author: Merrick, O. J.

text:
    Vicksburg, Shreveport and Texas Railroad Co. v. Barksdale et als.
    An injunction bond improperly made payable to tbo Sheriff, bis beirs and assigns, instead of to the defendants in the suit, is nevertheless sufficient to sustain any action in behalf of tho rcal^partics in interest.
    Tho bond in such a case is only tho evidence of a contract, which would exist were the bond lost, and tho court will look at tlio petition for injunction and tho ordor granting it, to find out wliat obligation the plaintiff in injunction and his surety assumed.
    Injunctions, attachments, ote., aro matters of strict law, and it does not follow that bccauso a party has given an informal bond, that tho samo by proper avormonts and proof may not still ho enforced by an action.
    An action on an injunction bond is a sufficient putting“ in mora.”

    APPEAL from tho District Court of the Parish of Jackson, Richardson, J.

      McGuire <& Ray, for plaintiffs and appellants.

      S. L. Slack, for defendants.
   Merrick, O. J.

Carroll, Pritchard <& Co., Scott, Loring & Co., and the Vicksburg, Shreveport and Texas Railroad Company being judgment creditors, had seized under execution seven negroes as the property of L. G. Calcoate, their judgment debtor.

The defendant, Barksdale, obtained upon petition an order of injunction from the the District Judge, restraining the sheriff from selling the property seized, on condition that he should execute his bond, according to law, in tho sum of $1500.

Instead of making the bond payable to the plaintiffs in execution, he and his surety, Power, made the same payable to McElroy, tho sheriff, his heirs and assigns.

The condition of tho bond is in these words : “ The condition of the above obligation is such, that whereas the above bounden David (Barksdale) hath this day sued out an injunction in the Twelfth Judicial District, in and for the parish of Jackson, State of Louisiana,' against the proceedings of the Sheriff of the parish and State aforesaid, and the District Court having fixed the amount of the bond to be given at fifteen hundred dollars : Now, therefore, if the said David Barks-dale, or his security, shall well and truly pay all such damages as shall- be decreed against the said Barksdale, in case it should be decreed that this injunction was wrongfully sued out and obtained, and in that case this obligation to be null and void, otherwise to remain in full force and effect according to law.”

The plaintiff in execution moved to dissolve the injunction, and prayed for judgment for damages and interest against principal and surety, in solido, on the ground, “ That no injunction bond bad been executed in favor of these defendants, the real parties in interest in this case, as required by the order granting the injunction and the law.”

This motion prevailed, so far as to obtain from the court an order that a new injunction bond should be given ; that the old writ of injunction should be set aside, and a new one should issue.

The new bond was not given and the case was dismissed on motion of the plaintiff in injunction.

The present suit was brought by the sheriff, McElroy, for the use of the plaintiffs in the executions, and also by them in their own rights, to obtain judgment against Barksdale and his surety, Power for fifteen hundred dollars damages and interest, &c.

The judgment of the lower court was in favor of defendant and plaintfls appeal.

The dilatory exceptions, relied upon in the lower court, appear to be waived.

The defendants rely upon their peremptory exceptions, the points under which we will consider in the order presented in their brief.

I. It is objected that R. J. McElroy has no right whatever to sue on the bond, haying no real and actual interest in the same, either in his individual capacity, or for the use of others. The real parties interested in the bond are parties to the suit. The suit might be dismissed as to McElroy, and still there would be parties sufficient before us to maintain the action. The defendants made their bond payable to McElroy, sheriff, his his heirs and assigns. They cannot, therefore, complain if the sheriff should sue on the bond for the use of the real parties in interest, instead of formally assigning the same. Moreover, as under our law an agent may be authorized to sue on behalf of his principal, the appearance of the agent in the same suit with his principal would not be a just 'ground, we think, to turn both out of court on a peremptory exception.

Under this head it is further urged, that the name of McElroy was inserted in the bond without authority, and that the bond is, therefore, void, and cannot be the basis of an action in his favor.

The plaintiff in injunction had obtained an ex parte order from the judge for an injunction, on condition that he should give a legal bond. The defendants in injunction were not consulted as to the form of the order or the bond. The plaintiff instead of executing a bond as ordered, took out his writ of injunction, on a bond payable to McElroy and his assigns. The irregularity in the bond was the fault of the party who now seeks to avail himself of the defect.

In the case of Biggs v. D’Aquin, 13 An. 21; we said in a case of sequestration, that the writ was delivered to the party upon his contract to be responsible for the damages which the act may occasion.

So hero, the defendant, Barksdale, knew from the Judge’s order, and the law, that he was not to have the writ delivered him without engaging himself and his surety to pay such damages as may have been sustained by the defendant, in case it should be decided that the injunction had been wrongfully obtained. C. P. 304. And such is substantially the condition of the bond. Now, as the bond is only the evidence of the contract, which would exist were the bond accidentally destroyed, so the court is permitted to look not only to the bond but to the petition for injunction and the judge’s order, to ascertain what obligation the defendant and his surety assumed in order to obtain the writ of injunction, and when we do so, we find no difficulty in concluding that the parties to the bond made it payable to McElroy as the agent of the defendants in injunction and under the expectation that he would assign it to the parties interested (as defendants had expressly authorized in the bond itself,) in the event of a breach of the bond. O. 0.1755.

They cannot be permitted to gainsay such agency, now that it has been accepted by the other party.

Injunctions, attachments, etc., are matters of strict law, and it does noi, follow that because a party has given an informal bond, that the same, by proper averments and proof, may not still be sufficient to maintain an action.

II. It is further objected, that Carroll, Pritchard c6 Co., and the other co-plaintiffs, have no right of action against the defendants, because they were not parties to the bond. This point has already been sufficiently considered. It may be added, that it was made the duty of the defendant, under the law and the order of the judge, to make them obligees in the bond, and he cannot make this breach of duty the means of escape from responsibility. O. 0.1749,1750, 1753.

III. The third ground has already been considered, but defendant also argues, with much plausibility, that the plaintiff^, Scott, Loring, &c., who obtained a dissolution of the first writ of injunction on the ground of nullity, because the bond was not made payable to them, ought not now to be permitted to contradict their judicial admission. As already remarked, injunctions, attachments, and the like are proceedings stricti juris, and a bond may be informal and insufficient to maintain the proceeding when invoked by the party, who gave the same, and yet not destitute of binding force when made the basis of a judicial proceeding by the opposite party to cover the damages sustained by him. So in this case, although the plaintiffs objected to the' form of the bond in the original suit, yet they claimed damages in that action both against principal and the surety, who by law was also a party to the suit.

IV. The fourth ground is, that the defendants were .not put in mora as required by law. The action itself is a sufficient putting in mora. Precisely the same thing is demanded in the action which would'be demanded in a formal putting in default. C. 0. 1905. -

It may be remarked, that this case differs from the ease of Sears, Administrator, v. Braish, 7 An. 539, in the fact that the defendant in this case had obtained the order of the judge and executed his bond under, though not in strict conformity to the same. In the case in the 7 An., the party who executed the appeal bond had obtained no order for air appeal. Hence there was no appeal, and the plaintiffin that case was not really delayed in his execution.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the exceptions filed by the defendants be overruled, and that the case be remanded to the lower court for further proceedings according to law, the defendants paying the costs of the appeal.


source: Caselaw Access Project

author: VoonniBS, J.

license: Public Domain

text:
    John H. Callaway v. A. J. Bobo, Sheriff.
    Where a party in the capacity of Shorilfhas the custody of slaves, the more fact of his removing them from the Parish Prison, to his own iliaco, will not make him Iiablo for their hire. Ho only becomes responsible for their forthcoming and for the value of such services as ho might derivo from their labor.
    PPEAL from the District Oourt of thfe Parish of Morehouse, Richardson, J.
    D. C. Morgan, for plaintiff.

      J. Harvey Brigham, for defendant and appellant.
   VoonniBS, J.

The plaintiff sued the defendant for the sum of five hundred dollars, for damages occasioned by the illegal detention of his slaves. The case was submitted to a jury, but resulted iu a mistrial. On a subsequent trial there was a verdict in favor of the plaintiff for the sum of one hundred and seventy-six dollars.

The defendant appealed.

Three runaway slaves of the plaintiff, — one woman and two men, — were lodged in the Parish Jail, under charge of the defendant, who acted in the capacity of Sheriff of the parish of Morehouse.

The plaintiff claimed his property, but, being unable to remove all the slaves, paid the costs incurred for the woman and took her away. He left the men in charge of the Sheriff, with the request that they should be kept in close confinement.

Subsequently, one of the slaves being sick, was, upon the advice of a physician, removed from the jail. The Sheriff went further : he took them both upon his farm.

The plaintiff, several months afterwards, applied to the deputy sheriff, during the absence of the Sheriff, to obtain possession of his slaves. The deputy refused to deliver possession of them, unless the law charges wore previously paid. After some wrangling between them, the plaintiff paid the charges, and the deputy delivered the property.

Damages are claimed for counsel fees, for the hire of the slaves, and for expenses incurred to obtain possession of the slaves.

It was in the capacity of Sheriff that the defendant had the custody of those slaves. The mere fact, however, of his removing them from the Parish Prison, did not make him liable for the value of their hire. He only became responsible for their forthcoming, and for the value of such services which he might derive from their labor. That he had, to some extent, the benefit of their services, is shown; but the record does not show the value of these services. On the other hand no charges were preferred for keeping the negroes during that time. Had the plaintiff’s instructions been followed, the slaves would have remained in jail, and, instead of yielding the revenue claimed, would have burdened their owner with additional charges. It is not conceived then in what respect he has been injured by the alleged illegal detention of his property.

The only ground upon which the plaintiff could obtain judgment against the defendant, was, that the latter had unjustly appropriated the services of the former’s slaves. In this he has failed; and with regard to the expenses incurred to obtain possession of the property, the plaintiff has no right to complain, in as much as it was delivered over to Mm as soon as he paid the charges. Revised Statutes, p. 61, Runaway Slaves.

It is, therefore, ordered and decreed, that the judgment of the District Court, upon the verdict of the jury, be avoided and reversed ; and that there be judgment in favor of the defendant, with costs in both courts.


author: Merrick, 0. J.

text:
    Bennett’s Heirs v. M. D. C. Alexander, Administratrix and Tutrix.
    Where heirs at law bring a suit to recover from tho administrator of the succession of their deceased ancestor, tho price paid for tho property of tho succession, at a sale made by order of court, although in the petition they may claim to bo recognized as heirs, yet their action is a personal one.
    Whore the property of a succession has,by ordor of court, been sold and the money paid into tho hands of the administrator, although such administrator, on account of the fiduciary and quasi official relation which exists on his part towards tho court and succession, cannot prescribo against tho demands of tho heirs, yot tho heirs of such administrator, after his death, are entitled to tho plea of proscription. Prescription, thoroforc, commences to run in favor of the heirs of tho administrator, from tho death of tho latter.
    PPEAL from the District Court of tho Parish of Caddo, Creswe/l, J.

      Roland Jones and James W. Duncan, for plaintiffs and appellants.

      A. B. Devisee <$> L. M. Nutt, for defendant.
   Merrick, 0. J.

“ The petition sots forth, that Nancy Bennett, of Lewis county, New York, Abagail Bennett, John Bennett and David Bennett, of North Ward, Rockingham county, New Hampshire, Ebenezer Bennett, of Lee, Stafford county, in said State, Seymore E. Bennett, and Caroline D. Bennett, of Franklin county, State of Alabama, with Sarah Cooley, of Tuscumbia, in said State, are the only heirs at law of Rebecca B. Bennett, who was the wife of James II. Cane, deceased, and that each one of the aforesaid persons, represent one share in said Rebecca B. Cane’s succession, except Seymore E. Bennett and Caroline D. Bennett, who represent one interest, to-wit: the interest of Jeremiah Bennett deceased.”
“ That said Rebecca B. Bennett died, and her succession was opened in tho parish of Caddo, in the year 1838, and that James H. Cane, her husband, was appointed administrator of the same.”
“ That an inventory was taken of the property held in community between the said Rebecca B. Cane and her husband, the said James H. Cane, on the 9th of April, 1838, and the same was appraised at the sum of twenty-one thousand, six hundred and sixty-five dollars, ($21,665.) That on the petition of tho said James H. Cane, administrator and partner in the community, said property was sold by ordor of court on the 15th day of May, 1838, for cash, and Samuel Bennett became the purchaser thereof, for the sum at which it was appraised as aforesaid ; one-half of said sum, to-wit: ten thousand, eight hundred and thirty-two dollars and fifty cents, ($10,832 50-100,) being- the share of the succession of tho said Rebecca B. Cane in said sum.”
“ That said amount is now due and owing to petitioners as heirs at law of said Rebecca B. Cane, from the succession of the said James H. Cane.”
That James H. Cane died in the year 1846, and his succession was opened in the parish of Bossier, and Mary D. C. Bennett, now Alexander, who was the wife of the said Cane, was appointed administratrix of Ms succession and tutrix of Ms only child, who is yet a minor.”
“ The petition concludes with a prayer for judgment against tho said M. D. C. Alexander, in her aforesaid capacity, for the sum of ten thousand, eight hundred and thirty-two dollars fifty cents, ($10,832 50-100,) with five per cent, interest from the 15th day of May, 1838, until paid; to bo recognized as heirs of Rebecca Cane, whoso succession they accept. Petitioners further pray that M. D. C. Alex ander bo ordered to file an account of said succession, and for all orders necessary in the premises and for general relief.”
“ The defendant pleads a general denial, and the prescriptions of 3, 5,10,15 and 20 years, and all other prescriptions applicable, and for trial by jury.”
“ A trial by jury was refused.”
“Plaintiffs show that James H. Cane was appointed administrator 10th April, 1838, and Samuel Bennett, attorney of absent heirs. The community property was inventoried and appraised at $21,665. All of said property was sold at public auction by the parish judge, and adjudicated to Samuel Bennett, for the sum of $21,665, on the 15th May, 1838.”
“ It is admitted that plaintiffs, together with Sarah Cooley, Samuel Bennett and William S. Bennett, were at his death the only legal heirs of Rebecca Cane."
It does not appear that Cane ever filed an account of his administration. It does not appear that plaintiffs were ever advised of their rights by the attorney of absent heirs. It does not appear that the administrator caused the publications to be made, required by Article 1127 O. O.”
“ The foregoing are the only material facts and allegations in the record. The judgment of the District Court was, as in case of nonsuit."
But two points are presented for consideration.”
“ I. Is this action prescribed ?”
“ II. If not, are plaintiffs entitled to a judgment for the interest, as well as the principal, claimed by them ?”

It will only be necessary to consider the first of these questions. And in order to ascertain whether prescription has been acquired by the defendant, it is necessary to ascertain the nature of the action.

The plaintiffs contend that it is in the nature of an action of revendieation for an entire succession and not properly a personal action.

It is true, that the plaintiffs pray to be recognized as heirs of Rebecca Cane, deceased. But this might have been done on simple petition in the probate court, and it can in no manner affect the character of the suit, for they must accept the inheritance, as well to bring a suit for a sum of money, as for an immovable, or the entire succession.

Looking to the allegations and prayer of the petition we find the action is a personal one. The defendants are called upon to account for moneys received in a fiduciary capacity by their ancestor, on account of the succession of Rebecca Cane, deceased, and a judgment for $10,832 50, in money, is demanded against them. No one thing (much less the collection of things,) which belonged to the succession of Rebecca Cane is demanded. The defendants, if liable at all, are liable for so much money as their ancestor may have made by sales of property, the proceeds of which he had not disbursed.

But it is contended in the elaborate brief of plaintiffs’ counsel, that James H. Cane could not during his life-time plead prescription, and that, therefore, his heirs cannot plead it after his decease.

This argument is not conclusive. The reason why James H. Cane could not acquire prescription while he lived, was, that he was, in virtue of his letters of administration and quasi office, a party to a proceeding pending in court, in the parish of Caddo, and at all times subject to the rules and motions which might be made in a succession under administration. When he died this relationship ceased. His succession was opened in the parish of Bossier, and all demands for money, even on account of his administration of the succession of Rebecca Cane, wore cognizable by the court of the parish of Bossier. His heirs had no right to letters of administration upon the succession of Rebecca Cane and stood towards itas strangers. The fiduciary, and quasi official, relation which existed on the part of the ancestor towards the court and succession of Rebecca Cane, did not descend to the heir. The latter, not being a party to the mortuary proceedings in Caddo, was not bound by their pendency. He stood as his ancestor would have stood had he been removed or discharged on the rendition of an account. Prescription, therefore, commenced to ran from the death of James H. Cane in 1846, and this suit was not commenced until September, 1858, thus giving place to the ten years prescription. The cases of Wilson v. McGreal, 12 An. 351, and Deranco v. Montgomery, 13 An. 513, appear to us to be decisive of this controversy.

The defendants pray, that the judgment be amended in their favor, so as to make the same final. The proof justifies the prayer.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court bo amended, and that there be final judgment in favor of the defendant and against the plaintiffs’ demand, and that the plaintiffs pay the costs of both courts.


author: Merrick, C. J.

text:
    Mary Rabun v. R. F. Rabun et al.
    If a dood bo legal by the laws of tlio country whore it was executed, our courts will not interpose to defeat the possession of the legal holder acquivod in that country, although thoro may bo clauses in the instrument which would not have boon valid'under our law.
    The doctriuc of tlio common law in regard to the formality of livenj óf seizin and the creation of an estate in remainder, does not apply to tlio creation of a trust estate in a chattol.
    APPEAL from the District Court of the Parish of Union, Richardson, J.

      W. J. S. Balcer, for plaintiff and appellant.

      McGuire <& Ray, for defendants.
   Merrick, C. J.

This suit was commenced as an action of partition of certain slaves alleged to belong to the succession of John Rabun, deceased, the father ol' the plaintiff and defendant.

The defendant, R. F. Rabun, claims title to the property in virtue of two deeds executed in the State of Alabama : the one by one Fuller to him, and the other by his father, John Rabun.

The plaintiff alleges the nullity of the deeds,'for fraud and simulation, she being a forced heir, and pleads the Statute of Limitations of Alabama, ■ and the prescriptions of five and fifteen years of our law.

The defendant also pleads prescription.

So far as the question of possession is concerned, it seems that the parties came from Alabama together, and that John Rabun possessed, according to his own acknowledgments, under the title of his son, R. F. Rabun, and that possession has not been shown to be inconsistent with the deeds.

The judgment of the lower court was final in favor of defendant.

The deed from Benjamin Fuller to R. F. Rabun was under seal, and executed in Alabama in 1838. John Rabun, however, paid the price. It seems also that the title was taken in the name of R. F. Rabun, on account of some apprehension of a debt for which John Rabun was security ; and it seems further, that the deed of gift from John Rabun to R. F. Rabun had its origin in the samo motive. As the parties resided in Alabama at that time, we are of the opinion that nono but creditors could attack the title conveyed by the deeds of sale and of gift.

The common law, which prevails in Alabama, does not admit the principle of forced heirship, and under that law the deeds could not be attacked by the other heirs.

It is contended, that the deed from John Rabun to his son has never been delivered. We think the contrary has been sufficiently proved. The instrument was executed and taken from the office of the conveyances by John Rabun. It was subsequently in the possession of R. F. Rabun, and delivered by him to S. J. Bolling, a subscribing witness, to be proved and registered.

This instrument, it is contended, is invalid by both the common law and our own.

The instrument recites that John Rabun and his wife were getting advaucod in years, and anticipated that his decline would shortly incapacitate him for business ; and then it purports, in consideration of one dollar, to sell the slaves to R. F. Rabun. “ To have and to hold the said negro slaves mentioned to said Richard F. Rabun in trust for the use and support of and benefit of himself {John Rabun) and wife {Mary) during their natural lives, and the same to have control of, and preserve and protect, and suits to bring, and all necessary things to do and perform for the maintenance and defence of the said slaves; and after the death of himself and his said wife, Mary, the said slaves, in consideration of the services and kind treatment of his said son, Richard F. Rabun, to go to and become the property of his said son, Richard F. Rabun, his heirs and assigns forever.”

We suppose, as already said, this deed was valid by the laws of Alabama, at the time of its execution, against all the world but creditors of John Rahim. The legal title vested in Richard F. Rabun, subject only to- the equitable estate for life in favor of John Rabun and wife. This legal title has been respected by the parties, and there has been no adverse possession, so far as it appears from the evidence, and the slaves are still in the possession of the legal owner and those claiming under him. Now we are called upon to declare this instrument void, for the benefit of the heirs of John Rabun, and to restore the slaves to his succession. It seems to us, if the deed be admitted to be legal where executed, our courts should not interpose to defeat the possession of the legal holder acquired in that country, although there may be other clauses in the instrument which would not have been valid under our law.

The doctrine of the common law in regard to the formality of livery of seizin and the creation of an estate in remainder, does not, as counsel supposes, apply to the creation of a trust estate in a chattel.

These remarks, we think, dispose of all the points in controversy in the case in this court.

Judgment affirmed.


text:
    A. F. Flournoy & Co. v. James H. Milling.
    Iii an action to recover damages against a Sheriff, for trespass in the execution oí* a writ of sequestration, where the defendant excepts to plaintiff’s demand, upon the ground that tho latter has no cause of action against him, since he acted In his capacity of Sheriff, and in a legal manner, tho exception should aver that the acts complained of in plaintiff’s petition are the same and none other than those mentioned in tho exception • yet, if this averment is not made on the trial, testimony to show that the acts were the same, is .admitted without objection, effect must be given to this testimony.
    Where a party holds goods merely as security fpr a debt, with a privilege on tho same, ho has no right to prevent the seizure of the goods by another party also claiming a privilege against tho owner. The right of a party holding goods in this manner, is limited to a judicial proceeding to mako his priviloge available against the goods.
    The Sheriff, when, resisted in the execution of a writ, is justifiable in using so much force as is necessary to make the seizure commanded in the writ.
    APPEAL from the District Court of the Parish of Ouachita, Richardson-, J.

      McGuire & Ray, for plaintiffs and appellants.

      S. L. Slade, for defendant.
   Merrick, C. J.

This case is correctly stated by appellants’ counsel as follows :

“ Plaintiffs allege: that, on the 19th December, 1859, they, as commercial partners, were in the legal and rightful possession of a building called and known as a cotton shed at said town of Trenton, and on that day were in the legal and actual possession of a large quantity of cotton then in said shed; that on said 19th December, 1859, James 11. Milling, resident of your said parish and State, violently, maliciously, and against the wish and consent of petitioners, or either of them, with force and arms, broke down the door of said cotton shed, and took therefrom fifteen bales of said cotton, and carried the same away, and deprived your petitioners of the same ; by which forcible, tortious, malicious and violent acts of trespass, petitioners have been damaged in the injury to their property, and loss of property, in the sum of one thousand dollars, and in the further sum of five thousand dollars as damage for the said tortious, malicious and forcible acts of trespass, of said Milling, in injury to their feelings and the outrages of their private rights, and in their costs necessarily incurred in asserting their rights.
“ To this demand defendant filed the following exception: That plaintiffs have no cause of action against him, for the following reasons, to-wit:
“ That in the service of said writ of sequestration, he was acting as Sheriff of the parish of Ouachita, and in his said official capacity, under the orders of the Twelth District Court for said parish.
“ That previous to the service of said writ, he took from the said F. McClendon a bond of indemnity, as provided for by the statute of 18th March, 1858, which said bond was filed on the 19th December, 1859, in the records of the suit entitled F. McClendon v. C. S. Scarborough et al, No. 3049.
“ That on the 21st February, 1860, before this suit was brought, against respondent, he assigned said bond of indemnity to the plaintiffs, in the presence of witnesses, and tendered them said assignment, and that said assignment was made in accordance with said statute of 18th March, 1858.
“ This exception was sustained by the court, and the suit dismissed ; from which judgment plaintiffs bring up this appeal.”

The plaintiffs contend that their action is that of trespass, and that on the exception, the allegations in their petition must be taken as true.

The exception in this case, it is true, is informal in not averring that the acts complained of in plaintiffs’ petition are the same and none other than those mentioned in the exception; yet, as the testimony, on the trial of the same, was received without objection, under the well settled rules of law, effect must be given to the testimony.

The petition of intervention of the plaintiffs in the case of McClendon v. Scarborough et al., makes it sufficiently certain, that the supposed trespasses complained of by the plaintiff in his petition were the acts of the Sheriff in the execution of the writ of sequestration issued against Scarborough et al.

Plaintiffs do not pretend to be the owners of the cotton seized in their intervention, but allege that they hold it as security, and have a privilege upon the same. It is, therefore, evident, from their own showing, that they had no right to prevent the seizure of the cotton by any other party also claiming a privilege against the defendants Scarborough. Their right was limited to a judicial proceeding to make their privilege available against the cotton. The complaint is not, as appears by the intervention, that the Sheriff used unnecessary violence in seizing the cotton ; the complaint is that “ he did, by force and violence, break open petitioners’ warehouse or cotton shed, and take possession of said cotton against the consent of petitioners, and without any writ or process of any kind against petitioners.”

It is clear', that the Sheriff had the right to take the property of the defendants Scarborough under the writ issued against them ; and if the plaintiffs closed their warehouse, and refused to consent to allow the Sheriff to enter, he was justified in using so much force as necessary to make the seizure commanded by the writ.

The bond of indemnity, under the Act of 1858, covers not only the damages occasioned by the simple detention of the property, but also any other damage necessarily resulting from the act of seizure itself. Otherwise, it would not be a bond of indemnity.

The District Judge does not, therefore, appear to have erred in his conclusions upon the evidence adduced under the exceptions.

Judgment affirmed.


author: Merrick C. J.

text:
    The Mayor and Trustees of the Town of Shreveport v. J. L. Gooch et al.
    The Commercial Code was never adopted by tlic Legislature, and the general principies of the Civil Code in regard to joint obligations and obligations in solido, are applicable to commercial paper.
    There is no provision of law which exempts acceptances from the operation of the rule laid down in Art. 2088 of the Civil Code, which provides that “An obligation in solido is not presumed: it must be expressly stipulated.”
    An acceptance is an absolute engagement to pay a sum of money to the holder, whether the acceptors have or have not fnuds of the drawee in their hauds.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      John H. Pennall, for plaintiffs.

      F. P. Austin, for defendants and appellants.
   Merrick C. J.

This case is correctly stated by appellants’ counsel as follows :

“ On the 21th October, 1858, the defendant, John L. Gooch, drew a draft to his own order for §606 82, due at six months, on his co-defendants, B. L. Hodge and H. S. Howell, and they having accepted it, Gooch indorsed it to plaintiffs. On the 20th September, 1859, Hodge paid ¡¡5315 48, and on the 24th day of November, 1859, plaintiffs brought suit for the balance against the drawer Gooch, and the acceptors, Hodge and Howell, alleging their liability In solido. None of the defendants filed an answer, and judgment was rendered for the amount of the draft, less the above credit, against them all in solido, in the court below, from which Hodge alone appeals.”

He contends that he was only bound jointly with Howell for the payment of the draft, and that having paid his virile share of the debt, the judgment against him is erroneous.

The counsel for the appellee admits that obligations are never presumed to be in solido, but he supposes that the case must be governed by the commercial law and that the acceptors under that law are jointly and severally bound to the holder.

The Commercial Code was never adopted by the Legislature, and the general principles of the Civil Code in regard to joint obligations and obligations in solido have been so often applied to promissory notes and bills of exchange, that the question of their applicability to commercial paper is no longer open.

The Civil Code, Art. 2088, declares that “An obligation in solido is not presumed ; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provision of law.”

We are not aware of any provision of law which exempts acceptors from the operation of the rule. They are not strictly speaking depositaries, and their acceptance is an absolute engagement to pay a sum of money to the holder, whether they have or have not funds of the drawee in their hands. As the makers of a promissory note, the drawers of a bill of exchange, and the payees of a promissory note upon their endorsements, are only bound jointly, we think there is no safe ground upon which acceptances can be exempted from the operation of the rule. See Bank of Louisiana v. Sterling, 2 La. 62; Mayor v. Ripley, 5 La. 122; Cooper v. Polk, 2 An. 158; Bagget v. Rightor, 4 Rob. 18.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to said appellant, and that there be judgment in favor of the said appellant, B. L. Hodge, and against the plaintiffs’ demand, with costs of both courts.


author: Yoorhies, J.

text:
    R. B. Jones v. Caperton & Weeks et als.
    A law partnership is an ordinary one, and the partners are hound .jointly but not in solido.

    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Newton & Hall, for plaintiff.

      John T. Ludeling, for defendant and appellant.

      S. G. Parsons, for defendant, Weeks.

   Yoorhies, J.

The plaintiffs placed into the hands of the firm of Caperton <& Weeks, attorneys-at-law, two drafts, one for the sum of $350, and the other for the sum of $1,200.

The former draft was collected; but the last mentioned one does not appear to have been paid. The attorneys received on account, from one Silbemayd, the sum of four hundred dollars; but, subsequently, the drawee having refused to pay the draft, this amount was refunded by E. B. Pettis, who thereupon gave his note to Caperton <6 Weeks, for the sum of $800, and to whom the latter, in consideration, transferred the drait of $1200.

B. B. Jones sued Caperton & Weeks for the amount of the two drafts, amounting to $1550, and Pettis for the amount of his note of $800. Judgment was rendered in favor of the defendant Weeks against the plaintiff, and in favor of the latter against the other two defendants.

Caperton alone appealed. It therefore becomes necessary to determine only the question of his liability to the plaintiff. The judgment of the District Court is not open to revision in other respects. As between the appellees, the judgment cannot bo amended : they cannot be heard, except as against the appellant.

The defendant Caperton pleads in reconvention and compensation, 1st., their commission of $120 for collecting the draft o'f $1200 ; 2dly, a solidary obligation of $1000, executed by the plaintiff, with other parties as obligors; and 3dly, moneys expended for the plaintiff’s use.

"With regard to the draft of $350, it is admitted that it is entitled to a credit of $280 40, leaving a balance due of $69 60. But this amount is extinguished by the item of $100, paid for expenses incurred to obtain a writ of habeas corpus. The difference, $30 40, must be credited to the draft of $1200.

The evidence shows that Caperton <& Weeks did not collect, but transferred the draft of $1200. They were, consequently, not entitled to a commission of $120. On the other hand, this transfer has been expressly ratified by the plaintiff, in making Pettis a party defendant in these proceedings. The firm of Caper-ton & Weeks are bound to refund the $400 obtained from Silbemayd, and to return the $800 note furnished by Pettis. They were entitled lo a balance of $30 40. This being deducted, leaves the sum of $369 60, due by the firm, independently of Pettis’ note.

The plaintiffs must remunerate the defendants, Caperton & Weeks, for the services rendered by them in suing out writs of habeas corpus in his favor. The testimony of the witnesses upon this subject is not of such a character as to justify the conclusion, that these services were not to be remunerated.

There were four persons prosecuted jointly with the plaintiff for the offence of shooting with intent to commit murder. They executed their note in solido for the sum of $1000 in favor of Caperton <& Weeks. The Grand Jury preferred no indictment; an information was filed by the District Attorney, but was after-wards withdrawn. There ended the prosecution. The consideration of the note having partially failed, it is evident that a reduction of the note must follow; and we think that the defendants’ services were worth the sum of two hundred and fifty dollars.

This leaves a balance of $119 40 in favor of R. B. Jones against the firm of Caperton <6 Weeks.

A law partnership being an ordinary one, the liability of Caperton is fixed in the sum of $59 70, independently of the liability on the Pettis note.

It will be seen that the defendant and appellant was allowed to plead in reconvention the claims which the firm had against the plaintiff. The reason of this is, that the parties are not residents of the same parish. See Art. 375 0. P., as amended by the Act of 1839.

It is, therefore, ordered and decreed, that, as regards the appellant, Caperton, the judgment of the District Court be avoided and reversed; and that the plaintiff do have judgment against the said Caperton. for the sum of fifty-nine dollars and seventy cents, with legal interest from judicial demand; that the said Caper-ton do, within a delay of ten days from the return of the mandate in this case, deliver to the plaintiff the note of eight hundred dollars subscribed by E. B. Pettis, and, in case of failure to comply, that execution issue in favor of the plaintiff against the said Caperton, for the additional sum of four hundred dollars, with legal interest from judicial demand.

It is further ordered, that the plaintiff pay the costs of appeal, and the appellee the costs of the District Court.


text:
    Albert Rust v. J. M. Faust, Sheriff.
    Wlioro a party enjoins a soi2ure, upon the ground, that the judgment under which it issued is null and void, because it was rendered and signod at chambers, he should deny under oath that cither he or his counsel consented to the submission of the case to the Judge to ho decreed at chambers, before ho attempts to avail himself of the omission of the clerk to onter such submission upon the minutes of the court, or complains that it was not reduced to writing and signed by the parties and their counsel.
    The signature of the Judge affixed by conseut, in vacation, is a sufficient authentication of a decree in an ordinary action to authorize an execution.
    The uniform practice is to issue executory process on decrees rendered and signed at chambers.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      Stubbs & Jamison, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Merrick, C. J.

“ The facts of this case are mainly as follows :
“ On the 1st March, 1855, James M. Faust, defendant in this suit, instituted a possessory action against Albert Rust, plaintiff in this suit, and claimed damages for the illegal detention of the property.”
“ On the 9th June, 1857, judgment was rendered (at chambers) in said suit iu favor of Faust against Rust, for the possession of the property and for $75 damages and costs of suit.”
“ On the 26th July 1858, Faust caused a fi.fa. to issue on the monied part of said judgment, and also a writ of possession to be put in possession of the property.”
“ On the 6th August, 1858, the Sheriff seized property of Rust, under said ji. fa., and about the same time, a copy pf the writ of possession and copy of the judgment was served on Rust.”
This suit was filed 20th August 1858, by Rust enjoining Faust and the Sheriff from proceeding further in the execution of said writs, on the following grounds :
1st. “ That the judgment rendered in the case of Faust v. Rust, on the 9th June, 1857, is null and void, and should be canceled, because the said judgment was rendered, done and signed in chambers, when the law required that the same should be done in open court. That there is no agreement which would authorize the Judge to decide said suit and render said judgment in chambers, and that an agreement, if ever there was one, should have been in writing and filed with the pleadings, before the Judge could render a judgment of this kind in chambers.
2d “That said judgment is void because of its vagueness and uncertainty. That the thing adjudged is so indefinite as that even in connection with the pleadings in the case, it would be impossible to enforce the judgment without an arbitrary discretion on the part of the officer charged with the execution of the writ.”

The answer is a general denial and prayer for damages against Rust and his surety. The injunction having been dissolved with foO damages, plaintiff in injunction appeals.

On the first ground of injunction we observe that the allegation, which is sworn to, is extremely guarded. It does not state that there was no agreement that the Judge should take the case under advisement and enter the decree at chambers, but that there was no agreement in writing, or in any other manner, sufficiently formal to authorize the Judge to decide the suit; hence, when the District Judge was put upon the stand to prove the agreement, his testimony was objected to, and a bill of exception reserved to its reception.

It is unnecessary to consider the bill of exception, because we are of the opinion that the allegation in plaintiff’s petition is not sufficiently positive to put the defendant upon the proof of the agreement. Plaintiff, in this form of action, should have denied under oath that either he or his counsel consented to the submission of the case to the Judge to be decided at chambers, before he attempts to avail himself of the omission of the clerk to enter such submission upou the minutes of the court, or complain that it was not reduced to writing and signed by the parties and their counsel.

We observe further, that the counsel who defended the case of Faust v. Rust, and who must have been cognizant of the agreement, if made, did not bring the present suit.

We think the signature of the Judge, affixed by consent in vacation, a sufficient authentication of a decree in an ordinary action, to authorize an execution. If the judgment has been pronounced in open court, and the signature omitted by accident, we know of no law which prevents the Judge from perfecting the same by signing it in vacation. The uniform practice is to issue the executory process on decrees rendered and signed at chambers.

We see no objection to the decree on the ground of its vagueness. It awards to the plaintiff in that action, the possession “ of the improvements on the northwest quarter of section 5, township 15 N. of range 4 east, known as the Hanang Improvement.” Judgment is also rendered against the defendant for $75 damages. It appears to us to be sufficiently certain. See case of Lea v. Terry, 15 An. 160.

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


text:
    W. W. White v. David Gleason.
    The exception of lis pendens must he pleaded in limine litis.

    A sale made by a minor after his emancipation, and after a confession of judgment made by him on the account of the tutor, is null, whon it has not been preceded by the rendition of the account and vouchers, ten days previous to the passage of the act.
    APPEAL from the District Court of the Parish Ouachita, Richardson, J.
    S. L. Slack, for plaintiff.

      Morrison & Purvis, for defendant and appellant.
   Merrick, O. J.

The defendant is appellant from a judgment against him, rescinding the sale of two slaves, made to him by two emancipated minors, to whom he was tutor.

He had been appointed tutor to W. W. White and his brother Hugh L. While, (since deceased,) in 1856.

Iu 1859, the minor Hugh L. White arrived at the age of majority, and W. W. White applied to the court to be emancipated. The decree for his emancipation was signed the 17th of March, 1859. On the 19th of the same month, the tutor presented to his two wards an account of his tutorship, una'ccompanied by any vouchers, wherein he claimed an indebtedness on their part towards him, of §947 26 more than their revenues. One affixed his mark (for they were both illiterate) to a confession of judgment for §486 25, and the other for §576 70.

On the 23d of March, W. W. White and Hugh L. White sold to their tutor, David Gleason, the two negroes in controversy for §1,600, of which the indebtedness upon the tutor’s account was taken as a part, although named in the notarial act as cash paid by the vendee.

The tutor gave notice of the filing of his account, and prayed for its homologation.

Hugh L. White filed an opposition, in April, 1852, to the account, which appears to be still pending. The present suit is brought by W. W. White and the administrator of Hugh L. White (who in the meantime had died) to annul the sale of said slaves.

The account is alleged to be unfounded, and it is averred that the confession of judgment and act of sale were obtained by fraud, and moreover, had not been preceded by a rendition of the account and vouchers ten days previous to said acts.

The accouut contains items which ought not to have figured in the same, and the jury appear to have considered the charges of fraud as established. The plaintiff’s right of recovery, however, has been strenuously contested in this court. The principal objections will now be considered.

I. It is objected, that the right to rescind the contract of sale cannot be exer-, cised until the opposition to the account has been determined, and the indebtedness of the parties ascertained.

To this it may be replied, that the petition in this case alleges the nullity of the account, the confession of judgment and the sale, and is itself a direct action against all these proceedings. The defendant has, it is true, interposed the plea of lis pendens, but not in limine litis. 3 Rob. 108. There can, therefore, be no objection to the consideration of the whole case, as far as necessary to pronounce upon defendant’s title.

II. Again, it is said that there is no complaint that the price given is inadequate; and if plaintiff’s indebtedness to defendant should prove to be less than the amount acknowledged in the confession of judgment, the difference can be made up in money, to be paid by defendant.

The Article 355 of the Civil Code declares “ That every agreement which may take place between the tutor and the minor arrived at the age of majority, shall be null and void, unless the same was entered into after the rendering of a full account and delivery of the vouchers, the whole being made to appear by the receipt of the person to whom the account was rendered, ton days previous to the agreement.”

The nullity is not declared for the inadequacy of the price, but because the law will not sanction contracts in any manner touching the tutor’s account, where the parties stand upon such unequal footing. The tutor is in full possession of the minor’s resources and debts, and what he has received and disbursed ; the minor knows nothing but what his tutor is pleased to communicate. What equality is there, then, at the moment the accounts are delivered, between the tutor and his former ward ?

The law seeks to restore equality before it permits the parties to contract. The minor shall have the account and vouchers ten days, in which, freed from the presence of his tutor, he may have leisure for its examination, and time to advise with friends and counsel, and time for deliberation to form his conclusions. Prior to this delay and these means of information, the law fears he may be surprised into a hasty agreement, by which he may divest himself of his property. So in the case at bar : the account was read to the parties, no vouchers were delivered to them, an'd in a few minutes after, they were induced to confess judgment in favor of their tutor, for amounts covering nearly one-half of their estates. It is not surprising that in two or three days afterwards, these inexperienced and illiterate young men should sell their property to their tutor, to relieve themselves from judgments which they then supposed could be enforced against them, and which, apparently, they had no other means to pay.

III. But it is contended, that Art. 355 O. 0. only applies to contracts directly touching the administration of the tutor, and not to contracts about other affairs, and that, therefore, the contract of sale may remain valid notwithstanding the Article of the Code.

If the position were to be conceded, it would not avail the defendant in this case, because it is proven that unfounded charges were made in the account, in order to bring about the sale, and the indebtedness created by the account was made a part of the price of the sale. The contract in this case was, therefore, directly connected with the settlement of the tutor’s account, and void under the defendant’s construction of the Article.

It is sufficient to remark, that the question of putting in mora, (as well as the other issues on the merits,) it appears, was correctly found by the jury.

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


text:
    Vicksburg, Shreveport and Texas Railroad Company v. John Calderwood.
    Section fourth of the Act of 1855 provides. “That estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.” The true intention of the Legislature in the passage of this Act was, that the contemplated improvement and the expropriation were to follow immediately upon, each other ; and, in this sonso, the fourth section is not unconstitutional.
    In a suit brought by a railroad company to expropriate land — Held : That the defendant has no right, in addition to the price of the laud expropriated, to claim payment for damage which may be dono the rest of his property, when it is shown that such damage is more than compensated by advantages derived from tho project.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      McGuire & Ray and Purvis & Morrison, for plaintiff.

      S. L. Slack, John T. Ludeling and R. W. Jemison, for defendant and appellant.
   Merrick, O. J.

This suit is brought by the plaintiff to obtain a decree of expropriation of four 15-100 acres of land, to be taken transversely across a tract of land owned by the defendant in the rear of the square of ground on which he resides, in the town of Monroe. The tract intersected by the railroad has three arpents front, by a depth of forty arpents. In 1849 or 1850, it cost the defendant the estimated price of $2000 ; that is, a little less than twenty dollars per acre.

Prior to the institution of the present proceeding, under the Act of 1855, p. 33, the railroad company tendered the defendant, in current coin, five hundred dollars as the value of the property sought to be expropriated.

There is some conflict in the testimony, in reference to the value of the land sought to be expropriated. Some of the witnesses consider the value at $50 or $60 per acre, and others from $150 to $500 if the inconvenience of the intersection of the land by the road be considered. Sonic witnesses also state, that the railroad has enhanced the land in value three-fourths, and others show that the ditches by the side of the road not only benefit the place generally, but, by draining a pond, add twenty dollars per acre in value to 15 or 18 acres on the rear of the tract.

It is also shown, that the defendant admitted that the sum offered him was more than the value of his land, but said he did not wish the road to run through his land.

The jury and court ordered the laud to be expropriated, and gave the defendant $518 75, as the price and costs. He appeals.

The appellee prays the court to amend the judgment iu its favor, by reducing the allowance to the defendant to $20 per acre.

The District Judge held the fourth section of the Act of 1855, p. 33, to be unconstitutional, and the same argument has been addressed to this court. The motion to amend the judgment compels us'to consider this question.

The section is in these words : “ That estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.”

In the present case, the Act of 1853, p. 183, shows that this improvement was contemplated in 1852, and it is argued that it is a violation of the Constitution to withhold from the defendant the increase in value which has attached to his property in the last eight years.

It does not appear to us that the Act of 1855 is obnoxious to the charge of unconstitutiouality, if it be taken in the sense intended by the Legislature, whereas it may become so by being construed literally. Suppose, for instance, the railroad company should seek, in 1860, to expropriate for the same sum a lot which in 1852, when the road was first contemplated, was worth only $500, when in the interval the defendant had placed buildings and improvements upon the same of the value of $2000, making the lot now of the value of $2,500. Suppose again the natural increase in value of the lot had been $500, independent of the railroad, and that it would have had that value in I860 if the railroad had crossed the Ouachita River at some other point; Trenton, for instance. In these instances, it would be a violation of the Constitution to expropriate the lot for what it was worth in 1852. But if the case be intended by the Act, where the contemplation of the improvement and expropriation follow immediately upon each other, we cannot see wherein, under the equitable maxims of the civil law, the fourth section is unconstitutional. It is true, the defendant in such case is not allowed the value which the improvement adds to his property. But equity asks, why should the person who has added an additional value to your whole estate pay you such additional value when a portion has been taken for the public use at his instance ? "When you charge him with such additional value, do you not make him pay for that which his money and labor, and not your own, has ereated ? If your property will now bring more in market, it is because you and your neighbors believe he will be able to accomplish his enterprise in spite of your opposition. Should any cause frustrate his enterprise, your present estimate of your property would be without foundation, and hence it depends upon his success.

Again, it is contended that the railroad, in addition to the value of the laud taken for the public improvement, mast pay for damage which may be occasioned to the rest of the property, without regard to the advantages derived from the public work. This argument overlooks those principles of the civil law which admit of obligations and duties independent of contracts, and which depend upon the equitable maxim, that one man shall not enrich himself at the expense of another. Thus, where surety is given against the will, or without the knowledge of the debtor, the surety can sue and recover from the debtor, on payment of the debt, the money thus expended. So if a third person pay the debt of another. So Art. 2278 declares that, “■ Equity obliges the proprietor whose business has been well managed, to comply with the engagements contracted by the manager (■negotiorum gestor) in his name; to indemnify the manager in all the personal engagements he has contracted, and to reimburse him all useful expenses.” These and the like obligations are enforced by courts of justice. With what reason, then, can the defendant demand damages against the railroad company for the inconvenience occasioned in the use of his property, when the same has been more than compensated by advantages, and his land has been rendered more valuable by the labor expended in its drainage, and by the facility with which his products may be taken to market.

The argument, that this is but the payment of damages by means of speculative opinions of men, instead of money, loses much of its force when urged in connection with a claim based upon such opinions, with reference to the property expropriated. For, if such opinions are unsound, when estimating the advantages which the railroad brings to the property in question, by compensating the damages to other portions of the property, they are equally unsound when they give to the portion expropriated any value arising from the improvement itself, because, according to the argument, that is but speculative and might be defeated by changing the route of the road. If there be anything in this argument, it tends to prove the equity of the rule established by the Legislature by the Act of 1855. See the case of New Orleans, Opelousas and Great Western Railroad Company v. Lagarde, 10 An. 150.

“We are of the opinion, that the testimony shows that the property, at the time of the expropriation, was worth less than the amount tendered by the railroad company. Hence, that tender, made in conformity with the 10th section of the Act, will be the rule of damages in this case, and the defendant will pay the costs in both courts, the inconvenience in the use of the property being more than compensated by the drainage and by the increased value given by the road.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended in favor of the appellee, so as to reduce the amount allowed to John Calderwood, the defendant, for the property expropriated, to the sum of five hundred dollars, and condemning him to pay the costs; and it is further ordered, that the judgment so amended be affirmed, the appellant paying the costs of the appeal.

Vookhihs, J., concurring. I concur in the decree of this court, on the ground that, conceding to the defendant the correctness of his position with regard i o the assessment of the indemnity, he is not entitled to claim more than the amount allowed to him. He obtains the full actual value of the land expropriated ; and, with regard to the damages, these are compensated by the enhanced value of the property.


author: Voorhies, J.

text:
    Jacob Garrett v. Steven Crooks et al.
    A promise to sell does not place tlie thing at tho risk of the promissee, nor doos it transfer to him the ownership or dominion of it.
    ■Where a party has made a promise to sell property to one person, and sells it to another, such sale will operate a translation of the property to the latter, although he may have had knowledge of the existence of the promise of sale to the other, unless a fraud has been committed by the vendor and vendee upon the promissee, in order to defeat his title.
    Parol evidence, although inadmissible to establish title to land, is yet admissible to prove fraud practised in the transfer of land.
    Although a witness does not recollect the whole conversation of a party, he may nevertheless he allowed to testify to what he does recollect. Any objection to testimony on this score goes to the effect, and not to the admissibility^ tho evidence.
    APPEAL from the District Court of the Parish of Catahoula, Mayo, J.

      Smith <£ Spencer, for plaintiff and appellant.

      Cuny & Hawkins, for defendant.
   Voorhies, J.

The defendant, Stephen Crooks, having sold to his co-defendant, B. T. Higginbotham, some real estate, which-the former had promised to sell to the plaiutiff, Jacob Garrett, the present suit was brought for the purpose of canceling the sale to the one, and of enforcing the specific performance of the promise to sell to the other.

The petition charges, that Higginbotham was aware of the existence of the contract between Crooks and Garrett at the time of the transfer from Crooks to himself ; and that, consequently, the want of registry of this instrument cannot prejudice the plaintiff’s action in the premises.

The defendants aver, that the promise of sale to the plaintiff was tainted with fraud, and they pray for its nullity.

The facts of this cause present no difficulty.

Crooks had agreed verbally to sell his property, the deed to be passed the next day, to Higginbotham ; but through the deception of Garrett, this was not done as stipulated, but the promise of sale was made in favor of the latter. Higginbotham, having been disappointed at Crooks’ failure to come and pass the deed of sale, at the stipulated time and place, called on the latter, who then stated what had taken place. Thereupon, he proceeded to sell and deliver the property to the former, in compliance with the verbal agreement upon the subject.

The first question which arises, under this state of facts, is, whether the plaintiff, by virtue of the promise of sale, became the owner of the property in dispute. This must be solved in the negative.

The Civil Code, Art. 2437, says that “ a promise to sell amounts to a sale.” In construing this text, the court, in the case of McDonald v. Aubert, said : “ A promise to sell, when the thing to be sold and the price of it are agreed upon, is so far a sale, that it gives to either party a right to claim recta via the delivery of the thing, on payment of the price ; but such a promise does not place the thing at the risk of the promissee, nor does it transfer to him the ownership or dominion of it.” 17 La. 449. It is true that, in some respects, the correctness of this doctrine is assailed in the case of Peck v. Bemiss et als., 10 An. 160. But in one respect, these decisions coincide : the promise to sell does not operate a translation of the property. See the case of Satterfield v. Keller, 14 An. 606.

Such being the law of the case, it follows that the sale from Crooks to Higginbotham translated the property to the latter, unless the knowledge of the existence of the promise of sale be an impediment in his way.

This brings us to the question of fraud.

If the plaintiff is entitled to relief in the premises, it is upon the ground that the defendants, vendor and vendee, have committed a fraud upon him, in order to defeat his title. Now the evidence shows quite the reverse : — that the plaintiff was aware of a previous verbal sale from the one to the other defendant; that he deceived these parties, and caused the execution of the instrument of promise to sell; and, on the other hand, that both the defendants were acting in perfect good faith. There is no principle of law or equity by which the plaintiff could, under these circumstances, defeat the title of the defendant, Higginbotham, to the property in question.

There are several bills of exception in the record. The plaintiff objected to the reception of parol evidence, on the part of the defendants, to prove : that there had been a verbal sale between the defendants; that there had been some conversations, and what conversations, between the plaintiff and the defendants, with regard to the agency of the plaintiff in purchasing Crooks’ land for Higginbotham ; that the defendant Crooks had, when required to comply with the promise of sale to the plaintiff', declared that he declined because he had been deceived by the latter.

These objections were not well takeu ; for the object of the testimony was not to prove an adverse title to the laud in the defendant Higginbotham, nor the agency of the plaintiff; but, on the contrary, to show the artifices by which the plaintiff had caused himself to be substituted in the place of Higginbotham. In other words, the object of the evidence was, to show fraud on the part of the plaintiff.

The objection is also raised, that the defendant Crooks suffers no injury in the premises, and that he alone should avail himself, of the nullity of the promise of sale. Such, however, is not the case. There is a penal condition attached to the contract; and for that amount the defendant Crooks might be made responsible in an action'for damages resulting from the violation of .the contract.

The District Judge ought to have excluded the declarations of Higginbotham, made in the plaintiff’s absence : they were not part of the res gestee.

There is no weight in tne objection that, because the witness does not recollect the whole ebnversation of the party, he should not be allowed to testify to what he does recollect. The objection goes to the effect, and not to the admissibility of the evidence.

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


author: Merriok C. J. Merrick O. J.

text:
    W. D. Adams v. Sarah J. Cuny &. A. H. Cuny.
    Where a suit is brought upon a drait drawn by a married woman and her husband, the burden of proof is on the plaintiff to show that the draft is valid as to the wife. A party cannot be bound as surety for a debt which is not due by reason of a failure of consideration against the principal.
    from the District Court of the Parish of Catahoula, Mayo, J.

      Smith <& Spencer, for plaintiff and appellant.

      Cuny é Hawkins, for defendants.
   Merriok C. J.

This suit is brought upon a draft drawn by A. H. Cuny and Sarah J. Cuny, in favor of James M. Crook, for the sum of $1,150.

The petition alleges that the consideration enured to the benefit of the wife.

The judgment of the lower court was in favor of both defendants as in case of a nonsuit.

Plaintiff appeals.

By reason of the incapacity of the defendant, Sarah J. Cuny, to contract, the burden of proof was upon the plaintiff to show that the draft was valid as to her.

In regard to the other defendant, it is true that the petition alleges the debt enured to the benefit of the separate estate of the wife. But this fact did not prevent the husband from binding himself as surety in solido with his wife, nor simply as her surety.

The plaintiff presents the joint draft of the husband and wife. The plaintiff’s counsel contends that the husband must be considered as bound as surety for the whole debt. Bat it is clear that he cannot as surety be bound for a debt which is not due by reason of failure of consideration (if any there be) against the principal.

The judgment of nonsuit in favor o!' the wife was properly rendered. But we think a new trial ought to be granted as against the husband.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed as to said Sarah J. Cuny, and avoided and reversed as to said A. H. Cuny, and that it be remanded íor a new trial as to tlie latter, the plaintiff and A. H. Cuny paying each one-half the costs of the appeal.

Sam case — on a Re-iiearing.

Merrick O. J.

In the opinion pronounced in this case, the positions taken by plaintiff’s counsel were not mentioned with sufficient accuracy, and in this some injustice is done to his argument. Still we see no sufficient reason for granting the re-hearing.

The plaintiff himself introduced the proof of the consideration, of the note sued upon. That was found insufficient to charge Sarah J. Cuny, as a married woman. The District Judge, with this proof before him, might have pronounced upon the consideration as to A. H. Cuny, as the proof had been introduced by the plaintiff, but lie gave judgment of nonsuit. Under the circumstances, therefore, we thought the case ought to be remanded for a new trial.

Re-hearing refused.


text:
      A. Miltenberger v. J. F. McGuire et al.
    In a suit, brought against the maker of a promissory note, and a commercial firm as endorsers, whoro judgment by default was made final against the maker, and during the pendency of the suit one of the firm died, and his heirs nevor having been cited, the case was tried only as to the remaining endorsers, and upon the plaintiff’s appealing, the defendants moved to dismiss the appeal because all the parties to the suit had not been made parties to the appeal — Held: That as the suit was tried in the absence of the other parties, there could be no objection to an appeal in the same form.
    Where a commercial firm, being the holder of certain promissory notes, remitted them before maturity to another firm, to be collected and applied to the extinguishment of a debt existing in favor of the latter firm from the former, and endorsed them in order to render their collection moro easy, it being understood that the balance remaining after the payment of the debt was to he paid over to the firm which had remitted the notes — Held: That the firm to whom the notes were remitted must be viewed as the agent of the other for the collection of the notes, and that if the notes wore protested and suit brought upon them by this firm,the other, which was the original holder of the notes, never having ceased to ho owner, cannot be held liable as endorsers.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      McGuire & Ray, for plaintiff and appellant.

      W. J. Q. Baker, for defendant.
   Merrick, 0. J.

This suit was originally brought upon two promissory notes, amounting to $5000, against J. F. McGuire as principal, and John Atkins, W. H. Gayle and D. B. Trousdale, composing the commercial firm of Atkins, Gayle é Co. Judgment by default was made final against McGuire, the maker. Atkins died pending the suit, and his heirs were never cited. The case was tried as to Gayle and Trousdale, and judgment of nonsuit rendered in their tavor,"'and plaintiff appeals.

The defendants move to dismiss the appeal, because all the parties to the suit have not been made parties to the appeal.

The motion cannot prevail. The obligation of the maker of the note is not that of an endorser ; and the endorsers being commercial co-partners, are bound in solido, if bound at all. As the suit was tried in the absence of the other parties, so there can be no objection to the appeal in the same form.

On the merits, we find that Atkins, Gayle & Co. were indebted to A. Miltenberger <& Co. in a sum over $6000 ; that before the maturity of the notes sued on, they remitted the last mentioned with other notes, amounting in all to $8,638 98, to A. Miltenberger & Co., to be collected and applied to the extinguishment of said indebtedness, and the balance to be paid over to Atkins, Gayle <& Co. The two notes were not endorsed at the time they were forwarded, and they were subsequently endorsed in order to enable A. Miltenberger & Co. to collect the same. They were protested at maturity, and tlie suit, as already stated, was brought against maker and endorsers.

The only question presented is, whether Gayle and Trousdale are bound as endorsers. We think it is quite clear, that they are not so bonnd. Their firm never ceased to be the oivner of the notes. Miltenberger never credited it with any amount on account of the same, and the collection was at the risk of the former. It is thus seen, that A. Miltenberger & Co. were agents for the collection of the notes, and only bound to exercise due diligence in their agency. If they failed in the collection, it was tho loss of their principal; if they were successful, they accounted for what they received. The suit, then, in the name of Miltenberger, is in fact one. brought by their own agent, and is inconsistent with the idea of responsibility of Atkins, Gayle <fi Co. by an endorsement.

The defence in this case, is established, which distinguishes the same from the ease of McCarty v. Montet, 6 La. 21. In that case, the note was delivered in payment of a preexisting debt.

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


author: Yookiiies, J.

text:
    Griffin & Dyson v. Cowan, Dykers & Co.—Cowan, Dykers & Co. v. Griffin & Dyson.—John M. Bell, Syndic, R. L. Maitland and Felt & Reed, Intervenors.
    A mortgage note can be transferred without tho necessity of endorsement, or a written assignment. The general rule of evidence relative to contracts and obligations, established by Art. 2257, applies as well to commercial paper, there being no law excepting it from the operation of this rule.
    Tho want or failure of consideration, of a note, or its illegality, may be established by parol, and tho parties to the instrument have tho right to inquire into the consideration.
    APPEAL from the District Court of the Parish of Franklin, Mayo, J.

      McGuire & Ray and C. H. Morrison, for Griffin & Dyson.

      Francis Harper, T. J. Semmes and G. H. Wells, for R. L. Maitland & Co.

      W. A. Jones,

      Geo■ S. Lacey and R. McK. Spearing, for Cowan, Dylcers <& Co., and Felt & Reed, and John M. Bell.

   Yookiiies, J.

The opinion prepared by the District Judge contains a clear exposition of the facts and of the law involved in this cause.

But before disposing of this matter, it is necessary to pass upon the bills of exception, which are spread on the record.

1. This suit commenced by an order of seizure and sale; but, an injunction being sued out, it assumed the form of an ordinary action. The defendants in injunction filed an amended answer for that purpose. The plaintiffs objected, on the ground that the character of the suit was thereby changed. The court overruled the objection, and allowed the amendment.

The plaintiffs being appellees have no interest, in this court, to be heard on that point.

2. The objection raised to the testimony of Thomas J. Semmes, presents the question, whether a mortgage note can be transferred otherwise than by endorsement or written assignment.

Contracts and agreements, above five hundred dollars in value, must bo proved at least by one credible witness, and other corroborating circumstances.” C. C. 225,7. Such is the general rule upon the subject of contracts and obligations ; and it applies as well to commercial paper, there being no law excepting the same from the operation of this rule. C. C. 2612. Jones v. Elliott, 4 An. 303. In the case of Hughes v. Harrison et als., 2 La. 91, the court held that parol testimony was admissible to prove the sale and transfer of a note payable to order. Scott v. McDougal, 14 An. 309.

3. The intervenor, John M. Bell, syndic, offered to interrogate, as a witness, D. H. Cowan, one of the plaintiffs in this cause ; but, upon the objection of the intervenors, R. L. Maitland <& Co., the party was not allowed to testify. This bill of exceptions need not have any further consideration, in as much as the testimony of the party was had, upon the same subject-matter, by means of interrogatories on facts and articles.

4. The objection that the agency of R. G. Abbot could not be shown by parol evidence loses its importance from the fact, that it appears, of record, that the principal ratified his acts.

5. The course pursued by all the parties, in the court below, in inquiring into the consideration of the two notes executed by Griffin & Dyson in favor of Cowan, Dylcers & Co., would dispense us from pronouncing upon the last bill of exception. The court allowed the defendants to introduce proof by parol, to show the real consideration of the notes sued upon, under their allegations of error and fraud.

It is well- settled that the want or failure of consideration of a note, or its illegality, may be established by parol; and that the parties to the instrument have the right to inquire into the consideration.

For the reasons given by the District Judge, it is, therefore, ordered and decreed, that the judgment of the court below be affirmed, with costs.


author: Lard, J.

text:
    Brainard & Geoffroy v. James R. Head, Sheriff.
    Where a slave in the custody of a Sheriff, under an execution, escapes by breaking the jail, in cousequence of its defective construction, or its want of necessary repairs, and not in consequence of the Sheriff’s negligence in securing the entrances into the jail, which are under his special care and con. trol, the Sheriff is not responsible.
    The fact, that a slave thus escaped remained iu the parish and was occasionolly seen by other persons for some time after his escape, are not inconsistent with a faithful discharge of the Sheriff’s duty, unless it be proved that the knowledge of these facts was brought home to the Sheriff, and ho neglected or refused to act upon thorn.
    Where a conditional order is issuocl by a Judge to a Sheriff, and the facts which constituted the proviso or condition are true, the order becomes in effect a peremptory mandate to the Sheriff.
    Where an order of a Judge has been granted in error of fact, although that error of fact is known to the Sheriff when he executes the order, his duty is to obey and execute the lawful mandates of the court, and in the discharge of this duty, he is justified and protected by the law, and cannot be held liable in damages.
    APPEAL from the District Court of the Parish of Bienville, Egan, J.

      J. D. Watkins, for plaintiffs and appellants.

      Morrison & Purvis, for defendant.
   Lard, J.

This suit is for the recovery of the amount of an execution which came into the hands of defendant, as Sheriff of the parish, of Bienville, on the grounds of negligence and the omission of his official duties.

It appears that the defendant seized a slave called Alfred, under a writ of fieri facias issued at the suit of the plaintiffs against Giffin & Leverrett, and placed the slave for safe keeping in the Parish Jail of Bienville; and .that the slave escaped from jail and was not retaken by the defendant, although he (the slave) remained and was seen occasionally in the parish by other persons, for some time after his escape.

It further appears, that after the escape of Alfred, the Sheriff informed the plaintiffs’ attorneys of the escape, and at their instance, seized the slave Mary and her children, as the property of the defendant in execution, under the same writ; and that, after the seizure of Mary and her children, the defendants in execution executed their forthcoming bond with security, as permitted, and in the form prescribed by the statute, for the faithful delivery of these slaves to the Sheriff on the day fixed for the sale ; and that after the giving of the forthcoming bond, the defendants made application to the District Judge for a reduction of the seizure to an amount only sufficient to satisfy the execution in the Sheriff’s hands, and that the Judge ordered the seizure of Mary and her children to be released, provided that the amount of the judgment in favor of plaintiffs had been correctly stated in the petition of the defendants in execution for a reduction of the seizure, and that the slave Alfred was unencumbered to a sufficient amount to satisfy said judgment, interest and costs ; and finally, that the Sheriff released the seizure of Mary and her children, by virtue of the order of the Judge.

It is contended, in the first place, that the Sheriff was guilty of negligence in not preventing the escape of Alfred from the Parish Jail; and that he was also guilty of negligence in not retaking him after his escape.

The slave effected his escape by breaking the jail, in consequence of its defective construction, or its want of necessary repairs, and not in consequence of the Sheriff’s negligence in locking the doors, or otherwise securing the other entrances into the jail, which were under his special care and control. Under such circumstances, the Sheriff is not responsible for the escape of a slave under seizure from jail. It is not his fault, that the jail was defectively constructed, or that it was in want of the necessary repairs in order to make it a place of safe custody or confinement.

The evidence fails to establish the negligence of the Sheriff in not retaking the slave after his escape. The Sheriff sought to retake him, but without success. The facts, that the slave remained in the parish, and was occasionally seen by other persons, for some time after his escape, are not inconsistent with a faithful discharge of the Sheriff’s duty, unless those facts were within his knowledge at the time, and he neglected or refused to act upon them. Such knowledge is not brought home to the Sheriff by the evidence, and the court cannot presume it against him.

It is contended, in the second place, that the Sheriff is responsible for releasing from seizure the slave Mary and children, under the order of the Judge, because Alfred had escaped from jail before the release, and had not been retaken, and because the order of the Judge had been granted on an allegation of the defendants in execution, that Alfred was under seizure, with Mary and her children, for the satisfaction of the plaintiffs’ judgment, and the order was, besides, in itself, not absolute, but conditional.

It is manifest, that the escape of the slave Alfred was unknown to the Judge when he granted his order ; and it is equally manifest, that the fact of escape was known to the Sheriff, when he executed the order by releasing the seizure of Mary and her children.

It is to bo observed, that the facts which constituted the proviso or condition on which the Judge made the execution of his order by the Sheriff to depend, were, as matters of fact, all true, that is to say, the amount of the judgment due the plaintiffs had been correctly stated in the petition of the defendants in execution, for a reduction of the seizure, and there were no mortgages or encumbrances on the slave Alfred, to deprive the plaintiffs of any part of the proceeds of his sale, under their writ. But the order of the Judge had been granted in error of fact, and that error of fact was known to the Sheriff when he executed the order, which has resulted in damage to the plaintiffs, as they contend.

Is the Sheriff responsible to the plaintiffs, under these circumstances ? In our opinion, he is not. The facts which constituted the proviso or condition of the order being true, the order itself was in effect a peremptory mandate to the Sheriff to release the slaves. A Sheriff has no legal right to question either the facts, or the law, of any decree, order or judgment rendered by a court, or Judge of competent jurisdiction. His duty is to obey and execute the lawful mandates of the court; and in the discharge of this duty, he is justified and protected by the law, and, as a consequence, cannot be held liable in damages.

It is contended, in the third place, that the Sheriff is responsible, because he failed to return the writ of fieri facias sued out on plaintiffs’ judgment, within seventy days, and failed to return to the Clerk’s office the forthcoming or delivery bond for Mary and her children, and to certify its forfeiture. On this point, it is only necessary to observe, that as matters of fact, they do appear to be sustained by the evidence in the record. The writ appears to have been returned within the time prescribed by law.

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


text:
    Elizabeth Atkinson v. Agrippa Atkinson et al.
    There is no objection to the cumulation of a demand in separation of property by the wife, with an action to enjoin the seizure of certain property claimed by her-as her separate property, and seized under execution by the creditors of her husband.
    Where a title is claimed to he valid under the laws of another State,’where it was acquired, those laws must bo produced in evidence or proved, otherwise the validity of the title will be made to depend upon our own laws.
    A donation from one spouse to the other, made during coverture, and without the forms of a donation inter vivos, is invalid.
    Where a husband sold property to his wife, and the price was money and the labor of the wife’s slaves, to which the husband was himself entitled — Held ; That such an agreement is not witlnn the protection of Art. 2421 C. C.
    If a Sheriif makes a seizure of property after he has been informed that the title is not in the debtor, but in some third person, he is bound -in solido with the seizing creditor, to indemnify such third person in damages.
    APPEAL from the District Court of the Parish of Franklin, J.

      Morrison & Purvis, M. A. Jones and ./. S. <& J. II. Crawford, for plaintiff.

      Ramage & Murphy, and John T. Ludeling, for defendant and appellant.
   Merrick, C. J.

This suit is brought to enjoin the seizure of certain property claimed by the plaintiff as her separate property, and seized under execution by certain creditors of Agrippa Athinson, her husband. There is also, cumulated with the suit, an action of separation of property, and a demand for a sum of money against the defendant, Agrippa Athinson, for paraphernal property sold for his benefit.

Plaintiff had judgment on the verdict of a jury, and defendants appeal.

The elaborate arguments and briefs of counsel have brought to our notice many points for discussion, but we do not deem it of importance to pass upon any others than those considered in this opinion.

We see no objection to the form of the action and the cumulation of the demand in separation of property with the injunction. See Wrincle v. Wrincle, 8 N. S. 333.

The negroes which were taken from the State of Alabama to Texas by Mr. Jeffries, and wife, belonged to the father, if not to the mother of the plaintiff; and if the proof does not establish the allegation in the petition, that plaintiff inherited from her mother, it shows that she inherited them from her father. In either case, the verdict of the jury on this branch of the title can be maintained.

In regard to the slave Nancy, the proof shows that the defendant, while being in Texas, took the slave Peggy away, and brought back Nancy; that he had no money to bye the slave himself, and that subsequently he placed on record in Texas a written statement admitting the property in Nancy to be in his wife.

We cannot, therefore, say that the jury (in'the absence of any written act of exchange) erred in concluding that the one slave was given in exchange for the other, and that the acts of Athinson in making the exchange were those of a negotiorum gestor for the benefit of the owner of the slave Peggy. This view is in accordance with equity.

The laws of Texas have not been offered in evidence, nor proved by men learned in the law. The wife’s title, under the deed offered in evidence, to the property, the land, &c., sold in Texas to pay the husband’s debts, is not, therefore» established; for the instrument is not valid, considered with reference to our law. If it be considered a donation, it was made during coverture and without the forms of a donation inter vivos. If it be considered a sale, the price was money, and the labor of plaintiff’s slaves, to which defendant was himself entitled, and thus the agreement was not within the protection of Article 2421 of the Civil Code. See Art. 1784.

The judgment on this branch of the case must be reversed.

And as it respects the damages for seizing plaintiff’s property under execution, the proof shows that the slaves, notwithstanding the seizure, are in plaintiff’s possession. We think one hundred dollars will cover the damages sustained by the seizure.

Counsel fees cannot be allowed the plaintiff'; if for no other reason, because she has not fully sustained her pretensions. The Sheriff was informed of plaintiff’s title before the seizure, and is bound with the defendant in solido.

It is, therefore, ordered, adjudged and decreed by the court, that so much of the judgment as awards the plaintiff seven hundred and fifty dollars against her said husband, with a mortgage, be reversed, and that there be judgment in favor of defendants, as in case of nonsuit on this part of the demand; and it is further ordered, that the said judgment of the lower court be further amended, by reducing the damages awarded to the plaintiff against John Stout and Duncan Buie, from four hundred and fifty to one hundred dollars, and that the said judgment appealed from be, in all other respects, affirmed, the plaintiff paying the cost of the appeal.


author: Vookhies, J.

text:
    M. A. B. Cade et al. v. A. J. Redditt.
    In a civil action for damages on occount of libellous and slanderous charges, the defendant is allowed to plead in justification tho truth of the slanderous, defamatory or libellous words or matter ; but if a party is instrumental in giving credence to a report of such a nature, he cannot screen himself by proof that there was such a rumor or report, or that the charges originated elsewhere. All persons concerned in the publication are guilty to the same extent.
    A married woman may sue for damages arising ex delicto, where her husband is a party to the suit.
    APPEAL from the District Court of the Parish of Caldwell, Mayo, J.

      Barry & Crawford, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Vookhies, J.

The plaintiff, a married woman, claims of the defendant the sum of $10,000, being for damages occasioned by the latter’s alleged libellous and slanderous charges.

The defence is the general denial, as regards all the charges, excepting one, the truth of which is specially pleaded.

The allegations in the petition are, that the defendant has maliciously defamed the plaintiff, by preferring the following accusations, to-wit: that she was an unchaste woman, and had committed adultery with several persons ; that she had criminally destroyed two of her children, and would doubtless destroy the remaining one; that she had hired and instigated a third person to assassinate the defendant, and set fire to his premises; and lastly, that she had been advertised in some public paper as a disreputable person.

With regard to the last charge, the truth of which is pleaded as a defence, it appears that there had been such a publication ; but, as the defendant gave it currency, adding that the plaintiff had been served right, it is difficult to see in what lies his justification. The statute, in civil causes, allows the defendant to plead in justification the truth of the slanderous, defamatory, or libellous words or matter; but if a party is instrumental in g'iviug credence to a report of such a nature, it is idle for him to attempt to screen himself by proof that there was such a rumor or report, or that the charge originated elsewhere. All persons concerned in the publication arc guilty to the same extent.

The defendant did not plead the truth of the other defamatory accusation, but relies on the general issue.

As it is proved beyond a doubt, that the defendant did accuse the plaintiff of instigating and hiring some one to commit the crimes of murder and arson, we will for the present dismiss this branch of the subject.

The evidence shows satisfactorily, that the plaintiff’s reputation for chastity was assailed by the defendant; and although the latter, in his brief, argues to the contrary, the matter is demonstrated by the course which he pursued in the court below. He labored to prove that her reputation in the community was that of an unchaste woman ; but, failing in that respect, he succeded in proving that there had been unfavorable rumors to that effect, and that she had a violent temper.

The preferment, by defendant, of the charge of unnatural conduct towards her children, the plaintiff has not substantiated : the evidence on this branch of the case is too loose and unreliable.

Under the pleadings and the evidence introduced by the parties, the plaintiff has made out a case. She is clearly entitled to damages for the defamation of her character; and we will remand this case for the purpose of having these damages assessed by the jury.

The defendant’s objection to the right of the plaintiff, a married woman, to sue for damages arising ex delicto, is of no weight presently, from the fact that her husband is a party to this suit.

It is, therefore, ordered and decreed, that the verdict of the jury and judgment of the District Court be avoided and reversed; and it is further decreed, that this cause be remanded for further proceedings, according to the instructions given in the foregoing opinions; the defendant paying the costs of appeal.


text:
    T. R. Bry & Husband v. Robert Cook.
    A partner who complains of error in the settlement of a partnership account, approved by the signa, ture of the partners, should make it appear by proof.
    APPEAL from the District Court of the Parish of Caldwell, J.

      McGuire & Ray, for plaintiffs and appellants.

      John T. Lucleling. for defendant.
   Merrick, C. J.

The plaintiff sues upon a promissory note and a balance stated upon the settlement of a partnership account approved by the signature of the partners.

The defendant alleged error in the settlement, and had judgment for $155 08. The plaintiffs appeal.

The defendant complains of two errors : one arising from the settlement of the cotton crop of 1847, and the other the final settlement in 1854.

It is clear, that the party complaining of an error, should make it apparent by proof.

In this instance, it is supposed, and so the District Judge held, that an error of $1,008 37 is apparent upon the account, by inspection. It seems to us, however, quite clear, that the supposed error does not exist. The partnership was of a cotton plantion, the control of which was with the defendant.

The net proceeds carried into the settlement for three years were... $11,405 02

The defendant paid of expenses......................$4,344 76

The plaintiff....................................... 1,008 37

- 5,353 13

Amount to be divided.............................. $6,05189

Cook was to have 20, and Mrs. Bry 5£ parts, or in other words, the latter was to have 11 parts out of 51.

Cook’s proportion was..............................$4,746 59

Plaintiff’s share................................... 1,305 30

- $6,051 89

It is evident that, as the funds were to Cook’s credit, Mrs. Bry was entitled to receive, out of the proceeds of the crop in his hands, what she had paid, to-wit .................................................... $1,008 37

Also her proportion of profits................................ 1,305 30

Total................................. $2,313 67

But the account shows she had already received, as per account,.. .. 1,807 29

Which being deducted from $2,313 67, leaves to be paid her by - Cook, the partner holding the funds, the sum of................ $ 506 38

To this add Cook’s note...................................... 80 00

The watch................................................ 60 00

Hire of Caroline............................................ 129 66

And we have due by him to plaintiff.......................... $ 776 04

Allow defendant credit for account with Lelland <fi Mason. .$104 17

Loss of Diana’s time................................. 40 00

Bry’s draft......................................... 228 97

373 14

Difference....................... $402 90

Which is the amount stated in the account signed by the parties.

As it respects the second error complained of, we are not satisfied that the District Judge erred in his conclusion. We think item $104 17 evidently refers to the account stated in 1852, for the crop of 1847 ; and it may be, as plaintiffs’ counsel suggests, that the difference between $104 17 and $242 26j .was settled in some other manner. But the account appears to be stated with some particularity, and we think, under the circumstances, the defendant should be allowed the same as a credit. The value of the corn is found by the District Judge to be at 87j cents per bushel, $437 75. Of this finding there is no complaint.

There is no defence to the note for $150 and interest.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff do recover and have judgment against the defendant, Robert Cook, for the sum of eight hundred and fifty-two dollars and fifty-five cents, and that seven hundred and two dollars and fifty-five cents thereof bear five per cent, interest from the 14th day of April, 1854, until paid, and that the residue, viz, one hundred and fifty dollars, bear interest at the rate of eight per cent, from the first day of January, 1855, until paid, and that the defendant pay the costs of both courts.