text:
    W. A. Taylor v. J. A. Paterson.
    Though the person hired is entitled when discharged 'to wages, for the time he has served, he is liable for damages which may have resulted from his wrongful acts, and these damages may be deducted from his wages.
    In an action for wages by an overseer, who has been discharged by his employer for good cause; it is competent for the Judge to enquire not only into the character of the wrong complained of by the employer, but also to include in his estimate the inconvenience to which he was subjected until he could get another overseer.
    The general rule that the inexecution of contracts gives rise to a claim for damages, laid down in Article 1921 of the Civil Code, is applicable to the contract of hiring.
    Where the objection to the introduction of a receipt was that it contained interlineations in a paler ink which were not accounted for, but it was not alleged that the interlineations were alterations of the instrument, or that they were in a material part, or that its language or meaning was thereby changed, and there was nothing in the record from which the court could ascertain what the interlineations were. Held: Under these circumstances the court could not -say that the Judge erred in receiving it.
    The defendant, in an interrogatory inchief, enquired of Ins witness; “I>id or not plaintiff state to you that he had shot the boy Alfred, the week previous ?” The plaintiff on cross-examination, enquired: “ If the plaintiff told you he shot the negro boy, state what he fold you induced him,” &c. The defendant moved to strike out the answer to the cross interrogatory, inasmuch as it contained the statement of the plaintiff of his reason for shooting the boy made out of the presence of the defendant. Held: The admissions of defendant touching the fact to which he was interrogated must be taken together, and can not be divided against him.
    Where a party, en a former tidal, obtained from his witness testimony of the declarations of his adversary in the cause, that adversary shall not be permitted to introduce the .testimony on a subsequent trial.
    APPEAL from the District Court of West Eeliciana. This cas.e was tried by a jury before Sterling, J.

      Powell & Ratliff, for plaintiff. Patterson, and Brewer & Gollins, for defendant and appellant.
   Campbell, J.

This suit was instituted for three hundred dollars, alleged to be due by defendant to petitioner for his wages as overseer for the year 1850, and one hundred dollars, the value of a horse detained by 'him.

The answer admits that plaintiff acted as his overseer, and on the trial, it was likewise admitted that, for his services during the whole year, defendant was to receive three hundred dollars.

It is urged as a defence to the action, that plaintiff, who had charge of defendant’s plantation, wantonly and without any just cause, shot one of the slaves thereon employed.; .that in consequence thereof, the value of the slave has been greatly diminished, and the defendant furthermore damaged by the loss of the sei’vices of the slave, and expenses incurred in procuring surgical attendance and in nursing; for all of which, he claims a judgment in reconvention for seven hundred and fifty dollars.

In an amended answer, the respondent specially avers that, the plaintiff by Iris wrongful act, as above set forth, has forfeited his right to wages.

The cause was tried by a jury, who found a verdict in favor of the plaintiff, for the sum of $231 91, the amount of wages due for the term that he acted as overseer, at the rate of $300 per annum, after deducting the sum $55 75, which they allowed defendant for loss of the services of his slave, and for medical care .and attention. Judgment was rendered in conformity with this verdict, and defendant has appealed therefrom.

In the case of Hendricks v. Phillips, 3 Ann. 618, which in its leading features does not materially differ from this, the court after animadverting in proper terms on the revolting cruelty of plaintiff to the slaves under his charge, say in conclusion: “We do not wish to be considered as expressing an opinion that an overseer, who thus injures or destroys the property of his employer, can sustain an action for his salary. We have considered this case as it is presented by the defendant, who appears to have been willing to allow the overseer his salary, upon receiving compensation for the damages sustained. If on a future occasion the first shall he presented, we shall consider it open.”

In this case, the defence is specially urged, apparently in reference to the intimation in the opinion just referred to, and wo will proceed to consider it.

The Article 2721 of the Civil Code is as follows: “ If on the other hand, a laborer, after having hired out his services, should leave his employer, before the time of his engagement has expired, without having any just cause of complaint against his employer, the laborer shall then forfeit all the wages that may be due to him, and shall moreover, be compelled to repay all the money he has received, either as due for his wages, or in advance thereof on the running year, or on the time of his engagement.”

The argument in support of defendant’s position is that, if leaving his employer before the term of his engagement has expired, without just cause of complaint, occasions a forfeiture of wages already earned by the overseer, that by necessary implication the overseer must likewise be held to have forfeited such wages; if by his own fault, he brings upon his employer the necessity of discharging him. That to deny this, would place the overseer who has been discharged for some gross wrong, such for example (as in the present case) as shooting a slave under his charge, in a better position than that of the overseer, who' though he may have constantly performed, his duties faithfully, for a greater portion of the year, leaves before its expiration, without just cause of complaint. The answer to this deduction is, that the law pronounces no forfeiture for the course alleged, and to supply it, in silence of the law, would be a violation of the rule that “ forfeitures are not to be implied or extended,” or penalties enforced which are not directed by law or stipulated by the parties ; though the power is expressly given to the Judge to modify the penalty stipulated by the agreement of the contracting parties, when the principal obligation has been partly executed. O. 0. 2123. But though the person hired, is entitled when discharged to wages, for the time he has served, he is liable for damages which may have resulted from his wrongful acts, and these damages may he deducted from his wages. Trop. Louage 867. Pothier, Louage 174. In assessing the damages too, in case of a discharge for good cause, it would be competent for the Judge not only to enquire into the character of the wrong complained of, but also to include in his estimate the inconvenience to which the planter would be subjected, until he could get another overseer. The general rule that the inexecution of contracts gives rise to a claim for damages, laid down in Article 1924 of the Civil Code, is equally applicable to the contract of hiring. Trop. Louage No. 787.

The conclusion to which we have arrived on this point of the case, is fully sustained by the decision in the case of Nolan v. Danks and another. 1 Rob. 332.

We will now proceed to examine the bills of exceptions to the admissibility of evidence taken on the trial of the cause.

The defendant introduced a receipt signed by the plaintiff for services rendered in 1849, which contained an acknowledgment that plaintiff had been discharged for shooting defendant’s slave Alfred,. The objection is, that the receipt contains interlineations in a paler ink, which were not accounted for. It is not alleged that the interlineations are alterations of the instrument, or that they are in a material part, or that its language or meaning is changed. Nor can we ascertain from the record, what the interlineations are. 1 Gr. on Ev. § 566. Under these circumstances, we can not say that the Judge erred in receiving it.

The exception to the competency of H. B. Benjamin, on the ground of infancy, need not he considered, as his testimony was not received on the last trial.

On the first trial, defendant having taken the testimony of Dr. Benedict, under commission, before offering it, moved to strike out answers to certain cross interrogatories propounded by plaintiff, inasmuch as they contained the statements of plaintiff of his reason for shooting the boy Alfred made out of the presence of defendant.

In the 9th interrogatory in chief, defendant asks of the witness: “Did or not plaintiff state to you that he had shot the boy Alfred the week previous; the distance?” &c. In the 9th cross interrogatory, plaintiff asks: “If the plaintiff told you he shot the negro hoy, say what he stated induced him ?” &c.

The court properly refused to strike out the answer to the cross interrogatory. The admissions of defendant touching the fact to which he was interrogated, must be taken together, and can not be divided against him.

Before the last trial, defendant took out a second commission to take the testimony of Dr. Benedict, omitting all the questions contained in the first as to the admissions of plaintiff, and offered at the trial the testimony taken under the last commission. The testimony taken under the first commission being yet in the court, was offered by plaintiff and received, notwithstanding the objections of defendant who urged that plaintiff could not be permitted to prove his own statements, made out of his prosonee and thus make evidence for himself, the defendant not having offered proof of any statement of plaintiff.

The general rule no doubt is that testimony of a witness, delivered on a former trial, and reduced to writing, may be used on a subsequent trial, by either party, if it shall be impossible to produce the witness. Yet if the witness were produced, it could not be held that the party offering would be bound to adopt the course of examination pursued on the former trial. In other words, because he had from inadvertence injudiciously opened the way to proof of declarations of the party in his own favor, that he thereby loses the right to oppose such testimony on a subsequent trial, when he does not seek to use his admissions against him. We see no reason why the rule should be different when the testimony is taken under commission, and think, under the circumstances, that the declarations of plaintiff were improperly received and that the verdict of the jury should be set aside.

It is therefore decreed that the judgement of the District Court be annulled and reversed, that the case bo remanded for a new trial, with directions to the Judge not to receive in evidence the depositions of Dr. Benedict, offered by plaintiff. The costs of this appeal to be borne by the plaintiff and appellee.


source: Caselaw Access Project

author:
Campbell, J.

      G. Gayarte,

license: Public Domain

text:
    C. Gayarre v. W. F. Tunnard.
    An artisan has a right to' retain the thing which he has repaired, until payment of the price of the repairs,. Art. 8184 0. 0. gives to the artisan not merely a privilege, but a right of retention.
    "Where testimony is received without objection, the court will not be restricted to the issues presented bf the pleadings; but must decide the cause as presented by the proof.
    APPEAL from the District Court of the Parish of East Baton Rouge. This cause was tried by a jury before Robertson, J.

      O. Gayarre, fro se. J. W. Seymour, [and J. M. Elam, for defendant ar.d appellant.
   Campbell, J.

The petitioner alleges that on the 9th of September, 1852, the defendant, W. Ft Tunnard, though thereto demanded, refused to deliver the possession of a four wheeled carriage belonging to him ; and that he detains the same illegally and maliciously. He prays for the restitution of the carriage, and for $1000 damages for its detention. The defence is a general denial, and a special denial that his conduct towards petitioner has been malicious or illegal; alleging that the suit of plaintiff is malicious and ungrounded in law, and brought with the intent of annoying and harrassing him; he claims damages in reconvention. The case was tried by a jury, and in conformity with their verdict, a judgment was rendered in plaintiff’s favor, decreeing the return of the carriage and sentencing defendant to pay twenty-five dollars as damages, and the costs of suit.

Prom the judgment and fine rendered, this appeal has been prosecuted. Though the issues presented by the pleadings are simple and easy of solution, this case has become much complicated by the manner in which this trial was conducted in the court below. Testimony not strictly admissible under the pleadings, has been offered and received without objection, and the effect of which has been to change materially the issue as made up.

The facts of the case as disclosed by the record, are substantially as follows : Plaintiff, on the morning of the 9th of September, sent his carriage to the shop of defendant, who is an artisan, to be repaired. The repairs were made, and are proved to be worth two dollars, the sum charged. Defendant refused to deliver to plaiptiff the cai'riage, until he should be paid this sum. This plaintiff refused to do, but proffered to and actually did deposit with Dufroe, Mayor and Justice of the Peace of Baton Rouge, the sum demanded, subject to the claim of defendant upon his establishing his right to it. The money thus deposited was never demanded by defendant, and was withdrawn on the 14th of the same month by plaintiff,

The defendant maintaining, that under the Article 8184 of the Civil Code, he had the right to keep possession of the carriage until payment of the price of repairs, has excepted to the charge of the Judge, who instructed the jury that defendant had no such right, but that it should have been delivered up immediately on demand, and that the jury consequently were bound to render a verdict in favor of plaintiff for the carriage, and for such damages as they might consider he had suffered by its detention.

We think the court erred in charging the jury, that defendant had no right to detain the carriage until payment for the repairs was made. The right necessarily results from the second paragraph of Article 3184 of the Civil Code, which expressly accords this privilege to “the debts of a workman or artisan, for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession.”

This rule — the artisan’s droit de retention — is derived from the Roman Law, (See Yoet cited Trop. Priv. 'et Hyp. vol. 1, No. 264,) and is analogous to the particular lien given in like cases by the common law, which their writers define to be “ the right to retain the property of another for a charge on account of labor bestowed upon it,” (2 Kent Com. 634,) which right, as has been held by their courts, continues while the possession is retained, but is lost by a voluntary surrender. Holly v. Hungerford, 8 Pick. 73. Moore v. Hitchcock, 4 Wend. 292.

In Jordan v. James, 5 New Ham. 88, it was held that the possession of the object on which the li.en is claimed to operate, is the very essence of the lien. It was necessary for the plaintiff before demanding the possession of his carriage judicially, either to have paid the charge for repairs, or, in case he deemed it excessive, to have made to the defendant a tender of such sum as the repairs were reasonably worth, and the Judge should so have instructed the jury.

We must not be understood as intimating that the law accords no other remedy to the artisan, than that which results from the right of retention, or that the exercise of this right precludes the artisan from enforcing his privilege by a sale of the thing, as in other cases of privilege. The two remedies may exist together, and are not inconsistent with each other, and a decision of that question is not necessary in the present case.

We are further of opinion, that the Judge erred in charging the jury that, “ inasmuch as defendant in his answer, had not expressly claimed his privilege, the jury could not take into consideration the question of privilege at all.” The reasons assigned by the court might perhaps have warranted the rejection of testimony to establish these facts, on the ground that, not being alleged, they might be a surprise to the plaintiff; but this omission in the pleadings has been cured by the reception, without objection, of testimony fully establishing all the essential circumstances deposed to. In the case of Powell v. Aiken & Gwinn, 18 La. 328, it was hold, that a party who suffers evidence to be introduced without opposition or objection, although contrary to and beyond the allegations contained in the pleadings, is bound by its effect.

The record, moreover, furnishes abundant proof that the evidence could not have been a surprise to plaintiff; the principal facts established by it having been detailed in a letter to defendant of the 10th of September, written the day after the institution of his suit, and afterwards affirmed by his own witness in reply to direct interrogatories and in defendant’s letter to plaintiff, both of which letters were offered by plaintiff. Ory v. Winter, 4 N. S. 277. Frierson v. Irwin, 5 An. 531. Waterman v. Gibson, 5 An. 673.

The conclusion to which we have arrived in referrence to the charge of the Judge, renders it unnecessary for us to examine the bills of exception taken by defendant’s counsel to the admissibility of certain evidence objected to by him, but received by the court.

It is therefore ordered, adjuged and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment in favor of the defendant as in case of nonsuit; that the costs of both courts be paid by the plaintiff and appellee.

G. Gayarte,

for re-hearing:

It is true that Art. 3184 says, that a workman has, for repairs done, a privileged claim on the object so repaired, when in his possession.

But, in the very next Article, 3188, the Legislator has declared in the clearest terms, that privilege gives no right of detention; that this right must originate from something more than a privilege, and that it is actually more than a privilege.

What was granted in Art. 3184 ?• — a mere privilege founded on a mere contingency — not the right of detention, which is more than a privilege ; and not the right to compel payment extra-judicially, which is infinitely more than the right of detention as guaranty or security, until payment can be enforced judicially.

This appellee begs leave respectfully to refer the court to said Article 3185 of the Civil Code, but to which the attention of the court was not invited with sufficient clearness — no doubt through the appellee's fault — and on which the verdict and judgment in the court below rested altogether.

Art. 3185 says : “ The right which the lessor has over the products of the estate, and on movables which are found on the place leased for the rent, is of a higher nature than mere privilege. The latter is only enforced on the price arising from the sale of movables to which it applies. It does not enable the creditor to take or keep the effects themselves specially. The lessor, on the contrary, may take the effects themselves and retain them until he is paid.”

Appellee further invites the court to the examination of the following considerations :

Art. 3152, Civil Code, says: “ privilege can be claimed only for those debts to which it is expressly granted in the Code.”

Therefore, if privilege cannot be presumed, it follows that the right of detention, (which, according to Art. 3185, is more than a privilege,) can much less be presumed, and must be specially given.

Art. 3184, relied on by defendant, gives, it is true, and in specific terms, a privilege to the workman, but no right of detention — which is not the consequence of privilege, but more than a privilege, according to the express declaration contained in Art. 3185. What is more than a privilege cannot be a consequence of it. If it is more than a privilege, it cannot be implied as proceeding from it, for the obvious reason that, when two things are of different dimensions, the one which is larger cannot be supposed to have been contained in the smaller.

But if our Civil Code says, that no privilege can be presumed, and that it must be specially given, the next question is, what is a privilege ? — not according to the Roman law, or to the common law, but according to our Code, which permits none to be presumed, and which recognizes the existence only of such as it grants and defines. It is therefore of no consequence to ascertain what privileges or liens were granted by the Roman law, or the common law, when our Code has spoken on the subject. Our Code refers to its own definitions for what it grants, and not to other systems of jurisprudence.

But what is a privilege according to the Code of Louisiana? Is it anything like what is understood as such by those who have studied the Roman law ? Or is it what is called a lien at common law ? Is it the right of detention as guaranty? Is it more than that? Is it the right of detention to compel payment? No, for Art. 3153 of the Civil Code, defines what a privilege is, and says: “ Privilege is a right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have mortgages.”

This is all that a privilege is in Louisiana, whatever it may be in those countries where the Roman law and the common law prevail, unless something be added to it by some other provisions of law, as in a few cases in which that addition is made, in special and guarded terms.

If Art. 3184, when granting privileges to the above mentioned creditors, had conceded, as a necessary corollary, the right of detention, where was the necessity of granting such a right, in a special form, in the subsequent articles I have quoted ? The inevitable inference seems to be, that the framers of the Civil Code meant that Art. 3184 should give no right of detention, but a mere privilege, such as is defined in Art. 3153, and conferring no more rights than those therein mentioned. It scorns also, that the omission oí granting to the workman or artisan the right of detention, when the like was subsequently superad-ded to privilege by the legislator, in favor of certain creditors to whom privilege had also been granted in said Art. 3184, shows that the legislator intended to confer no such right on the workman or artisan. But, not satisfied with having carefully abstained from using any words of doubtful import, and, as if he anticipated, however, a possible misconstruction of Art. 3184, the legislator said, in the very next Article, 3185, that privilege gives no right of detention' — ■ and that the right of detention is more than a privilege.

I respectfully suggest that the above article means only this : That certain creditors therein mentioned have, in virtue of the privilege granted to them and defined In Art 3153, the right to be paid in preference to other creditors, whether or not the articles on which they have a privilege are in their hands: but that an exception is made, in relation to the artisan, who has a right to be paid in preference to other creditors only as long as the article on which the privilege exists continues in his hands. It is a diminution — a curtailment of the privilege granted to the other creditors — and not an enlargement of it— not something more than a privilege — not the right of detention as security' — • and much less is it the right of detention to compel payment extra-judicially, as the court supposes; and if it be an extension of privilege, it is only an extension of what was granted. And what was granted in said Article 3184 ? Why — no more than the right of being paid in preference to other creditors— and not the right of detention — not the right of enforcing payment for an unli-quidated claim against the owner of the object detained — which is a right of a different nature — nay—which far from being a right, would be a monstrosity. Such a thing is nowhere granted to a workman either by our Code or by any of our statutes.

In conclusion, I humbly beg leave to call the attention of the court to the following considerations:

That the right of detention forcibly and inevitably confers a privilege; but that privilege does not confer the right of detention;

That the right of detention, which is granted in certain cases merely as a security for debt, does not give impliedly the right to compel payment extra-judicially;

That according to the express will of the legislator, privilege is never to be inferred; and that, consequently, much less is the right of detention to be presumed. What shall I .say of the right assumed by a creditor to compel payment without resorting to a court of justice!

Re-hearing refused.


author: Buchanan, J.

text:
    J. Cantereau v. Lacaze and Lewis, Sheriff.
    A purchaser cannot acquire title to property pending an action to subject the property to the claim of another.
    0. 0., 2428.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Tissot, for plaintiff and appellant. Breaux, for defendant.
   Buchanan, J.

(Voomiies, J., absent.)

In Sept., 1847, the defendant, Laeaeej sold to one Duelos a vachery, etc., for $2200. The note given for the price, not having been paid at maturity, suit was instituted and the property which had been sold, was, on the 23d May, 1848, sequestered. On the 30th of the same month, one Delamaire, the son-in-law of Duelos, intervened and claimed to he the owner of the property sequestered, under a sale from Duelos, under private signature, dated April 11, 1848. On the 16th June, judgment was rendered in favor of plaintiff for the sum claimed, and the sale to Dela/maire, the intervener, declared a simulation. Previously to this, however, (23d March, 1848,) Belamaire sold to one Fontaine by public act.

The judgment in favor of Laeaze not having been satisfied, he instituted a re-vocatory action against Duelos, Belamaire and.Fontaine, on the 9th March, 1839, to annul the sales of Buelos to Belamaire and Belamaire to Fontaine as fraudulent, and to subject the property to his judgment. The sales were annulled and the property declared to belong to the defendant, Duelos. Pending this suit, (30th March, 1849,) Duelos again sold the property in question to John Gantereau, who, by virtue of the title thus acquired, has instituted the present suit against Laeaze and the Sheriff for the recovery of the property and for damages resulting from the alleged wrongful seizure, made under the judgment last referred to.

The defence is that this property still belongs to Duelos,, plaintiff’s vendor, and that the pretended sale was fraudulent and made to defeat his claim.

Of this opinion was the Judge of the District Court, who in giving judgment in favor of the defendant, declared that “this last bungling contrivance of Bu-elos, to defeat his creditor, must share the fate of the previous ones.'”

That the sale was made to plaintiff by Buelos for the purpose of defrauding ■the defendant, is clearly established. "Whether the plaintiff participated in the fraud, or had knowledge of it, need not be enquired into. The title under which he claims was acquired pending defendant’s action against his vendor to .subject the property to his claim. Under these circumstances an alienation cannot be made to the prejudice of a plaintiff’s right. C. C., 2428. Long v. French, 13 L., 260.

Judgment affirmed.


author: Slidell, C. J.

text:
    Succession of J. C. Boone.—A. C. Cole v. N. F. Boone et als.
    The direction of the testator in his will, that his property should be divided in kind among his forced heirs, that the portion going to his grand-son should be paid him by his co-heirs in money, and that the property contained in his lot be transferred to them in proportion to the amount they contribute to its purchase, is not legally binding..
    APPEAL from the District Court of the parish of West Feliciana, Sterling, J.
    Z7. B. & B. Phillips, for Mrs. Cole and husband.

      Cyrus Bailiff, for W. S. Boone, appellant,
    cited C. C., 1482; Baikal v. Baikal, 4 A. R., 501.
   Slidell, C. J.

The only matter presented for our consideration in this cause is so much of a decree of the District Court in the matter of the succession of John C. Boone, as directs the sale of the lands and slaves which fell to the lot of a minor grand-child in partition, on sums to be fixed upon the advice of a family meeting.

By the will of the deceased, he had directed a partition, in kind, to be made among his forced heirs, and there was a clause in the will in these words: “It is my will, and I hereby so order and direct, that the portion or amount, which may bo coming and due at the time of said partition to my grand-son, William. Sydney Boone, shall be paid him by his co-heirs, in money, and that the property contained in his lot be transferred to them in proportion to the amount they contribute to its purchase.” The lot which foil to him in the partition consisted of a tract of land containing 55J acres, three slaves and movable property to the amount of $409 19.

The tutrix expressed the opinion that it would be more for the interest of the minor to preserve the property in kind, and contends that the testator could not direct such a disposition of the share of his forced heir.

The will directed a partition in kind, and it has been so made. The co-heirs of the minor, William Sydney Boone, who are also forced heirs, have not thought proper to purchase the lot which fell to him in partition, nor is his tutrix willing to sell it. Under the principles of our Code and Jurisprudence regulating the subject of forced heirship and the legitime, wo do not think the direction so to purchase and to sell, was legally binding. And it will also be observed that the decree of the District Judge, which seems to have been intended as a compliance with the will of the testator, is by no means a compliance. Eor it orders a sale generally, whereas the idea of the testator was, that the share of the grand-child should be taken by the other forced heirs only, they paying him in money.

Aside from the will, the decree is clearly irregular. Eor the Code provides that the immovables of a minor shall only be sold on the advice of a family meeting, declaring that such sale is of absolute necessity or of evident advantage to the minor. The decree in the present case submits nothing to the family meeting but the recommendation of the terms of sale. _See Code, Art. 334.

It is therefore decreed that the clause of the judgment of the District Court which orders that the lot of the minor, William Sydney Boone, be sold on terms to be fixed by the advice of a 'family meeting, be stricken from said judgment; the costs of appeal to be paid by the succession.


author: Slidell, O. J.

text:
    E. W. Tegart v. T. C. McCaleb.
    A tutor is only bound to act with reasonable diligence and with good faith in prosecuting suits for his minor. And where he employs counsel, he will not be bound, although, if it had been more skillfully prepared, an opposition, in which the minor was interested, would have resulted more favorably to. his interest.
    It is not a sufficient reason for imposing upon the tutor expenses which appear to have been incurred by him in good faith, under advice of counsel, that they did not result to the benefit of the minor.
    APPEAL from the District Court of West Feliciana, Sterling, J.

      Ratliff, for plaintiff and appellant. U B. & K Phillips, for defendant.
   Slidell, O. J.

(Voorhies, J., absent.)

The plaintiff sued his tutor, MeOaleb, for an account, and obtained a judgment against him for $1042 32, from which the plaintiff has appealed and contends he is entitled to a larger balance.

The main point urged by the appellant is his alleged right to hold the defendant responsible for not having obtained a larger judgment for his ward against the succession of Story, who preceded Me Caleb in his tutorship. The circumstances were as follows: Patricio Tegart, the father of plaintiff and Joseph Tegan't, died in 1836, and Edward Story was appointed tutor of the two minors. Story died in 1843, and McCaleb was appointed tutor in 1844. He instituted, with reasonable diligence and with the professional aid of Messrs. Bowman & Ma/yo, attorneys and counsellors at law, a suit against the administrator of Story's estate to compel an account of the tutorship. An account being filed, McOaleb, by his attorneys above mentioned, made an elaborate opposition, which resulted in amendments by the Judge, and a judgment in favor of Me Caleb, as tutor of the plaintiff and his brother, for an increased sum, to wit: $5230 G2. McOaleb did not appeal from this judgment, and made efforts to collect it. His diligence in collecting did not, however, appear sufficient to the District Judge, who therefore held him in this suit personally liable for its amount. But the plaintiff is not satisfied with this measure of responsibility, and says McOaleb could, by a proper opposition, have obtained a judgment for $7450 34 against Story’s estate. This result, he argues, would have been attained by a different system of charging interest to the late tutor, and by obj ecting to Story’s taking the amount of the annual expenses of the wards out of capital, when it should have been taken out of interest, according to an interest account properly stated, with reference to cash funds received, and that ought to have been received. An examination of the account of tutorship rendered by Story’s administrator, of the opposition thereto filed by Messrs. Bowman & Mayo, as attorneys of McOaleb, and of the proceedings and judgment thereon, leads us to ' the conclusion that an opposition more skillfully prepared, especially with reference to principles of law enforced in the more recent authorities on the subject of tutorship, would probably have resulted in‘a judgment against Story’s succession more favorable to the minor’s. But this would not necessarily be a just test of the defendant’s responsibility. The question should rather be, has the tutor acted with reasonable diligence and good faith in that suit for the minor P Has he acted “as a prudent administrator?” O. 0., 327. This, we think, he did. He employed licensed attorneys and counsellors, whose good standing is not questioned, to prosecute the suit for an account; it does not appear that there was any lack of diligence with regard to any assistance he could be expected to render in the way of preparation of evidence and such other matters, in which a client could be expected to aid his attorneys in his own litigations; and if for want of greater acuteness on the part of the attorneys in their proceedings and argument, or from erroneous conclusions on points of law by the Judge, the result has been a smaller judgment in favor of the minors than the rigor of the law would have sanctioned, we do not think the burden should fall on the defendant. See Baldwin v. Bank of Louisiana, 1 Annual, 13.

This disposes of the main question in this cause, the reconsideration of which seems to have been the principal object of counsel in prosecuting this appeal. With respect to other objections made to details of the account, an examination of the evidence has not satisfied us there is error authorizing a reversal. Several items are disputed which were for expenses incurred in holding family meetings and like proceedings. It is not a sufficient reason for imposing upon the tutor these expenses (which appear to have been incurred in good faith, under advice of counsel) that they did not ultimately result to the benefit of- the minor.

There was a piece of land which appears to have been acquired by McOaleb for the benefit of the minors, in part settlement of the claims on Story’s estate. This acquisition the plaintiff repudiated. As the judgment below allowed him to do so, there should have been a provision in the judgment recognizing the title of this tract, quoad, the plaintiff’s share, to be in the defendant. The ap-pellee has, in his answer to the appeal, prayed an amendment to that effect, to which amendment he is entitled.

It appears He Caleb has died since the appeal, and an appearance has been made by his representative, &c.

It is therefore decreed that the judgment of the District Court be so amended as to declare the interest of said plaintiff in the tract of land of 738 arpens, acquired in his behalf by said MoCaleb, in his capacity of tutor of said plaintiff, to have vested in said HoCaleb individually, and passed at his death to the said HoCaleb’s succession, and that so amended, the said judgment bo affirmed, and be binding upon the succession of said MoCaleb, represented herein by Mrs. Lucinda HoCaleb, administratrix thereof, and upon the said Mrs. HoCaleb, as surviving widow in community, and also as tutrix of the minor children of the said deceased. Costs of appeal to bo paid by appellant.


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    M. Oppenheim & Co. v. M. Loovis et als.
    A fictitious partnership entered into by a debtor to cover his property, will not prevent a creditor from seizing and selling under execution the interest of such debtor in the stock of goods.
    APPEAL from the District Court of the Parish of East Baton Rouge, Burke,

    J.

      Lacey, for plaintiff and appellant:
    Your honors will bear in mind that the question presented in this case comes before your honorable Court upon a motion to dissolve upon the face of the papers: consequently the fraud so strongly referred to in the argument before the Judge a quo cannot for a single moment enter into the mind of this Court, and your honors will and are bound to decide the matter upon the allegations of the petition. These allegations, each and every one of them, must for present purposes be considered as based upon truth. When the cause comes before your honors upon the merits it may be viewed in a different light, but there is no discretion as the case is now presented. It is alleged in the petition that Michel Oppen-heim and Henri Cerf formed and entered into a copartnership for the purpose of trading and doing a dry-goods business in the town of Baton Rouge ; that the goods, wares and merchandize and the other articles found in the store occupied by them, are the property of, and belonging to, the said copartnership of H Oppenheim & Co. and do not belong to either of the partners individually ; and further that Martin Loovis, under and by virtue of a fi. fa., issued in a suit wherein said Oppenheim alone is defendant, has seized upon two-thirds of the entire stock of goods, wares and merchandize in the store of H. Uppenhei/m & Oo., and will proceed to sell the same unless enjoined.
    It may not bo amiss to state, en passant, that the validity of the copartnership, which is taken for granted upon a motion to dissolve upon the face of the papers, is also indirectly conceded by the defendant in injunction in the seizure which he has made; he seizes two-thirds interest in the goods, &c., the precise portion of Oppenheim's rights as fixed by the article of copartnership.
    In this state of the case, nothing but one single isolated legal question is presented for the consideration of the Court, viz: could Martin Loovis, the individual creditor of one of the members of the firm of M. Oppenheim & Co., seize and sell under a fi. fa., issued against said Oppenheim any or all of the assets belonging to such copartnership, or the two-thirds or any interest of said Oppen-heim in the partnership assets ? Or must he await the liquidation of the partnership ?
    These questions have been so maturely considered and so pointedly answered, the former in the negativo and the latter affirmatively, in the case of Smith v. UeMieken, 3 An., p. 322, 323, that it would be worse than a work of supererogation to do more than to refer your honors to the decision in that case, and the authorities there quoted.

      Judge Slidell, after a very careful and able examination, says: “from these principles, wo think it fairly results that the individual creditor of a partner cannot seize a particular asset, the property of the partnership, nor even the so called interest of the partner in it (the parnorship) under the pretext that his debtor has an undivided interest in it. He must await the liquidation of the partnership.

      F. G. & P. R. Morgan, for defendants:

      Oppenheim & Cer/sued out an injunction on the grounds: “that an individual creditor of said Oppenheim cannot seize under a fi. fa. issued against him any or all the assets belonging to the said copartnership, nor the two-thirds, nor any interest of said Oppenheim in the partnership assets; that the said Looms and the sheriff aforesaid must await the liquidation of the partnership.”
    1. There is no error in the ruling- of the Court, dissolving so much of the injunction as related to the discharge of the keeper or guardian appointed by the sheriff. 6 An. 548. 8 N. S., 662.
    2. The levy having been made “on the two-thirds of the entire stock of goods, wares and merchandise in the store of the firm of Oppenheim S Go., it being the interest of said Oppenheim in said firm,” must be maintained.
    The partnership property is liable to the creditors of the partnership, in preference to those of the individual partner; but the share of any partner may, in due course of law, be seized and sold to satisfy his individual creditors, subject to the debts of the partnership ; but such seizure, if legal, operates as a dissolution of the partnership. L. C., 2794.
    We contend that the levying of the writ of fieri facias dissolved the partnership, and if there were any creditors of the partnership, they could come in by way of third opposition, and claim that the proceeds of the sale be retained in the hands of the sheriff, to be distributed according to law. C. P., 395 et seg.

    We will now return to the examination of our second proposition.
    In Gucullu v. Manzenal et al., 4 N. S., 183, the late Supreme Court held that partnership property may be attached in a suit against one of the members of a firm.
    In the case of Groft v. McKneehj, 1 L. R., 101 “ Until a failure, or insolvency, the right to seize the undivided portion or interest in partnership property of one of the partners, cannot he doubted; and in the present case there is no evidence of pankruptcy.”
    Although this question did not arise directly in the case of Priestly et al. v. Bisland et al., 9 R. R., 425, yet the same principle is at the foundation of the opinion of the Court. In that case one partner caused the interest of another to be seized and sold. The right to do this seems to be conceded — at least it is not contested, and the only consequence, say the Court, is, that, as the seizing partner must be presumed to know the state of the partnership affairs, he took the property subject to the privilege of creditors of the partnership.
    In the case of the Rank of Tennessee v. McKeage, 11 R. R., 130, after citing the Art. 2794, and 11 L. R., 2C2, and 12 L. R., 370, the Court proceeds:
    “From these well established principles, it results that the interest of a partner in a particular thing or piece of property, belonging to the firm cannot be seized or attached for his individual debt. An individual creditor cannot, under an execution or attachment, have the half or a third of a piece of goods or other article, belonging to a partnership, seized. He must have the whole share or interest of the indebted partner seized, and thus dissolve the partnership, and take the share after the payment of the partnership debts. There is a community of _ interest in the property as well as in the profits, and neither is separately liable to seizure. The interest of a partner in the firm is a distinct thing, and must be taken as a whole.”
    In Nelson v. Gamier et al., 3 A. R., 456, the Court say : “ The interest of a partner in a commercial firm may be seized under execution (Civil Code, 2794) and the fact that the firm itself is liable for the debt, does not appear to us as debarring the creditor from such seizure.”
    And in the same case, on re-hearing :
    “The interest of each partner in the joint concern, whatever it may be, must be made up of the assets of the partnership. Those assets, when not under a general course of administration for the benefit of all the creditors, may be seized by those who have judgments.”

      In the ease of John L. Morris v. the Bank of Mobile, 5 A. R., 538, this Court, after pointing out what course might have been pursued under the 641th Art. of the Code of Practice, and 245701 Art. of the Civil Code, proceeds: “But they might also be seized in the same manner as the share in a private partnership under the Art. 2794 of the Civil Code, by seizing the interest of the partner in the assets, and notifying the firm.’1
    In the case of Thompson, ex’r., v. W. 0. Mylneetal., 6 A. R., 80, we find the following language:
    “ In fact the creditor can only seize the partner’s interest in the partnership. He cannot seize any particular thing belonging to the partnership, or acquire any rights upon it. Now, the interest of a partner is what belongs to him after a full settlement with his partners, according to the terms, spirit and intention of the contract of partnership and all agreements incidental to it.”
    But it was contended in the District Court, and probably will be here, the decision of this Court in the case of Smith v. McMichen, 3 A. R., 320, has overruled all the previous decisions. It becomes necessary, therefore, to examine that case, although several of the decisions we have quoted are subsequent to it. Eor the purpose of the present case, it will only be necessary to advert to the following portions of the decision in that case: “Eor the further consideration of this question, which, propounded in its simplest form, is, whether a creditor of a partner can seize a particular asset of the partnership, or even what he chooses to call the interest of his debtor, in a particular asset, it is necessary to consider briefly the nature of the contract of the partnership, and the consequent character of the partnership property, and the rights of its members.”
    “ Erom these principles, we think it fairly results that the individual creditor of a partner cannot seize a particular asset of the property of the partnership, nor even the so-ealled interest of the partner in it. He must await the liquidation of the partnership, and in the meanwhile, lay hold of the residuary interest of the partner in the partnership generally, by levying a seizure in the hands of the partnership or the person charged with its liquidation and representing it.”
    We have italicised the words particular asset, because we consider that they afford a key to the whole case, and we admit without hesitation that a particular asset of a partnership cannot be levied upon and sold to pay the debt of an individual partner, but such, as we have already shown, is not our case.
    On this subject we would also refer the Court to Story on Partnership, secs. 261, 262, 263 and 264.
   Buchanan, J.

On the 11th November, 1851, Martin Loonis instituted suit in the District Court of East Baton Rouge against Michael Oppenheim, a merchant, residing in that parish, claiming of him the sum of $1532 24, the amount of sundry notes past due and protested, and recovered judgment in said suit on the 26th January, 1852.

Pending the suit, to wit: on the 23d Dec, 1851, Oppenheim, the defendant, by public act before Samuel Skoljield,, Recorder of the parish of East Baton Rouge, formed a partnership in business with Henri Oerf, in which contract, after premising that “ the said Oppenheim did declare and say that, whereas, the said Henri GeifYuas for three years past acted in a faithful and honest manner as his clerk, and whereas the said Oppenheim is truly indebted to the said Oerf for his wages for a portion of that time, and whereas the said Henri Oerf has promised and agreed, and by these presents does promise and bind himself to bring into the copartnership herein formed, his influence and good will, and stipulates that, if required by the said Oppenheim, he will act as the out-door partner simply and solely in peddling the dry-goods and merchandize which may belong to the copartnership,” the contracting parties agreed upon the following terms and conditions:

1st. A partnership for buying and selling goods, wares and merchandize in the city of Baton Rouge, was formed, under the firm of M. Oppenheim. & Go.

2d. The said partnership to endure for the term of three years from the date of the 'contract, and the interest of the partners respectively to he one-third for Gerf and two-thirds for Oppenheim.

3d. The partnership to extend to and over all the goods, wares and merchandize of every kind, name and nature now in the store, kept by said Oppenheim and known by the name of the “ Golden Bee Hive,” and to the profits which may hereafter accrue or losses to be sustained.

4th. As soon as possible an account of stock to be taken, and Gerf will furnish his notes payable at one and two years to Oppenheim for the one-third of the original cost of the said stock.

On the 14th February, 1852, Loovis issued a fieri facias on his judgment against Oppenheim, and on the 16th of the same month the sheriff seized under thatyZ. fa. “ two-thirds of the entire stock of goods, wares and merchandize in the store of M. Oppenheim & Go., at the corner of Lafayette and Laurel streets, in the city of Baton Rouge, it being the entire interest of Michael Oppenheim in said stock of goods, waxes and merchandize.” Further proceedings under this seizure were enjoined by the plaintiffs herein, Michael Oppenheim and Henri Gerf who allege in their petition that the seizure by a creditor of Oppenheim, individually, of two-thirds, or of any interest that said Oppenheim may have in the partnership assets of Oppenheim & Go. is contrary to law.

The perusal of the contract of partnership, in connection with the dates of the proceedings above referred to, makes it quite apparent that the whole partnership is a sham, a flimsy device to cover the property of Oppenheim from the pursuit of his creditors.

Judgment affirmed.


author: Ogden, J.

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    S. H. Wood v. A. Hennen et als.

      A purchase made at a Sheriffs* sale by one whoso unauthorized conduct was calculated to defeat the rights which the plaintiff was seeking, by legal means, to enforce on the property of his debtor, will be set aside.
    APPEAL from the District Court of the parish of St. Tammany, Watterston, J.

      Jones & Ghilders, for plaintiff. A. Hennen and Durand, for defendants and appellants.
   Ogden, J.

The appearance and interference of Hennen&tthe sale of the property which the Sheriff was about to sell at the instance of Mrs. Wood, the intervenor, as well as of Buckley x& Holt, to satisfy their mortgage claims against Doten, and his representations at the sale in regard to the tacit mortgage on the property in favor of Durand's Wife, were unauthorised and calculated to defeat the rights which the plaintiff was seeking, by legal moans, to enforce on the property of her debtor. With whatever view it was done, the unauthorized action of the defendant had the effect of deterring other persons from purchasing, and the adjudication to him of the property, for the small sum of ten dollars and five cents, which cannot be considered a serious price, was properly set aside by the judgment of the court below. See Liles v. Rhodes, 7th L. R. 91. As the defendant, Alfred Hennen, does not claim in his answer that his title should be maintained, it is unnecessary to review all the evidence which was adduced on the trial, to establish a fraudulent combination between him and Durand and Wife, to prevent the property from being sold for a fair price. The only question is whether he can be rendered liable for the debt which the plaintiff was seeking to enforce, on the ground that by his wrongful act, the plaintiff was prevented from reaping any benefit from the seizure of the property of her debtor. The plaintiff has asked an amendment of the judgment of the court below to that effect. Such a demand is inconsistent with the demand to set aside the sale. The plaintiff ought to have made her election as to which remedy she would pursue and having obtained a judgment on her prayer to that effect, annulling the sale, she can no longer seek a relief inconsistent with that which has been granted to him.

Mrs". Durand having been made a defendant in the suit, claims in her answer, that the mortgage declared by her husband in the sale to Doten, to exist in her favor for §4000 should be enforced on the property. She has given no evidence to establish any claim against her husband, except his acknowledgment which can confer no right in her favor against the creditors.

We do not think that any of the irregularities which it is alleged, existed, in the prosecution of the order of seizure and sale, can be urged as matters of defence in this suit. Doten, against whom those proceedings were conducted might set up such defects, but the defendants in this suit cannot. An amicable demand was not necessary, as the object of the suit was to set aside a sale which had been improperly made in the course of judicial proceedings, duly and regularly commenced.

If it had been a case where an amicable demand was necessary, the only costs from which the defendant could be relieved would be those incurred previous to filing his answer. The judgment of the court below, we think, ought not to be disturbed and it is affirmed with costs.


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    B. Haynes, Liquidator, &c., v. W. D. Carter and Wife.
    When the Act'of incorporation contains no provision for the liquidation of the affairs of the company, and the charter has been forfeited, it is competent for the Legislature, by subsequent enactment, to make such provision.
    The plaintiff held the appointment of the Governor, of liquidator of the Clinton and Port lEudson Railroad Company. An exception to the competency of the petitioner to hold the office was taken. 'Held; The court will not go behind the appointment, and upon a collateral issue scrutinize the qualifications of the person appointed.
    In an action by the liquidator for a contribution to pay the debts of the company, against third possessors of property mortgaged- for the payment of the stock, the amount, assumed by him, necessary to be contributed, by each share of the capital stock, need not be fixed with mathematical precision, and can only be enquired into on a trial of the merits.
    APPEAL from the District Court of the parish of East Feliciana, Sterling, J.

      Winter & JPuqua, for plaintiff. Dunn & Merrick, for defendant and appellant.
   Buchanan, J.

This is a suit brought in pursuance of a decree of the District ' Court, affirmed by the Supreme Court, in the suit of the New Orleans Gas Light Company v. Bythell Haynes, liquidator, 7th Ann. Rep. The defendants are third possessors of land mortgaged for the security of one hundred and one shares of the capital stock of the Clinton and Port Hudson Railroad Company. Petitioner alleges that a contribution of three-fifths of the par value of the stock is required for the purpose of meeting debts of the insolvent corporation by him administered; which contribution amounts, in regard to these defendants, to six thousand and sixty dollars, and for that sum he asks that the land held by defendants be sold for cash. The defendants, plead three peremptory exceptions, the first of which having been sustained by the District Court, the plaintiff has appealed.

The exceptions are:

1st. Unconstitutionality of the different Acts of the Legislature in relation to the liquidation of the affairs of the Clinton and Port Hudson Railroad Company.

2d. That plaintiff is without the legal capacity to act as liquidator of the company, being now, and at the date of his appointment, a debtor of the Clinton and Port Hudson Railroad Company.

3d. That the action is premature, no action having been filed by plaintiff of his administration; which is alleged to be necessary for the purpose of ascertaining the amount for which the several stockholders are liable to contribute. ‘

Upon the first exception, the argument of defendant is, substantially, that the charter of the Clinton and Port Hudson Railroad Company is a contract between the State and the corporators: that it embraces no provision relative to the liquidation of the affairs of the company in the event of its dissolution by forfeiture or otherwise, and neither actually nor constructively vests any right in the State to provide, by subsequent legislation, for its liquidation. That, consequently, any such legislation impairs the obligation of a contract.

This conclusion does not seem to us to follow from the premises. Granting that the charter of the corporation was a contract between the State and the corporators, the contracting parties must be deemed to have had in view the general law of the State in relation to corporations, contained in the Civil Code. By that law (Article 438,) corporations are bound to the fulfillment of obligations contracted by them in conformity to the purposes of their incorporation, under penahy of forfeiture. That case has here arisen; for the allegations of the petition are to be taken as true, for the purposes of the exception. The Clinton and Port Hudson Railroad Company has forfeited its charter; and it is no violation of its fundamental compact that the State has, by subsequent legislation, supplied an hiatus or omission in the law, and ordained a course of proceeding, necessary to make Article 438 of the Code operative, and to protect the rights of the creditors, as well as of the corporators.

Thus, we see, that in section 5th of their charter, this corporation was authorized to borrow money for the objects of their incorporation, by the pledge of stocks or other security, and to issue certificates or other evidence of such loans. Acts 1833, p. 16. And the Act amending the charter, section 4, and following, authorizes the company to borrow $250,000 and to issue their bonds, bearing interest, and redeemable in capital at eight, fifteen and twenty years after date. Acts 1834, p. 115.

It certainly was not in the contemplation of the Legislature nor of the corporation, that those who should lend their money upon the faith of the bonds issued in conformity to these provisions of the charter, and upon the security of the property mortgaged by the corporators, would be remediless, in case of a failure to redeem the bonds at maturity, or to meet the interest as it accrued. The law being silent, however, as to the remedy, it was not only constitutional but obligatory upon the Legislature, to provide one when the corporation should be found in default. As long ago as 1839, it was decided by the Supreme Court, that the forfeiture which was the legal consequence of such default, could not be assumed as an'existing fact, by a debtor of a corporation in defence of a suit instituted by the corporation against him, but must he enforced by action at the instance of the State.

to the principles above expressed, and to have had for their aim that cardinal principle of law and of morals, “ surem cuique tribuere.” Atchafalaya Bank v. Dawson, 13 L. R. 497. All the Acts of the Legislature complained of as unconstitutional by defendants, seem to us to have conformed

Upon the second exception, we have been referred to the Act of Assembly of April 30, 1853, under which the petitioner was appointed liquidator, which declares (section 2d, page 265, Session Acts,) that the liquidator must not be a stockholder, debtor or creditor of the company. It is in proof that the petitioner purchased on the 1st May, 1849, and still holds land mortgaged to the Clinton and Port Hudson Company for the security of stock; that he is, in other words, in the same situation as the defendants in this suit. Admitting that the purchase of land encumbered with such a mortgage, made petitioner a debtor of the Clinton and Port Hudson Railroad Company; (on which point we express no opinion,) the objection cannot be raised in this form. It is not disputed that the petitioner has received an appointment of liquidator from the Governor,' and it would be no more proper and regular for us to go behind that appointment, and upon a collateral issue, to scrutinize the qualifications or the disqualifications of the petitioner for the office which he holds, than it would be, in a suit brought by a curator of a vacant succession against a debtor of the succession, to examine whether the appointment of the curator had been preceded by the advertisements required by the 1108 and 1109th Articles of the Civil Code.

Upon the third exception, the petitioner offered to prove that he had no funds in hand to distribute, at the time he commenced this suit; which evidence we think was erroneously excluded. The suit, as we have seen, was commenced in obedience to a judgment of this court pronounced in the suit of the Gas Light Company v. Bythell Haynes. We see no reason for doubting the correctness of that judgment. In carrying it into effect, the liquidator has assumed the amount necessary to be contributed by each share of the capital stock, to be three-fifths of its par value, in order to meet the liabilities of the corporation. This, like any other fact, may be traversed upon the merits, or the liquidator may be held to prove it under the general issue. We do not consider it to be properly a matter of exception. And to prevent a misunderstanding, we think it proper here to announce our conviction, that even upon the merits, the liquidator should not be held to establish with mathematical precision the amount of the contribution necessary, but it will suffice if he do so, approximatively. The mortgage assumed by the defendants, was a mortgage for the whole par value of one hundred and one shares of stock. To that extent their land was encumbered. The obligation of each mortgagor for stock is a distinct obligation, and can be enforced by the corporation or its legal representatives, by a distinct action. The mortgagor or third possessor of property mortgaged cannot complain at being sued for a less amount than that called for by the mortgage. His right will always remain, of looking to the stockholders or holders of property mortgaged for the security of stock, to be refunded pro ratft what he shah have been compelled to pay upon the mortgage.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that the exceptions filed by defendants be overruled and the ca,use remanded, to be proceeded in according to law; and it is further ordered and decreed, that the appellees pay costs of appeal.


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    L. Bestoso v. U. S. Mail Steamship Company of New York.
    Steamers are more easily managed than sailing vessels, therefore it is the duty of the masters of the former to adopt such precautions as to avoid collision with the latter; and, where a collision occurs, unless it be shown, on behalf of the steamer, that the accident was unavoidable, with due precautionary measures onits part, the loss will fall on its owners.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Z. Letour, for plaintiff. U. JET. Strawbridge, for defendant and appellant.
   Ogden, J.

From the evidence which is very conflicting, it might be considered doubtful whether the plaintiffs’ boat was moored in a proper place at the time of the injury; the testimony, however, preponderates on that point. The District Judge came to that conclusion, and we are not satisfied he erred in so doing in favor of the plaintiffs, as the defendants have not shown that the accident was Unavoidable with due precautionary measures on their part, we are of opinion that the loss should fall on them. It has been held that steam vessels are to be regarded in the light of vessels navigating with a fair wind, that the master having the steamer under his command, both by altering the helm and-stopping the engines, it is his duty to adopt suoh precautions as to avoid collision with sailing vessels. St. John v. Paine et al., 10th Howard’s U. S. R. 557. Newton v. Stebbin, lb. 586.

This principle is more obviously correct when applied to a collision by a steam vessel with a sailing vessel while moored at the wharf, because the duty of avoiding a collision is more easily performed by the steamer in such a case, than when the vessel she is approaching is under sail.

The judgment of the court below is affirmed with costs.


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    Mrs. T. Robertson v. C. H. Davis, her Husband.—Kelly, Conyngham & Co., Intervenors.
    The wife has no action against her husband for a dissolution of the community, unless she has rights and claims against him, which are in danger from his embarrassments or mismanagement.

      A note, given by the husband and wife, is not binding on the latter, unless it be proved that the consideration enured to her separate benefit.
    "Where the husband and wife each had a plantation at the time of the marriage, and the merchant kept the account of both plantations in the name of the husband, and the proof does not distinguish the items which relate to each, judgment will not be rendered against the wife.
    APPEAL from the District Court of the Parish of East Baton Rouge, Burle.

    J. J. M. Brunot and E. W. Robertson, for plaintiff. O. Ratliff and A. M, Bunn, for defendant and appellant, G. S, Laeey, for intervenors.
   Buchanan, J.

The plaintiff’s action is threefold:

1. Eor the administration of her paraphernal estate.

2. Eor a separation of property.

3. Eor a partition of the common property.

The Judge, by an order made immediately on the filing of the petition, gave to the plaintiff the administration and management of her paraphernal estate.

He also granted an injunction in acecordance with the prayer of the petition, inhibiting the defendant from disposing of the effects belonging to the community of acquets, until the further order of the court

In the progress of the trial in the court below, the plaintiff discontinued so much of her suit as demanded a partition of the common effects.

The plaintiff and defendant were married in 1849. Plaintiff owned at the time of the marriage, a sugar plantation in East Baton Rouge and slaves. Her husband had the administration of this paraphernal estate, with her consent, until the institution of this suit, in January, 1852. The right of the married woman to resume at aiiy time the administration of her paraphernal property, is ordered by Article 2364 of the. Civil Code. It has not been denied in the defendant's pleadings, nor is there any proof that the defendant ever refused to allow his wife to administer her paraphernal property. So far as that branch of the suit is concerned, the plaintiff’s object was accomplished as soon as the petition was filed, by the order of the Judge above mentioned.

As to the demand in separation of property, it is put in the petition upon the ground of the disorder of defendant’s affairs. There is no evidence in the record to support this allegation of the petition; and the law does not give to the wife an action against her husband for a dissolution of the community, unless she has rights and claims against her husband, which are in danger from his embarrass-. ments or mismanagement No such case is here presented, and the plaintiff’s action must consequently fail.

Kelly, Conyngham & Co. commercial firm in New Orleans, have intervened in this suit, alleging themselves to be creditors of plaintiff and defendant jointly and severally, of the community, denying the right of plaintiff to have a partition of the community property until the community should cease by the dissolution of the marriage, or until the debts of the community be paid; praying that the demand of plaintiff for a partition be rejected until the debts are paid, and that the common property be sold to an amount sufficient to pay interve-nors’ claim, and to be decreed the privilege of factors and furnishers of supplies on the crops and on the plantation. Intervenors exhibit an account current, showing a balance of $8434, which they claim with interest of plaintiff and defendant, in solidot. There was judgment against defendant in favor of the inter-venors in the District Court.- and as the correctness of the claim is admitted by defendant in tbis Court, there is no reason to disturb the judgment so far as he is concerned.

As regards the plaintiff we remark that a large portion of the claim of inter-venors is evidenced by a note, joint and several in its form, signed by plaintiff and defendant, in favor of intervenors, for the sum of six thousand dollars, dated February 18, 1851, and payable February 1st, 1852. • This note is not binding on plaintiff, at least without evidence that its consideration enured to her separate benefit. C. C., Art. 2412; 10 Rob., 68; 5 An., 495, 586. And the account altogether is not in such a shape as enables us to act upon it, as far as the liability of plaintiff’s paraphernal estate is concerned. The account current is headed as follows: “General C. S. Davis and wife, general account, in acc. current with Kelly, Gonyngham & Go.," The husband was owner of a cotton plantation at the time of the marriage, and the wife, as we hare already seen, of a sugar plantation.

The affairs of the husband and wife are blended together, and the evidence, that of the book-keeper, offered in support of the claim, does not pretend to distinguish those items which relate to each. It may be that the defendant will become a creditor of the plaintiff by paying the intervenors, but that will have to be the subject of future enquiry and settlement. The intervenors have clearly no right to a personal judgment against plaintiff in this action.

It is therefore adjudged and decreed, that the judgment in the main action be affirmed so far as it grants the plaintiff the administration of her parapher-nal estate, but that the judgment for separation of property bo reversed; the costs of said main action to be paid by plaintiff, except those of the filing of the petition and of the order thereupon, which are to be paid by defendant. And it is further decreed that the judgments upon the intervention be affirmed, without prejudice of the rights of intervenors and defendant, if any they have, against plaintiff. The costs of the intervention to be paid, one-half by defendant and one-half by the intervenors.

Lastly, that the costs of appeal be borne by appellee.


author: Ogden, J. (Voobhies, J., absent.)

text:
    Joseph Purl v. D. Miles et al.
    Where the quantity of land is not expressed in the title, it may be established by proof of the possession which the party has had under it. O. 0. 845.
    Parol evidence is admissible to establish the boundaries and limits assigned by the plaintiff himself, who was the vendor of both tracts. 0. 0. 840.
    To establish a title under a sale by virtue of a writ of Ji, fa.y no other part of the record need be produced, it being for the party questioning the validity of such sales, to prove by other parts of the record, the irregularities on which he relies to destroy the -presumption of onwiia rite acta.

    APPEAL from the District Court of West Feliciana. This cause was tried by a jury, before Sterling, J.

      0. Ratliff, for plaintiff and appellant. J. A. Patterson, and Brewer S Oollins, for defendants.
   Ogden, J.

(Voobhies, J., absent.)

The plaintiff claims a tract of land in the possession of the defendant Goolc, alleging that it forms part of a tract of 815 acres, which he, the plaintiff, sold to William D. Rea, on the 19th of December, 1837, and subsequently repurchased at a Sheriff’s sale, to satisfy his judgment against Rea for the purchase money. The defendant denies that the land he is in possession of, is embraced by the title acquired by the plaintiff under the Sheriff’s sale, and claims to derive his title from a sale made by the Sheriff under an execution issued on a judgment rendered in favor of the plaintiff in this suit against W. M. Christian. He further avers, that Christian bought the property from Bwgess Rióles, by a notarial act of sale passed on the 26th of December, 1839, and plead the prescription of ten years.

The plaintiff, in 1845, transferred to the defendant a judgment he had obtained against Ghristian, stipulating in the transfer that there should be no recourse or lien, if the purchase of the judgment by Goolc should be an entire loss. Under that judgment,' the defendant, Goolc, caused an execution to issue and purchased the land belonging to Christian, in satisfaction of it. In both the sales from Woles to Christian, and the adjudication by the Sheriff to the defendant, the land is described as containing 265 acres. In the former title, it is described as bounded above by the heirs of Brenton, and below by lands belonging to IF! D. Rea, with reference to natural objects to designate those boundaries, and in the latter as having a front of seven arpents on the river Mississippi. The tract of land subsequently purchased by the plaintiff, is described as containing eight hundred and fifteen acres, adjoining lands of Burgess Woles. As this sale to the plaintiff, under his execution against Rea, was made in 1850, long after the deed from Woles to Christian, and the Sheriff’s sale to Cools had been placed on record, and as it is shown by the evidence that Woles, Christian and Cools, had all been in possession of the land according to the boundaries of the title made by Woles to Christian in 1839, it would be inferred that the plaintiff, when he acquired the tract of Rea, described “ as adjoing lands of Burgess Woles,” bought with reference to the land then and now possessed by the defendant as the upper boundary. It is however alleged, that Burgess Woles acquired all the title he ever had, by a sale the plaintiff made to him on the 8th of August, 1838. On referring to that deed, we find an extremely vague and uncertain description of what was sold. Joseph Purl and wife sell to Bwgess Woles, land described as follows: “ One acre of land on the Mississippi river, being the upper part of the tract sold to this appearer on the 13th June, 1835, in the parish of Avoyelles, by Peter Leglise, and Tuning back forty acres. They further sell to said Burgess Woles, all that the said tract of land as above described contains over and above 1,055 acres, making it, not to be mistaken, one acre front, running back forty acres on the upper line, adjoining the land of Brenton's heirs, or lastly owned by them, and then all that said tract contains over and above said one thousand and fifty-five acres.” Woles was to have the land of Brenton's heirs as his upper line, a certain quantity of one acre front by forty in depth, and besides an uncertain quantity depending on how müch land there was in the whole tract purchased by Purl from Leglise. Afterwards, on the 29th May, 1837, the plaintiff sold to James S. Purl 200 acres, described as being “ the lower part of the land purchased by Joseph Purl of Peter Legliseand on the 19th of December, 1837, he sold to W. L>. Rea, 815 acres, described as adjoining lands of Bwgess Woles, and running down for compliment and adjoining below lands of James S. Purl, being the same tract purchased by said Joseph Purl of Peter Leglise.” It is shown by the testimony of Rea and of another witness, that when the last sale took place, the plaintiff pointed out to Rea, as the upper corner of the tract he was selling him, an oak tree, which he also said was the lower corner of the tract he had previously sold to Burgess Woles. At that time Woles was living on the land, and one of the witnesses states that the line from the oak tree ran near Woles' garden. The possession of Woles and those who after-wards derived title from him, as shown by this testimony, is not inconsistent with the written title from the plaintiff under which they held. The plaintiff did not think proper to produce the title of Leglise, by which it could have been ascertained exactly how much land Woles acquired by his purchase. We think the burden of proof rested on the plaintiff, who was the author of Woles' title to show, by the production of his own title from Leglise, the exact quantity of land derived by Woles, under the sale made to him by the plaintiff. The township map shows two surveys below the Brenton tract, which, together, contain an area of 1284 acres, and if the title from Leglise embraced both of these surveys, Woles would have had a right to exactly the quantity of land which he sold to Christian. When the quantity of land is not expressed in the title, it may be established by proof of the possession which the party has had under it. Art. 845 0. 0. Parol evidence was admissible to establish the boundaries and limits assigned by the plaintiff himself, who was the vendor o f both tracts. Civil Code, Art. 840. Guyoso v. Baldwin, 8 N. S. 660; and the objection taken by the plaintiff to the competency of Rea as a witness, on the ground that he had once been an owner of the land, and was warrantor of the title, was, we think, properly overruled. The defendant offered in evidence as muniments of his title, the judgment, writ oiji.fa. and Sheriff’s return in the suit of Joseph Purl v. W. M. Christian, which was objected to, on the ground that a part of the record could not be received, if the party against whom it was offered, required the production of the whole record. It is well settled, that to establish a title under a sale by virtue of a writ of fi. fano other part of the record need be produced, it being for the party questioning the validity of such sale, to prove by other parts of the record, the irregularities on which he relies, to destroy the presumption of omnia rite aeta. The evidence was properly received.

The verdict of the jury in favor of the defendant being in conformity with the views we entertain of the relative titles of the parties, it is unnecessary to examine the plea of prescription also relied on by the defendant.

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


text:
    H. Carl v. H. C. Young et al.
    A creditor can only proceed against his debtor’s debtor by citing him to answer interrogatories.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      ff. 8. lacey, for plaintiff and appellant. A. M. Dunn, for defendant.
   Slidell, C. J.

(Voobiiies, J., absent.)

Henry Carl, having been subro-gated to the rights of Bonner & Smith, upon a twelve months’ bond, signed by himself as security, and Eunice Lilly as principal, caused an execution to be issued. No property of Eunice Lilly having been found, the Sheriff seized the rights and credits belonging to her in the hands of Henry G. Young and Sa/rah Louden, and then the petition was filed in this suit, stating the seizure, alleging that they were indebted to Eunice Ca/rl in an amount more than sufficient to satisfy the writ, and asking judgment against them. To this mode of proceeding, the defendants excepted, on the ground that no interrogatories having been propounded to the defendants, the action would not lies. The exception was sustained and the plaintiff has appealed.

We find no error in the judgment. As a general rule, a debtor is .subject to the pursuit of his creditor, and not of the creditor of his creditor. To facilitate judgment creditors in the collection of their claims, the remedy of the statute of 1839 was given, and those who desire its benefit, must exercise the remedy in the manner provided by the statute, to wit, by citing the third person to answer interrogatories.

Jugment affirmed; costs of appeal to be paid by appellant.