author: R.ost, J.

text:
    Succession of Montegut.
    No collation is due to the succession of the wife for advances by the husband to one of his children, made in bis own name and right, while tlieCode ofl808 was in force, where the father lias died, and the widow has not accepted the community. Code of 1808, b. 3, tit. 5, art, 31. Nor will the circumstance that she did not renounce the community in strictly legal form be viewed as an acceptance, though the law in force at the time required the same formalities in renouncing, as in accepting, ¡¡..succession.
    APPEAL from the Second District Court of New Orleans, Slraiobridge, J., presiding. In 1807, a marriage contract was entered into between J. B. Neurisse and Marie Montégut, in which Joseph Montégut, sr., settled a dowry of ten thousand dollars upon his daughter, the said Marie, which he promised to pay in May, 1808. In April, 1814, Joseph Montégut, sr., gave to Mrs. Neurisse, in payment of the dowry, which had not been paid as promised, a house and lot, Jp January, 1808, the said Montégut, sr., made a donation intervinos to.his son,

      Joseph Montégut, jr., of a.certain plantation, valued at ten thousand dollars, in advance of the donee’s share in his father’s succedsián;- An advance of a like sum was made as dowry to a daughter married tb Kojjigriac, in 1806, In 1814, Joseph Montégut, sr., made a cessio bonorum, and his wife, Franpise Felille, was paid, contradictorily with her husband’s creditors, the amount of her matrimonial rights, as liquidated by the syndics’account. In'November, 1819, Joseph Montégut, sr. died insolvent, and'his*'succession was never opened; Iri' December, 1836, Franpise Felille, the widow of Joseph Montégut, «nydied;leaving some property, and her succession Was administered by B. Montégut',’ one of her grand-children and heirs: The'administrator filed his accountin' March, 1846, to which an opposition was made by the children -.of Mrs. Clamageran, a daughter of the late widow Montégut, calling upon the’ appellees td' collate to the succession of said widbW Montégut what those whom they represent had received from Joseph Montégut, sf., as explained above. The oppo* sition was dismissed, and the opponents appealed.

      Benjamin and Minou, 'for the appellants;
    A donation by one parent to á child of both, out of the property of the Community,- is esteemed the donation of both parents. C. C. 2373, 1320. Code Nap. 1439, 850. Old Code, p. 194. A donation of community property by the husband to one of the children, must be collated one-half to the father’s and one-half-to the mother’s estate. Baillio v. Baillio, 5 Mart. N. S. 228. 4 Touillier, p. 461, no. 464;. 6 Pothier, Communauté, p. 393, no. 648. To this rule there is an exception, if the widow renounce the community. 4 Touillier, no. 464. Code Nap. art. Í439, Rogron, note. But Mrs. Montégut never renounced. During the life time of the husband, renunciation could only have been made after a judicial’ separation; after his death, only upon inventory made. But no such proceedings occurred, and of course renunciation cannot be presumed or implied.-

      Le Gardeur, contrá.
    Property received from the husband is-not subject to collation in favor of the succession of the wife. C. C. 1320. Chabot, Successions, vol. 2, p. 389. 7 Duranton, nos. 242, 243. 4 Zacharite, Droit Civ. Franjáis, p. 447, § 63-1. This case must be determined by the Code of 1808. Under that Code the powers of the husband, as head of the community, Were infinitely greater than those given by the Code of 1825. Now, the-husband can alienate by onerous title only the property of the community. But, under the Code of 1808, he had aright to dispose of it by gratuitous as well as by onerous title, and this without the consent of the wife. Art. 66 of the old Code (p: 336) is positive to that effect. Under the old Code, when the husband, after making a cessio bonorum, died insolvent, there was no community; indeed, none' could have existed,- since the wife had' no right whatever until’ her husband1 was dead.
    Let us now see how the settlement ofdowry was made, and at Whose charge' it was, under the old Code. Art. 20, p‘. 326, says: “ Dowry can be settled either by the wife herself, or by her father or mother, or other ascendants, or by her other relations-, and even- by strangers.” The next article (21)' provides as follows: “If the father or mother settle jointly a downy, without distinguishing' the part of each, it shall be supposed constitued- by equal' portions;- If the dowry be settled by the father alone for paternal and maternal rights, the mother, although present to the contract, shall not be obliged, and the father alone shall-remain answerable'for the whole of the dowry.” The french Code contains anal-ticle, from which article 21 of the old Code is copied verbatim; Article 1'544' reads thus: “Si les pére et mere constituent conjointement une dot sans distinguer la part de chaeun, elle sera censée constituée par portions égales. Si' la dot est constituée par le pére seul- pour droits paternels et maternels; la mére, quoique présente au contrat, ne sera' point engagée; et la dot de-meurera en entier á la charge du pére.” The construction put on- this article of the french Code by some of the most distinguished commentators-of France will assist us in coming to a correct understanding of art. 21' of the old Code. Touillier', vol. 14, no: 86, says : “ Nous avons üit que si la dot n’a pas été conjointement constituée,-la femme n’étant point engagée par 1’6-Eonciation que la dot est pour droits paternels et maternels, la totalité demeurel la charge du mari. * * * Loin de voir rien de bizarre dans la second disposition de Part. 1544, qui laisse a la charge du pére la totalité de la dot qu’il a constituée seul, pour droits paternels et maternels, on n’y voit done rien que de fort juste et de conforme au droit commun.” Zachari®, Droit Civil Franjáis, vol. 3, page 389, says: “ La constitution de dot, faite par le pére seul, n’engage pas la mére, lors méme que le pére a déclaré constituer la dot pour di'oits paternels et m'aternels, et que la mere a été présente au contrat.” Benoit, Traité de la Dot, p. 117, no. 28, says: “ La dot constituée, du vivant de la mére, par le pére seul, est en entier á la charge du pére : lo. Si la constitution est faite purement et simplement, sans explication de ce que le pére a entendu donner de son chef et de celui de son épouse. 2o. Si la dot est constituée', effuso sermone, pour droits paternels et maternels; et cela, quand bien méme la mére eút apposé sa signature á ce contrat, la présence de la mére á ce contrat étant insuffisante pourfaire présumer son consentement. 3o. Si méme dans le cas d’uue société d’aequets existante entre les époux, le pére avait constitué la dot en avancement de sa succession.” Thus, all these jurists unite in saying that when the dowry is settled by the father alone, he is answerable for the Whole of the dowry, or rather the whole of the dowry is at the father’s charge, and tli'e mother remains a stranger to it. The language of art. 21 of the Code of 1808, is verbatim that of art. 1544 of the french Code. Therefore, under the old Code, the whole of the dowry was at the charge of the father, when he alone had settled it. In this case, the dowry of Mrs. Neurisse was settled and paid by Mr. Montegut alone. The french commentators, after stating, under art. 1544 of the Napoléon Code, that the dowry is at the sole and exclusive charge of the father when it is settled by the father alone, say that when the dowry has been settled and paid out of community property, although by the father alone, one half of it is chargable to the father, the other half to the mother. But their opinion is founded on an express provision of the Code Napoléon, art, 1439, which says : “ La dot, constituée par le mari seul á l’enfant commun en effets de la communauté, est it la charge de la communauté; et, dansle cas oñ la communauté estaccepté par la'femme, celle-ci doit snpporter la moitié de la dot, á moins que le mari n’ait déclaré expressément qu’il s’en chargeait pour le tout, ou pour une portion plus forte que la moitié.” No such provisions are to be found in our old Civil Code, nor even in that of 1825. They both provide that when the father settles alone the dowry, the whole of it is chargable to him. Neither says that when the father settles a dowry out of community property, one half of it is chargable to the father and the other half to the mother. In other words, the provisions of art. 1439 of the Code Napoléon have not been incorporated into our Codes. The' rule under our law is absolute. No distinction or exception has been made, and we have’ no right to admit distinctions which the law itself has not admitted; ubi lex non distinguit, nee nos distinguere debemus. Should the court, however, adopt the'whole rule,, as set down by the french commentators, it must be adopted with the restrictions put upon it by those commentators themselves. They all require that the community should have been accepted by the wife. Indeed the very article-requires that. Code Napoléon, art. 1439. Duranton, v. 7, no. 244. Zachari®, v. 3. p. 390. Benoit, v. 1, p. 121. Until the acceptance by the wife, it cannot be said that a community ever existed. 7 Mart. N. S. 68. Guice v. Laurence,ante, p. 226.
    Has the acceptance of the wife been shown ? Montegut died in 1819, and. this case is to be tested by the provisions of the old Code, which, although it provides as the new one, that the wife’s renunciation shall be made in a certain form, provides also that her acceptance must be made in the same form. Art. 81, p. 340. The last paragraph of that article says: “ The acceptance of the-partnership or community of gains shall be made (doit se faire) in the same form as is above prescribed for the renunciation of the same.” Thus, if we are in default in not showing a renunciation in due form, the opposite party is equally in default in not producing an acceptance, as required by the law of 1808. Under these circumstances, it is plain that the court are left to infer the fact of a renunciation or an acceptance, from all the circumstances of the case. The opposite party have shown nothing tending te establish an acceptance, whereas-we have brought forward a mass of facts from which nothing but a renunciation can reasonably be inferred. If Mrs. Montegut had accepted the community she would have been answerable for one half of its debts, and certainly would not hav© been paid the amount due her out of the proceeds of the sale of the community property. She would have been compelled to pay the balance of the community debts. Now, was this the case ? No. She gave a release of her legal mortgage on the property. She was set down on the tableau, to be paid concurrently with the other creditors. If she had not renounced the community, she Would have been treated not as a creditor, but as a debtor.
    It was contended below that the late Supreme Court, in the case of Baillio v. Baillio, 5 Mart. N. S. 228, has laid down theprinciple, thatwhen the donationis of common property collation takes place by moiety, although the husband were the sole agent in the gift or advances to the' children. This is true; but in that case, which differs loto calo from this, there Was a community, the partition of which was before the court. At all events, an isolated decision is entitled to no weight, especially when, as in the case of Bailliof it clearly violates the law of the land.

      Blache, on the same side.
    Had the dowry been settled by the father alone, for paternal and maternal rights, even in the presence of the mother, the latter would not have been bound therefor, and the father alone would have remained answerable for the whole of it. Code of 1808, p. 026, art. 21. Code of 1825, art. 2322. Admitting that the dowry was constituted by the father out of the common funds, it was, on his part, the exercise of the power which the husband, as the head and master of the community of gains, had to sell or give away the effects belonging thereto, without the consent and permission of the wife, who had no sort of right in them until the death of her husband. Code of 1808, p. 33G, art. 66. The community of gains which existed between Franpoise Delille and her husband, Joseph Montegut, sr., not having been formally accepted by' her, as required by art. 81 of the Code of 1808, p. 340, but she having clone acts which evinced a manifest intention on her part to renounce the community, she must be considered as having in fact renounced it. Having renounced the' community of gains, the widow Montegut lost all right to the effects belonging thereto, which might have existed at the time of its dissolution; a fortiori, to those which her husband had long before disposed of, by virtue of the provision of art. 66 of the Code of 1808, p. 336, and in particular to the dowry of $10,000, settled by him alone on their daughter, the wife of llojjignac. The heirs of the Widow Montigut, to whom she could not transfer by inheritance a right which she herself did not possess, cannot claim the collation to her succession of one-half of the said dowry, or any other property of the community, disposed of in the same manner.
   The judgment of the court was pronounced by

R.ost, J.

This appeal Was taken from a judgment dismissing in part the opposition of the appellants to the homologation of the tableau filed by the administrator of their grandmother’s succession. The object of the opposition was to cause all the advances made by the grandfather and grandmother of the opponents to some of their children, to be brought into collation in the final partition of this succession. The advances made by the father were made in his own name and right, previous to the year 1814, when he became insolvent and surrendered his property to his creditors. The matrimonial rights of his wife were liquidated by the account of the syndics, and, in 1818, she gave them a receipt for $7,000, “ pour soldé et fined payement des droits de la comparante,-pour scs apports de toute nature, se reconnaissant entierement satisjaite pour toute somme qu’elle pourrcdt et avait droit de réclamer, d raison de tous ses apports." The syndics further relinquished in her favor their commission, amounting, to the sum of $2,816 15. On the 2d of November, 1819, Montigut died, without having come to a better fortune, leaving a large amount of debts unpaid, and no community property. His succession, being exclusively composed of his debts, Was not administered upon ; his widow never accepted the community of acquits and gains; and it is clear that she could not have done so, without becoming responsible for one-lialf of its liabilities.

The judge of the court below, being of opinion that the acts of the wife must be regarded as a.renunciation of the community; and farther that, by an express provision of the Code of 1808, the dot, if settled by the father even for paternal and maternal rights, although the mother was present to the contract, bound tlie father alone, dismissed the opposition so far as it related to the advances made by the father. Code of 1808, p. 326, art. 21.

The appellants contendthat there is an error in the judgment; that a donation by one parent to a child; out of the- property of the community, is esteemed a donation of both parties, and must be collated, one half to the father’s and the other half to tlie mother’s succession ; and they rely in support of that position, on the case of Baillio v. Baillio, 5 Mart. N. S. 228, and also on the Civil Code, arts. 2373,1320. Code NhpolSon, 850,1439. Code of 1808, p. 194. 4 Toullier, no. 464. 6 Pothier, Communauté, p. 393, 648.

The appellants have failed to show that-the donations made by the father were of community property, and if' they were that the eventual rights of the wife in it had ever become absolute by her acceptance... This is absolutely required by the authority to which we are referred. 4 Touliier, 464. So far from there having been an acceptance-in this case, the intontion of the wife to renounce, and-her belief that she had renounced^ are rendered manifest by ail her acts. The-circumstance that she did not-renonnoe in strict legal-form, at a time when the-law required the-same formalities for renunciations and acceptances, cannot be-viewed as an acceptance on her part.

If the appellants shsnld succeed, after so long a time, in reviving the community, and in. bringing into it property donated by their grandfather before his failure, it is probable that the elaims of his creditors would also revive; and that it would become our duty to place that property at the disposal of the syndics. What further responsibilities the appellants might thereby incur,-it is unnecessary to determine.

We are satisfled.there is no error in the judgment-appealed from.

Judgment affirmed.-


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Succession of Guillemin.
    Tlie term absentee embraces persons residing abroad who have never'Been dómiciüated'’ in this State, as well as- those who, having once resided here, have since left the State.
    The-prescription of five years, established by art. 3505 of the Civil-Code as to bills of exchange, applies to actions upon the instrument itself, for breaches of the contract of which it is the evidence.

      Quoad creditors, the wife or her heirs must show, Otherwise than by the confession or acknowledgment of tlie husband*in the marriage contract, tlie origin and payment of tlie dowzy. By the frenchlaw, the receipt of the'husband to a person by whom the dowry was due, although by private act, provided its date be certain and anterior to suit by the creditors, is sufficient evidence of payment, subject to the right of the latter to controvert the receipt and prove its simulation; hut the acknowledgment, is not received- as proof when, the dowry purports to have been constituted by the wife herself, the legal presumption being that" e'est donner á sa femme que de reconnaitre en avoir recu quoique ce soitf in such a case the acknowledgment of the husband is not even binding on him or his heirs — the wife1 must prove the origin of the money, and the trath of the receipt. Aliter, as to the acknowledgment by the husband in the marriage contract of the estimated value of clothing, linen, andjewelry broughtby the wife into the marriage, to an amount suitable to her con ditionj the presumption is that she had such things.

      Where a father resides iii this State, he will, though a foreigner, become of right? the tutor of his children, on the death of their mother, and a legal mortgage will attach, in favor of his minor children, on real property owned by him here.
    Aforeigner residing in this State may be appointed a tutor by our courts.
    It is the duty of a tutor, immediately after appointment, to reduce the property of his wards into possession, to render it productive, and to administer it as a prudent father of a family administers his own affairs.
    In settling the accounts of a tutor he will not be allowedto make a donation to his wards, at the expense of his creditors.
    Appeal from the Second District Court of New Orleans, Canon, 7.

      Si. Paul, for O. Guillemin, appellant. Filié and Le Gardeur, for De la Paqueraie, appellant. Castera and Soule, for the appellees.
   The judgment of the court was pronounced by

Rost, J.

This litigation.arose upon the account rendered'by the administrator of the succession of the .late 1. F. A. Guillemin, .and has its origin in the following facts-:

The marriage,contract entered into .in Paris, in.the year 1812, between the deceased and Caroline de Pier-ray, his first wife, contains this clause:

“La future épouse apporte au dit manage, et se constitueen dot .tousles biens et droits & elle appartenant, consistent en une -somme de 25j000 francs, argent comptant, -et-en ses habits, hardes, linge, et bijoux, de-valeur de 5,000 francs, ainsi qu’elle en a justifié au futur époux, qui consent á demeurer charge de tout envers elle, .par le seul fait du mariage.” The marriage took .place at the date of the contract. In 1817, the deceased came to this place, with.his wife and three.children, who are the appellees in .this suit. A .few months after their arrival, Caroline de Picrray died, and, .in .1821, the deceased married Hártense Arnaud, a native of Louisiana, .who brought into -marriage, as her dowry, two slaves, and various .sums of money, amounting together .to $6,856. In 1825, Hortense Arnaud died, leaving two children, the .survivor of whom, Onñda Guillemin, in her own .right, and as.administratrix of the late Hortense Guillemin, her sister, is one of the appellants. In 1830, the deceased -Guillemin was entrusted, .at his own request, by Martin de la Paqueraie, who resides in Paris, with sums of money to be invested in Louisiana, and at his death, which occured in the.city of Havana,,in 1834, he-was .indebted to Hela Paqueraie, on that account, in the sum of $10,407 41.

In 1835, Julien Arnaud, the maternal uncle of Hortense and OnSida Guillemin, was appointed .their tutor, and -no steps were takenfor the settlement of the succession, till 1840, when the tutor caused himself to be appointed administrator. Several years after his appointment, the property of the succession was sold, and, in 1845, he rendered an account of his administration, showing a balance in his hands of $18,273 60, which he attempted to distribute as follows:

To the .children .by the second marriage, the amount of their mother’s dowry, - -- -- -- -- - .$9,136 80

To the same, for interest on said dowry, from the time of their mother’s death, 9,136 80

De la Paqueraie opposed the homologation of the account, and claimed the balance due him. The children of the first marriage also made opposition, alleging their right to be paid by preference 30,000 francs, the amount of their mother’s dowry. The court below having dismissed .the first opposition mid .sustained the last, He la Paqueraie and Oneida Guillemin appealed. The opiilion we have formed renders it necessary that the claim of Be la Paqueraie be first noticed.

I. His claim is resisted on the ground of prescription, and it is alleged to be barred by lapse of time, under .art. 3508 of the Code, which enacts that all personal actions are prescribed by ten years, if the creditor be present, or by twenty, if he be absent; and also under art. 3505, which provides that actions on bills of exchange and on all effects negotiable or transferable by endorsement or delivery, except bank-notes, are prescribed by five years, reckoning from the day when these engagements were payable. This claim originated in 1830, and the prescription of twenty years has not yet matured. It js contended that the prescription of ten years applies, because Be la Paqueraie is not an absentee in the legal meaning .of that word. That to be absent, one must have been present. '1 he french authorities relied on in support .of that position are not applicable to cases of prescription, even in France (Tropjong, Prescription, no, 864); and if they were, we could not take them as our guides in opposition to an express provision of our Code not inconsistent with the other dispositions contained in that body of laws in relation to absentees. C. C. 3522. 14 La. 445. 15 La. 81. It .cannot surely be said that Be la Paqueraie was present; and, as under the article last cited all persons not present are absentees, his claim is not barred by the lapse of ten years.

It is now contended that the funds were transmitted to Guillemin by means of bills of exchange drawn by him on Be la Paqueraie, with the previous authorisation of the latter; that he, Be la Paqueraie, subjected himself thereby to the responsibility and rules relative to the instruments he adopted- as a medium of transfer; and that, in as much as the gist of his action is the bills of exchange, his action must be barred by the prescription applicable to those instruments.

The argument of the .counsel for Be la Paqueraie, in opposition to this ground, has not been answered, and is unanswerable. Admitting De la Paqaeraie to be subject to the rules applicable to bills of exchange, he could not, under those rules, have sued himself upon bills of which he was the acceptor, nor could he haye brought suit on those bills against the drawer. He must have declared specially on the implied contract to indemnify, or for money paid to the drawer’s use. The prescription of five years applies to actions upon the instrument itself, for breaches of contract. Here there was no breach of contract. The bills were duly honored and paid. The obligations which arose between the parties by reason of their payment are subject to the general rule for the prescription of personal actions. 3 Kent’s Com. 86. Chitty on Bills, 334, 569, 648. Pardessus, Droit Commercial, vol. 2, pp. 184, 379, 402. Bailey on Bills, 343.

We have, therefore, come to the conclusion that the plea of prescription is not sustained by the authorities .adduced in support of it; and, jn ascertaining the rights of .other parties, we will deem it our duty to give De la Paqueraie the benefit of all deductions which Guillemin himself, or the tutor of the children of the second marriage, might lawfully claim in .a settlement with those children.

II. Be la Paqueraie and Oneida Guillemin both contend that nothing is due to the children of the first marriage, because they have failed to show, by legal evidence, the •origin and numeration of their mother's dowry. Under our jurisprudence it is well settled that, quoad creditors, the wife or her heirs must .show, otherwise than by confession or acknowledgment .of thpt husband, .the irigin and payment of the dowry. Curia Filipica, 420, nos. 27, 38. Gomez ad leges Tauri, law 53, no. 52. 4 Febrero, part 1, book 3, § 1, no. 4; book 3, ch. 3, no. 136. 7 Mart. N. S. 460.

In France, where the contract was made, Zacharies lays down the rule on the subject as follows: “La femme n’est en gónéral admise d reclamar la res^ titution de sa dot, qu’d charge de prouver qu'elle a réellement apportée. Cette preuve doit se faire apre3 les principes du droit commun.” Fol. 3, p. 602, He states, however, that the receipt of the hnsband to the person who owes •the dowry, although by private act, provided its date be certain and anterior to the institution of the suit by the creditors, is sufficient evidence ; reserving to them the right to controvert the receipt and prove its simulation. But under the principes du droit commun, as settled by the jurisprudence of ithat country, the acknowledgment of the husband is not received as proof when the dowry purports .to have been constituted by the wife herself, by reason of the legal presumption prevailing there, as with us, c’est donner á sa femme que de reconnoitre en avoir repi quoique ce soit; and accordingly, the acknowledgment of the husband that he has received from his wife a sum of money as her dowry, is pot of itself binding even upon him or his heirs; the wife must in all cases prove the origin of the money and ihe truth .of the receipt. Cochin, tom 2, p. 580. Coquille, question 120. Roussilhe, De la Dot, pp. 103, 104.

The law of France applicable to this controversy is believed not to differ from that of Louisiana, and the children of the first marriage have complied with the requisites of neither, in relation to the 25,000 francs, alleged to have been renewed in money by (heir father. The acknowledgments of the latter have not even the force ofreceipts ; and we agree with the counsel for De la Paqueraie that, if the claim of the deceased against the Princess Ponialowski has any thing to do with the matters at issue, the evidence adduced in support of it raises a Strong presumption that the dowry of Caroline de Pierray was not paid. Should this outstanding claim be collected and its amount brought into court for distribution, a very different case would be presented. But w.e are constrained to say that, the ap pellees have failed to make out their rightt o receive the 25,000 francs mentioned in the marriage contract of their mother, out of the fund now in the hands of of the administrator. It is otherwise for the estimated value of the habits, hordes, Unges, et bijoux, brought by her into marriage. The legal presumption is, that she had those things to an amount suited to her condition ; ¡and the sum of 5,000 francs, at which they were appraised, is every way reasonable. It is not shown that at her death they were taken back by her heirs ; the succession must, therefore, account for their estimated value.

By the death of Caroline de Pierray, Guillemin became of right the tutor of his children. The succession was opened, and the tutorship commenced, in Louisiana. During its continuance, and before his second marriage, Guillemin ¡acquired nearly all tire property which he left at his death, and the circumstance of his not being a.citizen of the .country did not prevent a legal mortgage from attaching upon it in favor of the minors. The real property of the State is undoubtedly, as a genera} rule, subject to its laws. If the appellees were .deprived of the protection of those laws because their father was a foreigner, it is not easily perceived how Oneida Guillemin could claim to be paid by preference to De la Puqueraie, as a mortgage creditor.

In support of the ground that the appellees had not a legal mortgage in Louisiana on the -property of their tutor, the appellants have adduced the authority of Grenier, a french jurist, who lays down broadly the rule, that the law of France only speaks for french subjects, and not for foreigners. Troplong, another french commentator of high repute, denies this, and insists that the foreign minor, whether or not he resides in France, has a legal mortgage on the real property, which his tutor owns 'in that kingdom. Priv. et Hyp. vol. 1, p.247. However this maybe, our laws are not framed with reference to citizens alone. This count-ry was the first to recognise the right of expatriation as an essential element of constitutional freedom, and has at all times discharged towards foreigners the obligations, imposed upon it by the recognition of that right, to give them, not merely an asylum, but a home. Before they are per. mitted to exercise political rights, a few years of probation are wisely required. But so far as civil rights are concerned, the citizen and the foreigner residing here, are believed ,to be equal before the laiu. Appointments of foreigners residing here as tutors are of daily occurrence, .and their capacity has never been questioned.

The appellees are entitled to be paid, by preference, the sum of $952 .38. They have set .up no claim for interest; and we consider the earnest .desire expressed by their counsel in argument that De la Paqueraic should be paid, as an honest and sufficient motive for having abstained from doing so.

The dowry of the second wife, exclusive of the two slaves which have returned to the possession of Oneida Guillemin, is admitted to be .as stated in the marriage contract, $6,856. By a settlement made by Guillemin with .the father of his wife, in January, 1823, .the latter remained indebted to his son-in-law, on account of said dowry, in the sum of $4,091 2.0, on which he agreed to pay him interest at the rate of ten per cent per annum. The capital and interest were both paid in 1828 ; and the appellant Oneida Guillemin claims the sum of $1,392 06, being the portion of the interest which accrued after the death of her mother. It is in evidence that, from that .time to that of the payment, she and her sister lived with their grandfather, and that no provision of any kind was made for them by their father. Under these facts we consider the appellant entitled to the interest she claims. Her father could not have compensated that interest against the subsequent expenses of the minors.

From the date of the settlement in 1828, to the death of Guillemin, in 1834, the two minors resided with him; and it is clearly shown that the income of their property was not sufficient to defray the expenses incurred for their maintenance and education. Whether or not their father intended to charge them for those expenses, to the full amount of their income, is immaterial. He had the right to do so, and De la Paqueraie must have the bonefit of that right. Up to the death of their father, the appellees have no claim for interest. As soon as the tutor was appointed, it was his duty to reduce to possession the property of his wards, to render it productive, and to administer it as .a prudent father of a family administers his own affairs. His failure to do so subjected him towards the minors to damages, at least equal to the interest of the amount due them. Ten years had elapsed since his appointment as tutor, when he filed the account of his administration. The property was sold for upwards of $22,000, It consisted of slaves, houses and lots. It apppears also that, at the death, of. Guillemin, he owned som® stock, and one hundred thousand' cigars are mentioned in the inventory. The administrator does not state whether the cigars ever came into his possession, and renders no account Whatever of the rents and profits of the property since 183‘4. It appears that he has defrayed the expenses of his wards during that time, and although he does nof so state it in his account, we must presume, in justice to him, that those assets, if received by him, have gone to pay those expenses ; and that, if he did not receive them, and suffered the property to remain unproductive,- he defrayed the minors’ expenses by way of reparation for his negligence.

Had Oneida Guillemin ma'de opposition and' required the administrator to account for the missing assets, and for damages caused by his mal-administration, he would have had the right to compensate the expenses incurred by him on account of the minors against the share of the rents, profits and damages coming to them. Considering that the’tutor cannot make a donation to his wards at the expense of an honest creditor, we will give effect to this compen. sation, for the benefit of He la Paqueraie. The interest on the sum due the minors would have been barely sufficient to pay their personal expenses ; and-, being of opinion that those expences must be held to have been paid by the succession, we are satisfied that Oneida Guillemin has no claim- for interest since the death of her father.

We have not gone into the enquiry whether the new Code has made any change in the former laws requiring the tutor to pay interest on the sums that come to his hands from the day he receives them. Supposing the Jaw to be unchanged, the appellant On&da Guillemin has not shown herself entitled to receive interest since 1828.

For the reasons assigned, it is ordered that the judgment in this case be reversed.- It is further ordered that the opposition of Mrs. Andry, Mrs. Knight, and Auguste Guillemin be sustained for the sum of $952 38, and that they be paid said sum by preference as creditors by the first mortgage. It is further ordered that Oneida Guillemin, in her name, and as administratrix of the succession of her sister Hortense Guillemin, be placed-on the tableau for the sum of $8,248 06.

It is further ordered that Martin de la Paqueraie, be placed on the tableau for the sum of $10',407 41, to be paid as far as the assets will permit, after the other two claims, and all expenses in this suit and in the settlement of the succession generally, are' satisfied. It is further ordered that the costs of the court below, and one-half of those of this appeal, be paid by the administrator; the other half of the costs of this appeal-to- be paid by the' three appellees.

       The counsel for the appellant De la Paqueraie, cited in support of this position, in .addition to the authorities in the text, 14 Toullier, no. 275. 2 Benoit, Traité do la Dot, p. 233. 3 Zachariæ, p. 602. Lucket v. Lucket, 11 La. 245. Fennessy v. Gonsoulin, Ib. 425. Dimitry v. Pollock, 12 La. 296. Nores v. Carraby, 5 Rob. 295. Dimitry v. Pollock, 5 Rob. 350.


author: Slidem.,- J.

text:
    White v. Kearney et al.
    A copy of a clearance granted to a coasting vessel at another port in the United States, certified hy the deputy collector, under the custom-house seal, to be ^ true copy of the original, on file in his officers admissible and sufficient evidence to establish the date of the clearance; when accompanied by the testimony of a clerk in the custom-house of the port for which the vessel was cleared, that the person by whom the certificate was signed was, at the date of the certificate, the acting deputy collector, that the seal was the custom-house seal, and that a search had been madefor the original clearance and that it could not be found; and by that of another witness, that lie had seen the original on fife in the custoHi-ho'n'se'of the port for which the vessel was cleared, and that the signature to it was the genuine signature of the person who was deputy collector'.
    Where the credit of a commercial firm is used by the Authority of one o'f the' partners, and is relied upon by the other party in a transaction in the' ordinary course of trade,- all the partners Will be responsible, whatever may he tlieir liability inter se.

    The fact of the dissolution of a partnership does not render a partner incompetent to receive, on behalf of the firm, an offer of delivery of goods sold to the partnership, or a demand of payment of the price. It is not necessary to put each partner separately in default upon a contract made before the dissolution.
    Where on the refusal of the purchaser to comply with the contract fertile sale of merchandise, the vendor sells it at the risk of the former, it is not necessary that the sale should be-in all oases at auction. By the breach of the contract the vendor becomes the trustee of the purchaser, to dispose of the merchandise in good faith and with reasonable diligence; and where the property is sold for a fair price, though not at auction, the amount for which it is sold will fix the liability for damages for the breach of contract.
    Appeal from the Commercial Court ofNew Orleans, Watts, J.

      Wirelhropf for the plaintiff. Elwyn, Elmore, and W. W. King, for the appellants*
   The judgment of the court was pronounced by

Slidem.,- J.

This case has already been before' the Supreme' Court. 9 Rob. 495. The pleadings in the cause, a large portion of the testimony, and ther grounds of defence, were then stated. The question of the admissibility in evidence of a certified copy of the vessel’s clearance at Thomaston is again made, but under a different state of evidence. The document in question is signed by C. Baquie, deputy collector, and has the seal of the custom-house' annexed to it. He certifies that “ the within is a true copy of the original on file in this office.” The copy thus certified is the usual clearance, or permission to the brig Lucy Ann, of Thomaston, to proceed to the port of New Orleans, signed by the deputy collector of the port of Thomaston-.- The presentation of this document in evidence, was accompanied by the testimony of a clerk in the New Orleans custom-house, who deposed that Baquie was, at the date of the certificate, the acting deputy collector, and that the seal was tlae custom-house seal. He also stated that search had been made for the original clearance, and that it could not be found. Another witness deposed that he had once seen the original, of which the document is a copy, on file at the customhouse at New Orleans. That the signature to said original was the genuine signature of Spears, who exercised the functions of deputy collector at Thomaston. Under this evidence and state of facts we think the court below did not err in receiving the document, and considering it as establishing the fact that the vessel was cleared} at Thomaston, on the 3-lst August, 1843.

It is satisfactorily shown that the vessel was also, in other respects,- ready for sea on the 1st September, 1843. She was prevented from leaving port by stormy weather, during the'prevalence of which it would have been imprudent to- sail, and started as soon as this obstacle ceased. The contract with the' defendants’’ agent was therefore fairly fulfilled, which was, “ that the above named brig is to be all ready for sea on the morning of the first day of September.”

We find nothing in the evidence justifying the position that the defendants1, agents, in making the contract, exceeded the orders of Kearney.

It is contended that Sims, one of the house of Kearney Co., was not bound by the contract; that it was the1 individual contract of Kearney, the other partner. The written contract was made by. the agent, on behalf of Kearney Sp Co. A portion of the letters, which contain the instructions and authority to the agent, were written to him by Kearney, under his individual signature : but he speaks repeatedly in them of shipments to the house. One of the written communications of Kearney to the agent was in these words: ‘‘ Go as high as $ 1 50 for the lime. — K. & Co.” The answers of the agent, *rom time to time, advising his contract for purchase and subsequent proceedIngs, were addressed to the house, and the letter enclosing the contract with plaintiff was received and filed by Sims. No objection to the transaction appears to have been made by him in the mean while, nor until after the arrival of the vessel. The agent, who had been a clerk of the house, and was on an intimate and confidental footing with both partners, had verbal communications with Kearney on the subject of shipments before his departure for Thomaston. It is evident that in these transactions the credit of the house was used with-the full authorisation of one of the firm, and that it was relied upon by the plaintiff. The other partner cannot escape the responsibility' to the plaintiff^ who dealtwith the house upon the faith of'Kearney’s written and verbal instructions on behalf of the partnership, whatever, inter ser may be- the- liability of the partnership'for this adventure.

There has been mueh discussion in argument, as to whether Kearney Co. were put in d'efáult upon their contract to receive and pay for this merchandise-There is no- doubt whatever on this point, as to Kearney. The evidence is not so full as to Sims, who contends that he is not bound by acknowledgments of Kearney made after the dissolution of the partnership, which occurred about the time the merchandise arrived at New Orleans. But upon consideration of the evidence, other than that of Kearney’s answers to interrogatories and his-other acknowledgments subsequent to the dissolution, we think the court Below was justified in considering the default proved as against the firm. The fact of the dissolution did not render Kearney incompetent to receive,- on behalf of the house, an offer of'delivery and demand of payment. We do not think it was necessary to put them-separately in default, upon a contract made before the dissolution. See Cady v. Shepherd, 11 Pick. 409. It is proper also to observe iu this connection that, neither Kearney, nor Sims, in the application» made to them for settlement before suit, objected on the score of a want of offer of delivery. Kearney refused to settle on account of the delay in the vessel’s departure, and Sims upon the ground that the firm' was not bound by the contract.

The plaintiff, upon the refusal- of the defendants to take the lime, and having notified the defendants that he would sell it at their risk, did sell soon after, at private sale. The defendants contend that he had no right to sell otherwise than at auction. We are not aware that this is the inflexible rule. When, by the breach of the contract, the merchandise was thrown upon the plaintiff’s hands, he became the trustee of the defendants to manage it in good faith, and with reasonable diligence. The judge below, who has heard this cause twice, was of opinion that the sale made by the plaintiff, though not at an auction, was at the fair market value. The small profit l'ealised by the purchasers is not a suspicious circumstance, as they retailed it. We are satisfied that the decree of the Commercial Court has done justice between the parties.

Judgment affirmed.


author: Slidell, J. Eüsti-s, G. J.

text:
    Newman v. Goza.

    Where the transcript of a record from a court-of another State, commences as follows: *' Pleas before the Hon. G. 0., Judge of the'Eirst Judicial District of the State of M,, at a Circuit Court begun and held at the court-house in' a'nd for C. county,” &c.; and the clcrlv, in his certificate, describes himself as Clerkof the Circuit Court for the county of C-; and the judge, in a certificate commencing “ State of M.!, C. county,” styles himself Judge of the Eirst Judicial District of said State, an objection-that the certificate of the judge docs not show that the county oí C. was within his circuit, will be disregarded.
    In the absence of any suggestion- that the certificate of a judge, authenticating the transcript of a record from a court of another State, and attached thereto, at the foot of tlie clerk’s certificate, by a wafer, was improperly obtained, it' wilfbe presumed that the judge did not violate his duty, and that he affixed the certificate liiméelf to the transcript;- nor will this' presumption be affected by the fact that there washroom enough to have written the judge's* certificate on the same sheet on which the clerk's’cevtificate was written-
    It is no defence to an action against tfie maker of anote, -by the last endorser, who had paid &- part of its amount, after protest, to the holder, that the defendant made the note for the accommodation of a previous endorser, who had put it in circulation, where tliere is no proof that the relations between the latter and'the maker Were known to plaintiff. In the absence of such proof the defendant musif'be considered to have endorsed-the note upon the* faith of the antecedent names.
    The testimony of a witness that the last endorser of a note, who had been compelled to pay-its amount, told him. that be looked only to ^previous endorser, and knew nothing of the?* maker ii the matter, is insufficient to discharge the latter. Per Curiam: Such loose declarations, made without consideration to a1 third person, cannofTbe treated as an abandonment’of a lawful claim. *
    Where the endorser of a note, after protest for non-payment by the maker, pays apart off its amount, he may recover such partial payments from the maker.
    Where the maker of a protested promissory note, in settling certain partnership transactions* with'an-endorser, transfers property to the latter onhis-agreeing to pay the amount of the-note to the holder, it will amount to an acknowledgment of the debt by the maker, interrupting the prescription running in his favor,'and maybe taken advantage of by another' endorser, who had been compelled to pay a part of the amount of the notfe. C.‘ 0. 3486.
    duesfiions of prescription must he determined by the law of the forum.
    An endorser of a bill or note, against whom an action has been brought by the endorsee, cannot recover from*the maker or acceptor the costs of the action, unless in case of an express and collateral contract of indemnity.
    APPEAL from the District Court of Carroll, Curry, J. The facts of this case are stated in the opinion of the court, infra,.

      Short,' Prentiss- and Finney, for the appellant.
    The payment by plaintiff on the judgment against him as last endorser, was in law a payment for the use of defendant, out of which arises a legal obligation on his part to refund; plaintiff has a right to enforce this obligation, and is not obliged to sué on the note, but may use it in evidence to sustain his action for money paid to defendant’s use. This obligation to refund arose in Mississippi, where the payment, out of which it originated, was made. It is to be governed by the lex loci contractus, which is the common law.
    It is settled in the United States, as well as England, that the payment of the whole or part of a note or bill by an endorser, produces, by mere operation of law, a perfect obligation on the part of the maker or acceptor to refund. This doctrine is founded on the general principle that, whenever a man is compelled to pay the debt of another, such payment is considered as made for the use and at the request of the primary debtor, and the law raises an implied promise on his part to refund. An endorser who has paid part of a note may sue the maker upon this im plied promise; and afterwards, upon further payment, sue again. If he has paid the whole note, he is still not'bound to rely upon the expross contract, but may rely upon the implied one, arising out of his payment of the note, and sue for money paid to the use of the maker. In-the case of Butlerv. Wright, 20 John, R. 367, it was decided that a second endorser, who had paid part of a note, could maintain an action against a previous endorser,‘for money paid to his use, provided the statute of limitations had not attached at the time of payment. The same case was affirmed in 2 Wend. 369,.and re-affirmed in Wrightv. Butler, 6 Wend. 284. That an endorser who has paid a'bill or note may maintain his action against the maker, for money paid to his -use, without resorting to an action on the instrument, is also fully settled in ’Pierce-v. Grafts, 12 John, R. 90, and in Wild v. Fisher, 4 Pick. 421. In Cole v. Cushing, 8 Pick. 48, the principle was recognised and applied, although it appeared in evidenco that the maker signed the note merely for the accommodation of the payee. The doctrine established by the foregoing cases in New York and Massachusetts, is fully recognised in England. In the case of Pownalv. Ferrand, 6 Barn. & Cress. 439 (13 Eng. Com. Law R. 230), it was ruled-: “ That the endorser of a bill being sued, and having paid part of the sum mentioned therein, might recover the same from the acceptor in .an action for money paid to his use.” Mr. Justice Plolroyd put the case upon the same footing with that of a surety. Vide also Bailey on Bills, 390. In the case now before the court, the plaintiff did not pay the whole of the note, and had no right to sue on the note, for he had only paid a part of it. An action for money paid was the proper proceeding. Upon his payment, the .law raised an implied obligation on the part of defendantto reimburse him. That obligation did n.ot come into existence till the payment was made, to wit, July,-1843. Of course, prescription could not commence running before -the cause of action arose ; and the plaa.was improperly sustained.
    Prescription was interrupted in 1840, by defendant’s-acknowledgment of the debt. It will be perceived that the prescription of five -years was not completed in 1840 ; and, if then -interrupted, -it had not -matured-at the .commencement of this suit.
    The transfer by defendant to J. Ii. Moore 8¡- Co. of property to-the amount of the debt, and his arrangement that -they should pay it for him, is sufficient to interrupt prescription. Civil Code, art. 3486. Cdrrabyv. Navarre, 3 La. 263. Shiff v. Ilertzog, 12 La. 455. Riviere-v. Spencer, 2 Mart. 82. -It is not necessary to prove' a direct acknowledgment, but it may be inferred from facts without words. 1 Harris & Gill, 204. Whitney v. Bigelow, 4 Pick. 3/10. .9 Pick. 488. 8 Wend. 600. 13 Wend. 267. Bailey on Bills, 102, 349, 622.
    Nor need the acknowledgment be made to the creditor himself. .1 Esp. 435. 4 Esp. 46. 3 B. & A. 14>1. Oliver v. Grey, -1 Harris & Gill, 204. Whitney v. Bigelow, 4 Pick. 110. St. John v. Garrow, 4 Porter, 223. In Dean v. Plewil< 5 Wend. 257, the promise relied on was made to the payee of the note, and was held to enure to the benefit of the holder. -Pothier makes a distinction between acknowledgments made before, and after prescription has been accomplished. In the former case very slight ones suffice to interrupt prescription, and they need not be made to the creditor, nor with his knowledge; while in the latter case, to revive a debt already barred, the acknowledgment must be made to the creditor-himself. The mere registry of the debtamong the charges, in the inventory of the effects of the debtor, though-not made with the concurrence of the creditor, is an act which recognises the debt and interrupts prescription. Pothier on Obligations, part. 3, eh. -8, art. 2,-sa. 3,.p. 457. English translation.
    Until he satisfied the judgment in 1843, plaintiff had no right to sue for money paid, nor on the note. The note belonged to the Planters’Bank. Plaintiff could not force the bank to sue the maker, nor was he entitled to an action himself.
    The holder of a note, who has neglected to sue the maker, cannot avoid the plea of prescription on the ground that he instituted suit in due time against one or more of the-endorsers, becaase he had all the time a right of action against the maker, and where the right of action exists prescription runs. The former Supreme Court decided in Allain v. Longer, 4 La. 152, that suit against one of the parties to a note interrupted prescription as to all. This decision was based upon the assumption.that .all the parties to .a note .are bound in solido; blit was very properly reconsidered, and the principle reversed in the case of Jacobsv. Williams, 12Rob.l83, The latter case was one in which the holder sued, mid prescription attached, because the right of action had always existed in him. But how is it with an endorser 1 He is entitled to expect that the maker has paid, or will pay; in other words, that ho will fulfill his obligation. Suppose .the holder does not apply to the endorser until the very last moment of prescription, it would be injustice to say that the maker should be entitled to plead .against the endorser the same prescription which he was entitled to against the holder. It is the holder’s own fault that'he did not sue the maker in time, but jt is no.t the fault of the endorser; he could not sue till he had paid; and, as between him and the maker, he was not .bound to pay, but had a right to expect .that the maker would pay, the rule ought to bo that prescription shall not run In favor of the maker against an endorser, but from the time the endorser has ■taken up the ¡note or bill. “ Indeed the idea, observes Judge Porter, in the .case of Hernandez v. Montgomery, 2 Mart. N. S. 433, of a man losing his right by not bringing an action which it was impossible he could bring, involves such a .contradiction in itself, and leadsto such monstrohs injustice, that nothing short of the most positive law could authorise any tribunal to sanction such a doctrine. ”

      Hupuy, for the defendant.

      J. Djmlap, on the same side.
    1. The note sued on matured on the 5th March, 1837, and this suit was first instituted .on the 12th day of February, J844.
    2. The note was made by defendantfo.r the benefit of Moore Sf Co., and without any privity with any of the endorsers, especially with plaintiff, who de.clared, when advised to pay the note and sue Groza, that he endorsed for the benefit of Moore <§• Co., and looked .to them only.
    3. The payment by plaintiff' of the amount of the note, was not made within five years of the institution of this suit.
    4. There is no evidence of any promise or acknowledgment of the note, on the pari; of Goza. The settlement of account between him and Moore Sf Co., in which the credit to Goza, caused by Moore 8f Co.’s using the note, may have Ibeen an item, isitioi evidence of such a promise. The prescription of fivey.ears, pleaded underour Code, art. 3505, runs against plaintiffs-wherever they reside., and in favor of defendants wherever they reside. C. C. .3487, 2218. 15 La. 145. Story’s Conflict, s, 576. The prescription of our law is a discharge, an extinguishment of tbe debt. C. C. arts. 3421, 3422. The limitation statutes of common law States have no such effect. J.oynes’ Essay, p. 15. The acknowledgment of the debt, if specifically made by Goza to Moore Sf Co., would not avail the plaintiffs, according to art. 3486 of the Code, which declares that, “ prescription coases likewise to run whenever the debtor or possessor makes ac¡knowJedgm.en.t of the right of the person whose title they prescribed.” It is said that Moore received property .to pay the debt to the bank. Flow could this, if true, be called an acknowledgment of the right of Newman to recover of him the amount again 1 Conway y. Williams, 10 La. 569. Moore v. Bank of Columbia, 6 Peters, p. 90. As to the .form of the action, as for money paid by plaintiff' to the .use of defendant — -no such action will lie in Louisiana by an endorser against the maker of a note, unless the payment be made at the request of .the party,
    5. The payment by plaintiff was made, if at all, more .than five years after .the maturity of the note, when the note o.r .debt was extinguished ,by the laws of Louisiana, where defendant resided. C. C. 3421.
    6. The record introduced to prove payment-was improperly received. The ■certificate does .not show that Claiborne is in .the district over which the judge presided, nor that he was .the presiding, or only, judge. The statement ,’of the .clerk, in the beginning o,f the transcript, was made six years before the .certificate of the judge. 2 Mart. N. S. 497.
    7. If payment was made by plaintiff, it was made in the notes of the Planters’ iBank, then .worth only fifty cents in the dollar.
   The judgment of the .court was pronounced by

Slidell, J.

The plaintiff was the last endorser of a promissory note for .the sum of $3,805 27, made by the defendant, George N. Goza, in the State of Mississippi, dated 5th May, 1836, and payable ten months after date, to the or,de,r of and .endorsed by Aaron Goza, also by Joseph H. Moore & Co., and Moore, Burroughs & Co. The note matured and was protested on .tlie -8th March, 3 837, and in the same year suit was brought by the Planters’ Bank, the holder, against Newman; judgment was obtained, and upon execution -various .amounts, in partial payment, were collected from him, the reimbursement of which he claims of Goza. The residue was paid to the holder by Moore, Burroughs & Co. The note was offered in evidence, together with the protest, and the record of the suit in Mississippi.

Our first enquiry must be directed to a bill of exceptions, taken by the defendant to the admission in evidence of an authenticated transcript of the record of the suit in Mississippi. The objections were: first, that the judge’s certificate did not show that the county of Claiborne was within the circuit of said judge ; and secondly, “because the certificate was not upon the same piece of paper with the clerk’s certificate, although there was ample room for the same, which will appear from the original transcript sent up.” The record .commences as follows: “Pleas before the Honorable George Coalter, Judge of the First Judicial District of the State of Mississippi, at a Circuit Cotirt begun and held at the court-house in and for Claiborne county, .on the fourth monday,” &c. The clerk, in his certificate, describes himself as -clerk of the Circuit Court for the county of Claiborne. The judge’s certificate is headed “ State of Mississippi, Claiborne county,” and he styles himself therein judge of the First Judicial District of said State. In view of all these circumstances, the objection is plainly untenable. The next objection seems to us equally so. The judge’s certificate is fastened to the transcript, at the -foot of the clerk’s, by a wafer. In the absence of any suggestion, or offer of proof, that the judge’s certificate Was improperly obtained, we must presume that he .did not violate his judicial duty, and that he affixed this certificate himself to the document before ,us.

On the merits several grounds of defence have been urged, which we shall proceed to consider. It is no defence against Newman, that Goza made the note for the accommodation of J. H. Moore & Co. The relations between Goza and Moore & Co., are not proved to have been known to Newman. When Newman endorsed the note for the accommodation of Moore & Co., who put the note in circulation, he must be .considered as having done so upon the faith and .protection of all the antecedent names; and the statement of one of the defendant’s witnesses, that Newman, in a conversation with the witness after .protest, told him that he looked only to Moore Co., and knew nothing of Goza in the matter, even if admissible under the pleadings, is insufficient to establish a discharge of the defendant’s liability. S.uch loose declarations, made without consideration to a third person,.cannot -be treated as an abandonment of a lawful claim.

Although the payments made by Newman were partial, the maker is bound from the nature of the contract and his primary liability to reimburse them. This point of the commercial law is well settled by high authority. The case is assimilated to that of principal and surety, where the request to pay is implied from the legal liability of the latter incurred for the benefit of the former. See Wright v. Butler, 6 Wendell, 289, and the opinion of Lord Tenterden, in 6 Barnwell & Creswell, 439.

. The defence of prescription is set up. We deem it unnecessary to consider the question argued by counsel, whether prescription begins to run in such a case from the date of the payment by the endorser. It is shown by testimony, offered by the defendant himself, that, within five years prior to his citation in this cause, to wit, in the early part of the year 1840, he acknowledged his liability upon -the note. The facts shown aro that, in a settlement of certain partnership transactions between Goza and Moore & Co., the latter received from ffozajirqperty to the value of the debt to the Planters’ Bank, and agreed on their part to take up the debt-to the bank. This pr-o.ves an acknowledgment hy Goza, in the year 1840, of his'liability upon the note to the holder, and this action was brought in 1844. It .is unnecessary to enquire what would be the ¡effect of such an acknowledgment, under the statute of limitations in Mississippi. Questions of prescription affect the remedy, and must be determined hy the law of the forum. Story’s Conflict of Laws, § 576. Union Cotton Manufactory v. Lobdell, 7 Mart. N. S. 108. Prescription, says our Code, art. 3486, ceases ‘likewise to run whenever the debtor, qr possessor, makes an acknowledgment of die right of the person whose .title they prescribe.

A judicial record from another State is sufficiently authenticated, when, by a reference to the ■record itself, taken in connection with the'Certificate of the judge, there is evidence to .show that the person by whom the certificate was given .was the judge of the court from whichthe record was certified. Per,Curiam.- It is not necessary that the judge should repeat in his certificate what his very act implies.

Prentiss and Finney, for "the appellant.

The only question submitted for argument on the re-hearing in this case is, the sufficiency of the judge’s certificate authenticating the record of the proceedings in Mississippi, upon which the writ was founded. The act of Congress requires that, the record from another State shall be-certified by the “judge, chief justice, or presiding magistrate.” In the present case, the judge describes himself as “'judge of the-First Judicial District” of said State, &c. It is contended by the defendant, that the certificate must contain intrinsic evidence, that the judge was the judge' of the court from whence the record is certified, and that reference cannot be' had to the record to assist or explain the certificate. The case of Kirkland vv Smith, 2 Mart. N. S. 497, seems1 to go'tliat' length', but that case has gone beyond both authority and principle. In the case of Mudd v. Beauchamp, Lit-tell’s Selected Cases, 142,-the Supreme Court of Kentucky decided that, “ it is1 not necessary that the president or presiding judge should give himself such title in the certificate; if the record shows he was so, it is sufficient.” In the case now before the court, the certificate shows that George Coalter was then-judge of the First Judicial District” — nota judge, or one of tlie judges, but the judge — the sole judge. The body of the record shows that the Circuit Court of Claiborne, is in, and a portioftdf, the First Judicial District. This is conclusive that the judge who signed as judge — as the judge of the First Judicial District — was, at the time, judge of the court from whence the record1 came.

“ Parquelque acte que'le débiteur reconnaisseja dette, cet acte .interrompt lie temps de'ia prescription, soit que cet acte soit passé avec le créancier, soit qu’il soit passé sans 1ui: Par exemple, si, dans l’inventa'ire des biens du tlébiteur, la dette est comprise parmi le passif, .cet .inventaire, quoiqu’il ne •soit pas fait avec'Ie créantíier, est ,un acte recognitif de.Ja dette, qui interrompt ¡Je temp de la prescription.” 'Potliiqr, Trcíité oes Obligatiops, part 3, chap. 8, .•art. 2, § 4. See also Merlin’s Rep. verbo Interruption de Prescription, no. 8.

The plaintiff has incurred heavy expenses by the suit against him in the form ,of costs, and these form part of his claim. But these lie is not,entitled to re•cover. 'His claim musFbe confined to the amount collected on execution, which .actually went to the payment of the note, with such.interest from the dates of payment as the maker was bound for upon the note. 'It is .well settled that an endorser of a bill or note having had an action brought against him by the endorser','is not entitled to recover from the acceptor or maker the costs incurred in such action, unless .there .was an express apd collateral contract of indemnity.

It is therefore decreed that-the judgment of the court below be reversed ; and it is further decreed that the plaintiff recover of the defendant the sum of $5,612 73, with interest at the rate of eight per cent per annum on the sum of $1,243 39, part thereof, from the 22d May, 1843, till paid ; and interest at the .like rate on the sum of $4,369 34, other.part thereof, from the 3d day of July, 1843, till paid, andcosts.in both .courts..

Same Case — On a Re-hearing.

J. Dunlap, for the defendant.

The case of Kirkland v. Smith, requires1 intrinsic evidence in the certificate of all the requisites of the act of Congress. This is admitted by plaintiff’s counsel, but they contend-that Judge Martin went too far. We quote in aupport of Kirkland v.- Smith,, the-authority of Green-leaf on Evidence, 1 vol. p. 552, § 506, who lays down the same rule, and endorses the decision of Judge Martin.

Plaintiff relies upon the case of Mudd v. Beauchamp. That case, eve* if authority, is’ in our favor. There the record certified showed that, “ John Marshall G'ault was chief justice.” The certificate redd: "■ The'said John Marshall Gault, chief justice.” This certificate contained intrinsic evidence ," for “ the said John Marshall Gault,” means the judge named- in the record..But the case of Mudd v. Beauchamp, was decided in 1812. In 1814, in the case'of Stephens v. Bannister, 3' Bibb, 369, there were certificates of two' judges. One says he is “ the judge that presided;” the other calls himself,- “ senior judge of the courts of South Carolina.” The record offered in evidence was rejected. In Sampson v. Overton, 4 Bibb, 499, decided in 1816, the same strictness in pursuing the act' of Congress was required. These cases' are later decisions of the court which-decided'the case-relied oil' by plaintiff- and must be considered as overruling that case.

The opinion of the court on the re-hearing was pronounced by

Eüsti-s, G. J.

We granted a- re-hearing in this case for the purpose of further examination of the subject,- inasmuch as our decision-conflicts with the’ rule laid down in the case of Kirkland v. Smith, 2 Mart. N. S-. 4-97.

We do not understand-that that case has been considered as an authority,settling the question which it determines. It has been cited ha the work of Mr. Greenleaf, as a decision made, but only as such. We consider that some1 weight must be given te the authority of a- judge when he performs a judicial act; and that when, by a reference to the record itself, taken- with his certificate, the proceedings are in point of form complete, there can be no necessity for the judge’s repeating in his certificate what his very act implies. The repetition in the certificate would add nothing to it. His aet is under the sanction of his oath, and the responsibility of his official- station.

The case of Mudd v. Beauchamp, Littell’s Selected Cases, 142, we think, lays down the correct rule on this subject.

The judgment of the court therefore remains unchanged.


author: Rost, J. Eustis, C. J.

text:
    Bank of Louisiana v. Delery et al.
    An allegation that a judicial sale is null, is inconsistent with a claim to be paid by preference out of the proceeds. If the sale be nn'll the claimant must exercise his privilege upon the property itself.
    Nullities resulting from the non-observance of the formalities required in the alienation of the property of a minor, can be taken advantage of by him alone, and may be cured by his express or implied ratification after coming of age. They can only be taken advantage of in á direct action, before the proper tribunal.
    A probate sale made to effect a partition cannot be set aside, unless all who are interested ba made parties to the proceeding.
    Questions of fraud, or revocatory actions', cannot be tried summarily, without the intervention of a jury, where either party insists upon his right to a jury. Such issues must be tried in á direct action; but where a-person considers himself entitled to funds in the hands of a sheriff, lie' may arrest them till a final decisiou in a direct action.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.
    No counsel appeared for the plaintiff. Schmidt, for the defendant,
    cited Chambliss v. Atchison, 1 A. R. 488.

      J. Séghers and Homan, for the appellant,
    contended that the case was one in which summary proceedings were authorised, citing Larthet v. Hogan, 1 A. R. 330; and that in such cases a trial by jury is not allowed. C.P. 401, 757.
    L. Jarán, on the same side.
   The judgment of the court was pronounced by

Rost, J.

The Bank of Louisiana obtained a judgment upon two mortgage notes, subscribed by the defendant Dclery, and endorsed by the two other defendants. The land mortgaged was sold to satisfy this judgment, and Michel Albert Habré claimed the price in the hands of the sheriff, by the way of third opposition, on the ground that he had a legal mortgage on the property anterior in date to that of the plaintiffs. The defendant Delery excepted to this proceeding, alleging it to be a revocatory action in disguise; and further, on the ground that the matters set forth in the opposition could not be enquired into summarily. The plaintiff filed a general denial, and prayed for a trial by jury. The court below sustained the exception of the' defendants, and Fabvre has appealed from the judgment dismissing his opposition.

It is in evidence that the property sold had formed part of the community of acquéts and gains, formerly existing between the mother of the opponent and her second husband, Sylvain Peyroux ; that the mother of the opponent died leaving five children, issue of her second marriage, and that Sylvain Peyroux was appointed natural tutor of those children, and dative tutor of the said opponent ; that, upon the advice of a family meeting, the property of the community was sold to effect a partition, and that Delery derives his title from this judicial sale. It is also shown that, after the sale, Sylvain Peyroux rendered an account, of his tutorship of the opponent, which was homologated by the Court of Probates.

The opponent now asks that the decrees of the Court of Probates, ordering the sale and homologating the account of the tutor, be considered as absolute nullities ; and further, that the judicial sale, and all the mesne conveyances under which Delery holds, be set aside as fraudulent. At the same time he claims to receive by preference the proceeds of the properly itself. These demands are manifestly inconsistent. If the judgments of the Court of Probates ware nullities, and tho sales which have beonmade void, on the ground of fraud, the property must return to the community to which it originally belonged ; the opponent cannot receive the price paid by the evicted purchaser, and must exercise his claim upon the property itself.

Where the property of one against whom a judgment has been rendered appears to ho subject to privileges or mortgages, the judgment creditor, as incidental to tho right of having tho property sold for the payment of his' debt, may call Upon the creditors claiming such . privileges or mortgages inpreference over his debt, by a rule, to show cause why they should not be erased; and to this rule tho creditors are hound to plead; and if a sufficient reason be' not alleged for not doing so, the court may order the privileges or mortgages to be erased hr enable the sale to he effected. The pendency of a suit in which his debt, mortgage, or privilege is involved would be a good plea, and would arrest the distribution. Litigations con, cerning such privileges of mortgages are not required to he cumulated witlvthe proceeding by rule, nor is th’e rightto a' trial'by jury tobe taken from a party entitled to it, nor that of having his rights as a creditor tested before any other conipcEent t'ribunal’. Per Curiam: The object is to compel the creditor claiming an apparent charge upon tho property sultfoct to execution to vindicate his right to determine the validity of his claim by suit, but not to oblige him to litigate it in the action in which he is called upon to answer, if he have a right to proceed in another form or before another tribunal.

Taking the allegations of the opponent to be true, as we are bound to do in deciding upon the exception, the equity of his claim cannot be doubted. But he has mistaken his remedy. Nullities resulting from the inokservance of the formalities required in the alienation of the property of a minor can be taken advantage of by himseif alone, and may be cured by his ratification, express or ii'fiplied, after he becomes of age. They are not therefore absolute nullities; and, if he wishes to take advantage of them, he must resort to a direct action before the proper tribunal. The probate' Sale’ was made to effect a partition, and cannot be set! aside, unless all the persons interested be made’ parties to the proceeding.

Third oppositions are summitry proceedings, to be'tried without the intervention of a jury. In this case the plaintiff has prayed for a jury ; and, as there can be no doubt of the legal right of partios to that form of trial in all issues of fraud, except in cases specially excepted, we are satisfied that the legislature’ did hot intend that issues' of that description should be tried summarily.

In the case of Larthet v. Hogan, 1 An. Rep. 330, relied on by the opponent’s counsel, we held that it Was not necessary, in all cases, that the seizing creditor should resort to a direct action' against those who nominally held privileges or mó'rfgnges on the property sold, and that the holder of such mortgages might bo c'onipélíed to proceed, by way of third opposition, to establish them. But we never intimated that questions of fraud, or revocatory actions, could bo thus-tried. Our view's in relation to summary proceedings in the case of Chambliss v. Atchison, lately determined, ante p. 488, are more properly applicable to the' question now before us.

issues, such as the opponent has made, cannot be tried otherwise than in a direct action; and if he considers himself entitled to the fund in the hands of the sheriff, he may arrest it there, by legal process, till' the final decision of the’ court.

It i's therefore ordered that tho judgment to affirmed With1 costs.

Same Case — Application por a Ee-hearínc’.

ON an application by the counsel of the appellant for a re-hearing, the opinion of the court was delivered by

Eustis, C. J.

By the petition for a re-hearing which has been presented by the counsel for the third opponent, we are led to believe that we have not succeeded in making ourselves understood in the opinion which has been delivered ; and as the question involved is one of practice, it is very desirable that no mistake, or difference of opinion, should exist as to its extent and meaning.

In the case of Larthet v. Hogan and others, it was determined by this court, that when the property of one against whom a judgment has been rendered, appears to be subject to privileges or mortgages, the judgment creditor, as incidental to the right of having the property sold for the payment of his debt, has-a right to call upon the creditors claiming such privilege or mortgage in preference over his debt, to show cause why it should not be erased, and that this maybe done by way of rule, and to this rule the creditor so called upon is bound to-plead.

We by no means decided thereby that, with this proceeding the litigation* concerning all such privileges or mortgages was tobe cumulated, and that the' right of a trial by jury was to be taken from a party entitled to it, or that of having his right as a creditor tested before any other competent tribunal, by connecting it with the cause in which the rule was taken. But we decided that the party should be bound to plead, and, if a- sufficient reason should not be alleged, the court was authorised to order, the privilege- or mortgage- to be erased,, in order to enable the sale to be effected: under execution,■ The object to be-obtained was to compel the creditor elaiming:an apparent charge- upon the property subject to execution,- to vindicate his-right to determine the validity of his-claims by suit, but not to oblige him to litigate them in the suit in which he is - called upon to answer, if he have, from the nature of his case or otherwise, a-substantive right to litigate them in another form, or before another tribunal.

In this case the dispute between the parties is as to their- respective-rights- as- mortgage creditors, on the proceeds of: property sold under execution ; and we held that the court having, the eontrol over the fund did! not necessarily have the exclusive jurisdiction over the right of the parties growing .out of their different claims, but only the disposition of the fund after they should be determined according to law. The case of reserved dividends of bankrupt estates, which is familiar to the profession, is an illustration of the-idea whick we intended to carry out.

We say, the creditor claiming a preference by mortgage or privilege, when called upon, is bound to plead. The pendency of a suit in which the validity of his debt, mortgage, or privilege is involved, would be a good plea, and would arrest the distribution. But the court can compel the creditor to litigate, or erase from the records an encumbrance, whieh the party refuses judicially to-assert.

Proceedings of this kind, as we have said in Larthet's case, are authorised, as we conceive, by the Code of Practice, and are required by public policy, which forbids that records, which are ordained and established in the interest of bond fide creditors, should be made to perpetuate and keep alive encumbrances which have no existence except for purposes of collusion and fraud.

Ile-hearing refused■


text:
    Lawrence v. The Second Municipality.
    Where the corporation of a city, under authority conferred on them by law, take possession of a town lot, and dedicate it to public use, interest on the price will be due from the time of their taking possession. Per Curiam: .Town lots in the improved parts of a city, are productive property. C. C. 2531.
    Appeal from the Parish Court of New Orleans, MaurianJ.

      L. Janin, for the plaintiff. Rawle, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

This suit was originally .instituted by the plaintiff to recover from the defendants the value of a lot of land, taken by them for the purpose of opening Roffignac street. It came before the late Supreme Court, who remanded it for further evidence of the value of the lot. .12 Rob. 453. On the second trial, further, evidence of the value of the lot was adduced as directed by the Supreme Court, and the court below gave .judgment in favor of. the plaintiff, for the sum of §4,100, with,legal interest from the 23d of February, 1837, the date at which the defendants took possession qf the property. After the judgment, by virtue of an agreement .found in the record, the defendants paid the plaintiff §4,100, on condition that there should be no execution taken out.forthe balance of the judgment until the final decision of this, court, and that the rights of the defendants should in no wise be impaired by this.agreement. The .case comes before us on a devolutive appeal taken by the defendants.

The evidence in the record fully justifies the value put upon the property by the court below; and the only question that can arise is, whether.the defendants are liable to pay interest, and if so, from what date.

It does not appear that there was.any private .agreement between the-plaintiff and the defendants in relation to this lot. But the defendants:todk possession of it on the 23d of February, 1837, in pursuance of a special ordinance, and dedicated it to public use, by making it a part of a new street. The plaintiff could not have prevented them from doing so. The alienation was forced upon him, and it must be considered.as having taken place when he lost possession of the property. Town lots in the improved parts of the city are productive property, and interest is due.on the price of them. C. C. 2531.

Judgment affirmed,.


author: Slidell, J.

text:
    Louisiana State Bank v. Duplessis et al.
    A prayer for a trial by jury is not too late, though made after the case had been set for trial and continued, if it be not actually feed for trial at the time of the prayer. The object of art. 405 of the Code of Practice is to prevent a cause from being delayed, by interposing a prayer for ajury after it has been set fortrial on a particular day.
    Appeal from the District Courtof the First District, Buchanan, J.

      ’Grima, for the appellants. R. Hunt, and Grymes, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

Aftor issue joinod, .the defendant Ledoux, by a supplemental answer, prayed for a trial by jury, which the court refused, and a bill of exceptions .was taken.

The Code of Practice, art. 495, declares that the defendant, who wishes for 5. trial by jury, must pray for it in his answer, or previous to the suit being set down for trial. It appears that this cause had been set for trial several times, ?nd had been cpntinued without day. At the time that the prayer for a jury .was made, it does not appear that the cause was thfin set down for trial. If this reason had existed, we should have sustained the refusal; but the mere fact that on former occasions the cause had been set for trial, was not a sufficient reason for rejecting the application. There is, we are informed, a difference of opinion among the district judges of New Orleans, on this point ; but that which we have expressed we believe to be in accordance with the intention of the lawgiver. The object was, that when the cause stood assigned for a particular day pt? th,e trial list of court cases, the cause should not bp delayed by interposing a prayer for a jury.

The plaintiff cites, as sanctioning a different interpretation, tjie decision in Menefee v. Johnson, 2 Rob. 277. But on examining that case, wo find the court merely s.tated, in the words of the Code of Practice, that the prayer for a jury .came too late, after the cause had been set for trial. What the particular circumstances then were the opinion does not state, nor, on examining the re.cord, have we been able to ascertain them. So that we are unable to say, y?b.0ther the facts are the same as those now presented.

Considering that the defendant had a right to have his cause tried by a jury, and has been deprived of that privilege, we are obliged to remand the cause. See the case of Whitehead v. Brigham, 1 An. Rep. 317.

It is therefore decreed that the judgment of the court below be reversed, and that this cause be remanded for a trial by jury; the plaintiffs paying the posts of this appeal.


author: Kins, J.

text:
    Angelloz v. Rivollet.
    Where a party contracts with another .to accompany her to this country,,and to assist her in recovering an inheritance, for a certain sum to be paid out of it, and the former complies with his part of the agreement, but soon after his arrival here, and before the recovery of the inheritance, is discharged by his employer, without cause, lie may demand at once, and without waiting for the recovery of the inheritance, the whole amount to which he would be entitled had ho continued in her service until the expiration of the stipulated term. C. C. 3720.)
    A judgment will not be reversed, and the appellee amerced in costs, for an error in calculation, to the prejudice of the appellant, of about eight dollars, where no application was made for anew trial in order to correct the error.
    Appeal from the Second District Court of New Orleans, Canon, J,

      Tissot, for tfye plaintiff. L- Janin, for the appellant.
   The judgment of the .court was pronounced by

Kins, J.

The plaintiff claims, in this .action, a sum of money, which the defendant stipulated to pay .him for his services, in accompanying her from Paris to this city, and in aiding her to recover the amount of her inheritance from the .succession of her deceased uncle, C. F. Girod. He also claims a sum sufficient to defray his expenses back to Europe, and damages which he has sustained by reason of an alleged violation of the .contract, in dismissing him unseasonably, without cause. From a judgment rendered in favor of the pjaintiff for .a part of his claim, the defendant has appealed.

The conditions of the contract entered into between the parties \y,ere, ¡that thq plaintiff should accompany the defendant to New Orleans, and aid in recovering possession of the inheritance which had devolved upon her; and, as the reward of his services, he was to receiye a stipulated sum out of the succession. The defendant further undertook to bear all the expenses of the plaintiff’s journey to this city and back to the place of departure, and to furnish him with boarding and lodging during his sojourn here. The evidence shows that the plaintiff was extremely attentive to his duties, and rendered promptly and cheerfully every service required of him by his employer. The defendant, however, became dissatisfied, without any sufficient cause that has been shown, and respited to various devices to disgust the plaintiff, and induce him to abandon her service. Finally, a few yveeks after her arrival in this city, she informed the plaintiff, in terms by no means complimentary, that he was incapable of rendering her such services as she needed, that he could leave if so disposed, and that she intended to pay him nothing.

The defence mainly relied upon in this court is, that the action was prema-r •ture; that, by the terms of the contract, the plaintiff was only to be paid after the succession of Girod had been settled, and the defendant had received her share ; and that, at the inception of the suit, she had received but a small portion of her inheritance, the succession being still unsettled. This defence cannot ¡avail the defendant. By her own acts she violated and put an end to the contract without just cause, and gave the plaintiff the right, immediately upon his discharge, to exact the entire amount of his wages. He was not required to await the settlement of Girod’s succession before enforcing it, C. C. art. 2720, Sherburn v. The Orleans Cotton Press, 15 La. 361. 8 La. 181. The judge correctly awarded to the plaintiff the sqm to which he would have been entitled if he had continued in the service of the defendant until the expiration of the stipulated term, and the further sum which, under the evidence, appeared to be necessary to defray the expenses of his journey back to Paris.

It is objected that, if the sum due has been correctly determined by the dis-, trict judge in francs, it has been incorrectly converted into dollars. The standard adopted by the court below was 5 francs 25 centimes to the dollar. The act of Congress, regulating the value of coins, approved June 25, 1834 (Acts, p. 36), has fixed the value of the five franc piece at ninety-three cents, and made it receivable in payment of debts at that rate. The rate adopted by the district judge makes a difference to the prejudice of the defendant of about eight dollars. We have, however, on several occasions, refused to reverse judgments and amerce parties in costs, when the only error consisted of a small sum, unless the appellant has made such error the ground of an application for a new trial, and has thus afforded the judge of the first instance an opportunity of correcting it. This error was not suggested as a ground for a new trial below. Grailhe v. Hown, 1 An. Rep. 140. Judgment affirmed•


author: Eustis, C. J.

text:
    Taylor v. The Mexican Gulf Railway Company.
    {Defendants will be.liable for any injury sustained by third persons in consequence of negligence in drifting a raft, where it is shown that they had purchased and paid for the raft, and that it had been delivered to their agent. Nor will proof that their agent took upon himself •the risk of its safe transportation exonerate them, as owners, .from liability to third persons.
    PPEA'L from the Fourth District-Court of New Orleans, Strawbridge, J-This was an action for damage sustained by the owner of a flat-boat, loaded with coal, which was sunk by a raft of'timber belonging to the defendants. The defendants -contended: 1st, that they were not the owners of the raft at '.the time of the accident; 3d, that the damage was not occasioned by any negligence on the part of those in charge of the raft; 3d, that the amount of the loss is overrated. There was a judgment below against the defendants, for the .-amount of the damage proved, from which they appealed. The second and .third grounds of defence involved only questions of fact. In regard to the first ground, the judge of the 'District Court -says, in his opinion:
    “ Byrne, -who purchased the raft, was clearly the agent of the defendants. 'He was by them authorized to buy. The money was furnished by them. He received a commission for the purchase .and transportation. The price was -paid, and the raft delivered to him before the accident. Even without these 'two latter incidents, the contract of sale was complete between the parties by the mere consent, and the raft was at defendants’ risk. C. C. 1903, 2442.
    “ Much testimony has been introduced to show the manner of dealing of this ■company and others, in relation to the delivery and payment for rafts. In my ■opinion this does not affect the case. The mode of dealing of a company or individual, or even of several, cannot establish a custom, much less a custom contrary to express law. Whether Byrne, as a checker, took on himself the risk .of a safe transportation to the depot of defendants, or whether other checkers pursued the same course, is a question between them and their employers. It ■can only make them insurers of the safe transportation. They still remain the .agents of the owner, who, in right of that ownership, is liable to third persons for their agency, and cannot shift the responsibility by the substitution of a man ■of straw.”

      T. A. Clarke, for the plaintiff. L. Janin, for the appellants.
   The judgment ■of the court was pronounced by

Eustis, C. J.

We have examined the different questions of law and fact which this case presents, and concur in the view of them taken by the judge ,of the District Court, as expressed in his opinion delivered on the decision of •the cause. Judgment affirmed.


author: Seideia, J.

text:
    Phillips v. Murphy.
    A book purporting to contain the statutes of another State, not authenticated according to the act of Congress of 26 May, 1790, is inadmissible to prove a statute of that State. But the printed statutes of a State produced from the office of the Secretary of State sof this State, and proved to have been received by the executive of this State from tha executiva authority of the' State whose laws they purport to he, will be received as-primes facie evidence of the statutes contained in it-.
    Parol evidence is- inadmissible to prove a foreign-statute.
    Appeal from the Fourth District Court of New Orleans,- Strawbridge, /.

      Elmore and W. W. King, for the plaintiff. Budd and Redmond, for the appellant.
   The judgment of the court was pronounced by

Seideia, J.

The only point presented in this case which requires discus-, sien, arises from the rejection of certain evidence offered by the defendant.To prove that by the statute law of Alabama the contract of suretyship must be-in writing, the defendant produced a printed book, entitled Clay’s Alabama Digest, and offered to prove by a witness, as a-foundation for the introduction of' said book in evidence, that said work was read in the courts of Alabama as cor^ rectly exhibiting the statutes of that State, and also offered to prove by said-witness that, by a statute of that State,- parol proof could not be offered to prove' a suretyship.

The court below did not err’ in rejecting the'evidence'. The book purporting to contain the statutes of Alabama was not authenticated according to the' act of Congress,- and parohevidence of a-foreign-statute was inadmissible. See Minor’s Heirs v. Harding, 4 La. 381.

It is perhaps to be regretted that, all the courts of the Union have not’ adopted the more liberal rule which has been recognised in some of them, and which' has received the- sanction of the Supreme Court of the’ United States. Con-sidering the connection, intercourse, and constitutional ties whichbindthe States-together, as requiring a relaxation of the strict rule, it has been held,\pays Miv Greenleaf, that a printed volume, purporting, on the face of it to contain the laws' of a sister State, is admissible as prima facie evidence to prove the statute-" laws of that State; but the practice in this State, as in some others, for example,Connecticut and New York has been the other way, and we do not feel authorised to disturb it.

In these remarks we wish it to be distinctly understood, that we do not dis-. fiurb the practice which has grown up of admitting, as prima facie evidence the-printed statutes from other States, when produced from the office of the Score-tary of State of this State, and proved to have been received in the course of executive intercommunication. That practice was recognised- many years-since, in Wakeman v. Marquand, 5 Mart. N. S. 271, and has been frequently followed since that time in the lower courts-. But in our experience at the bar" we recollect no instance, where the rule of evidence, upon objection made, has' been carried as far as is contended for by the defendant in the present case.

With regard to the value of plaintiff’s professional services, and the promise of the defendant that they should be paid, we find no error in the judgment of the-court below. Judgment affirmed.