author: Labauvb, J.

text:
    No. 1093.
    J. D. Weaver v. Theophilus Anfoux.
    Where a party, after having received the full benefit and advantage of a contract, comes into court and alleges his own turpitude, and invokes the law of morality, to relieve himself of ths execution of his part of the contract and by that means to enrich himself at the expense of the other party, he must adduce evidence so complete that it carries with it conviction with all the power of demonstration.
    The courts of this Stale will not give effect to an agreement entered into for an immoral or fraudulent purpose, but such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture.
    The evidence shows that defendant executed his promissory notes in favor of plaintiff, secured by mortgage on real estate, and received from plaintiff, as the consideration for the notes and mortgage, checks on the bank for the amount of the notes, less the interest, in the ordinary form, payable in no particular currency; and further that checks of the bank were either paid in bank notes or Confederate treasury notes. Defendant now seeks to avoid the payment of the notes on the ground that the consideration for which they were given was Confederate treasury notes: It«ld— That this evidence does not establish with the legal certainty required that the consideration was Confederate treasury notes.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      Hunt & Denegre, for plaintiff and appellee.

      Campbell, Spofford & Campbell, for defendant and appellant.

      Brief of plaintiff and appellee.

      * * * The rule in reference to this case, and the quantum of proof which it devolved on Anfoux to produce, in order to obtain the remedy he seeks, is thus Lid down by the Supreme Court: “Although a regard to the purity of justice compels the admission of allegations and proof that the form of a legal contract has been used to cover a corrupt, or flagitious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the Judge is not only authorized, but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction with all the power of demonstration.” Hertz vs. Wilder, 10 An. 201.
    The same principle is enunciated by the Supreme Court in the case of Denton y. Irwin, 6 An. 320. The Court there say: “The appeal of the counsel for the defendants to this Court, that the action of the plaintiff cannot be maintained as originating ex turpi causa we do not feel ourselves at liberty to act upon. As we held in the case of Benton v. Wilcox, 2 An. 66, we will not give effect to an agreement entered into for an immoral and fraudulent purpose; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. When such a case is brought before a court of justice, the Court is bound from a sense of self-respect to withhold its sanction and dismiss the parties; but this is in the interest of public justice, and not in the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant.”
    And so in the recent case of Graves v. Hardesty, the Court said: “ The defendants offered a witness to prove that the consideration of the note was Confederate money * * he failed however to prove the consideration was Confederate money.' He stated that in the year 1864 greenback or United States money was also in circulation to some extent in that section of the country, and he thought the Confederate officers used about as much of it as they did of the Confederate money.” And the Court considered this testimony insufficient. 19 An. 186.
    And so again in the case of Clark and, Thieneman v. Norwood, the Court said: “ The testimony of the cashier and paying teller of the Citizens’ Bank is to the effect that at the time the check of the plaintiff in payment of the cotton was received, the bank paid Confederate notes or notes of the local banks, at the option of persons presenting checks for payment. This does not establish that payment was made in Confederate treasury notes. ” 19 An. 118.
    Conscious of the weakness of his ease in this important particular, the counsel for Anfoux sought to bolster it up on the new trial by the testimony of one Scott, who testifies to an admission on this subject in the course of a casual conversation between himself and Weaver, out of the presence of any third party. He says: “ After this suit was commenced I saw him one day; he told me he had taken out a seizure, and that Anfoux had taken out an injunction upon the ground that the consideration was Confederate money. He said: It is true it was Confederate money, but that could make no difference to Anfoux, as the greater portion of the money went to pay the previous mortgage and interest, which the previous holder was willing to take with the accrued interest, and that would consume a large amount of the $11,000.” Rec. p. 75.
    On cross-examination, this witness stated that Weaver had sued him and obtained judgment against him, and that Anfoux was one of his witnesses, although he had not testified in the matter.
    The Judge a quo did not take into account the testimony of this witness. Leaving out of view the bias under which he testified, and giving the fullest weight to his statements, it would be difficult for any unprejudiced mind to conclude that these statements constitute legal proof that the consideration of this mortgage was Confederate money.
    It is an elementary principle in the law of evidence, that the loose and careless admissions made by parties in casual conversations are the weakest of all evidence. 1 Greenl. $ 200; Hen. Dig. 503.
    What is said with-reference to the testimony of Scott, applies with equal force to that of Roubieu, who testified on the first trial to a similar declaration in conversation made by Weave?: to nun, Suplí declarations, even if made by Weaver, are in contradiction of tlie admitted facts, that Weaver gave the notary his checks for dollars and cents, in the usual form.
    2.The allegations of the petition for an injunction, and the evidence in support of them are insufficient to anthorize an injunction without security.
    Article 739 of the Code of Practice, provides that “ the debtor can only arrest the sale of the thing seized, by alleging some of the following reasons, to wit:
    1. That he has paid the debt for which he is sued.
    2. That it has been remitted by the creditor.
    3. That it has been extinguished by transaction, novation, or some other legal manner.
    4. That time has been granted to him forpayingthe debt, although this circumstance be not mentioned in the contract.
    5. That the act containing the privilege or mortgage is forged.
    6. That it was obtained by fraud, violence, fear, or some other unlawful means.
    7. That he has a liquidated account to plead in compensation to the debt claimed.
    8. And finally, that the action for the recovery of the debt is barred by prescription.”
    On the allegation under oath of any of these reasons, the Judge shall require no surety from the defendant who asks an injunction. O. P. 740.
    But where the debtor alleges other reasons than these, “the Judge shall not grant an injunction without requiring that the defendant shall give bond to the plaintiff with good security, to the amount of one-half more than the appraised value of the property seized.” O. P. 750.
    The petition of Anfoux is artfully framed, with a view to evade the obligation of giving security which the law imposed upon him. The petition alleges “ that the act of mortgage, upon which said order of seizure and sale has been sued out, was obtained by unlawful means,” thus employing the very language of Article 739 of the Code of Practice.
    Now, what is the meaning of these terms ? To obtain an act of mortgage by unlawful means, is to procure such an act by means of fraud, violence, fear, artifice or constraint. To obtain is “to get, to gain,'to procure.” “The word usually implies exertion to get possession, and in this, it differs from receive, which may or may not imply exertion. ” Web. Die., Yerbo, Obtain. Where an individual' has voluntarily and deliberately gone before a notary public and became a party to a notarial act, where no artifice or constraint is charged to have been employed to procure his participation in it, it is an abuse of language to say that such an act has been obtained or procured from him by the exertion of illegal means or influences. What unlawful means does the petition state or the evidence show were employed against Anfoux, in order to obtain this act of mortgage from him? None. What fraud, what violence, what fear, what stratagem led him to the office of Mr. Guyol, and induced him to borrow Weaver's money in order to discharge his own debts, to disencumber his property of a mortgage, and then to issue his promissory note for the reimbursement of the loan?
    The petition, after charging in general terms that the act of mortgage “ was obtained by unlawful means,” proceeds to particularize and explain how this was done. It charges that the loan was made in Confederate notes, and concludes with the allegation that the contract “was an unlawful contract, based upon a cause reprobated by law, which this Court cannot lend its aid to enforce. ” In other words, the petition charges that unlawful means were exerted against Anfoux, in order to procure the mortgage act from him, and to seduce him into signing it, because the consideration of the contract was an unlawful one ! This is clearly a non sequiiur; hut this is the logic of Anfoux. It is to say, that a notarial act, although voluntarily entered into by a party, was necessarily obtained by improper exertions employed against, him, because the consideration of the contract is illegal! It is to say that a want of consideration for a contract is equivalent to a want of free agency in making the writing evidencing such a contract.
    Thus the allegation that “the act of mortgage was obtained by unlawful means,” has been ingeniously used as a cloak for another, and a different defence. The true ground upon which Anfoux claims his injunction is the unlawful consideration of the contract, and not any unlawful means employed to obtain his participation in the notarial act. He comes into Court like a wolf in sheep’s clothing. He charges that this act of mortgage was obtained by unlawful means merely in order to enjoy immunity from giving bond; but he proceeds to state his real cause of a.ct’on, which would uot entitle him to an injunction withoutgivingbond. To obtain an injunction for the reason that the consideration of a contract is illegal, requires the giving of a bond; and a party is not permitted to evade this requirement of the law, by covering up his real reason under a false pretence.
    The authorities show that whenever an injunction has been obtained for want of consideration, fraud in the consideration, or failure in the consideration, the party has been compelled to give bond. In Dawson v. Duplantier, cited in the brief of counsel, an examination of the facts of the case shows that the injunction was granted upon security. 15 La. page 290.
    In Sowell y. Cox, 10 Rob. p. 69, also cited in the appellant’s brief, the injunction was granted upon security. In the case of Grenwell v. Roberts, 7 La. p. 65, the injunction was issued upon security. In Falehon v. Bouclierville, 1 Rob. 337, it does not appear from the report of the case that the injunction was issued without security. The same may be said of the case of Slidell v. Righior, 4 Rob. 58, also relied on by the appellant.
    In Gox y. McIntyre, 6 An. 470, it is not distinctly stated that the injunction issued without security. But, from a passage at the very end of the opinion of the Court, and to which the attention of the appellee’s counsel was called only after the argument of this case, it would appear that the injunction issued without security. The passage referred to would seem to indicate, however, that the Court instead of approving, reprobated the action of the lower Court, in enjoining the writ without security. The Court say: “ The District Court rendered full justice to the plaintiff; perha enjoined more of the claim against her than should have been enjoin ithout security.”
    The practice is believed to be general in cases like this, whether the injunction be sued out by an opposition or in a separate action, for the pe itioner to give bond under the requirements of the Code of Practice.
    There is a manifest propriety in permitting a defendant in a writ of seizure and sale to obtain an injunction without giving security in the eight cases enumerated in the Article 739 of the Code of Practice. In six out of these eight cases the injunction is sought for causes necessarily arising subsequent to the granting of the mortgage, and by which the debt has been extinguished, or its payment postponed. In the other two instances, the injunction is sought upon the ground that the act containing the mortgage is forged, or because the act was procured by means of. fraud, fear, violence, or the employment of other unlawful practices.
    In order to obtain an injunction in any one of these eigl t cases a party is required to swear to some substantive fact, which must be within his individual knovdedge. But when the allegation is that a “ contract is an unlawful one, based upon a cause reprobated by law,” the party swears not merely to a fact, but to a legal conclusion — the result of his own opinion as to the legal significance of a fact.
    In the eight cases mentioned in the Code, if the parly swears falsely, his falsehood may be readily exposed and his perjury promptly punished. But, on the other hand, if he swears that the consideration of his contract is unlawful, it requires an investigation of the law in order to establish the erroneousness of his legal inferences, and it would be impossible to punish him for pi 'jury, when his error comes to he exposed, and the lawfulness of the consideration to be finally determined.

      It may be asserted to be the general rule under our practice, that where a writ of injunction is issued in order to stop the wheels of justice, the party obtaining it is bound to secure his adversary by a bond, against the damages which he may sustain in case it has been wrongfully obtained. C. P. Art. 304; Act March 25th, 1831, seo 3; O. P. Art. 750.
    There are exceptions to this general rule. These exceptions are the eight enumerated in the Article 739, O. P. These are declared to be the “only ” reasons for which an injunction may be permitted to issue without surety. They are not to be extended, or enlarged by interpretation. If so, they cease to be the “only” causes for which injunctions may issue without security; and other causes maybe added to them ad libitum. Thus, the general rule of our practice would become abrogated, and the exception take its place.
    But the appellant’s counsel insist on adding at least one more reason to the eight embraced in Article 739 of the Code of Practice. They claim for this ninth reason the authority of Article 742, C. P., which provides, that if on being required summarily to prove ike fads (not legal inferences) alleged in his opposition, the party “ proves that the act on which the seizure was obtained is prescribed, or that the cause of it is void, or that the debt is paid, etc., the Judge shall revoke the order of seizure, and condemn the plaintiff to pay costs.” C. P. 741, 742.
    The argument is, that when the cause is void for any reason whatever, the party may obtain an injunction under this article.
    Now the Article 742, C. P., is in pari malerice with the Articles 739, 750, C. P., and by the well-settled rule of interpretation, all parts of the law are to be compared to ascertain the intention of the law-giver. However broad the expressions may be in the Article 742, yet, if, on examining the other provisions of the law, it clearly appear that those expressions are intend ml t.o be limited by other provisions, it is proper to restrain them accordingly.
    “it general words are used which import more than seems to have been within the purview of the law, or of other parts of the law, and those expressions can be restrained to those used in the same law, or inany other upon the same subject, they ought to be so restrained.” Smith’s Com. sec. 659, etib.
    The general words, “ if the defendant prove that the cause of action is void,” seem to import more than was within the purview of the law. They add other reasons to the “ only reasons ” enumerated in Article 789. If unrestrained by Article 739, they admit an injunction without security wherever the cause of action is alleged to be void for any reason whatsoever. But when restrained by Article 739, they admit an injunction without security, ‘ ‘ where the cause of action is void,” for any of the “only ” reasons which are within the purview of the law, and in no other cases.
    3. Anfoux, having confessed judgment, becomes plaintiff in the injunction, asking the affirmative aid of the Court to relieve him from an illegal contract, in which he was a voluntary participant. Such aid a Court cannot lend in such a case.
    When the creditor is in possession of an act importing a confession of judgment, in matters of privilege and mortgage, he may proceed against the debtor or his heirs, by causing the property subject to the privilege or mortgage to be seized and sold, on a simple petition, and without a previous citation of the debtor, in the manner laid down in the third paragraph, second section, third chapter of the first part of this Code. Code of Practice, Art. 734.
    When the hypothecated property is in the hands of the debtor, and when the creditor, besides his hypothecary right, has against his debtor a title importing a confession of judgment, he shall be entitled to have the hypothecated property seized immediately, and sold for the payment of his debt, etc. Code of Practice, Art. 63.
    Thus, on “ simple petition,” “ without previous citation,” the creditor is entitled to have the mortgaged “property seized immediately,” and sold for the payment of his debt.

      No exception, no answer, no defence of any nature is permitted the defendant. He is precluded by his own act from any and from all these. He has chosen to cut himself off from them.* He has confessed judgment.
    The law of Louisiana has created public officers to receive the contracts of parties, and to impart to them authenticity. Such contracts so received, pro luce between the parties the same effect as judgments rendered by legal tribunals.
    “ Dans la legislation actuelle, les notaires sont établis les magistrals et les ministres de la j urisdiction volontaire. 'Us exercent dans cette jurisdiction des fouctions absoiument semblables á celies attribuées aux juges, dans Tadministrabion de la jurisdiction contentiense. Dans les affaires litigieuses, portées devant les tribunaux, les juges déelarent l’íntention de la loi et en ordonnent 1’application au cas parbieulier, qui leur est sonmis. Dans l’acte que re^oitun notaire, cet offieier declare l’intentíon, la loi particulifere que se font les contractants qui paraissent devant lui. Les uus et les antres disent ce qui est devenu un droit, ceux-ci par la volonté particulifere des contractans ceux-lá par la volonté générale de la loi. Jus dicunt, d’ou vientle mot jurisdiction-” Loret, Recherches sulla Jurisdiction, p. 1.
    The act of mortgage in this case not only imports a confession of judgment, but is in totidem verbis such a confession in favor of the mortgagee or any subsequent holder of the obligation connected with it.
    “ "Where a party, in an authentic act, confesses the existence of a debt, and authorizes the creditor to enter up judgment without notice or delay, Courts have the power upon the exhibition of such an instrument, to carry into effect the agreement between the parties, in the same manner as if the parties were present, and confessing in open court.” Toledano vs. Relf, 7_A. R. 61.
    The position which Anfoux has placed himself in with reference to this mortgage note is, that of a party “present and confessing judgment in open court.”
    He cannot escape from this position. He cannot be permitted to undo at will what he has thus solemnly done.
    If he comes into Court, and seeks to enjoin the execution of the judgment thus confessed, he assumes the attitude of a plaintiff — an actor. His opposition takes the form of a petition. He assumes the attitude of a plaintiff seeking a legal remedy upon certain allegations which he makes. He asks to be extricated from the toils that he himself has helped to weave.
    What issue is now presented and under trial before this Court? Manifestly it is the issue tendered by Anfoux in the opposition, and joined by the motion to set aside the injunction. The question for this Court to decide is: Shall the injunction prayed for by Anfoux be perpetuated? Has he shown himself entitled to the remedy that he seeks?- Shall he receive the affirmative aid of the Court?
    Weaver, on the other hand, does not ask the aid of the Court to secure to him any right. He has already obtained all the aid he asked.
    Ttie order of the Court a qua, awarding him executory process, is final and complete. It issued upon the confession of his debtor.
    This order, although not in some sense a judgment in his favor, is yet to be regarded in the light of a judgment in this: That it is subject to revision on appeal. It has not been appealed from: and he comes before the Court only to resist the application of Anfoux for the affirmative aid of the Court.
    Suppose that instead of adopting the solemn form of an authentic act to clothe his confession of judgment, Anfoux had seen fit to be present and confess judgment in open court — could he be permitted to come into court afterwards, and seek to enjoin the judgment thus confessed, without assuming the character of one asking the active interposition of the Court in his behalf ? Suppose the confession of judgment were contained in an unauthentic writing, signed by him in the form usually employed in our Courts in such cases. Upon the proof of such a eonfes-' sion before a Court of competent jurisdiction, judgment would be rendered against liim. Would lie not, if he ai'terwai ,s sought to enjoin a judgment thus rendered, be still asking the affirmative aid of the Court to shield him from the judgment thus confessed. Is his position improved, or in any way altered, from the fact that his confession is clothed in the more solemn form of an authentic act ? The confession of judgment in such an act is at least as full and conclusive against him as though it had been •made orally, in open court, or by means of a private writing signed by him. In every instance, it is his own confession of judgment against himself; and in asking to be relieved from it he becomes the plaintiff or actor; whilst his judgment creditor is forced into the position of the defendant or reus, resisting his demand.
    Now, the ground on which Anfoux asks this Court to enjoin the writ of seizure in this case is, that the consideration of the obligation on which he has confessed judgment “is unlawful, and based upon .a cause reprobated bylaw.” Can the Court grant him its aid ? Let the authorities answer this question.
    “ Courts of equity will not grant affirmative aid to a participant in such a transaction, either by canceling what is executed or enforcing what is executory. Nor will they cooperate with a party in his efforts to secure any of the fruits of it, though as between him and his confederates he wiil not be dispossessed. The reason is, that courts do not sit to “ extricate rogues from their toils,” and sound policy requires that they should be left to the hazards of their devices, and at the mercy of each other. ” Schemerhorn vs. Taiman, 4 Hernán, p. 102, and the authorities cited in the brief of N. Hill, of counsel.
    “The complainant alleges that the obligation to which he had voluntarily become a party, was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfilment. This prayer, too, is preferred to a court of conscience, to a court which touches nothing that is impure. The condign and appropriate answer to such a prayer from such a tribunal is this: That, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto. You cannot be admitted to plead your own demerits, precisely, thtr-f'ore, in the condition in which you have placed-yourself, in that position we must leave you.” This was the case where, after judgment recovered against him, the complainant had executed a forthcoming bond, which the Court deemed “equivalent in effect to a confession of judgment.” Oeach’s Adm’r. vs. Sims, 5 How. 204.
    “Where an illegal contract has been partially performed, and the party •who has received the benefit of such performance gives a judgment for the value, equity will not relieve him from the judgment, allhough the amount could not have been recovered at law, on account of the illegality.” Hilliard on Injunctions, p. 181, sec. 48. 1 Story’s Eq. Jur., see. 296 a ; State vs. Ress, 12 An. 166.
    In Orchard v. Hughes, 1 Wallace, p. 74: “A suit had been brought by Hughes against Orchard, the appellant, to foreclose a mortgage. Oi chard set up by way of answer, thata part of the consideration of the nioitgage consisted of the bills of the Bank of Tekama, of the territory of Ne raska; that th's bank, though chartered by the Legislature of that t >m ory; had never been approved of by Congress, as was necessary that it should be, in order to be*h gaily chartered; that the bank was never organized; that it was a device to deceive the public; that its notes were fraudulently issued and put in circulation without the authority of law, and were of no validity or value whatever. But the auswer showed that the bills were current, aud in circulation at the time they were received by him, and did not state in any sufficient way that they had proved worthless in Orchard’s hands, or that they had ever been tendered back either to or by him.” The Court said “the fatal defect in both the answer aud proof is, that admitting every allegation against the legality of the bank charter, and of the worthlessness of the paper issued by the bank, Orchard, the maker pf the note and oi the mortgage, hag not been the sufferer, The bills constituting a portion of the consideration of the note he used in payment of his debts while they were current in the community, and he has not taken them back, either voluntarily assuming that he might have done so, and set up the fact as a defence to the note; nor has he been subjected to the repayment of the debts he discharged by the use of them; and even were he permitted to succeed in reducing the present demand by rebating the bank-bills received by him, it does not appear that he is under any obligation to account for that amount to the creditor or creditors to whom he paid them. The defendant, therefore, is not in a condition to test the several questions raised and discussed on the argument in respect to the power of the Legislature to charter the bank or the conduct of the parties concerned in its organization, or in keeping up its credit for the purpose of imposing upon and defrauding the community by means of the circulation of its paper. The decree, therefore, of the Court below was right, and should be affirmed.”
    In Emerson v. Lee, 18 An. 135, this Court upon principles of equity identical with those enunciated by the Supreme Court of the United States in the case of Orchard v. Hughes, 1 Wallace, p. 71, said: “Plaintiff’s consent to accept Confederate notes was forced, produced by violence; and had he shown what he alleged, that he never used the notes given to him by defendant, we would not hesitate to give him relief. We think that in order to recover, it was essential for him not only to allege, but to prove that he retained and tendered the identical notes received by him; but he has failed to make the necessary proof, which it appears he might have done, as the payment was made to or in the presence of his broker. To permit him to offer other than the very notes given to him would indirectly at least recognize in them the quality of currency. * * * * This is a recognition which this Court is not prepared to make. And besides, there is proof in the record that Confederate notes at the time had some value, (however this value may be imparted) and it would afford plaintiff the opportunity to barter or make merchandise of those received by him, and afterwards substitute or replace them at a small cost, and thus actually realize the amount claimed in addition to a recover from defendant.”

      Brief of defendant and appellant.

    * * * The first inquiry is as to the matter of fact. Was this a loan payable in Confederate notes? Upon this we think there cannot be a doubt. The contract was made between Anfoux and Weaver. Anfoux has sworn that this was the contract in his opposition to the rule.
    Guyol, the notary, says: That a few days before the execution of the mortgage, Weaver deposited his checks with him to complete the transaction, ami that he deposited the checks, and afterwards closed the transaction by drawing similar checks. What did he deposit? His deposits were made in banks that paid out only what they received. They had made special contracts with their depositors. Generally, they paid out currency, and Guyol understood these checks to beso drawn; that if Mr. Anl'oux “had demanded payment of his balance in gold or silver, or even city bank-notes, he could not have paid him in other funds than those that Weaver gave him.” Two witnesses swear to Weaver’s account of the contract.
    Weaver, claiming exorbitant interest for delay, explains to Roubieuthe whole matter. It was not his usage to lend money; he could get more by other dealings; but he desired to get rid of his Confederate trash ! The times had changed, and now he must do better, and get all that was in his power ! This is perfectly consistent with what is said by Guyol. He does not draw checks upon the specie-paying bank, bub on one of those that did not pay out its own notes, except in small parcels to a friend, but which took care to withhold them from circulation.
    Scott testifies that while the suit was pending, and when, therefore, we may suppose that Weaver was guarded, he admitted that the statement of Anfoux, in respect to the consideration, was true, and stated, in his answer to it, that Anfoux had made a profitable use of the money,

      This testimony, in connection with that of the Messrs. Guyols, seems to be conclusive on the matter of fact.
    The ordinary checks on the banks of New Orleans, except the Southern Bank, were payable in Confederate money; they would not be paid in other funds, except specially deposited and drawn for.
    There was no special deposit in this case, and Weaver declares that his motive for making the loan was to employ his Confederate money; that he would not have made the loan otherwise; that it was not his habit to make such loans; that he desired to get rid of what he considered “ trash.”
    Another witness testifies to his admission of the same fact.
    Weaver himself proves nothing on the subject. He might have produced his bank-book checks, and their payment from funds specially deposited, but he does nothing of the kind.
    The Court is entitled to exact explanations from him, and he makes none.
    The conclusion is irresistible, that this was a mortgage for a loan to Anfoux, nominally, of $11,000, as specified in his mortgage, butof $11,000 as represented by the Confederate treasury notes for that sum.
    The deposit of the checks with the notary, and the payment out of his checks to the different persons who were to receive money, was a mercantile mode of facilitating the completion of the transaction — a mere form for executing the prior agreement. The check is “ always supposed to be drawn upon a previous deposit of funds, and on an absolute appropriation of so much money in the hands of the bank or bankers to the holder of the cheek to remain there until called for, and cannot, therefore, bo after-wards withdrawn by the owner. ” Story on Promissory Notes, sec. 487.
    It is proved in this case that the banks and depositors had agreed as to the funds that were to be paid out by the former on the checks of the latter. Mr. Guyol, in his first examination, states this: “The holder could get no gold, silver or bank-notes but as deposited by the drawer.” His brother, the officer of the Canal Bank, states the same fact.
    Now then, Anfoux and Weaver had agreed on the money to be paid, and Weaver places the checks to meet his engagements; the notary places the cheeks to his credit, and draws upon the funds so deposited. The funds of Weaver were the Confederate “ trash ” he was anxious to part with, and which Anfoux had agreed to take.
    The checks were used to accomplish the arrangement. The notary owed nothing to Anfoux; he was a mere conduit of Weaver’s money to him upon the execution of the mortgage. Anfoux had agreed to convey free of prior encumbrances, and as a part of the transaction he applied a portion of the money in that payment. In applying that part of Weaver’s deposit, Guyol was Anfoux’s agent. Weaver was no party to that contract of payment. The mortgage paid was not transferred but extinguished; it was the payment of Anfoux to his creditor.
    The loan of Weaver is given for the note of Anfoux, and his mortgage for $11,000, paid to him in Confederate money, as before stated, upon the evidence in the record. If the notary had gone to the bank and drawn the Confederate money, and paid it to Anfoux, it is not denied that the contract would have been legal. How is the consideration altered, when the bank holds the Confederate money, and delivers that and nothing else ? They had made special contracts with every depositor, and that contract was binding. Weaver could have drawn nothing else himself, and how could his check in favor of another be more operative ? These parties both agree in the fact that the consideration was Confederate money.
    When this case was brought, there was some doubt as to the illegality of such a consideration. The opponent produced a note made by the Confederate States and the acts of the Confederate States Congress, to show their exact purpose. Those acts show that the notes issued by the Confederate government were only a form for borrowing money to carry on the war against the United States.

      Tlie authorities show that contracts made by the subject or citizen of a neutral power, cannot deal in the securities of an unrecognized government at war with a government with which the neutral power is at peace and on terms of amity. The cases of Thompson v. Bowles, 2 Simon, 194; Kennett v. Chambers, 14 How., S. C. R, 38; 41 Bingham, 315; 2 Carr & Payne, 223, show this, and the cases are equally clear that such a transaction as this cannot be supported in the Courts of the United States, when the contract was for the purchase and accrediting of notes issued by a government organized for the purpose of carrying on hostilities against the United States, and which the United States treated as a rebel government. Great Britain treated the acts of the colonies, during the revolutionary war, as having no obligation or force, and would give to them no consideration. 3 Durn and E. 401.
    The decisions of the Courts of Louisiana are sanctioned by principle and authority. (Schmidt v. Barker, 17 A. 201, and other cases on this question.) Nor does it make any difference what use was made of the money by one of the parties, or could have been made of it by the other of the parties, or whether the money was of any value. The Court does not make any inquiry on that subject. If it appears that the contractwas ex turpi causa, or against a positive law, or in violation of a public duty, the Courts refuse to lend any aid in its enforcement. Nor can the contract be divided. "Where a sale was made of an article, the payment for which was to be made in good money in part, and counterfeit money for the other part, the whole contract was declared to be illegal, and no part of the price could be recovered. Alexander vs. Owen, 1 Durn and E. 227; Eitson vs. Himes, 5 Barr, R. 452; 2 B. and Adol. 912; 5 Oowen, 253; 1 Hill, N. 1. R. 34; 2 Hill, 456; 2 Camp 147.
    2d. The next question arising on the pleading is, whether it was competent for us to interpose this proceeding. It was contended that we were plaintiffs, seeking to enforce a plea of illegality, and that the Court would lend us no aid.
    On the contrary, we insisted that Weaver was endeavoring to obtain relief upon a contract tainted with illegality, and that the defendant was in a condition to avail himself of the maxim : “potior est conditio defendentis. ”

    The executory proceeding is a summary j>roeeeding, to obtain execution upon a favored class of securities. The order upon the petition is not a judgment, and possesses none of its features. It decides no issue, and gives no right beyond the notarial act, by any adjudication. 1 Hen. D. 651, 53, 5.
    When opposition is made, and there is contestation, then the act only imports a contract, and maybe avoided in the same manner as other contracts. The Articles of the Code of Practice declare this: The 739th Article mentions a number of cases; nearly all that affect a contract, whether in the making, the evidencing or the extinguishment that can be conceived; and in the 742d Article it makes a summary of these, and decides that if the action be extended or prescribed, or the cause is void, or the debt is paid, remitted or extinguished, the Judge shall revoke the seizure.
    This point was decided by the Supreme Court, in the case of Rowlet v. Shepherd, 41 La. R. 86. , ,
    The Court decided that the injunction obtained by Shepherd to the executory process of seizure, was to be regarded as an opposition. The Court says: “ The 741st Article provides that the plaintiff against whom the injunction has been obtained, may compel the defendant to prove, in a summary manner before the Judge, the truth of the facts alleged in his opposition. This enactment shows very clearly, that the Legislature considers the parties in such cases in quite a different character from what they would be if the party obtaining the injunction was plaintiff. The Judge, therefore, committed no error prejudicial to the plaintiff, when he gave him the same right and the same opportunity of maintaining his injunction, as he would have had, if the objections to the order of seizure and sale had been regularly and formerly presented as an opposition.”
    In the ease at bar, the objections are made by opposition in writing, in strict conformity to the Articles of the Code of Practice. Does the Code authorize this opposition V The allegations of the opposition are, that the act was obtained by unlawful means, and that the cause of the act is null. The Civil Code (Articles 1887, 1889) declares “ an obligation without a cause, or with a false and unlawful cause, to have no effect. The cause is illicit when it is forbidden by law, when it is contrary to moral conduct or to public order. ” ‘
    This is the precise allegation in the opposition, and however such a contract may be made, the means are unlawful.
    In Dawson v. Duplanlier, 15 La. 290, the ground of opposition was a failure upon the part of the plaintiff to fulfill his portion of the contract, whereby he had disabled himself from proceeding on his mortgage.
    In Falcon v. BoucherviUe, 1 Rob. 837, the opposition was founded upon the entire want of consideration. The plaintiff objected that no such evidence could be made, but the Court ruled otherwise.
    In Slidell v. Righlor, 4 Rob. 39, the opposition was made on the ground of fraud in the consideration of the contract.
    In Sowell v. Gox, 10 Rob. 69, a wife claimed that the contract was illegal, because she had bound herself with her husband. The Court intimated that this was a proper ground of opposition under the 739th Article of the Code of Practice as unlawful means, but it was not necessary to put the decision on that ground, as thero was an injunction under the Articles 296 and following.
    In Gox v. McIntyre, 6 An. 470, the seizure was opposed on the ground of usury. The Court sustained the process, and determined that the amount the defendant had not received might be deducted from the mortgage, but that interest that had been paid could not be recovered back.
    This was a simple case of illegality in the consideration. To the extent of the usury reserved, the contract was null. No question was made as to the regularity of the proceedings for that cause.
    In Zuñís v. Comen, 10 A. 433, the question here arose, as, in Sowell v. Gox, (supra) whether a married woman could enjoin an executory proceeding upon an authentic act. The cases are cited in the opinion.
    In one of the opinions it is stated “the true doctrine is, that where the authentic acts bear intrinsic evidence that the wife has exceeded her powers, the Judge should not issue an order of seizure and sale; but where they do not bear such evidence the order should be issued, and the wife left to her remedy, like other defendants in executory process, by injunction and affidavit.” C. P. and several cases cited.
    The only reason is, that where the cause of the action is void, it may be used as a ground of opposition. It was not lawful for a wife to bind herself with her husband,-except in particular cases, and the authorities show that she may allege and prove that the particular act was not binding according to law, in a case-of seizure.
    The cases cited show that want of consideration, fraud in the consideration, failure in the consideration, illegality in the consideration, want of capacity to contract, are all “unlawful means ” which furnish grounds of opposition. An illegal cause annuls the contract. There can be no cause more fatal to its execution through a court of justice. The Courts repudiate all intercourse with such contracts. The Supreme Court of the United States, 2 Peters, 527 and 538, say: “Courts are instituted to carry into effect the laws of a country, how can they then become auxiliary to the consummation of violations of law. * * * There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal. ”

    If the argument of the plaintiff were true, then all illegal contracts which assume the form of notarial acts, would be carried into execution by the courts.
    Their argument is that the author of such an act, when it is the ground of an executory process, cannot be resisted by opposition, but only by an original suit, in which he is a plaintiff, and in which he impeaches the act, and he may apply for an injunction. But they add, that being the plaintiff, the Court will not listen to him, as he alleges his own turpitude, and the Court leaves him were it finds him. Thus the holder of such an act escapes inquiry, and enjoys the full benefit of the severe process of the Court to enforce it.
    The statement of the result shows that it cannot be true.
    The executory process comes to us from the Spanish law. In Gxrlie v. Coquet, 3 Martin, N. S. 198, Judge Porter says: “So little have our Legislature interfered with this mode of proceeding that it seems to depend exclusively on the ancient laws of the country.” The Code of Practice embodies the Spanish regulations on the subject, with hardly any change.
    In the Eebvero Novísimo, B. 3, tit. 3d, ch. 5, ¡¡ 21: “La exception de nulidad del contrato, sentencia o instrumento en cuya virtud se pidió la ejucion,” is mentioned asa proper ground of opposition; “ pdrqne el que es nulo no debe ejecutarse.” The same will be found in Escriche’s ivork, under this title.
    The Judge below decided the case upon the testimony adduced, and therefore it may be assumed that this ground of objection was not in his opinion well taken. It is perhaps doubtful whether it can be raised in this Court.
   Labauvb, J.

The plaintiff obtained an order of seizure and sale upon a promissory note of the defendant, dated February 18th, 1862, for $11,000, with interest, and secured by a mortgage given by the defendant upon city property.

The defendant enjoined the sale upon the grounds that the mortgage was obtained by unlawful means, alleging that Weaver being possessed of “ Confederate notes,” issued by the Confederate States, then in insurrection, and payable as such notes were, after the termination of the existing rebellion, induced the defendant to take them, and to grant the mortgage, and to give the note and mortgage as security therefor; and that plaintiff gave defendant time for one year, ending the 18th February, 1867, to pay the note.

The plaintiff obtained a rule to set aside the injunction, upon the grounds:

1. That the first ground is not sufficient to sustain the application.

2. That the allegations of the opposition were untrue.

3. That the second ground was false, and that there was no such agreement.

The Court, after hearing the evidence, dissolved the injunction, and Thoophilus Anfoux appealed.

At the time of executing the act of mortgage by Anfoux in favor of Weaver, there existed a prior mortgage upon the property to secure a debt due by Anfoux to Ledoux, amounting in principal and interest to $8,700, evidenced by a note, of $8,000, which was held by Sosthene Armant, who appeared and intervened in the act of mortgage executed in favor of Weaver, and declared to have received payment in full of said note on that day, and cancelled the mortgage.

The first and principal question in this case is, whether or not the consideration of the note and mortgage sued upon, was treasury notes of the so-called Confederate States.

When a man, after having received the whole benefit and advantage of a contract, comes in Court -with unclean hands, and alleges his own turpitude, and invokes the law of morality, to relieve himself of the execution of his part of the contract, and by that means to enrich himself at the expense of the other party, he must adduce evidence so complete that it carries with it conviction with all the power of demonstration.

In Denton v. Erwin, 6 A. 320, this Court, by its organ, Judge Eustis, said:

“ We will not give effect to an agreement entered into for an immoral and fraudulent purpose; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. When such a case is brought before a court of justice, the court is bound, from ásense of self-respect, to withhold its sanction and dismiss the parties; but this is in the interest of public justice, and not in the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant.”

The same doctrine is followed up in Hertz v. Wilder, 10 A. 201, when this Court said:

Although a due regard to the purity of justice compels the admission of allegations and proof that the form of a legal contract has been used to cover or corrupt a flagitious transaction, yet such an allegation puts the party who makes it in a position so questionable that the Judge is not only authorized, but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction, with all the power of demonstration.”

We will now proceed to examine the evidence, and see if Anfoux has brought his case within the above doctrine, which we fully approve and adopt, notwithstanding the remark of the distinguished counsel of Anfoux in their brief, that it is unsound and in conflict with the first principles of evidence.

In the first place, there is nothing in the evidence, showing there was ever a word said about Confederate money, prior to, at the time of, or subsequent to, the passing of the act of mortgage and execution of the note sued upon.

In the second place, as regards the payment of the money—

Theodore Guyol says:

“I was a notary public in this city in 1862. The act of mortgage from Anfoux to Weaver is involved in this suit. I recognize the act shown to me. The sum of money, $11,000, less the interest, was paid me by Weaver in a check. I deposited the check to my own credit in bank; I paid $8,700, I think, to Mr. Ledoux, through his agent, Mr. Sosthene Armant, in settlement of prior mortgage; the balance I paid in a cheek, which I gave to Mr. Anfoux; I am not able to say on what bank that check was; I kept an account in the Canal, Citizens, and State Banks; think the check was on the Canal Bank; I have been for a great many years a notary public — since 1845; sums like these, I always pay in checks. I deposited the whole in bank to my credit, and then checked out to each party, as in this instance. ”

“ This act shown contains the exact agreement between the parties. I could not find the checks I spoke of. The only cheek I find is the Ledoux check on the Canal Bank, and which is the exact amount of the Ledoux mortgage.”

“I did not look for the check for the balance paid to Anfoux. Weaver deposited a portion of the money with me three or four days before he deposited the balance, on the 18th February. My checks, which were drawn on bank, were payable in currency — Confederate funds. On the 19th of September, 1861, there was an agreement entered into between the bank and its depositors, that from and after that date all checks were to be paid in the same currency as was deposited.. At that time the Confederate money was currency; sometimes the banks as a favor would give in payment a few bank-notes. Weaver’s checks were ordinary checks, payable in the same currency as my checks were. If Dr. Anfoux had demanded payment of his balance in gold or silver, or even city banknotes, I could not have paid him in other funds, but in such as Mr. Weaver gave me.”

“ Checks called for no particular currency; they were ordinary checks for dollars and cents.”

On a further examination, on a new trial, he says:

“ The money which the act of mortgage calls for, was paid by Weaver in check on the bank, and the money paid by me to Anfoux was also by check on bank; the checks were in the ordinary form, calling for no particular currency.”

“These checks were deposited with me before the date of the act of mortgage. One check was delivered, I think, about eight or ten days before the signing of the act; another check was delivered a few days after the first, and the third, probably on the day of the signing of the act.”

“ I did with those checks what I always do; about three o’clock I deposited them in bank. In this matter I was acting as the notary; indeed, I was the agent of both parties. This was an ordinary mortgage ; generally the party loaning money deposits the money or check with the notary, so that if he should not be present when the act is completed, the notary will hand over the money to the other party. In my last examination, I said that I gave my check, and so I say now. ”

“The money the banks were paying at that time could have been drawn on that check — that was Confederate money; though, as I stated in my first examination, I got bank-notes when I asked for them; I considered that was a favor done to me.”

Guyol’s testimony, which we have thought proper to copy in full, and upon which turns the case, shows that Weaver, before the passing of the act, deposited in his hands $11,000 in checks in the ordinary form, calling for dollars and cents on some bank not named; that Guyol, the notary, deposited the checks to his own credit in bank; that after the passing of the act he gave a check on Canal Bank for $8,700, to pay the prior mortgage of Ledoux, and for the balance he delivered another check to Mr. Anfoux, and he cannot say on what bank, having accounts in the Citizens’ Bank, Canal Bank and State Bank; that the checks drawn by Weaver as well as those drawn by Guyol, called for no particular currency; they were ordinary checks for dollars and cents; that on the 19th September, 1861, there was an agreement entered into between the bank, which is not named, and its depositors, that thereafter all checks were to be paid in same currency as was deposited; but sometimes the bank would give in payment a few bank-notes.

So far, there is nothing in this testimony establishing that one dollar has been paid in Confederate money.

But this witness, Guy ol, goes on and says: “At that time the Confederate money was currency. Weaver’s checks were ordinary checks, payable in the same currency as my checks were, and if Anfoux had demanded payment of his balance in gold or silver, or even city bank notes, I could not have paid him in other funds, but in such as Mr. Weaver gave me. ”

But all this part of the testimony, in regard to what was currency, and in what funds the checks were payable, expresses only the opinion of tho witness, and his incapacity to pay Anfoux in gold or silver, or even bank notes, does not destroy the substantial tenor of the witness’ and Weaver’s checks, which were payable on their face in no particular currency, but in dollars and cents, and Anfoux was not bound to take anything else, and he could have come back on the drawer for good money.

Nothing shows here that any part of these checks has been paid in Confederate money; to believe so it would bo surmising and conjecturing, when the law requires evidence so complete that it carries with it conviction upon the mind of the Court. Can we say, or can any one say, that Confederate money was paid on those checks? We cannot.

But it is contended that Weaver admitted in two different conversations, one with Reubieu, the other with one Scott, and it does not appear that Anfoux was present, that the mortgage had been given for Confederate money. This is the weakest species of evidence. 1 L. 285. 9 L. 562. 11 L. 139. 19 L. 547. 5 R. 330. 7 R. 112, 114. 8 A. 307. 9 A. 494.

The District Judge who heard the witnesses, paid no attention to this evidence, and in fact made no allowance to it; he must have had good reason for not doing so. If this admission was made, it was inconsiderate, for the evidence informs us that Anfoux actually received §8,700, in his own mortgage note held by Ledoux, to whose agent, Guyol, gave a check for its amount; Anfoux then received the §11,000, in his note for §8,700, and a check for §2,300.

We are of opinion that Anfoux failed to make out his caso.

The judgment is affirmed, with costs.

Rehearing refused.


source: Caselaw Access Project

author: Idsley, J.

license: Public Domain

text:
    No. 801.
    Pierre Longis v. His Creditors et als.
    Where proceedings have been commenced in the State Courts under the State insolvent laws, they stand unaffected by the United States Bankrupt law, enacted since the proceedings were commenced.
    “Where the penal clauses of the State insolvent laws can be made operative, effect must be given to them. The insolvent laws of the State of Louisiana provide that, an insolvent debtor convicted of fraud shall forever be deprived of the benefit of laws passed in favor of insolvent debtors in this State, and shall be sentenced to imprisonment for a term not exceeding three years. Act of loth March, 1855. sec. 27.
    The passage of the Bankrupt law by the United States repealed all State insolvent laws, and they have no vitality, except for such cases as were pending in the State Courts at the time of tho passage of the law.
    * PPEAL from the Third District Court of New Orleans, Hiestand, J. Ljl

      JE. W. Huntington, for insolvent and appellee.

      O. Roselius, J. L. Tissot, J. Magne and O. H. Schmidt, for opponents and appellants.

      Brief of appellee.

    Opposition is made to the discharge of the insolvent on tiie ground that he is a fraudulent debtor.
    Tiie only acts specified in the petition which the law declares fraudulent are the following:
    1. That Longis failed to account in his schedule for certain assets of the firm, of S. D. Gratiaa & Co.
    2. That he took away important documents and books of the firm of S. 1). Grat.a-i & Co.
    The evidence shows that all the property that Longis possessed, at the time of his surrender, was placed on liis bilan, except some bills receivable which were subsequently delivered up to the syndic of the creditors. (See testimony of Herr, R. pp. 2, 104, 105, et seq.) The cash on hand belonging to the firm and money collected for its account by Longis in 1863, wore not declared in his schedule, because they were not in his possession or under his control when the schedule was prepared. The opponents complain that these assets were converted by Longis to Ms own use and benefit. Be that as it may, the fact does not constitute fraud within the purview of the act of 1855.
    As to the bills receivable and blotter taken away by Longis, it is clear from the evidence that these were not withheld with an intent to defraud the creditors. The testimony of Loze, Herr, Levy and Oamors shows that neither the blotter nor the mortgage notes were concealed. On the contrary, all these witnesses were informed by Longis that these effects were in his possession and that he had retained the bills receivable, because ho was afraid that, if given up, they would be lost to the creditors through the management of Gratiaa in whom, according to the evidence, he had no t the least confidence.
    Again. The notes in question were surrendered by Gratiaa to the creditors of Gratiaa & Oo., and Longis & Oo., several months before the institution of this suit. By virtue of this surrender, they became the property of the credit ors, and Longis had no right to place them on his hilan. Had he dono so, he would have violated the provisions of the insolvent act, which requires that the debtor shall present to the Court a correct statement of his assets.
    The opponents have failed to establish, as they were bound to do, that the acts charged in their petition were committed by the insolvent with a fraudulent intent. On the other hand, the evidence adduced on the part of Longis justifies the conclusion that the measures taken by him respecting these bills receivable, were adopted with the view to protect and not to defraud the creditors.
    In order to constitute fraud, two conditions are legally necessary: There must be the intention of defrauding, consilium fraudis, and the event or the effective and actual loss sustained by the creditors evenlus damni; if one of these requisites does not exist, there is no fraud. Montolly v. Creditors, 18 L. 388; Beste v. Creditors, 14 A. 516; Campbell v. Creditors, 16 L. 348; Acts, 1855, p. 435, sections 19, 20.
    In all the cases above cited, it was proved that the insolvent had omited to place some of his property on his schedule, and in one of them that the book of the debtor had not been surrendered, yet the Court were of opinion that inasmuch as no intention to defraud was proved the charge should be dismissed, and judgment was rendered accordingly.

      Brief of appellants,

    * * * Were it not that the opinion of the Judge a quo generally) carries with it a certain weight against the party who appeals to this tribunal for relief, we would here close our remarks. But in justice to our clients, we must briefly notice the reasons given by the Judge for dismissing the opposition, and declaring Longis entitled to the full benefit of laws intended solely for the relief of honest though unfortunate debtors.
    The Judge (R. page 132) admits that Longis took some $23,000 cash ($17,000 in Confederate notes) some $15,000 in mortgage notes, and considerable merchandise, and that all these assets do not figure in his schedule, but adds that a portion of these assets, viz: the mortgage securities were afterwards delivered to the syndic.
    When were they so returned? After Longis had been incarcerated seven months, when the drawers of the notes and the public generally were so well aware of the charges brought against him, that he could not have ob1 ained payment of the notes.
    Can a man exhibit greater obduracy in crime than this insolvent, who was nearly seven months in jail, before he would give up any part of his plunder ? And yet, the fact that he returned those notes is stated by the Judge, as if it afforded a complete proof of Longis’ innocent intentions, so far as related to those particular assets.
    The Judge asks:
    1. Whether the facts proved are such as the law declares fraudulent?
    And in a very few lines he disposes of the question, saying, that there is no fact in evidence from which it can be inferred that Longis concealed the property he took, with an intention to keep it from his creditors.
    Why, what has he done then with all the property he took? Has he ev er returned any portion of it, save the notes which he could no longer use? >
    Mr. Herr, who says he was intimate with Longis, and who had frequently acted as his agent, says that he does not know what Longis did with the assets he took.
    In the second place, the Judge asks:
    Were these acts of Longis committed with a fraudulent intent?
    And with equal brevity the Judge also answers this question in the negative, saying, in substance, that Longis feared the designs of his partner, and therefore, in his anxiety to protect the creditors, pocketed the assets; that if the creditors suffered by this mode of protection, it was simply owing to the stupidity and ignorance of Longis, not to a desire on his part to defraud them.
    It seems to us that the Judge has allowed a spirit of charity to prevail over the inexorable logic of facts and the stern behests of the law; and that without rendering ourselves amenable to the charge of being devoid of “the milk of human kindness,” we may say, that if ever a case coming more clearly within the provisions of the sections 19, 20, 22, 24, of the act relative to voluntary surrenders (Sess. Acts 1855, pp. 435, 436) has been presented to our Courts, or one which more palpably demonstrated the necessity of enforcing those laws, we have not found any such in our Reports.
    Section 24 of the Act of 1855, provides, “ in case the jury or court shall find the charges unfounded,” etc., evidently contemplating that the courts may, without the assistance of juries, pass upon such charges of fraud.
    It is, we presume, unnecessary for the appellants to ask for the setting aside of the interlocutory order granted ex parle, amending the original order of arrest, and admitting the insolvent to bail in the sum of $10,000, as we trust this Court will render a final judgment in this case, which has been pending so long, and inflict upon the insolvent the punishment which his deeds have so richly deserved, so that others may be deterred from following his evil example, by the assurance that the laws against insolvents guilty of like frauds, will not remain a dead letter on our statute books, but be rigorously enforced.
   Idsley, J.

On the 26th day of February, 1864. Pierre Longis made a cession of property to his creditors, and those of the commercial firms of S. D. Gratiaa & Co. and P. Longis & Co., of which he was a member.

At a meeting ordered by the Court, in which the surrender had been made, the creditors who appeared, opposed the proceedings in insolvency, and charged Longis with fraud, and a few days thereafter, these creditors, viz: J. D. Castillo, Sazerao & Co., George Milne, F. A. Boilevint & Co., Victor Wilbieu, Sos'tliene Thomas, Constant Lecoultre, Widow Prin, Lacave & Echecopar, and Widow Rozier, whose claims in the aggregate exceeded $20,000, filed in Court an opposition to the surrender made by Longis, alleging and charging:

That about the first of September, 1862, after fraudulently excluding his partner, S. D. Gratiaa, from any participation in the administration and liquidation of the firm of S. L. Gratiaa & Co., he took possession of all its assets, and within less than two months from that date, between the 1st September, 1862, and the 29th November, of the same year, concealed and fraudulently sold a large amount of goods of the firm, and took away all the cash, so that it became necessary in order to stop his further depredations, to obtain a judicial sequestration of the remaining property of the firm.

That he had failed to account in his bilan, for certain property and assets of the firm of which a detailed statement is furnished by the opponents, and which amount in the aggregate to the sum of $50,163, the opponents charging that he had fraudulently concealed the said assets, and appropriated them to his own use and benefit.

That in order the more effectually to conceal his frauds, he had taken away important documents and books of the firm, among others the blotter,” on which the last sales of goods were noted, and not posted up in the journal and ledger.

The opponents therefore prayed that Longis be declared guilty of fraud, and forever deprived of the benefit of the insolvent laws, and that he be subjected to the penalties provided by the 19th, 20th, 21st, 22d and 21th, sections of the act relative to voluntary surrenders, approved March 15th, 1855, and they further prayed that he be arrested and imprisoned, until he should give bond in conformity with section 22d of the said act.

The Court ordered that the insolvent be arrested, until he should give bond in the sum of $60,000, conditioned that he should appear to answer the charge of fraud, and abide the final order of the Court thereon.

Longis was accordingly arrested and takeninto the custody of the sheriff. Shortly after, he took a rule to have the arrest set aside. Failing in this, in July, 1865, he presented a petition to the Court, no longer presided over by the Judge who had issued the order of arrest, and alleging that he had been imprisoned some fifteen months, and that the bail of $60,000 required of him was excessive, asked that it be reduced to $10,000. This request appears to have been granted ex parte, and Longis having furnished a bond for the said sum, was released from custody.

On the 14th November, 1865, he waived the jury, and proceeded to trial.

It appears from the evidence adduced by the opponents, that on the 29 th November, 1862, S.D. Gratiaa filed a petition against Longis, alleging that his partnership with the latter had expired on the 1st September, 1862; that since that date Longis had unjustifiably excluded him from any participation in the administration and liquidation of the firm, and had taken exclusive possession of all the assets, and books and papers of the firm, and had already appropriated a large portion of the assets to his own personal use and benefit, to the detriment and injury of petitioner and the creditors; that he had published in the newspapers that he was the sole liquidator of the firm, and alone entitled to collect and receive what was due to it; that in order to protect the partnership property from further depredations, it was necessary that a liquidator be appointed, and that the remaining assets and the books of the firm be sequestered.

The writ of sequestration accordingly issued, and an inventory of tho property sequestered was, by order of Court, taken by a notary and two appraisers, which showed goods and merchandise to an amount of $9,986, a portion of which goods appears to have been returned to parties who had sent them to the firm to be sold on commission.

It seems that five or six days after the writ of sequestratiou had issued, Longis disappeared, so that the creditors knew not what had become of him.

One of the witnesses who had formerly been his partner, declares that “ although he was very intimate with Longis, the latter did not tell him that he was going away.”

Still, exceptions were presented by counsel in his behalf, with a view of having the sequestration set aside.

Among the reasons given by the Judge for dismissing the exceptions, he says: “It is also proved that since the institution of this suit, the defendant has absented himself, and has not since been seen.”

After the dismissal of his exceptions, Longis filed no answer, and on the motion to confirm the default, the Court on the 17th March, 1863, declared the allegations in the petition of Gratiaa to be fully proved by the testimony adduced, and accordingly appointed a liquidator to the partnership.

Meanwhile an attempt was made by one E. Goss, who filed a third opposition to have a considerable portion of the goods sequestered delivered up to him, pretending that he was the owner of the same.

The Judge, in passing upon this opposition, says: “ Erom all the facts and circumstances disclosed by the evidence, I am forced to the conclusion that the pretended sale set up by him, (Goss) is only an attempt to assist Longis in concealing the property of the partnership from the pursuit of his partner, as well as from the creditors of the firm.”

Longis appears to have remained absent about thirteen months. He returned to this city in January, 1864, and shortly thereafter, filed his bilan.

It is shown that there were about $20,741 in the iron safe of the firm at the time Longis took exclusive possession of the assets in September, 1862; $16,780 wore in Confederate notes; and that he also took possession of some $15,000 worth of mortgage notes. None of these assets were carried on his bilan. After an imprisonment of seven months, the insolvent requested his friend, Comors, to whom he had confided the keeping of the mortgage notes, to deliver them up to the attorney of the syndic, and they were accordingly handed over to the latter.

On or about the 3d May, 1865, the syndic having been informed that Longis had on the trial of a case in the Second District Court, produced, by order of the said Court, one of the books which he had withheld from his creditors, to wit: the blotter, mentioned in the petition of the opponents, procured a writ of sequestration, by virtue of which the sheriff took possession of the said blotter.

An examination of this book shows that the entries therein, from the 14th to the 30th November, 1862, those from A. to H., were not carried into the journal or ledger.

These entries are as follows:

On the 14th November, 1862, cash received from A. Bias. 5 20 25

Cash received from J. J. Clark........................ 25 30

Cash received from J. Hawkins....................... 819 00 $ 864 55

On the 15th November, cash from Denechaud................. 28 00

On the 17th November, cash received from Citizens’ Bank..... 6-14 00

Cash received from Lapeyrollerie............................. 600 00

On the 20th November, cash received from same.............. 1123 00

On the 25th “ “ “ “ Galpin............. 36 00

On the 29thBovember, cash received from Lapeyrollerie.......57,000 00

Making total amount from 14th to 25th November----•......54,295 55 And on the next day, the 30th, are the following entries:

Cash taken out by P. Longis................................. 4,295 55

Cash taken out by P. Longis, in Confederate notes............ 16,780 00

Total amount taken by Longis on the 30th November, 1862... .521,075 55

Letters of Longis, written a short time previously, show that these Confederate notes were from 35 to 40 per cent, below par.

It no where appears that his creditors, the wine and liquor merchants, who forwarded their merchandise to be sold by the firm, authorized the sale of their goods for Confederate notes; and it is urged that to allow Longis to go unpunished after taking these Confederate notes, and using them for his own benefit, as he appears to have done, without giving any account of the same to his creditors, when he himself declared them to be worth, at the time, at the least sixty cents on the dollar, would be to hold out a reward to dishonesty and bad faith. !

The creditors, who are blameless, it is urged, cannot be punished for his illegal acts, and in support of this position against Longis, the case of Mrs. Luzenberg against Cleveland, lately decided, is relied upon; the doctrine therein taught we adhere to, and could apply, if this wore a suit against Longis for the recovery of the amount of property sold by him ■without authority for that kind of currency.

But as this Court lately hold in Cockburn v. Wilson, we do not consider that Confederate notes, and the abstraction or conversion to her use, of any such an illegal issue, can in law be deemed a fraud.

A careful examination of the record has satisfied us that the charges of fraud against Pierre Longis, have been otherwise abundantly proved; and as the case was, at the request of the defendant, Longis, tried by the Judge of the lower Court, and not by a jury (see page 256, R. S., section 27,) we might, if the law under which the proceeding is had, is not repealed by the National Bankrupt law, finally dispose of the case.

On this point, we adhere to our decision in the case of Meekins, Kelly & Co. v. Their Creditors, not yet reported, in which we held that where proceedings had been commenced under the State insolvent laws, they stood unaffected by the United States Bankrupt law; and we now hold, that where the penal clauses of the State insolvent laws can be made operative, effect must be given to them.

The penalties prescribed by the 27th section of the ‘"'act relative to voluntary surrenders,” approved March 15th, 1855, R. S. p. 256, are that the insolvent debtor convicted of fraud, shall forever be deprived of the benefit of laws passed in favor of insolvent debtors in this State, and shall be sentenced to imprisonment for a term not exceeding three years.

This State insolvent law has no vitality, except for such cases as were pending under it, in the State Courts, before the passage of the United States Bankrupt law, which, otherwise, repealed all State insolvent laws.

It would be, therefore, a vain thing to do more than to deprive the defendant of the benefit of the insolvent law of 15th March, 1855, in tho present preceeding, which he has no legal right to invoke. It is otherwise with the second penal clause, which under the said State law, can be legally applied by the Court.

In the exercise of its legal discretion, the Court will mitigate the sentence of imprisonment.

It is therefore ordered, adjudged and decreed that the judgment of the lower Court be annulled, avoided and reversed; and proceeding to give such a judgment as should have been rendered by the Court below, it is now ordered, adjudged and decreed that the said Pierre Longis, having been guilty of fraud under the sections 19 and 20 of the act relative to voluntary surrenders, approved 15th March, 1855, that he be deprived in this proceeding of the benefit of that law, and that he be imprisoned in the parish jail of Orleans for the term of six months, and that he pay the costs of opposition in both courts.

Rehearing refused.


author: Ilslev, J.

text:
    No. 1105.
    Administrators of Victor Roumage v. E. Durrive & Co.
    Where the certificate of the clerk of the District Court does not show that the transcript contains a complete record of the case as it was tried in the lower Court, and there is no assignment of errors, bill of exceptions, or statement of facts, the appeal will be dismissed.
    PPEAL from the Third District Court of New Orleans, Fellowes, J.

      F. Buisson, for plaintiffs and appellants.

      Elmore & King, for Mrs. Gayarré, appellee.

      J. H. New, for P. H. Morgan and Mrs. Harris.
   Ilslev, J.

This case arises from a contest between two creditors, claiming the funds in controversy by virtue of seizures on executions.

The first alleged seizure was made in the suit of the administrators of Yictor Roumage, now before us.

Mrs. S. A. Sullivan, wife of Charles Gayarré, filed a third opposition in the suit, claiming the funds in the hands of the sheriff by virtue of a seizure on a fieri facias in her suit against the defendants.

Yarious other parties filed oppositions. The Court below gave judgment in favor of Mrs. Gayarré, for all the funds in the hands of the sheriff, except for three hundred dollars, to be paid to P. H. Morgan, Esq.

From this judgment the plaintiffs alone appealed.

The clerk’s certificate informs us that the transcript is complete, except those documents mentioned on page — , filed in the case wherein Josephine Roumage, and Angelique Roumage, administratrix of the succession of Victor Roumage, are plaintiffs, and Edward Durrive & Oo. are defendants, instituted in the Third District Court of New Orleans, and now in the record thereof under No. 18,275.

The appellant has not moved for a certiorari, to have these papers brought up; and as there is no assignment of errors, bill of exceptions, or statement of facts, we cannot proceed to the examination of a case in which it is not evident that the whole record is before us. 2 La. 491. 5 La. 479.

It is therefore ordered that the appeal be dismissed, with costs.


author: Howell, J. HoweiiI/, J.

text:
    No. 6880.
    M. A. Foute v. The City of New Orleans.
    The Statutes of 1855, section 70 and 71, Session Acts, uage 162, providing that the several District Attorneys throughout the State shall be entitled to demand and receive one-fifth of all sums, first . deducting the per centage allowed by law to the sheriff for collecting, and paying over the same, which may be collected on forfeited bonds, recognizances and fines imposed in criminal prosecutions, must be construed as referring to fines and forfeitures growing out of violations of the criminal laws of the State, and in the imposing and collecting of which the services of the District Attorney and sheriff are required.
    Where no services are required of a public officer, no compensation is allowed.
    The law does not require the District Attorney of the parish of Orleans to appear in his official capacity, and prosecute persons for violations of law before the Recorders’Courts of the city of New Orleans, nor does it allow him any compensation for doing so.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Pandell Punt and W. B. Hennen, -for plaintiff and appellant.

      J. J. Michel, for defendant and appellee.
   Howell, J.

A motion is made to dismiss the appeal in this case on the ground that the motion for an appeal was not made during the same term, and within the same calendar month in which the judgment was rendered, and no citation of appeal has been served. The appellee has waived this objection, by making an appearance in this Court before raising it. The rule must be dismissed.

On the merits, we think the Court below did not err. The plaintiff claims from the city, as fees pertaining to his office of District Attorney, one-fifth of the fines imposed by the several recorders of the city in criminal prosecutions and misdemeanors, and paid into the city treasury during his term of office, and bases his right to recover on the 70fch and 71st sections of the act relative to criminal proceedings, approved March 14th, 1855, (Session Acts, p. 162) which are in the following words:

“Seo. 70. The several District Attorneys throughout the State shall be entitled to demand and receive one-fifth of all sums, first deducting the per centage allowed by law to the sheriff for collecting and paying over the same, which may be collected on forfeited bonds, recognizances and fines imposed in criminal prosecutions and misdemeanors by any court of justice.

Seo. 71. The fines and forfeitures collected for violations of the criminal laws of the State, and which have been required by law to be paid into the State treasury, shall belong and be paid into the treasury of the parish in which they may be collected, and in New Orleans into the treasury of the city.”

“It is admitted that the plaintiff did not regularly attend in tho Recorders’ Courts, but that he appeared and acted for the State before them, whenever required, in important cases, such as murder, arson, and the like. ”

We construe the above law to grant compensation for services actually rendered by the District Attorneys, and not as awarding a bonus to the officer; and it is not pretended that plaintiff represented the .State or rendered any service in the imposition of the fines by the various recorders, one-fifth of which he is claiming in this suit. Not having rendered the services, admitting the law to apply to the Recorders’ Courts (upon which point it is unnecessary to express an opinion) he is not entitled to recover.

Judgment affirmed, with costs.

On Rehearing.

HoweiiI/, J.

After further examination of the argument and authorities presented by plaintiff’s counsel, on the application for a rehearing, and in his original brief, we are not convinced that we erred in our conclusion in this case. The statute relied on is, in this connection, treating of the expenses of criminal prosecutions, and it requires such expenses to be paid by the various local authorities; directs that the fines and forfeitures collected for violations of the criminal laws of the State, shall be paid into the several local treasuries, instead of the State treasury as previously, to contribute, as we understand, towards said expenses, and allows to the District Attorneys throughout the State, as among those expenses, one-fifth of the sums so collected, first deducting therefrom the per cent-age allowed by law to the sheriff for collecting and paying over the same. This, in our opinion, refers to fines and forfeitures growing out of violations of the criminal laws of the State, and in the imposing and collecting of which the services of the District Attorneys and sheriffs are required. In this case, it is not pretended that the District Attorney or sheriff had any part in the proceedings, by which the fines in question were imposed, collected and paid into the city treasury.

All compensation is allowed by law to public officers for services required of them, as duties of the offices which they fill. When no services are required by the. law, it does not allow compensation. In this case, the law did not require plaintiff to render, nor did he, in point of fact, render any services to the State or city for the sum of $17,933 91, which he is demanding of the city; and we are still of the opinion that the law invoked does not entitle him, under the facts, to one-fifth of the particular fines imposed by the Recorders, which he claims.

It is therefore ordered that the judgment heretofore rendered by us in this cause rernain undisturbed.


author: Howell, J.

text:
    No. 1023.
    Mrs. L. F. Davis v. The Lusitanian Portuguese Benevolent Association of New Orleans.
    Payment in good faith to the possessor of a bill or note endorsed in blank, will discharge the drawer. O. O. 2L4!.
    Where the holder of promissory notes endorsed in blank brings suit in her own name as owner, the burden of proof is on defendant to show that she is not the owner.
    Where the appellee has failed to file an answer in the appellate court, asking an amendment of the judgment appealed fiom, it will not be noticed on suggestion in the brief.
    PPEAL from the Eourth District Court of New Orleans, Théard, J.

      M. Grivot, for plaintiff and appellee.

      Sambola <& JDuoros, for defendants and appellants.
   Howell, J.

This suit is brought by plaintiff, widow of John Davis, deceased, residing at San Miguel, Portugal, herein represented by J. Riviere & Co. of New Orleans, as holder and owner of several mortgage notes, made by defendants to the order of, and endorsed in blank by, John Davis.

After default was taken, defendants excepted to the petition on the ground that Riviere & Co. were not authorized to bring suit in the name of plaintiff, and for answer averred that, on the face of the pleadings and notes, it is apparent that said notes belong to the succession of Davis, whose domicil was in Portugal, and plaintiff has no right to sue on them until she is recognized as the legal representative of her deceased husband, and'they further pleaded the prescription of five years.

Judgment was rendered in favor of plaintiff for a part of her demand, and as of nonsuit for the balance; from which defendants appealed.

Suit is brought, and judgment asked in the name of the plaintiff, Mrs. Davis, and the allegation that she is represented herein by her agents, J. Riviere & Co. in New Orleans, is not material, as it does not deprive the defendants of any defence, which they may have to the notes. The right of the attorney to institute the suit for plaintiff is not denied, and her allegation of the agency is binding on her; and besides, payment in good faith to the possessor, of a note, or bill, endorsed in blank, will discharge the debtor. C. C.. Art. 2141.

The pleadings and notes do not, in our opinion, show that the latter belong to the succession of John Davis, and require the plaintiff to be recognized as the representative thereof, before suing on them. She declares in her own right on notes endorsed in blank, and there is no evidence whatever to disprove or impeach her ownership. The acts of sale and mortgage introduced in evidence by the defendants themselves, show that they are indebted to any holder or owner of the notes.

There being no answer asking an amendment of the judgment, we cannot amend in favor of plaintiff as suggested in the brief.

Judgment affirmed, with costs.

Rehearing refused.


author: Labatjve, J.

text:
    No. 1083.
    R. H. McKibben v. Steamship R. R. Cuyler and Owners.
    This case involves only questions of fact.
    The facts are stated in the opinion of the Court.
    PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Phillips & Levy, for plaintiff and appellee.

      Randolph & Singleton, for defendants and appellants.
   Labatjve, J.

This suit is brought against the defendants to recover the sum of five hundred and fifty dollars, for services rendered to the said steamer R. R. Cuyler, and expenses incurred in taking her over the bar, as per account annexed to the petition.

By their answer, the defendants pleaded a general denial; admitted they had employed the plaintiff to pass the said steamer over the bar at the month of the Mississippi river, at an agreed price of $100, and he was also to furnish his own hawser for that purpose; that they offered to pay said sum, and the plaintiff refused.

The Court below, after hearing the evidence, gave judgment for plaintiff for $250, with legal interest from judicial demand, with a privilege on the steamer attached. The defendants appealed.

This case turns entirely on questions of facts; the testimony is conflicting and contradictory. The Judge who heard the witnesses, had a better opportunity than this Court has, to judge who came nearer the truth. We cannot say that the Judge erred, and we believe justice has been done between tbe parties. One witness testified that there was an agreement fixing the services at $100; another, that it was $100 a tide; that the propelling steamer of plaintiff was twenty-nine hours alongside of the Cuyler, in which time there were four tides, when generally, there is but one in twelve hours. A third witness says that the services of plaintiff were worth $1,000; the regular price is $50 per hour. Under such testimony we do not feel authorized to disturb the judgment appealed from.

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


author: Hyman, C. J.

text:
    No. 466.
    John Frank v. The New Orleans and Carrollton Railroad Company.
    By theaotof the Legislature, approved March 15th, 1855, amending and re-onaoting Article 2294 of the Civil Code, it is provided that where aminor child has lost its life by any casualty resulting from the carelessness, negligence, or want of skill, of any person or company, the father may sue for and recover the damages done to the child.
    In cases of damage, where no exact computation can be made, discretion in fixing the amount is left to the Judge and jury. O. C. 1928, § 3.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Durant & Hornor and Michael Hahn, for plaintiff and appellee.

      G. Roselius, and Benjamin, Bonford <& Finney, for defendant and appellant.
   Hyman, C. J.

Plaintiff brought this suit in February, 1861, to recover damages of defendant for injuries suffered by himself, his sons, Dennis Frank, aged seven years, and Henry Frank, aged twelve years, his daughter, Caroline, aged ten years, and his wife, Mary Frank, the mother of the children, from the culpable conduct of its servants.

Plaintiff, in his petition, alleged that on or about the 19th of August, 1860, he, his wife and his children, named above, were passengers in a car belonging to defendant; that while the car was at rest, at the usual stopping place, under charge of defendant’s servants, an express train of cars belonging to defendant, and under charge of its servants, came down the track on which rested the car in which he and his family were, with dangerous speed, and that before they could escape from the car in which they were, the express train was hurled against it with irresistible momentum; that by the collision his son, Dennis, was miserably crushed to death; his son, Henry, his daughter, Caroline, and his wife, Mary, were severely injured, and that they were for a length of time under surgical and medical treatment. He further alleged, that although he escaped without any injury, yet, that his life was in great danger, and that from alarm and terror, he suffered great damages; that in consequence of the destruction of the life of his son, Dennis, and of the protracted illness and suffering of his wife and his children, Henry and Caroline, he was put to great expense, and suffered great pecuniary loss and damage, and that his wife and each of Ms said children, by their injuries, also suffered great damage.

He alleged, finally, that the wrongs, injuries, sufferings and damage of himself, his wife and his children, as above set forth, were caused entirely by the gross negligence, want of skill, imprudence, illegal conduct, and recklessness of the New Orleans and Carrollton Railroad Company, its officers and servants, and damaged him and them to the extent of $30,000, and he concluded his petition by praying for judgment against defendant for that amount.

Defendant, in its answer, excepted to so much of plaintiff’s petition as claimed damages for the injury of his son, Dennis, on the grounds, 1st: “ That plaintiff had not such an interest in said damages, or such capacity as enabled him to maintain suit therefor.” 2d. “that as respects the injury suffered by plaintiff’s said son, and his death, plaintiff’s petition sets forth no good or sufficient cause of action.”

An act entitled An Act to amend Article twenty-two hundred and ninety-four of the Civil Code, approved March 15th, 1855, re-enacted and amended that Article so as to read as follows: “Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it. The right of this action shall survive in cases of death in favor of the minor children and widow of the deceased, or either of them, or in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. ”

This act certainly gave the right to plaintiff to sue to recover damages for injury caused to his deceased son, Dennis.

Defendant, to sustain its second ground of exception, refers us to the decision of this Court in the case of Earheart against defendant, reported in 17 An., pp. 244 and 245.

We sustained' the exception in that case, because the plaintiff, Earheart, alleged that- the cause cf action was in himself as the sufferer of damages, and we also declared that to bring the case within the provisions of the above-named statute, plaintiff should have alleged the cause of action in, and the damages suffered by, his deceased child.

The allegations in that case are different from those in the case cited. Here, the cause of action is alleged in the plaintiff’s deceased child, and plaintiff asks judgment for the damages suffered by this child.

The persons injured, for which damages are claimed in this suit, were, without their fault, or even imprudence, injured by the same cause that injured Arthur Choppin, and for which he recovered damages against defendant in the case styled Arthur Choppin v. New Orleans and Carrollton Railroad Company, reported in 17 An. pp. 19 and 20, and the evidence in this case relative to the acts and careless conduct of defendant’s servants, which caused injury, is similar to the evidence adduced in that case.

A verdict was given by a jury in favor of plaintiff for $5,000, and the District Judge, pursuant to the verdict, rendered judgment against defendant for that amount, and the cost of suit. Defendant has appealed from the judgment.

In cases of this kind, where no exact computation of damage can be made, discretion is left to the Judge or jury. C. 0.1928, sec. 3.

There is no reason for reversing the judgment of the District Court. Let it therefore be affirmed, at defendant’s costs.

Howeiu,, J., recused.


author: Ilslex, J.

text:
    No. 1065.
    Eben W. Dorr v. Joseph Jouet.
    Where the District Judge, assigned as a reason for judgment in favor of the plaintiff, “when the Court, considering the law and evidence,” it is ordered, etc., it is as much a reason for judgment in favor of defendant as plaintiff, and does not meet the requirements of the Constitution of 1864, Art. 7(5, Tit. 5.
    The endorsement in blank of the firm-name on a promissory note, made payable to their order, will authorize the drawer to pay the note to any bona fide hold or.
    One partner of a firm cannot maintain a separate action to recover a debt due to the partnership, but the moment the endorsement of the firm-name is put on negotiable paper, the partnership is divested of all title to it, which is vested at once in the endorsee and holder.
    PEEAL from the Fourth District Court of New Orleans, Théard, J.

      A. G. Semmes, for plaintiff and appellee.

      Sambola <& Ruaros, for defendant and appellant.
   Ilslex, J.

This is a suit on two promissory notes, drawn by the defendant to the order of Simpson & Dorr, of which firm the plaintiff is a member.

Tbe defence is, that these notes are the property of the firm, and that the plaintiff cannot sue simply to recover their contents; and that the defendant is not liable for interest, as he offered to pay the notes in full, and tendered the amount thereof to the firm. ■

The reason “when the Court, considering the law and evidence ” adduced by the Judge of the District Court for rendering judgment in favor of the plaintiff, is as much a reason for judgment in favor of defendant as plaintiff, and does not meet the requirements of the Constitution of 1864, Art. 76, Tit. 5. Police Jury vs. Bozeman, 11 An. 94. Gallot vs. McCluskey, 18 An. 260.

It is competent, however, for this Court to proceed to the examination and decision of the case. Hatcher, Tutor, vs. Dodd, 12 La. 143.

The main question presented is, whether an individual member of a commercial firm, to the order of which firm a note is made payable, and which it has endorsed in blank, can maintain an action on it in his own name against the maker.

The defendant maintains that a note or instrument made payable to two or more payees or obligees, held by one of them, he must be considered as the holder for all, unless it be shown that he has acquired by fa-ansfer the rights of his co-obligees; and he relies upon the case of Cox v. Bethany, 10 La. 154.

The note sued on in that case was made payable to Elizabeth Cox (the plaintiff) Thomas Bills and Elizabeth Bills, or bearer, and was signed by Mathew Bethany (defendant.)

The presumption of title to the note in Elizabeth Cox was not raised by the fact that she possessed it as bearer, because, as all the co-obligees could not have the actual possession of the note at the same time, it therefore devolved on Elizabeth Cox, to show a transfer to her from her co-obligees to vest in her the sole title to the note, to enable her to maintain an action for its recovery.

In the case at bar, the notes were made payable to a commercial firm, or order, and the endorsement on them of the social name transferred the whole title to them to any endorsee, whether a member of the firm, or otherwise.

The endorsement in blank of Simpson & Dorr, sufficed to justify the maker to pay to any bona fide holder of 'the notes, who, in default of payment, could maintain an action for their recovery.

No principle is better settled than that one partner alone of a firm cannot maintain a separate action to recover a debt due to a partnership, of which he is a member; but that principle has no application in the present case, because, during the existence of the partnership, its endorsement on the notes divested it of all title to them, which vested in the endorsee and holder.

No tender of the amount of the notes as alleged is shown, and interest runs from their respective maturities.

For the reasons here given, it is ordered, adjudged and decreed that the judgment of the lower Court be avoided and reversed, and proceeding to pronounce such judgment as should have been pronounced by the lower Court for the reasons aforesaid, it is ordered, adjudged and decreed by the Court, that judgment be and it is hereby rendered in favor of E. W. Dorr, the plaintiff, and against' Joseph Jouet, the defendant, for tl.e sum of five hundred and forty-one dollars and ninety-five cents, with legal interest on one hundred and nineteen dollars and twelve cents, from the 6th June, 1861, and a like interest on five hundred and twenty-twc- dollars and eighty-three cents, from 6th July, 1861, to 11th May, 1866, and thence till paid, on four hundred and twenty-two dollars and eighty-three cents, the costs of the lower Court to be paid by the defendant anl appellant, and those of this Court by the plaintiff and appellee.