author: ROST, J.

text:
    Same Case on a Re-hearing.
   ROST, J.

We have been asked to change the judgment rendered in this case yesterday, by entering a decree affirming the judgment, gf the District Court generally. In doing so we wish to observe, that the decree simply orders the old executor to account to the new one for the wages earned by the slaves since the death of the testator, and does not decide to whom these wages belong, and that the affirmance of the judgment leaves that question open.

It is ordered, that the judgment rendered in this case, on the 18th instant, be changed so as to road as follows:

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


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    John H. A. Frost v. George Harrison, tutor. Jos. Carmena, Warrantor.

    A promise to pay may, in the absence of any contradictory circumstances, be taken as sufficient ‘pHma fade evidence of a regular presentment and notice.
    Appeal from the District Court, Seventh District, Sterling, J.

      V. B. & B. Phillips, for plaintiff.

      Brewer & Collins, for defendant.

      Bailiff, for warrantor.

        Carmena was called in warranty, on the ground that he had guaranteed 'the payment of the note. He éxcbpté'd, alleging thht hfe was no party to the .note su'eU otr.

   Slidell, J.

This is an action to recover of the testamentary heirs of Jolvn C. Morris the balance due on a bill of exchange, drawn by C. McDermott on J. M. Leoerich & Co., to the order of and endorsed by J. C. Morris.

There was judgment for the plaintiff in the Court below, and the defendant has appealed.

It does not appear whether the bill was or was not duly presented at maturity to the drawees. But it is proved that about three months after its maturity, the drawees, being then partially in funds of the drawer, paid the plaintiff $343 94 on account, and that subsequently Morris made a settlement of his accounts with Frost, and promised to pay the balance. If it were shown affirmatively that there had been laches on the part of the holders in not presenting the bill for payment to the drawees, and so Morris had been discharged, his subsequent promise, made in ignorance of such discharge, might not bind him. But without any proof of such laches, wo are permitted to infer an existing obligation to pay, moving and supporting the promise, and must hold the defendant to it. Or to state the legal result in other words, a promise to pay may, in the absence of any contradictory circumstances, be taken as sufficient prima facie evidence of a regular presentment and notice. See T Annual, p. —.

We think the Court did not err in dismissing the call in warranty. There was no privity of contract between Oarmena and Morris.

Judgment affirmed, with costs.

Re-hearing refused.


text:
    Richard Clampitt v. A. G. Newport.
    Suit on a promissory note payable to Hdchard OlMrvpiUt administrator, &c. Held; Qlmypiit might sue in his individual name.
    An attachment suit in Mississippi, where nothing is shown tó have been made, is no bar to a personal action here.
    Appeal from the District Court, Seventh District, Parish of East Eeliciana, Stirliny, J.

      Bowman & DeLee, and E. T. Mei'riolc, for plaintiff.

      Muse & Son'dee, for defendant and appellant.
   Slidell, J.

The plaintiff, in his individual name, brought suit against Newport on the 6th January, 1851, upon an instrument of the following tenor:

$1120. Woodville, January 6, 1844.
Twelve months after date we, or either of us, promise to pay Biehard Olampitt, administrator de lords non, with the will annexed, of Jacol Elslerry, dec’d, eleven hundred and twenty dollars, for value received.
A. R. BROWN,
A. 0. NEWPORT,
M. C. GAULDEN.

The defendant excepted to the right of Olampitt to sue upon this instrument in his individual name. The exception was disregarded by the District Judge. His opinion is sustained by the cases of Urquhart et al v. Taylor, 5 Martin, 202, and Gilman v. Horsley, 5 New Series, 662. It is proper to add, that no set off is proved against Olampitt, either individually or officially.

Underour law this instrument, not being negotiable in its form, is subject to the prescription of ten years.

The law of Mississippi is not shown, and, therefore, no foundation is laid for any discussion of it.

The defendant pleaded that he was entitled to a credit for an amount made by plaintiff, under process in Mississippi. He has not averred or proved any specific amount so made.

Brown was cited in warranty as the principal of Neioport, in the debt in question. He did not deny the existence of the relation of principal and surety. He relied upon an exception to the plaintiff’s right to sue, which we have already noticed. Ho also contended the suit codld not be maintained, in consequence of the attachment proceeding in Mississippi. There is no evidence that any thing was made in that suit, and the mere existence of such proceedings in that State, is not, in our opinion, a bar to a personal action here by the plaintiff - against Newport, nor a defence against Newport's recourse to his principal.

Judgment affirmed, with costs.


text:
    Nehemiah Magee v. James Duncan.
    Case remanded because of eo) parte amendment of Sheriff’s return.
    Appeal from the District Court, Eighth District, Penn, J.

      Halsey, for defendant and appellant.
   Slidell, J.

From a judgment against him the defendant has appealed, and assigns various errors as apparent on the face of the record.

Two of the assignments require ño other notice than the remark, that the appeal comes up without all the evidence, and they-fail within the operation of the well settled rule, that nothing which may have been cured by legal evidence in the Court below can be assigned as error, when the appeal comes up without all the evidence.

But the other matter of error assigned is more serious. The judgment in this case was rendered upon default. The return of citation, exhibited by the transcript, is defective. The judgment by default was taken on the 15th October, 1850, and was confirmed on the 19th. In May, 1851, the defendant prayed for and obtained an order of appeal, returnable in February, 1852. In February, 1852, the transcript was filed and the appellant seasonably filed his assignment of errors, upon the ground of the insufficiency of the return of citation. In February, 1853, the cause having been continued, the plaintiff filed a supplemental transcript, whereby it appears that in November, 1852, he obtained ex pa/rte leave to the sheriff to amend his return, and accordingly the sheriff did amend his return, and it now appears as a return filed 7th October, 1850.

This is an unusual condition of the record, and we consider it unjust to hold the appellant by this expa/rte amendment. On the other hand, if the citation &c., were really served, as the amended return states, the defendant, it seems, would have no equitable right to set the judgment aside.

We wifi save the rights of both parties by remanding the case with instructions.

It is, therefore, decreed, that the costs of this appeal be paid by the plaintiff, and that this cause be remanded, with the instructions to the District Judge, to require a rule to be taken by the plaintiff upon the defendant, whether the facts stated in the amended return are true, and thereupon to set aside the judgment of 19th October, 1850, or maintain the same as the truth may appear; and that, until said rule be heard and finally disposed of, no further execution of said judgment be had.


author: Eustis, 0. J.

text:
    D. F. Johnson v. John B. Weld.
    Plaintiff claims from defendant a slave, through his wife, sole heir of H>'ederic Ch/ristian. Defendant sets up title through his wife, neice of Christian—to whom, he alleges, Christian donated the slave —and he pleads res judicata. In Tennessee one Wheaton had the slave in possession, and Weld the present defendant, brought an action of replevin for the slave. Wheaton had hired the slave from Christian's executor. Weld bonded the slave, and took him into possession. The executor of Ohi-isUcm then brought an action of -replevin against Weld, and by legal process obtained possession of the slave, and returned him to the possession of Wheaton. The matter at issue between the parties was, whether the slave had been given by Christian, during his life, to Weld's wife. Held: In Tennessee slaves are personal property, and can only be claimed from the executor. The proper party in interest in Tennessee was, substantially, the party litigant in relation to the title of the slave—and the plaintiff in this suit, acquiring title through him (the executor), ought to be bound by a judgment rendered against the executor as owner. Throughout these proceedings in Tennessee, the executor was a privy to Wheaton, he being a mere baillee and nominal party. This privity in estate binds the party by the judgment as effectually as if he had been a technical party to the record.
    The article 2265 of the Code, and others of the same section, must not be considered as a strict, arbitrary and technical enactment, but as one declaratory of the conditions of the res judicata as a principle of jurisprudence.
    These conditions of the res judicata, established in order to ensure the ends of justice, have been received in the jurisprudence of the civil law in the light most favorable to attain them. The effect of the res judicata is, consequently, held to extend to the successors of the ayans cause, the assignees of the parties and to all those who claim through them.
    Appeal from the Second District Oourt of New Orleans, Lea, J.

      Kbnore & King, for plaintiff,
    cited Code, 2265.
    Rammer, for defendant
    —cited 3 A. 36; ibid, 172; 1 Starkie on Evidence, p. 208, 367; 1 Greenleaf, § 522-3, 532-3, 535-6, 189, 180; Bull, N. P, 232; 4 Dali. 120 ; 2 Doug. 517; 1 Doug. 56; 6 Rand. 865 ; Vermont, 317; 4 Rawle, 273 ; 1 How. Miss, 53.

       This latter suit ttas never trieS.

   Eustis, 0. J.

The plaintiff sues for the recovery of a slave named John, who, he alleges, belongs to him in right of his wife, by virtue of his marriage; she being the sole heir of Frederic Christian, deceased, to whom the slave originally belonged. The place of residence and marriage of the parties was in the State of Tennessee.

The defendant claims the slave in the right of his wife, to whom, it is alleged, the slave was given by his master, Frederic Christian, in his life time—she having been his neice.

The Judge of the Second District of New Orleans, before whom the case was tried, gave judgment for the plaintiff, and the defendant has appealed.

There was a plea of res judicata filed by the defendant, which was overruled. The facts at issue had already been passed upon by a jury of the vicinage, in the State of Tennessee, who found in favor of the present defendant, and it was with evident hesitation that the learned Judge, on a review of the case, came to a different conclusion.

No question is raised as to the right of the plaintiff to maintain this action. The case has been argued on the right of property of the parties respectively, and on the force and effect of the judgment pleaded.

The suit in which the judgment was rendered, was instituted by the present defendant in the Criminal and Commercial Court of Memphis, in the State of Tennessee, in May, 1847, against Sterling M. Wheaton, who had the slave in his possession. The suit was an action of replevin, having for its object the restitution of the slave to his proper owner. The jury found that the slave was the property of the plaintiff, and judgment was rendered accordingly for his recovery. After unsuccessful motions on behalf of the defendant, Wheaton, for a new trial and in arrest of judgment, an appeal was taken by him to the Supreme Court of Tennessee, which rendered judgment, affirming in all things that of the Court below.

The District Judge considered that the parties litigant were not strictly the same in both suits, and that the plea of res judicata was, therefore, not available to the defendant.

The testimony of the witnesses, whose testimony was taken under commissions, who were intimate with the brothers Christian, is, in some respects, singularly conflicting. Erom the respectability of the witnesses, we are induced to believe that the gift of this slave to the defendant’s, wife, when a child, notwithstanding what was said on the subject and the impressions created thereby, was not of that definite character which transferred the property in the slave. That such was the belief of her father, whose duty it was to protect the interest of his child, as well as to restore the slave if only confided to him by his brother, we think is shown by the fact of the slave having been placed by him on the inventory of his brother’s estate. The whole possession, of which the defendant seeks to have the benefit, was in the father, who has, by this fact, recorded his conviction of its origin and character.

We are, therefore, under the necessity of examining the defence resting on the verdict and judgment, which the defendant has pleaded.

We assume the law of the State of Tennessee, on this subject, to be that a verdict and judgment on any matter distinctly put in issue before a Court of competent jurisdiction is conclusive thereof, between the parties and their privies.

The defendant was the plaintiff who recovered judgment, and Sterling M. Wheaton was the defendant. Wheaton was a nominal party to the record. He had hired the slave from Matthews, who was the executor of Frederic Christian. On the institution of the action of replevin, the slave was taken from the possession of Wheaton and delivered to the plaintiff, Weld, on his bond. This took place on the 3d May, 1847. Two days after, the executor of Frederic Clwistian instituted his action of replevin against Weld, and the slave was taken, by legal progress, from the possession of Weld and delivered to the executor, who returned him to the possession of Wheaton.

Slaves being personal property in Tennessee, it is plain that at this time the title of the slave was in the executor, who had the same property in the slave which the testator had. Accordingly we find the matter in issue between the parties was, and it was so submitted to the jury, whether Frederic Christian, in his life time, had given the slave to the wife of the plaintiff, Weld, who is the present defendant. This is the matter in controversy in this suit. It is true the parties to the record were not the same. But the parties in interest were the executor and the present defendant, and the present plaintiff claims title through the defendant in that suit.

Mr. Mattheios, the executor, was examined as a witness on the trial in the Court below.

It appears there were two trials of this cause in the Courts of Tennessee. The judgment on the first was reversed by the Supremo Court. Subsequent to the first trial, the present plaintiff, Johnson, had married the daughter and only heir of Frederic Christian. On the second trial he was present, but took no part in the business of the trial. He signed the appeal bond of Wheaton, and judgment was rendered against him on the appeal, as surety for its prosecution. All the witnesses were summoned by the witness’ direction, and, we infer from his testimony and his presence at the trial, that he controlled the management of the cause.

The executor at this time having the administration of the estate, as we understand the decisions of the Couits of Tennessee, the present plaintiff, in the right of his wife, could only claim this slave from the executor, upon whom the law casts the personal estate. It is held by the Supreme Court of that State, that distributees cannot recover their distributive portions without an administration on the estate of their intestate, and a person in possession of an intestate’s personal property can hold it against any person but a creditor and an administrator. Thurman v. Shelton, 10th Yerger’s Reports, 383 ; 2 Blackstone’s Com. 496 and 511.

Thus the proper party in interest was substantially the party litigant in relation to the title of the slave, and the plaintiff in this suit acquiring his title through him, ought to be bound by a judgment rendered against him as owner.

•We consider the executor, throughout these proceedings in the Courts of Tennessee, as a privy to, Wheaton, he being a mere bailee and nominal party only. This privity in estate binds the party by the judgment as effectually as if he had been a technical party to the record.

The suit in replevin, in which the executor was the plaintiff, does not appear to have been tried, no ulterior proceedings having been had in it.

Such is the result of an examination of this question, according to the laws of Tennessee, where all the parties resided and the slave in dispute lived.

The article 2265, of our Code, is a literal copy of the article 1351 of the Code Napoleon. This article, and the others of the same section, must not ,be considered as a strict, arbitrary and technical enactment, but as one declaratory of the conditions of the res judicata as a principle of jurisprudence. The same provision existed in the laws of the Partidas, and prevails, under the Civil law, as a conservative element in the administration of justice. In a restricted sense it would be inoperative and tend rather to stir up than to terminate litigation. These conditions are eadem res eadom causa and eadem conditio personarum. The demand must be between the same parties. The article does not say that the parties to the record must be the same, and it becomes a question of jurisprudence as to what constitutes the interest which is considered as identifying parties, in one suit with those in another. We know that nothing is more common in mercantile business than to test legal questions, of debt and property, in the names of other parties than those really interested. The factor who deals in his ow.n name with the property of his principal—the consignee, whose action against the carrier is of every day occurrence—the merchant, who insures in his own name the shipment in which, perhaps, he has not the slightest interest, but which has been put entirely under his control—all these parties institute and defend suits for their principals relating to the business under their charge. It cannot be supposed for a moment that their principals, whe-submit to have their rights tested in this form, are not bound by the adjudications which they themselves, through their agents, have provoked. As a matter of law, the bare statement of the proposition refutes itself, and as a matter of common justice, it is revolting to our moral sense.

These conditions of the res judicata, established in order to ensure the ends of justice, have been viewed, in the jurisprudence of the Civil Law, in the light most favorable to attain it. The effect of the res judicata is consequently held to extend to the successors of the ayans cause, the assignees of the parties, and to all those who claim through them. In questions relating to the status of persons, to servitudes and indivisible rights, the law, from necessity, has created exceptions to the general rule, where the suit has been publicly tried and the judgment is without collusion.

Toullier, in speaking of the principle that the possessor is presumed to be the owner, says:

“ It results from this principle that judgments, rendered without collusion, against the apparent owner, relating to the thing of which he is possessed, acquire the force of res judicata against the true owner when he is restored to his rights, as also the judgments in favor of the possessor, relating to the thing, inure to his benefit. It cannot be said that a judgment of this kind is res inter alios acta. It is always the same moral person, which passes from one individual to another, as is the case with all those succeeding under a particular title. The true owner must take the consequence of letting his rights remain in the name—sur la tide—-of another person, who is clothed with the apparent ownership.” Toullier, vol. 7, 28.

It is sufficiently evident, says the same author, that the authority of res judicata takes effect for and against those who, without being personally parties to the judgment, are represented by a mandatory, or attorney in fact, by their tutors, curators, &c. In all these cases there is a moral identity of the parties. Vol. 10, 198.

There may be a physical difference of parties to suits, but at the same time a legal identity. If, without figuring as a party to the record, I am represented by a party to it, the law considers both as one person, and the judgment rendered is obligatory on both. Marcadé on Article 1851, vol. 5, p. 190, 191. See also Pothier, Obligations, 900; also Zacharise, vol. 5, p. 767.

The Court of Cassation has always determined cases in which the plea of res judicata has arisen, in the sense of these authors. Indeed, any other doctrine would render litigation interminable.

If then the executor was the proper party in interest in this suit, the circumstance of its having been conducted in the name of his baillee, Wheaton, would not prevent the judgment from having the effect of res judicata as to his rights. The plaintiff, claiming through him, has no greater right than he had.

By an agreement of counsel, the plea of res judicata was tried under the general issue, and the District Judge decided thereon as we have stated.

If this verdict and judgment of the Court of Tennessee bound the parties there, it ought to be obligatory on them everywhere.

I have always understood it to be clear law, says Lord Kenyon, in the case of Ogden & FoTliot, that all judicial acts done in one country over the property of the subjects within their jurisdiction, are conclusive on the property of the parties in another country. 3 Durnford & East, 407.

Whether' the laws of Tennessee, or those of Louisiana, are considered as regulating the rights of the parties to this suit, the case is with the defendant, and judgment must be rendered accordingly.

It is, therefore, considered by the Court, that the judgment of the District Court be reversed, and judgment be rendered for the defendant, with costs in both Courts.


author: Eusns, O. J.

text:
    Nathan Gilbert v. J. H. Palmer.
    Where the declarations of the defendant concerning the plaintiff appear to have been uttered without malice, and under circumstances from which no malice is in law implied, they carry with them no pecuniary responsibility.
    Appeal from the First District Court of New Orleans, Lm'ue, J.

      Bonford & Mnney, for plaintiff.

      Benyamin & Micou, for defendant and appellant.
   Eusns, O. J.

This is an action for damages for slanderous words, uttered by the defendant, concerning the plaintiff. The District Judge gave judgment for the sum of three hundred dollars against the defendant. The defendant has appealed. The plaintiff has asked for an increase of damages on the appeal.

The District Judge thought the injury done to the plaintiff, by the charges of the defendant, was but trifling; but thought they were made for the sole purposé of injuring him.

Wo have not been able to concur with the District Judge in this latter conclusion. The declarations of the defendant, concerning the plaintiff, appear to have been uttered without malice, and under circumstances from which no malice is in law implied, or which carry with them any pecuniary responsibility to the plaintiff.

•The judgment of the District Court is, therefore, reversed, and judgment rendered for the defendant, with costs in both Courts.


text:
    Orin Beebe, adm., v. James McNeill and another.
    When a party sues upon a note that has been destroyed, it is not necessary to allege or prove thai the destruction was advertised.
    Appeal from the District Court, Tenth District, BerJdns, yr., J.

      Bonner & Brew, for plaintiff and appellant.
   Slidell, J.

The plaintiff alleges that the defendants made three notes in favor of Doom, of whose estate he is administrator; that they were inventoried as the property of the estate, and came into his possession as administrator ; but that afterwards his dwelling house was burned, and the notes, with all the petitioner’s papers, were destroyed in the conflagration. He asks judgment for their amount.

At the trial, the plaintiff offered evidence to prove that the notes had been destroyed by fire after they came into his possession, as administrator, to the admission of which evidence the defendants objected, on the ground that the plaintiff had not alleged nor proved that the destruction of the notes had been advertised; which objection was sustained by the Court, and a bill of exceptions was taken. There was a judgment for the defendant as in case of non-suit, and the plaintiff has appealed.

We think the District Judge erred. The error seems to have arisen from a misapplication of an Article of the Code.

In article 2258 it is said: “ When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by accident or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable; and in this case the Judge mayi if required, order reasonable security to be given to indemnify the party against the appearance of the instrument, in case circumstances render it necessary.” The next Article provides that, “in every case, where a lost instrument is made the foundation of a suit or defence, it musbappear that the loss has been advertised, within a reasonable time, in a public paper, and proper means taken to recover the possession of the instrument.”

The first Article expressly embraces instruments destroyed, as well as those lost. In both cases it was equally necessary that their contents should be proved and their absence accounted for, and it was equally expedient, in each case, to provide a rule of evidence. But where a parity of expedience and necessity does not exist, the Code does not associate them. Where an instrument is alleged to have been lost, the Code requires satisfactory proof that due diligence has been used to find it. One of the means of finding it is to inform the public of its loss, and who is the owner, so that any one into whose possession it has chanced to come may restore it, or any one who has information tending to facilitate its discovery, may communicate-it. Again, there is the further motive of putting the community on their guard, especially in the case of commercial paper. These reasons do not apply to a destroyed writing, and it is not easy to imagine how any good could come of advertising its destruction. The Article 2259 speaks only of lost instruments in express terms; and there is no reason of analogy for enlarging its application.

When the Code of 1825 was framed by the jurisconsults commissioned for that purpose, they contemplated the preparation of a complete system-of evidence, as a separate part of the great legislative work which had been undertaken by the State. They reported only such amendments, on the subject of evidence, as they thought immediately called for, leaving its rules, in other respects, to be meanwhile controlled by the sound discretion of the Courts. See Amendments to the Civil Code, title 3, p. 58.

Judgment reversed and cause remanded for new trial, defendant to pay costs of appeal.


author: Rost, J.

text:
    B. Haynes, Liquidator, &c. v. S. B. Kent.
    The Stockholders of the Clinton and Port Hudson Railroad Company are, in no legal sense, joint debtors of the Corporation. The obligations of each are several, and entirely unconnected with those of the other stockholders.
    A stockholder in the Clinton and Port Hudson Railroad Company, who holds the bonds and coupons belonging to the series for which his mortgage is pledged, may plead the same in compensation of his stock subscription.
    Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirling, J.

      Ellis & Merrielc, for plaintiff.

      Bowman & BeLee, for defendant and appellant.
   Rost, J.

The Gas Light and Banking Company discounted two hundred and fifty bonds of $1000 each, issued by the Clinton and Port Hudson Railroad Company, and received in pledge, as security, the mortgages given by the stockholders of the Company to secure the amounts of their subscription of stock.

The Gas Bank disposed of some of those bonds, and is still the owner of two hundred and twelve of them, a large part of which is overdue.

In conformity with the opinion and decree of this Court, in the case of the New Orleans Gas Light Company v. Bennett, 6 Ann’l, 456, that the equities of the creditors of the Company must be worked out through the corporate officers, the Gas Bank instituted proceedings against the plaintiff to compel him, as liquidator of the Company, to make a call upon the stockholders for a sufficient amount to pay the matured bonds for which the stock is primarily liable, and the interest on said bonds. There was judgment for the plaintiff in that suit, and, in execution of it, a call of three-fifths of the amount of the subscription has been made. This action is brought to enforce against the defendant the contribution, due by him, upon fifty-one shares of stock.

The defendant excepted to the petition, on the ground that his obligation to the Company was joint, and no action could be maintained against him unless all the stockholders were made parties to the suit.

There is nothing in this exception, and it was properly over-ruled. The defendant stands as any other partner in a joint stock Company, and is bound to pay, when regularly called upon, the share of the capital which he agreed to furnish. He is, in no legal sense, a joint debtor of the corporation. His obligation, on the contrary, is several and entirely unconnected with those of the other stockholders. He owes the amount of his subscription, whether they pay or not, and nothing beyond that amount can be claimed of him under any circumstances.

On the merits, neither the indebtedness of the Corporation, nor the necessity of the call to meet it, are denied. The only defence set up is, that the defendant is the holder of bonds and coupons of interest, for which his mortgage is pledged, exceeding the entire amount of his subscription, and that he has thus extinguished his liability to the Company. He further avers, that although he did not believe it necessary, for the purpose of avoiding litigation, he made to the plaintiff a tender, under protest, of the bonds and coupons of interest, which he holds, together with ten per cent, in current money of the United States, in satisfaction of his liability to the Company; which tender the plaintiff refused.

The prayer of the answer is, that the plaintiff’s demand he rejected; that he be ordered to receive and cancel the bonds and coupons, tendered him, as the defendant’s proportion of liability on said bonds; that the mortgage consented by the defendant to the Company, be cancelled, and that he may have judgment in reconvention for so much as may be due him on the bonds and coupons of interest, over and above his liability as a stockholder.

There was judgment for the defendant, that he be discharged from all obligation on account of his subscription for stock,, and the Court considering that the mortgage, consented by him, had been extinguished by compensation, ordered it to be cancelled.

The bonds and coupons of interest, tendered by the defendant, are over due, and, it is conceded, that they belong to the series secured by the stock mortgage of the defendant. Prom the plaintiff’s allegation, that the three-fifths for which he has made a call, are necessary to meet the matured bonds of that series, and the interest due on them, we infer that the amount called in will be sufficient for that purpose. The defendant then stands as a preferred creditor of the Company for the very amount he is called upon to pay. The claim of the Company against him has been liquidated and made demandable by the call which the plaintiff has made. The claim of the defendant against the Company is equally liquidated and demandable, and there was a sufficiency of assets to meet the matured liabilities, for which the stock mortgage of the defendant stands pledged. Under that state of facts, we think that, so far as the amount called in is involved, the District Judge correctly held the plaintiff’s demand to have been extinguished by compensation.

As, however, the bonds and coupons of interest, held by the defendant, are not in the record, and we are unable to identify them in the decree, we will give judgment for the plaintiff, to be satisfied by the delivery to him of an equal amount of the bonds and coupons, tendered' by the defendant.

The claim of the defendant, in reconvention, cannot bo acted upon at this time. His rights will depend upon the situation of the Company when the last series of the preferred bonds matures, and the remainder of the subscription is called in.

It is ordered that the judgment be reyersed.

It is further ordered, that the plaintiff recover of the defendant the sum of three thousand and sixty dollars, payable with an equal amount of the bonds and coupons of interest due by the Clinton and Port Hudson Railroad Company and tendered to the plaintiff.

It is further ordered, that the reconventional demand of the defendant be dismissed, without prejudice, and that Ire pay the costs of this appeal and of the District Court.


text:
    Twibill & Edwards v. J. & H. Perkins.
    In an action for the price of a thing sold, it is no defence that the buyer lacked the skill to discover an apparent defect.
    APpeal from the District Court, Seventh District, Parish of West Feliciana, Stirling, J.

      Brewer & Gollins, for plaintiffs and appellants.

      U. B. & E. Phillips, for defendants.
   Rost, J.

( Slidell, J., dissenting.) The defendants, being sued upon a balance due upon their promissory notes, have pleaded the general issue, and a partial failure of consideration. They allege that a portion of the consideration of said notes was a quantity of sugar moulds, purchased by them of the plaintiffs, and that said moulds wholly failed to answer the purpose for which they were' intended, and were worth one dollar per mould less than the price charged.

The District Judge was of opinion, that there was a partial failure of consideration, and the plaintiffs have appealed from the judgment reducing their claim by reason thereof.

The only serious objection made to the moulds, is. the thinness of the iron used. This was an apparent defect, which, the plaintiffs’ own witness states, a person, accustomed to using moulds, would discover without having to use them; he would tell by handling them, and could tell the moment he put his hand on them. Another of the plaintiffs’ witnesses says, that they could be distinguished from the other moulds, in the refinery, by any person.

In connection with this evidence it is shown, that the moulds were shipped to the defendants in lots, as they were made, during a period of several months. And that, after receiving the first shipment, .the defendants instructed the plaintiffs to increase the largest size, but did not require of them to use heavier material—that while they were receiving those moulds, and subsequently, they made with the plaintiffs several settlements, in which they gave their notes in payment of the moulds, at the prices agreed upon, without making any objection or reservation. It has been urged in their behalf, that they were but little acquainted with the use of sugar moulds at the time, and, consequently that the defects were not apparent to them, though they might have been to other persons.

It being shown that the defect complained of, if it really existed, which is doubtful, was apparent, the want of ordinary skill of the defendants cannot avail them. Even when the buyer does not know, or cannot see, an apparent defect, he is not entitled to a rescisión of the sale; because, if he is disabled, or has not sufficient skill himself, he must cause an examination to be made by a competent person before purchasing. Pothier, Gontrat de la Vente, Section 208.

In conformity with this theory, it has been held by the Royal Court of Paris, that a purchaser of pictures cannot claim the nullity of the sale, because the pictures are not by the painter whose name they bear. Troplong, who quotes the case with approbation, says, that the quality, which the reputation and talent of the painter gives to the picture, is not a concealed defect. Connoisseurs can discover it and distinguish the manner of each painter. They have positive data by which to classify the different schools, and the purchaser, by surrounding himself with their lights, might have avoided the error into which he fell, as to the merit of the thing purchased. Troplong, Te la Vente, No. 555.

The defendants, carrying on a sugar refinery, are liable in solido as commercial partners.

It is ordered, that the judgment, in this case, be reversed, and proceeding to give such a judgment as the Court below should have rendered, it is ordered, that the plaintiffs recover of the said defendants, m solido, the sum of three thousand, five hundred and fifty-one dollars and seventy-nine cents, with interest, at the rate of five per cent, per annum, from the 28th day of October, 1851, on the sum of twenty eight hundred and eight dollars and seventy-one cents—and from the 25th day of November, 1851, on the remaining sum of seven hundred and forty three dollars and three cents^

It is further ordered, that the plaintiffs' recover throe dollars, costs of protest, and that the defendants pay costs, in both Courts.


text:
    John Lissac v. Leopold Klapman.
    Under the 18th Section of the Act “ to amend the several Acts enacted to organize the Courts of this State, and for other purposes,” approved January 28,1817—the District Judge of the parish of St. Tammany has power to appoint a Sheriff in default of any officer of the parish authorised to serve legal process»
    Appeal from the District Court, Eighth District, Baylies, J.

      Halsey, for plaintiff.

      Jones, for defendant and appellant.
   Slidell, J.

The defendant is sued upon a promissory note made and endorsed by himself, and due 25th January, 1843.

The plea of prescription was properly disregarded. Suit was brought by a former holder, Belvrman, in January, 1843, before the note fell due, and there was also a provisional seizure of goods, the price of which was the consideration of the note. In May, 1843, the action was dismissed upon the ground that it was prematurely brought, and on the 25th January, 1848, a citation in the present action, was served personally upon Klopmam. The return is signed by “ A. 3. Foster, Sheriff pro tempore.” The first appearance of the defendant in the cause was in October following.

It is said the service of citation by Foster was a nullity, and did not interrupt prescription. We think otherwise. His written appointment is in evidence. It is signed by the District Judge of the District wherein the suit was brought, bears date 24th January, 1848, and recites “ that there was, at the time, an m* terregnum in the office of Sheriff and that the coroner of said parish is absent, consequently there is no officer in the parish authorized to execute the legal process,” &c. It declares the appointment to be made under the authority of the 18th Section of an Act entitled “ an Act to amend the several Acts enacted to organize the Courts of the State, and for other purposes, approved January 28, 1817.” The section is broad enough to cover the power exercised. It is not suggested by counsel, nor are we aware that this provision, in itself so obviously salutary and necessary to prevent a failure of justice, has been repealed. He was sworn into office, before the same Judge, on the day of his appointment. It does not appear that he had executed an official bond before he served the citation. But this omission does not, in our opinion, affect the validity of the service for the purposes of the present question.

On the subject of the reconventional demand for damages for an alleged illegal seizure and malicious prosecution, without noticing other points, it is sufficient to say, that it was considered by a jury of the vicinage; and a perusal of the evidence has not satisfied us that injustice was done by their verdict.

Judgment affirmed, with costs.


text:
    D. & A. Wesson v. Garrison & Fuqua.
    The protest of a bill of exchange stated that the bill was presented for payment at the oflce of the drawees, to a gentleman styling himself book-keeper of the house, and who answered that he was duly authorized to say that the bill would not be paid. Held: This was a sufficient presentment and it was not necessary that the notary should certify that the drawees were at the time absent from the counting room.
    The relations of drawer and acceptor create no right to call the acceptor in warranty.
    Appeal from the District Court, Seventh District, Parish of East Feliciana, Stirling, J.

      Merrielc, for plaintiffs.

      Pond, jr., for defendants and appellants.
   Slidell, J.

We think the District Judge did not err in treating as an answer what the defendant styled a peremptory exception.

The bill was properly protested on the third day of grace, 4th February, the request in the body of the bill being to pay on the 1st February. The bill was drawn in New York on a New Orleans drawee. The discussion in the appellants brief of foreign usage, is utterly irrelevant.

The protest states, that the bill was presented for payment at the office of G. Burke & Go., the drawees, to a gentleman styling himself book-keeper of that house, and who stated that he was duly authorized to answer the bill would not be paid. This was a sufficient presentment, and it was not necessary the notary should certify that the drawees were at the time absent from their counting room.

In their answer, the defendants alleged that they had funds in the hands of G. Burke & Co. to meet the bill, and that, b3r accepting, they undertook to pay it, and the defendants asked leave to cite them in warranty, which the Court refused. We do not consider the relation of drawer and acceptor as creating a right to call in warranty, under article'379 of the Code. It has not been so understood in practice, and does not fall within the strict terms of the Code. The drawer has his recourse against the acceptor when he has paid, but has no right to delay the holder until he can bring him in. See Lanusse v. Massicott, 3 Martin, 201.

We think this appeal was taken for delay, and the appellants prayer for damages must be sustained.

Judgment affirmed, with $20 as damages for a frivolous appeal.


text:
    Josiah D. Fuller v. Robert W. Cowell. Mushet & Pearson, Warrantors.
    The ignorance of the vendor that the cotton sold by him was falsely packed, does not exempt him from liability for the difference between the value of the bales, in their actual condition, and what the value would have been if the quality throughout the bale had been uniform with the samples.
    Where the seller is not cognizant of the hidden defects of the thing sold, he is liable for the difference at the time and place of sale, between the actual value of the bales falsely packed, and what they would have been worth, if the entire contents had corresponded with the outer portion.
    APPEAL from the Fourth District Court of New Orleans. Reynolds, J. Action for loss sustained on the purchase of a number of bales of cotton. Petition charged “ that the outside of said bales was composed of good, sound and merchantable cotton, extending further into the interior of the bales than the usual mode of inspection would enable a person to examine,” &c. ; but that said bales were “ plated on the outside with sound and merchantable cotton, &c., but were falsely packed in the interior of the bales with cotton badly damaged, &c. &c,

      Bonford & Finney, for plaintiff.

      Benjamin & Micou and Wolfe & Singleton, for defendants, warrantors and appellants.
   Slidell, J.

Although there is a conflict of testimony, our’minds have been brought to the same conclusion as the District Judge came to, that is to say, that the cotton in the interior of the bales was of a decidedly inferior quality to that of the outer portion ; in other words, that the cotton was what was called in the market, falsely packed. Such packing, it is proved, is not discoverable by the usual examination which buyers make. The plaintiff, it is true, admitted at the trial, the defendant was not aware of this false packing; but this absence of knowledge does not exempt the vendor from liability for the difference between the value of the bales in their actual condition and what it would have been if the quality throughout the bale had been uniform.

There was an effort at the trial below, and in argument here, to avoid responsibility, on the ground that this cotton had been repacked in New Orleans, in consequence of a fire having occurred at the Press where it was stored, and that the fact of its having been repacked, was communicated to the plaintiff. And witnesses were called to prove that repacked cotton is not considered as favorably in the markat as cotton which has not undergone that process. The reason, as stated by a cotton dealer, is “ that in repacking cotton they have to pick it out in various piles, and through carelessness there may be a slight mixture, and in repacking, occasionally a rope might be picked up. Buyers of repacked cotton know these facts.” But this evidence is insufficient to account for the condition of the cotton in question, or to exempt the defendant from liability. There was here, according to the testimony of the plaintiff’s witnesses, to whom the District Judge gave credence, a marked discrepancy between the outer cotton and the interior of the bales, which can only be accounted for on the hypothesis of false packing. Moreover, in this case, samples were furnished by the seller to the buyer, and the classef, employed by the plaintiff, testified that he found, on drawing samples from the edge of the bales in the usual manner, that they corresponded with the samples so furnished. The witnesses concur in stating that false packing is not discoverable by taking samples from the bales in the usual manner.

In a case of this sort, where the seller is not cognizant of the hidden defects of the thing sold, he is liable for the difference at the time and place of sale between the actual value of the bales thus falsely packed, and what they would have been worth if the entire contents had Corresponded with the outer portion. The actual loss incurred by the plaintiff in the’foreign market, where he sold the cotton, had it been thrown back on his hands by the buyer, and then resold at a lower price, is not the rule of damages, although it may bo considered, with other evidence, for the purpose of estimating the per centage of inferiority.

It is, therefore, decreed, that the judgment of the District Court be reversed, and it is further decreed, that the plaintiff recover of the defendant the sum of $354 74, with interest at the rate of five per cent, per annum from the 5th April, 1851, until paid, and costs of the suit in the Court below—those of the appeal to be paid by the plaintiff.


text:
    Marie Joseph Dede, et al, v. Ludger Boguille, f. m. c.
    To constitute a title translative of property, the judicial sale must be accompanied by the judgment and execution.
    Appeal from the Second District Court of New Orleans, Lea, J.

      Murphy, for plaintiff.

      Durani & Bbrner, for defendant and appellant.
   Rost, J.

In 1844, the plaintiff, Ma/rie Josephe Dédé, was enjoying the usufruct of a house and lot, belonging to her children, one of whom was a minor at the time. Her right of usufruct was seized and sold by the Marshal of the city of New Orleans, and the defendant became the purchaser. There was sold, at the same time, one undivided sixth of the property, represented in the act of sale, as having been inherited by the defendant from one of her deceased children.

In 1852, she instituted this action to recover the property, with rent and damages, on the ground that the sale was informal and otherwise void—that the usufruct of her children’s property was not liable to seizure—that the defendant had violated the obligation of a usufructuary by suffering the property to go to decay, while in his possession. Her children joined in the suit, praying that in case the sale should be sustained, the usufruct might be forfeited for a violation on the part of the defendant, of the duties and obligations of the usufructuary. They also prayed for damages. The general issue and prescription were pleaded in defence.

The District Judge avoided the sale, and gave judgment for the rent of the house, at the rate of $9 per month. The defendant appealed.

The defendant’s title is not admitted, and the only evidence offered to establish it, is an act of sale by the Marshal of the former City Court of New Orleans. The settled jurisprudence of this Court is, that to constitute a title translative of property, the judicial sale must be accompanied by the judgment and execution. We conclude, therefore, that the defendant has not shown a title sufficient to divest that of the plaintiff to the usufruct, or to any undivided interest in the property. Whether or not the Marshal’s sale was sufficient to make him a possessor in good faith, the judgment must remain undisturbed. If he was not in good faith, he owes the rent which he has been adjudged to pay. If ho was in good faith, his possession of five-sixths of the property was that of a usufructuary, and he is liable in damages for having- suffered the property to go to decay, and the evidence satisfies us that the amount allowed as rent does not exceed five-sixths of the sum necessary to put the house and building’s in a proper slate of repair.

We think justice has been done between the parties.

Judgment affirmed, with costs.


author:
Dunbar, J.
      Slidell, J.,

text:
      J. B. Byrne & Co. v. Samuel Anderson, et al.
    If the Sheriff leaves the property in the possession of the debtor it is at his own risk. His responsibility for the goods levied on continnes so long as he can keep possession of them under the execution.
    Appeal from the District Court, Tenth District, Parish of Madison.

      Perkins, jr., J.

      Stockton & Steele, for plaintiffs and appellants.

      Short & Parham, for defendants.
   Dunbar, J.

(Slidell, J., dissenting.) This is a suit brought on a Sheriff’s bond against the principal and sureties.

The plaintiffs allege that on the 5th January, 1849, they obtained from the Judge of the Tenth Judicial District, for the parish of Madison, an order of seizure and sale, against certain slaves, the property of Mary Stanford, wife of Richard 0. Stanford; and, on the same day, placed in the hands of Samuel Anderson, the Sheriff of the parish of Madison, a writ of seizure and sale directed to him, returnable in not less than thirty nor more than seventy days.

That the said Sheriff, soon thereafter, levied on the said slaves, and advertized them for sale on the first Saturday in March, 1849. That he afterwards permitted three of the slaves, that had been levied upon, to be taken out of his possession and carried beyond the jurisdiction of the District Court of Madison, by which neglect of duty on his part, the plaintiffs have lost a large portion of their debt, and have sustained damages to the amount of eight hundred and ninety-one dollars and fifty-eight cents.

It is shown, that on the 29th of March, 1849, -the parties agreed that as many of the slaves, levied upon by the Sheriff, as would be necessary to bring the sum of fifteen hundred dollars, should be sold on that day by the Sheriff, and the remaining slaves should be re-advertised to be sold by him on the first Saturday in June thereafter. That in conformity with this agreement, all of the slaves levied upon were sold at the Sheriff’s sale on the 29th March, except three, named Mils, Susan and Ha/i'riette. The proceeds of the sale amounted to thirteen hundred and eighty-throe dollars and fifty-eight cents, which sum was credited on the writ, leaving a balance, duo the plaintiffs, of eight hundred and ninety-one dollars and fifty-eight cents. The writ was not returned by the Sheriff, who made an endorsement on the appraisement in his own handwriting: “Advertise the three slaves for June.” But before the first Saturday in June, the three slaves, who had been left by the Sheriff with Mrs. Stanford, or her agent, on her plantation, were by them removed from the parish of Madison.

It is well settled, that if the Sheriff leaves the property in the possession of the debtor, it is at his own risk; his responsibility for the goods levied on, continues so long as he can keep possession thereof under the execution. Having made the levy before the return day, he had the right, and it was his duty, to have kept the slaves safely until they were all sold. He has given us no excuse for his negligence. Grwynne on Sheriffs, 299.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and that there be judgment for the plaintiffs against the defendants in solido, for the sum of eight hundred and ninety-one dollars and fifty-eight cents, with legal interest from judicial demand, with costs in both Courts,

Slidell, J.,

dissenting. I think there should be judgment against the late Sheriff, at least, for part of the amount claimed; he not having duly accounted for the securities and cash put into his hands by Patterson. But, in my opinion, the evidence shows an assent by the plaintiffs’ attorney to an arrangement by which the matter was taken out of the legal course; and the loss which ensued ought not, it seems to me, to fall upon the Sheriff’s sureties, to whom no privity in the arrangement is shown.

I think proper to add, that a part of the arrangement made by the agents of the plaintiffs and defendant, seems to me against public policy. Moreover, I have no reason to doubt but that the plaintiffs would have collected their whole debt, if their agent had insisted on their legal rights, and not acted in a spirit of indulgence, extending a confidence which was violated.


author: Dunbak, J.

text:
    Charles L. Wilson, Curator, v. John D. Imboden.
    Clerks of Court have no authority, under the Act of 1888, to appoint administrators of estates, under five hundred dollars, when no one will accept their administration and give security.
    The Act of 1816 does not authorise Clerks of Courts to appoint administrators of small successions, but requires them to assume their administration themselves.
    The validity of the appointment of Curator can be inquired into collaterally, when such appointment is not good on its face.
    Appeal from the District Court, Tenth District, Perldns, jr.,- J.

      Glarlc & Wilson, for plaintiff and appellee.
    Selby, for appellant.
   Dunbak, J.

(Slidell, J., dissenting.) B. G. Gwm/pbell died in the State of xirkansas, leaving an estate of some magnitude there, and also a last will, wherein he names an executor, who regularly qualified. The decedent’s property, in this State, consisted only of a claim against defendant for the hire of some negroes, amounting to $346, according to the inventory and appraisement. Plaintiff, averring himself to be a creditor, applied to the Clerk for the Curator-ship of the succession in this State, who without advertising the application or requiring bond and security, appointed the applicant on the same day the petition was filed, curator of the estate, on taking the oath. The present suit was then commenced by him against defendant, who peremptorily excepted to plaintiff’s capacity to sue. The exception was overruled, and, on the merits, judgment was rendered against defendant, from which he has appealed.

Plaintiff relies, for the validity of his appointment, upon the Act of 1838, amendatory of Article 1118, of the Civil Code, and also upon the Judiciary Act of 1846, p. 64, sec. 2. The first conferred the power upon Probate Judges of appointing administrators to estates under five hundred dollars, which no one would accept the administration of, and give security—merely requiring the usual oath and dispensing with the public notices and the bond.

This Act, extending these powers to Judges of Probate, cannot be held to embrace Clerks of Courts. Wo must seek for their authority in the Act of 1846, when, as the probate system had been essentially altered, it was found expedient to confer upon Clerks many of the powers held by the former Probate Judges. But on referring to it we find, not that clerks were authorised to appoint administrators to these small successions, without giving bond and security, but that they themselves should assume the administration. It may fairly be presumed that in framing this particular section of the Act of 1846, the Legislature had before them the Act of 1838, on the same subject; and, therefore, the will of the lawmaker is the more clearly understood—that Clerks should not have the power of making- such appointments, but should assume the duties. It is objected that the validity of the appointment cannot be enquired into collaterally, and we are referred to 2 Lou’a, p. 250; 1 Rob. p. 258, and 3d Rob. p. 130. This is correct when the appointment is good upon the face of it, but in the present instance, the.authority under which the plaintiff has any right to appear in Court, purports to have issued from an officer without the capacity to make it, and is, therefore, absolutely null.

It is, therefore, ordered, adjudged and decreed,' that the judgment of the District Court be reversed. That the exception, filed by the defendant, be sustained, and the suit dismissed, the plaintiff and appellee paying costs in both Courts.


text:
    J. S. R. Guay v. T. L. Andrews.
    The surety, on a bond for the delivery of property attached, is not exonorated because the judgment against the principal did not decree the property attached to be sold. Whatever may have been the form of the judgment, the condition of the bond would have been satisfied by the delivery of the property attached.
    In proceedings against a surety on the replevin bond of a defendant in attachment, the return of no property found, contemplated by the Act of 1839, is to be made by the Sheriff of the parish in which the judgment in the attachment suit was obtained—and not by the Sheriff of the parish to which the defendant in the attachment, may have removed.
    Appeal from the District Court, Seventh District, Parish of East Feliciana. Stirling, J.

      Merrick, for plaintiff.

      Winter, for .defendant and appellant,
   Rost, J.

On the 21st March, 1839, the plaintiff instituted a suit by attachment, against Sarah Rhodes. The Sheriff executed the attachment by seizing certain slaves, belonging to Mrs. Rhodes. On the same day Mrs. Rhodes executed her bond, with the defendant, Andrews, as her surety; the condition of of which was, the delivery of the slaves attached to the Sheriff, in the event of a judgment being rendered against her.

There was judgment against Mrs. Rhodes, and execution having issued, and being returned “no property found,” the plaintiff moved for a judgment against Andrews, the surety, under the Act of 1839. The motion prevailed, and Andrews has appealed.

It is nothing to the surety, Andrews, that the judgment in the main suit did not decree the property attached to be sold. The defendant was in Court and a personal judgment could be rendered against her. Whatever was the form of the judgment, the deféndant would have satisfied the condition of the bond by delivering the property attached, after it was rendered.

When the execution came into the hands of the Sheriff, he called on the plaintiff’s counsel to point out property of the defendant, which the counsel declared, in writing, he was unable to do, and the Sheriff, not knowing of any himself, at once returned the writ. We know of no law declaring such a return premature or illegal.

It is alleged, that it was notorious that the defendant had removed to another parish, and that the execution should have been sent to the Sheriff of the parish of the new domicil. The Act of 1839 does not say so, and the return which it contemplates, is evidently that of the Sheriff of the parish in which the judgment was rendered.

After the judgment had been rendered in the original suit, the counsel for the plaintiff entered, of record, a correction of it, stating that he had made an error in adding up the account, upon which the suit was partly brought, and that the amount of it was only $79 32, instead of $160 82, which the District Court had allowed. The surety claims the benefit of this credit, and we are of opinion that he is entitled to it. This correction may be viewed as an entry of satisfaction of the judgment pro tanto, and such entries for a part, or for the whole, may lawfully be made, by the attorney, of record. It is a remittitur, of which the defendant, and his surety, may take advantage.

It is ordered that the judgment be reversed.

It is further ordered, that the rule be made absolute, and that Mary Sturges, in her capacity of dative testamentary executrix of J. 8. R. Guay, deceased, have judgment against the succession of Thomas L. Andrews, represented by Gha/rles G. Latlwop, for the sum of three hundred and eighty-seven dollars and thirty-two cents, to be paid in due course of administration.

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


author: Eustis, C. J.

text:
    Cecile, f. w. c. v. Sidney A. Lacoste and Wife.
    A bequest in the following words: “I give and bequeath, in consideration of .her good and faithful services, to the free gHffo woman OeQÜe, three arpents front of my land, to be taken from the line of the plantation of Honoré JP(wre, with the whole depth, to be enjoyed by her during her life in usufruct; the said land, after her death, to belong to her children ”—is a particular legacy.

      A particular legatee is not bound to contribute to the payment of the debts of the succession, where the succession is rich; and an usufructuary, under a particular title, is not bound to discharge the debts for which the property bequeathed is mortgaged.
    'The universal legatee is, by 1 iw, bound to discharge the debts of the succession.
    If the effect of the testamentary disposition to Cecile is held to vest the property in the heirs, legal or testamentary, a substitution would be created in relation to it, and the disposition itself would fail.
    There can be no doubt that the intention of the testatrix was, to vest the property in the children of Cecile^ and give her the usufruct, to terminate at her death, provided her life did not extend beyond the term assigned by law for the duration of an usufruct.
    Appeal from the District Court, Ninth District, Parish of Point Coupee, Farrar, J.

      Provosty & Roy, for plaintiff.

      Gooley, for defendant and appellant.
    Appellant’s counsel maintained that the legacy was by universal title, and that the legatee was bound to pay her proportion of the debts of the testator. Code, 580, 581. The will contains a substitution. Radial v. Radial, 1 L. R. 118. Under it
    1st. The children of Cecile did not take the naked property on the death of the testatrix.
    2d. There was no one in esse, clearly designated by the will, to take the naked property on the death of the testatrix.
    I. Unless the language of the will is entirely perverted, under the pretext of searching for the intentions of the testatrix, it is utterly impossible to say that “ devant appartenir aprés sa mort," means, that the children are to be proprietors avant sa mort; and to this it must come, if the children of Oecilo have any title under the will, before the death of their mother. There is no room for equivocation; the words stare us in the face, and defy the ablest ingenuity to torture them into a different meaning. “ Candles are not to be lighted when the sun shines brightly.” Y L. R. p. 230.
    II. But there is no certainty, even as to who are to be the legatees under this clause: “laditeterre devant aprés son décés appartenir a ses enfants.” All the present children may die, and the plaintiff may have other children at the time of her death. If so, these latter are the legatees meant in the will. In the case of Radial, above mentioned, which was almost entirely similar in this respect, the Supreme Court decided that the testator meant children existing at the time of the death of the original legatee. The words in the will were, “ si elle décéde avant son mari, les dits biens passeront A ses enfants, tels qu’elle les aura regus de moi.”
    In the case just mentioned, the Court intimates, that “if the testator had named the children living at the time he made his will; had instituted them his hews, and had provided, that after the death of their mother, they should take the property, it might, perhaps, have been difficult to distinguish such a disposition from that permitted by Art. 1500.” The case here, does not come even under the liberal view taken of what, perhaps, might be decided; for the will does not name the children, and does not institute them heirs of the testatrix. Should they all die before their mother, they cannot transmit any title to their heirs; whereas, the person “ to whom the naked property in an estate is bequeathed, has a right transmissible to his heirs, who may become absolute owners by the death of the usufructuary.”
    Besides, under the name of children, are comprehended not only the children of the first degree, but the grand children, great grand children, and all other descendants in the direct line. C. C. 3522.
    “Liberorum appellatione nepotes et pronepotes, eosque qui ex his descendunt continentur.” L. 220, § de verb. sig. Merlin R. de J. verbo Enfant.

    The case of Roy v. Latiolais, which bears the nearest similarity to the present, was decided by only two Judges—Judge Rost, dissenting. Besides, in that case, the legatee was named and made certain. 5th Ann. 550.
    The case of the Succession of Eucloslange, 4 R. R. 410, is also distinguishable from the present in this: the terms used were “ reversible aprés elle á mes. enfants,” which conveys a different idea from “ devant appartenir.” In the one case, the existence of the title previous to the death of the usufructuary, seems to be understood—there is room for interpretation; but in this case it is almost, impossible to understand the will differently from what is contended for by the appellees.
    The decision, however, of the case of Eudoslange, when closely examined and compared with all the other cases of a similar character, appears to be incorrect. It is, of course, with diffidence that such a proposition is started',, but it is with a firm conviction that, according to the true principles which should' govern the case, there was a substitution, reprobated by the law, in the will of' Eucloslange, and, as it stands alone, perhaps the present case affords a good opportunity to come back to the true fundamental principles of the subject. It is believed, also, to be in contradiction with the case of Radial v. Raohal.

    If this latitude of interpretation is allowed in relation to wills, we may as well' forget all that we have learned in relation to substitutions; because it is so easy to suppose that the testator intended to make a valid will; and the presumption that he intended to do so—supplying interpretation—it would be difficult to find a case where a will would be annulled.
   Eustis, C. J.

This appeal is taken by the defendants from a judgment of the Court of the Ninth District, sitting in the parish of Pointe Coupee, rendered in favor of the plaintiff, against Virginia Esneault, one of the defendants and wife of Sidney A. Laeoste.

This judgment was for the recovery of a piece of land, having one arpent front by eighty arpents in depth, with the improvements thereon, the same having been bequeathed to her in usufruct,and the property to her children, by the last will and testament of the late widow Simon Porche. The judgment-is against the defendant as the universal legatee of the testatrix, as recognized by a judgment of this Court, rendered on the 3d February, 1852, affirming the judgment appealed from. Marcellin Major et al. v. Virginie Esneault, 7 Annual Reports.

The bequest to the plaintiff was for three arpents of land in usufruct, but as she held two of them under a good title, the litigation is confined to her rights in the one arpent front, by the depth of eighty acres.

The testatrix says, in her will, after instituting Virginio Esneault her universal legatee: “I give and bequeath, in consideration of her good and faithful services, to the free griffe woman Oeeile, three arpents front of my land, to be taken from the line of the plantation of Honoré Frnre, with the whole depth, to be enjoyed by her during her life in usufruct, the said land, after her death, to belong to her children.”

"We do not concur in the opinion of the counsel for the defendants, that the legacy constitutes what is called an universal title. It is the legacy of a distinct object, and is of that class called particular legacies. The plaintiff, as a particular legatee, is not bound to contribute to the payment of the debts. The succession is rich, and, as an usufructuary under a particular title, the plaintiff is not bound to discharge the debts for which the property bequeathed is mortgaged. Code, Art. 575. The universal legatee by law, and in this case, by the express command of the will, is bound to discharge all the debts of the succession.

At the time of the decease of the testatrix, the plaintiff had eight children living—the youngest was bom years before the date of the will.

If the effect of this testamentary disposition is held to vest the property in the heirs, legal or testamentary, a substitution would bo created in relation to it, and the disposition itself would fail.

A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none. Code, 1706.

In avoiding this construction, which killeth, we are carrying into effect the intention of the testatrix, and have in view her purpose of beneficence, which was to recompense a faithful and deserving servant.

The clause of the will is badly expressed, but there can be no doubt, we think, as to whom were the object of the charity of the testatrix. We think it vested the property in the children of the plaintiff, and gave her the usufruct, to terminate on her death, provided her life should not extend beyond the term assigned [by law] to the duration of the usufruct.

The judgment of the District Court-is, therefore, affirmed, with costs.