author: Slidell, 1.

text:
    Ingram v. Moore et al., Executors.
    fir a. proceeding by a creditor, who had obtained judgment against a succession represented by executors, instituted against the latter in the Probate Court, to compel them to sell sufficient property to pay his claim and to file an account, .proof that their accounts had been •homologated and a judgment rendered discharging them and authorising the delivery of the estate to the widow and heirs, where the application of the executors was never advertised, and the proceedings were ex parte as‘to the creditors having been carried on between the •executors and'the widow and heirs alone, will not authorize the dismissal of the proceedings at the cost of the creditor, though, by-the recovery of a judgment against the widow and heirs in a suit against them instituted subsequently to the commencement of the proceedings in the Probate Court, the controversy is important only so far .as the costs are concerned.
    APPEAL from the Court of Probates of Rapides, 'Brewer, J.

      Elgee and Hyams,

    Gontendedffhat judgments of -Probate-courta homologating the accounts of executors, or1 releasing them from their responsibilities, rendered without notice to creditors, are not binding on any one not notified. Baillioy. Wilson, 8 Mart. N. S. 347. Marchaucl v. Grade, 2 La. 148. Gillespie v. Day, 14 La. 290. Daily. Leiois, 2 Rob. 351. Succession of Milne, 2 Rob. 386. Carrollton Bank v. Kerr, 9 Rob. 123.

      O. N. Ogden, for the defendants.
   The judgment' of the court was pronounced by

Slidell, 1.

The plaintiff having obtained judgments against tlie successibn of Winn, represented by his executors, after waiting a considerable time for payment, cited the executors- to show cause why property of the succession should not be sold to pay the plaintiff’s claim, and why they should not be ordered to file an account. To this proceeding the executors excepted, that they had surrendered the- whole property and effects to the Widow in community and tutrix, had rendered an account to her,- and that the same had-been homologated, and they discharged. At the trial» it was proved- that the executors-had so delivered the property, and rendered accounts which had been approved. But it was also shown-that, although the plaintiff, and-several other creditors, had obtained judgments contradictorily with-the executors, the application by the executors for the homologation-of their account and discharge; and for leave'to deliver the estate to the widow and heirs, had never been advertised. Those proceedings were conducted between the executors and the widow and heirs alone, and were entirely ex parte, so-far as the creditors were concerned. There was judgment dismissing the proceeding at- the plaintiff’3 costs, upon the ground that the estate had been delivered to the widow and heirs, and the executors had been discharged- From this judgment the plaintiff has appealed.

We have already given judgment in the case of Ingram v. Richardson et al., ante p. 839; and the present controversy, as the plaintiff’s counsel has acknowL edged in argument, is no further important to his client than as a question of costs. We do not, therefore, think it necessary to express an opinion as to the responsibility the executors incurred by giving up the estate without notifying the creditors,, nor as to the effect against creditors of the judgment of homologation. Considering the matter with reference-to costs, we are of opinion that the judgment of the court below was erroneous in that particular. There were executors who had been duly qualified andhad taken possession of the estate. Contradictorily with them the plaintiff had obtained judgments, which, by the express terms of the judgments, the executors had been ordered to concurrently with other chirographic claims. Never having had any notice of an. account or application for discharge, the plaintiff had a right to suppose them to be still in office, and cite them as the representatives of the succession; and when he is informed by their plea that they are discharged, and by the evidence at the trial that the decree of the Court of Probates has been executed by the delivery of the property to the heirs,, a matter which did not appear of record, it was incorrect to inflict costs upon him.

It is therefore decreed that the judgment of the court below be reversed, so far as it condemns the plaintiff to pay the costs of suit; and that the said costs, and those of this appeal, be paid by the said defendants.


source: Caselaw Access Project

author: Síidelí, J.

license: Public Domain

text:
    Boyce v. Escoffie et al.

      & pl'edge'of'negotiable instruments belonging to a succession, made by an executor without being expressly authorised in the manner prescribed by law, will be without effect,- where the holder is the party to whom* they were pledged by the executor. C. C. 3115.
    The right's of creditors are fixed at the time of the debtor’s death; and no one is permitted by superior diligence, or by dealing with the executor, to*get an advantage over others*
    APPEAL from* the District Court of Rapides, Cushman, J.

      Boyce, appellant, pro se. Thomas, on the sanie side. Cummins and' Elgee, for the defendants.
   The judgment of the court was pronounced by

Síidelí, J.

This is a suit brought on the' notes- of Mrs. Escoffie, which were given to Boyce, by Brevier, tlie executor of Anderson, for the purpose of indemnity, under the circumstances which we have stated-in detail in the case of the- New Orleans Canal and Banking Company v. Escoffie et al., ante p. 830-. The plaintiff declares upon the notes as holder by endorsement for value, and asks judgment against Mrs. Escoffie for the amount; also against Culberson, the endorser.

The' defendants first pleaded an exception to the action, as being, premature,which being overruled they answered, Culberson by a general denial-, and Mrs.Escoffie by a general denial and a special plea, in substance as follows > That she gave the'note as the price of a certain property bought at the succession sale of Anderson, her deceased husband; that by his will she was constituted the usufructuary of his half of the community, and was the owner of the other half in her own right, as surviving spouse; that she was therefore the owner of the-notes herself; that if the notes are to be considered as the property of Anderson’s- estate-,- Brewer, the executor, had no right to pledge them, and the plaintiff' lias acquired no right whatever by the transfer.-

At this stage of the proceedings, Simon A. Anderson, one of the executors of Anderson’s will, intervened in the’ cause. The intervenor alleges that the notes are-the property of Anderson’s succession; that Brewer, his executor, had no right to pledge- them, or transfer them by yray of security to Boyce ; that the transfer was made without his authorisation; and that there are numerous creditors of the succession- who are unpaid. He claimed the delivery of the notes to himself as the executor and representative of the succession.

At the trial of the cause- the facts were- proved, which we have stated in the case of the New Orleans Canal and Banking Company, and to which we refer-as showing the circumstances under which Boyce came into the possession of the notes. It is also proved that there are many unpaid creditors of the succession, and that those notes, with the property of the succession undisposed of, would not more than suffice to pay the remaining debts. Brewer, the executor, is shown to have left the State. There was judgment in. the court below against the plaintiff, in favor of Mrs. Escoffie, as in ease of non-suit; there was also judgment in favor of the intervenor, decreeing the transfer to Boyce null and void, and restoring the- notes to the executor.

The question to be examined is the validity of the transfer of the notes to Boyce, as a security, and for his indemnity as surety in the bond given to the Canal Bank by Mrs, Anderson, in payment of Culberson’s note, endorsed by Anderson and by Boyce. The transfer was, in its nature, a contract of pledge. Had tlie executor, Brewer, a right to make it? The Code is very positive on this subject. Tutors and curators of minors and of persons under interdiction, curators of vacant estates and of absent heirs, testamentary executors, and other administrators named or confirmed by a judge, cannot give in pledge the property confided to their administration, without being expressly authorised in the manner prescribed by law. Civil Code, art. 3115. If we look also to the general principles of our jurisprudence and system of laws touching successions, they lead us with equal clearness to the conclusion that, the act of the executor in this matter, being without any judicial sanction, was invalid. At a man's death the rights of creditors are fixed. Privileges and mortgages rightfully acquired before the death are respected; but with that exception that property of the succession is a common fund, the equal pledge of all the creditors; and one is not permitted, by superior diligence, or by dealing with the executor, who is a trustee, to get an advantage over others. Now, in the present case, if it were conceded that Boyce is to be regarded as a contingent creditor of M«derson’s succession, the law did not permit him to withdraw a portion of the assets, which are the common pledge of all the creditors, for his separate protection and advantage. He could not have done it, if he had been absolutely a creditor of the succession; still less so as his right to recover against Anderson, as his prior endorser, was contingent and prospective only, that is to say, in case he, Boyce, paid the note. We have looked, for the sake of argument, at Boyce’s rights as they stood before the note of the Canal Bank was paid. But his real position is even more disadvantageous. For the note upon which he was endorser was actually paid, not by himself, but by Mrs. Escoffie. She paid the note with her bond, upon which Boyce became the surety. Thus the endorsement of Boyce and the endorsement of Anderson were at an end; or, at least, if there be any equity still left in favor of Boyce against Anderson’s estate, it is a very remote one. It is to be observed that Boyce has not yet paid any thing in any stage of this matter.

In deciding that an executor has no right to give negotiable instruments,which are the property of the succession, in pledge, we are to be considered as expressing our opinion on the case before us, where the holder is the party who has received them in pledge from the executor. What would be the rights of a bona fide holder, without notice, of anote illegally transferred by an executor, is a very different question, and one upon which we need not now express an opinion. See the cases of Nicholson, Syndic, v. Chapman, 1 Ann. Rep. 222. Same v. Jacobs, ante p. 666, and the authorities there cited.

Judgment affirmed.


author: Eustis, C. I..

text:
    Farrar v. The New Orleans Gas Light and Banking Company.
    Sec. 29 of fclae stat. of 1 April, 1835, incorporating the New Orleans Gas Liglifc and Banking Company, authorized any married women of age to bind herself and her «property, in any hypothecary contract lawfully entered into by the husband with the hank, as a surety for the bebfc due by the husband to the bank#

      Under sec; 3 of- the stat. -of 25 March, 1831, fees of counsel may be allowed to the defendant on dissolving an injunction, without proof of their having- been actually paid by him, where they do not exceed twenty percent on the amount of the judgment enjoined, and no other damages are allowed;
    APPEAL -from- the District Court- of Rapides, Campbell, J.

      Thomas and Flint, for the appellant. Dunbar, Thjams, and Elgee, for the defendants.
   The judgment of the-court was pronounced by

Eustis, C. I..

This is an action in which the plaintiff, a married woman, seeks to ann-ul-a mortgage given by her to the defendants, on the ground that she bound herself merely as the surety of her husband, the debt being his, and net being due by her, nor having inured to her benefit. There was judgme nt for the defendants, and the plaintiff has appealed.-

The debt for which-the mortgage was given was a debt due by the husband to the bank, and under its charter the wife could bind- her property by mortgage, as a security for its payment. The 29th section of the charter auth irises married women, of age to bind themselves and their property, in all hypothecary contracts lawfully entered into by husbands with the bank. This section is similar, in respect to the authorization of married women arrived at the age of majority, to the thirty-second section of the charter of the Bank of Louisiana, which was considered by this court in relation to the effect of article 2412 of the Code, which prohibits the wife from being the'security of the husband. Bank of Louisiana v. Farrar et ux. 1 Ann. R. 49. The opinion, then given we consider as deciding this case. But, independent of that decision, the plaintiff’s case is by no means as strong ns that- which she presented on the former occasion. for the charter of ihe Gas Bank was passed in 1835, ten years after the promulgation of the Code. The plaintiffs insists that there is error in the judgment of-the District Court, in allowing $¡>500, special damages, for counsel fees ; but under the construction we have given to the act authorising courts to assess damages on- the- dissolution of- injunctions, we- think the allowance ought to be sustained, as it is much less than the maximum which the court had a right to assess. Wilcox v. Bundy, 13 La. 380. Brown v. Lambeth et al. ante p. 822.

Judgment affirmed-


author: Kins, J.

text:
    Barrett v. Chaler, Syndic.
    Where payments are imputed to certain items, in an account approved by the debtor, afea time not suspicious-, and it is not pretended that the object was to secure any unjust preference to the creditor, the imputation cannot be afterwards disturbed.
    The privilege granted by sec. 1 of the stat. of 23 March, 1843, amending art 3184 of the Civil Code, "for debts due for necessary supplies furnished to any farm or plantation”, attaches to the crop of the current year for supplies furnished during that and the preceding year.
    A charge made by a factor of two and a half per cent as commissions for advancing money, must be regarded as interest, and when, added to an amount charged specially as interest, the two sums exceed the rate which the law allows, a contract to pay it will be usurious. Where a higher rate of interest than eight per cent a year has been paid, the whole amount paid as interest may be recovered within twelve months from the time of payment. Stat. 19 Feb. 1844.
    A factor is entitled to legal interest on any advance made by him for his principal, from the date of the advance. C. C. 2994.
    A charge of interest at a higher rate than the law allows, in a factor’s account, is no bar to the recovery of legal interest.

      Appeal from the Court of Probates of Natchitoches, Greneaux, J.

      Pier-son, for-the appellant. Sherburne am] J. B. Smith, for the defendant.
   The judgment of the. court was pronounced by

Kins, J.

This action was instituted to compel the defendant, as syndic of the succession of Maurin, to approve, and pay in the course of administration, the balance alleged'to be due upon two accounts-current. A privilege is also claimed for the entire balance due on the last crop of the deceased. A judgment was rendered in favor of the plaintiff for the greater part of his demand, but rejecting the privilege claimed, and he has appealed.

It appears from the evidence that, in 1843, the plaintiff mnde large advances to the deceased in cash and plantation supplies. The crop of cotton of the deceased produced in that year, was received and sold by the plaintiff. In June, 1844, an account was rendered by the plaintiff, in which the deceased was debited with tho several advances made, with eight per cent'interest on their amount, and with two and a half per cent commissions on the sums advanced. Tho deceased was credited with the proceeds of the cotton, whibh were applied to the entire extinction of the interest and commissions, and towards the payment of the advances for which no privilege is allowed. A balance remained due which, in a recapitulation at the foot of the account, is stated to be for plantation supplies, sums advanced to defray the expenses of a daughter of the deceased at school, and for cash to the deceased personally, and the amount of each fixed. The account, with this imputation, was forwarded-to the deceased, who approved it, and for the balance which is exhibited executed two notes, not, ns it seems from the evidence, for tho purpose of liquidating the account, but merely to enable the plaintiff to use them in business. Alter the account was thus closed, the plaintiff made further advances in cash and plantation supplies, on the amount of which he also charged eight per cent'interest and two and a half per cent commissions. Maurin died without-having acknowledged the correctness of this second account.

The defendant contends: 1st. That the, charge of two and a half per cent as commissions, and eight per cent as interest, on tho sums advanced is usurious; and that under the act of 1844. (Sess. Acts, p. 15,) he-has a right to recover back the interest thus paid. 2d. He denies that the plaintiff has a privilege on the crop of corn and cotton produced by the deceased in 1844, and contends that the proceeds of the crop of 1843, upon which a privilege did exist, were more than sufficient to pay that part of the account entitled to the privilege, and ought to have been so applied.

The items of both of the accounts for advances of cash and plantation supplies, are fully proved ; and the approval of the first account rendered, in which the proceeds of the sales of the crop of cotton of 1843, were applied to tho payment-of the commissions, interest, and other advances than those fo-r-which the law accorded a privilege,-was an imputation made by the mutual consent.of the parties. It was made at a time not suspicious ; and it is not pretended that the object of the parties was to secure an unjust preference to the plaintiff. The effect of this imputation was to leave the deceased indebted to the plaintiff for plantation supplies, amounting to SI,217 59, and for other advances.

The act of 1843, (Sess. Acts, p. 46) has extended the privilege established in article 3184, § 1, of tho Code, to “debts due for necessary supplies furnished to any farm or plantation.” Under tho construction given to the article of the Code thus amended, I his privilege attaches on the crop of the current year for the supplies furnished during both that and the preceding year. The plaintiff’s privilege ought, therefore, to have been recognised, for the amount which appears to be due for plantation supplies. 3 Rob. p. 216. 8 Rob. 484.

The two and a half per cent charged as commissions for advancing money must be regarded as interest. Added to the eight per cent charged specially , as interest the rate exceeds that which the Jaw allows, anda contract to pay it would be .void. 3 La. 393. 1 Ann. Rep. 265. The deceased, as we have .seen, paid this usurious interest, by .consenting .to an imputation of the proceeds of sales of a crop of cotton to its extinction. The act, however, of 1844, s. 2, (Sess. Acts, p. 15) permits sums thus paid to .he sued for and recovered, within twelve months from the time o.f the payment. The defendant filed his plea of usury within the time limited, and, under the provisions of the statute, the charge for interest and .commissions for advances in the first account, must he rejected. No-contract, is sho.wn in regard to the interest charged in the sec•.ond account. The plaintiff has .only claimed a higher rate than .the Jaw allows, which,is-no bar to his recovering legal interest, .to which he is entitled .on the .advances whichhe has made as a factor. Ante p. 363. C. C. 2994.

The judge below appears to have overlooked the testimony by which the .second account was proved. The advances, of which it is composed, should have been allowed, w.ith five per cent interest from the dates when they were made, and with .a privilege on the .crop .of 1844 .for .the sums expended for .supplies.

It is therefore ordered that the judgment.of the .District .Court be reversed. It is further ordered that the plaintiffs .recover the sum of $1,21,7 59., with a privilege on the proceeds of the crop of .cotton .and,corn .of Lewis Maurin, deceased, produced in the year 1844, without interest; .thathe recover the further sum of $206 11, with five per cent interest thereon, from the 30th day of June, 1844, with like privilege on said .crop of .cotton and .corn; .that he recover the further sum, as an ordinary debt, of $2,257 83, of which last named .sum only $150 is to bear interest, at five percent, from the 11th of .September, 1844, and the residue to bear no interest. It is further ordered that said sum be paid by the defendant in due course .of .administration; and that .the succession of said Maurin pay the .costs of both.courts, to be .taxed..


author: King, ,T.

text:
    Sullivan v. Williams et al.
    A duly authenticated-copy of the section of a foreign statute on.'which a party relies, is sufficient. If the opposite party have reason to believe that other provisions of :the statute are favorable to him, he must produce them. If surprised by tho introduction of the extract only in evidence,.the courtvwill, .on a proper showing grant time to produce the entire statute.
    Defendants, acting as partners, purchased a.nuraber of slaves in another State and rc-sold .them.in a third, in both of which States they were personal property. They subsequently .employed plaintiff in this State, as an agent to purchase slaves for them in a State In which slaves were personal property, to be re-sold in this. .Purchases were made accordingly in-that State, and the slaves re-sold here. Meld, that as joint purchasers of personal property for sale defendants were commercial partners, and liable as such, before the employment of plaintiff as their agent (C. C. 9796);, that the-subsequent .purchases for re-sale here were continued -acts of the same partnership; and that the fact,of .the slaves hecoraing immovables, by destination of law, upon their introduction-into this State.,.cannot affect .. ’ .... • the responsibility of defendants.
    Answers to interrogatories on facts and articles .can only-be used against the party interrogated, and not against other parties to the action; the latter have a right to insist on a cross-examination of the witness by whose testimony -they are to he bound.
    The claim of an agent for compensation under an agreement allowing him a.certain commission on disbursements, is not prescribed by three years. Such an agent is not included anpong the persons enumerated in arts. 3503, 3504, of.the .Civ.il Code.
    Since-the stat. of 20 March. 1839., § 15, repealing art. 554 of the Code of ¿Practice, all sums due on contracts bear interest from judicial demand, though none,has been stipulated, and the demand is unliquidated.
    PPEA.L from the District Court .of Rapides, Campbell, J.

      Ryan, for the plaintiff. Hymns, for the appellant.
   The judgment of the court was pronouced by

King, ,T.

The defendants are sued for a balance alleged to be due on an open account .with interest, and a judgment in .solido against them is prayed for. The cause was .tried in the court below by a jury, who gave a verdict for the plaintiff, and from the judgment rendered thereon.tbe defendant, Williams, has appealed.

From the evidence, it appears that the defendants entered,into,a partnership for tlie purchase of slaves in Virginia, for re-sale, aud that two lots or gangs were purchased and sold. Of those first purchased several were re-sold in the State,of Mississippi, and the residue in Louisiana. The second lot appear to have been all disposed of in New Orleans. The plaintiff was employed in Virginia, as the agent of .the defendants, in making purchases in that State of the second lot; $30,000 were placed in his hands, for that purpose ; and upon .that sum it was agreed that he should receive a.commission of five per cent. The plaintiff credits the defendants with .the sum of $20,000 received, and debits them with commissions, .and with .various disbursements made for the .defendants in the purchase of slaves, and in defraying expenses incurred in the execution of his agency. He also charges them with the price of a slave and of a ¿horse, sold to them. The defendants deny that they are commercial partners, and plead the prescription of three years, as .applicable to the claim .for commissions. ' *

Before proceeding to the .merits, it becomes necessary to .consider a bill of exceptions, taken to‘the opinion of the judge admitting in .evidence part of two statutes of Virginia, the first declaring slaves to be personal property, and the second regulating the rate ,of interest, on the ground that ¡the whole of each of those statutes, and not extracts from them, should have been produced. The judge did not, in our opinion, err. It .was sufficient for the plaintiff to produce an authenticated copy of those sections.only of the statutes of Virginia upon which he relied. 5 Rand. 126. The plaintiff' was .bound to prove the foreign law on which he relied as a fact; but it would be /unreasonable to require of him to produce more of that law than was necessary to establish his right to recover. -Inconveniences.may no doubt arise from permitting a part, instead of the entire .law, to be offered in evidence; but if the party against whom it is offered have reason to believe that other provisions of the particular law are favorable to himself, it is incumbent on him to produce those parts. If he be surprised by the introduction of such.extracts in evidence on the trial, the court would, upon a proper showing, grant .time .for .procuring the entire act. Inthe-pvesent instance, itis not pretended that'fbe-pnrticular sections offered by the plaintiff, are qualified by other parts of the acts from which they are extracted, and there is no complaint of surprise.

The fact that slaves are personal property in Virginia, is sufficiently proved. But it is contended that the partnership was formed in Louisiana, where the defendants resided ; that the slaves were purchased for re-sale in this State ; that upon their introduction into this State they became immovable by destination of law; and that.no other than an ordinary partnership could exist in relation to them. It is shown that a partnership existed between the defendants prior to the commencement of the plaintiff’s agency, and that a part of their common slaves were sold in the State of Mississippi. The subsequent purchases .for.the New Orleans market wore continued acts of the same partnership. As the joint purchasers of personal property for sale, the defendants became commercial partners, and are liable as such to the plaintiff. C. C. 2796.

Two sums have been awarded to the plaintiff by the jury, which we think are not supported by the evidence, and must be deducted from the judgment. The first isa sum.of $500, charged as having been advanced by the.pjantiff for the use of the partnership. This item is supported alone by the answers of the defendant Sullivan to interrogatories. Those answers are binding only as between the party interrogating and the party interrogated. The appellant, Williams, had no opportunity of a cross examination, and as to him they have no effect. Johnson v. Marsh ante p. 772. Morrill v. Carr, ante p. 807. The second item unsustained by proof is one of $140, for the price of a horse. There ;is no.evidence showing that the disbursement was for the use of the partnership.

We think that the prescription .of three years is not .applicable to the plaintiff’s ciaim for commissions. The plaintiff acted in the capacity of an agent, and bekings to none of the classes of persons enumerated in the articles of the Code which treat of .the prescription of three years. C. C. 3503, 3504. We do not understand the case of Coote v. Cotton, 5 La. 12, as deciding that salaries due to agents.are prescribed in three years, nor that agents employed for the purchase of slaves stand upon a different footing from other mandataries. The court only determined that the plaintiff in that case was a secretary, and that his wages as such were, under article 3503 of the Code, prescribed by three years.

The section of the Virginia statute in relation to interest, which has been offered by the plaintiff, establishes no rate of interest in the.absence of an agreement of parties, but merely declares contracts null in which a higher rate than six per cent is reserved or taken. The plaintiff’s claim for interest must rest upon our own.laws. Previous to the act of 20 February, 1839, s. 15, repealing the 554th art. off the Code of Practice, no interest was due upon unliquidated demands, 'even from the date of judgment. We have uniformly held that, since the passage of that act, all sums due on .contracts bear interest from judicial demand, even where none has been stipulated, and the demand is unliquidated. We consider the plaintiff entitled to legal interest on his demand, which is based on a contract, from the date of the repealing statute of 1839.

Itis urged that a charge of $5,000 in the plaintiff’s account, is unsupported by evidence. The proof by which it is sustained is a receipt, signed by Getting, in these words: “Received, 3d January, 1834, of Luther O. Sullivan five thousand dollars, to be accounted for in negroes to the said L. O. Sullivan, for Warner Sullivan.” There is no allegation that the plaintiff was not authorised to employ Getting as a sub-agent, or entrust to him funds of the defendants , , „ , , , , tor msistment; but, on the contrary, the proof is that he had previously been employed by the defendants themselves as an agent; that they were satisfied with him, and desired that his agency should be continued.

After deducting from the judgment of the lower court the two sums which we' consider unsupported by proof, there remains due $1,799' 03| for' whieli sum the judgment of the lower court ought to have been given, with five per cent interest, from the 20th of April, 1839, The defendant,. Sullivan, has not appealed, and as to him the judgment must- remain'undisturbed. It is therefore ordered that, as far as relates to-the defendant Williams, the verdict of the jury be set aside, and the judgment of the District Court be-reversed.- It is further ordered that the plaintiff recover of the defendant Williams, the sum of $1,799 03, with five per cent interest thereon from the 20th day of April, 1839; the plaintiff paying, the-costs of this appeal, and the defendant those of the court below.


author: King, J.

text:
    Bray v. Bynum.

      An appeal from a judgment rendered against a married woman, taken by her without tiie'atU tliorization of her husband or of the court, must be dismissed C P. 106, 107,113: And where it does not appear that she was authorized-1 by either to defend the suit in- the court below, and judgment was rendered against her by default, an averment in the petition for an appeal that the petitioner is acting with the assistance of her husband, is not sufficient; nor will an affidavit by her attorney at law that the husband had authorized the appeal, be enough.
    APPEAL by the defendant, a married-woman, from a judgment of the District Court of Rapides, Boyce, J.

      Hyman, for the plaintiff. Waters, for the appellant.
   The judgmentof the court was pronounced by

King, J.

A motion has been made to dismiss this appeal, on the ground that it has been taken by appellant, who is a married woman, without the authorisaof her husband. It does not appear that the appellant was authorised, either by her husband, or by the judge, to defend the suit in the court below. She made no appearance, and a final judgment was rendered against her on a default. In the petition for an appeal it is averred, that the petitioner is acting with the assistance of her husband; but the latter has not joined in the petition. It no where appears that, at any stage of the cause, the husband has done any act from which his authority to prosecute this appeal can be inferred. The law is express that a married woman can not stand in judgment, without the authorisation of her husband or of the court. C. P. art. 106, 107, 118. 1 Rob. 230, 468. Appeal dismissed.

       'Oil the day after the application was filed to dismiss this appeal, the counsel for the appellant filed a statement, sworn to by him before a justice of the peace, that he had been requested by the appellant to prosecute the appeal in this case, and that the husband of the appellant, previously to the taking of the appeal, authorized the proceeding desired by his wife.


author: Slidel-l, J.

text:
    Toler v. Swayze et al.
    Where' one wlio’has obtained a judgment against the maker andendorsers' of anote, colludes' with the parties who were primarily liable on it, for the purpose of screening their property under pretended judicial sales; the liability of the last endorser will be discharged ; nor cam it be revived by the transfer of the judgment to third persons.
    The vendor of a debt or incorporeal right warrants’ its existence at the time-of the transfer, though no warranty be mentioned in the act of sale (0. C. 2616), and that it exists such-as-the parties understood it,, accompanied With all the securities contemplated by the contract' of assignment
    One who sells a judgment obtained against' several p ersons in- solido, impliedly warrants that-the judgment exists as it purports to do; and if, at the time of the sale, one of the debtors' had been discharged, the vendor will be liable on his warranty. Miter, if the purchaser, at the time of acquiring the judgment, was aware of collusion and frauds between the’ vendor of the judgment and other parties to it, by Which one of the debtors had been discharged.
    Appeal from the District Court of Avoyelles, Boyce, J.

      Dunbar, Hyaims, and Elgee, for the plaintiff.’ Waters, for the appellants. Waddell, for the warrantor.
   The judgment of the court was pronounced by

Slidel-l, J.

The-defendants, Swayze and Lewis, are the assignees of a judgment obtained by J. L. Garrett against McCrory, Brewster, Stewart, and Toler, in solido. This judgment was obtained upon a note made by McCrory and Brewster, insólido, to the order of Stewart, and endorsed by Stewart, and then by Toler. The assignees of this judgment issued execution against Toler for the unpaid balance of the judgment; and Toler then brought the present action, and enjoined the execution. The alleged ground of the injunction was that, Toler had been discharged by the fraudulent collusion of Garrett, with Brewster, and the other parties who were primarily liable, whereby their property was fraudulently covered up, under the pretence of judicial sales, at which the property had been fraudulently sacrificed-. The defendants called their assignor in warranty. The court below decreed that the liability of Toler had been completely discharged by the conduct of Garrett, before the assignment to the present defendants. This decree is undeniably correct; and there has not been even an attempt in argument to vindicate the transaction, or dispute the correctness of the opinion of the district judge, who perpetuated the injunction.

As to the call in warranty, the court was of opinion that the warrantor was not bound ; that his warranty was of the existence of the principal obligation; that Brewster and McCrory, the principal debtors, were still bound for the balance of the claim uncollected at the time of the transfer to Swayze and Lewis, for aught that appeared to the contrary in the' evidence; and that the fact that the liability of Toler had been discharged at the time of the transfer, did not create a liability under the warranty. “ I am of opinion,” said the district judge, “ that the succession of Garrett is not liable on the implied warranty, until it is first established that the judgment does not exist as to any of the debtors.”

In this opinion we cannot concur. He who sells a debt, or an incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed. Civil Code, art. 2G16. In the present case the thing, sold was a judgment, in solido, against four persons, of whom Toler was one. There was an implied warranty that the judgment existed as it purported Ur exist; and even if, on the face of the judgment, Toler had been condemned as surety, it would not have varied the warranty. “ Qunnd une créance est vendue avec une hypothéque sur des immeubles déterminés, ce n’est pas assez que la. créance existe, il faut encore que l’hypothéque promise soit enliére au moment du contrat.; et si une portion des biens était affranchie de l’hypothéque, le cédant serait tenu de garantir le cessionnaire qui ne trouverait pas toutes les sftretés sur lesquelles il a compté, et dont l'absence pout comprornettre le capital qui doit luí étre remboursé.” Troplong, Vente, vol. 2, cb. 8, no. 933. When a debt is assigned the warranty is, not merely that the debt exists, but that it exists such as the parties understood it, that is, accompanied and protected by all the securities contemplated in the contract, of assignment. If, however, there was knowledge by the assignees, at the time when they took this transfer, of the frauds connected with this claim, upon which question of fact we express no opinion, they can demand no indemnity against the consequences of those frauds.

In revising the judgment of the court below, we shall remand the cause for a new trial by jury.

As to the judgment upon the claim of the sheriff, Ricard, for services in the execution of the writ enjoined, it cannot be examined, he not having complied with the condition of the order of appeal, by giving bond.

It is therefore ordered that, the judgment in favor of Toler be affirmed. It is further decreed that the judgment dismissing the claim of the warrantees be reversed, and that the issue made between the said Swayze and the said warrantor, be remanded for a new trial, by jury, the said warrantor paying the costs of this appeal.


author: Eustis, C. J.

text:
    Elam v. Bynum et al.
    The appearance of a husband as a co-defendant with Ins wife in a suit, is tantamount to an express authority on his par for ther appearance ; but where an appeal is allowed to a husband and wife on motion in open court, and the husband afterwards abandons the appeal, giving no bond and making no appearance in the Supreme Court, the prosecution of the1 appeal will be considered, as to the wife, as unauthorised. Affidavits of the husband, or of his attorney, exhibited on the motion to dismiss, to prove the authorisation of the wife, \VilI not be noticed; the case must be determined as it stood at the time of the motion to dismiss.
    Appeal from the District Court of Rapides, King, J.

      Flint, for the plaintiff. Hyman and Camming, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

A motion is made to dismiss this appeal as to Bynum and wife. The former has furnished no appeal bond, and there is no ground on which he can be considered as lawfully before the court. As to the wife, the motion is made on the ground that she has no authority from her husband, or the court,to prosecute this appeal. The appeal appears to have been taken by the defendants respectively; it was allowed on their motion, in open court.

We have always held that the appearance of the husband as a co-defendanl, with the wife in a suit, was tantamount to-- an express authority on Lis part for her appearance.- The wife must' Be considered as having taken this appeal with the authority of'the-husband, in the court below. But he abandoned the appeal, gave no bond, and made no-appearance in this court. The wife is then without the presence- and without the authority of her husband in this court, no authority having been shown for her appearance. A's to the affidavit of the husband and the attorney, exhibited on the motion to dismiss, we are not-permitted to notice-th'em. The case must -be determined as it stood on the motion to dismiss,-without the appearance-of the husband as a party to the appeal;

As to the other defendant, Dray, we have been furnished with- no argument-' on the part-of his-counsel, and from an examination of the evidence we aresatified there is no error in the verdict and judgment rendered against'him.

The appeal, so far as relates to Bynum and wife, is dismissed; and the" judgment against Bray is affirmed, with costs-as to the several appellants.


author: Slidell, J.

text:
    Oliver v. Simmes.
    Where the ends of justice require it, the court will-remand a cause, with leave to the plain-' tiff to amend his pleadings. ,
    Appeal by the plaintiff from-a judgment of’tho District Court of Avoyelles, -

      Farrar, J. O. N. Ogden, II: Taylor; and Swayze, for the appellant. Waddell and Edelen, for the-defendant.
   The judgment of the court was pi-o“ nounced by

Slidell, J.

In July, 1342, Simmes filed his petition to be declared a bankrupt, and, in-May,-1843, he obtained, in the usual form, his discharge and certificate,-pursuant to the act of- Congress of 1841. Among the debts due-by him-at the time of filing his petition to be declared a bankrupt was a note of Simmes-, endorsed by Oliver, upon which a judgment had been obtained by the- holder, Burgess, against the maker and endorser. This judgment the endorser was compelled to pay after the discharge of Svrrmes. J n 1842, Simmes addressed Oliver a letter, in which, after informing him that he had just filed his petition-to be declared a bankrupt, he observase “The debt of McEnery Ford, which is unjust, I wish you to avoid if possible. As to the debt due Burgess, I hope, by another year, to be able to assist you, if not pay it. There is also a note held by Judge Overton, for $1,500, endorsed by you and Griffin, as security for a note due by me to the Union Bank, which note I have reduced to $921 and renewed, with which you will never be troubled.” In February, 1843,-before the discharge and certificate were granted, Simmes wrote another letter to Oliver, in reply to one written by Oliver, which lattor, however, is not in evidence. In this letter Simmes writes as follows : “Your favor came duly to hand, and contents duly noted. I regret my inability to render you the desired aid. My circumstances are familiar to you; consequently minutite would be unnecessary. Suffice it to say, I shall, whenever my means will enable me, pay every farthing you may pay for me. At present, without means, without friends, without resources, could I raise funds I would be the greatest financier,” &c. The first letter is written apparently in a very friendly tone. In the second headdresses Oliver formally, and concludes in the same formal manner. The relations of the parties had changed; but whether from the nature of Oliver’s letter, or from what other cause, does not appear.

The plaintiff has declared upon the judgment which he had paid as endorser, and a promise to pay after going into bankruptcy, alleging also the ability of Simmes to pay. The defendant has pleaded his discharge and -certificate. There was no replication, impeaching them for fraud or wilful concealment by him of his property or rights of property contrary to the provisions of the bankrupt act, nor any prior reasonable notice specifying in writing such fraud or con•cealment.

The question has been noticed at bar, and has received-the serious-consideration of the court, whether the promise above stated, being made before the certificate was granted, is binding upon the party. It has been urged by the counsel for the defendant that the promise in such case must be unequivocal, and relate to some specific debt; and that, in these essentials, the letters of tho defendantare deficient. It has also been a subject of serious deliberation with the court, whether, to give-validity to such a promise, is consistent .with the true policy of the bankrupt law.

Upon this latter point the grounds of. our doubts may be briefly stated. 'Promises of this kind, although volunteered and purely gratuitous, (which the promise in question may or may not have been,) might be made with the view of inducing a creditor, from whom the bankrupt apprehended opposition, to refrain from resisting his discharge. The motive might exist, and the object be attained, without the possibility of.proving it. But the act certainly contemplated a free and fair discussion of the bankrupt’s previous conduct, and right to a discharge; and .all the creditors would be entitled to the benefit of facts .and circumstances which might be within the knowledge of a few. Again, the policy of the law was to relieve the honest and unfortunate debtor from alL his liabilities, and restore-him to the untrammeled exercise ■ of his future industry-.; to hold him out to the public as one unembarrassed,-and .with whom new contracts might be made without the risk of interference from former creditors. Upon that assurance new creditors would -be considered as acting. Such are some of the prominent considerations .which have created in our minds doubt as to the validity of a promise.like this, made before certificate.

Our attention.was.called by the plaintiffto the cases of Truman v. Fenton, Cowper, 594, and Besford v. Saunders, 2 Henry Blackstone, 116. Those cases certainly deserve much consideration , butit must be observed, at the same time, that they have their points of distinction .from ths -case before us. In Fenton's case it appeared that the bankrupt had defrauded the plaintiff by drawing him in, on the eve of a bankruptcy, to sell him a-large quantity of goods on credit, ata time when he musthave .known of his own,insolvency, .and which the plaintiff had not the smallest suspicion of. The.consideration -of-the new promise was the debt thus contracted,.and the.agreement of the creditor not to prove under the commission, he also giving up the securities he had received fr.om the bankrupt. The debtor gave his promise, .in the form of a new note, amounting to little more than half of the real debt, in satisfaction of his whole demand. The proposal first moved from the bankrupt, and was his own voluntary request, without threats or undue influence on -the-part of the creditor. Lord Mansfield said the defendant was bound. It is true, he also said, that all the bankrupt’s debts were due in conscience, and that this was a sufficient consideration, the debts not being extinguished in foro conscientlas, though all legal remedy was gone. Aston, Justice, in the same case, seemed to put his concurrence mainly upon the ground that,the waiver of the right to come in under the •commission was a benefit to the rest of the creditors. He also observed that, if a bankrupt could not make himself liable by a new promise the provision in the statute Geo. 2, c. 30, by which every security for the payment of any debt •due before the party became a bankrupt, as a consideration to a creditor to sign his certificate, is made void, would be totally nugatory. No such provision is found in fhe act of 1841. The case of Besford v. Saunders has this very essential difference from the one before us, that the bankrupt’s promise ‘-to pay when he was able,” was made after the certificate.

Although we have stated our doubts, we have not formed conclusively, nor •do we express, any opinion as to the validity and effect of Simmes’ promise. The conclusion to which we have come, to remand this case, renders it not indispensable to decide that question at present; and we have a further reason in the very serious importance of the subject, and the circumstance that the approaching close of the term, and o.ur present 'limited means .of examination, do not permit us to consider it as fully as it deserves.

We have stated thst there was no allegation in the pleadings charging fraud or wilful concealment of property contrary to the piovisions of the act, nor prior reasonable notice specifying in writing such fraud or concealment. But the plaintiff’s-counsel in argument has made these charges, and referred to testimony which was offered at the trial, and not formally excepted to. It appears that a very short time before the bankrupt filed his petition to bo declared a bankrupt a judicial sale was made under execution against him. The defendant furnished a list of the property which he desired to be -seized, and though it •consisted of various objects, such as lands, slaves and an interest in a ferry, he gave a written consent that it should he sold in block, and made the usual waiters. A letter was written to the sheriff by the plaintiff’s counsel, authorising him to adjudicate the property to the defendant’s brother-in-law for $1,000, if he should bid that sum. The adjudication was made, for that sum. Soon after •another sale was made in block, to the same party. The sheriff states that nobody attended at either of these sales, but the party to whom the property was adjudicated. . These and several other circumstances detailed in the testimony, particularly the continued possession and apparent control of portions of the •property after the sheriff’s sale, present acaso which justifies the exercise of the discretionary power of this court to remand causes for further investigation. We do not .fee! at liberty to decide the cause on tho case as presented, because 'the act of Congress expressly requires a formal notice in impeaching a certificate ; and the justice of the provision is obvious, that a defendant may not be 'taken by surprise, and may have a full opportunity to explain or defendíais conduct. if it'be in his power to do so-

ft'is therefore decreed that the judgment of the court below 'be reversed, ■and that this cause’be remanded for a new trial, with leave to the plaintiff to amend 'his pleadings by impeaching the discharge and certificate of the defendant, and to give notice pursuant to the fourth section of the bankrupt act;.the defendant paying the costs of this .-appeal.


author: Kins, 3.

text:
    Turner v. Luckett.
    A judgment obtained against a party on tbe ground of his illegal interference with the ‘administration of plaintiff’s property while tbe latter was a minor, which allowed a tacit mortgage oil the property of the party against whom it was rendered from the date of tlio interference, not alleged to have been obtained by fraud or -collusion, will be prima facie evidence, that tbe sura claimed was due and that it was secured by a tacit mortgage, in an action against a third person to enforce its execution on property held by the latter, alleged to have boon acquired from the defendant in tbe first suit while subject to the tacit encumbrance recognised by the judgment obtained against him. But where the rate of interest allowed by the original judgment is higher than the law authorises, the judgment will 'bo enforced against tbe property in the hands of the third possessor only for the amount for which it should have been rendered.
    Appeal from the District Court of Rapides, Cushman, J.

      Waddell and Edelen, for the plaintiff. Flint and Harris, for the appellant.
   The judgment of the court was pronounced by

Kins, 3.

The plaintiff obtained a judgment against Crain., for $996, with ten per cent iuterest from the 28th of December, 1839. The indebtedness of Crain arose from his interference in the administration of the plaintiff’s property while -the latter was a minor, without having been appointed his tutor or curator. The judgment recognised a tacit mortgage on the property of Crain, resulting from his nets of unauthorised administration, to take effect from the date of the illegal interference. The object of the present suit is to enforce that judgment upon property of the defendant, Luckett, which it is alleged was subject to the tacit encumbrance in the hands of Crain, its former owner. A judgment was rendered in favor of the plaintiff, from which the defendant has appealed.

Several bills of exception were taken on the trial below, to opinions of the judge admitting the testimony of witnesses to prove Crain’s acts of unauthorised interference, and to connect the plaintiff’s claim with those acts. It does not become important to enquire whether those objections be well founded or not, as, in-our opinion, the plaintiff has sufficiently established his right by other evidence. The actiou is based on the judgment obtained against Crain. That judgment is in evidence. There is no allegation that it was obtained by fraud or collusion, and, while it remained unquestioned, it formed such prima facie evidence that the sum claimed was due, and that it was secured by a tacit mortgage on the property of Crain, as dispensed the plaintiff from the production of other testimony. 17 La. 205. 4 Rob. 335.

It is shown that the property of the defendant, on which the judgment is sought to be enforced, formerly belonged to Crain, and that, while he was the owner, the tacit mortgage resulting from his acts of illegal administration attached. C. C. 3283. 8 Mart. N. S. 367.

The defend ant,as third possessor, can only be made answerable for five percent interest, which is the highest rate that the plaintiff could have claimed from Crain, in the absence of an express agreement. In this respect the judgment must be corrected.

It is therefore ordered that so much of the judgment of the court below as decrees that the defendant pay ten por cent interest on the amount thereof, b© . ¡reversed. It is further ordered .that the plaintiff recover five percent interest on the amount of said judgment, from the 28th day of jDecember, 1839; and,An other respects, that s.aid judgment be affirmed ;,the .appelleejwyiqg the costs of .this appeal.


text:
    Succession of Stafford.
    'Where raí incidental contest arose, in-the pi-ogress.of an action for tlie-settlement of a partnership, as to the payment of anote to a receiver appointed by the coart, which was cumuilated with the main action, bat had noconnection with the other matters iu contest, an ex- : tract from1 the record,-containing all-the proceedings relative to the note, will be admissible in evidence,'though objected to -as not being a complete transcript of all- the proceedings in the case, where the whole would have been attended with heavy expense, and-the nature Of the case shows that there was no necessity for prodacing-the whole.record. Per Curiam: In mortuary and insolvent proceedings, which are frequently voluminous, and in which all incidental contests are cumulated, the production of the entire record has never been required iu practice, and we kuow of no reason why it .should be.
    Appeal frora-'the District-Court of Avoyelles, Farrar, S.

      iJSdelen, for fho appellant. IT. 'ITaylor and Sioayze, contr&.
   Tire judgment,of the court -was pronounced by

Eustis, C. J.

The question about which the parties to this suit-are at law iis, whether anote of the deceased, for-Spl,4d8 07, to the-order.of Conner, Griddey & Co. has bean paid ? As an issue has been made as to that,-fact by the ¡pleadings, we do.not deem it maternal ¡to notice any matters which the case (presents, except as they relate-to that issue. Whitehead, who was.a¡partner of ,-the late firm of Conner, Gridley Sf Co,,.is the receiver of the partnership, which is in liquidation,.under an appointment of the late court of the first district, and -the.opposition is ‘filed by him,in that-capacity. Conner, had been .receiver before him, and the fact sought to-be proved is, the payment of the note by JStafford to him; and a litigation arose between the.new receiver, Whitehead, ¡and Conner, concerning the sums with which -Conner was. chargeable as receiver, -he having received certain amounts in that capacity from the debtors of the partnership. Certain proceedings and entries on.the minutes, sthe judgment of -the District Court, and ¡the opinion and.-decree.of the Supreme Court on the appeal, which related.to this litigation in which Conner was-sought to be charged with this.note as having received it from Stafford's estate, -were offered in evidence omthe trial of .this cause iu,the .court below:, and were not received by .the court. There was judgment sustaining -.the opposition of Whitehead, receiver, by which he was recognised as,a creditor of the estate of Stafford for the amount of -the note, and the administratrix has appealed.

The first ground on which the evidence offered was objected to-was,-that the -record of the proceedings.of the District Court was not,a complete record of a suit, but was an extract from the record of the suit ,of Gridley & Whitehead, and of James B. Conner. 'This ,is true it was -not. But the proceedings in ¡relation to this note' appertained to his ¡responsibility as receiver only, were cumulated with those,of that suit, and .had ,no,connection -withthe rest of the .matters oí contest which it .embraced. 'The controversy concerning that •note was conducted under the title of G. & W. v. J. B. C., which was one of the most contested .and .involved suits .that -.we have ever witnessetl, and the-expense of the whole record would be too onefoub" on a party to require him-to produce it, unless therewasn necessity for it; and there appears to be none in this case. The objection, therefore, that- the copy offered was not of a- complete record of the principal- suit, and did not show the whole evidence and proceedings had in said case, is not well taken.

In mortuary and insolvent proceedings, which are frequently- voluminous,-in1 which all incidental contests are cumulated, the production of the entire record has never, to-our knowledge,- been- required in practice, and we know of no reason which-requires their production.- Greenleaf,in-his treatise"on evidence, states the rule as we understand it, which is the reverse of that Which was acted on in the court below. See that Work, vol. 1, §';512-i-

The second objection was-of the same character as' the’first-'; it was, that the record of the decree of the Shpreme Court Was incomplete, and:between parties different from those in the present suit. The'decree was made in the original suit of G & W. v. J. B. C., under that title, name, and number; but under it', the litigation concerning the note between Whitehead, the receiver, and" Conner, was conducted.

We think the court erred in rejecting the evidence on the objections made;- and that the documents D'and E, offered by the administratrix, ought to have' been received by the court.- As to their effect- in proving- the fact of the payment of the note, or as to the copy of the proceedings containing all thatre-l&ted to the litigatiop relative to this note,-we are not called upon to give any' opinion, confining ourselves to the objections stated in-the bill oi exceptions.

The judgment appealed from is therefore reversed; and the cause rtemand-ed for further proceedings according to law-'; the appellees- paying costs.


author: Eustis, C.-J.

text:
    Police Jury of Rapides v. Huie.
    To authorize the'collectiou of the special tax, imposed upon certain lands subject tó inundad tion in the parish of Rapides; by the statute of 27’ February, 1845, the tax mast be imposed at a certain rate upon the assessed value of the inundated lands, the statute author-' izing no other basis. And where an assessment'was made by two assessors appointed by' the police jury, but never advertised, and plaintiffs offer no proof that any notice of the' assessment, or of the proceedings in relation to it, was ever given to the owners of the' land on which the tax was imposed, the tax cannot be recovered. The assessment roll and' the report of the assessors are proof only of the facts that they were made as they appeal** tobe; they are not evidenoeof notice to the party assessed, nor of any other fact at issue' between the parties.
    Appeal the District Court of Rapides, Cushman, J.
    O. N. Ogden? for the appellants. Big ee and Hyanvs, for the defendant.
   The judgment" of the court was pronounced by

Eustis, C.-J.

The petition-states that, the defendants indebted to the plaintiffs1 in the sum of $624 25, being his proportion-of a special land tax. of twenty-four' hundredths per cent, levied by the police jury of Rapides, in accordance with' an act of the legislature of 1845, authorising them to impose a special tax on-all lands north of Red river, inundated by the overflowing of the same, the defendant owning in the district in which said land tax was levied 320 acres of cleared land, valued at- $15 the acre, and 1000 acres of woodland, valued at $10! ^le aGre ’ m{1hing the amount due by him the sum demanded in l.lio petition. answer Pr6SRnts several points of defence, which involve questions of the gravest character. Ono of them is, that the- plaintiffs cannot recover in the present action, becauso no lawful assessment of the tax has been made. It is on this point that we shall decide the case, which supersedes the necessity of enquiring as to the validity of the others. The jury which tried this case in the court below could not agree, and a^tro forma verdict was renderod for the defendant. Judgment was rendered accordingly, and the plaintiffs have appealed.

The statute under which this tax is imposed is to this effect: “That the police jury of the parish of Rapides shall be, and they are hereby authorised, to impose a special tax upon all lands inundated by the overflowing of the waters of Red river, for the purpose of constructing embankments across all bayous, connecting with said river; the said tax to-be imposed u.pon districts to be laid off by the Police Jury at a rate per cent upon the assessed- value of said inundated lands, but no district so laid off shall be taxed for the benefit of another f this act to expire on the 1st of April, 1846. Acts of 1845, ch. 37, p. 16. It is by virtue of this statute that the right to impose this tax by the Police Jury is asserted, and to maintain this right, so as to' enable the plaintiffs to recover the amount of the tax against the owners whose lands are subjected to it, a compliance with its provisions must be shown. The tax must be laid at a rate per cent on the assessed value of the inundated lands, the statute authorising no other basis than the assessed value, and limiting the power of the Police Jury to this standard.

It is obvious, then, that an assessment was necessary in order to give any legal effect to this tax. Was the assessment made under the authority of the State, on which the general and stale taxes are collected, to serve for this special tax, or was a new assessment to be made by the Police Jury 1 The latter proposition is maintained by the counsel for the plaintiff's, who contends that under this law the Police Jury has the authority to make it, and that such a one has been made in relation to this tax as complies with the requisites of the law.

The assessment which is before us purports to be made by assessors, appointed by the Police Jury. The assessment was not advertised, and no notice of the assessment, or of the proceedings in relation to it, is proved to have been given to the parties upon whose lands the tax was to be imposed. This issue was directly made under the answer of the defendant, and it was incumbent on the plaintiffs to establish affirmatively, by legal evidence, those facts necessary to enable them to recover the amount in the form in which they have sued. The tax was laid according to the assessment roll made by these assessors, and on each of the several tracts of land maintained therein as subject to inundation.

Confining ourselves to the question as to the validity of the assessment without advertisement or any legal notice, we are at a loss for any grounds on which it can be supported. It is said that the assessment, and the return, or report, of the assessors, contains proof of notice, and that, as the ordinance of the Police Jury under which the assessment was made required the assessors to administer oaths to the proprietors of land in the district to be taxed as to the extent of their land overflowed in the year 1844, the report of the assessors as to the fact of their refusal to take the oath, or having taken it, is primd. facie evidence of notice. But to this view of the subject we cannot accode. We think ■ the assessment roll find report prove only that they were made as they appear to be, but aro evidence of no other fact which is in issue between the parties under the pleadings.

To authorise the imposition of a tax, without a previous assessment, or affording to the tax payer an opportunity of contesting its legality in someform', is such a derogation from common right that a court cannot, in a doubtful ease', suppose that it was intended by the legislature ; still less when the taxing power is granted to a municipal corporation. If, as is contended by the counsel for the plaintiffs in this case, the assessment was tó be made by the Police Jury, and no form is prescribed in which it was to be made, it would follow as the most reasonable consequence from this omission that the usual form of assessment required for state faxes should be observed, or at least that the parties to be affected by the tax should have full notice of the proceedings had in relation to it, and that the publicity by advertisement should be the protection of tho land-holder against capricious or vexatious taxation. A construction which would confer this arbitrary power on a municipal corporation, of taxation without notice or advertisement, we cannot give to the statute under consideration» The statute considers the contribution to be exacted from the owners of lauds inundated as a tax, and requires it to be imposed on the assessed value. It is placed in the category of taxes, and assessment is to be its foundation. It is only a fair and reasonable implication that the legislature intended such an assessment should be made as should conform at least to the principles of the ordinary assessment of taxes imposed by the State on real property, and not according to the arbitrary will of a municipal body.

The mode of assessing the state taxes has been established by positive enactment ever siuce the organization of our state government, with the object of protecting the citizen, and providing for a just and conscientious distribution of the public burthens. Even the form of the assessment roll is regulated by law, so that the humblest capacity can easily understand it. It is, besides other formalities, required to be deposited in some place designated by previous public notice, for a number of days, during which all objections maybe made to its correctness ; and the assessors are bound to hear and determine on the complaint of any person who may consider himself injured thereby, making such alterations in the assessment as the evidence exhibited may justify. Our whole legislation is of this character, and if there is an exception to it, it is not within our knowledge. Our jurisprudence has been uniform in its accordance with it. The State Bank v. Seghers, 6 Mart. 724. Hiriart v. Morgan, 5 La. 45. Police Jury v. Hampton, 5 Mart. N. S. 395.

It is proper to notice the facts disclosed by the testimony of the clerk of the Police Jury, by which the principles of the assessment law, as well as of what we consider the common right, have been set at nought in the proceedings of that body in relation to this tax We have stated that we did not consider the report and assessment made by the two assessors, as evidence of the facts which they stated. But if it were otherwise, it would fall far short of establishing a notice to the defendant of the proceedings by which his property was to be' reached. In the assessment, the quantity of cleared and wood land, and the value of each, is stated against the name of James Huie, with the appended words, do. do. under an entry made against a preceding name — Refused to swear. The list of persons to be taxed is headed Assessment Roll.

The clerk of tlio Police Jury is the keeper of the minutos and records of that body; he resides seven or eight miles from Alexandria; the ordinances of the police jury, are advertised in no other way than-by- publishing them in the Red River Republican; the assessment'roil was not advertised by witness; he was nofrordered to advertise it; it was not advertised by any one as witness keows ; had he been ordered to advertise it, he should have done it; had it been advertised by the authority of the Police Jury, he should have known it. Never saw it advertised in the public papers, or any whore else. The assessment x-oll was returned to the Police Jury and received by them on the 8th December, 1845 ; subsequently,- upon examination, it was found to be defective; it was handed back to the assessors, and afterwards returned by them to the Police Jury. It was in possession of the clerk — the witness whose testimony we are giving— from the time it was last received, the 17th February, 1846, until after the institution of this suit, to the best of the recollection of the witness. He did not keep these papers at his residence in Rigolet, but keptthem in a room provided' by the Police Jury, in the court house, in Alexandria; they were kept in a desk, which had a lock, but no key; the room was looked ; witness had one key, and an officer of the police jury had another, but no custody of the papers; neither had he any thing to do with them. Witness has been residing in Rigolet, since 1S45.

The ordinance imposing the tax refers, both as to the value of the lands and those- to be assessed, to the assessment made by Meade and Bailey, the assessors, bearing date the 8th December, 1845, and thus makes it part of the ordinance. - Indeed it is the whole of it, with the exception of the enacting clause.

We have to decide whether, under this state of facts, there is before us legal- and sufficient evidence that the tax mentioned in the plaintiffs’ petition has been imposed, at arate per cent on the assessed value of said inundated lands, and-being of opinion that there is nothing before us which establishes that a legal' assessment has been made, it follows that the case of the plaintiffs is not made out.

It becomes unnecessary-to notice the other objections which may be made against-the right of the plaintiffs to impose and recover the amount of this tax, except-to observe that they merit the serious consideration of those who are entrusted .with the municipal affairs of this parish.

The judgment of the District Court is therefore affirmed, without-prejudice, and the appellants paying costs.


author: Rost, J.

text:
    Reynolds et al. v. Rowley et al.
    A defendant:, who is a mere nominal party, having no interest in the event of the suit, may he examined as witness against her co-defendants.
    Acknowledgements and- declarations by a person who had been an agent of the party against whom they are offered, made after his agency had ceased, are inadmissible.
    The acknowledgment of a debt by one joint debtor will not interrupt prescription as to his co-debtor. G. C. 3517.
    Declarations of a person examined as a witness in a cause, made under oath while testifying as a witness for one of the defendants in another cause, are inadmissible. The party against whom the testimony is offered cannot be deprived of the right of cross-examining the witness as to the facts sworn to on another occasion.
    A defendant cannot deprive a co-defendant of the right to challenge a juror peremptorily.
    A copy of the pi'oces-verbal of a sale made by a probate judge, is evidence of the sale.

      Tlie testimony of a witness who resides out of the State, taken on a former trial, is admissible in evidence. Per Curiam: It-would be oppressive to require his testimony to be taken anew at every trial.
    A report of experts, to whom an account sued on had been referred, not homologated, and which appeared to have been abandoned by both parties, should not be allowed to go to the jury.
    A married woman having, under art. 2361 of the Civil Code, the right-to administer personally her paraphernal property, may appoint an agent to act for her in its administration, and she will be responsible for his acts.
    Where a married woman retains the right to administer personally her paraphernal property without the assistance of her husband, her marriage will not revoke the powers of an agent who had been previously entrusted with its administration.
    -Though an agent had no authority, under his mandate, to sign notes, or draw bills, yet if he receive from a party the proceeds of notes and bills so signed by him, as loans for the use of the plantation with the management of which ho was entrusted by his principal, the latter will be rosponsible for the amount.
    A special power to do acts not coming under the denomination of acts of administration, need not stato the specific acts to bo done.
    Admissions of any fact, made by an agent during the continuance of his agency, relating directly to the business entrusted to him, are binding on the principal, particularly if the fact so admittedbe a thing done by the agent himself, or within his own knowledge.
    Actions by factors on open accounts are not prescribed by three or five years.
    Appeal from tlie District Court of Concordia, Curry, J.

      Elam, -for the appellants. Sparrow, T. P. Farrar, Shaw and A. N. Ogden, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

This case was remanded by the late Supreme Court on several bills of exception, and is reported in 3 Rob. 201. On tho first trial in the court below, the jury gave a verdict in favor of the plaintiffs ; the defendants.failed in the attempt to have it set aside, and appealed. On the second trial, there was a verdict in favor of the defendants in reconvention, for one cent; the plaintiffs did not move for a new trial, and appealed.

After a careful examination of the evidence, we have come to the conclusion that we cannot affirm the judgment. 1. The fact that in two successive trials each party has obtained a verdict, neutralises the effect which, under ordinary circumstances, is properly given to the decision of juries. 2. From the manner in which the case went to the jury, we .find it impossible to ascertain on what grounds the last verdict was rendered, and whether it was the result of the view the jury took of the law of the case, or of the nature and credit of the evidence adduced in support of the facts. 3. The fact specially-pleaded by the defendants of the payment of $20,000 on the account sued on, and their admission in the answer that the plaintiffs were factors of the Marengo plantation, has created on our minds the impression that there may be a balance due and unpaid on those accounts. 4. Improper evidence was suffered to go to the jury. We think justice requires that the case should be remanded; and in making that disposition of it, we will pass upon the matters contained in the numerous bills of exceptions found in the record, and lay down such rules for the trial of the case as will reduce it to little more than a question of fact, in the hope that such a course will facilitate the termination of this harrassing controversy.

I. The evidence of Mrs. Francis E. Sprague was properly admitted against the other defendants, she being a nominal party, and having no interest in the .event of the suit.

' II. The acknowledgment and declarations of Sprague, in relation to tbe document marked A, and the document itself, were properly rejected, under the decision of the late Supreme Court. The agency of Sprague was at an ■end at that time, and the other defendants cannot be affected by acknowledgments made by Sprague and his wife, in their own affairs. Tiffs evidence forms ■no part of the res gestes, and the liability of the defendants, being joint, the ■acknowledgment of the debt by one of them could not interrupt prescription as to the others. C. C. 3517.

III. The document L. L. D. was properly rejected., so far ,as Mrs• Rowley and the heirs of James Kempe were concerned, for the reasons given in relation to document marked A.

IV. The declarations of Mrs. Sprague, given under oath as a witness for Mrs. Rowley, in the suit oí Jane Rowley against Charles N. Rowley, her husband, were properly rejected. Mrs. Sprague is a witness ,in the cause, and would no doubt have testified .tothe same facts if called upon ,to do so.. The defendants ought not to be debarred from the right of cross-examining her upon the facts sworn to by her on another occasion.

V. The court erred in ordering the juror, Henry Vidal, to be sworn, after'be had been peremptorily challenged by the .counsel of Mrs. Rowley. There had been but one peremptory challenge at the time, and Mrs. Rowley could not be deprived of the right which the law gives her, by the request of one of her co-defendants that the juror should be sworn in the case.

VI. The notes marked B. 1, B. 2, B. 3, were properly admitted in evidence. They are acknowledged in the answers of the defendants. The copy of the proces-verbal of the sale of the Marengo plantation by the judge of the Court of Probates, was also properly admitted. It is the evidence of a judicial sale, and does not require witnesses to make it authentic.

The testimony of Charles A. Lacoste, taken down in writing on a former ■trial, could not be rejected on the grounds urged against its admission. That ■witness resides out-of the State, and it would be oppressive and unjust to re-quire his testimony to-be taken anew at every trial. We will, -however, observe that his testimony is so loosely taken down, that we think it ought to be taken again, so as to place -his evidence before a jury as it really is. -He is .clearly a competent -witness; his position and former connection in business with the plaintiffs, going only to his credibility.

The court erred in permitting the report of the experts,-to whom -the account .sued on had been referred, to go to the jury. That report had not been homologated ; both parties appear to have abandoned it, and to have gone to trial as if the reference had not been made. -Under those circumstances, the report of the experts had no more value than a statement of the same facts made by any other person. It was not evidence, and should have been rejected.

VII. The letters and account of Remson 8f Co. were admissible -to prove their own existence, and for the purpose of facilitating and completing the proof that the advances charged to Mrs. Rowley had been -made; but unless the fact of those advances and the payment of them by the plaintiffs were proved aliunde, those documents proved nothing against her, and the jury should have been so charged. The aeeounts-current. Nos. 1, 2, 3 and 4, were properly admitted ; they were apart of the pleadings in the case, and an indispensable requisite of the action. Their going to the jury did not dispense the plaintiffs from the necessity of proving them; and we have not been informed how they could have been proved, unless they were first produced.

VIII. The testimony of Coleman R. Brown, taken on a former trial, -was also properly admitted, the witness residing out of the jurisdiction of-the court.

The opinion we have formed on the law of the case, renders the examination of the remaining bills of exception unnecessary. The law by which it-is to be decided, we consider tobe as follows:

1st. The alleged incapacity in Mrs. Rowley to contract, and .give a power of attorney, during the years 1832, 1833, and 1834, based upon the alleged nullity of the judgment of separation from bed and board between her and Francis A, Girault, and her subsequent marriage -with Charles N. Rowley, is no defence against any sum which may be found due from her, under the allegations of die petition. If she did administer in her own right and name, and designate Sprague to her factors as her agent in the administration of the Marengo plantation, she is bound in good conscience and on general principles .for the consequences of his administration. But besides this her share in that estate was paraphernal, and, under article 2361 of the Louisiana Code, the wife has the right to administer personally her paraphernal property, without the assistance of her husband. What she could do by herself, she could authorise another to do. She had from the beginning, in relation to the administration of that property, all the powers of a feme sole.

'i he power of attorney to Sprague was not revoked by her subsequent marriage with Charles N. Rowley. According to Judge Story, tire reason that, as a general rule, marriage revokes powers .of attorney previously given by the wife is, that the power of constituting an agent is founded on the right of the principal to do the business himself, and, when that right ceases, .the right of constituting an agent must cease also. Story on Agency, 501. In this case the law gave Mrs. Rowley the right to administer after marriage without .the .assistance of her husband, and therefore the rule does not apply.

2d. The contracting of debts by Sprague in the name of the Marengo plantation brings those contracts within the power of attorney, provided the advances were reasonable in amount, and made by the plaintiffs under the honest belief that they would be applied according to the true intent end meaning of the •mandate. It is necessary that those, advances should have been made in good faith for the Marengo plantation, and not on the account of Sprague, or any one else ; and if they were so made, the plaintiffs were not responsible for the subsequent appropriation of them by Sprague.

The contracts were not made in Sprague’s own name, and he was not upon their face responsible for them. They were made in the name of the Marengo plantation; and we are of opinion that that name sufficiently designated the persons, or partnership, on whose account the debts were contracted. It may be true that Sprague had no right, under the power of attorney, to sign notes and draw bills as he did ; but, if he received from the plaintiffs the proceeds of those bills as loans made to the Marengo plantation, .the owners of that plantation are responsible for the amount so received.

If the ground taken by the defendants’ counsel .that, under our laws, special powers to do certain acts, to borrow money, for instance, must in all cases mention the specific acts tobe done, was based .upon recent legislation, the construction contended for by them would receive the serious .consideration of the court. It appears to us that article 2966 is not to be construed as an absolute and independent provision, but as framed in illustration of the article immediately preceding it, 2965, which says, “if it be necessary to alienate, or give a ¡mortgage, or¡to do,any other,act of ownership, the .power must be express.” ¡But besides this consideration, the universal opinion has been ever since the adoption of the Code of 1808, .from which the laws on that suhject were transcribed ¡in,.the Louisiana Code,'that,a special power,to,do acts not coming under the denomination of acts of administration, need not state the specific acts to ’be dpne. Under such powers,..the.'business of qur banks and-af our merchants ¡has been, .and.continues to be, transacted, and lands and slaves are daily sold .and mortgaged. That popular construction of ,the daw has become a rule of ¡property; It is’highly favorable, to commerce, and ,we.do not feel ourselves at ¡liberty to disregard It.

3d. The admission of any ¡fact made by Sprague during the continuance of ¡his agency, haying .a direct relation,to the business entrusted to him, is binding .on the defendants, particularly if it be a thing done by Sprague himself, or -.within,bis o.wn knowledge; ,but after the expiratiqncf his agency, bis admissions.cannot prejudice or bind the,defendants.

4th. Ip.conclusion we wi]i.observe that, this,action ,is -brought on .an open .account, and that the proscriptions o.f three.and five years are not .applicable to it.

For,the ,reasons assigned,¡it is ordered, that the judgment be reversed and -the .cause remanded for further proceedings, with instructions to the district judge to.conform to the rules and opinions expressed in the reasons of this.de.cree.; .the.dofondants.and appellees paying the costs of .this.appeal.


text:
    Succession of Day.
    The homologation of a " statement of debts" on which a creditor of a'succession'iE'plahéd'aíf an ordinary creditor, presented by a curator with-a prayer for its approval andhomologation, is not such a judgment as will prevent the creditor from afterwards claiming the benefit of a- mortgage by which his debt was secured; Such, a statement presupposes sufficient funds in the hands of the curator to pay all the creditors who have presented themselves»' (C. C. 1168); and it is immaterial to a creditor what rank is assigned him thereon;, as'itf contemplates the payment of his debt at all events. He is consequently not hound-to'Oppose it, and insist on being classed as a mortgage creditor. It is only upon the presentation of a tableau of distribution among the creditors, according to the order of their privileges and mortgages, that a judgment could have been rendered which would preclude a creditor from subsequently asserting his trae rank. C. C. 1169, 1170.-
    Appeal from the Court of Probates of Ouachita, Lumy, J.

      McGuire and Ray, for the opponent. Purvis and Thomas, for the appellants.
   The judgment of the court was pronounced by

King, J.

On the 11th of January, 1841, Oliver, as curator of the succession of Day, filed in the Probate court “ a statement of debts,” accompanied by a petition in which he prayed for its approval and homologation. On this statement Ferdinand Sims is set down as an- ordinary creditor for three notes, amounting collectively to $2,385 80. On the 22d of July, 1843, a judgment was rendered by the probate judge, which, after correcting the statement in several respects, Concludes ns follows : “All the balance of said debts, as set forth by the curator in his statement of debts, are hereby allowed as just debts against the estate, to be paid in due course of administration, and according to the classification therein, after the above corrections.” The claim represented by Sims, who is the executor of Mitchell, was not among- those adverted to in the previous part of the decree, and consequently falls, as is contended, within the operation of this concluding clause. On the 10th of June, 1839, previous to the filing of this statement, or to the rendition of the decree homologating it, Olivet', as curator, acknowledged in writing the claim represented by Sims to be' du'e, and to be secured by a mortgage and privilege, and stated that’ he' had no objections to paying it. On the 27th of September, 1843, Oliver, as curator, filed i'n the Probate court, what he calls “a supplemental statement of debts” due by the succession, on which he placed Sims-,- executor of Mitchell, as creditor for the same sum which had figured in the previous statement of January, 1841, and classed the debt as being due by a special mortgage, which mortgage is particularly described. This “supplemental statement” was opposed-by Fitzpatrick, upon the ground, among others, that the claim of Sims, executor, had be'eff presented in a previous statement of debts which had been finally adjudicated upon, and that it could not be the subject of the further action of the court. Other claims were also opposed by Fitzpatrick. After the filing of this opposition,- Oliver, as curator of Day, and Sims, as executor of Mitchell, presented a petition to the Probate court, in- which they aver that the claim of Sims, executor, placed on the supplemental statement is the same with that which figures'cm the first statement of debts; that it was never intended to class the claim as an ordinary debt; that it was thus placed through inadvertence; and that the judgment was rendered in error. They pray that the judgment be annulled, and that the' pfoper rank be assigned to the claim of Sims. The plea of res judicata was sustained by the court below, and Oliver and Sims have appealed.

We understand the position assumed by the appellee to be, that the statement made by tlie curator Was a tableau of distribution, or of classification of the creditors. It is neither. It is what upon its face it purports to be, a mere statement of the debts due by the deceased, which the curator proposed to pay, with the authorisation of the judge. Such a statement pre-supposes sufficient funds in the' hands of the curator to pay all the creditors of the deceased, who have presented themselves or made themselves known. C. C. 1168. Upon such a statement it is immaterial to a creditor what rank is assigned to him, as it contemplates the payment of his debt at all events. He is consequently not bound to make an opposition, and insist on being classed as a privileged or mortgage creditor. The only judgment which can be rendered upon such a statement and petition must have reference to the entire payment of all the debts, without regard to the preferences to which the creditors would be entitled, if the estate were insolvent. It seems to be conceded that the estate of Day is insolvent. If this be true, and the curator had funds in his hands, but to an amount insufficient to pay the creditors, it was his duty to present a tableau of distribution of such funds among the creditors, according to the order of their privileges and mortgages. It is only upon such a tableau that a judgment could have been rendered, which would have precluded the appellant, Sims, from subsequently asserting his true rank. C. C. 1169, 1170. No such tableau has been presented, and no such judgment rendered; and Sims has forfeited none of liis rights as a creditor by mortgage or privilege, when a tabican of distribution shall be filed.

The second “ statement,” upon which this controversy has arisen, is of the same character with the first. It is a statement of debts. The condition of the succession, as far as we are informed by the record, does not require such a statement ; the proceeding is irregular; and the litigation Which has arisen upon it can lead to no useful or practical' result. We consider it necessary therefore to remand the causo for tho purpose of enabling the curator to file a tableau of distribution, in which all tho creditors may contradictorily establish their respective claims and privileges. This view renders it unnecessary to consider several other claims which have been opposed by Fitzpatrick.

It is therefore' ordered that tho judgment appealed from be reversed. It is further ordered' that this cause bo remanded for further proceedings in accordance with the principles stated in this opinion; the appellee, Fitzpatrick, paying the costs of this appoal.