text:
    Samuel G. Frierson v. Patrick Irwin.
    The court will discountenance the practice of bringing slaves to this State for the purpose of defeating the rights of property existing in them under the laws of the State from which they are removed.
    Where a title to slaves has been acquired by prescription in another State, that title will not be disturbed by the subsequent removal of the slaves to this State, and the prescription will be determined by the laws of the State from whence they were removed.
    He who pleads minority must establish the fact affirmatively.
    APPEAL from tile Second District Court of New Orleans. Lea, J.

      Elmore and King, for plaintiff,
    contended: This is an appeal by the defendant from a judgment against him for a slave named Sam, and for the value of the services of the slave from the time of judicial demand.
    The following authorities show that such an action can be maintained. C. P. 148,151. Also art. 7. 12 L. R. 415. 16 L. R, 414. 8 N. S. 621. 6 N. S. 674. C. C. 495, 3416. Roumage v Blalrier, 11 R. R. 107. Reynolds v. Swain, 13 L. R. 198. Campbell v. Armstrong, 1 N. S. 574.
    The evidence in the case is briefly this. In the year 1841, the plaintiff gave the Hon. A. P. Bagby $600 for the slave Sam, then described as being about sixteen years old. 4 L. R. 119. 1 Stnrkie on Evidence, 326. Sam was born the property of Bagby. The precise time at which he purchased Daphne the mother of Sam, is not shown; but Hamilton, one of the defendant’s witnesses, says, Daphne passed into the possession of Bagby after the death of Mrs. Yancey, and that she died in the year 1821. From that time Daphne always remained in the possession of Bagby until he sold her, and afterwards in the possession of his vendee.
    After the plaintiff had possessed Sam for several years under his purchase from Bagby, in August, 1843, he was stolen by one P. H. Delane, who sent him to New Orleans in charge of an agent, and had him sold at auction by Beard 8f Richardson, to the defendant, for the sum of $295. The plaintiff having learned that his slave was in New Orleans, came here and instituted the present suit for his recovery.
    Under the foregoing evidence, the judgment of the lower court was in his favor. The defendant sets up his title as derived from Delane, and contends that Delane was the owner of the slave. To support this defence he introduced a mass of evidence, which was all received, subject to all legal exceptions.
    The basis of the defendant’s title is a pretended marriage contract between Mrs. Delane, the mother of P. H. Delane, and Mr. Yancey, said to have been made in South Carolina in the year 1816. The proof of this contract rests solely upon a copy certified by a deputy secretary of State for the State of South Carolina. When asked if the said marriage contract was legally recorded, he answered, he could not tell, as the date of its recordation did not appear on his books.
    To give any effect to the certified copy of the marriage contract, it is necessary for the defendant to show affirmatively, that the original was legally recorded. The testimony of the officer attesting the certificate, destroys the certificate; for he himself says, he cannot say the original was legally recorded. If the original was not legally recorded, a certified copy is not evidence. Certified copies are only evidence when given of legal records by the proper officer. 1 Greenleaf on Evidence, sec. 485. Organ Tanlum v. Benj. Young, 1 Porter’s Ala. Rep. 298. Mitchell v. Mitchell, 3 Stewart & Porter’s Ala. Rep. 81.
    But there is a second objection to the admissibility of the certified copy of the marriage contract. It is not shown that the secretary of State’s office is the proper repository of records of this description. Unless that be shown affirmatively, his certificate cannot make a copy evidence. 1 Greenleaf on Evidence, sec. 485. 1 Porter’s Ala. Rep. 258. 3 S. and P. Ala. Rep. 81. To keep records of this description, or to certify copies of them, form no part of the duties of a secretary of State, as that officer is recognized by the law of nations. His attestations and functions are confined to public matters of State, and can give no authenticity when applied to the private transactions of individuals.
    The certificate is not given by the secretary of state, but by a deputy. It is not shown that the secretary of State has a right to act by deputy. 4th. It is proved that the secretary of state was absent, and yet his name is signed by the governor to a certificate of the capacity of the deputy. It is not shown that the governor had any authority thus to sign the name of the secretary of State. For these reasons, the certified copy of the marriage contract should be rejected as evidence. But if this deed was properly recorded in South Carolina, there is no evidence that it ever was recorded in Alabama, or that Bagby had any notice of it whatever. He therefore should be regarded as an innocent purchaser.
    If these considerations be not sufficient to reject altogether the certified copy of the marriage contract, we will proceed to show, that even with its assistance the defendant cannot make out his case. Wp will show, that by the law of Alabama, Bagby’s title was good by prescription.
    Slaves in Alabama are regarded as personal property, and are conveyed like any other personal properly. They may be conveyed by delivery merely, without any instrument of writing. Foster v. Goree, 5 Ala. Rep. 424. Todd v. llardie, 5 Ala. R. 698. Salle v.Light’s Executor, 4 Ala. Rep. 700. Also 5 Ala. Rep. 199. I Stewart & Porter’s Ala. Rep. 59. 2 Porter, Ala. Rep. 449. 9 Porter, 649.
    The common law prevails in Alabama. Under that system the only actions which can possibly be brought against a party for the recovery of personal property, are trespass, trover and detinue. These actions are, by the statute of Alabama, all barred by six years. Clay’s Dig. 326, § 78.
    The evidence shows that Daphne, the mother of Sam, passed to Bagby after the death of Mrs. Yancey in 1821. This must have been about twenty years before the sale of Sam to the present plaintiff, and about twenty-two yeai’s before the time that Delane stole Sam and run him off to New Orleans. In order to avail ourselves of prescription, it is urged upon the other side, that we show “Bagby was a bona fide purchaser, or that his vendee held under a good title.” We contend we have done so. We have shown over twenty-five years possession in Bagby and his vendee. In the State of Alabama, possession of slaves and of all other personal property is evidence of ownership. Possession, then, is the evidence of title, and is just as good as a notarial actor deed under seal. If it be alleged that Bagby did not possess as owner, but in some other capacity, it is for the opposite side to show how he did possess; otherwise possession alone is sufficient evidence of ownership. It is not true, as a principle of law, in Alabama, that to enable a party to plead prescription, he must show a just title. Clay’s Dig. 255.
    But it is said, prescription does not run against minors, and that Delane was a minor. At the time he stole the slave in controversy he had been a major six years.
    It is urged in argument, that he had brought suits against Bagby, for some of the property he claimed to have inherited from his mother. There is no legal evidence of any suit whatever, and no evidence at all of any suit having ever been brought for Sam, who had been in the possession of the plaintiff since 1841. We are not informed what were the nature of the suits brought against Bagby, but they certainly were not suits brought against him for property which he had long since alienated. Whatever the suits were, they were all decided against Delane. If the plea of prescription cannot avail the plaintiff against the pretensions of the defendant, founded upon Delane’s title, we have still another objection which we think fatal.
    By the marriage contract between Mrs. Delane and Yancey, it was stipulated that the property of Mrs. Delane should be for the joint use and benefit of both the parties during their lives, and for the use and benefit of the survivor during his or her life; and upon the death of the survivor, the property was to be divided equally amongst all the children of Mrs Delane, as well those by her former marriage as the issue of the contemplated one. It was further stipulated, that neither should have the liberty of selling the property without the consent of the other. In consequence of their having reserved the right to sell the property, no immediate rights were vested in the children. It was, under the law of Louisiana, a mere donation de eo quod swperrerit, and was void both as to donor, donee and instituted heir. C. C. 1507. The legal consequence was, that the marriage contract was a nullity, and Mrs. Delane remained the absolute owner of the property at the time of her marriage; upon the happening of which event, by tire common law which prevails in South Carolina, the husband became the absolute owner. He consequently had the right to dispose of it by a good title. The same results follow from the common law and the statutes of Alabama. Estates in remainder are good at common law. But to constitute a valid remainder, the requisites of the Louisiana law in regard to usufructuaries and legal owners are to be observed. The legal title must be somewhere. 2 Blackstone’s Com. chap. 11, p. 164 et seq., old paging.
    Tlie reservation made in the marriage contract, of the right to sell the property, was inconsistent with the three requisites of a valid remainder, as laid down by Blackstone. If after marriage they possessed the right to sell, they possessed the right to give a good title. If they could do these things, they were absolute owners, and so were made by the very terms of the marriage contract. By it the whole property was conveyed to them, and there could not possibly exist a remainder. But even if they did not chose to sell, they might have done so ; and an estate at will is not sufficient to support a remainder. By the terms of the marriage contract, no estate vested eo instanti in the children ; it therefore did not create a valid remainder. The limitation made by Mrs. Delane, that the property after the death of the survivor was to go to the heirs of her body, created what at common law is styled a fee tail. She and her husband possessed an estate in fee tail; so did he after her death. 2 Black. Cora., b. 2, c. 7, p. 110. Now, in ¿uch cases, the statute of Alabama abolishing the entailing of estates, declares that the person so holding the estate shall be declared the absolute owner. Clay’s Dig. 157, § 37. An exception is made in the statute with regard to lands, but none as to slaves. If the estate created by the marriage contract was absolute in Mrs. Yancey, it became Yancey’s by virtue of the marriage.. . The attempt of Mrs. Yancey to tie up her property, and at the same time to have it untied, operated its own defeat; as often happens when persons grasp at too much: they lose all.
    But independent of the statute of Alabama, slaves, which are personal property there, cannot be entailed. 2 Black, Com., c. 7, p. 113, old paging.

      It evidently was intended by the marriage contract, to vest a remainder in the children. If the conveyance be valid in form, to give it effect against third persons in Alabama, it must have been recorded. This is clearly shown by the following extract from the statutes of that State: “And in like manner, where any loan of goods and chatties shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued by due course of law on the part of the pretended lender'; or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken as to the creditors and purchasers, of the persons aforesaid so remaining in possession, to be fraudulent within this act; and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property, were declared by will or by deed, in writing, proved and recorded, as aforesaid.” Clay’s Dig. 255.
    There is no evidence that the marriage contract, which created these remainders to the children, was ever recorded in Alabama. Clay’s Dig. 255, § 2, 4, 5. On the other hand the evidence shows that Yancey, from whom Bagby purchased Daphne, the mother of the slave in controversy, was in possession of her at the date of the purchase. Bagby's title as purchaser was protected by the above statute.
    If it be denied that he was a purchaser, we have shown that he was, by the presumption arising from the mere fact of possession. How otherwise could he have obtained Daphne from Yancey ? He must have acquired her either by gift or purchase. No one is presumed to give. It therefore follows, that Yancey sold the slave to Bagby, and did not pass her to him by way of donation.
    We have thus endeavored to show, that the defendant cannot defeat our claim by means of the pretended marriage contract. If in this we have been unsuccessful, let us examine that contract, and ascertain the rights of Delane, as determined by it. After the death of the survivor, the property was to be divided equally between the children. Hamilton testifies there were three children, Delane and his two sisters. Whether the sisters were born of the first, or second marriage does not appear. If they were born of the second marriage, they were the heirs of Yancey, their father, and were bound to warrant his acts. Bagby and his vendors would have recourse upon them as warrantors, in case of eviction from the property. Under such circumstances they could not recover. As the defendant has set up Delane's title, it was his duty to have shown affirmatively everything necessary to establish that title. He therefore' should have shown that the sisters not only had the right to sue for and recover the property, but also that they had in some legal manner transferred their rights to Delane. Neither of which requisites have been complied with.

      Delane's interest in the property was but one undivided third. He could not convey a greater interest than he himself possessed. Consequently, the defendant, "if given the full benefit of the marriage contract, as contended for by him, has a title for only one third undivided interest in the slave. This is the utmost he can be allowed, and the plaintiff must recover the other two thirds.
    The defendant claims, in his answer, the return of the price given by him for the slave, in case he be evicted.
    C. C. art. 3473, under which the pretension was set up, does not apply to immovables. Although slaves are personal property in Alabama, they are regarded as real property here, and the rights of the defendant under his purchase must be tested by our law. Consequently, he is not entitled to recover from the plaintiff the price given by him. C. C. 2427, 2134, 2135. Besides, the circumstances attending the sale were such as should have put the defendant on his guard. He did not give one half of the value of the slave. He is not therefore a bona fide purchaser.

      M. Grivot and C. Roselius, for defendant,
    contended : This is a petitory action, brought by plaintiff, to recover from defendant a slave named Sam, whom he alleges he purchased from A. P. Bagby, in April, 1841, and was run off from him about two and a half years after. Defendant denies title in plaintiff or Bagby, his vendor; alleges title in one Patrick H. Delane, from whom he purchased on the 3d November, 1843, by act before G. R. Stringer, notary. That Delane inherited Sam from his mother, Ann W. Delane. ■ He calls Delane, and Beard and Richardson in warranty. The plaintiff must take-out his title, or the defendant is discharged. ' What title does plaintiff show in himself, or his vendor, A. P. Bagby ? He produces a receipt for $600, for the price of a slave named Sam, and shows by the testimony of Or. B. Frierson, W. W. Frierson, and others, possession for a number of years. He has not, by any evidence whatever, attempted to show how, and in what manner, and from whom Bagby became possessed of Sam or his mother Daphne. The defendant, on the other hand, proves that in 1816, Mrs. Ann Wood Delane, the mother of his vendor, P. H. Delaney ,was the owner of Daphne, the mother of Sam, recognized in a deed or contract of marriage entered into between her and one John Yancey, in Richland district, South Carolina,- and duly recorded in the office of the Secretary of State of that commonwealth; wherein it is acknowledged that this slave is her property; that Yancey cannot sell the same without her consent; nor is it subject to his debts or liabilities ; that, in case of the death of either party, the survivor shall have the possession or usufruct,during his or her natural life only.
    We show a good and valid title: Mrs. Delane, owner of Daphne,- in 1816, had not parted with title or possession to said slave, up to the time of her death. In 1837, P. H. Delane became of age,- in 1841-’42, he laid his claim to the slaves, which his mother had possessed, and which, during his minority, Bagby had taken into his charge. In 1843, August or September, he took Sam into his custody. He was charged and accused by the plaintiff, Frierson, with stealing this slave. He was arrested and brought before several magistrates, but was always acquitted. Not content with these persecutions, Frierson, the plaintiff, who has been highly favored by nature, in being at the time auditor of public accounts, induced a presentment before the grand jury of Tuscaloosa county; an indictment was framed, and a true bill found against Delane for larceny of this slave Sam. Delane was put upon his trial; great efforts were made to convict him. Frierson, the auditor of public accounts, Wm. Garrett, the treasurer, were the witnesses. All the wealth and power of the State was brought in support of the accusation ;- even the high-sounding titles of senator, governor, ambassador to Russia, Bagby, were not omitted, to crush the poor Delane. But truth prevailed; and Delane was declared innocent — not guilty !
    We now state to this court, that there is-no plea of limitation oí prescription set up in the pleadings. This plea, if made, must be pleaded specially; in no part of -the record is it to be found ; therefore this court cannot take it into consideration. But admitting that it is made, is it sustained by the facts and the law as they are presented ? The statute law of limitations, and particularly that of Alabama, relied on by plaintiff, is a law applicable' only to the remedies ; it vests no ownership on the properly; it deprives one from the recovery of the possession, after a lapse of six years, but if that possession is regained by the owner, his title is not divested. The case of Brook v. Jenkins, is a case different from this. The defendant produced his title from various persons and possessions under those titles derived from the plaintiff’s mother. The statute of South' Carolina vested ownei’ship, with such titles in the possessor, for the possession was bond fide. So with us, one holding property in good faith, with a title translative of property, can maintain prescription. But a defective title, or no title, will not maintain the plea of prescription, unless it be that of thirty years. Statute laws of limitations being only applicable to the remedies, are to be construed solely by the lex fori. They never were intended to vest a title to property as good against all the world; such a plea might have been sustained in Alabama, but out of it, as against a title, never. If this statute of limitations is invoked by plaintiff, he must show clearly, that he comes within the provisions of the statute.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action brought by the plaintiff to recover from the defendant, Patrick Irwin, a slave named Sam, and for the value of the services of the slave from the time of judicial demand. There was judgment in the court below for the plaintiff, and the defendant has appealed. The case has already been before this court, and was reported in 4th Ann. 277, and was remanded for the admission of certain testimony, and was tried before a jury, who found a verdict for the plaintiff. A new trial was granted for a cause, independent of the merits of the case, between the plaintiff and defendant. The cause was again submitted to the court, which rendered a judgment from which this appeal was taken. It appears, that in 1843, P. if. Delane took the slave from the possession of the plaintiff, without the consent of the latter, and ran him off from Alabama, where the plaintiff resided, to this city, where he was sold at auction, and purchased by the defendant, Irwin. Delane was charged by the plaintiff with stealing this slave ; the grand jury of Tuscaloosa county found a bill against him for the larceny of this slave. On the trial, Delane was acquitted. We have always discountenanced the practice, upon which we have been frequently called to act, of bringing slaves to this State for the purpose of defeating the rights of propei-ty in them, existing under the laws of the State from which they are taken ; and in the present case, we shall consider the rights of the plaintiff, and of the defendant, who stands in the shoes of Delane to the slave in question, under the laws of Alabama, as we have been enabled to understand them. The slave was born in the possession of the plaintiff’s vendor, A. P. Bagby, of Alabama, who came into possession of the mother, some time in 1821. The possession of the plaintiff’s vendor and his own, exceed the term of twenty years, including that of the mother and the son. We understand, that by the laws of Alabama, slaves are personal property, and that they may be transferred like any other personal property, by delivery, and that the actions at law, by which a slave can be recovered by his owners, are barred by the term of six years. The defendant sets up the minority of Delane during the time of the adverse possession of the slave. This fact, if established, would, undoubtedly, suspend the operations of the statute of limitations of Alabama. It is incumbent on the defendant to establish this fact affirmatively. This has not been done, and it does not appear that the minority of Delane extended to any portion of the six years preceding the date of the inveiglement, and wrongful taking possession of the slave by him in 1843. We understand that the possession of the slave for a sufficient time to bar all actions for his recovery, as constituting a title, under the jurisprudence of Alabama. In the State of Kentucky, in which we have decisions, under a statute of limitations" similar to that of Alabama, we find it is held, where a party has been a possessor of slaves for five years, he becomes thereby vested in virtue of the statute of limitations, with such a right as to enable him to recover them of their former proprietor, who may since have obtained possession. Stanley v. Hart, 5th Littel Reports, 281. Thompson v. Caldwell, 3d Lit. Rep., 136. Cooke v. Wilson, Littel, Selected cases, 436.

From the best judgment, therefore, we can form of a jurisprudence which is not our own, and with which we do not profess to be familiar-, the slave, under the laws of Alabama, would be the property of the plaintiff We must not be understood as recognizing, in any manner the title of Delane to the slave at any time, as we have seen he was born in the possession of Bagby. The plaintiff claims title in the slave, by virtue of his heirship to his deceased mother, (who was the owner of the slave Daphne, the mother of the slave in dispute,) under a certain marriage contract made in the State of South Carolina, in 1816, between her and John Yancey, her husband. This marriage contract was not recorded in the State of Alabama, to which the parties afterwards removed, nor does it appear to have been properly recorded, under the laws of South Carolina, or that the title in the slaves, which, we observe, are movable properly by the laws of South Carolina and Alabama, can be maintained against a third person in possession, under the circumstances of this case. It is a principle of the civil law, that there are no presumptions in favor of a spoliator, and we find no ground on which the judgment of the district court can be reversed. It is therefore affirmed, with costs.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Same Case — On an Application for Re-hearing.
    The object of pleading is notice to the opposite party; and when the defendant is apprized by the proceedings and evidence, that the plaintiff relies upon prescription to establish his right to a slave, which he alleges had been feloniously taken from him, the defendant cannot object that the plea of prescription has not been specially pleaded.
   THE judgment of the court, on a re-hearing, (Eustis, C. J. being absent,) was pronounced by

Slidell, J.

The defendant has applied for a re-hearing, contending that the court erred in sustaining the plaintiff’s title on the ground of prescription. Courts, it is said, cannot supply the plea of prescription, and the plaintiff has not pleaded it. It is true, that the plaintiff has not specially set up prescription in his petition. B.ut if it be conceded, under the general rules of pleading, that in alleging his ownership of the slave, it was necessary for him to plead specially an acquisition of title by prescription, in order to avail himself of it, it is necessary to inquire, whether, under the circumstances of this case, the defendant can be now permitted to raise the objection.

The object of pleading is notice to the opposite party, so that he shall not be taken by surprise on the trial of the cause. Hence, it was rightly held, in Ory v. Winter, that, if it appears from the circumstances attending the progress of the cause in the court below, that, in point of fact, the plaintiff was not surprised, but had ample information of the grounds on which the defendant claimed a deduction from the plaintiff’s demand, the defendant ought not to lose his claim, or be turned round to litigate it in another action. It is most conclusively shown, said the court, by the fact of taking depositions to support the defence, long before the trial, at the taking of which the plaintiff', by his counsel attended, that he was fully apprized of the grounds on which the defendants relied. See also Ralsha v. Barclay, 6 M. R. 650.

Now, what are the circumstances of the present case ? In his petition, the plaintiff alleged ownership, by purchase from Bagby and delivery, and that thereafter the slave was feloniously taken from his possession. At the first trial of the cause, the plaintiff offered in evidence portions of the Alabama statute of limitations, applicable to the subject matter of slaves, which are there considered personal property. To their admission in evidence the defendant objected; not on the ground that prescription was not pleaded, but simply upon the ground that parts of a statute could not be offered. The objection was overruled by the district judge. When the cause came before us on the former appeal, it was not urged that the subject of prescription was not before us, because not pleaded. On the contrary, we find the learned counsel for the defendant then using the following language: “ The law of Alabama, introduced in evidence by plaintiff, was merely for the purpose of sustaining the prescription of Delane's rights. In order that this plea co.u!4 avail him, he must prove that he is a bond fide purchaser, or tljat his vendors held under as good title, which has not been done.” The cause was tried again in 1849- In 1847, before the first trial, a commission was taken out by the plaintiff, for the examination of witnesses in Alabama. The interrogatories of the plaintiff were directed to the subject of possession. The cross-interrogatories propounded by the defendant were directed to the requisites of prescription in th^ State. Under them the possession of the plaintiff’s vendor was shown on the one hapd, ¡and, on the other hand, the limitation of actions for ,the recovery of slaves. The testimony thus taken was received in the court below without exception, on the ground that prescription was not pleaded. Under these circumstances, we are of opinion, that the grounds presented for re-hearing, is untenable. Some other matters are noticed in the application; which are irrelevant to the point upon which tlje case turned.,

The re-hearing is therefore refused.


author: Rost, J.

text:
    Louisa A. Lee et al. v. Rebecca Ferguson et al.
    The rale that one partner cannot, without an express authorization, alienate the real property of the firm, does not apply where the partner who has signed the act of alienation, or his heirs, seek tp recover it back.
    The receiving, by a partner, of a part or the whole of the proceeds ,of property .alienated without authority by another co-partner, is a ratification pf the sale.
    The acceptance of a release of a deljt is by law presumed.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      E. Simon, for plaintiffs.

      A. PTennen, fgr defendants.
   The judgment of tlie c.ourt was pronounced by

Rost, J.

This is a petitory action. There was judgment in favor of the plaintiffs for the land, and against them for the price paid by the defendants.. They appealed.

In July, J821, an act of sale was passed before Carlisle Pollock, notary public, in which Thpmas Spencer and Charles Lee, commercial partners, trading under the firm of Spencer Lee, are represented as having sold the land in controversy to John Brown Sf Co., for the consideration of $2000 paid in cash at the time of the sale. This act was signed by Lee, and by John Brown, for th,e firm of John Brown Sf Co., but was not signed by Spencer.

On the same day, and upon the same sheet of paper, another act was passed before the same notary, by John Brown Co., releasing the firm of Spencer Sf Lee from certain endorsements on notes therein specified, renouncing ajl recourse against them for the same, and consenting to hold the makers only accountable to them. The consideration of this release was $2000, the price paid by John Brown Sf Co. for the land. This deed does not contain the acceptance of Spencer 8f Lee.

In 1830, John Brown surrendered his property to his creditors, and did not ¡include the land acquired from Spencer Lee in his Schedule.

In 1831, Thomas Spencer made also a cessio honorum. His supposed half interest in the land was sold at public auction by the syndic of his creditors, and adjudicated to Charles Lee.

The present suit is instituted by the heirs of Charles Lee against the heirs of John Brown, who claim the land in right of their deceased father. The ground upon which the action is based is, that the sale to Brown, not having been signed by Spencer, was incomplete, and, as such, not binding upon Lee or his heirs: one partner being without authority as such to alienate, to the prejudice of the other, real property owned by the firm. The plaintiffs rely in support of these grounds on the cases of Villere et al. v. Brognier, 3 M. R. 388 and 527; Casson v. Fulton, 5 M. R. 676. 3 M. R. 627. 1 N. S. 290. 3 L. R. 497. 3 R. R. 256.

Without expressing any opinion on the doctrine, that until all the parties contemplated to join in the execution of a contract affix their names to it, it cannot be enforced against any of them, it is sufficient to say, that we do not consider it applicable to the present case.

The rule that one partner cannot, without an express authorization, alienate to the prejudice of the other real property owned by the firm, was settled in cases where the party who had not signed the deed sought to recover the property alienated. In this case the claim is made by the. heirs of the party who sold the land; who received for the firm the entire consideration of the sale, and, as if to close all inquiry as to the reality of the contract, renounced the plea de non numerata pecunia. We consider that he was estopped by his recitals and ackowledgments in the deed, and that if his heirs were permitted to gainsay them, they would be enabled to commit a fraud.

Lee, having received the whole price, was bound, so far as it lay in his power, to perfect the title of Brown ; and when he acquired the title of Spencer at the syndic’s sale, that title inured to the benefit of his vendee. Stokes v. Shackleford, 12 L. R. 170. 1 Greenleaf, Evidence, § 22, 23, 24.

The counsel for the plaintiffs contends that the real contract entered into between Spencer Sf Lee and John Brown Sf Co. was not a sale of land, but consisted in Spencer Sf Lee’s giving to Brown Sf Co. the tract of land in controversy, for the purpose of obtaining from them a release or discharge from their endorsements on the notes described in the act of release. If it be so, this case is not to be distinguished from that of Thomas v. Scott, 3 R. R. 256, in which it was correctly held, that the aet of receiving the whole or a part of the proceeds of property by a partner, when it had been alienated by the other without authority, amounts to a ratification of the sale, and will preclude the partner thus situated from disturbing the purchaser.

It is urged that the release was not accepted; that it was given in favor of Spencer Sf Lee, and that as Spencer had not signed the act of sale, he was not discharged; that the transaction was incomplete in both ways and the act of release could not be more binding than the act of sale, both forming but one transaction between the same parties, for the same object and vitiated by the same defect, to wit, the want of consent and coQperation of Thomas Spencer.

The facts alleged do not show that Spencer Sf Lee did not have the benefit of the release, and, at this distance of time, we will presume that they had. If they paid the endorsements the plaintiffs should have shown it affirmatively. The release of a debt need not be accepted expressly by the debtor. The law presumes the acceptance, and it cannot be revoked by the creditor. L. C. 2197,

For the reasons assigned, it is ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendants, with costs in both courts.


text:
    Same Case — On a Re-hearing.
   judgment of the court, on a re-hearing, was pronounced by

Slidell, J.

Upon further reflection, the court being of the opinion that the ends of justice will probably be promoted by remanding this cause for a new trial and further evidence.

It is therefore decreed, that the former decree rendered by this court in this cause be set aside, and that this cause be remanded for further proceedings according to law; the appellees paying the costs of this appeal.


author: Preston, J. Rost, J. Slidell, J.

text:
    H. B. Kelly v. James P. Gilly.
    Under the Constitution and laws of the State, the appointment of a notary is for four years, and the person appointed has the right to hold the office for that term.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      G. Schmidt, for plaintiff.

      Micou, for defendant.
   Eustis, C. J. being absent the judges of the court delivered their opinions seriatim.

Preston, J.

H. B. Kelly, Esq. allleges that he has been appointed a notary public of the city of New Orleans in the place of James P. Gilly, whose term of office has expired, and prays a writ of mandamus to compel the latter to deliver to him the records of his office. Gilly alleges that his term of office has not expired.

He shows a commission from the governor to fill the vacancy which occurred during the recess of the Senate by the resignation of S. W. Waters, dated the 4th of December, 1846. He was nominated by the governor and, with the advice ' and consent of the Senate, appointed at the ensuing session of the General Assembly, as appears by a commission issued to him, dated the 3d of May, 1847. This is the usual and legal mode of filling vacancies in office, and completing the appointments adopted by our executive and Senate. We consider, therefore, that the appointment of Gilly took place on the 4th December, 1846, that the oath taken by him at that time was his oath of office, and that his nomination to the Senate and confirmation, was the constitutional mode of completing the appointment.

The governor was authorized, by the act of 1813, to appoint as many notaries as he deemed necessaiy. The office was held during good behavior, there being no term limited by the law. The Constitution limited the duration of the office to four years. Every person appointed a notaiy is, therefore, entitled to hold the office for four years from the date of his appointment. a

The law does not require the governor to fill vacancies as to the office of notary public, but to appoint the notaries that may be necessary. It has been usual, when a notary dies or resigns, for the governor to appoint another notary, and give him charge of the vacant office in the commission, and of course of the records. This is not required by the law; but results from the duty of the governor, as the supreme executive, to take care of and preserve the public property and records where the laws have not otherwise provided. The records belong, not so much by law as by usage, to the newly appointed notary, and he does not fill the unexpired term of his predecessor, but is appointed a notary under the act of 1813, and, by the Constitution, is entitled to hold the office for four years from the date of his appointment.

I am of opinion that James P. Gilly was duly appointed and qualified a notary in December, 1846, and entitled to hold the office for four years from the date of his appointment, and that his term of office, consequently, has not expired.

The judgment of the district court is therefore reversed, and the petition in this case dismissed with costs.

Rost, J.

I agree with my brethren in the judgment rendered, but I am of opinion that the defendant could take the oath at any time, under the commission issued in his favor on the 3d of May, 1847, and that as he has done so he is entitled to hold office under it for four years. It appears by the published journal of the secret sessions of the Senate, that the plaintiff was nominated and confirmed in place of the defendant, whose commission was to expire on the 3d of May, 1851. We could not act upon that fact and disregard the commission which says that the office is vacant; but I am satisfied, aliunde, that there will be no vacancy before that time.

It is therefore decreed, that the judgment of the court below be reversed, and ■ that the petition of the relator be dismissed; the costs in both courts to be paid by the relator.

Slidell, J.

I concur in the opinion expressed by Judge Preston, that the appointment of May, 1847, was understood by the executive and the appointee as a confirmation of the appointment of December, 1846, although the words “as successor of Waters,” or “in place of Waters, resigned,” are not contained in the appointment first mentioned. I, therefore, consider Gilly as holding under an appointment dating from the 4th day of December, 1846.

For the purposes of the present case, I consider the omission of Gilly to take a new oath upon receiving the second commission immaterial.

By the act of 1813, the office of notary was to be held during good behavior. By the operation of the 96th article of the Constitution, and in the absence of any legislation fixing a shorter term, the term of the office of notary is one of four years, and he is not in my opinion removable by the executive.

The governor has by law the power of appointing notaries, and no precise time being assigned for the commencement and termination of the office, the time from which the constitutional term of four years commences to run is, in my opinion, the date of the commission.

In Bry v. Woodruff, the office involved was that of president of the board of public works. The appointment was required by the statute to be made biennially. So in the ease of judges, under our present Constitution, definite periods are established for the beginning and end of each term of office; and any exercise of the appointing power between those periods would be for the unexpired terms. Thus, the judge who succeeded Judge King on this bench, received a commission for the unexpired term of Judge King, and then a commission for eight years, dating from the expiration of Judge King’s term. See also act of February 11, 1825. But where no precise time for the beginning and termination of an office is fixed, the officer, I think, takes the office not for the unexpired term of his predecessor, but for the constitutional or legal term of the office, dating from his appointment.

The executive did not appoint Gilly for the unexpii-ed term of Waters who resigned. The expression “ in place of Waters who has resigned,” I conceive to be a designation of Gilly as the person who was to take the official records of Waters. I refer, upon this matter, to the remarks of Judge Preston.

I therefore conclude that the term of Gilly has not expired. The commisson of Kelly issued upon a mistake as to Gilly's tenure, and is, in my opinion, for the present, at least, inoperative against Gilly.

I am of opinion that the judgment should be reversed, and the proceeding dismissed at the costs of the relator.


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    Lewis Ruffner v. T. Bellsnyder et al.
    In a collision between a steamboat and a flatboat, the presumptions are against the steamer.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      R. Molt, for plaintiff.

      L. Hunton, for defendants.
   The judgment of the court (Eustis, C. J. being absent) was pronounced by

Slidell, J.

This is a claim of damages for the loss of a flatboat and its cargo, alleged to have been sunk by the steamer James Dick, in the Ohio river, in a collision attributable solely to the fault of the officers and crew of the steamer. There was a verdict and judgment for plaintiff, and the owners of the steamer have appealed.

This case, like all other suits of this sort which have come under our observation, presents a conflict of evidence. In such cases, as we said in Myers v. Perry, the verdict of a jury is entitled to great consideration, and should not be disturbed unless for manifest error.

We have carefully considered the evidence, and are of opinion that the verdict ought not to be disturbed. It must be conceded in the outset of such an investigation, that the probabilities on the score of fault are against a steamer which, while descending a river, with its means of locomotion at command, comes in contact with a craft lying moored atthe shore. Some unexpected accident or violence might in such a case, it is true, deprive the steamer’s crew of the power of controlling her direction. But was there any thing of this sort in the present case ? The steamer, it seems, had occasion to take in a passenger at a town near which the flatboat was moored; and it appears that there was, at the time, a strong but not violent, wind blowing towards the town; and there was also a current setting in that direction. These causes, if uuopposed by skilful use of the power which the steamer possessed, would necessarily carry her towards the shore, and bring her into collision with boats lying there. But this, on the other hand, might have been avoided by backing and a judicious management of the helm. It was not one of those cases of sudden and overpowering force against which reasonable prudence and exertion are unavailing; and we feel bound to conclude, that under all the circumstances, there was a want, on the steamer’s part, of due vigilance and skill.

There was an effort to show that the flatboat was moored at an improper place and in an improper manner. The evidence on this point is conflicting; but after carefully reviewing it, and giving a reasonable weight to the verdict of the jury, we are unable to say that the plaintiff can be considered as having contributed by his own fault to the disaster.

The judgment of the district court is therefore affirmed, with costs.


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    Denis Cronan v. Municipality No. One.
    Where the Municipality No. One contracts with a paver, that he shall be paid a portion of the price, by the proprietors of the property fronting on the pavement, and those proprietors refuse or neglect to make the payment, the Municipality is bound for the amount stipulated to be paid by the contract.
    APPEAL from the Second District Court of New Orleans, Lea, J. The judgment of the district court was as follows :
    “This is a suit brought for the paving done according to contract with Municipality No. One. There is no dispute about the work itself, or the amount due for it, it having been accepted by the surveyor of the municipality, as having been executed according to contract. According to the terms of the contract, the paving done by plaintiff was to be paid for as follows : ‘The portion to be paid by Municipality No. One, in notes of said Municipality, at five years, bearing five per cent interest per annum; and for the remaining portion the said Cronan shall receive the hereinafter described notes from the property holders in front of said paving. The said property holder’s shall be allowed twelve months for the payment of their one-third proportion on the cost price of said paving, and shall furnish their notes therefor, with good and sufficient security.’ The municipality stipulates for the right to retain one-tenth part of the whole sum, to be paid on the completion of the said work, as a guarantee for its soundness and solidity during one year from the time of its delivery; 'said tenth part l.o be paid at the expiration of the year aforesaid. The amicable demand and refusal of payment is admitted by both defendants. The ordinances of the municipality authorizing the contract, and establishing the modes of payment, as set forth in the petition, are in evidence. The plaintiffs now claim the one-third proportion of the price of the paving done on the. Canal Carondelet. The municipality alleges that it has settled with plaintiff ail claims due under the contract. That the Orleans Navigation Company is owner of the property fronting on the street paved, and is the only party liable under the contract, and according to law ; and prays that said Navigation Company be called in warranty. The Navigation Company denies that said Company is owner of any property on the street paved, which, under existing laws, can be taxed for paving. It appears to me, that, under the pleadings and evidence, but two questions are presented to the court for its decision. 1st. Is the Navigation Company the owner of property on the street paved ? If it is not, is the municipality liable for the amount ! On the first point, no evidence has been offered ; the ownership of the property by the Company is expressly put at issue, and it has not been proved. No judgment, therefore, can be rendered against the Company. But, secondly, is the municipality liable ? Can they shelter themselves under the stipulation in the contract, that plaintiff should receive in payment the notes of property holders in front of said paving! I think not. Plaintiff contracted directly with the municipality not with the property holders. The stipulation contained in the contract merely designated a mode in which the municipality should be allowed to liquidate a part of its obligations to plaintiff, it did not extinguish those obligations, and that, mode of payment not having been complied with, the municipality (which I consider as the debtor) is bound for the debt. There is an incidental question of interest which requires notice. The plaintiff claims interest on the principal sum claimed from the 19th day of April, 1848. By the terms of the contract, the proprietors were to have been allowed twelve months to pay their taxable proportion of the paving; and in no part of the contract is it stated that the notes to be given should bear interest from date. I conceive that interest should run from the maturity, not the date, of the obligation.
    “ It is ordered, adjudged and decreed, that there be judgment in favor of the plaintiff, Denis Cronan, and against the Municipality No. One for the sum of five thousand five hundred and fifty-nine dollars, with interest thereon at the rate of five per centum per annum, from the 3 9th April, 1849, till paid, and costs of suit; and as respects the Orleans Navigation Company, that judgment of non-suit be entered against the plaintiff and the Municipality No. One.

      W. D. Hennen, for plaintiff. R. Preaux, for defendant.
   The judgment of the court (Eustis, C. J. being absent.) was pronounced by

Rost, J.

For the reasons given by the district judge, it is ordered, that the judgment in this case be affirmed, with costs.


author: Preston, J.

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    John L. Harris v. The Bank of Mobile.
    A debt may be seized on execution by notice served upon tlie debtor; and in the same manner a thing not susceptible of corporeal tradition may be seized by seizure in the bands of the keeper thereof, if the instrument evidencing the debt or light be not negotiable.
    By the charter of the Mechanics and Traders’ Bank, all transfers of stock are to be made upon the books of the bank. The certificates of stock are not, therefore, negotiable; and a seizure on execution of stock, by notice to the officers of the bank is valid, and defeats a subsequent transfer of the stock.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Roselius, for plaintiff.

      W. C. Micou, for defendant.
   The judgment of the court (Eustis, C. J. being absent,) was pronounced by

Preston, J.

The plaintiff has enjoined the defendants and sheriff from selling five hundred shares of the capital stock of the Mechanics and Traders’ Bank of New Orleans, and five shares of the New Orleans Insurance Company, by virtue of an execution issued against E. B. Harris on a judgment for a large amount obtained by the Bank of Mobile against him.

The plaintiff alleges that he bought the stock from E. B. Harris on the 21st of May, 1849, and produces a bill of sale and receipt for the price from E. B. Harris to that effect, and denies that the defendants ever seized the stock. The defendants allege that they made a valid seizure of the stock on the 3d of January, 1849.

The stocks were pledged by E. B. Harris to the Louisiana State Bank to secure the payment of a loan of twenty thousand dollars to E. B. Harris. The plaintiff contends, that as a part of the price of the stocks he paid this loan, took a subrogation to the rights of the Louisiana State Bank, and is entitled, under the prayer for general relief, to have refunded to him the amount he paid in discharge of the pledge, even if the seizure by the defendants was valid.

The argument of the defendant’s counsel, with the facts established by evidence, has satisfied us that the Bank of Mobile, on the 3d of January, 1849, made a valid seizure of the stocks in controversy.

The shares in the corporations were the property to be seized, being an undivided interest in their funds and assets. The officers of the corporations were the keepers and possessors of this undivided property for each and all the stockholders. The certificates of stock were the evidence of the ownership of that property in the hands of the holders, as the subscription and transfer books were the evidence of the ownership in the possession of the corporations ; and the shares of the defendant, 23. B. Harris, incorporeal rights in the funds and assets of the corporations in the possession of their officers. Civil Code, 466.

The 647th article of the Code of Practice authorized the seizure of these rights. They might have been seized by taking possession of the certificates, as we infer from article 2457 of the code, which declares that the tradition of incorporeal rights takes place by the delivery of the titles. But they might also be seized in the same manner as the share in a private partnership, under article 2794 of the code, by seizing the interest of the partner in the assets and notifying the firm. We think, therefore, that it was a valid seizure of the plaintiff’s stocks for the sheriff to declare to the cashier or keeper of the funds and assets of the corporations, that by virtue of the execution in his hands, he seized the undivided interest of the defendant in the funds and assets of the corporations, or, what was the same thing, his shares of stock. This the sheriff did, and left a copy of the notice in the hands of the cashier of the bank, and secretary of the insurance company, and requested them to enter the seizures on the transfer books of the corporations.

The counsel of the plaintiff contends, that this was not a valid seizure of the stocks, because the sheriff did not take into his possession the certificates of the stocks then pledged to the Louisiana State Bank for a loan, and in possession of that corporation. In support of his argument, he cites the case of Gobet v. The New Orleans and Nashville Railroad Company. In that case, the court decided no more than that the sheriff could not seize the proceeds of the sale of slaves before they were sold. The proceeds could not be seized, because they did not exist. He cites, also, the cases of Simpson v. Allain, Fluker v. Bullard, and Taylor v. Stone. In the first, it was decided that a twelve months’ bond, and in the two last, that promissory notes could not be validly seized for the purpose of sale under execution, unless the sheriff obtained actual possession of the property, or that tangible property could not be seized and sold without taking it into possession, and delivering it to the vendee. These decisions do not conflict with the principle, that an incorporeal right may be seized by notifying the person or corporation in possession of the subject of the right. The inability to seize the corporeal evidence of the right does not prevent the creditor from seizing the right itself, by notifying the keeper of the subject matter of the right.

If the evidence of the right be negotiable, and is acquired without notice by an endorsee, even after the seizure of the right, the seizure is ineffectual as to him: a principle adopted in favor of commerce. But if the evidence of the right be not negotiable, the seizure of the debt or right, of which it is the evidence, by notification to the debtor or keeper of the subject of the right, is valid against the subsequent assignee of the debt or right.

The certificates of the stocks in controversy were not negotiable, and could not be sold or transferred to the prejudice of the previous seizure of the stocks themselves. We conclude, therefore, that their seizure by the sheriff, on the 3d of January, 1849, under the execution of the Bank of Mobile, was a valid seizure.

This case presents two other important questions, which have been fully argued by counsel. The defendants allege “ that the sale of the stocks was not real but simulated, for the mere purpose of evading the seizure made by the defendants’ execution; that John L. Harris, the brother of JS. B. Harris, combined with him to withdraw the property, by pretended sales, without any consideration.” They further deny that the plaintiff obtained either a legal or conventional subrogation to the rights of the Louisiana State Bank upon the stocks.

The district judge did not decide upon either of these subjects in consequence of coming to the conclusion that the defendants’ seizure was void; and we have not the advantage of his opinion upon the questions to wl&ch they give rise. Nevertheless, we have kept the case under advisement an unusual length of time, and reviewed the evidence with great care, in the hopes of coming to a satisfactory result ourselves, but have been unable to do so.

Indeed, it appears that a suit was commenced by the defendants in another court, to annul the sale from .E. B. Harris to John L. Harris, on the charge of simulation, and that it was pending when the present case was tried. If the plea of another suit pending for the same cause of action had been made, the present suit could not have been tried, as to the simulation, until the first suit was disposed of. We should be much pleased if we could have the opinion of a jury on the question of simulation before the final disposition of this controversy. It might be easily obtained by submitting the first case to a trial by jury. But whatever course the parties may choose to pursue, we feel that justice requires us to remand the cause for another trial, in order to obtain the opinion of the courts of original jurisdiction on the remaining questions, and perhaps for fuller and more satisfactory evidence than the record now presents.

It is therefore decreed, that the judgment of the district court be reversed, and that the case be remanded for further proceedings according to law ; the plaintiff and appellee paying the costs of this appeal.


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    William J. Frierson v. Charles J. Brenham.
    An insurance on account of whom it may concern, is limited to those who have an insurable interest in the property, and may be lawfully insured, and must further be restricted to those for whom it was intended, under their prior authorization, or subsequent adoption.
    "Where A. had purchased a steamboat at sheriff’s sale, and subsequently had run her for several years as his own property and on his own account, insured her ior account of whom it may concern, it will be presumed he did so for his own benefit, and he will be entitled to recover the insurance, although there may be a contest as to the validity of his title to the vessel.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      M. M. Cohen, and J. R. Grymes, for plaintiff.

      Prentiss, for defendant.

      Rosdius, Duncan and Mott, for intervenors.
   The judgment of the court was pronounced by

Slidell, J.

In 1847, Brenham applied to the Memphis Insurance Company for insurance on the freight of the steamer Ambassador, for account of whom it. may concern ; and a policy “ for account of whom it may concern” was given to him. During the period covered by the policy the steamer was destroyed by fire. The amount of freight list was $6,863 26. Of this, John H. James claimed three-fourths; Brenham claimed the whole. It may be assumed, as a well settled'principle in the law of insurance, that an insurance in such words is not only to be limited to those who have an insurable interest in the property, and may be lawfully insured but must be also restricted to those for whom the insurance was in fact intended, and by whom it was previously directed or authorized, or subsequently, in due season adopted. See Duer on Insurance, vol. 2, p. 30. Arnould on Insurance, p. 25. Catlitt v. Pacific Insurance Company, 1 Wendell, 561. Same case, 4 Wendell, 79.

The conclusion from the evidence is irresistible, that in taking out the policy, Brenham, did not intend to acknowledge any interest in James, or embrace such interest in the contract. He had the. sole possession of the steamer since December, 1845, at which time he purchased her at a judicial sale, preceded by a seizure of the vessel, and under a sheriff’s deed which purported to convey the vessel, and not the mere interest of Brenham in her. There was an attempt in the oral argument to limit the seizure and sale to the one-fourth interest; but this is in direct conflict with the pleadings and proceedings in the case of Gilmore and Henderson v. Brenham, which are in evidence in this case. Since December, 1845, to the time of the loss, Brenham had possession of the entire boat, claiming absolute ownership of her, and held adversely to James and every body else. She was registered and run solely in his name. All his acts since the judicial purchase are directly hostile to any interest in James ; and there is not a shadow of ground for the proposition that the protection of any equijgide interest of James, if any such existed, was ever contemplated either by or the under-writers. But, it is said by the under-writers, that there wffl|Bf existing interest in James. That James is not covered quoad in that interest, because he was not contemplated as a party to be protected by the contract; and that Brenham cannot recover quoad that interest, because it was not in him; and his only insurable interest was one-fourth.

Upon this point it is urged, that the judicial sale of the entire boat was brought about by a collusion between Brenham, and one or some of the seizing creditors to destroy the alleged interest oí James: and that Brenham’s acquisition and subsequent possession are tainted with fraud. It appears from the evidence, ’that when the boat was seized upon various executions, one of which was in the case of Gilmore and Henderson v. Brenham, James came into the cause by a third opposition, and rersisted the seizure and sale of the entire vessel, upon -the ground that he (James) was the owner of three-fourths. In that controversy, it was finally adjudged that Janies was not an owner. See Gilmore v. Brenham, 3d Ann. 32. And, upon this state of facts, it has been urged, and not without plausibility, by Brenham, who claims under the execution of Gilmore and Henderson, that the absence of title in James is res judicata. Without expressing an opinion upon that point, we deem it sufficient to say, that there was such a vested legal interest in Brenham, at the time of the insurance and of the 'loss,' by reason of the sheriff’s deed, and the long, continuous, and undisturbed possession under it, as gave Brenham an insurable interest in the entire freight. He is consequently entitled to recover the entire amount insured.

What may be the equitable recourse of James against Brenham, by reason of the alleged frauds, which resulted in the judicial transfer of the entire vessel to Brenham, is a matter to be settled between them elsewhere, and which we do not consider as effecting the right of Brenham to recover from the underwriters. The motion to dismiss this appeal cannot be sustained. The motion for appeal was properly made in the month in which the judgment was signed.

It is therefore ordered, adjudged and decreed, that the judgment of the inferior e°m't be reversed ; that the defendant, Charles J. Brenham, recover from the plaintiff, the Memphis Insurance Company, the sum of money in controversy, amounting to five thousand one hundred and forty-seven dollars forty-four and one-half cents. That the demand of John H. James for the said sum of money be rejected ; that the demand of the plaintiff, the Memphis Insurance Company, to recover the said sum of money presented in their supplemental petition be rejected. That the costs of this appeal be paid equally by the said Memphis Insurance Company and the said John H. James. That the costs of the inferior court accrued before the filing of the supplemental petition by the said plaintiff, be paid by said John H. James; and that the costs accrued since the fifing of said supplemental petition by the said plaintiff be paid equally by the said Insurance Company and John H. James ; and that the said sum of money be paid over to the intervenors, according to an agreement of the counsel of Brenham and the intervenors, filed of record.


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    Widow Conant et al. v. L. Millaudon et al.
    An election of directors of a bank will not be set aside because the commissioners received votes without proper evidence, when it is subsequently shown that the votes so received were legal votes.
    Persons who hold stock as trustees are legal voters in an election for directors.
    The prohibition against aliens being directors of a bank, contained in the act of the 5th February, 1842, does not apply to the Carrollton Railroad Company, that corporation having surrendered its banking privileges.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, 3.

      H. R. Dennis and D. N. Hennen, for plaintiffs.

      Benjamin, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought to contest an election of directors of the New Orleans and Carrollton Railroad Company. The defendants being returned as elected, took their seats, and are in office.

Mrs. Duncan, by her husband acting as her attorney, gave one hundred votes, for the defendants, upon stock standing in her name. Mr. Duncan had already voted one hundred votes on stock standing in his name. By the charter, one hundred votes is the maximum allowed to any person, how great soever may be the number of his shares. His votes as agent of his wife were received under protest by the plaintiffs. He made oath before the commissioners, that the stock in her name was bona fide her property. It appears that Mrs. Duncan became the owner of the stock after her marriage; and the plaintiffs invoke the presumption of law, that properly acquired by the spouses in the name of either of them during the marriage, is community. At the trial of the cause, a marriage contract was offered in evidence by the defendants, which contains a stipulation, that the community of acquets should not exist between the parties. The plaintiffs do not now deny that Mrs. Duncan was the real and separate owner of the stock, and had a right to vote; but they say, that the vote should have been rejected by the commissioners, because they had not before them legal evidence of the fact, and that the legality of the vote given must repose solely upon the evidence offerred before the judges of the election. We are not prepared to say, that for the purposes of an election, the evidence was insufficient. But however that may, be, it is now fully established that the vote was one which Mrs. Duncan was legally entitled to give. It would be against reason to set aside an election effected by legal votes, because full proof of their being legal was not laid before the commissioners; and we are aware of no precedent for such a course. The plaintiffs cite the case of the Mohawk and Hudson Railroad Company, 19 Wendell, 135; but there the question was, whether the election should be set aside because, as was alleged, a vote had been improperly rejected. In determining whether the rejection was legal, the court intimates that it could not look beyond the evidence presented to the commissioners. The want of analogy between the two cases is obvious. If a party neglects to present proper evidence to the commissioners, and his vote is rejected, it is his own laches; and he has no equity in asking a court to relieve him from its consequences. But when the commissioners, on insufficient evidence, have received a legal vote, why overthrow an election, when the same vote would, on proper evidence, be received again.

It appears that on the books of the bank Palmer and Blatchford, trustees, stood as owners of one hundred shares of slock. R. M. Blatchford, trustee, stood on the books as owner of one hundred shares. Palmer and Blatchford, trustees, and R. M. Blatchford, trustee, respectively voted one hundred votes. These were contested, on the ground that the deeds of trust wore not exhibited, and no proof was adduced for whom they were trustees. Their authority to vote is questioned, and it is also urged, that it may be that the stock was held by those parties for persons who have voted to the limit of the charter upon other shares, and that the two trusts may be for one and the same person. The plaintiffs refer to the clause of the charter which prescribes, that no person, corporation, or firm shall be entitled to a greater number than one hundred votes.

It is inferrable, from the evidence in the cause, that Blatchford and Palmer are residents of New York. They acted at the election by an attorney.

In Brown v. Bissell, 6 Cowan, 109, the court considered as indubitable, the right of a person to vote upon stock standing in his name, although held by him in trust for another. The legal estate is in him, said the court, and until divested by assignment, either voluntary or compulsory, he is the only person entitled to vote. We see no reason for adopting a different rule here with regard to foreign stockholders of our corporations holding in the capacity of trustees, and whose capacity as such the corporation has recognized on its stock books.

As to the argument derived from the charter, if it were affirmatively shown, that the trusts were either for the same individual, or for the benefit of other stockholders who had already exercised the privilege of voting up to the limit, then perhaps a case might arise for the rejection of the votes. But the plaintiffs have not proved that such was the case; and we concur with the position assume'd by the defendants, that the bare possibility that the votes are held for the use of such persons, is not to be regarded. The contingency is too remote to deserve notice as a legal presumption. Any one may be an owner of this stock; and the probabilities are, therefore, quite against the hypothesis, that it is held for some of the stockholders who had already voted. The mere assertion, that the votes may possibly be illegal, is not sufficient to put the defendants on proof of their legality. The hypothesis presented by the plaintiffs, assumes a fraud upon the charter; and fraud is not to be presumed.-

It is unnecessary to consider the alleged illegality of the reception of the votes of Mrs. Burlhe, Meux and Holcombe, and the alleged illegality of the rejection of the votes offered by the proxy of another stockholder; because, if the plaintiff’s case was made- out with regal'd to them, the defendants would Still have a sufficient number of legal votes to maintain their election.

L. Millauclon, one of the elected, is said to be ineligible under the clause in the charter which excludes from the direction insolvent persons. The only atlempt to prove that he came within that provision consisted in showing that he was indebted to the company on a stock loan in the sum of about $100,000, including interest. It further appeared, that the interest on this loan had been in arrears for several years, and that in February, 1850, the company .took in payment of the debt, his notes at one, two, three, four, and live years from date, bearing interest at six per cent. It does not appear that the notes representing the original debt had ever been protested. It ■was said, in argument by ihe counsel for the plaintiffs, that the transaction could be accounted for only upon one of two hypotheses: either that Millaitdon was insolvent, or that there had been undue indulgence to him by the directors. However extraordinary the course of the directors, under the evidence presented, may appear, the court cannot consider the facts shown as establishing the insolvency of the party in question.

The defendant Duncan is alleged to be disqualified to sit as a director, because he is an alien. By a statute enacted in 1842, it was declared that “ no person shall hereafter be elected or appointed a director of any bank in this State who shall not, at the time of his election or appointment, be a citizen of the United States, and. of this State.” At the same session of the Legislature a statute was enacted entitled “an act to revive the charters of the several banks located in the city of New Orleans, and for other purposes.” This statute is mainly composed of regulations intended to control the future issues and operations of the banks, whose previous wild and disastrous career is a matter of history. But it also contained provisions authorizing such banks as desired to do so, to abandon their.banking privileges and business, and retain their corporate powers and privileges so far only as their continuance might be necessary to retain the property in any public works and improvements, and to manage and carry on the same until the termination of their charters. The New Orleans and-Carroilton Railroad Company fell within the class contemplated by the statute. It was both a bauk and a railroad company. It abandoned its banking privileges; discontinued doing business as a bank; proceeded to the liquidation of its banking affairs; and has long since ceased to be a bank. It has been for several years a railroad company. The legislative interference with banking corporations, with which the statute books of 1842, 1843., &c. abound, grew out of the gross abuses and the disastrous results of the banking business. The exclusion of foreigners was, perhaps, considered one of the means to prevent future abuses; or more probably it was dictated by an apprehension that foreign capitalists, by getting control of boards of direction, might control through them the monetary affairs of the State. There is nothing in the legislation in question, upon a reasonable view of its subject matter and of its general scope and intendment, to authorize the belief that the lawgiver intended to discourage aliens from being interested in what are denominated in the statute works of public improvement, by excluding them from a participation in their mangement. The directors of this company 'are not directors of a bank, and the statutory prohibition is therefore inapplicable to their case.

It is therefore decreed, that the judgment of the district court be reversed, and that the petition be dismissed ; the plaintiffs paying costs in both courts.


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    John S. David v. John M. Beelman.
    The taking of a portion of the premises leased, for the oonstrnotion of a levee,- entitles the' tenant to a reduction of the rent.
    APPEAL from the District Court of Jefferson, Clarke, J.

      Jourdan, for plaintiff.

      Elliott, for defendant.
   The judgment of the court, (.Eustis, C. J. being absent,) was pronounced by

Preston, J.

This is an action for the half yearly rent of a tract of land rented, together with a number of slaves, for a vegetable garden, and also for some other items connected with the lease of the establishment.

The judgment of the district court, which was based on the finding of the' jury, allowed the defendant, in his reeonventional demand, the sum of three hundred dollars, an amount claimed for fencing, and an abatement of the rent of six hundred dollars for the year 1849, and of four hundred dollars per annum for the three succeeding years. The plaintiff claimed also a dissolution of the lease, but no judgment was given on that point, nor for any part of his rent, the judgment being, as stated, without reference to the plaintiff’s claim.

The abatement of the rent was claimed on account of the front of the land, some eight superficial acres, being taken from his possession by the construction of a new levee, the line of which ran in the rear of the dwelling house, separating it, consequently, from the enclosed land. A claim of abatement of rent was also made by reason of the alleged injury to the crop by a crevasse, Which it is not necessary to consider, as we think the land cut out from the defendant’s use by the construction of the levee fully authorized the allowance made by the jury. We find no error in the judgment to the prejudice of the plaintiff, except that his rent ought to have been allowed, less the deduction established by the verdict. The judgment must "be amended accordingly.

It is therefore ordered, adjudged and decreed, that the plaintiff recover from the defendant the sum of five hundred and ninety-three dollars a-nd ten cents, with interest from the date, being the balance of rent due to him on the 1st of January, 1849, after deducting the abatement allowed by the jury, as well as the amount allowed by the verdict on defendant’s claim in reconvention; and that there shall be an abatement of four hundred dollars per annum on the rent of three thousand dollars per annum, to become due from the defendant to the plaintiff on the 1st January, 1851, 1852 and 1853 ; the half of said deduction to be made- semi-annually; and that the defendant pay costs in both- courts.


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    Robert Patterson & Co. v. Leake and Tucker.
    A factor is not allowed to charge two and a half per cent for a cash advance and eight per cent interest.
    A planter who orders supplies to he shipped to him hy a factor, without ordering them to he insured, must bear their loss, unless he can show that it was customary for factors to insure goods so shipped.
    A factor who receives a promissory note in settlement of a debt due to him, will not he allowed to charge a commission for endorsing the same. But if the note had been negociated for the drawer’s benefit through the factor’s credit, a commission would be allowed for the endorsement.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      W. C. Dioight, for plaintiffs.

      Splane and Coolc, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The action is upon a factor’s account, composed of charges for plantation supplies, commissions for endorsing and advancing, commissions which would have been earned upon sale of the defendants’ crop of sugar and molasses, if the same had been shipped to plaintiffs at Philadelphia, as it was alleged that the defendants had agreed to do. The defendants answered by a general denial. They also admitted the agreement to ship their crop of 1846 and 1847; but alleged that the plaintiffs were to furnish vessels at a proper time to take the sugar and molasses ; that they failed to do so; in consequence of which it was detained a long time at the plantation, at much expense and inconvenience, and the defendants were at length obliged to ship it themselves to New Orleans. For the injury and loss thus alleged to have been sustained, the defendants claimed damages by a plea of reconvention. There was judgment for the plaintiffs for a sum less than they claimed, some of the items of their account being rejected. The plaintiffs have appealed.

The charge for cash advanced to purchase plantation supplies for the defendant, is, sustained by the evidence. It was reserved in a previous settlement of accounts, upon being then disputed, and plaintiffs have a right to claim it now. We think, however, the plaintiffs are not entitled to a commission of two and a half per cent for this cash advance in addition to eight per cent interest. See Lalande v. Breaux, ante p. 505. The same remark applies to another item in the account of $112 19.

The second item, which was for plantation supplies, the defendants contest, upon the ground that the steamer in which they were shipped at New Orleans, for their plantation, was lost on the voyage with the goods, that the plaintiffs had neglected to effect insurance, and must bear the loss. In the letter ordering the shipment, we find no order to insure, nor is it proved that such was the usual course of dealing between these parties, or between planter and factor generally. The objection, therefore, cannot be sustained.

The next item is a claim of commission .of two and one-half per cent for endorsing a note of $4479 33, drawn by the defendants, at one year, and which was in settlement of the balance due to the plaintiffs. If this note had been in point of fact negociated by the defendants, with the aid of the plaintiffs’ endorsement, we would have allowed the commission as a fair equivalent for the use of plaintiffs’ name and credit. This is not shown; and, on the contrary, it would seem the note was delivered to the plaintiffs, and held by them until its maturity. See Lalande v. Breaux, ante p. 505.

Another item is a charge of commission upon sale of a sufficient amount of sugar to pay the note, which, it is said, defendants promised to ship to the plaintiffs, to be sold, and proceeds to be applied to take up the note. We had occasion to consider, in Packwood's case, and in Lalande’s case, the rights of a factor, to charge such commissions as he would have earned, on the sale of the planter’s crop, where the planter has promised to ship and violates his engagement. See 2d Ann. 625; ante p. 505. But, in the present, there was not a positive engagement to ship. The defendants, under the written agreement, reserved the right of selling in Louisiana, if they thought proper, instead of shipping to Philadelphia, to plaintiff’s house.

A similar item is charged for not shipping the crop of 1846, but, in our opinion, the plaintiffs are concluded as to this item, by the settlement made in 1848.

Judgment affirmed, with costs.

      Hon. George Eustis, C. J., was not present during this term.


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    John B. Theall v. J. E. Lacey, Tutor, &c.

    Where a mother and son verbally contract a partnership for planting, and they live together a long time until the death of the mother, it will not be presunjed that they kept regular books of account, nor will the son or his heirs be he,Id liable for npt leaving done so.
    APPEAL from the District Court of the parish of St. Mary, Overton, J.

      W. C. Dwight, for plaintiff.

      Henry Gibbon, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This is a suit of old standing, commenced in 1840 by the plaintiff for the settlement of a verbal partnership between his mother and brother, commenced in 1829 and terminated in 1839, by the death of the mother. They agreed, as proved by a witness, each to put in all their property and funds, and that the son was to be the acting agent and controller of the whole concern, and that the profits of the partnership should be equally divided between them, share and share alike. They owned adjoining tracts of land and each had negroes; they joined their forces for the purpose of cultivating the whole, and were to divide the crops and profits. They worked together from 1829 to 1839, when both died, and this suit is between their heirs to settle the concern.

The partnership was contracted verbally, and, as was natural between a mother and her eldest son, was conducted loosely. We have no accounts between the parties ; nothing but yerbal testimony of the most indefinite character as to the profits and their appropriation.

In this state of the case, the district judge, in 1844, investigated it with very great care, and liquidated the claim of the plaintiff at $1942 95. His calculations, reasoning and conclusions, appear to us reasonable, and to have approached the truth as nearly ns possible. Nevertheless the plaintiff appealed, and the result at which the judge arrived was so different from the extravagant claim of the plaintiff, that this court thought it best to remand the cause, and recommended its trial by a jury. They found a.-verdict for seventeen hundred and twenty-six dollars and fifty-seven cents, with which the district judge was satisfied, and rendered judgment accordingly in favor of the plaintiff. He has again appealed.

There is no definite -evidence which enables us to say that the judgment should be increased. The evidence given on the last trial is not materially different from that offered on the first trial, and the careful investigations of the judge on the first trial, based upon the evidence, satisfies us that the present judgment is about correct.

The plaintiff complains that it was the duty of the defendants’ ancestor to have kept l’egular accounts, and of the defendants to produce them. It is very probable that the mother and son kept no regular accounts. They lived together; were in daily intercourse, and were possibly satisfied with verbal statements as to their profits, and mutually agreed as to the constant appropriation and use of them. Pecuniary demands daily occur to the mother of a family as well as to a son, and these are the principal objects of our revenue; they greatly diminish the profits of our property and labor. The partners died within a short time of each other. The plaintiff was the representative of the mother; her son was represented by the tutor of his minor child, when this suit was instituted, within a year after their death. It is not probable that important papers were withheld that came to the parties in their fiduciary capacity.

The equality of the partners’ property at the commencement, and great disparity at its termination, certainly gives some countenance to the large claim of the plaintiff. But then it is proved that the son was, at his death, largely in debt. He may have made profitable speculations. He may have received means from other sources than the partnership.

Any property owned by the widow Hannah H. Theall individually, and remaining in kind, belongs to the parties, and its partition is not barred by the judgment in this case. The suit has not been conducted as one for the partition of property admitted to be common.

Interest might properly be refused, as the claim of the plaintiff was not liquidated. The application for a new trial was, therefore, properly overruled.

It is decreed, that the judgment of the district court be affirmed; and that the appellant pay the costs of this appeal.


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    Julie Derouin v. Francis Segura.
    An inventory is not such an instrument as may not be contradicted by parol proof, even where the party who seeks to contradict it was present at the taking of the inventory, and signed it as one of the witnesses. The notary who took the inventory is also a competent witness to prove that notes included therein had been previously paid.
    APPEAL from the District Court of St. Martin, Voorhies, J.

      A. S. Magill, and T. C. Nichols, for plaintiff.

      E. Simon, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The object of this suit is to recover a balance alleged to be due on a note originally made by the defendant, to the order of Eloy Segura, the first husband of the plaintiff. The defence is, that this debt has been extinguished by novation, the amount of it having been included in a note, subsequently given by the defendant to Eloy Segura, which has been paid since the death of the latter. The defendant, who can neither read nor write, has adduced the testimony of the two subscribing witnesses, to his ordinary mark on the last note, and also of another person, who was present when the note was given. The testimony fully sustains the defence. The district judge being of opinion, that it did, gave judgment against the plaintiff, and she appealed.

Viren the inventory of the succession of Eloy Segura was made, the two notes of the defendant, being found among his papers, were included in it. This inventory bears the ordinary mark of the defendant, who was acting in the proceedings of the succession, as the under-tutor of the minor heirs ; hence, objections were made by the plaintiff’s counsel, to the admissibility of the parol adduced, on the ground that the defendant could not, in that manner, contradict the written act signed by himself, after the death of Eloy Segura, by proving an agreement between himself and the said Eloy prior to his death; and that the notary, who was one of the witnesses examined, could not be permitted by parol, to contradict, add to, or take from the inventory made by him; and that the object of said testimony was to contradict and annul a portion of the inventory. The judge overruled these objections, and the plaintiff has brought the question before us by bills of exception.

The objections were properly overruled ; the evidence was admissible to show the consideration of the note, and that it had been extinguished by novation or otherwise. The testimony did not contradict the note, nor did it add to or take any thing from it. The acts which cannot be contradicted by parol evidence, are those which contain contracts, and create mutual obligations; an inventory is not such an act; the notary was bound to include in it all the important papers found in the possession of the deceased. If, among the notes inventoried, there were any which did not belong to the succession, the notary was without authority to decide the question of ownership: his functions were purely ministerial, and cannot conclude the legal rights of the defendants, notwithstanding his presence at the taking of the inventory.

The judgment is therefore affirmed, with costs.


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    Henry C. Dwight et al. v. Robert B. Brashear.
    A judgment which has been annulled for the want of citation does not interrupt prescription.
    APPEAL from the District Court of St. Mary, Vborhies, J.

      Splane, for plaintiff.

      Brent, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

If it be conceded that the defendant was a co-debtor in solido with Bemiss, and that the prescription was interrupted by the judicial pursuit of the latter, still it began to run again in Brashear’s favor; and a sufficient time thereafter elapsed to release him by prescription. See Hite v. Vaught, 2d Ann. 971.

The judgment against Brashear was a nullity for want of citation, and was adjudged null. We are unable to understand how such a judgment can be considered as suspending prescription until its nullity is judicially declared. The decree by which it was declared void, ascertained, but did not create its nullity.

It is therefore decreed, that the judgment of the district court be affirmed, with costs.


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    John Smith v. Caroline M. Foster.
    An appeal made returnable at Opelousas on the 1st day of March, and not filed until the first day of the ensuing terra, it appearing that the appellee had incurred no inconvenience or injury from the delay, will not be dismissed on motion.
    An execution cannot be enjoined by an unliquidated claim for damages. In such a case compensation could not take place. C. C. 2205.
    APPEAL from the District Court of the parish of St. Mary, Voorhies, J.

      W. C. Dwight, for plaintiff.

      A. R. Splane, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

At the last term of this court, on application of the appellant and showing satisfactory cause, it was ordered that the time for bringing up and filing the transcript in this court be extended to the 1st of March then next. On the 3d September, being the first day of the present term, the transcript was filed, and the cause was docketed before the business of the day commenced. A motion for dismissal is made upon the ground that the transcript should have been filed on or before the 1st day of March, 1850. It appears that after the 1st of March had passed, the appellee obtained from the clerk of this court a certificate that the transcript had not been filed.

There is no reason to suppose that the appellee has sustained the slightest injury or inconvenience by the omission to file until the opening of this term. There is not even a suggestion of injury or inconvenience. The cause has been brought before us for a hearing at the earliest possible day after the September adjournment. So far as the court recollects the circumstances and motives of the order, no importance was attached to the particular day, provided the filing was in time for the succeeding term. Several similar applications were made on the same day; there was no possibility of obtaining the transcript before the adjournment, and consequently none of making any judicial progress in them until the first Tuesday of September. The motion to dismiss is, therefore, disallowed.

The present suit is a proceeding by injunction to restrain the sheriff in the execution of a writ of fieri facias, upon the ground that Smith has a claim for damages against Mrs. Foster for an amount of $500 for the illegal issuing and prosecution of a former writ of fieri facias ; that, in a suit to enjoin the former writ, Smith had obtained an injunction of that writ, and had asked damages for the illegal issuing and prosecution thereof; that there had been a decree perpetuating that injunction, but that the claim for damages was still pending and undecided; that Mrs. Foster is a non-resident and irresponsible, and ought not to be permitted to proceed to collect her judgment from him until his claim for damages is disposed of.

Judgment was rendered on the same day in this suit, and in the other suit upon the claim for damages. The damages are assessed by the court at $216, and judgment rendered for that amount. In this suit there was judgment sustaining the injunction and perpetuating it for the sum of $216.

In our opinion, the district judge erred in sustaining the injunction in this case. The debt, the execution of which was enjoined, was certain, and liquidated by a judgment. Smith’s claim for damages was unliquidated and in litigation. It was not, when this injunction was obtained, such a claim as legally compensated the debt due to the judgment creditor. See Civil Code, 2205. Howard v. Stone, 5 N. S. 126.

It is therefore decreed, that the judgment of the district court be reversed ; that the injunction be dissolved and the suit dismissed; that the costs in both courts be paid by the said Smith; and that the said Caroline M. Foster recover of the said John Smith and Washington M. Smith in solido, sixty dollars for extra interest and damages.