therein and to proceed forthwith to collect of said mortgage stockholders and their legal representatives’’ sufficient funds to pay the plaintiff therein and the other bondholders.

This is not such a judgment as would create a judicial mortgage o% being recorded in the mortgage office, nor is it a judgment for a sum of money entitling the party in whose favor it was rendered to the writ of fieri facias; it simply directs that certain things shall bo done. C. P. 628.

In reference to the plea of estoppel urged in this case, wo can not agree with the counsel of the defendant.

The transaction or compromise of the claim of the State made with the defendant by the liquidator, pursuant to the act of 1858, .only bars him from enforcing the mortgage to raise funds to pay the State, it does not affect the other creditors of the insolvent corporation, nor does it estop the liquidator from pursuing the subscribers of stock on their mortgages, for the purpose of raising funds for the payment of tlie other creditors.

Because the State saw fit to compromise ner claim for ten cents on the dollar with the stockholders, and because the plaintiff carried out that agreement for the State, as was his duty under the act of 1858, is no reason why the plaintiff should be barred from collecting funds from the subscribers of stock to pay the Gas Light Company, as ordered by the court.

By tlie act of the ninth of March, 1858, the State only undertook to •compromise her own claim, leaving unimpaired the rights of all the other creditors. Had she undertaken to adjust their rights in tho premises it could not have produced any legal or binding effect upon them.

The mortgage was not canceled as alleged by the defendant. We find in the record this indorsement on the recorded mortgage: This mortgage has been canceled on the original by the receipt of Charles McVea, liquidator, as far as the State is concerned.” * # *

In making the compromise and in making the inscription above quoted on the face of the mortgage, Charles McVea acted only in behalf of the State, under a special statute. He did not represent tho other creditors of the insolvent' corporation, and his act, as to them, has not the force of the thing adjudged; it does not estop him from collecting funds on the stock mortgages to pay the Gas Light Company.

It is therefore ordered that the judgment dismissing plaintiff’s •demand in the exception of the defendant be avoided and annulled, and it is ordered that this case be remanded to be proceded in according to law, and that appellee pay costs of appeal.

Rehearing refused.


author: Wyry, J.

text:
    No. 2689.
    S. D. Moore v. W. Mayo Gray.
    Tlie privi’rge of the lessor cn tlie crop made on the plantation ior the year, and that of the furnisher of supplies to make the crop are concurrent.
    Before the passage of the act < f 1867, the laborers on the plantation had n > privilego on the croj to secure their wages, so, in this case, when the crop was made in the year 1866, nq lien or privilege can ho set up on the crop or its proceeds by the laborers who made it.
    Tho lien of the laborers who have made the crop under contract for a portion thoroof, is inferior, in rank, to that of the lessor and the iurnisher of supplies.
    la this case tho planter had to his credit on the books of hi3 merchant a cortain amount of money. He purchased his supplies or the p antation from the merchant, with other articles of merchandise not entitled to a privilege. On trial the judge a quo instructed the jury to impute this credit to that portion of the account of the planter which was privileged. Held — That the judge erred; that the moment the debt reached tho amount of the credit, compensation took place; that by operation of law tho credit became extinguished, regardless of the question of privilege.
    APPEAL from the Fifth District Court, parish of East Feliciana. Posey, J.

      Cross é Hardee and'Pace, Poster and H. T. Merrielc, Cor plaintiffs and appellants. I). J. Wedge and Hernán <& Lyons, for uiterveuors and appellants. McVea & Hunter, for Mrs. Atkinson, intervenor and appellee.
   Wyry, J.

This is a contest between the furnisher of supplies, the lessor, and tho laborers for fourteen bales of cotton, seized as tlie property of tho defendant, raised upon the plantation leased by him Prom Mrs. Atkinson, in the year, 1866.

Plaintiff sued the defendant for supplies furnished him to work the plantation, amounting to $1691 69, on .which payments were made,, leaving a cash balance of $1280 69, and he sequestered the fourteen bales of cotton found on the jircmises.

Mrs. Atkinson intervened, claiming the amount of rent due her for the lease of the plantation and her privilege on the crop.

The freodmen who cultivated the crop or who worked the plantation,, also intervened, claiming that under the contract by which they were employed by the defendant, Gray, as laborers on the plantation that year, (1866), they were to be supplied with clothes and rations and were to receive one-fourth the crops of cotton, corn and potatoes raised on the place by their labor.

The case was tried by a jury, and on their verdict judgment was rendered for plaintiff for $1280 69 and interest, with a privilege as furnisher of supplies for $558 34 on the fourteen bales of cotton seized; and also in favor of the intervenor, Mrs. Atkinson, for $1780 00 and interest, with lessor’s privilege on the cotton seized; it was. also ordered that the two privileges named bo concurrent; and it was further ordered that the demand of the laborers be rejected.

The plaintiff and the laborers appealed.

An examination of this, case leads us to the conclusion that there is no error in the judgment, except as to the amount of j)laintiff ’a privilege. IVe find the following stipulation in the contract between the laborers and the defendant, upon which they base their rights : “The party of the first part agrees to furnish rations to his employes for the year at the rate of four pounds of pork and one peck of meal to each effective hand, weekly, and also to supply them with such clothing as is necessary during said year; and, furthermore, ho agrees to give them the one-fourth of the net proceeds of the cotton, and one-fourth of the corn and potatoes raised on said plantation after the whole of the crops are gathered.”

From this clause of the contract it is evident that the laborers might take a share (one-fourth) of the corn and potatoes, in kind, but they could not do so out of the cotton. They could not talco a share of the cotton ; they were only to have a share (one-fourth) of the net proceeds of the cotton in remuneration for their services.

Now it matters not what position the laborers take, whether they claim the cotton as partners, or whether they claim one-fourth of its net proceeds as their wages; in either case their claims must yield to those of the lessor and the furnisher of supplies who have liens on the cotton produced.

If they set up a claim on the cotton for their hire, it can not avail them, because they had no lien on the crop for their wages at the time their contract of hire was made, which was in March, 1866. It was not till 1867 that an act was passed giving the laborers a lien for their wages on the crops produced by their labor.

As ordinary creditors, of course, they can not compete with the privilege creditors in this case. If their claims are based on a partnership, their rights to a share of the cotton must yield to the privilege of the plaintiff who furnished the supplies to produce it, and also to the infervenor, Mrs. Atkinson, who, as lessor, has both a privilege and pledge upon the products of her plantation leased by the defendant.

It matters not what partition the joint owners may have made of the products, the lien of the lessor remained upon them as long as they remained upon the premises, and the lien of the furnisher of supplies-also .remained upon them, whether hold in indivisión or whether divided among the partners.

The attempted seizure of the cotton by the agent of the freedmen’s bureau, after it had been sequestered by the plaintiff, in no manner affected the legal rights of the parties. That seizure was released, and the laborers came, as intervenors, into this case to assert their legal rights, which, they contend, are superior to those of their competitors, but which, we think, they have failed to establish. t

The complaint of non-joinder of all the laborers who were joint, obligors in the contract with the defendant, comes too late; it should, have been pleaded in limine litis.

As to the amount for which the plaintiff was adjudged a privilege-creditor, we think there is error. He had judgment for $1280 G9, with the privilege of a furnisher of supplies for $558 34 thereof, on the cotton seized. An examination of the account satisfies us that about two-thirds of the items thereof may be considered as plantation supplies. According to our estimate, the plaintiff should have a privilege on the cotton for $853 33J of his claim.

The instruction of the judge to the jury which was excepted to, viz :• that they should impute the 3400 00 credit to the part of the account which had a privilege on the crop, wo think erroneous. The credit was. given before the account "was made, and the moment the defendant became indebted to the plaintiff to the amount of the credit, compensation took place — it matters not whether the debt was a privilege one-upon the cotton or not. Tho question of imputation of payment is not in the case. There was no payment of a debt made by the defendant ; he simply had to his credit on the books of the plaintiff, $400 00 before he owed him; when ho became indebted $400 00, the credit, at once, by operation of law, became extinguished, regardless of the question of privilege. In other respects wo think the judgment correct.

It is therefore ordered that that part of the judgment allowing the plaintiff the privilege of a furnisher of supplies for the amount of $558 34 be amended so as to amount to $853 33J, and, as thus, amended, that the judgment be affirmed with costs.


author: Howell, J.

text:
    No. 2234.
    M. Pesant v. H. G. Heartt.
    If the plaintiff's demand is less than five hundred dollars, but the reconventional demand of the de endant is above that amount, the Supreme Court will only notice the appeal in so far as it affects the reconventional demand
    A lessee, receiving iho premises, in good order, is authorized to make the necessary repairs to keep them ia that condition, and deduct the cost from the rent, and his omission so to do will not authorize a claim for damages, co long as the rent due is sufficient to defray the expenses of making the repairs.
    A suit to eject a tenant and recover possession of the leased premises, is a summary proceeding, and a jury trial is not a'lowcd in such a case, unless by express provisions.
    from tlie Fourth District Court, for the parish of Orleans. Théard, J.

      Breaux <& Benner, for plaintiff and appellee. Brice & Mitchell, for defendant and appellant.
   Howell, J.

In this appeal, two suits arc consolidated. The first is for four months’ rent, at $100 per month, in which defendant sets up a plea in reconvention for repairs, amounting to $125, and $788 for loss and damages resulting, as alleged, from the loss of a subtenant, who left the part of the premises rented to him on account of its untenantable condition.

We can consider only the appeal on the reconventional demand; plaintiff’s claim being for less than five hundred dollars. 3 R. 387; 10 438; UR. 12; C An. 579.

An examination of the evidence does not convince us that the judge a quo erred in rejecting this demand. The written lease, signed on the sixteenth of October, 18C7 (the month in which the repairs were made), stipulates that the premises are in good order, and the lessee agrees to keep them so during the term of the lease. This is corroborated by other evidence, from which it appears the piicc was fixed with reference to the intention of the lessee to make repairs at his own expense, and for his convenience. He also paid several months’ rent after this, without claiming a deduction for said repairs, and he never made sucli a claim until the institution of this suit, in January, 1869, some fourteen or fifteen months after the repairs were made. But if it were not so, lie would not bo justified in perpetually refusing to pay any rent. Articles 2663, 2664, C. C., regulate this subject. The latter provides that, if the lessor refuses to make the necessary repairs as required by tlie former, when called on to do so, the lessee may himself cause them to bo made, and deduct the price from the rent, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.

The other item of the demand is also unsustained. It is for the rent under tlie sublease, from the first of November, 1668, to the expiration of the lease — first of November, 1869. This suit was brought in January, 1869, and embraces the rent for the four preceding months. The time subsequent could form no element of damages to offset the rent of those months, under the evidence. But, under the principle above cited, the omission of the lessor to make necessary repairs will not authorize a claim for damages, where the rent is sufficient to enable the tenant to make them. See 4 R. 429. And, furthermore, the district judge was not convinced that the subtenant left on account of the want of repairs.

The second suit was filed on the second of February, 1869, and is for the ejectment of the tenant, under the act of 1855. The defense is substantially that urged to the claim for rent.

The first question is presented by a bill of exceptions taken to the ruling of the district judge in refusing the defendant a trial by jury.

The judge did not err. The act of 1855 makes this a very summary proceeding, and requires it to be tried at all times by preference, after-three days’ notice. In summary proceedings, jury trials are not had, unless expressly allowed.

The two eases were tried on the same evidence, and the result in the first, necessarily disposes of this. There being no legal ground for-resisting the payment of the rent due, it follows that there is no legal defense to the demand for the possession of the leased premises, the contract of lease being violated by the tenant.

It is therefore ordered that the judgments appealed from herein be affirmed, with costs.


author: Ludeling, C. J.

text:
    No. 2692.
    J. Woodbridge v. C. W. Pope et al.
    The general ru'e is that a tutor can not transfer, by indorsement, the promissory notes, bills, or other paper held by him in his representative capacity, except by the advice of a family meeting; but such a transfer, ¡t has been held, is not an absolute nullity, and if the indorser shows that the transfer was made in ihe interest of the minor in whose favor the rule is made, the tillo to the note is sufficiently established, and the holder may recjver.
    'Che lutur has no legal right to create a debt against the minors, or their estate, without 1ho authority of the judge and the advice of a family meeting, Nor can the minors, or their esta! o, be held liable for a debt created by the sale cf property to the tutrix in her individual capacity.
    APPEAL from the Fifth District Court, parish of East Baton Rouge.

      Fosey, J. Samuel P. Greeves and A. S. Serrón, for plaintiff and appellee. Fuqua é Oalliham, for defendants and appellants.
   Ludeling, C. J.

Tlie plaintiff instituted this suit against C. W. Pope and bis ivife, Leonora P. Pope, residents of the State of Mississippi,, and Mrs. C. G. Montgomery, wife of P. K. Montgomery, individually and as tutrix of her minor children by a former marriage, in solido, for the sum of ono thousand six hundred and eighty-six dollars and forty cents, evidenced by two promissory notes, made by C. W. Pope, in favor of Mrs. Montgomery, tutrix, and by her transferred (through an agent) to the plaintiff, in the settlement of a debt due by the deceased father of her wards.

C. W. Pope and his wife excepted to the jurisdiction of the court rations persones. Tho exception was sustained, and they are not before ■this court.

Mrs. Montgomery, also, filed an exception, alleging that on tho face of tho petition it appears that tho notes in suit are not tho property of the plaintiff; but that they belong to tho minors, represented by her as tutrix.

Thereupon the plaintiff filed an amended petition, in which he stated that said notes were given in part to represent the price of property sold by order of the court to pay debts of the succession, and that they were transferred to him, as cash, in payment of acknowledged claims which ho had against the succession. Ho also represented that tho property, sold by order of court to pay debts of the succession, had been retroceded to Mrs. Montgomery by Pope, tho purchaser, because ho was unable to pay the price, and that in the act of retrocession, Mrs. Montgomery had acknowledged tho title and possession of those two notes to be in the plaintiff, and that she was estopped from denying plaintiff’s title; and further, that the debt paid by the transfer of the aforesaid notes was a community debt, for which the community property was liable. To the amended petition Mrs. Montgomery and her cotutor excepted, on the grounds that the allegations of the .amended petition were inconsistent with those of the original petition, as in the ono she was sued individually and in solido with the other defendants; and in the other she was sued only in her fiduciary capacity; they prayed to have tho amended petition dismissed, or to have plaintiff elect whether he will prosecuto his claim against Mrs. Montgomery personally or as tutrix.

On the trial of the exception, the judge ordered that tho exception bo sustained so far as to strike out the demand against Mrs. Montgomery personally. In this ruling tho plaintiff has acquiesced.

The answer of Mrs. Montgomery denies the title of plaintiff to the note; denies the authority of Seymour, the agent, to transfer thorn; denies all liability to plaintiff on the notes; and she pleads, in rcconvention that the notes belong to her wards, and prays for judgment, ordering them to bo delivered to her as tutrix. Subsequently the defendants pleaded the prescription of five years against the plaintiff’s •demands.

Tho evidence in the record establishes tho following facts:

That John W. Seymour died in 1859, leaving a widow (the defendant) and two minor children; that the estate being in debt, although solvent, the tutrix applied for an order to sell property of the succession to pay debts, and provoked a family meeting to fix the terms of the sale, which the family meeting did; that at the probate sale, C. W. Pope became the purchaser, paid tho cash installment, and gave his notes, secured by mortgage on tho property sold, payable in four annual installments, according to tho terms of the sale; and that two of those notes form the subject of this litigation; that the deceased had been the agent of plaintiff and had collected rents, for which he had not settled at the period of his death; that the amount of this indebtedness was fixed by arbitration, at a sum considerably less than that claimed by plaintiff; that the agent of the tutrix acknowledged the amount thus fixed as due by the estate, delivered to the agent of the plaintiff the two notes in suit, in part payment, and subsequently, on the order of the tutrix, paid four hundred dollars, the balance of the sum fixed by the arbitrators as the amount due plaintiff by the deceased; that Pope conveyed the property to his wife, as a elation onjpayement; and they, being unable to pay the price, transferred the property to Mrs. Montgomery, who, through her attorney, accepted the transfer, gave up the notes of Pope, which she hold, and assumed to pay the two notes sued on.

The first question for solution, is the right of the tutrix to indorse over to the plaintiff the notes sued on, so as to give him title thereto.

The general rule is, that persons acting in a fiduciary capacity, such ns syndics, executors, tutors, etc., have no right to tranfer, by indorsement, the promissory notes, bills and other paper held by them in their representative capacity, except under an order of court, and, in the case of tutors, with the advice of a family meeting. But this, like other general rules, is not without its exceptions. Thus it has been hold that such a transfer is not an absolute nullity, and if the transfer be made in the interest of the party, in whose favor the restriction or rule is made, and this fact be proved by the tranferree, the bona fide ownership is established, and the holder may recover on the note. Nicholson, syndic, v. Chapman, 1 An. 222; McMasters v. Dunbar, 2 An. 577; 10 An. 210.

In this case, we have seen that property of the succession was ordered to be sold, with advice of a family meeting, to pay debts. Two of the notes, given for the price of the property, were used as money in discharge of an acknowledged debt of the succession. We can see nothing in this adverse to the interest of the minors, or of the succession. It is unnecessary to notice the question raised about the authority of the agent, Seymour, to make the transfer of the notes, as his act was ratified by the tutrix, who gave an order on him for four hundred dollars, the balance due, after giving the two notes. Nor is if. necessary to inquire if the agent, who accepted the transfer from Pope and wife, for Mrs. Montgomery had authority to do so, for she has been in possession of the property, receiving the rents and revenues thereof ever since the transfer. *

We find that the note, duo in 18G1, for $326 40, was prescribed when this suit was instituted.

We also find, from admissions filed in this court, that the mortgage, retained to secure the payment of the note for one thousand three hundred and sixty dollars, has not been reinsoribed since 1859, consequently it has pcrempted.

The only remaining question relates to the liability of the tutrix (or minors) under the assumpsit of Mrs. Montgomery in the act from Pope to her.

The transfer is made to her individually, but the consideration of the transfer of the property is stated to be the delivery of the notes of the purchaser, Pope, hold by her as tutrix, and the assumption of the debt due by Pope to plaintiff for the two notes held by him.

As tutrix she had no right thus to create a debt against the minors, even if wo admit that she had the right to take back the property and give tq> tlie notes, as she did, without the authority of the judge and the advice of a family meeting.

Wo are inclined to regard the act from Pope and wife, to Mrs. Montgomery, as a sale of the property to her individually; and we are oi opinion that the minors are not liable in any manner for the debts claimed in this suit. The claim against. Mrs. Montgomery personally having been dismissed, on exception, and acquiesced in, we can not pass upon her liability.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that the plaintiff’s demand be rejected with costs of both courts.


author: IIowe, J.

text:
    No. 1972.
    John S. Simonds v. Mrs. Mary Heinn—John Haeberle, Surety, etc.
    In this case, the appelbe took a rule on the app.llart, to test tho solvency of the surety on the bond. The appellant, as is alleged, fearing that he cculd net sustain the solvency of tho surety, abandoned the appeal. Held — That the abandonment of the appeal for this reason did not release the surety on the bond.
    As a general rule, no proceedings can be had against the surety on an appeal bond, if the fieri facias has been returned into court before the return day. But where the return of the sheriff on the writ shows that demand vac made and tho judgment debtor had gone into bankruptcy, thereby putting it out oí the power of the judgment creditor to pursue him auy far.her under execution. Held — That the liability of the surety became fixed from that moment; that no further proceeding under execution being possible against the judgment debtor, tho creditor was at liberty to proceed by rule against the surety on tho appeal bond
    APPEAL from Fifth District Court, parish of Orleans. Feaumont, J.

      JB. JEgan, for plaintiff and appellee. IT. Grivot, for appellant.
   IIowe, J.

John I-Iaeberle bas appealed from a judgment, upon a rule condemning liim as surety upon tbo appeal bond of Mrs. Mary Ileinn. He contests bis liability upon tliveo grounds.

First — Because tlie plaintiff took a rul® in tlie lower court to set aside tlie appeal of Mrs. Ileinn, on the ground that the surety (Haebcile) was not solvent, and caused tho rule to be continued until a day later than the return day of tlie appeal; and that Mrs. Heinn, fearful of not establishing the solvency of her surety failed to file tho record,” and the appeal was thus abandoned. He contends that in, this regard the plaintiff committed a wrong of which he can not take advantage. We hardly think that such a point will be seriously insisted on. The proceeding to set aside the appeal had been practically waived by the continuance complained of, and if the appellant-abandoned her appeal through fear of not being able to establish the solvency of her surety, the consequences of such unnecessary alarm ought not to be visited on the appellee.

Second — Because the surety was discharged by agreement of plaintiff. We observe, in the record, a rather distressing conflict of testimony on this point, but a careful examination of the evidence satisfies us that the court below did not err in concluding that the surety failed to-make out this defense. We find no consideration for this alleged discharge. If it existed at all, it must have been a gratuitous remission, and though such a remission is perfectly valid, it is somewhat uncommon in the experience of business life. Certainly, in a case like the-present, where the litigation has been jirotracted and bitter j where-the principal debtor has become bankrupt, and the surety is perfectly solvent, it is highly improbable that the plaintiff should remit a valid and well secured claim. The improbability is not removed by the evidence.

Third — Because the writ of fieri facias issued by the plaintiff prior to the taking of the rule was returned before its return day, and the proper demand was not made thereunder. The proper demand was made, it appers by the sheriff’s return, first by the defendant, and next by the plaintiff’s counsel. Lynch v. Bar, 10 Rob. 136; Levois Thibodaux, 13 An. 264. But the writ was returned two or three days before its term expired, and in an ordinary case this fact might be fatal to the plaintiff’s proceeding. 10 Rob. 136. But in this instance it, appears that, before the rule was taken, the principal debtor had gone into bankruptcy; that further pursuit of her property by means of fieri' facias was impossible, and that the immediate liability of the surety was thus fixed. Under such circumstances, the reason of the rule laid down in 10 Rob. ceases. And the doctrine of the cases of Alley v. Hawthorn, 1 An. 122, and Wogan v. Thompson, 10 An. 284, applies,, that if a creditor can not take out an execution, or proceed under one-which has been taken out, by reason of a change in the con dition of the judgment debtor’s estate, which preventsits being reached by that-process, no further ceremony on the creditor’s part is necessary before a rule can be properly taken against the surety.

For these reasons it is ordered that the judgment be affirmed, with-costs.


text:
    No. 2472.
    The State, ex rel. John B. Howard, v. S. N. Burbank, Treasurer Metropolitan Police Board.
    ■One creditor can not gain a preference over another by applying for a writ of mandamus to compel an officer to pay a sum of money out of funds to be thereafter received by him.
    If the record shows, as in this case, that the treasurer of the Metropolitan Police was willing to do what was demanded of him, tho writ of mandamus was unnecessary and should not have been granted. The province of courts of justice is to decide on real issues, and not to be used as instruments to work injustice.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      J. B. Howard, for relator, appellee. JE. Filleul, for Board of Metropolitan Police, appellant.
   Ludeling, C. J.

The appellee moves to dismiss this appeal for reasons stated in his motion to dismiss the appeal in the case of tlic State, ex rel. Burbank, v. Antoine Dabnclet, State Treasurer, and the additional reasons, to wit:

Because the writ of mandamus being an order issued In the name of the State, no citizen is authorized to intervene to thwart tho execution of the will of the sovereign power.

“Because an appellant can not plead ignorance of tho law; nor having neglected the plain and specific remedy which the law afforded and affords, seeks the benefit of one, which the law forbids, if appellant-had any rights.

“Because the amount in dispute does not exceed five hundred dollars, tlio judgment having been executed so far as respondent had funds in possession, and respondent being now without funds exceeding one hundred dollars.”

We recite the grounds stated in the motion, only to show the frivolous character of the motion, which is overruled.

On the nineteenth day of October, 1869, John B. Howard, agent, represented that ho was the owner and holder of $100,000 of Metropolitan Police warrants; that S. N. Burbank, treasurer of tbe. Metropolitan Police Board, lias in his hands more than $200,000 for payment of said warrants, and that said Burbank refused to pay, although amicably requested to do so.

lie prayed for a writ of mandamus against said Burbank, etc. An alternative writ was issued returnable on the twenty-first of October, 1869. On that day a supplemental petition was filed by Howard, agent, in which he alleges that “since the filing of this suit, relator is informed by defendant, and verily believes, that defendant has not in his possession the amount of $200,000 specified in plaintiff’s original petition. Defendant is constructively in possession, as he alleges, of the sum of ($632,423 44) six hundred and thirty-two thousand four hundred and twenty-three dollars and forty-four cents, to the possession of which he is entitled as treasurer, the same being the amount to the credit of the Metropolitan Police Board, placed in the hands of Antoine Dubuclet, State Treasurer,-by -the city of New Orleans, through the fiscal agent.”

Defendant alleges that he has made amicable demand of said Dubuclet for $632,423 44, and has been refused. Relator prays for a writ to command Dubuclet, Treasurer, to deliver over to Burbank the sum aforesaid in lawful money of the United States, and that, on the receipt of this sum by Burbank, he bo commanded to pay to petitioner $100,000. On this application is indorsed the following consent: “Defendant accepts service, waiving citation, and consents to the ■order herein prayed for.”

The judge a quo ordered Burbank to pay to Howard, agent, $100,000 on receiving the $632,423 44 from Dubuclet, Treasurer.

On the same day the following judgment was rendered in the case, to wit:

“In this matter, the court considering the second and amended petition filed this day, and considering further the written waiver of citation and consent that the order prayed for be granted immediately, it is ordered that the foregoing judgment, this day rendered and signed, bo amended to read as follow's, to wit: It is ordered and .adjudged that S. N. Burbank, treasurer of the Metropolitan Police Board, be commanded forthwith, on the presentation of the warrants mentioned in said amended petition, for the sum of five hundred and eighty thousand dollars, to pay to J. B. Howard the sum of five hundred and eighty thousand dollars, in lawful money of the United States, in lieu of said warrants, with costs of suit, or as much as may remain in his hands on account of the amount of the judgment, after deducting the judgments rendered in this court in the suits of the State, on the relation of Walter Pngh and of J. Davidson and J, D. Hill, v. the said Burbank, and other judgments on mandamus rendered prior to this day or on this day. Judgment rendered twenty-first October, 1869.”

The proceedings in this case are extraordinary and anomalous. John B. Howard, agent, without naming his principal, asks for a wilt of mandamus to compel an officer to perform an alleged ministerial duty. On the day fixed for the trial of the rule nisi the relator comes into court with an amended petition in which he avers that the defendant has not in his possession the sum of two hundred thousand dollars, as stated in his original petition, and to the truth whereof ho had sworn ; but. that he is constructively in possession of a much larger amount, which is in the actual possession and under the control of the State Treasurer, and prays that Dubuclet, Treasurer, be ordered to pay the amount to Burbank and that Burbank be ordered to pay relator, when he receives the money. And, subsequently, during the same day, Howard increases his demand against Burbank from one hundred thousand dollars to five hundred and eighty-two thousand dollars.

And the treasurer, Burbank, complacently consents to the order,, although it appears from the sworn statements of Howard, relator, that he, Burbank, had informed the relator, ou the twenty-first October, 1869, that he did not have the money in his possession, although bethought he was entitled to its control and custody.

An inspection of the record in this case convinces us that the proceeding between Howard and Burbank was fictitious and collusive.' “ Courts of justice are to decide on real contest; they are never to be-used as instruments to work injustice.” 1 Mart.., p. 91. The writ of mandamus in this case was not necessary, for tho defendant was willing to do what was asked of him, but he had not the means until! after he had received the money from the State Treasurer. And the law never contemplated that one creditor should got a preference over another by applying for a writ of mandamus to command an officer to pay a sum of money out of funds to bo thereafter received by him. This is a degree of diligence not favored or countenanced by the law.

It is therefore ordered that the judgment of the district court be avoided and reversed, and that the application for the writ of mandamus be dismissed, with costs of both courts.


author: Taliaferro, J. Wyly, J.,

text:
    No. 2829.
    Agnes Rodriquez, Widow Michel Cormier v. Charles Gueriniere Bienvenu
    The abolition of slavery by tlie sovereign x>owor put an end to all contracts depending for tlicir* existence on that condition, and as the contract for the hire of slaves could not have been made without* the existence of a state of slavery, the destruction of that relation by tho sovereign power destroyed the contract, and tlie obligation given as tho evidence of such-contract, is null and void
    Slavery, as it formerly existed in the United States, only gave to tho owner the right to the labor of the slave during his life, and the destruction of slavery carried with it the destruction of that right. Itmakes no difference whether the contract is made for the sale of the slave or whether it is ior the hire. In the one case it is for the services of the slave for an indefinite period, and in the other it is for a fixed period of time. The contract is equally null m both cases.
    APPEAL from Third Judicial District, parish of St. Martin. Train, J.

      Garry & Fournet, for plaintiff and appellee. FeFlane & Ferry, for defendant and appellant.
   Taliaferro, J.

The plaintiff brings this action to recover the amount of a promissory note executed, as she alleges, iu her favor, by the defendant, on the first of March, 1864,for the suiu of eight hundred and eight dollars, with interest, at eight per cent, per annum, from the seventeenth of December, 1864. Ou tho twenty-seventh of September, 1866, the defendant filed an answer, in which he avers that the note was furnished for the value of tlie services of slaves, fixed according to-the standard of Confederate money in 1864, and were to be paid in that currency. That he ought not now to be required to pay more than the value of that sum, in Confederate money, at that time estimated by the lawful currency of the country.

On the fourteenth of June, 1869, the defendant filed a supplemental answer, in which he avers that the consideration of the note being for the hire of slaves, it is null and void, and prays that the plaintiff’s demand be rejected, and that he have judgment in his favor.

There was judgment for the amount claimed infayor.of the plaintiff, and the defendant appealed.

We find two bills of exceptions in the record; but it is not necessary in deciding this case to consider them. It is not denied that the consideration of the note was the value of tlie services of slaves hired by the plaintiff to the defendant.

The ownership of persons, as it formerly existed in this country, can not be said to have extended beyond the right of the owner to exact, for his own use and benefit, the labor and services of the person subjected to that ownership without remuneration to him. The person hiring a slave, had this right during the term of the lease to the same extent that the owner had. Both the owner and the hirer were entitled by the laws that then existed, to exact from the slave, his labor, without recompense to him. The hirer had, however, to account for the hire of the services to the owner of the slave. Then, the difference between the right of the owner and that of the hirer, consisted only in the duration of the right and in the obligation of the hirer, to pay the owner of the slave for his labor and services. In the one case, the labor and services weie to continue an indefinite period of time — that is, during the life of the slave. In the other case, a fixed term was established. By the abolition of slavery, all contracts existing at the time, relating to the sale of slaves, were annulled. The sale of a slave being, in substance, the sale of his services for life, the obligation, which was previously binding upon the purchaser, to pay for these services received, and to bo received, became extinct, in like manner the obligation of the hirer to pay for the services, of the slave for a fixed period, was canceled.

It is of no importance whether the period of the hire of the slave had terminated or not before the time of the extinction of slavery, nor whether the contract was valid prior to that time. With the end of the status or condition of slavery, every contract founded upon, or growing out of that condition, necessarily came to an end also, whether such contract was previously valid or not. As well might it be decreed that the purchaser of a slave who had never paid any part of the stipulated price, and who had received the services of the slave for years before emancipation, should pay for these services, as to decree that the hirer of a slave should pay the stipulated hire, which became due before that event occurred. True, in the one case, there was a special contract for hire; in the other, there was not. But the analogy of the two cases is so strong, that whatever equity would require in the one case, it would equally require in the other. The existence of a state of slavery, sanctioned by law, lay at tlie foundation of tlie contract of hire of slaves. The laws, which authorized and enforced the contract, were necessarily abolished by the subversion of slavery. Persons could no longer be sold or hired. Existing obligations for- the price or the hire could not be enforced, for there was no longer any law authorizing their enforcement.

It will not do to say that these existing obligations wore not impaired by the act of emancipation, and could not be. The high behest of the sovereign power is uncontrolled by prohibitions which restrain ordinary legislation. Its force destroyed all the objections depending for their efficacy upon the existence of laws maintaining slavery. Courts were therefore left without authority to enforce contracts of this character.

The case of Dickinson v. Maynard, 20 An. 66, in which this court awarded a small sum to the plaintiff, constructively, as hire of a slave, was not a suit ior hire of slaves, but for damages on account of an attachment wrongfully sued out by the defendant. The award was virtually in the nature of damages, and made on the authority of Phelps v. Coggshill, 13 An. 440. In this, as well as in another important feature, that case differs widely from the one before us.

In the case of Tate, administrator, v. Fletcher et al., 19 An. 371, the judgment of the district court was reversed, as to that part of it which allowed the plaintiff hire for a slave, and the decision was based upon the doctrine of the case of Wainwright v. Bridges, 19 An. 234, then recently decided. This we consider as the settled doctrine in regard to the question of the right to recover the hire of slaves.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff and appellee paying costs in both courts.

Wyly, J.,

dissenting. I can not concur in the opinion of the majority of the court on the question presented in this case, to wdt: Whether a note given for the hire of slaves before emancipation can be collected in the courts of this State.

Contracts for the sale of jmrsons can not bo enforced under article 128 of the constitution, and under the settled jurisprudence of this State; but our constitution and our jurisprudence will be searched in vain to find any prohibition whatever against the enforcement of contracts of the character herein presented. But it is argued that the contract of hire is analogous to that of sale, and as the high behest of the sovercigmpower, which is without control, has emancipated slaves, its force destroyed all obligations depending for their efficacy upon the the existence of laws maintaining slavery.

I can not admit tlao correctness of tho proposition. The contract of' hire is not a species of sale; it differs from it as widely as it is poss'.ble for one class of contracts to differ from another.

When the note sued on was given, the services had been rendered under the contract of hire, .the defendant ‘having received full and complete consideration.

The contract evidenced by the note did notin the least depend upon the continued existence of slavery. Whether the laws would tolerate-the institution of slavery for a limited or indefinite period after the term of hire had elapsed, could in no manner concern the defendant, ft could have no possible bearing, on his obligation, which had become absolute. No eviction by emancipation could affect tho valuable consideration already received by him in the services of the slaves which he had hired from the plaintiff.

The consideration of the note was labor performed, a consideration as valuable as that of borrowed money, or any other, necessary to-make a contract valid, After the services had been rendered, tho obligation to pay the price became absolute, and whether the owner of the slaves -was subsequently evicted on account of defective title, or-from any other cause, it did not in the least affect the consideration already received. The continued existence of slavery could add nothing to the advantage of tho hirer, who had already enjoyed the-benefits of the services he contracted for.

The object of the contract of sale is the ownership of the slavcs-and their children, and it may well be said that the parties to such au agreement contracted with reference to the continued existence of slavery. But, in making the note sued on, the parties merely contracted for the-purpose of liquidating a debt, the consideration of which had already been received.

In reference to the contract of sale, it has been argued, with some force, and there is equity in it, that as slavery lay at tho foundation of the.contract, when there was an intervention of paramount power rendering it impossible, by emancipation, for the intention and purposes of the contract to be carried out, both parties should bo released. This argument has no application to the contract before us. The defendant, who has already received the services he contracted for,, can make no appeal to equity.

I can sec no possible reason for refusing to enforce the contract before us. Certainly, the framers of our constitution did not intend to prohibit the courts from doing so, because they took cafe to consider the slave question, and they deemed it necessary only to prohibit the enforcement of contracts for the sale of persons; there was no .inhibition applied to the existing contracts of hire. It is well known that no prohibitory law can bo extended by-implication. It must be construed strictly. Whether the contract of hire resembles the contract -of sale or not, it is quite certain that article 128 of the constitution •can not be legitimately applied to prohibit its enforcement.

Immorality is the only ground — it is the only position having the merit of plausibility — which the defendant can take in his defense. And that is not a substantial one. Although it has not been urged by the defendant, I deem it proper to give it some consideration.

The hiring, in the case before us, occurred before emancipation. The laws then in force, and forming a part of" the contract, declared it lawful to hire slaves. It was then just as legal to hire slaves as to rent land, or make any other contract for the use of another’s property, Our codes are filled with articles on the subject of slavery. Our jurisprudence is filled with cases in which contracts for the hire of slaves have been adjudged lawful and obligatory. After hundreds and thousands of decisions embraced iu our reports, can this court now say that it was not lawful to hire slaves before the rebellion? After -enforcing contracts of this character in a uniform current of decisions for over fifty years, can this court consistently say that the contract; before us, made under the same laws as those which have already so ■often received its sanction, is a contract that was immoral — that it was reprobated by law? Surely not. We can not say that our illustrious predecessors degraded- this tribunal by encouraging immorality — by hearing guilty suitors, and by entertaining and enforcing contracts reprobated by law. But, it is said, the law has been changed since «mancipation, and it is now immoral to hire a person as a slave. So it is. But does the law upon this question, since emancipation, have effect upon contracts made before emancipation? Is the validity of the contract, or its morality to be tested by the laws now in force, or those in force when it was entered into ? What laws entered into and formed part of the contract of hire in this case, which was before emancipation ? Was it the then existing laws, or those that have been passed since? The question scarcely needs an answer. When the «ontract was made, the laws then iu force were necessarily a part thereof, as far as not modified by the parties. And if it was then moral and valid, which it was, the contract ever afterwards remained moral and obligatory. This is elementary. The validity of a contract — and of courso it could not be valid without being moral — must be determined by the laws in force at the time it was entered into. It can not be tested by posterior laws. This has undoubtedly, over and over again, been declared by this court, and by the courts of every nation in the civilized world.

Can we now say that the principle I have mentioned is not correct, and that a contract, moral and valid at the time it was made, may become invalid and immoral by posterior laws ? I think not. I think the doctrine of immorality is unsound and inapplicable.

To my mind it is manifest that the note before us, which was given prior to emancipation, for services already rendered, was not affected by tlie subsequent abolition of slavery: it did not depend for its validity upon tlie continued existence of slavery, and it did not fall witli that institution. Tbe President of the United States emancipated slaves, in the exercise of bis war power. It was an incident to tlie war power confided to him, and in bis proclamation lie expressly declared it as a war measure. Did tbe exercise of a war measure, in the midst of tbe great rebellion, abolishing slavery, necessarily destroy tlie contract before us? Was its destruction an incident of tbe war l>o\vcr? Was it in any manner necessary to suppress tbe rebellion? I think not. I believe that the contract before us was not destroyed by tbe high behest of tbe sovereign power; and in issuing bis proclamation of emancipation, tbe President of tbe United States never designed impairing tbe obligations of contracts of this character.

Whore tlie contract is not tainted with immorality, and where there is no inhibition by paramount authority, it should be enforced by tbe courts of this State.

I therefore feel constrained to dissent from the opinion of tbe majority of tbe court in this case.


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    No. 1649.
    Succession of William Woodward.
    Colton or other produce cultivated and made by the survivor, after the dissolution of tho community, does not fall into and form a part of the succession; nor are the fees of clerks or other officers of the court, for duties performed in opening and administering the estate, chargeable to the proceeds of such cutton or other produce. ,
    If a writ of sequestration has issued by a creditor of the estate agamst the cotton produced by the survivor, the same will be set aside on the ground that the cotton was the individual property of the survivor, and not a part of the estate.
    APPEAL from Fifth District Court, parish of East Feliciana. Posey, J.

      A., M. Dunn and John Me Vea, for appellee. W. P. Kernati and James P. Smith, for appellant.
    Reporter. — In remanding this cause for tbe purpose of tbe settlement of the succession, tbe Supreme Court instructed the judge a quo that no claim founded on tbe existence of slavery, whether for tbe price or tbe biro of slaves, was to be entertained in making up tbe judgment between the contending parties. This decision is supported by a long current of authority, as well as a constitutional enactment, in so far as the enforcement of contracts, tbe consideration of which was tbe price of. slaves. But the question of tbe inability to recover wages for the hire of slaves, while that condition existed in the country, lias not, until recently, been announced by tbe court. See the case of Rodriquez v. Bienvcuu, ante page 300. This decision, reaffirming the doctrine announced in that case, it would seem, settles tbe question against tbe right to recover tbe hire of slaves.
   Wyly, J.

The object of this litigation is tbe settlement and partition of tlie succession of William Woodward, deceased, with his surviving widow and with bis heirs, tbe issue of this marriage and of a former marriage.

Tlie ¿Headings arc quite confused, and present some issues wlHcli should have been tried separately

In 1839, William Woodward, a planter of East Feliciana, married Mary McDonald, with whom there was a community of acquets and gains till her death, which was in 1819.

Her heirs, Mary E. Woodward, wife of James P. Monahan, and Susan A. and William E. Woodward, minors, to whom James P. Monahan has been appointed tutor, are the active litigants in this case.

They claim the separate property of their mother, her half of che community which existed between her and their father, their share of his succession, and also hire of the slaves and other property, whether the separate property of their mother or her share of the community.

In 1850, William Woodward married the surviving widow, Mrs. Amanda M. Woodward, with whom there existed a community of acquets and gains till his death, in 1860. Since his death, as natural tutrix of her three minor children, the said Amanda M. Woodward has possessed and administered his estate.

Since the institution of the original proceeding for partition, which was in 1863, the slaves have been emancipated; aud, under the jurisprudence of this State, claims for the price of slaves, can not be enforced; and also, under the decision of Rodriquez, widow, etc., v. Bienvenu, lately decided, the hire of slaves can not be recovered. The principal demand of the heirs of the first marriage against the surviving widow is for slaves and their hire. The proceeding is based mainly on a claim for hire of slaves duo by the community existing between William and Amanda M. Woodward to the heirs of Mary Woodward; and also a claim by these heirs against Mrs. Amanda M. Woodward, for hire of slaves since the death of said William Woodward.

As debts of the character named enter so largely into the proceedings before us, and the judgment of the court below, and as the record is so confused, we deem it proper to remand the case, with instructions that the settlement and partition be made without regard to the demand for the price or hire of slaves, and according to law.

The sequestration of the cotton raised by the surviving widow since the dissolution of the community with William Woodward, as the property of said succession, was erroneous. It was not the property of said succession, but belongs to the surviving widow. 6 R. 109. The heirs have not claimed a privilege, nor are they entitled to it on the cotton sequestered. Our attention is directed to a bill of exception taken by the appellant, Mrs. Amanda M. Woodward, to the interlocutory order of the judge, directing thatthc fees of the clerk be paid out of the proceeds of the cotton sequestered in the hands of the sheriff. The bill was well taken. The cotton sequestered did not belong to the succession of William Woodward, having been raised by his surviving, widow, after his death; it was not liable for the debts of the succession.

It is therefore ordered that tho judgment appealed from be avoided and annulled; and it is ordered that the cotton sequestered be declared the property of Mrs. Amanda M. Woodward; that she is entitled to its proceeds, and that the sequestration be dissolved at tho costs of the plaintiffs in said sequestration suit. It is further ordered that the proceeding's herein for settlement and partition of the succession of William Woodward, deceased, be rendered to the court below, to be proceeded in according to law, with instruction that no claim founded on the existence of the institution of slavery, whether for the price or hire of slaves, can be entertained and enforced. It is further ordered that the costs of this proceeding be paid by tho succession of William Woodward.


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    No. 2306.
    Henry Lussee v. Harry T. Hays, Sheriff, and Newton Richards.
    In this case tbe district judge gave, as reasons for dissolving the injunction “ that none of the-Witnesses presented by the plaintiff were entitled to credit and belief.” Five witnesses testified that the ownership of the property seized was not iu the judgment debtor, but was in the plaintiff iu injunction. No countervaiiiog ovidonce was offered, nor was any effort made to impeach or discredit the witnesses offered by tho plaintiff. Held, by the Supreme Court, that the judge of the district court erred in substituting Ms own biliet of the credibility of the witnesses offered fir that of other and counter testimony.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Samuel Myers and J. J). Augustine, for plaintiff and appellant. Hays <& New, for defendants and appellees.
   Wyly, J.

The plaintiff alleges that tho defendant, Newton Richards, has caused the sheriff of the parish of Orleans, under a writ of fieri facias issued in the judgment of the said Richards <o. Caspar Lusse, to seize his store fixtures and stock in the store house at 178 Now Levee street, New Orleans, of tho value of two thousand dollars; that the same is his property and in no manner liable to seizure under said judgment against Caspar Lusse. Ho prayed for and obtained the writ of injuction; ho also prayed for ten thousand dollars damages against the defendant, Newton Richards, and the sheriff, and that tho judgment be made perpetual.

Tbc defendant, Richards, pleaded tho general denial, and alleged that the property seized belonged tó bis judgment debtor, Caspar Lusse ; that if there has been any transfer by Caspar Lusse to his son, the present plaintiff, it is simulated and fraudulent and without effect as to him. He prayed for tho dissolution of the injunction with damages.

The court gave judgment for the defendants, dissolving the injunction, with fifty dollars damages and costs. The plaintiff has appealed. The testimony of the plaintiff and of liis father, Caspar Lusse, and of William Hanneman, corroborated by the evidence of two other witnesses, show, beyond doubt, that the plaintiff is the owner and possessor of the property seized, and that it docs not belong to the defendant in execution, Caspar Lusse.

There was no evidence to the contrary introduced by the defendants.

In the opinion of the .judge a quo he assigns for reason “ that nono of the witnesses produced by the plaintiff were entitled to credit and belief.”

There was no attempt to discredit the evidence of these witnesses; nor was there any proof adduced by the defendants to show that the property seized had ever been owned or possessed by Caspar Lusse.

With due regard to the opinion of the learned judge who tried the ease, as to the credibility of the witnesses, we think his judgment erroneous.

Without countervailing evidence we do’ not feel disposed to ignore the positive sworn statements of five witnesses whose veracity has not been impeached.

It is therefore ordered that the judgment appealed from be reversed, and that there bo judgment for the plaintiff decreeing him the owner of the property seized, perpetuating the injunction, and that the defendants pay costs of both courts.

Rehearing refused.