author: Voorhies, J. Voorhies, J.

text:
    Sandifer Hoggatt v. Martha A. Gibbs, Tutrix.
    The will of N. R contained the following clause : “ I give, devise and bequeath to the legitimate children of my son Anthony, who may be living at the time of his death, and the legal descendants of such as may previously die, in such portions as my son Anthony may by deed or will appoint, and in default of such appointment, in equal portions, the descendants of any deceased child talcing but one share, all the lands, slaves and movable effects belonging to me in the parish of Madison, in the State of Louisiana, or which may be thereon at the time of my death; and I appoint my son Anthony guardian of his said children, and toill md require that he shall manage md control said Imds, slaves, and movable effects to the best advantage of said children, cmd with the income thereof provide for the genteel support and liberal education of said children and their descendants, according to his judgment and discretion. 1 further will and devise, that, as such of said children shall arrive at the age of twenty-one years, or marry, that said Anthony shall set apart and give the usufruct of a portion of such property to such child, to such amount as he may deem just, after which he shall not be accountable for the receipt or disbursement of the income of such property, so set apart, nor for the support of the child so advanced. I wish it well understood, that if Anthony should die before his children arHve at the age required by this vjUI to taJce charge of the property, in that case, I wish my executors to talce charge of every species of property herein mentioned for my son Anthony’s children, and act according to this will. Also, I give a/nd bequeath to Anthony’s children, at his death, all that plantation on which he now resides, in Adams County, which I purchased from William P. Grayson md others, mid all the slaves and personal effects which may be permanently settled thereon and under his control at the time of my death. I wish it well miderstood, that all the property mentioned in this will for my son Anthony’s children, goes to them and their descendants forever.” Reid: That the interest ot Anthony’s children depended on the previous demise of their father, and the title did not vest in the children or descendants of Anthony at the death of the testator, and that the disposition was a prohibited substitution.
    A disposition in a will, winch is reprobated by law, such as a substitution, is not susceptible of confirmation or ratification.
    Children being forced heirs, claim not merely as the representatives of their ancestor, but from the law, and may allege and prove by parol fraud or simulation vitiating the acts of tlieir ancestor.
    Conditions inserted in donations, which are contrary to law or to morals, are reputed not written.
    Money received by one of the heirs in the distribution of the succession of the deceased ancestor in another State forms no part of the succession in Louisiana, and the heir is not bound to collate money thus received in a partition made in Louisiana of the Louisiana succession; but where such money was received under a clause in the will making a donation of the amount to the heir on the illegal condition of the enforcement of a substitution in this State, the heir will not be allowed to take advantage of the legacy, and at the same time benefit by the repudiation of the illegal condition : in such case, there must be collation of the money received in another State.
    APPEAL from the District Court of the Parish of Madison, Farrar, J.

      Soulé, H. Gaither and Euslis, for plaintiff and appellant.

      Roselius, Snyder, Hynes and Shaw, for defendant.
   Voorhies, J.

Nathaniel Hoggatt, a citizen of Mississippi, died possessed of a large estate, situated in Louisiana. In his will, which was admitted to probate in the former State, the following clause is to be found :

Item. I give, devise and bequeath to the legitimate children of my son Anthony, who may be living at the time of his death, and the legal descendants of such as may previously die, in such portions as my son Anthony ma.y by deed or will appoint, and in default of such appointment, in equal portions, the descendants of any deceased child taking but one share, all the lands, slaves and movable effects belonging to me in the parish of Madison, in the State of Louisiana, or which may be thereon at the time of my death ; and I appoint my son Anthony guardian of his said children, and will and require that he shall manage and control said lands, slaves and movable effects to the best advantage of said children, and with the income thereof provide for the genteel support and liberal education of said children and their descendants, according to his judgment and discretion.
“ I further will and devise, that, as such of said children shall arrive at the age of twenty-one years, or marry, that said Anthony shall set apart and give the usufruct of a portion of such property to such child, to such amount as he may deem just, after which he shall not be accountable for the receipt or disbursement of the income of such property, so set apart, nor for the support of the child so advanced. I wish it well understood, that if Anthony should die before his children arrive at the age required by this will to take charge of the property, in that case, I wish my executors to take charge of every species of property herein mentioned for my son Anthony’s children, and act according to this will. Also, I give and bequeath to Anthony’s children, at hi.s death, all that plantation on which he now resides, in Adams county, which I purchased from William P. Grayson and’others, and all the slaves and personal effects which may be permanently settled thereon and under his control at the time of my death. I wish it well understood, that all the property mentioned in this will for my son Anthony’s children, goes to them and their descendants forever.”

The plaintiff, claiming as heir to his deceased mother, Agnes Hoggatt, herself a forced heir of Nathaniel Hoggatt, deceased, sets up title to a share in the Louisiana estate, of his grand father, and sues his co-heirs for a partition and settlement. He alleges that the above quoted clause in the will is null and void, because it contains a prohibited substitution ; and that, consequently, the whole disposition of the property is an absolute nullity.

The defendants plead several exceptions in bar of the plaintiff’s action, and finally aver that a large portion of the property in question belongs in truth to the succession of Anthony Hoggatt, a deceased son of the testator, although it purports to belong to the latter. . The deeds of sale from the son to the father are then charged to be simulated and fraudulent, and to have been entered for the sole purpose of defeating the marital rights of Mrs. Anthony Hoggatt, the mother, and presently the tutrix, of the minors defendants in this cause.

1. The will of the testator contains a prohibited substitution, patent upon the face of the instrument.

There is a distinct charge imposed on Anthony Hoggatt to preserve the property for his children during his natural life, for the avowed purpose of returning it to them after his death, in such proportions .as he might determine. Their interest did not vest previous to his death. The legacy was made to those living, or whose children were living at that period of time. So that, if those who were alive at the date of the death of Nathaniel Hoggatt, had died in the interval, without leaving heirs of their body, and Anthony had had other children born subsequently, the latter would be entitled to the legacy. The will is precise in all these respects; and Anthony was not only charged to assign the portions coming to his children and grandchildren respectively after his demise, but, when any became of age, he was directed to give to them some property in usufruct during his natural life. See the case of Perrin, tutor, v. McMicken’s Heirs, ante, p. 154.

Anthony Hoggatt, under the will, was a gravatus, an interposed person, having the exclusive control and management during his natural life, without accountability to any one, not even his own children. Their interest, indeed, depended upon the contingency of the previous demise of their father. Admitting, as contended for by the defendant’s counsel, that nothing had been given to Anthony by the clause under consideration, the disposition is not the less a substitution; for the intestate heirs of the deceased, Nathaniel Hoggatt. would be called upon to preserve the property for the children of Anthony, to return it to them under the terms of the legacy. “ Toute substitution,” says Marcadé, “ sera nulle. Or quelles sont les dispositions que lo Code prohibe sous ce nom ? Evidemment celles que prohibait la loi de 1792, celles que l’on appelait substitutions dans notre ancien droit; or on a toujours entendu par la toute charge de conserver jusqu’a la mort, pour transmettre alors á un tiers désigné, sans distinguer si le grevé recevait les Mens par succession légitime ou par legs. Telle était la doctrine formelle des auteurs. Pothier disait: Nous pouvons aussi grever de substitution nos héritiers ab intestat; car Us sont censes teñir de nous ce que nous pouvions leur óter.” (Marcadé, vol. 3, p. 372 ; Pothier, Subst., sec. 4, art. 1, (S 3, alin. 3.)

That portion of the will of Nathaniel Hoggatt, deceased, which contains the disposition of his Louisiana estate, being absolutely null and void, (’O. C. 1507,) the plaintiff is consequently entitled to one undivided third of the whole property with the fruits derived since the death of the testator, and to effect a partition and settlement of the same.

II. The question of ratification raised by the defendants in bar of the plaintiff’s action, has already been disposed of by this court on the former trial of this case. 12 An. 770. A disposition of property reprobated by law, such as a substitution, is not susceptible of confirmation or ratification. C. C. 2252 ; Marcadé, v. 5, p. 93.

III. The legacy of twenty thousand dollars made to the plaintiff’s mother, and which she received from the Mississippi estate of the testator, was coupled with an illegal condition, — the enforcement of a substitution in this State. “In all dispositions inter vivos or mortis causa, impossible conditions, those which are contrary to the laws or to morals, are reputed not written.” O. 0. 1506 ; 7 An. 395; 8 An. 171; 10 An. 169, 466. The sum of twenty-five thousand dollars was received by the plaintiff’s mother in the course of distribution of the intestate succession of Nathaniel Hoggatt, deceased, in the State of Mississippi. These two amounts, forming no part of the Louisiana succession, cannot be the object of collation in a partition made by our courts. Atkinson v. Rogers, 14 An. 633.

IV. The question next arises as to the validity and reality of the transfers or conveyances from Anthony to Nathaniel Hoggatt, and the right of the defendants to assail these deeds.

The children of Anthony, it is true, do not aver in so many words that the alienation was made in fraud of their rights as forced heirs; but, by the pleadings, they appear to have that capacity. Furthermore, the property in controversy constitutes the whole Louisiana succession of their deceased father ; and, if not allowed to prove the simulation alleged, they are virtually disinherited. As forced heirs, they claim, not merely as the legal representatives of their ancestor, but from the law. They stand, to that extent, in the position of creditors, and may consequently allege and prove by parol the fraud or simulation vitiating the acts of their author.

Nor is there any inconsistency in the defence set up by the heirs of Anthony Hoggatt, deceased. The plaintiff alleges the nullity of their title under their grandfather’s will. They answer that the will is valid ; and that, if the court decrees otherwise, a portion of the property covered by the legacy was held nominally by the testator, but was in reality theirs by inheritance; that it belonged to their deceased father, who placed it in the name of Nathaniel, with the view of having it conveyed back to them in a more circuitous manner.

If we were to decide the question of simulation upon the evidence in the record, we could not but conclude that the simulation of the conveyance was intimately blended with the substitutionary legacy in the will,- and that the simulated instrument was bnt part of the machinery by which the deceased father and son were attempting to subvert our laws of descent. On the other hand, upon a close inspection of the record, we think that the ends of justice will be subserved by not concluding the parties upon this branch of the case. The plaintiff, upon establishing the reality of the consideration stipulated by Nathaniel to Anthony, will be entitled to relief.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiff do have judgment for an undivided third of the Louisiana succession of Nathaniel Hoggatt, deceased ; that this cause be remanded for the purpose of making a partition and settlement of said succession between the heirs; that the clause of the will of Nathaniel Hoggatt, deceased, devising his Louisiana estate, be set aside and annulled ; that the claim of collation for the items or sums of twenty thousand and twenty-five thousand dollars, be disallowed ; and, finally, that the cause be remanded for further proceedings according to law, the appellees paying the costs of appeal.

Same Case — On a Re-hearing.

Voorhies, J.

The judgment rendered in this cause must be amended in one respect.

The plaintiff should collate the sum of twenty thousand dollars, which had been bequeathed and paid over to his mother, on condition that she should renounce her rights in her father’s Louisiana estate. Having received his share of this estate, it is but sheer justice that he should refund this amount, although the condition of the bequest was one intended to evade our laws. The plaintiff should not be allowed to take advantage of the legacy, and to benefit by the repudiation of the illegal condition.

It is, therefore, ordered, that the judgment pronounced.by this court be amended so as to order the plaintiff to collate the sum of twenty thousand dollars bequeathed to and received by his deceased mother; and that, in other respects this judgment remain undisturbed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Jean Benagam v. Stanislas Plassan.
    Where excessive damages are awarded by a jury for an injury received, they will be reduced by this court.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      C. Dufour, for plaintiff.

      Hunt & Denegre, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover of the defendant, as owner of the brig Allen A. Chapman, damages for %injuries to the person of the plaintiff, by the improper discharge of a cannon on board of said vessel.

The injury consisted in wounds occasioned by the wadding with which the piece was loaded. The gun was discharged within about twenty feet of the wharf, and wounded the plaintiff in the face and arm, and put out one eye. He was confined in the hospital for two months or more, and was compelled from the nature of the wound to lie in an uncomfortable position. The bone was fractured in the arm, and the wound had uot healed at the time of the trial. One of the physicians says the arm will still be very serviceable; the others say that plaintiff will never be able to use the arm, except for some trifling motions.

The wadding used for loading the cannon was made of some tarred rope with knots in it.

It seems that the defendant was the owner of the brig, but not of the cannon. The captain bought the gun on his own account, and placed it on board the vessel. It is not positively shown, that the defendant was aware of the fact that the small cannon had been put on board, although it is made quite probable irom the fact that he resided in this city, and the brig was employed between this city and Havana, in the Island of Cuba, and the captain was in the habit of firing a salute on departing or arriving.

Moreover, the owner was occasionally on board his vessel, while in port, and the guu, an iron four-pound gun, was in its place, and not secreted.

It is contended on behalf of the defendant, that the gun was fired at an improper time, by the willful act of some of the sailors, without the customary order of the person in command of the brig. The captain was standing on the wharf with the defendant at the time of the accident, and a small towboat was just leaving the wharf with the brig, to take the same to Government Point, where it was to be taken in tow for the mouth of the river.

The mate of the boat was examined as a witness. From his testimony it appears that he was in charge of the brig, but did not give any order to fire. One witness, however, states that some gentleman gave the order to fire. On arriving in Havana, one of the crew deserted, it was said, on account of having discharged the cannon.

The case was tried by a jury, who found for the plaintiff $5000.

The defendant did not except to the Judge’s charge, but complains that the jury erred upon the facts of the case.

There is some conflict in the testimony, and the jury, who had the witnesses before them, had better means of judging of the effect to be given to the same than we have.

The defendant complains that the damages are excessive. Under the special circumstances of the case, this court is of the opinion, that they ought not to exceed $3000.

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 here ordered, adjudged and decreed by the court, that the plaintiff do recover and have judgment against the defendant for the sum of three thousand dollars, and that the plaintiff pay the costs of appeal, and the defendant those of the lower court.


author: Voorhies, J.

text:
    J. H. Shropshire v. His Creditors.
    Tho syndic of an insolvent estate, in. filing an account of liis administration, must malee an acurato statement of the active mass of the estate, and also of the passive mass ; mention must be made of tho privileges and mortgages, as well as tho ordinary debts.
    Where real property belonging to an insolvent estate was adjudicated to a certain person, and in consequence of his failure to comply with tlio terms of the first sale, the property was re-adjudicated to tho same person for a lessor amount, and suit being brought against such purchaser for the difference in the prices of the two sales, and the matter was .compromised by his paying a certain amount, which fell short of the deficiency — Held: That this sum was due by him as part of the price which he had stipulated to pay for the property, and must therefore be classed on the syndic’s tableau, as the proceeds of immovable property.
    The fees paid by the syndic of an insolvent estate, to counsel, for tho prosecution or defence of suits for the estate, are entitled to bo classed as law charges. But it is the duty of tho syndic not to burthen the estate with onerous charges for the remuneration of such sorvices, for they are paid on the hypothesis that they enure to the benefit of the estato.
    Subrogation cannot take place, by effect of law, beyond the amount actually disbursed.
    Where parties are liable jointly as principal debtors, and one of them discharges the debt, subrogation takes place only for the share of his co-debtor.
    APPEAL from the District Oourt of the Parish of East Feliciana, Ratliff, J.

      Muse c6 Hardee, for plaintiff and appellant.

      J. B. & J. J. Smith, for defendant.
   Voorhies, J.

The syndic of the insolvent estate of J. H. Shropshire, filed an account of his administration. Its homologation was opposed by John Collins, administrator of the succession of Shropshire’s deceased wife.

This'account does not meet the requirement of thelaw with respect to tableaus of classification and distribution. It is deficient in its statement of the active mass of the estate, and is also unsatisfactory as regards the passive mass. No mention is made of privileges and mortgages; nor are ordinary debts noticed. 0. 0. 1168-1170. The case must, therefore,'be remanded for further proceedings according to law. But, in so doing, it is advisable that we should express an opinion upon the legality or correctness of items in contestation.

1st. The active mass is composed of the following items, being the proceeds of the sale .of real estate:

1. Norwood’s note......................'.................... $155 CO
2. Jordan & Caine's note.................................... 400 00
3. Amount paid by John Collins............................ 930 54
Total.................................$1485 54

The sum of $930 54 was the difference between the price of the adjudication of real estate to John Collins, and of the sale d la folie enchere, made in consequence of the failure of the purchaser to comply with the terms of the first sale. The property was re-adjueated to the said Collins for a lesser amount; aud, suit being brought against him for the deficiency in the price, the matter was compromised by the payment of $930 54, an amount falling short of the deficiency. This sum was due by him as part of the price, which he had stipulated to pay for the real property, which he had purchased, and must therefore be classed as the proceeds of immovable property.

2nd. The counsel fees and expenses and charges incurred in the prosecution of the suit between the syndic of the insolvent estate and the wife of the insolvent must be classed among the law charges. Although the syndic was cast in that suit, the service of his counsel is not the less a law charge, unless they were fraudulently or improvidently engaged to prosecute that suit. But there is no imputation of this nature.

It was the duty of the syndic to protect the estate in its rights ; and, to enable him to do so safely, the law allows him to apply for professional assistance. But at the same time it is his duty not to burthen the estate with onerous charges for remuneration of such services; for these are to be paid on the hypothesis that they enure to the benefit of the estate.

In the case at bar, we must be understood as deciding in this connection, merely that the counsel fees in question are entitled to be classed as law charges, leaving open the question as to the amount, which is properly chargeable as such.

3rd. The administrator of the estate of Mrs. Shropshire paid $370 in satisfaction of a debt due by the deceased and her husband, in solido, to the Clinton and P. H. Railroad Co., and claims to be subrogated to the whole debt amounting to $3,700.

Subrogation cannot take place, by effect of law, beyond the amount actually disbursed. C. C. 2097, 2157 and 2158; 11 An. 717, Roman v. Kernion ; Marcadé, vol. 4, & 708.

Besides, Shropshire and his wife, being liable jointly and severally as principal debtors of the bank, subrogation takes place only for the share of her co-debtor. She is consequently entitled to $185 00, with subrogation to the rights of the bank.

4th. The succession of Mrs. Shropshire is a creditor of the insolvent estate for the sum of twelve hundred and twenty-two dollars and four cents, besides interest, secured by the tacit mortgage of the wife.

Three slaves belonging to her were sold to pay a judgment due by herself and and her husband to the Union Bank, and by her husband to other parties.

The slaves sold for $2,189 09 ; the sum of $1,930 09 was applied in payment of the bank debt, and the balance, say $257 00, to the other parties. The wife then became her husband’s creditor for the sum of $257 00, and for one-half of the sum of $1,930 09 paid to the bank. She did not become a creditor for the whole amount, for the reasons given in disposing of the item of $370 00, paid by her administrator to the Clinton and P. H. Railroad Co.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed at the costs of the syndic in both courts; that the said syndic, within thirty days after the filing of the mandamus of this court in the office of the clerk of the inferior court, shall file a tableau of classification and distribution of the funds in his hands, in accordance with the views expressed in this opinion ; and that this case be remanded for further proceedings according to law.

Merrick, C. J., recused himself, on the ground of interest.


author: Merrick, O. J.

text:
    Margaret Forbes v. Phillip Drumm.
    Where property was sold with the agreement that the yondee was to retain a certain portion of tlio price until the vendor had procured the release of the interests of other parties in such property, and prior to the performance of this condition, the vendee transferred the property to another person without mention of the encumberances — Held: That the fact of this subsequent purchaser’s taking possession of this property and his payment of the balance which was to have become due to the original vendor upon his performance of the condition, does not prevent him, when sued by his immediate vendor, from insisting upon the performance of the condition.
    from the Fourth District Court of New Orleans, Price, J.
    /. Livingston, for plaintiff.

      Michel & Kooniz, for defendant and appellant.
   Merrick, O. J.

The defendant bought at auction on the 7th day of June, 1854, a lot of ground for $2,325, part cash and part credit.

The lot sold, formerly belonged to the community between the succession of Mary Ann Williamson, deceased, and her surviving husband John Alexander. In the settlement of this community, Alexander, who held also the usufruct of the common property, transferred to the plaintiff, one of the three heirs of the deceased, the lot in question, and covenanted to procure the release of the interest of the other heirs; the plaintiff retaining $700 of difference in his hands until the release should be obtained.

At the time of the auction, one J. D. G. Quirk held an interest of one-sixth (subject to said usufruct) in the community, by inheritance from his minor child, a grandchild of the deceased.

When the parties came to complete the sale before the Notary in November, 1854, JDrumm refused to accept the title unless the last note, which is described as being payable to his (Drumm’s) own order, at one year after date, for $387 50 bearing six per cent, interest to maturity and eight per cent, after, should be deposited with the Notary, “until said vendor shall produce and have annexed to this act an abandonment and quit claim according to law from J. L). G. Quirk to all or any right, title, property interest', claim and demand whatever which he now has or may hereafter have on the lot of ground buildings and improvements herein conveyed or any portion thereof. ”

This renunciation has never been obtained. Drumm also covenanted in the act of sale to pay the $700 due from the plaintiff to John Alexander in December, 1858, but no mention was made of the condition by which Mrs. Forbes was permitted to defer payment until her title was perfected.

The notarial act of sale mentions that the notes were marked ne varietur by the Notary. The promissory note sued on corresponds in every particular with the note described in the act of sale, except it is not marked “ ne varietur. " And, J. M. Burke, who signed the act as agent for plaintiff, was called by her as a witness, and without intimating that there was more than one note, said that the sale was made at auction some time in June, and the note was dated back.

We think the identity of the note is sufficiently established.

Taking possession of the property and the payment of the $700 to John Alexander did not waive defendant’s right to insist on the condition. The contract was silent as to the condition in plaintiff’s favor on the debt of $700. Drumm’s knowledge of the outstanding title in Quirk does not prevent him from insisting on the condition, for it was this knowledge which caused defendant to adopt that mode of protecting himself.

It is clear that the potestative condition upon which the note was to become exigible has not happened. According to the well settled rules of law, plaintiff cannot recover. See McDonogh v. Zacharie, 3 L. R. 318 ; same v. same, 5 L. R. 252; C. P. 158.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court bo avoided and reversed and that there be judgment in favor of the^ defendant as in case of non-suit, plaintiff paying the costs of both courts.


text:
    Henry E. Morton v. Owners of Steamboat Chalmette et al.
    Where there is no assignment of errors, no statement of facts, special verdict or bill of exceptions in the record, and it appears from the certificate of the clerk that through the negligence of the appel- • lant a portion of the evidence on which the case was decided in the lower court, is not contained in the record, the court will ex officio dismiss the appeal.
    APPEAL from the Fourth District Oourt of New Orleans, Strawbrulge, J.

      A. T. Steel, for plaintiff and appellee.

      Wolfe <& Singleton and Durant & Hornor, for defendant and appellant.
   Merrick, O. J.

There is no assignment of errors, no statement of facts, special verdict, or bill of exceptions in the record in this case, and the certificate of the clerk is in these words, viz :

“ I hereby certify that the above and foregoing eighteen pages, do contain a full and complete transcript of all the proceedings as well as of all the documents filed and all the testimony adduced (except au alias fi. fa. issued September, 11th 1849, and not returned by the Sheriff, and the testimony of J. H. B. Morton which was not reduced to writing,) on the trial of the cause wherein Henry E. Morton is plaintiff and owners of Steamboat Chalmette el al. are defendants, and John Tiner is security, instituted in this court and now on the records thereof under the No. 1993. ”

It is obvious that this court is not in possession of all the evidence on which the case was decided in the lower court. The certificate of the clerk shows negligence on the part of the appellant in not causing the testimony of the witness to be reduced to writing or in procuring a statement of facts. Wa must dismiss this appeal ex officio.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed at the cost of the appellant.

Buchanan, J., absent.


author: Cole, J. Merrick, O. J., Land, J., Duffel, J.

text:
    J H. Watson v. C. M. Simpson.
    A writ of attachment in the case of an absentee is not a remedy incident to a main action, hut is tho foundation of the action; andan order setting aside the attachment terminates tho suit, unless an appeal is taken from it.
    An appeal from an order setting asido an attachment in tho case of an absentee, if taken within tho legal delay of ten days, will have the effect of suspending the’ execution of the judgment; and an appeal bond for costs only is required for such an appeal.
    Note. — Tho above opinion was rendered by Justice Cole in December, 1859, and the case was subsequently tried upon a re-heanng in June, 1860.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Race & Foster, for plaintiff.

      Durant & Hornor, for defendant and appellant.
   Cole, J.

John H. Watson instituted suit by attachment against C. M. Simpson.

John M. Gould & Co., the present appellants, became security on the defendant’s bond given to the Sheriff to release the property attached, binding themselves in the sum of seven thousand dollars, to pay the plaintiff whatever judgment should be rendered against the defendant, conditioned “ that if the defendant shall satisfy such judgment as may be rendered against him in the suit, then this obligation to be void, or else, to remain in full force.’’

Pinal judgment having been obtained against the defendant, execution issued, and after duo demand, the writ was returned •' no property found.”

Thereupon, the'securities were called into court on a rule to show cause why they should not pay the amount of judgment, to-wit, the sum of $4,613 51, with interest, rendered in the original suit against defendant, their principal on the bond, for whose indebtedness they had become sécurity..

Prom judgment upon this rule, condemning them to pay the amount of judgment rendered against the defendant, the securities have appealed.

The principal ground urged for a reversal of the judgment upon the rule is, that plaintiff’s writ of attachment was quashed by an interlocutory judgment, from which no appeal suspending its execution was ever taken.

That said judgment became, as to appellants, final and definitive after the lapse of ten days.- That the judgment quashing- the attachment in fact annulled the bond given by the defendant, with appellants as his securities, for the release óf the attached property.

It appears to us, that even if the appeal taken by plaintiff1 from the interlocutory judgment was not suspensive, but devolutive, still that the bond remains in force in the present case.

The bond was in the place of the goods that had been attached, and after the rendition of the interlocutory judgment setting'aside the attachment, and the termination of the time for a suspensive appeal, neither appellants in the present suit nor the defendant in the original suit, their principal upon the bond, moved the court to dissolve tho bond ; no judgment was ever rendered, which annulled the bond.

Upon the appeal from the interlocutory judgment quashing the attachment, this court reversed the judgment and reinstated the attachment.

The interlocutory judgment being executory, but never having been executed by moving to quash the bond; and as the bond remained in existence at the moment the judgment of this court was rendered, reversing the interlocutory judgment and reinstating the attachment, it is clear, that the bond, which is in the place of the goods attached, remains in its full vigor. Even if the effect of the interlocutory judgment quashing the attachment was to annul the bond given for the release of the goods attached, yet, as that judgment was never executed by having the bond canceled, the judgment of the District Oourt, which held the securities liable, is correct.

We must not be considered as deciding that appellants had the right to have the bond quashed, after the rendition of the interlocutory judgment, from which a devolutive appeal only was taken, and that the reversal of the interlocutory judgment by this court would not have reinstated the bond. Upon this point wo express no opinion. It should also be observed, that the present case differs from that of Love, Savage & Co. v. McComas & Cloon, 14 An. 201. In that case, an interlocutory judgment had been rendered, more than two years previously to the appeal upon the final judgment in the case, and no appeal had been directly taken from the interlocutory judgment.

Judgment affirmed, with costs of appeal.

Merrick, O. J.,

concurring. I concur in the decree, but think the court had the right to revise the interlocutory orders on the appeal from the final decree, and having that right, the defendant and his sureties are bound by the decree of this court.

An appeal to this court, whether suspensive or devolutive,.would be idle, unless the court had the power to deprive the erroneous decree of its injurious effects.

Land, J.,

dissenting. A proceeding by attachment, under our laws, is a proceeding in rem, and constitutes a main or principal action, because it may be intituted for the recovery of a debt, and prosecuted to final judgment and execution, without personal citation to the debtor. And when carried on as a proceeding in rem, a decree dissolving the" attachment operates a dismissal of the action, unless the execution of the decree is arrested by a suspensive appeal within the delay prescribed by law.

When a proceeding by attachment is cumulated with a personal action, that is, accompanied with personal citation to the defendant, it does not lose its character of a proceeding in rem, because, although the dissolution of the attachment does not involve a dismissal of the personal action, yet it does operate a dismissal of the action against the thing itself, that is, the property attached, unless the execution of the decree is arrested by a suspensive appeal within the legal delay. Hence it is, that a decree dissolving a writ of attachment, although cumulated with a personal demand, is held to be in the nature of a final judgment, and to work an irreparable injury, unless suspended by appeal. Why does such a decree work an irreparable injury ? It is because, the decree becomes executory, after the lapse of ten days from its rendition, the seizure under the writ of attachment is released by operation of law, the property ceases to be in the custody of the Sheriff under the writ, or subject to any further order of the court in the suit. In other words, it is because the proceeding by attachment is decided against the plaintiff, and the decree is executed by a return of the property to the defendant, which in his hands is subject to alienation, or other disposition, as though the writ of attachment had never issued.

Where the property attached has been bonded, the bond represents and stands in the place of the property; and where the attachment is dissolved, the decree has the same effect upon the bond, that it has upon the property itself; that is to say, the seizure is released by operation of law, the bond ceases to be in the custody of the Sheriff, under and by virtue of the writ of attachment, or subject to any further order of the court in the suit. In other words, the bond is canceled by operation of law under the decree dissolving the writ of attachment, and no judgment is necessary, pronouncing its cancellation. As a suspensive appeal was not taken from the decree dissolving the writ of attachment, in the case in which the attachment bond in question was given, and as the decree, consequently, had its legal effect upon the bond, I am of the opinion that the plaintiff has no right of action on it, for the reasons above stated.

It is true that all interlocutory orders, from which no appeal lies, are brought up to the appellate court, with the appeal from the final judgment, and may be revised and corrected, on such appeal, whether the same be suspensive or devolutive. But a decree dissolving a writ of attachment is only in name an interlocutory order; it is, in substance and effect, a final judgment, and such I understand the doctrine to be, announced in the case of Love, Savage & Co. v. McComas & Cloon, 14 An. 201.

Rights acquired in the execution of a judgment from which no suspensive appeal has been taken, are not divested by a subsequent reversal of the judgment. The right, which the surety acquired by the execution of the decree dissolving the writ of attachment, was his release from the bond, and the subsequent reversal of that decree, did not divest the right thus acquired.

The decree of the District Judge in the case of Love, Savage & Co. v. McComas & Cloon, so far as it declared the attachment bond canceled and annulled, was, in my opinion, mere surplusage, because the bond was canceled, by operation of law, under the decree dissolving the attachment.

For these reasons, there should be, in my opinion, a judgment in favor of the defendant, the surety on the attachment bond.

Same Case- — On a Re-hearing.

Duffel, J.

A re-hearing was granted in this case for the purpose of reconsidering the reasons of our first decree; and we are of opinion, after having well considered the subject, that our judgment should be based on different grounds.

The doctrine is well established, that persons, out of the State, can only be made amenable to our tribunals by having their property attached. A writ of attachment duly executed stands in the place of a citation.” Schlatter et al. v. Broaddus et al., 4 N. S. 430 ; Favrot v. Delle Piane, 4 An. 584. Hence a writ of attachment is not, in the case of an absentee, a conservatory act, a remedy, an incident to a main action; but is, on the contrary, the very foundation of the action, and stands in the place of a citation in ordinary cases. Hence it follows, as a natural consequence, that an order setting aside an attachment terminates the suit, and is a finality, unless appealed from. The operation of such a judgment, whether styled interlocutory or final, can' only be stayed by an appeal, as its immediate effect is to cause an irreparable injury to one of the parties — 0. P. 566 ; and the fact, that the defendant brought himself within reach of a personal judgment by bis appearance, does not destroy the effect of the interlocutory judgment, or suspend its operation, unless appealed from within the legal delay.

The rule taken on the plaintiff, to show cause ‘‘ why the attachment herein issued should not be set aside, and the bond given for the release of the property, canceled and annulled,” having been made absolute, the attachment was thereby, and by mere operation of law, set aside, and the bond canceled, without the necessity of any addition. Love, Savage & Co. v. McComas & Cloon, 14 An. 201.

It is however contended, that the appeal taken from the above interlocutory order was not suspensive, but devolutive, by reason of the appeal bond being only for $500. The judgment, it must be observed, was signed on the 27th of November, 1857 ; the appeal was taken on the same day, and the appeal bond was filed on the 30th day of the same month and year.

The appeal, therefore, having been taken, and the bond filed within the delay required to suspend the execution of the judgment, must have that effect, unless the bond be insufficient. O. P. 575.

The judgment was not a moneyed one ; the defendant had the custody and control of all the property attached; he had, besides, the obligation furnished by the plaintiff', on obtaining the writ of attachment, to cover all damages — C. P. 245 ; wherefore, under the authority of the case of C. Blanchin v. Steamer Fashion, 10 An. 345, and the cases therein cited, we conclude that a bond for costs only could be required, and that the bond givoD was ample for such an object.

It is, therefore, ordered, adjudged and decreed, that the judgment heretofore rendered by this court remain undisturbed.

Merrick, O. J. For the reasons given in my original opinion, I concur in the decree.

Land, J., absent.


author: Buchanan, J.

text:
    John S. Rhea et al. v. Steamer John Simonds and Owners.
    Where a transcript is filed on the fourth judicial day after the return dajr, and exclusive of that day, the appeal will he dismissed.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Edmond Pendleton, for plaintiffs.

      Hrnton & Miller, for defendants.
   Buchanan, J.

A motion is made to dismiss this appeal, on the ground that the transcript was not filed within the legal delay.

The appeal was returnable the fourth Monday of March, 1860 : which was the 26th day of the month. The transcript was filed in this court on the 3rd April, which was the fourth judicial day after the return day, and exclusive of that day. This was too late.

Appeal dismissed, with costs.

Duffel, J., absent.


author: Land, J.

text:
    S. L. Chambliss v. John A. Miller.
    An express subrogation is necessary to enable the purchaser of a tract of land to exercise the rights of liis vendor against the party from whom the title was acquired, arising out of a deficiency in the quantity of the land, which would have entitled his vendor to the action of quanti minoris.

    The vendees of a tract of land enjoined an order of seizure and sale sued out to enforce the payment of notes due by their vendors to his vendor, and secured by mortgage on the property. The petition for injunction stated that the vendors of the plaintiff became parties to the suit, and adopted tho allegations of the petition — Held: That plaintiff’s vendors could notbe considered parties to the suit, as they had neither taken the oath, nor givon the bond required by law to obtain an injunction.
    APPEAL from the District Court of the Parish of Oarroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellant.

      Short & Parham, for defendant.
   Land, J.

This suit was dismissed on an exception, and the only question in the case is whether the facts stated in the plaintiff’s petition constitute a legal cause of action in their favor.

The plaintiffs allege in their petition :

“ That on the eighth day of March, 1854, William 'Bailey sold and conveyed to Mrs, Caroline S. Bell, widow of Robert Bell deceased, and to Robert Carter Nicholas, then of Jefferson Parish in this State, the land mentioned in the annexed copy of the act of conveyance marked (A), and which is made a part of this petition. ”
“ That the price agreed to be paid for said land by the purchasers, was the sum of eighty thousand dollars, in six annual installments, with eight per cent, per annum interest on each — for which they executed their six notes payable to the said Bailey ; and also five thousand dollars, for which the said Nicholas executed his individual note, payable six years after date, to his own order, and endorsed by him, and bearing eight per cent, interest — making the notes amount in all to eighty-five thousand dollars and interest, as will appear by the copy of the said act annexed.”
“ That on the 31st of December, 1855, the said Mrs. Bell, who had purchased two-thirds of the said land, and the said Nicholas, who had purchased the other third thereof, sold and conveyed' their respective interests therein with other property to your petitioners. ”
“ That as part of the price of said purchase, your petitioners assumed to pay the notes given by the said Mrs. Bell and Nicholas to the said Bailey, except the note due the 8th of March, 1857, upon which they only agreed to pay the sum of $4,071 33 and interest, all of which will appear by a certified copy of the said act of sale marked (B), and made a part of this petition. ”
“ That the tract of land conveyed by the said Bailey to the said Bell and Nicholas, was fraudulently represented by him to them, to contain 1740 acres, and sold guaranteed to them by him to contain that quantity, when in fact and truth it only contained 1525 acres, or 215 acres less than he sold and guaranteed to them. ”
“ That by reason of the said deficiency said Bell and Nicholas were entitled to a reduction of the price agreed to be paid to said Bailey of $12,462 and interest from maturity.”
That Bailey retained a mortgage upon the land conveyed by him to Bell and Nicholas, and by them conveyed to your petitioners, to secure the payment of the notes given to him, by them as before stated. ”
“ That petitioners assumed to pay as stated in the act of conveyance marked (B), the said notes, except that due the 8th of March, 1857, upon which they only assume to pay the sum of $4,071 33. The balance of said note being paid and compensated by the reduction in the price to which they were entitled in consequence of the deficiency in the quantity of the land. ”
“ That petitioners have paid the said sum of $4,071 33 so assumed by them, with the interest which had accrued thereon up to the day of payment, to-wit, the 22nd day of June, 1858.”
That the notes due the 8th March, 1855 and 1856, have been paid in full, and the credit to which the said Bell and Nicholas are entitled for the deficiency of the land as above stated, should be placed on the said note due the 8th of Mach, 1857. ”
“ That although the said notes, and particularly those due fhe 8th of March, 1857, and the 8th of March, 1858, are payable to order, and are thus transferable by endorsement, they are liable to all defences in the hands of a third party that they would be in the hands of the said William Bailey. ”
That long before the maturity of the notes, and before the 10th of January, 1856, the said Bell and Nicholas gave notice by advertisement in a public newspaper of large circulation published in the city of New Orleans, where the notes were made payable, that they had good defences against them and warning all persons not to trade for the same. ”
“ That John A. Miller who resides in Washington County, State of Mississippi, moved and instigated by the advantages of an onerous discount at which the notes were to be had, in consequence of the just and legal defences the makers had thereto, and of which he had legal notice, obtained possession of the notes due the 8th of March, 1857,1858 and 1859, and has taken out an order of seizure and sale on the said first note from your honorable court, and prayed that the lands and slaves mortgaged as before stated, should be sold for cash to pay the same, and the other notes according to the dates at which they respectively mature. ”
“ That the Sheriff under said order, has seized said land and slaves, and has advertised the same for sale on the 4th day of September next, as stated in the notice of seizure to your petitioners. ”
“ That all the said proceedings and acts of the said Miller, and the said Sheriff, are illegal, irregular and unjust, and that the interests of your petitioners require that the said proceedings should be arrested by an injunction, and that they will suffer an irreparable injury if the said Miller and Sheriff are not restrained from selling the said property which is now. in their possession, or in that of their vendees, under guarantee of protection from the mortgage claimed to secure the note due the 8th of March, 1857. ”
“ Wherefore they pray that the defendant Miller and the Sheriff, be perpetually enjoined from proceeding with the sale of the mortgaged property : and that the note due on the 8th of March, 1857, be canceled and annulled, and that the mortgage given to secure the payment of the same be erased, and for general relief.”

The petition finally closes as follows :

“ And Mrs. Caroline C. Bell, who resides in Nashville, State of Tennessee, and Mrs. Susan A. Nicholas, widow of the late Robert C. Nicholas, and tutrix of her minor children, and in that capacity representing his succession, also become parties hereto and adopt all the allegations of the foregoing petition. ”
“ The cause of action stated in the petition, arises out of a contract of sale between William Bailey, as vendor, and Bell and Nicholas, as vendees; and the petition contains no averment, that the plaintiffs have been subrogated to the rights of the vendees, in whose favor alone the alleged, cause of action exists. And besides the act of sale from the vendees Bell and Nicholas to the plaintiffs, made a part of their petition, shows that no conventional subrogation has taken place, the only mode in which they could have been invested with the right of action which they claim to exercise in this suit.

The vendees, Bell and Nicholas, cannot be considered parties plaintiffs, for the reason that they have neither taken the oath nor given the bond required by law, to obtain the writ of injunction which has been sued out to arrest the execution of the order of seizure and sale.

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

Buchanan, J., absent.


text:
    Marcus Hunter et al. v. Bennett, Walton & Co. et al.
    Where a party brought a suit by attachment against a vessel for damage done to freight, and the attachment was released upon the execution of a mortgage by the master of the vessel upon the ship to secure the payment of such judgment as might be rendered in the suit — Held: That the acceptance of the mortgage instead of the bond which should have been given to release the attachment, deprived the attaching creditors of their remedy upon the vessel in the hands of bonafide purchasers for value and without notice, since the mortgage was a nullity under the laws of .Louisiana.
    Where a vessel had been thus attached and released, and upon a final judgment decreeing her to be liable, was again seized, she having in the mean while passed into the hands of different owners— Held: That the presumption was, that she belonged to the same owners with whom the contract of affreightment had been made, and that her registry not being recorded in our custom house, her owners at the time of the last seizure were bound to make proof of the change of ownership, and the seizing creditors could not be held liable for more than nominal damages.
    APPEAL from tbe Fifth District Court of New Orleans, Eggleston, J.

      Gaither & McPheeters, for plaintiffs and appellees.
    C. A. Taylor, for John M. Bell. McCay & Edwards, for Bennett, Walton & Co., appellants.
   Buchanan, J.

The plaintiffs claim to be owners of the ship St. Peter, seized in execution of a judgment against other persons. They enjoin the sale of the ship by the Sheriff, and pray for damages, which were awarded by the judgment of the court below against both the Sheriff and the seizing creditor.

Separate appeals were taken, which have come up in separate transcripts. We have already disposed of the ease of the Sheriff (No. 5608 of the docket of this court), and are now to pass upon that of the other defendant, the seizing creditor.

The facts are as follows :

On the 21st of June, 1851, Moses Greenwood é Co. brought suit by attachment against Cyrus Cooper, master, and Rufus K. Page, Stephen Davenport, and A. Allen, owners of the ship St. Peter, for damage to goods shipped on board said vessel at Boston, and consigned to Greenwood <& Co., in New Orleans. The ship St. Peter was attached the same day, and was released four days afterwards, (June 25th, 1851,) upon the execution of a mortgage by the master, Cyrus Cooper, of the ship, her tackle, apparel and furniture, in favor of Greenwood & Co., to secure the payment of such judgment as might be rendered in the suit.

On the 9th of February, 1854, judgment of nonsuit was rendered by the District Court in the suit of Greenwood & Co. v. Cooper et als.; from which judgment plaintiffs in said suit appealed.

Pending the appeal, March 8th, 1855,) Bennett and others were subrogated, on motion of counsel of Greenwood <& Co. to the rights and claims of the latter.

December 17th, 1855, the Supreme Court pronounced judgment upon the appeal, reversing the judgment of the District Court, and decreeing that plaintiffs recover of defendants, Stephen Davenport, A. Allen, J. Larrabee and Cyrus Cooper, in solido, $4,141 19, with interest and costs, and with privilege, for the payment of the same, on the ship St. Peter.

After the release of the St. Peter from attachment as above stated, it does not appear that she visited this port again, until February, 1857, when she was seized under a writ of fieri facias issued upon the judgment of the Supreme Court, at the instance of the subrogees of Moses Greenwood & Co.

In the mean time, the owners of the ship St. Peter mentioned in Greenwood & Co.’s petition, and in the judgment of the Supreme Court had conveyed their interest in the said vessel to other persons, by conveyances recorded in the office of the collector of customs, in which said vessel was registered, as required by the Act of Congress of the 29th July, 1850.

Those conveyances, offered in evidence without objection, show that the present plaintiffs acquired title in the St. Peter, as follows :

Hunter & Thompson bought eleven twenty-fourths of the vessel from Ambrose Merrill, on the 19th May, 1856, one sixth (or four twenty-fourths) from Stephen Larrabee, and seven twenty-fourths from Parmenio C. Shaw on the 26th May, 1856, and one-twelftli (or two twenty-fourths,) from Charles T. Dillingham, on the 29th May, 1856.

Charles L. Snow bought one-third of the vessel from Thompson & Hunter, on the 26th June, 1856.

Augustus F. Saria bought of Thompson & Hunter, one-third of the vessel on the 26th June, 1856.

It is thus seen that only one-sixth of the St. Peter came directly to the present claimants from an original judgment debtor, and there is no notice aliunde brought home to those claimants of the privilege upon the vessel, decreed by the judgment. Under the above state of facts, is the ship liable in their hands to that privilege ?

If the attachment had been released upon a bond given, as pointed out by the Code of Practice, we would answer this question in the affirmative. But the •course pursued by Greenwood & Co., has, in our opinion, deprived them of their remedy upon the vessel in the hands of bonafide purchasers for value and without notice. They thought fit to take the matter into their own hands, without requiring an order of court; and the result is, that they have exchanged virtually, their attachment lein for a mortgage, which mortgage was a nullity under the law of Louisiana. 12 An. 522.

As to the damages which the plaintiffs are entitled to recover in this case, we differ from the District Judge; and consider that they should be merely nominal. The seizing creditors, who were the real parties in interest in Greenwood’s suit, being the owners of the goods that had been damaged by the fault of the owners of this freighting ship, had every reason to believe, after the judgment, which, after years of litigation, they had obtained in the Supreme Court, that the vessel was bound to them to make good the damage.

After a nominal detention of four days, which did not delay her one instant upon her voyage, the vessel is voluntarily released by the party charged with the protection of the interests of the present defendants. It would not, in our view, be equitable, to add to the loss of their judgment, the infliction of heavy damages. The presumption was, that the St. Peter belonged to the same owners as those with whom defendants had made the contract of affreightment.

Neither the original register, nor the many subsequent registers of the ship St. Peter, were recorded in our Customhouse. And these common carriers have no cause to complain that they have been called upon to make proof of a change of ownership in a thing apparently bound for the claim of the seizing creditor.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the injunction herein issued be perpetuated; that plaintiffs recover of Bennett, Walton é Co., appellants, one dollar as damages, with costs of the court below ; those of appeal to be borne by plaintiffs and appellees.

Voorhies, J., absent.


text:
    Widow R. Trudeau v. New Orleans, Jackson and Great Northern Railroad Company.
    Where a diminution of the record is suggested, the Supreme Court will order a certiwari to perfect it, although the case has been submitted for judgment.
    Where suit was instituted for damages alleged to have boon sustained by the plaintiff in consequence of the closing of the ditches on his plantation by tbe building of a railroad, and no evidence was given on the trial from which an estimation of the damages could bo formed, and the jury found a verdict for the plaintiff, the court remanded the case for a new trial.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      A. Trudeau, for plaintiff.

      Michel & ICoontz, for defendants and appellants.
   Merrick, C. J.

The answers of a witness to the interrogatories having been accidentally omitted by the Clerk, we permitted appellant’s counsel (after the case was submitted and the omission had been suggested by the appellees’ brief,) to move for a writ of certiorari.

The return to the writ perfected the record.

Plaintiff’s counsel thereupon moved the court to annul the order allowing the certiorari, because, it is assumed, it could not issue where a case was under advisement.

It was conceded by the learned counsel for ■ the appellant, that the court had the power to grant the order for the writ; but he' .contended that the court did not pursue the right mode. He said the court ought to have re-instated the case upon the docket, before it could have allowed the order. As it is not denied that the record is now complete, it would be doing a vain thing to reinstate the case on the docket in order to perfect a record against which no diminution can now be suggested. See the case of Champomier v. Washington, 2 An. 1014.

Turning to the merits, we find that the plaintiff brought suit to compel the Railroad Company to open certain ditches through the railroad, and to recover $10,000 damages.

Judgment was rendered, on the verdict of a jury, for damages only, in favor of the plaintiff, for $4000, and defendant appeals.

The evidence (as it now stands) shows that many of the ditches draining plaintiff’s plantation were closed by the building of the railroad, and that the proper drainage of the place was thus prevented, and the crops injured. But there is no evidence, from which, even, an approximate estimation of the damages can be formed. Under the circumstances we think the case ought to be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and that the case be remanded to the lower court for a new trial, and further proceedings according to law, the plaintiff paying the costs of the appeal.


text:
    J. Murphy & Wife v. B. Redler.
    Damaged cannot "be awarded against tlic landlord for suiug out a provisional .seizure of tlic olfccts of tlic tenant, where the seizure 1ms been maintained as legal.
    To recover damages fora malicious prosecution, the plaintiff must show that the prosecution was instituted maliciously ami without probable cause, and both these must concur.
    Appeal from the Fifth District Court ol Now Orleans, Eggleslou, J.

    ) I7! 11. Hunt <£• Denegre and T. IT. Kennedy, lor plaintiff. D. Augus-tin, for defendant and appellant.
   Buchanan, J.

Plaintiffs claim of defendant lire thousand dollars damages for two malicious prosecutions; one civil and the other criminal; the former being a suit and provisional seizure for house rent, and the latter an accusation of arson.

The damages arc claimed generally for the two prosecutions, without distinguishing how much is claimed for each.

The suit for house rent which is complained of terminated by a judgment of the Justice of the. Peace iii favor of the plaintiff (liedler) against the defendants (Mrs. Murphy and husband), with privilege and costs, rendered on the 31st of January, 1850. From this judgment defendants appealed on the 4th of February, 1859 ; and on the 11th February, 1859, said appeal being still undecided, the present action was brought. Since the institution of this action, the said appeal has been tried in the appellate District Court, and judgment rendered affirming- the judgment of the .Justice of the Peace. Those facts of record dispose of that portion of this case which is based upon the defendant’s suit against plaintiffs for house rent. It is clear that no damages can be. awarded for a provisional seizure which has been maintained by the. judgment of the court from which it issued ; and, a fortiori, when that judgment lias been affirmed by the appellate court. .

As to tlie criminal prosecution of plaintiffs for arson, it is not alleged that,defendant was tlie prosecutor — tliat lie made the'affidavit for the arrest of the plaintiffs on'that charge; but that the defendant prompted, instigated and advised, by false information furnished to, the person who made the affidavit upon which plaintiffs were arrested and imprisoned. The petition charges that the statements thus made to the said prosecutor and to other persons by defendant were false, slanderous and malicious, and were well known hy said Redler to be so ; and that said Redler uttered and published the same with a view to the arrest and imprisonment of petitioners. The petition further alleges that plaintiffs were arrested and imprisoned for live days upon the charge of setting fire to their store, preferred against them on the oath of the sergeant of police; at the end of which time they were examined on said charge by the Recorder of the Second District of New Orleans, and were discharged from the same ; said charge proving to be wholly unfounded.

From the evidence on trial it appears that plaintiff's occupied the ground floor of a two-story house, No. 204 Chartres Street, as a millinery and dry-goods shop, which they rented from defendant; that about six o’clock ■in the evening of the 16th January, 1869, the plaintiffs were absent from the premises and the store shut up, when the neighbors discovered smoke issuing from tlie crevices of the apartment; and an alarm of fire being given, and the store being broken open, was found to bo on fire. The fire was among the goods on the shelves, and was extinguished in a short time, with very little damage to the building, but great damage to the goods ; the stock and fixtures, which were insured for two thousand dollars, being sold subsequently at auction for $460.

The next day after the Are, G. A. Raymond, a police officer who had been on the spot during the fire, made an affidavit before the Recorder of the Second District “that from information received, he has good reason to believe, and verily believes, that Mr. and Mrs. Murphy have on last night, about six o’clock, set fire to their house on Chartres street, between Ursulin.es and Hospital streets, whereupon deponent charges the above named accused with having wilfully and maliciously committed the crime of arson, and prays that they may be arrested and dealt with according to law.”

This charge was dismissed on the 21st January, four days after the date of the affidavit, as “not substcmlialed, ” as appears from the Recorder’s endorsement on the affidavit.

The first witness examined for plaintiffs on the trial of the cause, was Raymond, the police officer who made the affidavit aforesaid. This witness testifies that he made the charge against Murphy and wife upon information derived from Redler; that he met Redler at the fire, who told him he thought Murphy set fire to the house ; that Mnrphymm largely in debt to himself (Redler) and others ; that he was about to sue Murphy for rent, and had told Murphy of his intention to sue him, &c. That Raymond was not induced solely by the representations of defendant to prosecute plaintiffs appears, however, pretty clear from the rest of his testimony. Ho says that he “spoke to other persons about the lire besides defendant Redler, and it was the general impression of persons there that plaintiffs Murphy had set the house on fire.” “Witness found a table close to a shelf; found also a chair without a bottom to it, which bottom bad been burnt ont; tbe fire bad originated in tlie upper part of tbe shelf.” “Witness saw many suspicions circumstances about tbe place, and tbe general impression there was; that there were suspicious circumstances attending this fire.” “Murphy told witness that when the fir.e originated bo was on Washington Square, in tbe Third district, and that he bad been informed of tbe fire by a friend of bis.”

The suspicious circumstances attending this fire are also spoken of by other witnesses, examined for defendant.

Youenes, the fire inspector of the insurance offices, testifies that he examined the premises, and is convinced that tbe house was set on fire designedly.

Madam Jacob, a neighbor who lived next door, proves that Murphy had left the store about an hour before the fire broke out. His children had gone out with the servant half an hour before. When the fire broke out, the store was closed ; after the fire witness went into the store and saw that the paper and the shelves were burned ; she saw the table with tbe candlestick and also the chair which had been burnt through by the candle.

Gus/ave Probsl lived two doors from the house occupied by plaintiffs— heard a noise of persons crying fire — he ran out, and when the door was opened, saw a little table with a candle on it near the shelves which were burning.

Joseph David ran to the fire when the alarm was given — went into the store, and saw that the fire was in some band-boxes and shelves in a corner of the house, found it strange that the fire had originated as it did in a corner and on shelves several feet from the ceiling. “ Some said the fire had been set purposely.” “liedler appeared much grieved at the occurrence, and said the fire would ruin him.”

The Judge of the District Court charged the jury as follows :

‘ ‘ That if tbe jury find that the suit and provisional seizure complained of are dependent of a suit which is not at an end and still pending, they cannot give damages against defendant. 2 Greenleaf, 452 ; 11 An. 338.
“That if the jury find that the defendant spoke the words complained of upon reasonable suspicions, and to give the party over to a judicial inquiry, and to prefer a complaint before a magistrate, being in good faith in the fab’ and honest prosecution of his rights, and tbe protection of his interest, then the defendant cannot be condemned in damages. Yol. 2 Harrison’s Digest, p. 2389 to 2396.
‘ ‘ That tbe plaintiff must not only prove malice, but must also show there was no probable cause for the prosecution, and that the defendant is not bound to prove probable cause until the plaintiff has shown the absence of it; and that if plaintiff show malice and not the want of probable cause, defendant cannot bo condemned, as it is just as necessary to show tbe want of probable cause, as it is malice, before a recovery can be had.
‘ ‘ That to maintain an action for this injury the plaintiff must prove :
‘ ‘ 1st. That he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end.
“2d. That it was instituted maliciously and without probable cause.
“3d. That he thereby sustained damage. 2 Greenleaf, $449.
“That probable cause does not depend upon ihe actual stale of the case in point of fuel, but upon the honest and reasonable belief of the parly prosecu^ ting. 12 An. 333.
“ Tlio plaintiff must show that the prosecution was instituted maliciously and without probable cause, and both these must concur.
“That to maintain such an action, malice and want of probable cause must not only'be alleged, but proved.' 13 An., pp. 214, 274.”

This charge expounds the law oí the case correctly, and is not Objected to by either party.

Consistently with these principles, we think'it was the duty oí the jury, •with the evidence before them, to have found a verdict for defendant. Admitting' that his advice to the police officer to prosecute, was synoni-mous with a prosecution by himself, the circumstances of the case, as disclosed in this tostimany, constituted, while unexplained, a probable cause for the prosecution complained oí. And it is fortunate for plaintiffs that they were able to explain them before the Bccorder, as we presume they must have done.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the verdict of the jury bo reversed, and that there be judgment for defendant, with costs in both courts.


author: Vookhbes, J.

text:
    Louisa Mehle v. J. M. Lapeyrollerie.
    The wife Is entitled Lg a rtivorco upon proof of adultery agaiust her husband.
    Positive or direct evidence is not necessary lo establish adultery. Where from the circumstances proven no other inference can be drawn, but that there was an improper intimacy or illicit connection between the parties* the fact of adultery or concubinage will be considered as substantiated.
    APPEAL from the District Court of the Parish of Jefferson, Bur/he, J.

      Michel & Koonlz, for Plaintiff and appellant, P. Souli and L. ('Imrxet for defendant.
   Vookhbes, J.

The plaintiff is entitled to a judgment of divorce against the defendant, her husband.

The evidence shows that the latter has committed adultery with a negro woman named Gharhtle, Indeed, he appears to have kept her as his concubine. Acts 1855, p. 376.

These facts, it is true, .are shown by circumstantial evidence ; but we are not aware that, for this purpose, positive or direct evidence is necessary. Where, as in the present c^so, from the circumstances proven, no other inference can be drawn but that there was an improper intimacy or illicit connection between the parties, the fact of adultery or concubinage must be considered as substantiated. C. C. 2263, 2267.

The defendant’s counsel state, in their brief, that tlio suspicious circumstances attending the visits of their client to the slave Gharhtle, were subsequent in date to the abandonment of the common dwelling by the wife. There is not, in the pleadings, any allegation of such abandonment; nor does the evidence show that the wife loft the husband’s domicil previously to the time of tiie latter’s connection with the slave Charlotte.

It is, therefore, ordered and decreed that tlic judgment of the District Court be reversed ; and that the plaintiff' do have judgment against the defendant; and that the bonds of matrimony heretofore existing' between the said parties be dissolved ; and that the defendant pay the costs of both courts.


author: Voobhies, J.

text:
    Richard England v. Commercial Insurance Company of Ohio et al.
    Whore there was an actual delivery by the venders of a steamboat to the vendee, and the vendors, who -were the captain and cleric of the boat at the time of the sale, afterwards engaged their services to the vendee and took charge of the boat for him — Held: That it could nQt be considered possession of the vendors, by a precarious title, giving rise to the presumption of simulation.
    Appeal from tlie Sixth District Court of New Orleans, Howell, J.

      Beni hi!• Hagan, for plaintiff. Tinranl ct JTornor, for defendants and
    .appellants.
   Voobhies, J.

The defendant as judgment creditor of J. W. Lungdon, W. I). Bateman, Ji. Mason and 11. Moody, formerly owners of the steamboat Lucy Holcombe, caused this property to be levied upon as if it still belonged to the judgment debtors. The plaintiff who holds through these parties by virtue of a- sale duly recorded in the Customhouse, thereupon enjoined the sale.

The question presented is, ■whether this transfer be simulated ; for if it be real and sincere in point of fact, it is clear that however injurious it might be to creditors and tainted with fraud, their remedy could be reached only through a direct action in revocation.

The evidence leaves no doubt as to the facts that, immediately after the .sale, the plaintiff assumed the control and management of the boat; that he acted as the sole owner and proprietor ; that the business of the boat was carried on in his name, he being personally liable for the debts and expenses; and finally that he was actually pedd the debts, uliich, in the bill of sale, he had assumed to pay, amounting to over ten thousand dollars.

It has been argued that it is highly improbable that tlie plaintiff, being a hsli-monger at the market house, could have purchased a boat for the sum of forty thousand dollars; but, by reference to the tax roll, it appears that his real estate is assessed at nearly twenty thousand dollars ; and, besides, that his credit is good in. bank. And then the terms of the sale are looked upon as unusual; for onc-lialf of the price is stipulated to be paid in four installments running from twelve to twenty-four months, the purchaser furnishing only his individual notes. This leads ns to consider the presumption of simulation, which, tlie defendant contends, is raised in this case from the fact that the vendors remained on board of the boat in the capacity of captain and clerk. And, in this connection it is proper to add that these parties liad so officiated previously to the sale or transfer ; and that it was after the delivery of the boat that they were employed by the plaintiff in their respective callings.

Under the provisions of Article 2156, when the seller retains possession by a precarious title, this gives rise to a presumption of simulation ; aud it is then incumbent upon the parties, with regard to third persons, to show that they were acting in good faith, and to establish tlie sincerity of the contract. The last Article of the Civil Code (8522) defines the term precarious: “That possession is called precarious, which one enjoys by the leave of another, and during his pleasure. The title, which excludes tlie ownership, sncli as a lease, is also called precarious.”

Tlie question then arises whether the vendors, in the present ease, retained tlie possession of the Lucy Holcombe, and whether that possession was precarious,

The vendors came back on tlie boat as employees oi tlie vendee : they were charged with the administration oí its affairs, as is usually the case when parties are engaged to command a vessel or to act in the capacity of clerks. And, in point of fact, there had been a delivery from the vendors to the vendees, after which the latter engaged the former’s services. It cannot with propriety be said that the vendees retained the possession of the Lucy Holcombe ; nor that their possession as captain and clerk was precarious in the sense of the Code. They were not on board merely by the leave of the owner nor during his pleasure : they were there by virtue of a contract. Nor did they have possession to the exclusion of the plaintiff’s right of owner,ship : they had hired their sendees to him. and their possession was his possession.

There was consequently no presumption of simulation in the way of the plaintiff, but, had there been, we are not prepared to say that he has not fully rebutted this presumption, and shown the reality and good faith of the transaction.

Judgment affirmed.


text:
    William Alling v. J. O. Woodruff et als.
    "Where there are several joint obligees, an action to enforce the contract cannot he maintained in the name of one of the obligees only. It is a joint right of action which can only be exorcised in a suit jointly instituted by all the obligees.
    Appeal from the Fourth District Court of Now Orleans, Price, J.

      IT. T). Ogden, for plaintiff. J, P. Augustin, for defendants and appellants.
   Land, J.

Li the suit of Jacob Mussina against William Ailing, Charles Stillman, Samuel A. Behlen, Elisha Passe, and 'Robert, IT. Hord, instituted in the Fourth District Court of Now Orleans, the plaintiff was ruled to give security for the defendants’ costs in the sum of one thousand dollars. And in.pursuance of the order of the court, the plaintiff'executed his bond in favor of the above named defendants, with A[artin Owen <C Co., and John 0. Woodruff & Co., as his securities, conditioned for the payment of the defendants’ costs, in the event of the failure of the plaintiff to obtain a final decree in his favor, or faithfully to disohargo.said costs in the above mentioned suit.

The plaintiff Mussina in that suit having failed to obtain a filial decree in his favor, and having- failed to discharge the costs incurred, the defendant William Ailing paid the same, to the amount of five hundred and ninety dollars and seventy cents. And as one of the. obligees in the bond, he has instituted this suit against the sureties of AD/ssina for' the recovery of the amount of costs paid bjr him.

Before answering to the merits, the defendants filed an exception to the plaintiff’s demand, on the ground that the bond sued on is a joint obligation in favor of all the defendants to the suit of Mussina, and that all of •said joint obligees have not been made parties with tlie plaintiff to this suit.

The exception was overruled by the Judge a. quo; and after answer filed, judgment was rendered in favor of the plaintiff against the sureties on the. bond, and they have appealed and insist oil the validity of tlioir exception to the plaintiff’s petition.

The bond given in the suit of Mussina, and on which this suit was instituted by tlie plaintiff, is a joint obligation in favor of all tlie defendants as joint obligees, and they must unite in order to enforce by action a performance of tlie contract. In tlie case of a joint obligation as to the obli-gees, there arises in their favor only a joint right of action which can only be exercised in a suit jointly instituted by them. The law does not permit a multiplicity of suits on an obligation joint as to the obligors; nor does the law allow a multiplicity of actions for the enforcement of a contract joint as to the. obligees.

The plaintiff’s suit is on the bond in which the other obligees have a joint interest, and a judgment in favor of the. plaintiff for the amount of costs paid, would not be a satisfaction of the bond as to the other obli-gees, oven after payment, nor estop them from suing the defendants on the bond in a different suit, as a judgment would, if rendered on an obligation In solido in favor of the obligees. The defendants therefore have an interest iu requiring all the obligees in the bond to be. joined in a suit instituted to enforce a performance of the contract.

The exception was well taken and must be sustained.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the exception be sustained, and the suit dismissed at plaintiff’s costs in both courts,


author: BmiHANAif, ,T.

text:
    L. L. Ferriere v. Gaspard J. Schreiber et al.
    On the trial of a rule to dissolve an injunction, on the ground that it was issuod improvidently and contrary to law, the allegations of the petition are to bo taken as true for the purposes of tbo rule.
    Appeal from the Third District Court of New Orleans, Duvigneaiul,J.

      YVhiitalcer & Fdlou'es, for plaintiff and appellant. I-Tandlin & Si. Paul, defendants.
   BmiHANAif, ,T.

Plaintiff sued out an injunction in the Third District Court of New Orleans against the Constable of tlie Seventh Justice’s Court of said parish, to prevent him from selling certain lots of ground, under two orders of seizure and sale, issued at the suit of the State of Louisiana. The petition for injunction alleged that the proceedings were void for illegality and constitutionality. The grounds of illegality, &c., were specially detailed in the petition, which was sworn to, and bond furnished in due form of law.

A rule was taken on behalf of defendant, to dissolve the injunction, on the ground that the same issued improvidently and contrary to law.

Plaintiff appeals from a judgment making the rule absolute.

We have not been favored with any argument, oral or written, on behalf of the appellee. The rule appears to have been submitted in tlie court below upon the papers; and we cannot perceive from an inspection of them in what respect the injunction was improvidently or illegally issued. The forms prescribed by tbe Code of Practice, for the remedy of injunction, appear to have been pursued in this case.

We agree with the counsel of appellant, that in a rule of this kind, the allegations of the petition are to be taken as true for the purposes of the rule; and we arc of opinion that those allegations disclose a sufficient cause for the, issuance of the. writ of injunction.

It is, therefore, adjudged and decreed, that the judgment of the District Court he reversed, that the rule to dissolve the injunction be dismissed, and that the cause be remanded for further proceedings according to. lav; the costs of the rule and of this appeal to be paid by defendant and appellee.


author: '' Buchanan, J.

text:
    P. J. Spear et als. v. M. Hagelberg.—M. Barnett, Jun., Syndic, Plaintiff in rule, Appellant.
    Proceedings by seyiiostraiion aguinst an absconding debtor, under tlie Act of 1820, before ft dilferent tribunal from that of tlio domicil of such absconding debtor, are coram non jut lice.

      H. 11. Uranchnonl, C, 11, Ifies/and and others, for plaintiffs. (7. UchmicU, for appellant,
    Appeal from the District Court of the Parish of Jefferson, Bwrthe, J.
   '' Buchanan, J.

Miller llagelberg, a merchant or trader, residing in tho parish of Jefferson, absconded or concealed himself to avoid the payment of his debts. Four of his creditors attached his property, by separate suits filed in the District Court of Jefferson.

Subsequently, three, other creditors of llagelberg joined in a sequestration of his property, under the Act of 29th March, 182C, by petition addressed to the Third District Court of New Orleans. A meeting of tho creditors was convened by order of said Court, upon such petition, at which Morris Burnell was appointed syndic.

Tho syndic now takes a rule in the four suits pending in Jefferson1' parish, upon the plaintiff's in said suits, to show cause why the funds in the hands of the Sheriff' of Jefferson, under the attachments levied in those suits, should not bo delivered to him for administration. '

Tho District Court did not err in dismissing this ruie. The petition filed in the District Court of New Orleans, which was given in evidence herein, shows by its allegations that the domicil of llagelberg, at the time of his absconding, was in tlie parish of Jefferson. The same fact is proved by several witnesses examined on the trial of 'the rule. The proceedings for a sequestration, 'under the Act of 1S2G, were, therefore, eoram non jiuliee.

Tho appellant relies upon tho case of Rippey v. Drumgoole, 8th Martin, 711; but that case is not in point. That was a caso of change of domicil, implied from circumstances which have no analogy to the facts of tho present case.

In the case of Levois v. Gerke, 12 An. 828, also quoted by appellant, there was no question of want of jurisdiction ralione personen in the court from which the writ of sequestration issued.

Judgment affirmed, with costs.


text:
    Maria Shannon et al v. J. W. Shannon, Executor.
    Ill all nuncupative wills by public act, whore tho testator does not sign, but ailixcs Ins mark, there must be made, under pain of nullity, express mention of the testator’* declaration of bis inability to sign. Express mention is required, and it cannot be inferred.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      If. M. /Sjtofforcl, ('. A. Taylor and Marlin cC Miller, for plaintiff's-

      Lea eff Muir and Bon/oni, Bingielon <ff Clark, Cor defendant and appellant.
   Voobhies, J.

The validity oí the will oí J. G. Shannon, deceased, depends upon the construction to be given to Art. 1672 of the Civil Code.

The question presented is, whether a nuncupative will, by public act, must contain an express mention oí the testator’s declaration of his inability'to sign.

The 1572d Article, which is, in the French text, precisely in the same words of Article 973 of the- Napoleon Code, reads as follows :

“This testament must be signed by the testator ; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act. ”

The unbroken current of French authorities, decision of the Court of Cassation and of Courts Koyal, and opinions of commentators, is to the effect that there must be express mention of the testator’s declaration of his inability to sign. Indeed the text of the French Code is not open to any other construction.

There is between the French and English texts of our Code, the difference of a comma: “Chal he lenowsnot how, or is not able to sign” — “qiCil ne salt on nepeul signer.” In other respects the English translation is literal. Nor does this difference in the punctuation vary the sense of the article.

In the case of Stafford v. Stafford, reported at page 440 of the Louisiana Reports, this court,' — Mr. Justice Garlelon being its organ, — gave a different interpretation of that portion of the article concerning the disability of the testator to sign the will. — “ This construction of the Code,” it was said, “is justified by the interpretation given to a similar law in France, by a distinguished jurist in that country. ” — The court then quoted a passage from Duranton upon the point, whether an apparent contradiction in a will, which stated, first, that the testator had signed, and then that ho had been unable to sign, did not vitiate the instrument. But this author is silent upon the qrrestion decided in Stafford v. Stafford, and again presented in the case under consideration.

Previously to the adoption of the Napoleon Code, the law required, not only that mention should be made of- the testator’s declaration of his inability to sign ; but that the notary should state expressly that he had requested the party and the witnesses to sign, and that they had declared or answered that they could not or did not know how to sign. But says TouDier: “L’art. 973 du Code est revenu a Tordonnance des testamens; il n’exige, comme cette loi, que la mention expresse de la déclaration du testateur de ne savoir ou de ne pouvoir signer, ainsi que de la cause qui l’empéche de signer, sans laquelle mention le testament serait nul,” vol. V., No. 437. See Grenier, tom. I., p. 438; Pothier, Testamens, Art. 4, $1.

•Under this view of the law, we have come to the conclusion that, in all nuncupative wills by public act, there must be made, under pain of nullity, express mention of the testator’s declaration of his inability to sign. This necessarily overrules the case of Stafford v. Stafford.

There is, in Shannon’s will, the following clause :

“At the moment of signing this will, the said testator, being too weak to sign his name, has made his mark, in presence of all the parties. ”
“John C. (X ) Shannon.”
mark.

No mention is made of any declaration on tlie part of the testator; but it is contended that this is supplied by the affixing of the mark.

Our article requires an express mention of the .testator’s declaration; and, although for this purpose, there be no sacramental terms or expressions, it is obvious that this cannot be reached by implication. The declaration might be inferred from the fact that the testator affixed his mark, but what becomes of the express mention required by the Code ?

The will of J. G. Shannon, deceased, is, therefore, null and void.

Judgment affirmed.


text:
    M. B. Milier v. Wm. Whitfield.
    The general denial admits the signature of the party sued as endorser oí a promissory note, but loaves open every other legal defence.
    An endorser residing in the city where the note was protested, is entitled to notice of protest in person at his domicil ; and where there is nothing to show that such domicil might not have been found on diligent enquiry, a note addressed to the endorser through the Post Office is insufficient.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      J. B. Colton, for plaintiff. G. L. Bright, for defendant and appellant.
   Merrick, C. J.

This suit is against the defendant as endorser of a promissory note. The answer is in these words :

“The defendant pleads the general denial and want of amicable demand, and prays to be dismissed, with costs.”
“ He prays for general relief. ” Signed, &c.

The judgment of the lower court was for plaintiff, and defendant a,p-peals, and contests the plaintiff’s right to recover, on the ground of the want of notice of protest.

Plaintiff contends, that the defendant cannot make this issue, for he has limited his defence to the question of proof of signature and the want of amicable demand.

In the case of Hughes v. Harrison and. wife, 8 N. S. 300, 301, it was held, that the general denial admitted the signature, and left open every other legal defence. See also 14 La. 361, 19 La. 86 and 88.

The note was dated New Orleans, and was payable at the Savings Bank. The Notary Public, charged with making protest, demanded payment at two different Savings Banks in this city — one at the corner of Camp and Lafayette streets, the other at the corner of Camp street and Exchange Place.

He protested the note, but made no certificate of the manner in which the notice of protest was served, as required by statute, but was examined on the stand as a witness. He says, referring to his invariable habit, and •without any distinct recollection of the fact, that he put a notice of protest in the Post Office of Lafayette, directed to New Orleans.

The notary states he did not know the defendant; but it does not appear that he made any inquiry to find his residence or place of business.

It is shown that the defendant, during the last ten or twelve years, has resided in the city, and that he lives on his own property, and carries on a large blacksmith and wheelwright establishment on St. Joseph street, between Foueher and Magazine streets.

It is clear that the evidence is insufficient to charge the defendant as endorser. As the notary resided in the same city with the endorser, he could not resort to another Post Office and address a notice to the endorser in this city. The defendant was entitled to notice of protest on him in person, -or at his domicil, there being nothing to show that such domicil might not have been found on diligent inquiry. See Heiss v. Corcoran & Co., 16 An. 694; 6 La. 744.

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 here ordered, adjudged and decreed, that there be judgment in favor of the defendant, with costs, in both courts.


text:
    Mrs. Felix Leblanc v. L. F. Bouchereau.
    Incapacitated persons, when seeking to be relieved from the effects of engagements contracted by them infraudem legis are entitled to show the real nature of the transaction, and persons so incapacitated are not bound to produce a counter-letter, but may use parol evidence to invalidate the contract.
    Where a contract was made, purporting to be a sale of a slave by a married woman, and it appeared that she retained possession of the slave for some time after the sale ; — that the price was inadequate; that the sale was redeemable ; that the very instrument itself showed that the price was not paid in presenee of the notary or of the witnesses, although the stipulation was for a cash sale, and lastly, that the so-called vendee was the creditor of her husband — Held: That this was not in reality, any contract of sale between the parties. Redeemable sales unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary as contracts for which the thing nominally sold stands as security and nothihg else.
    In such a case as that just mentioned the married woman would be entitled to the value of the services of her slave from the moment that she afterwards became dispossessed by her nominal vendee.
    Appeal from the Second District Court of New Orleans, Howell, J., presiding.

      Johnston & Denis, for plaintiff and appelllant. Gastera £ Biron, for defendant.
   Voorhies, J.

The object of this suit on the part of the plaintiff, who is a married woman, is to obtain the cancellation of the sale of a slave, made by her to the defendant, a creditor of her husband. The ground assigned is that this was in reality a contract of suretyship prohibited by law, although it is clothed with the forms of a contract of sale, with right of redemption.

The defendant contends that, this being a ease of simulation as between the parties, the plaintiff is not entitled to introduce parol evidence to invalidate the authentic instrument of transfer ; and that she must either produce a counter-letter or probe the conscience of her adversary.

It is to be remarked that this is not an action to annul a simulated conveyance ; but one to declare invalid a contract, in 'appearance legal and binding, but covering a violation of a prohibitory law. It is well settled that incapacitated persons, when seeking to be relieved from the effects of engagements, contracted by them in frauclem legis, are entitled to show the real nature of the transaction. “It is not,” said the court, “a good answer to say that persons so incapacitated should take a counter-letter ; for, to admit this argument, would be to make them the victims of the weakness, which induced the law to throw its shield over them.” — (Thibodeau v. Herpin, 5 A. 580, and authorities there quoted.)

The facts, from which the plaintiff endeavors to prove that the contract of sale was in reality one of suretyship for the debt of her husband, are the following, to wit: That she retained possession of the slave some time after the sale; that the price was inadequate; that the sale was redeemable ; that it appears by the very instrument that the price was not paid in presence of the notary, or of the witnesses, although the stipulation was for a cash sale; and, lastly, that the defendant was the creditor of her husband.

As these facts are borne out by the record, we conclude that there was not in reality, any contract of sale between the parties. “Redeemable sales, unaccompanied by delivery of the thing sold, of which the considerations are inadequate, courts are bound to consider, without sufficient evidence to the contrary, as contracts for which the thing nominally sold, stands as security and nothing else.” Collins v. Pellerin, 5 An. 99; Troplong, vente, ?¿ 695 ; Merlin Rep. verbo Contrat Pignoratif.

The plaintiff never ceased to be the owner of the slave, and is, therefore entitled to the value of his services from the moment that she after-wards became dispossed. These services are worth thirty-five dollars per month, as shown by the evidence ; and begin to run from the 24th day of June, A. D. 1857.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that the plaintiff do have judgment against the defendant for the slave Jack.

It is further ordered and decreed, that the sale of the 81st day of March, A. D. 1857, be cancelled and annulled; and that the plaintiff do recover of the defendant the monthly rent of thirty-five dollars, to be computed from the 24th day of June, 1857, A. D., until delivery of said slave by the said defendant to the said plaintiff, the defendant paying the costs in both courts.

Dwí'EXj, J., recused himself.