text:
    Barrett, Administratrix, v. Zacharie.
    Under art. 172 of the Code of Practice, which requires that a petition “shall contain a clear and concise statement of the object of the demand, as well as of the naturo of the title, or of the cause of action, on which it is founded,” a defendant will bo protected from any surprise resulting from the obgcxirity or duplicity of the allegations of the petition.

      Appeal from- the Fifth District Court of New Orleans, Buchanan, J.

      Fraser and Rosehus, for the plaintiff. E. A. Bradford and T. A. Clarice, for the appellant.
   The judgment of the court was pronounced by

Eüstis,-C.-J.

The principal matter in dispute between the parties grows out of the adjustment of an insurance on a steamer, made by the defendant, in November, 1840. the plaintiff contends that the defendant is liable to the estate administered by her, as for a settlement under the policy fora total loss, he being bound, by the pxtent of-the damage done the steamer and her value and condition, to have abandoned her to the insurers, and to have insisted on and effected á settlement with them as for a technical total loss,- which they wero in law bound to malte. The settlement made by the defendant was for a partial loss.

Tbe'judge of the District Court gave to the very important questions which this cáse presents a most careful and thorough investigation, and we regret that we do not feel ourselves at liberty to close it by determining them. There is a preliminary matter which received the consideration of the district judge, and on which we have not been able to concur with him. He says :• “ Before examining this question, it is necessary that I should dispose of an objection made by the defendant’s counsel. Itis’said that the petition claims nothing- but what has been received by Zacharie from the Insurance companies. This does- not appear to be the oase, although some expressions of the petition certainly favor this interpretation. The petition was evidently drafted with a very imperfect knowledge of the case, &c.”

The petition itself does not contain a clear statement! of the’ cause of action on which the suit is founded. There are allegations in the petition which Charge the defendant with refusing to account and pay over any portion of the funds received by him on account of the loss of the steamer, and that the money received by him from the underwriters, on account of the loss of the1 steamer, was received by him for the sole benefit of the succession, which he is bound to pay over to the administratrix. This is certainly inconsistent with the repudiation of the adjustment and the basis on which it was- made.

In another part of the petition it is alleged that the defendant received, or was entitled to receive, the amount of the insurance,- &c.; but taking the' whole of the petition together, which asks for judgment for the amount of the insurance against the defendant, we do not think that-ths objection of the counsel- for tho defendant was properly overruled.

The defendant’s counsel took a bill of exceptions to the opinion-of the judge, who admitted testimony showing the value- of the boat, on the ground that the petitioner claims an account of an alleged agency of the defendant in the steamboat Claiborne, and, under such claim, has a right to show by evidence that the defendant was entitled to receive from the insurers, upon a just settlement,-a larger sum than the one which he did receive in settlement of the policies of insurance held by him. The ground on which the evidence was objected to Was, its irrelevancy to the claim'made by the plaintiff for the amount received by the defendant on the policies of insurance.

The decision of the question turns on the construction of the petition, on which the rights of a litigant ought not to depend irrevocably, in cases where a party and his counsel may well be misled. Our Code, in requiring that the petition should contain a clear and concise statement of the object of the demand, as well as of the nature of the title, and of the cause of action, on which it is founded, and that it must end with conclusions analagous to the nature of the action to which the plaintiff has resorted, has established a full protection for the defendant against surprise; and it is our peculiar duty to extend it to all cases in which parties have a fair claim for relief against the obscurity, or duplicity, of allegations, on which questions of construction may be raised. C. P. art. 172.

There is no prayer in this petition for an account, unless such a prayer may be inferred from the definite prayer .for judgment for the aforesaid sum of §12,000-, after due proceedings had, Sec. But if the action was for an account, the defendant having rendered an account, as appears by his supplemental answer, in which the sum of §2,350 66 was credited as received from the underwriters, some notice surely ought, in common justice, to have been given the defendant of the serious grounds on which the allowance of this sum was to be contested, as there was a distinct allegation in the petition that the money received from the underwriters, on account of the loss of the boat, was received for the sole benefit of the succession, and that the defendant was bound to pay it over to the' administratrix.

We abstain from giving any opinion on the merits of this case; and being apprehensive that justice has not been done between the parties, by' reason of the manner in which the plaintiff’s claims are- set forth in her petition, and the evidence admitted as herein stated, we consider ourselves bound to- remand the-case.

It is therefore ordered that the judgment appealed from be reversed, and that a new trial be granted, with permission to both parties to amend their plead-ings; the appellees paying the costs of this appeal.

       Seidell, J., having been of counsel, did not sit in this ease.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    The Union Bank of Louisiana v. Erwin.
    Where the legal mortgage existing in favor of a minor on the property of his tutor basteen releasedby a decree of court, on the substitution of a special mortgage in his favor, in conformity with the provisions of the stat. of 11 March, 1830, the court cannot afterwards, on the depreciation of the property specially mortgaged, set aside its own iinal decree, and reinstate the legal mortgage.
    Appeal from the Fifth District Court of New Orleans, Buchanan,- J_

      Denis, for the plaintiffs. Mott, for the under-tutor, appellant. Josephs, T. A. Clarke, Durant, and Fraser, for different appellees.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs caused certain property mortgaged to them by the defendant to be sold. The amountof the adjudication exceeded their claims by about §22,500, and Isaac Osgood, the purchaser, instituted these proceedings for the purposes of ascertaining to which of the subsequent mortgagees this balance should be paid, and of obtaining the release of the unsatisfied mortgages, so far as they affect the property. This appeal is taken on behalf of the minor children of the defendant, whose claim to receive the surplus of the adjudication was disallowed in the first instance.

It appears that James Erwin was originally the tutor of his children, and that they had a legal mortgage on all his property for their rights in the succession of their mother; but, in 1837, the defendant gave them a special mortgage on unencumbered property, and the legal mortgage was released by a decree of court, in conformity with the provisions of the act approved on the 11th March, 1830. In 1842, the under-tutor of the minors presented a petition to the Court ■ of Probates, alleging that-the property specially mortgaged had greatly depreciated in value, and was insufficient to secure their claims. The prayer of the petition was that James-Erwin be cited to furnish additional security, and that, in default thereof, the general mortgage be reinstated, be recorded in the books of the recorder of mortgages, and be declared binding on all property then owned, or thereafter to be acquired by him. James Erwin admitted, in his answer, the depreciation of the property, and that it might not be adequate to the protection of the interests of- his children, but expressly refused to give an-additional mortgage.-

The judgment of the court on that issue was: “ That the- decree of- this court, rendered on the 12th of April, 1837, be rescinded-and annulled, so far as* it directs the cancelling and annulling of the general mortgage existing in favor-of the minors. That' the general and-tacit mortgage, which, by law exists in favor of minors, be reinstated in their favor, against their father James-Erwin ; that a copy of this judgment be recorded in the office of the recorder of mortgages of this parish, and in such other parishes as the under-tutor may deem necessary for securing the rights of the minors.” This judgment was not recorded till- the 12th of December, 1846, and is subsequent in the date of its registry to the mortgages of all the other opposing creditors. Supposing the mortgage to be valid, the court below correctly determined that- it was inoperative,-as to third-persons,-until it was recorded. But, with the most anxious desire to save the minors harmless, we cannot recognise its validity. Art. 548 of the Code of Practice provides that, a judgment when once rendered becomes the property-' of him in whose favor it has been given, and the judge cannot alter the same' except in the-mode provided by law. The various modes-provided by law in relation, to final decrees are found in the chapter of the Code of Practice, treating of the nullity of judgments, and this case comes within none of them; Legal mortgages exist by the operation of law. The law- provides how the property of tutors may in certain eases-be discharged from those operating in favor of their wards, but, after the discharge has taken place, it nowhere authorises courts of justice to revive them. The Court of Probates was without power to revive the mortgage, or to set aside its own final decree, five years after its rendition; and the judgment by which this was attempted to be done' must be considered as an absolute'nullity.

Should the minors sustain any damage from the view we have taken of their rights, the fault will rest exclusively with their father. It was his duty to have given a conventional mortgage on this or other pi'operty, when called upon to do-so. But he refused, preferring, that a general mortgage should be reinstated on all his property. The minors remain with, their conventional mortgage, and have no capacity to contest the distribution of the fund claimed by them.

Judgment ajjirmed.

       Eustis, C. J., being interested, did not sit in this case.


author: Eustis, C. J.

text:
    The Merchants Bank of Baltimore v. The Bank of the United States.
    Decision in Richardson v. Lcaviíl, 1 An. Rep. .430, affirmed.
    The registry in the conveyance office of .a copy, of an act of sale of immovables situated hero, executed before a notary in another State, whose official capacity is attested by.the secretary of state under-the great seal of the State, .the copy being certified by a notary . in this State to be a true one from an original instrument deposited in his office, is sufficient, .without further proof of the execution of the act,-to make the registry notice to third persons. Stats. 20 March, 1827; 17 March, 1828.
    A foreign creditor will not be aided by our courts in disturbing the possession of an assignee , under* voluntary assignment of real property in this State, made in ..another State, by • ■whose laws it was valid.
    Actions by creditors to avoid contracts made by a debtor.by-,which an,illegal preference is given to certain creditors, are prescribed by one year.
    PPEAL from the Fourth District Court of New Orleans, • Strawbri'dge, J. The facts of. this case are stated in the opinion of the court, infra. The conveyance under -which the appellants claim was admitted to record by the register of conveyances, on the production of-a copy certified by a notary of this State to have been correctly made from an original instrument deposited in his office. This .original was attested by a potary in Pennsylvania, and a certificate from the secretary of state of Pennsylvania, under the great seal of the State, attested that the person who professed to be a notary of the State of Pennsylvania, was duly commissioned as such, and that all his official acts are entitled to full faith-and credit. There .was.a judgment below against the opponents, from which they appealed.

      Wharton and Bonford, for the appellants.
    It is contended that no sufficient proof of a compliance with our registry laws had been presented by our opponents, to charge the Merchants-Bank with constructive notice of tho existence of their title. Art. 225,0 of the CivjlCode provides that“the reeord.of an act purporting to be a sale or exchange of real property shall not have effect against creditors or bond fide purchasers, unless, previous to its being recorded, it was acknowledged by the party, or proved by the oath of one of the subscribing witnesses, and the certificate of such acknowledgment be signed-b.y a judge or notary, and recorded with the instrument. This article would seem to make it incumbent on the bolder of a title under private signature, in order to give effect to its registry as against creditors or-purchasers,-to record at the same time authentic proof of the signature, of the parties. It is alleged thatthis is merely directory to the officer, and that if he chosos to record the act without requiring the proof of its execution, the registry is good t.o raise .constructive notice to third parties. This view is in direct opposition to the text and spirit of the article. The article is framed upon the assumption that the- officer has no right or authority to require proof of the execution of the act before recording it. It supposes the recording to have taken place without such proof. By the third section of the act of 1827, it is provided that whenever acts of transfer shall have been passed .under private signature, said register shall record them in tolo, with an act ascertaining the signatures if the,.contracting parties wish the registering of the act to be accompanied with an act ascertaining their signatures. And the act of 1828, containing a similar clause, uses the.expression “ if thereunto requested.” So that the officer is bound to register the act witbouttbe previous proof mentioned in art. 2250, if such .be the will of the party, who runs the risk of having it declared ineffective against.creditors and third parties. See Segrest v. Hood, 12 Rob. 210. We borrow the doctrine of notice, from the english and american law. Judge Story, in the case of Flagg v. Mann, 2
      Sumner’s Rep., inclined against tho extension of the rule of constructive notice. All authorities agree that the mere registry is not sufficient to charge a party with notice, when the other requisites of the law of registry are not complied with. See Story’s Equity Jurisprudence, vol. 1, § 404. Kent’s Commentarles, vol. 4, p. 174. Latouche v. Rusenberry, 1 Sch. & Lef. 157. Frost ■v. Beckman, 1 John’s Ch. Rep. 300. The language of Chancellor Kent has .direct bearing upon the present case — “a deed unduly registered, either from .the want of a valid acknowledgment or otherwise, is not notice, according to ,the prevailing opinion in this country.”
    Cases arising .under the laws regulating the inscription of mortgages are to be .distinguished from the present. Article 3331 of the Civil Code, which determines .the mode of .inscribing an act of mortgage under private signature, differs from art, 2250. It is expressly provided that the recording officer may inscribe ,tho original act on his own responsibility, without proof of its execution. The .inscription is not declared to be void as to .creditors and purchasers for the want ,of this proof, as in art. 2250. The cases therefore which affirm the validity of the .inscription.of an act of mortgage so,us seing prí¡oé without previous proof ,of its execution, have the warrant of the text of art. 3331 to sustain then?* ■The case .of FUs v. Sims, recently decided, ante p. 251, and which may be .relied on as opposed to the position.assumed here, goes no further than this.
    The assignments by the Bank of the United States, of the 3d and 7th of ¡September, 184.1, so far .as they .effect the personal property therein transferred, ¡have been held by the late Supremo Court to be valid. 8 Ro.b. 262. The .question as to their effect upon the rqal estate situated in this State, .was .expressly reserved. The .court below decided that as to the real estate situated here, .those assignments'.were to be construed and governed by our law, the law rei .sitce. The clea.r dispositions of articles 10 and 483 of our Civil Code, render the examination of any authorities on this subject unnecessary. Assignments ,of property in trust for the benefit of .certain creditors of .an insolvent, are re-probated by the policy of our laws. Townsend v. Louisiana Ins. Company, 13 Lq. £51.

      T. A. Clarke, for the appellants.
    The conveyance was recorded in the proper planner to give it effect against third persons. C. C. 2415, 2417. Stat. ;20th March, 1837, ss. 3, 5. 2 Mart. N. S. 1.71-4. 4 Ib. N. S. 369. 6 lb. N. S. 431. Fils v. Sims, ante p. 251. If the action be regarded as a revo.catory one, the prescription of one year bars it. .C. C. 1982. ,6 Rob. 150. 4 Rob. 408.
   The opinion of the court was prono.uncod by

Eustis, C. J.

This case arises out of the seizure o.f certain lots in this ,city, pnder .a judgment rendered in Pennsylvania ,in favor of the plaintiffs .against.the late Bank pf the United States, and made executory by the judge ,of the late Commercial Court of New Orleans, for the sum pf $159,620 29, The third opponents, James Robertson amd.others, alleged that .they were the .owners .and possessors .of .the property seized, under a .conveyance made to ¡them from the president, directors .and company of the Bank of the United .States, executed ,at Philadelphia o.n the 12th of February, 1842, and recorded ,hore op.the 16th April, 18£2. The opposition to the seizure and sale was dismissed after a hearing before the Fourth District Co.urt of New Orleans, and ,the opponents have appealed.

The .conveyance purports to be a sale for a fixed price, but in point of fact the ¡lots in question fornied part of the property o.f the late United States Bank, .assigned to .certain trustees for .the use of certain.creditors ;.and the .conveyance ,wns in furtherance of .the assignments, .and the .opponents were in possession (Under it. The assignments, ,so far .as relates to the personal property assigned, Raving been held to be valid by,a decision made by the lato .Supreme .Court, it .is said, the question as to thejr operation on the real estate situated within this State was reserved, and that, so far as concerns the r'eal estate, the force and effect of the assignments are to bo governed exclusively by our own laws.

The plaintiffs, for all the purposes of this enquiry, must be considered as having all the rights on the property of the bank, their debtor, which the laws of Pennsylvania confer, and no more. Tho remedies which the layvs of Louisiana give to creditors, the plaintiffs possess and have exercised. Tho opponents were in the possession of .the property seized .under ,a title, legal in point of form, and what are the grounds ,on which the plaintiffs can question its validity ? They are, that assignments of property in trust for the benefit of certain creditors of an insolventare reprobated by .our laws, and that no effect will be giv.eo to them by our courts.

We have lately given our ¡views in relation to this subject, after .a very thorough argument at bar, and an examination of all the authorities which tho assistance of counsel .and our own research could furnish. They are stated in the opinion of the court in the case of Richardson v. Leavitt, 1 Ann. Rep. 430. We do not know that .there is any part of that .opinion which requires, after a revision of the subject, any change. It -would result, from an application of tho principles .there laid down, to the present case, that, if these .assignments made by the Bank of the United ¿States in -Pennsylvania, -were valid by the laws of ¡that State, and are obligatory on the plaintiffs, that is, if the bank had a right to give a preference to particular creditors, the plaintiffs could not, by any process of law;, subject any property assigned for that purpose to the exclusive payment of their debt.

There are some preliminary matters, however, -to be first considered.

There is nothingin the for.m of the conveyance which affects its validity, and all the plaintiffs can ask is, that tho claims of the opponents be confined to rights created under the assignments, and conferred by the instrument itself in furtherance of their object. The mention of a sum of money as a consideration is a matter.of no moment, as the case is before us under the evidence.

It is said -that the conveyance was not recorded in the manner required by our 'laws, so as to charge the plaintiffs with notice; but we think that, .under the acts of the legislature of 1827 and 1828, relating to the register of conveyances for New Orleans, the record as made of the instrument did operate as notice.

The case of Townsend v. The Louisiana State Insurance Company, 13 La. 551, is considered by the counsel for the plaintiffs as conclusive in their favor. But the facts of that case, and the decisions .made on them, have no application to the questions which the case of Richardson v. Leavitt, and this case, present. In Townsend’s case, the assignment was made by an insolvent debtor residing in Louisiana, to the detriment of his creditors, of property which was .their common pledge, in which an undue preference was sought to be given, in .palpable .violation of his obligations.and of -the penal, as well .as .civil, laws of the land. That decision we have had occasion to recognise as correct; but we have also held that, where there was no common pledge, where by the law of ¿the domicil of the parties where the contract was made, no right was created on ¿the property of the debtor, and he might lawfully prefer .one creditor to another ¿in payment, .a foreign creditor would not be aided by o.ur courts in disturbing the possession of an assignee under a voluntary assignment, lawfully made for the purpose of carrying into effect a distribution of moveable property, which the debtor had the undoubted right to make. If the property in dispute were personal, we would maintain tho possession of the opponents in the case made out by plaintiffs. Is there another rule applicable to real proporty ?

As to -thevalidify of-the assignments, and binding force of the contracts under tile opponents held the property in dispute, under the laws of Pennsylvania, and of Maryland,-the domicil of plaintiffs, the courts of those States jjave reraove(j a]j .doubt by repeated recognitions of the principles on which they rest. 13 Sargeant & Rawle, 132. 6 Gill & Johnson, 371, 363, 206. Dana v. The Bank of the United States, in the Supreme Court of Pennsylvania. United States Bank v. United States, 8 Rob. 262.

But the argument-is, that our own laws operate exclusively upon real property within our jurisdiction; and arts. 10 and 483 of our Code are considered tobe so-formal and positive on-that subject,,as-to supersede the necessity of any further enquiry. The clause of art. 10 referred to, provides that-the effect of acts passeddn-one.country to have effect in another, is regulated by-the laws of the country-where they -are to have effect. The second -paragraph, of article 483 provides that, persons residing out of the State cannot dispose -of the property they possess here in a manner different from that prescribed by its laws. JIt would not be-reasonable to isolate these provisions from the great’body of ■our laws, and give them an arbitrary and literal interpretation, 'They are the •exponents of-principles which are recognised.under every system of laws, and -their application is.well understood. "There are cases arising here relating to property in this State, and by no means a small number have been before us, -which are governed , and determined by laws other than those of Louisiana. There can be no question-of the.su-premecy of the.laws of every country over the property within its jurisdiction, real and personal; but their exclusive application -indiscriminately -to all eases-occurring, would be-contrary to those •rules of cqmity which every civilised nation acknowledges, ..and those who ad•minister the laws are bound to respect.

Merlin, Repertoire, verbo Loi, § 6, nos.-B, 3, says,that,-though the french Saw governs-in all cases of immovables in France, evqn when the owners are foreigners,-yet that there are.exceptions to the rule. As, ibr-instance, if the Soreign Jaw in the country where a contract is made respecting them, has been adopted by the contracting parties, and .converted by .them into an express .contract; in such a case,-he 'holds,-thnt the contractus -binding, because the foreign law, as such,.does not act upon-the immovables in France, but solely by way of contract. And he applies the same principle to cases where there is no express.adoption of the-foreign law, but it arises by way of tacit contract from the place of the contract.

But this is not a case in which we are called upon to give effect to a foreign law, adversely to our own. The opponents are in possession under a title perfect as to form, and competent to transfer the property from the owner to them, ■with a consideration adequate -between the parties. The laws of Louisiana .protect those rights of possession and ownership. 'I he plaintiff's, third persons, Without any form of law,-seize the property, and'have it exposed for sale. Now •the first-preliminary enquiry is as to their rights. Did they ever own the property, or have any right in it, or upon it? Has their debtor any power or dominion over it, or any right in it, which will authorise the seizure ? This is answered by .the assertion of the exclusive operation of the laws of Louisiana over dll properly-within its jurisdiction, which "is assuming the very point in dispute. The plaintiffs only can avoid the effect of the title of the opponents by settingup a right in themselves, for it cannot be supposed that any person at -will can expel them from their possession; and when their pretensions are subjected to the test of truth, it is found that they are seeking to invalidate a coutract perfectly valid and lawful by the laws of the country where it was made, and executed by the parties without any infringement on the laws of'Louisiana. As we said in Richardson’s case: By our laws the property of the debtor is the’ common pledge of his creditors. Every creditor has an action to- annul contracts made in fraud of his rights.- The violation of the common pledge is the1 basis of this action; and where there is no-pledge violated, there is no injury to' the creditor. The bank, in this case, has an undoubted right to makethe disposition of its property which the-assignments were intended to carry into effect ;■ and the plaintiffs have no-more right to interfere with-it, than with any other lawful payment made by the bank. Besides; under our laws, actions can be brought by a creditor to avoid contracts made by a debtor with- his creditor by which a preference is secured, only within one year from-the time the contract was made.

The plaintiffs can acquire no rights by this- summary and unlawful- mode of enforcingtheir claims,which can only be accounted for by the condition of wreck-in which the late Bank of the United- Statos closed-its existence;

It is therefore ordered that the judgment of the District Court be’ reversed,- and that the said- opponents, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, be decreed- to be the lawful-owners of the following described property, to wit: “ The one undivided half-part of all and singular those three contiguous lots of ground, marked asnos. 10; 11 and 12, on a plan drawn by J. Pilié, city surveyor, on the 22d day of-' December, 1835, and deposited in the office of Adolphe Mazureau, one of the notaries public of New'Orleans,-the-same being situated in- New Orleans,, measuring each 24 feet 8 inches front on Tchoupitonlas street, between St.Joseph and Julia streets, by 86 feet in depth, between parallel lines, being the' same property described in the act of sale, before Jules Mossy, one of the notaries of New Orleans, on the 6th day of July, 1840, by James Hick to the-Bank of the United States.

And it is further ordered, in virtue of the agreement-of counsel touching-the’ effect of the decree to be rendered in this case now on the files of this court,, of date the 25th May, 1845, that the opponents, James Robertson etal. take and. receive the proceeds of the sale of said property made by the sheriff of the’

Commercial Court of New Orleans, on the 30th May, 1845, and that the plain-tiffs pay costs in both courts.

      Sí.ideií, J., did not sit i.n this caso, having boon of counsol.


author: SiiiBEiL, J.

text:
    Florance v. Richardson et al.
    Where the law declares that the term of an office, to which the appointment is -made by ncP minationby theExecufcivef and confirmation by the Senate, shall empire on a certain day, bat authorises the officer to hold’ over'until his successor is appointed", and the re-nomination of the incumbent rests in the discretion of the Executive, and no'particular mode is proscribed by law by which the unwillingness of the Executive to re-nominate the incumbent shall be manifested, an office-copy of a written communication, addressed to the auditor of auction sales by the secretary of the governor, informing lain of the appointment of a person in the placo of the former incumbent, accompanied by the testimony of the seerctary that the communication was written by him, under the orders of the governor, will be sufficient evidence of the appointment of another to the place of the former incumbent. 'Pho fact that the governor directed the communication to be written, may be proved by parol;
    Whore an auctioneer, who had received and advertised for sale certain goods, sells them after his' term of office has expired,- and converts the proceeds to his own use, the sureties on his official bond, who bound themselves “ that ho should perform his duty as an auctioneer to all persons who shall employ him as such, during his continuance in office,” will not be liable for the amount so converted.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      Benjamin and Micou, for tho appellant,
    cited Kuhn v. Abat, 2 Mart. N, $. 168. Duchamp v. Nicholson, lb. 679.

      R. Hunt, for the defendants,
    cited stats. 20 March, 1813 (Moreau’s Dig. verbo Auctioneer)-; 16 Feb. 1825, and 18 March, 1839, ss. 2, 5, 13 (Bull. & Curry’s Dig. pp. 37, 39,1. C. C. 2583. 9 Wheaton, 680. Theobald, Prin. and Surety, 49. 2 Mart. N. S. 169. 7 La. 103. 3 Camp, N. P. 52. 3 Wilson,- 530.
   The judgment of the court was pronounced by

SiiiBEiL, J.

This suit was instituted to recover from Richardson, an auctioneer, and the sureties on his official bond, the amount of sales oí certain furniture of the plaintiff’s-, sold at auction by Richardson, which he received, but failed to pay over. The case comes before us upon the liability of the official sureties, Stone and Freret. Their defence’turns mainly upon the question whether, at the date' of the auction sale and receipt of the proceeds, Richardson's official capacity had expired. The sale at auction was made on the 20th March, 1844-.' Richardson was appointed and duly commissioned as an auctioneer on the — day of — 1843. The act of 16 February, 1825, sec. 4, requires auctioneers annually to enter into bond, with security, in the sum of $8,000; The act of 18 March, 1839, increased the amount of auctioneers’ bonds to-$10,000, and subjected the bonds to the approval of the auditor of auction sales; and the 13th section of that act declared that, all commissions for auctioneers in the city of New Orleans thereafter to be issued, should expire on the first day of February of every year; but those persons who shall be in commission on that day, may hold over until- others are appointed in their places.

It appears that, in-' February, 1844, the governor submitted to the senate the nomination of J. A. Bonneval and certain others, as auctioneers for the city of New Orleans. It was not stated in the message to the senate that Bonneval was appointed in the place of Richardson. These nominations were confirmed on the 7th March, ensuing. On the 8th March, the governor’s private secretary sent a communication to the auditor of auction sales, in the following words : “ J. P. Philips, J. Wilcox, D. Dupuy, and J. A. Bonneval in place of Richardson, appointed March 7th, 1844.” This communication was signed by the secretary officially. The auditor endorsed the day of receipt, informed Bonneval of his appointment, accepted Bonneval’s official bond on the 18th March, 1844, and he received his formal commission on the same day. On the 19th March, 1844, the auditor addressed an official letter to Richardson, informing him that his official character as an auctioneer had ceased, Bonneval having been appointed in his place, and having complied with the requisitions of law.

These facts were shown by tho testimony of Ledoux, tho governor’s secretary, who produced the offico copies of tho written communications referred to, and deposed that he addressed the auditor, informing him of the appointment in the place of Richardson, by the governor’s orders. The auditor of auction sales was also examined as a witness, and stated that all these proceedings were according to the usual course and forms of executive action, with regard to appointments of auctioneers, their bonds, and the expiration of their functions. It also was proved by the- testimony of these officers that, when the commission of an auctioneer expires, the place is usually filled, without mentioning in the communication to the senate in the place of whom the new officer is appointed; but, when a vacancy occurred by death or resignation, it was always stated in place of whom the appointment was nade.

To the admission of the testimony of Ledou.v, and of the documents above mentioned, exception was taken by the plaintiff, upon the ground that the removal of an' officer could' only be proved by the formal appointment of a successor by the governor, by formal message to the senate, designating the officer intended to be removed, as well as the officer appointed in his place; and upon the like ground, objection was made to the proof of executive usage. The testimony was, however, admitted.

This was not the ease of the removal of an, officer. By law, the term of office-was fixed as expiring on the first day of February in every year; but with-permission to the officer to hold over until- another was appointed- in his stead. The nomination of the officer was a- matter resting in- the discretion of the executive,- aud the law did not prescribe- any particular mode in which the unwillingness of the governor to renominate an auctioneer should be manifested. The province of the senate was to confirm or reject nominations of auctioneers made by the governor. The name of Richardson never was sent in as renominated ; and we think, under the statute, that the fact that the governor directed the secretary to address the communication in question to the auditor, was a a fact which could be shown by parol. As to the action of the auditor upon the-written communication of the secretary, it is preserved in an official form, to which no objection, so far a3 the rules of evidence are concerned, is or can be made. We concur with the court below in the opinion, that the evidence was admissible to shew the- fact that Bonneval was appointed in the place of Richardson, and, being so admitted, that fact is clearly and unequivocally established.

The legal consequences from that fact are obvious. Richardson had ceased, before the 20th March, 1844, to b® an auctioneer. No act of his, after the 19th day of March, was an official act. He had no official authority to- make the auction-sale on the 20th, and the sureties cannot therefore be held- responsible for the receipt of the proceeds of the sale by him.

■ is urged- that the sale, and the collection of the proceeds, were the continuance and completion of a business, in which Richardsonhuá. been employed before his official character expired. It is true he had been so employed to make the sale, had advertised the goods for sale before the 19th, and the key of the dwelling, house in which the goods were had also been given to him, to enable him to arrange it for the expected sale. But no wrong was done to the employer before the sale. Before the goods were sold and the proceeds were received the commission liad expired, and the conversion, if there has been one, was the act of an individual and not of a public officer. The liability of the surety cannot be thus extended beyond the official term, either on general principles, or under the terms of the condition of the bond, which were that Richard son “ shall perform his duty as auctioneer towards all persons who shall employ him as such, during his continuance in office.” See the case of Duchamp v. Nicholson, 2 Mart. N. S. 680. Judgment affirmed


author: Ki'NG,. J.

text:
    Nicholson, Syndic, v. Jacobs.
    Decision in Nicholson; syndic, v. Chapman, 1 Ann. Eepr-222, affirmed*
    Appeal the5 Commercial' Court of New Orleans, Waitsy J.-

      T. A* Clarke, for the plaintiff. Grymes, for the appellant.
   The judgment off the court was pranouneed by

Ki'NG,. J.

This case wasbefbre’thedate Supreme Court;-when the judgment' of the District Court was reversed, and the cause remanded, far the purpose off enabling the plaintiiPto amend his pleadings, and administer proof of the defalcation oflPHtcliard, the former syndic. 8 Rob. 233; The original* defects off pleading and evidence have been supplied, and the r-ecord-now- exhibits substantially the same facts as those before-us in the case-of Nicholson, syndic, v. Chapman, and presents the identical questions then decided. 1 Ann. Rep. 222. In-that case we held that the endorsement “ G. W. Pritchard, syndic,” was-notice that the-note belonged to-the estate-of-the insolvents, and thatitcouldnot-be'discounted by the syndic without an order of; the court; that a person-' taking a note of.this kind can acquire no rights under it adverse to the party to whomdt really belongs, and in-whose favor such restrictive endorsement is* made;

The proofs in-this case, in relation to- the dividendsu'eoeived by the present1 syndic from -the bankruptcy of Taggart, are similar to those in the case of the" present plaintiff against Chapman-, and entitle the defendant to a credit in the-proportion-which the notes sued-on bear to-the amount-proved- in-bankruptcy,, with.the further right1 to any additional dividends that may. have since been declared, or may-hereafter-be declared. In these respects the judgment-of-the-lower court must be-amended.

It is therefore ordered that the judgment of the lower court be reversed. It is further ordered that there be judgment for the plaintiff-for nineteen hundred- and sixty-seven dollars and five cents, with interest at five per cent from the-19th May, 1843, reserving to the defendant the right of.receiving such dividends as the syndic may have collected since the judgment rendered in the court below, or may hereafter collect, from the bankrupt estate of Joseph Taggart, jr., in the proportion which the sum of $2,462' 09 bears to $9,777 76; the appelleepaying the costs of this appeal.