author: Ilslev, J.

text:
    No. 774.
    Lucien Jex, Administrator v. Emile Tureaud.
    Demand of payment should be made upon the very day a note becomes duo.
    Any inevitable accident, irresistible force or unforeseen occurrence, which could not be provided against, is a sufficient exouse for non-presentment.
    It must, however, be patent, real and as a natural consequence.
    An excuse arising from such a cause, vis major, must also disappear with it.
    It is not necessary that demand be made, nor that notice of dishonor be given by a notary. These requisite may bo performed by any person, lawfully in possession of a note, and competent to testify as a witness.
    When payment of a promissory note cannot be demanded at the time and place of its maturity, a demand should be made as soon after as practicable.
    By the President’s proclamation of March 31, 1863, commercial intercourse was interdicted until May, 1865.
    Promissory notes being the property of a succession, and two months having elapsed irom the restoration of commercial intercourse between the sections, in -which the several parties resided, before the appointment of an administrator: Held—That neither demand nor notice is required until reasonable time after the appointment of an administrator.
    A PPEAL from.the District. Court, Parish, of St. James, Beauvais, J.

      Berault & Legendre, for plaintiff and appellee.

      Gaudei & Roman for defendant and appellee.
   Ilslev, J.

The administrator of the succession of the late Robert Many, sues the defendant to recover from him as the endorser of the following described promissory notes, the several amounts thereof, with interest and costs:

1. A note for $452, payable on the 1-4 January, 1862.

2. Anote for $2,400, payable on Che end of March, 1862.

3. A note for $452, payable on the 1-4 January, 1863.

4. A note for $452, payable on Che 1-4 January, 1864.

5. A note for $5,650, payable on the 1-4 January, 1864.

The demand is resisted by the defendant, who, besides pleading the general issue, denies all liability as the endorser of the notes declared on, for the following reasons, viz:

That the notes endorsed by him wore not x^’esented, and payment thereof demanded at the time and place, when and where they became due; that no diligence was shown by the plaintiff, or any previous holder of the said notes, in presenting them for payment, or in having them protested at the time and place of their respective maturity; that tho notes could and should have been protested. before tho period at which the plaintiff states that protest was made, viz: on the 26f7i July, 1865.

The Court below rendered judgment in favor of the plaintiff for tho amount of the two notes, 4 and 5, maturing in January, 1864, but dismissed his action for those which were payablein the years 1862 and 1868, aud from this judgment the defendant has appealed.

It is a settled rule of the commercial law, that a demand should bo made of the maker of a note on the very day on which by law it becomes due, and unless tho demand is so made it is generally a fatal objection to any right of recovery against the endorser, although the maker himself may, and will be liable on the note. This rule, although apparently harsh, and, x>erhaps, severe in its practical operation, yet is, for the general X>urpose of business, highly useful to the commercial community by introducing xrromptness, fidelity and exactness in the demand of payment. See Story.

There are, however, exceptions to tho rule: “Any inevitable accident or irresistible force, or unforeseen occurrence, which could not be provided against, will constitute a sufficient excuse for non-presentment, etc., at the maturity of the note.”

Such accident, irresistible force or unforeseen occurrence, must, however, be patent, real, positive, and, as a natural consequence; excuses derived from any such cause, vis mayor, as they arise with, and are dependent on, such cause must also disappear with it.

The special grounds relied on by the plaintiff to bring- him within the exception to the general rule in regard to the demand, etc., are:

1. The presence of political circumstances and civil war, amounting to a virtual interruption of all ordinary negotiations of trade and intercourse with the State of Louisiana and the parish of St. James.

2. The state of war between the Northern and Southern sections of the. United States.

8. The occui>ation of the State of Louisiana and the parish of St. ■lames by Confederate forces, which suspended commercial intercourse and access to said parish and State.

4. Public aud positive interdictions and prohibitions of the United States and blockades, which obstructed and suspended commercial intercourse with the said State and parish.

5. The absence of the late Robert Many from the State of Louisiana, and his sojourn, detention, illness, and death in the city of New York.

6. The absence of civil, judicial and ministerial officers, and the closing of their offices and of the Courts of justice in the parish of St. James.

7. Tho succession of Robert Many being unrepresented until the appointment of the petitioner as administrator, and his qualification as such on the 26th July, 1865.

As regards the notes which matured in January of the year 1862 and 1863, we can perceive no reason why the judgment of the lower Court, in regard to them, should be disturbed; for, supposing that Robert Many had these notes with him on Ms arrival in New York, in June, 1861, there was from the time of the capture of New Orleans, by the United States army in April, 1862, open, free and uninterrupted communication by regular public conveyance between New York, New Orleans and the parish of St. James; and as all that part of Louisiana, in which are situated New Orleans and St. James, were then and continued to bo occupied and controlled by the forces of the United States,” etc., commercial intercourse between New York, New Orleans and St. James parish, was by the proclamation of the President of the United States of July 1st, 1861, not deemed unlawful, and did not become so until it was so declared by the proclamation of 31st March, 1863.

The office of recorder of the parish of St. James, was filled until tho 15th June, 1862. It was again in operation in December of that year, and was not afterwards vacated. There was then ample time to make demand of payment of the notes, which became due in January and March, 1862, and in January, 1863, as Robert Many died only on the 28th August, of 1863; retaining all his mental vigor until the time of his demise.

It was not necessary that the demand should have been made nor notice of demand and non-payment given by a notary. These requisites might have been performed and proved by any person lawfully in possession of the notes, and competent to testify as a witness. See Lathrop v. Lawson, 5 An. 238; 11 Rob. 454; 15 La. 552, and Burke v. McKay, 3 How. 71.

The two notes due in January and March, 1862, could not have been presented for payment to the drawer at. thé time and place of their respective maturity, but a demand should have been made, etc., as soon after as was practicable. Poihier Pokte du éóntrat dé óhange. Partie 1, chap. 5, g 144.

No valid excuse is shown for the non-performance of the requisites Of the law, as to demand and notice in regard to the notes, which fell due In 1863.

We concur, therefore, with the Judge of the District Court, that the holder of the notes, which matured in 1862 and 1863, by his negligence and want of diligence, has lost all recourse against the endorser of them.

The two notes payable in 1864, stands upon a different footing. It is true, they were not protested until many months after their maturity; but by the President’s proclamation of March 31, 1803, commercial intercourse was interdicted until the end of the rebellion, which was virtually suppressed in the month of May, 1865, by the surrender to the United States forces of the last of the Confederate armies.

■ Two months elapsed between that event and the date of the protest, and, under ordinary circumstances, that unnecessary delay would have been fatal; but, it seems that no administrator was appointed to the succession of Robert Many until the very day on which the protest was made. Under the commercial law, which in cases like this, is not ip conflict with. the positive injunctions of our statutes, neither demand nor notice are required until a reasonable time after the appointment of an administrator. See Story on Promissory Notes, sec. 250, and Parsons on Bills and Notes, page 360.

No laches is imputed to the administrator, and as the endorser was duly and legally notified of the protest of the notes due in 1864, he is liable therefor.

For the reasons assigned by the Judge of the lower Court, and those now given by this Court •— %

It is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


source: Caselaw Access Project

author: Ilsley, J.

license: Public Domain

text:
    No. 1230.
    Ellen Hackett v. Jacob Schiele and Zebulon York.
    la a suit oa a promissory note, where the defendant pleads that the consideration was money loaned to a third party, he is nob entitled to have that third party called in warranty.
    A PPEAL from the District Court, Parish of Concordia, Farrar, J.

      Mellen, Leach & Adams, for plaintiff.

      J, Ker, G. S. Sawyer, and

      Farrar & Reeves, for defendants.
   Ilsley, J.

This is a suit upon a promissory note, drawn by the defendants in solido, to the order of, and endorsed by, James Hughes. The defense is the general issue ; and it is alleged in the answer, that the consideration of the note sued on was money loaned to Leonard W. Warren, who resides in New Orleans, Louisiana, or at least for his use and benefit, and that he received the said money, which was paid over to him at that date, or very soon after ; and that the said Warren then and there expressly undertook and promised to pay the said obligation to the holder and owner of the said note, for and on account of the defendants, and that the defendants are entitled by law to call him in warranty to defend this suit; wherefore; they pray that the said Warren be cited in warranty, etc.

The Judge of the Court below thinking that, under Arts. 379, 380, 381 and 382 of the Code of Practice, he had no discretion, granted the call in warranty and the delay necessary for that purpose, thereby continuing the cause till the next term of the Court; whereupon the plaintiff reserved her bill of exceptions to the ruling of the Court, and has appealed from this interlocutory judgment, as one likely to work irreparable injury.

We think the Judge of the lower Court erred in granting the defendant a continuance in this case, as he does not even allege in his answer that there existed any privity between Leonard W. Warren and the plaintiff. This, in the ease of Anselm v. Wilson, reported in the 8 La. R. 37, and in a late case decided by this Court at Natchitoches, it was held, does not present a case of simple or personal warranty, within the meaning of that part of the Code of Practice which authorises delay for calling in the warrantor. See Code of Practice, Art. 879 et seq.; 5 Merlin’s Reports, verbo guarantie simple.

It is therefore ordered, adjudged and decreed, that the order of the Court below to continue the case be rescinded, and that it be proceeded with according to law. It is further ordered, that the appellee pay the costs of appeal.


author: IIowEim, 3.

text:
    No. 106.
    E. P. Whitehead et als. v. J. M. Watson et als.
    The testator, Asa H. Mitchell, in his last will bequeathed to his executors certain slaves in trui-t, for the purpose that they should pay over to his mother annually, during her lifetime, the net income and revenues of said slaves, and after her death to convey them, with their natural increase,!! any, to her children, per stirpes, in full warranty : J/eW—That* such a disposition is reprobated by our Code.
    Under the Constitution and laws of the United States and of .Louisiana, the Courts can render no de oree recognizing property in man.
    A. PPEAL from the District Court, Parish of Tensas, Farrar, J'.
    A. M. Ogden and T. P. Farrar, for plaintffs and appellees.

      Reeves <(; Collier, for defendants and appellants.
   IIowEim, 3.

The defendants have appealed from a judgment annulling, as contrary (o law, a clause in the will of Asa H. Mitchell, deceased, made in J.859, by which lie bequeathed io 'his executors certain slaves, in trust, for the purpose, that they should pay over to his mother annually, during her lifetime, the net income and revenues of said slaves, and after her dentil convey them, with their natural increase, if any, to her children or their descendants, per s/irjies, in full ownership.

This, in our opinion, is a disposition reprobated by our Code ; but, if there were any doubt on this point, it is manifestly one which our Courts cannot now execute, as there is no such property to be conveyed by will or otherwise. We think that, under the constitutions and laws of the United States and Louisiana, this Court can render no decree recognizing property in man.

At the date of its rendition by the lower Court, the judgment appealed from was, in our opinion, in accordance with positive law then in force ; but now, so much of it as awards the slaves described therein and their possession to the plaintiffs is absolutely null.

The appellees, however, cannot properly be held liable for costs of appeal.

It is therefore ordered, that so much of the judgment of the District Court as relates to the ownership and possession of the persons therein named as slaves be declared null and void, and that, in other respects, the said judgment be affirmed, with costs.


author: Taliaeerro, J.

text:
    No. 1183.
    James A. Frost v. Miles A. McLeod.
    A party cannot attack collaterally a judgment by an opposition to a monition.
    The title of one who purchases property, sold under execution issued on a judgment, from which a devolutive appeal had been taken, will not be «affected by a reversal of the judgment,
    A PPEAL from the Third District Court, Parish of Lafourche, Gates, J.

      Bush & Goode, for plaintiff and appellee.

      E. W. Blake, for defendant and appellant.
   Taliaeerro, J.

At a probate sale of property of the succession of James Frost and his wife, Elmira E. Ragan, both deceased, made in July, 1859^ Miles A. McLeod became the purchaser of a house and lot in the town of Thibodeaux. In conformity with the terms of sale, McLeod executed three several promissory notes, with one surety bound with him in solido. A special mortgage containing the pad de non alienando and the the vendor’s privilege were retained on the property, in favor of the succession. The notes were drawn payable to the order of John C. Ragan, tutor. In November, 1865, James A. Frost having attained the age of majority, made a partial settlement with his tutor, and received in part of the amount coming to him from the succession of his parents, two of the notes of McLeod, on which there was then due $1,538 70. He proceeded to enforce the payment of these notes by taking out an order of seizure and sale of the mortgaged premises. He provoked the appointment of a curator ad hoc to represent McLeod, who was an absentee. The property was sold, and Evanste Maronge became' the purchaser and received the title. The curator ad hoc took a devolutive appeal from the order of seizure and sale, pending which Maronge, the purchaser, obtained a monition, which was duly advertised. The curator filed an opposition to the homologation of the monition, and stated various grounds for the opposition. The monition was duly homologated by the Court, and the opponent has appealed.

The several objections to the alleged illegalities in the proceedings, by which the order of seizure was taken out, and by reason of which, it is argued, the sale is null, are clearly untenable, as a party is not allowed to attack collaterally a judgment, as in this case, by an opposition to a mpnition. 2N. S. 292. 14 L. 214. 19 L. 198.

The assignment of the two notes sued upon by Ragan, tutor, to Frost, is objected to as contravening Article 355 of the Civil Code. The provisions of that article seem to be exclusively for the benefit of the minor. In this case the minor, now of full age, seeks to give effect to the agreement made with his tutor, by enforcing the obligations acquired from him.

But, the property mortgaged having been sold, and a vested right acquired in it by virtue of its adjudication to Maronge at the judicial sale, the defendant can no longer maintain the pretension of ownership. The appeal taken from the order of seizure and sale was only devolutive. -It did nokprevent the execution of the order. A sale of the property under execution was made, and tlie purchaser acquired a title to it, which would not be divested by a reversal of the judgment. This principle is well settled in our jurisprudence. See N. S. 8 vol. p. 214 ; J. Rob. 94; 2 An. 211.

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


author: Hvman, C. J.

text:
    No. 1205.
    Victor Armant et als. v. Marcilien Bourgeois.
    An appellant mustering into the Supreme Court all tile parties who have an interest in preventing a reversal or modification of the judgment of the lower Court.
    A PPEAL from the District Court, Parish of St. James, Beauvais, J.

      Fred. Landreaux, for plaintiffs and appellants.

      F. P. Porehé, for defendant and appellee.
   Hvman, C. J.

This is a petitory action brought by plaintiffs against defendants, for a certain tract of land in the parish of St. James, wherein they not only claim judgment for the land, but ask for a judgment against the defendant for $1,908, for the revenues of the land while in defendant’s possession, claiming them as -damages.

The defendant, in answer, called in warranty his vendor of the laud, Louis Palms (who had warranted defendant’s title to the same), and asked that, if plaintiff recovered judgment against him for the land and damages, he have judgment against Palms for the amount of damages decreed against him in favor of plaintiffs, and also for the price that ho had paid him for the land, with interest.

Defendant also prayed for judgment against plaintiffs for improvements put by him on the land.

The District Judge rendered judgment decreeing that plaintiffs were owners of the tract of land ; that defendant recover from plaintiff's the value of the improvement put by him on the land, and that defendant recover from Palms the price he paid for the land, with interest.

From this j udgment plaintiffs have appealed, without making Palms, the warrantor, a party to the appeal.

No revenues were allowed plaintiffs in the judgment.

Palms, the defendant’s vendor and warrantor, is interested that the judgment of the lower Court be maintained, as regards revenues ; for, if judgment for any amount was rendered in this Court, in favor of plaintiffs, against defendants for-the same, a like judgment should be rendered in favor of defendant against Palms. See Code Practice, Art. 385. Civil Code, Art. 2482.

On appeal from a judgment of a lower Court, appellant must bring into this Court all the parties in the suit, who have an interest to prevent the reversal or modification of such judgment. See 9 La. R. 473.

Let the appeal be dismissed.


author: Taltapebeo, J.

text:
    1209

      State v. J. H. Sypher and J. L. Petit.
    The charge of “ enticing away from deponent, H. E. Moore’s plantation, certain freedmen laborers,” is not an offense known to oar law.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      R. W. Knickerbocker, District Attorney, for the State.

      Sheldon <6 Parde, for defendants and appellees.
   Taltapebeo, J.

This is an action brought in the name of the State to recover from the defendants the sum of seven hundred and fifty dollars, the amount of a recognizance bond executed by Sypher as principal, and by J. L. Petit as his surety, conditioned for the appearance before a justice of the peace of the parish of Iberville, to undergo a preliminary examination on a charge of “enticing away from defendant, H. E. Moore’s plantation, certain freedmen laborers,” which bond, it is alleged, was declared forfeited by the failure of the accused party to appear.

The defendants set up exceptions, in which they allege various nullities in the proceedings taken against them, and disclaim any liability on the bond sued upon.

The exceptions were sustained in the Court below, and judgment rendered in favor of the defendants.

The plaintiff has appealed.

The bond is obviously defective, and cannot be enforced. It specifies no offense known to our law. No time is fixed for the appearance of the defendant, and no place is designated at which he is to appear. One of the conditions is, that the accused “ shall well and faithfully appear and answer at preliminary examination before justice’s Court, when called upon to answer charges preferred as aforesaid. ”

It is not shown that the accused was notified to attend. The judgment of the lower Court was properly rendered.

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


author: Howell, J.

text:
    No. 1198.
    S. R. Stribling v . C. D. Stewart.
    In a suit upon un open account, composed of distinct contracts, not exceeding five hundred dollars each, one witness to each item is sufficient, although the aggregate amounts to more than five hundred dollars.
    A PPEAL from the District Court, Parish of Pointe Coupee, Cooley, J.

      Beatty & Yoist, for plaintiff and appellee.

      Edward Phillips, for defendant and appellant.
   Howell, J.

This is a suit upon an open account, composed of various items sold at different dates, and the only question presented by counsel of defendant and appellant, is whether or not the proof is sufficient—one witness only having testified to the correctness of each item, no one of which is over $500, although the aggregate is considerably over that sum. The account sued on indicates clearly that there were separate and distinct contracts, at different dates, in relation to each item or several of them together, and the fact that the same person was witness to each of those contracts, does not affect the sufficiency of his testimony upon the whole account, so to require corroboration, as contemplated by Art. 2257 C. C. He may be regarded as a witness to prove several agreements relative to'personal property, embraced in one demand, no one of which exceeds $500, and for the aggregate of which judgment is authorized.

We think the proof is sufficient in law'.

Judgment affirmed.


author: Hitman, C. J.

text:
    No. 1184.
    Union Bank of Tennessee v. Francis E. Robertson et al.
    If presentment ot a promissory note cannot be made at maturity, on account of irresistible power, the holder will not. be deprived of liis right against other parties, provided he makes presentment and gives proper notice, within a reasonable time after he has the power to do so The holder is never hound to an impossibility.
    A PPEAL from the District Court, Parish of Terrebonne, Gates, J.

      Breaux <& Fenner, and Winchester Hall, for plaintiff and appellant.

      Bush & Goode, for defendant and appellee.
   Hitman, C. J.

Plaintiffs sued to recover judgment against F. E. Robertson and Mrs. C. P. Danks, in solido, for $7,694 23, with eight per cent, interest thereon from the 9th of January, 1863, on a note of said amount, bearing that rate of interest from its maturity.

The note'was dated the 9th of. April, 1862, and was payable to the order of C. P. Danks, nine months after date, at the office of Geo. Connelly & Co., in New Orleans. ■ It was endorsed by Mrs. Danks, specially, to Geo. Connelly & Co., and by them endorsed in blank.

The note was presented for payment on 20th July, 1865, at the office of Geo. Connelly & Co., in New Orleans.

On the refusal of Geo. Connelly & Co. to pay the note when presented, it was protested for. non-payment, and due notice thereof given to Mrs. Danks.

The District Judge rendered judgment against F. E. Robertson, and dismissed the suit of plaintiff's against Mrs. Danks.

From the judgment of dismissal the plaintiff has appealed, and the question to be decided is, whether plaintiff has shown sufficient excuse for not sooner presenting the note for payment.

The proof is that the Confederate forces, in September, 1862, took tho note out of plaintiff’s possession, and all control of the note W’as withheld from the plaintiff by these Ibices, and that jtlaintiff did not regain possession of it until July, 1865. As soon as plaintiff recovered possession of' the note it was forwarded to New Orleans to be presented for payment, and payment was demanded as stated above.

If presentment cannot be made on the maturity of the note, because irresistible power prevents,- the holder will not he deprived of his right against other parties on the note, provided that he makes presentment and give proper notice, within a reasonable time after he has power to do so.

The holder is never bound to an impossibility. See Story on Promissory Notes, p. 259.

Defendant Danks has moved to dismiss the appeal, because the defendant Robertson has not been made a party to the appeal.

There is no necessity for making Robertson a party to the appeal.

His liability will not be affected by any judgment that may be rendered by this Court, for or against plaintiff or defendant Danks.

Let the judgment of the District Court, dismissing plaintiff’s suit against C. P. Danks, be reversed ; and further, let there be judgment in favor of plaintiff and against C. P. Danks, for the sum of seven thousand six hundred and ninety-four dollars and twenty three cents, with interest, thereon at the rate of eight per cent, per annum, from the 12th day of January, 1863, till paid, and for the costs of this suit.


author: Howele, J.

text:
    No. 1194.
    In the Matter of the Sheriffalty of the Parish of Pointe Coupée, Leon B. Dayries, claiming to be recognized as Sheriff.
    ■Where an appeal bond is given in a case not mentioned in the order of appeal, the appeal will be dismissed. The order must state clearly from what case the party wishes to prosecute his appeal-
    A PPEAL from the District Court, Parish of Pointe Coupée, Cooley, J.

      Race, Foster & Merrick, and Beatty & Yoist, for W. R. Falconer, appellant.

      Cooley & Phillips, for L. B. Dayries, appellee.
   Howele, J.

A motion is made to dismiss this appeal on the ground, among others, that there is no legal order of appeal in any cause pending before the District Court, contained in the record.

The order is in the following form:

“Slate of Louisiana, in Relation to the Application of L. B. Dayries.—On motion of Wm. Beatty, attorney for Wm. R. Falconer, it is ordered that a devolutive appeal be granted him from the judgment of this Court, either on the opposition or mandamus against him, or ihe writ of quo ¡carranto, on said appellant giving bond and security, conditioned according to law, in the sum of two hundred and fifty dollars, said appeal returnable at the Supreme Court, on the 4th Monday of January, 1867.”

It appears that Leon B. Dayries applied ex parte to the District Court, of Pointe Coupée, to be recognized as the sheriff of said parish, by virtue of a commission in due form from the Governor óf the State; that Falconer presented a written opposition to said application being granted, on the ground that he was the legal and acting sheriff by virtue of an election and commission, and was under no disability, and that no vacancy existed to be filled by the governor.

No issue seems to have been formed, and no evidence taken. The Judge caused an order to be entered on the minutes, recognizing Dayries as the sheriff, who was sworn in and his commission placed on record. Two days thereafter, Dayries obtained a writ of mandamus directing the said Falconer to deliver to him the records, papers, etc., of the office, and the keys of the jail. After hearing the parties, the mandamus was made peremptory, and, subsequently, Falconer obtained a writ of quo warranto upon Dayries, to show by what authority he held and exercised the office of sheriff; to which the latter excepted, and the exception maintained. It is apparent, from these proceedings, that the order of appeal is defective, and not such as to maintain an appeal. It does not authorize an appeal from the three judgments, and the appellant has not made an election of the one from which he desired to prosecute his appeal, but is claiming to have all three reversed, and, besides, the bond of appeal is given in a proceeding not mentioned in the order of ax>peal. AVe cannot, as suggested by counsel, presume that the word “or” in the order should read, and was intended to be and.” The use of the two disjunctives “ either” and “ or, ” forbids such a presumption. Nor can we consider the irregularity one which can be corrected under the 16th section of the act of 1866, organizing this Court. The record does not indicate that the error can be imputed to the judge, clerk or appellee. The appellant must have known from what judgment or judgments he wished to appeal, and in what proceeding he gave his bond of appeal.

We feel compelled to discountenance such loose and irregular practice, which must result in great confusion, and render the course of justice uncertain and insecure.

It is therefore ordered that the appeal be dismissed, at the Costs of the appellant.


author: TaxiIAPErro, J.

text:
    No. 1216.
    J. McWilliams & Co. v. The Corporation of the Town of Plaquemine.
    Tb is the provinoe of 'a jury to find the facts of a oase ; but the linding must be upon evidence.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      Barrow & Pope, for plaintiffs and appellants.

      Benjamin & BehUew and Talbot <& Petit, for defendant and appellee.
   TaxiIAPErro, J.

We learn from the record in this case that, in the month of May, 1862, the mayor and selectmen of the town of Plaque-mine, under the apprehension that the town would sooh be taken by Federal forces, deemed it a'matter of prudence and precaution to destroy all the intoxicating liquors in the place, to avoid their falling into the hands of the soldiery, who, under the baneful influence of drunkenness, might commit acts of violence and outrage. To this end, squads of men went through the town and accomplished this purpose, by emptying of their contents barrels, bottles, and whatever else they found that contained ardent spirits. It seems that an estimate was made at the time of the quantity of liquors destroyed, in reference to future compensation to bo made to the owners. Several individuals afterwards received paymept for their losses, although it was not in every case satisfactory.

The plaintiff in this suit was a loser by the prudential act of the town council, whose estimate of the damage-he had received he was unable to concur in. He therefore instituted this suit, claiming three hundred and fifty-nine dollars, which he alleges to be the value of the liquors destroyed, and twenty-seven -dollars and sixty-one cents, the amount due him by the corporation for articles of merchandise furnished it'on account. He prays judgment for the aggregate sum of three hundred and seventy-six dollars and sixty-one cents, with five per cent, interest thereon from the 1st of May, 1862.

The answer is a general denial. The case was tried twice, and each time by a jury. In the first instance tbe jury disagreed ; in the last, a verdict was rendered in favor of plaintiffs for ninety dollars. "The plaintiff has appealed.

We are unable to see the ground upon which this judgment was rendered. The liability of the corporation was clearly established beyond any doubt. The town council admitted this, but assumed to fix the amount of its own indebtedness ; and the jury seems to have sustained the council in the course it pursued. The plaintiffs’ account was fully proved. Two or three witnesses testified that eighty-nine gallons of whiskey belonging to the plaintiffs were destroyed, and that whiskey, at the time, was selling at from §8 50 to per gallon. One witness swore that from twenty-five to forty bottles of whiskey and cordials were also destroyed at the same time, and that the plaintiffs’ charge for twenty-seven bottles of cordials is correct. The additional small account, for nails and other articles, was admitted. No proof of any kind whatever was adduced to show that the plaintiffs’ account, or any part of it, is incorrect.

It is the province of a jury to find the facts of a case.; but-the finding must be upon evidence. In this case the evidence has been entirely disregarded, and the jury seem to have acted as a kind of amicable compounders. Law and equity require a reversal of tbe judgment.

It is therefore ordered, adjudged and decreed, that the judgment, of the District Court be annulled, avoided and reversed; it is further ordered, that the plaintiffs recover from the defendants, in their corporate capacity, the sum of three hundred and seventy-six dollars and sixty-one cents, with five per cent, interest thereon, from the - first day of May, 1862, until paid, and costs of suit in both courts.

Labauve, J. recused.


author: Ilshey, J.

text:
    No. 1157.
    Succession of Thomas E. Vick.
    By the death of a creditor, his universa) legatee, who is one ot the forced heirs, become* a creditor in his stead.
    A PPEAL from the District Court, Parish of Lafourche, Gales, J.
    . Bush & Goode, for annellant.

      Beleher <& Beattie, for annellee.
   Ilshey, J.

This is a contest for the curatorship of the vacant and intestate succession of Thomas E. Vick, who died in the year 1866.

The applications of Charles C. Williams and of Americus V. Williams, were filed in Court, respectively, on the 12th and 16th of April, 1866.

As Charles C. Williams was the one who first “presented Ms demand” (Art. 1117 C. C.), and he had in the opinion of the judge, the requisite qualifications, and offered sufficient security, he appointed him sole curator of the succession. R. S. 78, t>¿ 12.

The only point we deem it necessary to determine is, whether C. C. Williams, as one of the forced heirs, and the universal legatee of his father, I. C. Williams, deceased, who was a creditor of Thomas E. Vick, became, by the death of his father, a creditor of Vick.

We think he did, in virtue of Articles 866, 867, 934, 936, 939 of the Civil Code, as expounded by this Court in the case of LePage and, others v. The New Orleans Gas Light and Banking Co. and others, 7 Rob. p. 184 ; and Addison v. New Orleans Saving Bank, 15 La. 528.

The other points raised are satisfactorily disposed of by the Judge of the lower Court; and for the reasons by him given and with the opinion expressed by us.

We find no error in the judgment of the lower Court.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


author: Labauve, J.

text:
    No. 1211.
    The State of Louisiana v. Trozin P. Bilbo.
    Where an indictment is found more than a year after the alleged committing of a crime, other than willful murder, arson, robbery, forgery and counterfeiting, to bo valid it must allege upon its faco facts that will negative prescription.
    A PPEAL from the District Conrt, Parish- of Rapides, Cooley, J.

      David Pierson, District Attorney, for the State.

      Sherburne and Daigre, for defendant.
   Labauve, J.

The indictment charged that Trozin P. Bilbo, late of the parish aforesaid, on the — day of June, A. D. 1865, with force and arms, in the parish, district and State aforesaid, and within the jurisdiction of the Ninth Judicial District Court, one bay horse, of the goods and chattels of John Swartzenburg, Jr., of the value of one hundred dollars, feloniously did steal, take and carry away, contrary to the form of the statuto in such case made and provided, and against the peace and dignity of said State.

The grand jury found a true bill, which was exhibited and filed on the 6th day of October, 1866.

The accused, by his counsel, filed a motion to quash the indictment, on the ground, that the crime alleged to have been committed is barred by prescription ; that the same facts as contained in the indictment were made known to a public officer having power to investigate, but no action was had or taken.

Wherefore, he prays that the indictment be quashed, more than a year having elapsed since the alleged crime was committed, and that the accused be released, the statute of limitation having prescribed the action.

The District Court sustained the motion, and the district attorney took a bill of exceptions and moved for an appeal, which was granted.

We are of opinion that the Court did not err. It was the duty of the State to negative in the indictment the fact that prescription had accrued, by alleging that no information of the commission of the offense had, within one year next after the offense, been given to an officer authorized to direct the investigation or prosecution.

On its face, the indictment does not contain everything essential to the punishment of the accused, and which must have been found by the jury before sentence could be rendered. R. S. p. 161, 11. The State v. Foster, 7 An. 255. We have lately reaffirmed that decision.

Judgment affirmed.


author: Hyman, C. J.

text:
    No. 1210
    State of Louisiana v. Doax & Thompson and Edward I. Gay.
    Where there is no principal obligation, there cannot be an accessory one.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      R. W. Knickerbocker, District Attorney, for the State.

      Barrow & Pope, for defendants and appellees.
   Hyman, C. J.

The State is appellant from a judgment dismissing suit brought against defendants, on an appearance bond signed only by Gay, as security for Doax and Thompson. ,

Doax and Thompson, not having signed the bond, are not bound. Neither is Gay bound on the bond, for there cannot be an accessory obligation where there is not a principal one. See 2 Rob. 367, Curtis et al v. Moss.

Let the jiidgment of the District Court be affirmed.


text:
    No. 1201.
    John L. Pointer v. C. N. Roth et al. and E. D. Woods, Sheriff.
    An injunction will be sustained, where the property has been sold, and delivered, prior to the dace of the seizure by the sheriff, under a writ of,/?m' fariat: when the injunction is maintained in part no damages will be allowed.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      Barrow <& Pope, for plaintiff and appellee.

      ¿Samuel Matthews, for defendants and appellants.
   Labauve, J.

This appeal is taken by defendant from a judgment perpetuating an injunction, restraining the defendants from selling three mules, four cows and calves, and carriage, and a buggy, valued at $690.

On the 21st of April, 1860, the defendants’ sold to A. P. Marionneaux, all their interests in a certain sugar plantation, and the implements of husbandry and the animals thereon. Having obtained a judgment against Marionneaux for the price, they seized under a fieri facias the plantation and all the animals and movable property thereon, including the said three mules, cows and calves, carriage and buggy, the sale of which said John L. Pointer enjoined, alleging that he had purchased them previous to the seizure, and that they were his property.

The District Court, after hearing his testimony, perpetuated the injunction, and the defendants took this appeal.

From the testimony adduced in the case, we are satisfied that the four cows and calves, the carriage and the buggy, were sold and delivered to the plaintiff, John L. Pointer, and were in his possession; but, we are of opinion that the three mules, if they were sold, were not delivered to said John L. Pointer, and that they remained in the possession of the alleged vendor, A. P. Marionneaux, until they were seized. The testimony shows that A. P. Marionneaux had leased his sugar plantation, together with the said three mules to Renold, who was notified by A. P. Marionneaux that he (Marionneaux) had sold the three mules to Mr. J. L. Pointer,, and that at the expiration of the lease to turn them over to Mr. Pointer; the mules seized are the same that were leased with the plantation, and alleged to have been sold to Pointer. 'When the mules were seized they were in the possession of the lessee, and, consequently, in that of the lessor and alleged vendor, and could be seized by the creditors of the latter. Civil Code, Arts. 1916, 1917, 2243, 2456, 3390. 1 An. 59. 3 An. 462.

We must dissolve the injunction, as to the mules, but are of opinion that no damage should be allowed, the injunction being sustained in part as to the cows and calves, and carriage and buggy, and dissolved as to the mules for want of delivery.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided. It is further ordered and decreed, that the injunction be maintained, and made perpetual as to the carriage, buggy and four cows and calves, and dissolved as to three mules; the defendants and appellants to pay the costs of the District Court, .and the plaintiff and appellee those of appeal.


text:
    No. 1151.
    Successionon or Grnnuji A. Hudson.
    To constitute a prohibited substitution, the donee must be charged to preserve and return the thing donated, to a third person.
    The doctrine enunciated in the case of Cyyi itn Roy it vl. v, Ltlibcne Latiólas el al. 5 An. 552, is reaffirmed in this case.
    A PPEALfrom the District Court, Parish of Pointe Coupée, Cooley, J.
    J. J. Cooley, for 'Test. Executor.

      Mien Michel, for absent heirs, appellants.
   Labauve, J.

This case presents but one question of law, and that is, whether the last will of the said Gyllum Hudson contains a prohibited substitution, in the following donations :

“Article 2. I give and bequeath to my half-sister, Nancy Stiles, formerly Nancy Estiss, five thousand dollars.

Article 3. I give and bequeath to my half-nephew, Thomas Harrell, son of Samuel Harrell, four thousand dollars. * * * * *

Article 10. I wish the above-named Nancy Stiles and Thomas Harrell to use their portions, both principal and interest, as they see proper, during their natural life; and should they leave heirs of their body at their death, I wish it to be equally divided among them ; but, should they die leaving no heirs of their body, I wish it, or whatever may be left of it at their death, to be divided equally among all those who are now my legal heirs. ”

The executors, on a fourth account rendered by them, have put down for the heirs and legal representatives of said legatee, Thomas Harrell, deceased (who has died since the last payment of §2.000 to him on account of his legacy), §800.

Julien Michel, counsel of absent heirs, opposed said item, on the following grounds:

“That, by article 10 of the will, it was provided that if the legatees, Nancy and Thomas Harrell, should die without leaving heirs of their body, the legacies given to them, or so much thereof as should be left, should not go to their heirs at law, but should go to the heirs of the testator.”

That said Harrell has died without heirs of his body, and with a portion of the legacy to him still unpaid; that the said legacy is either null, as a tldei commission, or the remaining portion of it yet unpaid, should, in accordance with the will of the testator, go now to his legal heirs. He prays that the executors bo ordered to pay said legacy to the heirs at law of the deceased.

To constitute a prohibited substitution, the donee must be charged to ¡¡reserve and return the thing donated, to a third person. Oivil. Code, Art. 1507. The motive of the law is, that property should not be tied up and taken out of commerce, which would be the case if the donor had the right and power to direct to whom should go the donation after the death of the original donee, for the donor might do so ad infinitum.

In this case we see nothingwhich binds the legatee to preserve and return; on the contrary, the testator wishes the legatees to use their portions, both principal and interest, as they see proper.

We are clearly of opinion that the above legacy does not contain a prohibited substitution, and that the legatee, Thomas Harrell, became absolutely the owner of the legacy made to him, and transmitted the same to his heirs at law. Our views are fully supported by the decisions in the cases of Cyprien Roy et al. v. Estibene Latiolas et al. 5 An, 552; Bernard’s Heirs v. Soulè, 18 La. 21 : Bernard’s Heirs v. Goldenbow, 18 La. 95 ; Marcadé, vol. 3, No. 460.

For these reasons, and those given by our learned brother below, with whom we concur, the judgment appealed from must be affirmed.

It is therefore ordered and decreed, that the judgment of the District Court be affirmed, •with costs.


author: Howedd, J.

text:
    No. 825.
    James A. Frost v. Miles A. McLeod.
    "Where an order of seizure and sale has been obtained on a mortgage, and the debtor who granted the mortgage is absent from, and not represented in the State, the law does not require antecedent proof or affidavit of his absence, beiore an attorney can be appointed to represent him.
    The nullity declared by Article 355 of the Civil Code, is relative, and cannot be urged by tho minor, after he becomes of age, who is seeking the benefit of the alleged agreement, by which a partial payment or advance was made to him.
    The transfer of the principal obligation includes that of the mortgage as the accessory. O. Ü. 2615.
    A PPEAL from the District Court, Parish of Lafourche, Belden, J.

      Louis Btish, for plaintiff and appellee.

      E. W. Blake, for defendant and appellant.
   Howedd, J.

This is an appeal from an order of seizure and sale, and is taken by the attorney appointed to represent the defendant, who is alleged in the petition to be absent, and not represented in the State.

The grounds of complaint are:

1. That there is no proof that the defendant is absent, and not represented.

To this, it is successfully replied, that the Art. 737, C. P., under which the appointment of an attorney was made, does not require the plaintiff to make oath of the fact of absence, as contended for, and it is not suggested that authentic evidence of such fact is required; nor is it intimated that the defendant is not absent.

The article in question simply provides that, if the debtor, who has granted the mortgage, is absent and not represented in the State, the Judge, al the request of the plaintiff, shall appoint him an attorney, to whom notice of the demand shall be given in the manner directed, and contrarily with whom the seizure and sale shall be prosecuted. It does not say on proof of the absence, and we are not informed of any law requiring such antecedent proof. The analogy to the conservatory writs is not maintained, as, in those proceedings, facts to be verified by oath are made by law a basis of the writ.

2. That the assignment of the notes to plaintiff is absolutely null and void, having been made by a tutor to his ward, previous to the rendering of a full account and delivery of vouchers, under tho provisions of Art. 355, C. C.

The nullity declared by this article is relative, not absolute, and is iu the interest of tho minor, and cannot be urged in this instance, as it is the minor, now of age, who is seeking the benefit of the alleged agreement, by which a partial payment or advance was made to him. 9 L. 305. 10 ' L. 268. 1 A. 35.

3. That there is no authentic proof of plaintiff’s subrogation to tho rights of mortgage.

The transfer of the note was by notarial act, and by Art. 2615, the mortgage, as the accessory, was included.

Wo consider it unnecessary to pass upon the question of the want of a stamp, as it is not properly presented by the record.

Judgment affirmed,


author: Iusdey, J.

text:
    1162.
    Louis Guion, Administrator v. The Creditors of the Succession of George Guion, deceased.
    Judicial bonds must bo construed with reference to the law uuder which they are given.
    A jury trial is not allowed on an opposition to the proces-verbal of the deliberations of the creditor? of an insolvent succession; such proceedings must be tried summarily.
    The opinion of a majority of the creditors, in amount, must prevail.
    A PPEAL from the District Court, Parish of Lafourche, Gates, J.

      Bush & Goode, for appellee.

      Winchester Hall, for opponents and appellants.
   Iusdey, J.

A meeting of tho creditors of the succession of George S. Guión, having, iqjon tho application of the administrator, an order of the Judge, been duly held, the procos-'verbal of their deliberations was returned to the Court, and the homologation thereof, and a sale of the succession property in conformity thereto, prayed for. . . ..

The prayer of the administrator was opposed by the'appellants, and from a judgment against them upon thoir opposition, they have appealed.

The appellees h.n-.i moved in this Court to dismiss the appeal, on two grounds:

1. That the appeal bond does not comply with the requisites of the law byreciting, “or that tl:e same shall be satisfied by the proceeds of the sale of his estate, real and personal, etc.,” as required by Aitiele 571 of the Code of Practice; and

2. That the bond is made in favor of the administrator alono, and not in favor of the creditors, who, in the present instance, are really the only parties haviug interest.

I. Judicial bonds must be construed, with reference to the law under which they are given; any clause which is superadded must be rejected, and any that is omitted supplied. 12 An. 69. 4 An. 3. 11 La. 174 and 196.

II. It is contended by the appellant, that the bond was properly made in favor of the administrator, who represents them until their claims are settled in concurso; but the Court entertaining some doubt as to the necessity of mating the creditors parties in the present case, well maintained the appeal. 10 A. 235. 2 A. 434.

On the merits—the opposition to the homologation of the proceedings of the meeting of the creditors, rested on two grounds :

1. That the opponents are prejudiced by the'appraisement of the property, made on the 24th November, 1865.

2. That they are entitled to have the tracts of la-nd sold in parcels, and not in block, as required by the other creditors.

There are two bills of exception taken by the opponents to the refusal of the Court to allow them a trial by jury, and to receive evidence offered by them to sustain the second ground, and to show that a sale of the property, in parcels, 'would be more advantageous than one made in block.

The ruling of the Court, in both points excepted to, was correct.

Proceedings of this nature must be tried summarily by the Court, (755 757 and 1036 C. P.,) and the evidence offered being irrelevant and useless, was properly excluded.

The meeting of the creditors was called in pursuance of Articles 1160 of the Civil Code, and of 1038 of the Code of Practice, and the succeeding Article 1039, contemplates that the deliberations of creditors convened by virtue of the preceding article, shall be homologated in the same manner as if it were a procedure in bankruptcy, and that the Court will pronounce summarily on such opposition as shall be made.

This Court, in the case of Neare v. Fontenet, 2 An. 784, intimated that Article 1039 of the Code of Practice, had reference to the insolvent acts of 1817, and the acts amending it, and we are of the opinion that it alluded to the insolvent law of 1817, which was the only one in operation when the Code of Practice was promulgated in September, 1825.

By the acts of 1817, as well as by the existing law, in relation to voluntary surrenders, the opinion of the majority of the creditors, in amount, for the sale or disposal of the property surrendered, or for any other object relative to the interest of the mass of the creditors, shall prevail to give such deliberations of the creditors legal effect, in regard to sales of property, they must be homologated by a judgment of the Court (2 A. 784); but the opinion of the majority, in amount, will prevail' in fixing the mode, terms and conditions of such sales, unless successful opposition is made on account of some irregularities or illegality in the proceedings at the meeting of the creditors, and the Court very properly rejected the opposition, and adopted the opinion of the creditors, in amount, as the basis of its judgment of homologation, and for a sale of the property in-conformity to the said opinion, and according to law.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be and the same is hereby affirmed, the costs of appeal to be paid by the appellants.


text:
    No. 1150.
    J. C. Vanwickle v. W. D. V. Downing.
    In order to bind t.he drawer or endorser o± a draft, the evidence must show That a demand has been mad© in due time
    Where plaintiff seeks to hold the drawer and endorser of a draft responsible on a subsequent promise, lie must show by evidence that the defendant knew, nt the time he made the promise, that he was released from liability by the laches of the plaintiff.
    A PPEAL from the District Court, Parish of Pointé Coupee, Cooley, <1.

      T7ws. J. Cooley, for plaintiff and appellee.

      F. IT. Farrar, for defendant and appellant.
   Hyman, C. J.

Jacob C. Vanwickle, the plaintiff, brought suit in May, 1866, against William D. V. Downing, on two drafts drawn by him on B. O. (Hammings & Co., of New Orleans, payable to his own order, and by him endorsed in blank.

Each draft is for the sum of .86,750, is dated at New Orleans, 24111 February, 1861, payable twelve months after its date, and signed and endorsed thus : “ Win. D. Y. Downing.”

The drafts were accepted by the drawers.

Plaintiff prayed that he have judgment against defendant for the amount of the drafts, for interest thereon, for costs of protests and for costs of suit.

Defendant, in answer, admitted his signature to the drafts sued on, but denied responsibility on the drafts.

The District Judge rendered judgment, as asked for by plaintiff, and defendant has appealed from the judgment.

Plaintiff adduced in evidence protests, of the 27th February, 1862, for non-payment of two drafts, which differ from the drafts sued on only in the name of the drawer and endorser.

The drafts protested were drawn by J. D. Y. Downing, and by him en - dorsed in blank ; and the protests show that, on the 27th February, 1862, demands for their payment were made on the acceptors, B. O. Cummings & Co.

Plaintiff also introduced in evidence the certificates of the notary (who protested the drafts), who therein declared that he served notices of the protests on the drawer and endorser; by depositing on the day of the protests, in the post-office of New Orleans, the notices addressed to J. 1). Y. Downing, at Morganza post-office, Louisiana.

The protests do not show that demands were made for the payment of the drafts sued on ; on the contrary, they show that demands were made for the payment of other drafts.

It is impossible for the drafts that are protested to be the drafts that are in suit, if the protests declare truth.

It is unnecessary to inquire whether the notices of protests are sufficient or not; for, if there be no proof of demands for the payment of the ■drafts at their maturity,.the plaintiff cannot recover,. No such proof has been adduced.

Plaintiff, not relying fully on the protests and certificates of notices of ■protests, offered in evidence a letter of defendant’s, which is as follows :

•'Mr. Vanaielcle—Dear Sir : R. C. Cummings wrote me, a few days ago, that you held some of his and my paper, and wishes to pay it. You will write to me immediately, as I wish to confer with him on the subject. My advice is to accept the offer. The manner in which property is on the wing, I do not think many debts will be settled after this war, for I firmly believe everybody will be broke, and universal repudiation will be the gamo. Respectfully yours,

Wk. D. Y. Downing.

Bayou Ferdoche, Monday, June, 1863. ”

By interrogatories on facts and articles, propounded to defendant, plaintiff; proved that the paper referred to in the letter was the drafts now sued on; and plaintiff contends .that, by this letter, the defendant acknowledged his liability to pay the drafts.

If the letter be a promise by defendant to pay the drafts, or an acknowledgment of his liability to pay them (and on which we express no opinion), and the plaintiff expects thereby to escape from the consequence of his laches, he must show by evidence (which he has not done), that defendant knew when he wrote it, the letter, that he was released by laches from responsibility on the drafts.

It is decreed that the judgment of the District Court be annulled, avoided and reversed ; it is further decreed that the case be dismissed as of nonsuit ; it is further decreed that plaintiff pay the costs of suit in both Courts.


author: IiiSnnv, J.

text:
    6828.
    Auguste Provosty, Syndic, v. James M. Putnam.
    fn an action of damages plaintiff must put defendant in default before he can recover. In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party wishing to^pub the other in default, must, at the time and place expressed, or implied, by the agreement, offer or perform, as the contract requires, that which, on liis part, was to be done, or the other party will not bo legally put in default.
    As a prerequisite to recovery of damages for violations of a commutative contract, the defendant must have been put. in default.
    A PPEAL from the Second District Court of New Orleans, Morgan, J.

      Clarice & Bayne, for plaintiff and appellant.

      Lacy and Spearing, for defendant and apxiellee.
   This case was tried by a jury iu the lower Court.

IiiSnnv, J.

This action, founded on Article VJ589 of the Louisiana Code, is brought to recover from the defendant, the difference in the price of a certain plantation, etc., which had been adjudicated to him at a syndic’s sale; and which, in consequence of his refusal to comply with the terms of the first sale, was sold a second time for a less price.

The property advertised for sale and adjudicated, was a large sugar plantation, “ with <pofl seéd-cane to plant two hundred arpenls.”

The answer is a general denial, and, also, a sxiecial defense is set ux>, the principal ground of which is, that at the time of the sale, there was not on the property sufficient seed-cane to plant sixty arpents, and that he was deceived, and led into error in this particular, by the advertisement, and that he was under no obligation to accept the adjudication made to him by the sheriff. He claimed damages in reconvention, but this he afterwards abandoned.

The case was submitted to a jury, and a judgment was rendered by the Court below, upon their verdict in favor of the defendant, and the plaintiff, after an ineffectual attempt to obtain a new trial, has appealed.

The appellant has filed in this Court his written argument; but none has been presented to us on behalf of the appellee.

The law gives three remedies against the defaulting purchaser, at auction sales—the action for the specific performance ; the ordinary action for damages, and the action based upon the folle-enchere, which, itself, if properly conducted, liquidates the damages, and if the plaintiff could not have maintained his action in one of the two modes first mentioned, he must fail in this one.

Assuming as true, what is otherwise satisfactorily proved, that there was as great a deficiency of plant-cane, as is alleged in the answer, it follows that the vendor was not in a condition to comply with this very important part of his contract—to deliver to the purchaser, with the plantation, sufficient seed-cane to plant 200 arpents, and this was the obligation imposed on him by his contract, and by law. Art. 2450 C. C.

This is an action for damages, and as a prerequisite to their recovery, the defendant must have been put in default, which has not yet occurred. “ In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the X^arty who wishes to put the other in default, must, at the time and x>lace expressed in, or implied by the agreement, offer, or perform, as the contract requires, that which on his part was to be performed, or the other parly -will not be lecjalhj pniin default.” See Article La. Code 1908; 3 La. 382; 15 La. 282; 5 A. 578.

'Whatever was the defendant’s motive in bidding uxdoii the property, he could still claim legally, as a purchaser, the full benefit of his contract, which was an entire one, and entitled him to what he bought, and every part of it. C La. 485. Nor was he compelled to perform his part of the contract as purchaser, until the seller showed his readiness and ability to perform his. 15 La. 282.

A sufficiency of good seed-cane is the life of a sugar plantation, and the quantity advertised and adjudicated with it to the defendant, formed so important an item in the sale, that persons present thereat say, that had it been made known how great was the deficiency (a fact not brought home to the defendant) they would not, although otherwise dis-X>osed to buy, have made a bid upon it. Seed-cane that year was very scarce, and the removal of it from one plantation to another, always injures it. None was put upon the place to supply the deficiency, and it is not, therefore, necessary to determine whether that would have been a compliance with the contract, on the part of the vendor.

The case of Hall et al. syndics v. Nevill, and Article 2487 La. Code, cited by the appellee, have no application to the xn’esent case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


author: Taeiaeerro, J.

text:
    722.
    Roth & Deblieux v. Henry E. Moore.
    A commercial partnership being plaintiffs in a suit, and a commission to take testimony issuing after tlie death of one member of the partnership, and before his representatives had been made parties to the suit: Jfdd—Thai; the testimony should be admitted: the representatives alone have the right to object.
    Defendant being proven to have been a partner in the transactions forming the basis of the suit, and the goods having inured to the benefit of that partnership, he is liable, notwithstanding that the credit had been given to the other party, individually, who had made settlement by giving his separate note for the‘balance due.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      Samuel Matthews, for plaintiffs and appellees.

      Barrow <fi Pope, for defendant and appellant.
   Taeiaeerro, J.

The plaintiffs allege that the defendant and John W. Combs, a resident of the State of Kentucky, were commercial partners, trading in slaves, horses and mules, in the year 1857 and 1858. That during that period, they furnished Moore and Combs merchandise of various kinds, needed and suitable for their business. A running account is shown extending from July, 1857, to the middle of April, 1858, amount-ing to $2,586 06, reduced by credits to $596 06, tho balance for which, with five per cent, interest from the 15th of April, 1858, this suit is brought.

The answer is a general denial.

Plaintiffs had judgment, and defendants appealed.

A bill of exceptions” was taken to the admission of the testimony of Eieetwood, a witness, on the ground that before the commission issued, under which the evidence was taken, Roth, one of the plain tiffs, had died, and his widow and his heirs made parties after the commission issued, all the parties to the suit were not before the Court, when tlie commission was taken out.

The Court a quo, we think, properly overruled tlie exception, for tho reason that the defendant had been served with a copy of the interroga* tories, and, besides, that the irregularity objected to, could only be urged by the widow and legal representatives of the deceased plaintiff.

It appears that, on the books of Roth & Deblieux, the account sued ■ upon was kept against Combs alone, and it is shown that a note was given by Combs to the firm of Roth & Deblieux, on the 3d of June, 1858, for six hundred and fifty-two dollars and eighty-six cents, with interest from the 1st of April, 1858. This note, it is admitted by plaintiff, was taken in liquidation of the account sued upon. A witness, who had been a clerk in the store of the plaintiff, testifies that they had on their books an account of eight dollars charged to Moore & Combs, and that this account was carried into the account of J. ~W. Combs. Two other mercantile establishments in Plaquemine charged goods to Combs & Moore. It is argued that these facts show the dealings of Roth & Deblieux to have been with J. W. Combs alone, and that they accepted his separate note in payment of those dealings.

Against this view of the case the evidence, in behalf of the plaintiffs, leaves no reasonable doubt that the goods furnished by them, inured to the benefit of the partnership of Moore & Combs.

The note for $652 86 was deposited in the Cpurt,

The existence of the partnership is proved beyond a doubt. The personal responsibility of the defendant, for the partnership engagements, follows as a legal consequence.

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

Labattve, ,T. recused.


author: Tadiai-ebbo, J.

text:
    No. 1159.
    Raymond P. Gaillard v. His Creditors.
    A syndic’s conimibHon.s are limited to five per cent, on the net amount of money received by him.
    A PPEAL from the District Court, Parish of Lafourche, Gates, J.
    . Burgmieres & Blake, for plaintiff and appellee.

      Bush <& Goode, for-appellants.
   Tadiai-ebbo, J.

By the proces-verbal of the notary, who presided at the meeting of the creditors, on the 16th day of October, 1866, it appears that, after the vote was taken for syndic, it was found thatR. P. Gaillard, the insolvent, had received votes representing $14,867 68, and that Louis Bush had received votes representing $30,255 35. The majority in amount decided that Gaillard, declared to be chosen syndic, should be required to give security for his administration, and that he be allowed a commission of ten per cent, up to twenty thousand dollars, and five per cent, over that amount. When the proceedings were returned to the District Court, their homologation was opposed by several of the creditors, for various reasons, but chiefly on the ground, as alleged, that by the legal votes cast at the meeting of the creditors, Mr. Bush was elected syndic, and that the allowance of ten per cent, commission to the syndic is unauthorized by law.

The opposition was overruled by the Court below, and a judgment rendered homologating the proceedings. Two of the opponents have appealed.

1. As to the dioico oí a syndic, we do not find that the opponents have been successful iu rebutting the evidence adduced by the creditors whose claims are opposed, except, perhaps, in one instance. The claim oí Jules Labatut & Co., put down at $16,550, is predicated upon ten promissory notes of $1,355 each, dated March 8th, 1866, payable in annual gradation from one to ten years, without interest. It is apparent, upon tlie face of these notes, that their aggregate sum is $13,550, instead of $16,550, showing an over estimate of $3,000. The opponents contend that these obligations, some of which are due, should be reduced by a discount at the highest rate of conventional interest, in conformity with the provisions of Art. 2019 of the Civil Code. Reducing, then, the aggregate sum of the notes by the discount claimed, and adding to the discount the overestimate of $3,000, we have $8,231 to be taken from $16,550, the amount erroneously represented by the vote on Labatut’s claim. But, finding no valid reasons for rejecting or reducing any of the other claims opjrosed, the liet aggregate amount, represented by the vote of Mr. Gaillard, will still largely exceed the »iqaqqt yepre¡?eqted by the yote of Mr, Bush,

Next, as to the commission, of ten per cent.0 allowed the syndic by the majority of the creditors in amount, we find that the law limits the. amount of the syndic’s commissions to five per cent, on the net amount of money received. The commission in this case being fixed at ten per cent, by the deliberations of the creditors, we think the proceeding illegal.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so as to accord to the syndic five per cent, on; the amount of money received by him, and that the judgment in all other respects be affirmed. It is further ordered, that defendants and appellees pay costs of this appeal, and that opponents pay costs in the Court below.


author: Howei/d, -J.

text:
    No. 1171.
    L. Lacroix v. G. W. Bangs.
    A suit having been dismissed, cannot be reinstated on the docket by an order granted expaUc,

    A PPEAL from the District Court, Parish of Lafourche, Gates, J.
    . 11: D. Jordon, for plaintiff and appellee.

      Bush & Goode for defendant and appellee.
   Howei/d, -J.

On 3d March, 1865, the plaintiff instituted this suit to recover a sum of money loaned to defendant, who, on 16th October following, filed an answer admitting that he had borrowed, and still owed the money, but alleging that it was placed in the hands of one P. E. Michel, to pay for cotton purchased of him, called said Michel in warranty. Michel was cited as warrantor, but made no appearance.

On the 8th Juno, 1866, the following entry was made on the minutes of the Court: “The plaintiff being called at court-house door to come forward and prosecute his case, and not answering, this case was dismissed at his'costs.” The record does not show that the case was regularly fixed for trial, nor on whoso motion it was dismissed. On the next day (June 9th) the order of dismissal was rescinded, and the case reinstated on the simple motion of plaintiff, without notice to defendant or warrantor. On 26th.same month, default was entered against the warrantor, on whose motion does not appear. On Gtli July following, the case was fixed for trial instanter, judgment was rendered against defendant, Bangs, on his answer, for the sum claimed, and on the evidence adduced the default was confirmed, and judgment for the same amount rendered against Michel as warrantor, and in favor of defendant, which judgment is to accrue to the benefit of plaintiff.

The judgment was signed on the same day, and notice thereof served on Michel, warrantor, on the 13th July, seven days afterwards, from which he alone appeals, and claims its reversal on two grounds, one of which we consider sufficient, to wit: the irregularities apparent on the record. He contends, and we think correctly, that after the dismissal of the case, whether regular or not, it could not be reinstated, if at all, without notice, and that the proceedings, after such dismissal, are ex parte and illegal.

When this suit was dismissed, there was nothing before the Court, and whether the judgment should be considered as one simply of nonsuit or not, the action of the Court could not be reversed, and the case reinstated without notice, in some form to the opposite party, of the proceeding by which it was reinstated on the docket.

The defendant does not complain of the judgment against him. Ho and plaintiff are before us as appellees, and the latter urges the affirmance of the judgment against the warrantor.

It is therefore ordered, that the judgment against R. E. Michel, warrantor, be reversed, and the proceedings as to him dismissed; the costs in the lower Court and the costs in warranty to be paid by defendant, and costs of appeal be paid by appellee.


text:
    No. 1240.
    New Orleans Mutual Insurance Company v. William Bagley.
    A. mortgage debtor may legally renounce tbe benefit of appraisement in the proceedings to sell on executory process, and will not be afterwards allowed to attack the sale as invalid.
    The statute of March, 3866, requiring that all property sold under execution should bring its full appraisement, does not deprive the debtor of the right to make a waiver of the benefit of appraisement.
    A PPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Hennen, for plaintiff and appellant.

      G. H. Penn, for defendant and appellee.
   Howell, J.

The only question presented in this appeal is, whether the clause in the act of mortgage, dispensing with the appraisement of the property mortgaged, is valid in law ?

This point was presented in the case of Broadwell v. Rodriguez, reported in 18 An. p. 68, and after full discussion by counsel, and mature deliberation by the Court, it was held that such a clause was legal and valid; and we find nothing in the circumstances of this ease, or the able argument of counsel, to cause us to change our opinion, or relieve the case from the application of the principle there enunciated.

If the contract was legal at its execution, the subsequent change in the solvent condition of the obligor cannot impair its legality, and the fact ■that the Legislature, in March, 1866, enacted that property should bring its full appraisement, does not affect the principle on which tho above decision was based. We may, indeed, presume that the Legislature, in the adoption of said statute, subsequent to the decision in Broadwell v. Rodriguez, recognized the construction placed upon the nature of such laws by this Court, as the right to make a waiver of appraisement was not prohibited.

It is therefore ordered, that the decree of the lower Court, ordering the mortgaged premises to be sold with appraisement, be reversed ; and it is now ordered, that the said property be sold without appraisement, and in other respects, the judgment appealed from be undisturbed ; defendant to pay costs in both courts.


text:
    No. 706.
    S. P. Greves, Testamentary Executor, v. Tomlinson & Son and H. V. Babin.
    To bind tiie endorser on a promissory note, notice of demand or non-payment must be shown. Notice loft at the bank where the notéis mado payable is not notice to the endorser, unless it is shown that it reached him in a reasonable time, or an effort made to serve it on him.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J,

      S. P. Greves, for plaintiff and appellant.

      Dunn <6 Herron, for defendant and appellee,
   Howell, J.

The sole issue involved in this controversy, is the liability of H. Y. Babin, as endorser on a promissory note, which was protested at its maturity, on 21st February, 1863, after demand of payment at the Branch of the Louisiana State Bank at Baton Rouge, but of which the endorser denies having received notice.

It is shown that Babin resided, during the year 1863, some twelve miles from the town of Baton Rouge, outside of the military lines of the Federal forces, then occupying the town ; but that he was seen occasionally in the town, and resumed his residence there in February, 1861. No notice of demand or non-payment is shown to have been given, until service of citation in this suit, on 3d June, 1865. Notice left at the bank where the note was payable, is not notice to the endorser, as it is not shown to have reached him, and no effort made to serve it.

Judgment affirmed.


text:
    No. 916.
    The State v. Peirce et als.
    tYliere more than one year intervenes between the commission of the offense (willful murder, arson, robbery and counterfeiting excepted), and the finding of the grand jury, the facts which interrupt prescription must be set forth in the indictment, otherwise the prosecution must fail.
    ¿I PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      B. W Knickerbocker, District Attorney, for the State.

      J. H. Muse, for defendants and appellees.
   Howell, J.

On 25th January, 1866, the appellees were indicted by the grand 'jury for the parish of East Feliciana for larceny, charged to have been committed on 20th July, 1862. They severally pleaded the prescription of one year, in bar of the prosecution, which was sustained, and the State appealed.

In the cases of the State v. Foster, 7 A. 256, and the State v. Freeman et al., 17 A. 69, it was held that when more than one year intervenes between the commission of the offense (wilful murder, arson, robbery and counterfeiting excepted), and the finding- of the grand jury, the facts which suspend or interrupt the prescription must be set forth in the indictment, otherwise the prosecution cannot be maintained. The indictment in this case is defective, in this respect, and the facts necessary to take the case out of the statute of limitations could not be proven, and, consequently, the plea was well made.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 6807.
    C. A. & J. S. Merritt v. Wright, Williams & Co.
    If an agent exceeding powers, and, loss ensue therefrom, it will fall on him, unless the principal subsequently ratify, and recognize his departure from the letter of his instructions.
    A party cannot avail himself of his own letters, as evidence, unless the letters have been called for by the opposite party to establish some fact against him.

      A fortiori, their contents cannot be proved by parol.
    The testimony shows that Downing, a merchant in Vicksburg, received from plaintiffs a draft on defendants, Wright, Williams & Co., of New Orleans, and forwarded it to them with a letter written by himself; that he copied the letter into his letter-book, and, subsequently, sent tho letter-book to defendants, and. they are nowin possession of the letter, and the letter-book, and have failed to produce them on demand: Held-—'That on a foundation thus broad, the plaintiff's are entitled to pi*ove the contents of the missing letter by parol, and in connection therewith to show the eop> from the letter-book.
    A PPEAL from the Third District Court of New Orleans, Duviyneuud, J.

      B. 8. Tappan and Breaux & Fenner, for plaintiffs and appellees.

      (Varice <6 Bayne, for defendants and appellants.
   Taliaferro, J.

In this case, Wright Williams & Co. are sued for ¡jp750, the amount of a draft drawn upon them in March. 1858, by Sarah Miller, in favor of the plaintiffs.

The defense is, that defendants received the draft in the course of business, from R. N. Downing, of Vicksburg, Mississippi, the holder, under the blank endorsement of plaintiff, and with instructions from Downing to place the proceeds to his credit; which was done.

R. N. Downing in 1853, was a merchant of Vicksburg, having extensive business transactions with Wright, Williams & Go., of New Orleans. He had a large running account with them; was in the habit of drawing bills upon them, and of shipping cotton, and remitting bills, etc., to them 1o stand to his credit. The plaintiffs, -who had no business transactions with the defendants, received the draft in question from Sarah Miller, whose factors the defendants were at that time. 'About the 22d of March, 1858. plaintiffs delivered the draft to Oliver H. Perry, the book-keeper of Downing, requesting Perry to send the draft to Wright, Williams & Co., with instructions to hold the proceeds to their order. Perry handed over the draft to Downing, who, it seems, enclosed it to Wright, Williams <fc Co., on the 29th of March.

It will be proper here to notice two bills of exceptions taken by tlie defendants in the course of the trial. In the first, they allege the incotnpetency of Perry, as a witness, on the ground of his liability lo the plaintiff, arising from Ms having transcended Ms agency by delivering the draft to Downing for transmission, when, by the express terms of the agency, he could only execute that trust himself.

This objection would have much force, if the subsequent course of the plaintiffs did not amount to an approval of the act. The doctrine is that, “if an agent exceed Ms powers, and any loss ensue, that loss will fall on Mm. However, if Ms principal subsequently recognize his departure from the letter of his instructions he is exonerated; for omnis ralihabitio retro trahitur et mandato priori CEcpdparalur. And such a recognition maybe inferred from the employer’s conduct. Smith’s Mercantile law, page 147. Story on Agency, page 283, $ 253, Greenleaf on Evidence, vol. 2, § 67.

We find that the plaintiffs, in this case, when they ascertained that the proceeds of their draft had been misappropriated, wrote from Tennessee;, two letters to Downing, one in June, the other in July of the same year, urging him to pay them the amount of the draft, as they were much in need of money. Downing died in the month of September following, leaving his estate insolvent. In June, 1856, nearly three years after, the plaintiffs instituted the present suit against Wright, Williams & Co. We conclude, from these facts, that the plaintiffs ratified the act of their agent, and exonerated him. The exception was therefore properly overruled.

The second bill of exceptions is to the exclusion, by the Court, of various statements of the witness, Outlaw, in regard to the contents of certain letters, and the opinion of the witness touching their import, etc. When this testimony was offered, and objected to as secondary, inasmuch as it refers to letters which are in writing, the defendants thereupon offered to produce from their letter-bools copies of certain letters referred to in the testimony of the witness, as soon as the letters could be procured from their counting-house. It was further objected, that the defendants could not use their own letters to make evidence in their own behalf.

The Court states its reasons for sustaining the objections to be, that the testimony is illegal, and that no letters were before the Court.

We think the exception was correctly sustained. The defendants could not avail themselves of their own letters as evidence, unless the letters had been called for by plaintiffs, to establish some fact against them. 1st Greenleaf, \ 563. A fortiori, they could not prove their contents b'y parol. It is also apparent from the record, that the matters sought to be proved by the testimony offered are foreign to the issues raised by the pleadings.

On the trial of the case, the plaintiffs took orders subpoena duces tecum against defendants to produce the letters to them from Downing under date of March 29th, 1853, in which the draft was enclosed, and, also, to produce the letter-book of Downing, which they supposed to be in defendants’ possession. The defendants answered that no such letter as the one called for could be found, and that the letter-book of Downing was not in their possession. The testimony of Outlaw, a witness on the part of defendants, and a clerk at the time in the house of Wright, Williams & Co., is full in regard to the letter. Upon his examination-in-chief he said: “I have looked carefullyfor any letter from Downing, enclosing the draft referred to, and do not find any. The draft may havé been delivered personally, or have been enclosed in a letter. I see by my own entries, that it was placed at the time stated to the credit of Downing.” Upon cross-examination he said: “I saw the letter from Downing, which enclosed the draft described in my previous evidence. I do not recollect the language of that letter; it is too long a time; it was in 1853. I do not recollect its purport. I have looked for this letter since I have been in the city this trip, but I could not find it. It is usual for defendants to keep such letters, but some how or other it has been taken away. ” In relation to Downing’s business, the witness said: “Downing was always largely a debtor in account with defendants; he was always largely indebted to defendants, and is still indebted to them. Downing died a bankrupt.”

The witness, Perry, was twice examined in the progress of this case; first in January, 1857, under commission; and afterwards, in March, 1859, Ms deposition was taken in New Orleans by consent. Upon Ms first examination, he said he had access to Downing’s letter-book, and he annexed to one of his answers a copy of the letter of March 29th, 1853, in which the draft was transmitted by Downing to the defendants. At the last examination, he stated that he had then recently endeavored at Yicksburg to get' the letter-book of Downing, but was informed by the head clerk of the house of Allen, Wright & Co., that it had been sent to Wright, Allen & Co. of New Orleans. The letter is of considerable length, embracing various business matters, and the concluding paragraph relates to the draft as follows: “ I was not aware of any draft in our possession drawn by S. Miller, until the reception of your letter, when I was informed by Mr. Perry, my book-keeper, that it was account C. A. & J. S. Merritt, and that he had enclosed the letter of advice in mine of the 22d inst. The draft he did not send, as it was not endorsed. I enclose the same to you now, and if paid, to credit of the Merritts, who will draw on you for same. The drawer is a widow lady, living near Lake Providence, and was drawn here by her son, who stated the funds were in your hands. Tours truly, R. N. Downing.”

The introduction of this sworn copy from the letter-book of Downing was objected to on the ground that being a copy of a copy, it was inadmissible. Further objections were made to the statements of the witness as to the instructions given by Downing to Wright, Williams & Co., as these instructions were in writing. It is seen that plaintiffs called for the production of the original letter of Downing, in which the draft was sent, a letter which it is clearly proved was in the possession of the defendants, and they failed to produce it or account for its disappearance. It is also seen that efforts were made to produce the letter-book of Downing, but without effect. Upon a foundation thus broad, we think the plaintiffs had the right to prove by parol the contents of the necessary letter, and in connection with it to show the sworn copy taken from the letter-book. The witness swears directly, that the letter of the 29th of March, contained the instructions to defendants to place the proceeds of the draft to the credit of the Merritts; and that the copy of that letter in the letter-book showed the original to have been written by Downing, with whose handwriting the witness was well acquainted.

Without the preparatory steps necessary to enable the plaintiffs to prove the contents of the letter by parol, the testimony of the witness that he delivered the draft to Downing, with instructions to advise the defendants to place the proceeds to the credit of the plaintiffs, would raise the presumption thatDowning had complied with these instructions. The evidence adduced leaves no doubt that he did so.

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


author: Insmiv, J.

text:
    No. 1249.
    Eliza B. Bogan, Wife of James Bogan, v. A. C. Finlay et al.
    It devolves on the party objecting to testimony to state the particular grounds upon whioh its intro- ' duction is resisted.
    All corporeal movables may pass by manual gift, accompanied by real delivery.
    Where a judgment of separation of property betweon the husband and wife is made the basis of an injunction suit by the wife, the judgment is admissible in evidence to prove ra/t ipmm; but, where ' the defendants in their answer attack the validity of the judgment, as fraudulent and collusive, it will produce no legal effect unless its genuineness is established by other legal evidence.
    A . PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      Brief of 8. P. Greves, for plaintiff and appellant.
    —This is an injunction suit, in which the plaintiff and appellant sets forth that, in suit No. 617 of the docket of the Fifth District Court for East Baton Bonge, entitiled Eliza B. Sholfield, wife, v. James Bogan, husband, she was separated in property from her said husband, and decreed to own, as her separate and paraphernal property, a certain bay horse, buggy and harness; and that, since said judgment, she has been in possession of said property.
    The petition further sets forth that, in suit No. 455, entitled A. G. Fin-lay ei al. v. James Bogan, said buggy, horse and harness have been seized and advertised to be sold as the property of James Bogan, notwithstanding her ownership and possession of the same by decree of Court.
    Further prays that the sheriff be restrained by injunction from selling said property, until the question of title should be decided by the Court.
    The answer of defendants, to the petition in injunction, alleges that the judgment rendered in suit No. 617 is not valid ; charges collusion and fraud upon Bogan and Ms wife in procuring said judgment, for the purpose of defeating the claim of the plaintiffs in suit No. 455; that the property, of which the sale is enjoined, belonged to the husband, and that the wife brought no property into the marriage.
    On these grounds they pray for the dissolution of the injunction, and upon these pleadings the parties went into trial.
    The plaintiff in injunction offered in evidence the judgment in suit No. 6.17, decreeing the horse and buggy in controversy to be the separate property of petitioner. Objection having been made by counsel for defendants, the Court refused to receive the judgment in evidence for any purpose. Whereupon the counsel for plaintiff reserved his bill of exceptions to the ruling of the Court.
    In this bill of exceptions, the Court admits that the judgment offered in evidence was ostensibly valid.
    Now, the decree and proceedings in suit No. 617 being the basis of the suit for injunction, and said decree having been attacked in the answer as fraudulent and collusive, the judgment and proceedings should have been allowed in evidence, not as conclusive against the defendants in injunction, but to show that such a judgment existed, what that judgment decreed, and the proceedings under it, in order to refute affirmatively the allegation of the answer, and that the Court might determine whether the judgment, independent of the question of the property in the horse and buggy enjoined, was valid and in effect dissolved the community, which question had been put at issue in the answer, and which it was the right of the plaintiff to have finally adjudicated upon.
    As the matter stands, the judgment of separation of projjerty is admitted to be valid on its face, leaving the question of the property of the horse, buggy and harness to be proven aliunde the record, which plaintiff endeavored to do by offering in evidence, as proof of a manual gift or donation, the letter of J. B. Gribble, accompanying the delivery of the buggy aud harness to the plaintiff.
    The grounds on which the Court rejected the evidence were, that the gift was not a manual one, in the sense of Art, 1526 C. C.
    If the construction of that article by the lower Court be true, then the gift of affection from an old family friend to the plaintiff must be defeated in its object, and go to the grasping creditors of the husband.
    This Court, in Maillot v. Wesley, 11 An. 467, has placed a liberal and sensible construction upon this article of the Code.
    In that decision, household furniture is treated as corporeal movables, and the donation of them may be proved by parol.
    If a solemn notarial act may be dispensed with in the donation of household furniture, must a man go before a notary public to make a valid donation of a buggy and harness ?
    If this Court should overrule the decision m Maillot v. Wesley, it certainly should not be at the expense of the plaintiff, who had the right -to consider the construction of Art. 1526, by this Court, as the law, in accepting the gift without the solemnity of a notarial act. If there be any doirbt, wo should have the benefit of that doubt, and the buggy and harness decreed to be our property. At all events, the decision of the lower Court should be reversed, and the judgment in suit 617 admitted in evidence, to prove the allegation of the petition, and to disprove the allegations of the answer going to annul its provisions.

      Brief of Joseph Jooi',for defendants and appellees.
    —Eliza B. Bogan, wife of James Bogan, sued out an injunction to stop the sale of a buggy, harness and horse, stated to be worth the sum of $500, on the ground that they were her separate property. Defendants had seized them as the property of her husband. She claimed that this property was hers by donation from John B. Gribble.
    Defendants alleged the property to belong to the community, and charged fraud and collusion between husband and wife, and prayed for damages.
    Judgment was rendered against plaintiff, and allowing fifty dollars damages. Plaintiff appealed.
    The only matter before the Court is two bills of exceptions taken by-plaintiff.
    1. Plaintiff offered a letter of Gribble to x>rove a donation of buggy and harness. Defendants objected.
    C. C. 1453 : “Property can neither be acqxiired nor disposed of gratuitously, unless Ly donations inter vivos or mortis causa, made in the forms hereafter established.”
    C. C. 1525 : “A donation inter vivos, even of movable effects, will not be valid unless an act be passed of the same, as is before prescribed.”
    Bat plaintiff now pretends that it was a manual gift. How could this be, when it is said to be done by letter ? Mrs. Bogan lived in Baton Rouge, and Gribble in New Orleans. If it was a manual gift no letter between parties one hundred miles apart was needed; neither could it effect a “real delivery,” as required by Art. O. O. 1526. A watch, a sum of money—anything that could be taken in the hand and 1 ‘ really delivered, ” would be a proper subject for a manual gift. Is a buggy susceptible of such delivery, in these days when giants are not to be found ?
    2. A letter of a third person is merely an assertion, and cannot be received against these defendants. If Gribble made this donation by ‘ ‘ real delivery,” his evidence should have been taken under oath. The law presumes all property in possession of lnisband and wife to be community, until the contrary is shown. C. C. 2374. This property was found in possession of the husband. * * * * * *
    The second bill is to the rejection of the judgment of Eliza Bogan, wife, v. James Bogan, husband. This was proper. In Bunn v. Woodward, 11 An. 267, this Court says : “Under the issue, it is clear that the appellant was bound to prove the genuineness of her claim against her husband for her dotal and extra-dotal rights, which constituted the alleged consideration of the transfer to her. The judgment of separation could have no more effect against the creditors of the husband, than the pretended agreement itself. 8 N. S. 460. 4 L. 420. In the absence of any such proof on her part, we take it to be clear, that the pretended conveyance to her must be regarded as a mere simulation. ”
   Insmiv, J.

The defendants in this injunction suit, having seized, as the property of James Bogan, a horse, buggy and harness, his wife, Mrs. Eliza B. Bogan, sued out an injunction to stop the judicial sale thereof, alleging, in her petition, that she was the owner of the property seized, having acquired it by a manual gift from one John C. Gribble. The defendants, in their answer, say that the said property belongs to the community between James Bogan and his wife, and it charges the spouses with fraud and collusion, and prays for damages.

The injunction was dissolved; with damages, and the plaintiff, Mrs. Bogan, has appealed from the judgment in the Court below.

During the trial of the-case in-the District Court, the plaintiff offered certain evidence, which was rejected ; and to the ruling of the Court, in this particular, she tendered two bills of exception, which were allowed. The first bill was to the refusal of the Court to receive as evidence a letter, purporting to be signed by John C. Gribble, to prove by it that the horse, buggy and harness were a manual gift to Mrs. Bogan, from John C. Gribble, accompanied with delivery, and this was objected to, on the ground that the pretended gift was not a manual one, in the sense of Art. 1526 of the Civil Code, and could not be proved by the letter offered. It devolves on the party objecting to testimony, to state the particular grounds upon which its introduction is resisted (see 1 Hen. Dig. 492, g 1); and the only reason assigned for the rejection of the letter as evidence being the one just stated above, the Court below erred in rejecting it, as in the case of Maillot v. Wesley, 11 An. 467, it was held, in effect, that corporeal movables generally may pass by manual gift, accompanied by real delivery.

The other bill was taken to the refusal of the Court to receive, as evidence for the plaintiff', the judgment in the suit No. G17, of the records of the District Court, entitled Eliza B. Skofield, wife, v. James Bogan, husband, and referred to, in her petition for injunction, as the basis of her claim to the horse, buggy and harness, its her separate property; and this evidencie was objected to on the ground that the defendants, having at-tacked the validity of this judgment in their answer, us fraudulent and collusive, the said judgment could not he produced in evidence, as proof that the horse, etc., wore the separate, property of the plaintiff', unless she proved the facts, upon which the said judgment was based, are true, contradictorily with the defendants. The evidence was admissible to prove, rom ijpsam, that such a judgment was rendered, and as a mere basis ol' title in the plaintiff, but which could produce no legal effect under the pleadings, unless its truth and genuineness were established by other legal evidence.

This is not an opon question. -1 La.-122. 12 La. 301. 11 La. 536. 1 An. 135. 10 Au. 87.

As neither the letter nor the judgment was annexed to the bill of exceptions, the case is not in a condition, in this Court, to bo finally disposed-of, and it must, therefore, be remanded for a uew trial.

it is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that the case be remanded to the District Court, for a new trial according to law, at the costs of the appellee.