author: Howedu, J.

text:
    No. 1539.
    State of Louisiana, ex rel., Louisiana State Bank, and Bank of Louisiana, v. The Judge of the Third District Court of N. O.
    Where a judgment has been rendered homologating a tableau of distribution in insolvent proceedings, the creditors, named on the tablean and included in the judgment, are not entitled to notice of the judgment of homologation.
    A writ of mandamm will not lie to compel the District Judge to grant a suspensive appeal from a judgment homologating a tableau of distribution in insolvent proceedings, after the lapse of ten days from the date of the judgment.
    APPLICATON for a Mandamus.

      S. H. Torrey, and Miles Taylor, for relators.

      Collens & Wooldridge, for syndic.
   Howedu, J.

This is an application for a writ of mandamus, to compel .the Judge of the Third District of New Orleans,'to grant a suspensive appeal, after the lapse of ten days, from a judgment homologating a tableau of distribution in insolvent proceedings, and the question presented is, whether or not the relators, creditors, placed on the tableau, are entitled to notice of the judgment .of homologation.

They allege that they were required by said judgment to pay a certain sum out of the proceeds of certain notes pledged to them by the insolvent, and' are,therefore entitled to a notice of the judgment as parties cast in a suit.

These notes, with others, were sold upon the petition of the syndic, and purchased by the banks respectively; and, in a rule by the syndic to compel the payment of the price of adjudication, it was agreed that the sums should remain in the banks to be distributed in a tableau to be filed by the syndic, in which he placed each bank as a creditor for a sum less than the amounts of the proceeds respectively; and the balance of each bid was appropriated therein to the payment of the expenses of the insolvency.

This tableau was duly advertised and homologated. We think this judgment of homologation was one in favor of each bank, as plaintiff, for the sum assigned to each in the tableau, and consequently, notice thereof was not necessary. They were parties to the proceeding, and if dissatisfied with the tableau, of which they had due notice by the publication, they should have opposed its homologation, or appealed within ten days, as fixed by law, for suspensive appeals, otherwise the judgment becomes executory, and the syndic is not only authorized, but it is his duty,- to pay in accordance with the tableau as homologated. The Judge has allowed a devolutive appeal, to which only they are entitled under the circumstance.

It is therefore ordered, that the application be refused, at the costs bf the relators.


source: Caselaw Access Project

author: Ilseby, J.

license: Public Domain

text:
    No. 1021.
    D. Kelham & Co. v. Carroll, Hoy & Co.
    Where a contract» of sale of a lot of ootton is made by weight, the cotton is at the risk of the seller •until it is weighed: but the vendor is competent to waive the risk, and fix it on himself from the date of the purchase. (P. H. Goodwyn v. J. Prichard, 10 An. 249.) ' »
    In a contract of sale of a lot of cotton appears the following clause — ** The cotton to remain on the plantation at the risk of the purchasers until called for by them j” Held — That this olause shows that it was the intention of the contracting parties that the risks, which, under artiole 2433 of the Civil Code, would have attaohed to the seller until the cotton was weighed, should be borne by the purchasers from the moment of the sale.
    APPEAL from the Sixth District Court of New Orleans, Euplantier, J.

      G. E. Schmidt, for plaintiffs and appellants.

      Randolph, Singleton & Eardie, for defendants and appellees.
   Ilseby, J.

On tbe 10th. March, 1862, the plaintiffs and defendants in this suit, entered into a written contract of the following tenor:

“Carroll, Hoy & Co. have this day sold to D. Kelham & Co. one hundred bales of cotton of the crop of the estate of Fielding Davis, in the county of Issaquena, Mississippi, at the rate of eight cents per pound, for Liverpool middling, with an additional half cent per pound on each grade of quality above, and a reduction of a half a cent per pound on each grade of quality below Liverpool middling. The cotton to remain on the plantation at the risk of the purchasers until called for by them, when the agent of the estate of F. Davis, shall deliver it on the bank of the Mississippi river, at the usual shipping point of the estate’s cotton.

The cotton to be sampled and weighed by the agent of the estate. Classification to be determined by a competent person, selected by purchasers and the sellers, and to be paid for on the rendition of the invoice. Thp cotton is to remain on the plantation free of storage.”

(Signed) “ Carroee, Hoy & Co.”

(Signed) “D. Kebham & Co.”

On the 20th of the same month of March, 1862, the defendants acknowledged to have received from the plaintiffs two thousand dollars on account of the sale of one hundred bales of cotton on plantation, at their (the plaintiffs') risk; and, on the 14th of April, 1862, the defendants again acknowledged to have received from the plaintiffs fifteen hundred dollars on account of the same cotton.

, The plaintiffs, after putting the defendants in default, and offering to perform their part of the contract, now demand in this suit, either the specific performance of it, with twenty-five thousand dollars damages, or in the event of the defendants establishing a legal and 'sufficient cause to justify their non-compliance, then that the defendants, Carroll, Hoy & Co., and the individual members of the firm, be condemned, in solido, to pay to the plaintiffs, the sum advanced; say, three thousand five hundred dollars, with legal interest from 29th August, 1865.

From a judgmentin favor of the defendants, the plaintiffs have appealed.

It is proved satisfactorily that, previous to the weighing and classification of the cotton sold, the whole, crop of the Davis plantation was destroyed by vis major, and the main question presented in this case is, at whose risk was the cotton sold ? And, in this is involved the inquiry, whether any and what effect is to be given to the clause in the agreement that “the cotton is to remain on the plantation at the risk of the purchasers until'called for by them.”

It was evidently the intention of the contracting parties that the risk, which under article 2433 of the Civil Code would have attached to the sellers, until the cotton sold was weighed, should be borne by the buyers, from the moment of the sale.

No other rational construction can be put upon this particular engagement on the part of the purchasers; as, after the weighing, the law would have put the thing sold at their risk.

And it was competent for the parties to contract specially as to this risk. On this point, says Duveryier, 1, page 94, No. 93: “Ildépend au surplus, des parties de modifier par leur volonté, la disposition qui attribue a la vente en bloc et a la vente au poids des effects différens: elles peuvent convenir que dans la derniere, les risques seront pour l’acheteur du moment du eontrat.”

In Goodwyn v. Pritchard, 10 An, 249, this Court seemed to recognize this doctrine, and would have applied it in that case, had the intention of the buyer to renounce or waive the benefit of the law, as presented in Art. 2433 C. C., been established beyond all doubt; while the purchasers in this case now pending, certainly did. Thq parties made a law unto themselves, founded on their ’mutual consent. Omne periculum ad emptorem pertinere. And there exist no causes known to us, for which it can be revoked. C. C., 2 — 1757,1895 and 1940; Eice vs. Schmidt, 11 La. 72.

Legal effect-must, therefore, be given to this stipulation, unless, in the very nature of things, it would be impossible to do so.

The plaintiffs contend that, in sales by weight, the property cannot be transferred, nor the risk assumed by the purchaser, until it is weighed; and, relying upon the opinions of Marcadé and other authors, they argue that t.o say that sales by weight are imperfect only in so far as relates to the risk, but are still translative of .ownership, would be to lay down an impossible rule, and which would be repulsive to the very nature of things.

Marcad é frankly admits that most of the authors, understanding article 1583 of the Napoleon Code (our article 2433) restrictively, consider a sale by weight or measure, only imperfect as to the risk of the thing.

We do not deem it necessary now to attempt to reconcile, or choose between, these conflicting opinions; it has been usual for this Court to adopt the construction put by the Court of Cassation upon any textual provisions of the Napoleon Code; and on this point, we find an arret of that august tribunal, often referred to by the authors, confirming a judgment of the Cour de Limoges.

The Cour^pf Cassation says: “ Attendu Io, qu’aux termes de l’art. 1583 du Code Civil, la vente est parfaite entre les parties, et la propriété acquise de droit a l’achetenr des qu’on est convonu de la chose et du prix, quoique la chose n’ait pas encore été livrée ni le prix payé; que si l’article 1585 dispose que dans le cas ou la marchandise est vendue a la mesure, la vente n’est point parfaite jusqu’au mesurage, il explique que c’est en ce sens que la chose vendue est aux risques du vendeur, et il précise que l’acheteur pent demander la délivrance ou des dommages intéréts faute d’exécutiou; que conséquemment, loin de déroger au principe général établi par Part. 1583, il le confirme en disant que, méme en ce cas, la vente est parfaite A tous autres égards que les risques. Arrét du 11 Novembre, 1812, Sirey 1813, port 1, page 52.

But was the obligation assumed by the plaintiffs as to the risk of the cotton, such a lien de droit or vinculum juris, which it is possible for this Court to give legal effect to '? And this suggests the question: How could the quality of the cotton be determined, its different grades fixed, the precise number of pounds in each bale ascertained, so as to fix the price ? There might, certainly be cases in which it would be difficult to find a solution to these queries; but, in the present case, we do not deem the difficulties suggested insurmountable; indeed, we think they are overcome.

The sale comprised one hundred bales of the cotton of a certain plantation; the whole crop having perished. The bales of the crop of 1862, on that plantation, averaged a certain weight; the quality of the cotton was below middling; and the price per pound fixed, according to a standard — Liverpool middling, and for each grade above and below.

An estimate, at least approximate for the cotton sold, might be ascertained from this data.

The plaintiffs have advanced on,' or . for, the one hundred bales purchased by them, three thousand five hundred dollars, or about thirty-five dollars on, or for, each bale. This may fall short of, or exceed the contract price, and the plaintiffs were only bound for that; and if, which we deem hardly probable, they can show that they have paid too much, they may claim the repetition of the surplus. Art. 18, O. P. And that right will be reserved to them. It is therefore, ordered, adjudged and decreed that the judgment of the District Court, be so amended, as to reserve to the plaintiffs the right to claim judicially from the defendants any excess of money paid by the plaintiffs over and above the contract price of the one hundred bales of cotton purchased by them, by the contract dated 10th March, 1862, and that so amended, the said judgment be affirmed at the costs of the appellees.


author: Howell,. J. Hxwan, O. J.

text:
    No. 967.
    State of Louisiana, ex rel., Eugene Staes, v. Arthur Gastinel.
    Section 130 of the city charter of the oity of New Orleans provides, that the right of the Mayor, or any other officer of the city of New Orleans, to Jill the office held by him may be tested, at any lime, by any citizen, by a writ1 of quo warranto, which shall be tried in a summary manner, both in the inferior and appellate courts.
    Where an officer is ineligible from any cause, he onnnot take charge of and perform the duties of the office to which he has been elected or appointed.
    Artiolel33 of the Constitution of 1864, conferring on the Recorders of the city of New Orleans tho additional powers and functions of Justice of tile Peace, does not vest tho Recorders with any other character or title of office than that of Recorder.
    The prayer for a prohibition against the incumbent in office is not inconsistent with a demand by the relator for the Court to provide for the filling of the office legally.
    The fact that a Recorder of the city of New Orleans has been commissioned and sworn, does not protect him against the enquiry into his right to hold the office: nor does it confine the investigation to his right to enter upon the duties of the office.
    The divesting of a Recorder of the city of New Orleans ot his office, on the ground that he is ineligible to hold the same does not, ipso facto, give the office to his competitor at the election; in such a oase it is made the duty of the Common Council by joint action of both Boards to fill the vacancy. City Charter, sec. 15.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      Grandmoni, Ganonge and Field, for plaintiff.

      P. Soulé <& Gharvet, and A. Walker, for defendant.
   Howell,. J.

At the municipal election on 12th March, 1866, of the votes cast for Becorder of the Second District of New Orleans, Arthur Gastinel, the defendant, received 784, Eugene Staes, the relator, 519, and Emile Wiltz 168, making a total of 1471. On tho 19th of the same month Gastinel was commissioned by the Governor as Becorder and Justice of the . Peace ; on the next day he took the oath of office pre- . scribed by the Constitution, and on 31st same month Eugene Staes obtained a writ of quo warranto from the, Sixth District Court of New ■ Orleans, directed to said Gastinel, to show cause why he should not be forbidden, to perform and usurp any longer tho functions of said office, ,§,nd why the relator should not he declared to have been duly elected to said office, on the grounds that the said Gastinel does not possess the qualifications as to age (thirty year's) prescribed bylaw, and that all the votes given for him at said election are illegal and null, and must be considered as not given ; consequently the relator received the highest number of legal votes, and is the duly elected Becorder of said District.

The respondent filed an exception to the petition as commutating two demands contrary to, and exclusive of each other, which was properly overruled as itis not inconsistent with a prohibition to the incumbent for the Court,to render a decree providing for filling the office legally, although it might reject relator’s pretensions. The respondent then answered that he is no usurper of the office, but holds it and that of Justice of the Peace by virtue of his commission and oath of office.

The Court below rendered judgment against the respondent on the first branch of the case, and on the second against the relator as of nonsuit, and both parties appealed.

The respondent contends on appeal:

Í. That, under, a writ of quo warranto, the only issue to be tried is whether or not the defendant has usurped the functions of Recorder, and to determine this the Oourt cannot go beyond an enquiry into his title to the office.

2. That the qualifications of the defendant could only be enquired into-by a direct contestation of election, and not by a writ of quo warranto,

3. That by the article 133 of the Constitution of 1864, the duties, functions and qualifications of Recorders seem to have been merged in the office or character of Justices of the Peace and aré subject to no restrictions except those affixed to the eligibility of such officers.

Section 130 of the city charter (Acts 1856, p. 166,) enacts: “That "the right of any Mayor, Recorder or other officer of the city of New Orleans, to Ull the office held by him, may be tested at any time, by any citizen, by a writ of quo warranto, which shall be tried as summarily as possible, both in the-inferior and appellate courts. ” This clearly authorizes the proceeding before us and necessarily involves an enquiry, into the .qualifications, of respondent for the office of Recorder. The law does not confine the enquiry to his right to enter upon the office or the regularity of obtaining it; but permits any citizen by this process, at any time of his term, to test his right to fill the office which he holds.

It is satisfactorily shown, and indeed not denied, that the respondent is under the age prescribed by the 7th section; of the charter (which is still in force and not in conflict with the Constitution,) and he is therefore incompetent in law to perform the functions of Recorder, although he has been elected, commissioned and sworn. These acts do not confer the legal qualificath-n as to age, nor dispense with it. If one qualification can be dispensed with, any and all' others may be, and those fundamental and statutory enactments rehdéred húgatory. The effect of article 133 of the Constitution of 1864 simply to confer on theReeorders the additional powers and functions of Justices of the Peace. They are thereby no less Recorders, but on the contrary théir quality as Justices of the Peace is consequent and dependent upon that as Recorder.

The judgment against defendant is therefore correct.

On the second branch of the case, we cannot however fully concur with the lower Court.

Article 870 C. P., contemplates that, if judgment be against the respondent, the Court shall “direct the eorpord.ion to proceed to a new appointment;” and, in the case of Reynolds v. Baldwin, 1 A. 162, this Court held the legal construction of this clause of said article to be, that such an order shall be made when a new appointment is necessary. Under this interpretation of said article, the District Judge was of opinion that such an order could not be made in this case, because “no other matter outside of the right or authority under which the defendant holds the office in dispute can be enquired into, and the second branch is improperly commutated with the first.”

In our opinion the necessity for such an order is caused by the judgment against the defendant, which creates a vacancy; and by the 15th section of the city charter, this vacancy is to be filled by the joint action of the Boards of Aldermen and Assistant Aldermen.

We cannot adopt the theory of the relator that the ousting of the defendant by means of this proceeding inures to His benefit.

What might have been his rights had he contested the election of defendant in accordance with law, we are not called on to say ; but we are of the opinion, that having, as a candidate, acquiesced in the result of that election, we must in these proceedings consider him only as a citizen before us, seeking to have the law enforced against the incumbent, who is the Recorder de fado; and, under the provisions of the 870th article of the O. P. and the 15th section of the city charter, notify the corporation of the necessity of a new appointment.

The law does not authorize us to declare the relator, under the circumstances, to be the choice of the people. Upon his own showing he did n f receive a majority of the -votes cast, and but for some action, on the part of some one authorized, the present incumbent would have continued in the performance of the duties of the office, as the duly elected Recorder of the Second District of New Orleans.

It is therefore ordered that the judgment appealed from be set aside, and it is now ordered, adjudged and decreed that there be judgment against the defendant Arthur Gastinel, forbidding him to perform any longer the duties and functions of Recorder of the Second District of New Orleans, and that he pay the costs of these proceedings in the lower Court. It is further ordered that the city of New Orleans be notified to proceed according to law, to elect a Recorder of said district; the costs of appeal to be paid jointly by the relator and defendant.

On Rehearing.

Hxwan, O. J.

A rehearing was granted in this case on the application of both parties.

A re-examination of the case has not caused us to change our opinion. Let the former judgment rendered by us, stand as the judgment of the Court in this case.


author: Ilsley, J. jlLowelXi, J.

text:
    No. 895.
    A. B. James v. Fellowes & Co.
    Where the facts show that the succession of a deceased person-has not been opened, nor is it pending in the Second District Court of New Orleans, while a case is pending in one of the other District Courts against the deceased party, commenced before his death, the Second District Court is not vested with exclusive jurisdiction by the act of the Legislature of 1864, which provides that the Second District Court shall be strictly a probate court. Session Acts 1864, page 85, § 17.
    A garnishee or third party to whom interrogatories are propounded under a fieri ficvis, can set up any defence necessary to his own protection, whether against the defendants or their creditors. He is competent to urge the plea of prescription.
    Prescription does not run on a commission merchant’s account, consisting entirely of paid acceptances and promissory notes, with commissions and interest added upon each separate item of the account, bub the account as a whole is prescribed in three years. Statute of 1852, p. 90. 14 A. 705.
    ON REHEARING — MR. JUSTICE HOWELL:
    Where a commission merchant’s account has been rendered, showing that a balance has been struck between the parties, and an acknowledgment by the debtoi of its correctness, though made verbally, it becomes, from that moment, a closed account, and is a personal debt between the parties, prescribed only by the lapse of ten years from the date of the acknowledgment.
    APPEAL from the Sixth Dish-ict Court of New Orleans, Buplantier, J.

      P. H. Morgan and J. II New, for plaintiff and appellee.

      G. T. Pemis and Hyams & Gordon, for garnishees.

      Reporte)'. — A rehearing was granted in this case. Mr. Justice Howell, the organ of the Court, overruled the first opinion, and decided that, in this case, the account sued on is taken out of the limitations of the statute of 1852, on the ground and for the reason that it having been shown that the account had been rendered by one of the parties to, and acknowledged orally by the otlu r, which constituted a closed account, and created! a personal debt between the parties, which is only prescribed by ten yeprs,.,
   Ilsley, J.

The plaintiff, having obtained in the Sixth District Court'of New Orleans a final judgment against the defendants, caused to-be. issued from said Court a writ of fieri facias, and took out from the same Court a garnishment process against the executor, the widow and son of-, the late Alexander Gordon, and, also, against the Mexican Gulf Rail Road ■ Company, all representing the estate of the said Alexander Gordon, and prayed for judgment against the garnishees to the amount of his judgment-claim against the defendants. «

After judgment had been rendered against the garnishees, they filed an exception to the jurisdiction of the Sixth District Court, the ground of which was that the Second District Court was the only tribunal that could take cognizance of the matter in controversy, quoad the estate of Alexander Gordon; but the lower Court overruled the exception as coming tob late, deeming its jurisdiction, if at all incompetent, only so ralione persona, and not ratione materia. . ,

Had the Sixth District Court jurisdiction in the premises ? is the first question to be solved.

Previous to the year 1853, all the District Courts in New Orleans had concurrent jurisdiction over probate matters inthe parish of Orleans.

In the years 1853, 1855 and 1864, exclusive jurisdiction in probate matters was conferred upon the Second District Court of New Orleans. See Act of 1846, No. 43, p. 32; Act of 1853, No. 190; Act of 1855; Act of 1864.

By the last Act of 1864, p. 84, section 8, it was provided: “That the.. Second District Court shall be strictly a probate court, and shall have exclusive jurisdiction only of all succession and probate causes,” etc., etc. But it was in the same act, section 17, further provided, that this act shall take effect from and after its passage, but shall not apply to the cases now pending or filed before the several District Courts, and that all laws on the same subject-matter, or contrary to the provisions of this act, are repealed.

It is proved satisfactorily that the succession of Alexander Gordon was not opened, nor was it pending in the Second District Court; so that, by the 17th section of the act of 1864, the said District Court had not exclu-’ sive jurisdiction over the matters in controversy between the plaintiff and the garnishees.

The main defence of the garnishees against the claim of the defendants, Fellowes & Co., against them, is that it was prescribed when garnishment process was taken out against them; and it was certainly competent for them to set up that or any other defence necessary to protect their own interest, -whether against the defendants or their creditors. 3 An. 380.

The prescription pleaded, is that of three years against the account current presented by Fellowes & Cb. to the garnishees.

It was a factor’s, or commission merchant’s account, and consisted entirely, except for commissions, etc., of paid acceptances and of promissory " notes.

This Court lias deemed such items as the component parts of one account, which is to be regarded as a whole, and that acceptances charged in it, being fundi officio, are only vouchers, and that to such accounts, the prescription of three years applies. See Succession of Guillemin, 2 A. 634; Toledano vs. Gardiner, 2 A. 779; Andrew vs. Keenan, 14 A. 705.

The account was prescribed in 18C5, when suit was brought under garnishment process, unless the verbal acknowledgment of its correctness, made by the representatives of the estate in January, 1861, suspended prescription; which it certainly did not; for, had the acknowledgment been in writing, it would merely have interrupted prescription, which would commence running anew from that time.

As sufficient time subsequently elapsed before any further action on the part of Fellowes & Co., or any one else, was had, the claim is therefore prescribed. Succession of Dubreuil, 12 B. 507.

It is therefore ordered, adjudged and decreed that the judgment against the garnishees be annulled, avoided and reversed, and that judgment be and it is hereby rendered in favor of the garnishees and against the plaintiff, with costs of garnishment in both courts.

On Beheabing.

jlLowelXi, J.

This case is on a rehearing, granted on the question of prescription. To solve this it is necessary to determine whether the account against the garnishees is an open account, and subject to the prescription of three years, or an account closed, and prescribed, as a personal debt, by ten years.

Prior to the act of March, 1852, (p. 90,) such accounts were prescribed by the lapse of ten years. This statute, after declaring that the accounts of retailers of certain articles, and those of all merchants, wholesale and retail, shall be prescribed by three years from the time the articles are furnished to the purchasers, provides, that “all other open accounts, the proscription of which is ten years under existing laws, shall be prescribed by three years.”

If the account, in this case, is an open account, it is prescribed, for three years elapsed before suit or other interruption. Its caption is: “In account current,” which is defined to be “a running or open account.” Bouvier, verbo, Account Current. But it contains a series of debits and credits for sometime, and a balance is struck and carried down, showing a specific sum in favor of the merchant. This, it is shown, was presented to the debtors.

“ The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated. ” Bouvier, verbo, Account Stated.

At common law, ‘1 where an account has voluntarily been stated between partus, an action of assumpsit may be maintained thereon.” Id., verbo, Account, No. 9. 4 Dallos, 434. 2 Gr. Ev., $34-39. “The count upon an account stated, is supported by evidence of an acknowledgment, on the part of the defendant, of money due the plaintiff, upon an account between them.” “ The acknowledgment by the defendant that a certain sum is clue, creates an implied promise to pay the amount.” “ The stating of the account is the consideration of the promise.” Id., verbo, Account Stated. There is a concurrence of minds upon an agreement to pay the amount stated. We can nowhere find where the law requires this settlement and acknowledgment on the part of the debtor to be in writing.

We are referred to two cases in our Reports, (Lafon’s Heirs v. His Executors, 3 N. S. 716, and Chevalier v. Hyams, 9 A. 484,) in which it is announced that a formal written recognition of the claim in a compié arrélé is requisite. Conceding these cases to be in point, the Court was giving the interpretation of the French text of the Code; while it is well settled that the English text must prevail. If a verbal acknowledgment be of any effect in law, we cannot see why that effect should be less than that of a written acknowledgment. The only difference, is as to the evidence to be adduced to prove the acknowledgment. Nor do we think the 985th Art. C. P., or the act of 1858 relating to written acknowledgments, applicable to this case, as the debt here was contracted by the parties themselves who are made garnishees, and not by a deceased or third person.

We have come to the conclusion that the account in this case, which has been rendered and acknowledged orally by the appellants, is no longer an open, but a closed, account, and is a personal debt, and prescribed by ten years.

It is therefore ordered that our former decree herein, be set aside, and the judgment of the District Court be affirmed, with costs.


author: Hyman, C. J.

text:
    No. 1073.
    Goldsmith, Haber & Co., for use of, etc., v. Friedlander & Gerson.
    The testimony of one witness is insufficient to establish a claim of more than five hundred dollars; but where the commercial books of the opposite party, having been introduced in evidence, corro* borate his testimony, he may establish the correctness of his claim, though above five hundred dollars.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      J. Ad. Rosier, for plaintiffs and appellants.

      C. Roselius, for defendants and appellees.
   Hyman, C. J.

Plaintiffs sued defendants on their note for $5,000, dated 29th of April, 1862, and payable twelve months thereafter to their own order, and endorsed by them in blank, bearing eight per cent, per annum interest from its maturity.

Compensation was pleaded by defendants against the claim of plaintiffs to the extent of ©1,500, and a tender was made by defendants on the 1st day of June, 1864, to plaintiffs of the sum they claimed, less the ©1,500 pleaded in compensation.

D&fendants rely to sustain their plea in compensation, on a written agreement, as follows:

“It is understood and agreed that for one-half of the commission accruing from a certain draft drawn this day by A. Bernstein, on and accepted by Messrs. Friedlander & Gerson, payable on the 1th day of March, 1861, Messrs. Goldsmith, Haber & Co., became responsible to the acceptors for one-lialf of the amount of said draft, to-wit: fifteen hundred dollars, in the event of the drawer failing to provide funds to meet it at maturity. ”

“April7,1860.” “Goldsmith, Habi"r & Co.”

And, on their payment of the draft, described in this contract, when the failure of Bernstein to provide funds to pay it at its maturity.

On the trial of the case, one witness was sworn in behalf of plaintiffs to prove that defendants had released plaintiffs from the payment of the half of the amount of the draft of Bernstein, as assumed by plaintiffs in their contract with defendants. This witness testified that he was in the employment of plaintiffs in March, 1861. That one of the defendants came to the store of plaintiffs on the 6th or 7th of March, 1861, and exhibited the draft of Bernstein as having been paid by defendants; that a conversation then arose between him and the plaintiffs in reference to the draft, and their contract to pay a half of its amount, and that it was agreed between plaintiffs and defendants, that plaintiffs should waive their commissions on the draft, and should be relieved from the payment of a half of its amount.

The commercial books of plaintiffs were brought into Court at the instance of defendants, and offered in evidence, and on the fly-leaf of their book, styled “Bills Payable,” a charge appears to have been made against Bernstein for the acceptance of the draft, and it appears to have been erased a few days after the maturity of the draft.

The witness is unimpeached ; his evidence is uncontradicted, and we think reliance should be given to it. It is corroborated' by the charge and erasure in plaintiffs’ Bills Payable book; for it is clear that some arrangement must have been made to induce plaintiffs to erase their charge against Bernstein, which by their agreement with defendants they thought they were entitled to.

The evidence of this witness, being corroborated by plaintiffs’ commercial books, the question whether the evidence of one witness is insufficient proof of an agreement to annul a contract over $500, without corroborating circumstances, which was presented in argument by defendants, is not before us for consideration.

It appears from the evidence that plaintiffs have received the sum tendered by defendants.

The judgment of the District Court is in favor of defendants, allowing their plea in compensation; and the plaintiffs are appellants therefrom.

It is decreed that the judgment of the District Court be annulled and reversed; and it is further decreed that plaintiffs recover of defendants the sum of one thousand five hundred dollars, with interest thereon at the rate of eight per cent, per annum, from the first day of June, 1861, till paid, and the costs of suit; and it is further decreed that the claim set up by defendants in compensation be rejected.


author: Ilsley, J. InsnEY, J. InsiiET, J.

text:
    No. 435.
    Noble & Kaiser v. Steamer R. W. Powell and Owners, and W. M. Weibling and J. Shannon.—J. Hughes, Intervenor.
    The judgment of the lower Court is final against all the parties to the suit, not made parties to the appeal.
    The Supreme Court is only soized of jurisdiction to amend the judgment of the lower Court between appellant and appellee, and not between appellees.
    A Ijl PPEAL from the Fourth District Court of New Orleans, Price, J.

      B. Egan, for.plaintiffs and appellees.

      R. é H. Marr, for defendants and appellants. Durant & Hornor, for intervenor.
   Ilsley, J.

The plaintiffs, butchers, claimed in the Fourth District Court of New Orleans, against the defendants, in solido, with privilege on the steamer B. W. Powell, her tackle, apparel, machinery and furniture, for supplies of meat furnished said boat, as per detailed bill annexed to their petition, the sum of three hundred and forty-seven dollars and sixty-seven cents.

Wreibling pleaded a general denial, and specially that the plaintiffs had no privilege on the boat, and called in warranty his co-defendant, Shannon.

Shannon for answer to the original petition and call in warranty, also pleaded the general issue.

He admitted therein that he was bound for all the liabilities of the B. W. Powell, but denied that the boat owed anything to the plaintiffs.

And then came and intervened in the said suit John Hughes, claiming ownership and possession of the engines, boilers, machinery, doctor, etc., saved from the wreck of the steamer R. W. Powell, which he purchase 1 on the 21st of October, 1861, one half thereof from Wm. M. Weibling, and on the 21st of October, 1861, the other half from Charles Whiting, the salvor thereof. He avers that he bought the same free from all incumbrance and received due delivery thereof, and was in legal and quiet possession, when disturbed by the sheriff, who, on the writ of sequestration issued in this case, has seized the above-described property.

To this petition in intervention, claiming ownership of the sequestered property, the plaintiffs pleaded the general issue.

By the certificate of the clerk of the lower Court, we find the transcript to contain all the proceedings had, as well as all the documents filed, and all the testimony adduced, except documents A, B, C and D, filed, therein on 31st of October, 1861.

As a writ of certiorari, if issued in due season, would have been useless, as there is nothing to show that the missing documents have been found, we should at once have dismissed the appeal. Harris v. Hays, 8 A. 433. But, as there is in the record a bill of exceptions, we shall proceed to examine it. Taylor vs. Littlefield, 5 Bob. 132.

On the trial of this case, the plaintiffs offered as a witness, to prove their demand, William Weibling, one of the defendants in the suit, to. whose testimony his co-defendant, J. B. Shannon, objected on the ground that Weibling had called him in' warranty, and prayed for judgment in his favor against Shannon for whatever amount plain tiffs might recover in said case, and that said William Weibling was directly interested in showing that the demand of plaintiffs was a debt for which Shannon and Weibling were bound, and in establishing the amount of said debt against Shannon.

We have been unable to discover any disqualifying interest whatever in the witness, on the ground alleged. By establishing the plaintiffs’ claim he would be rather testifying, against his interest; although, we think he stood indifferent between the parties. The evidence of Weibling was admissible.

The judgment of the lower Court was in favor of the plaintiffs, and against the defendants, insólido, for the sum claimed and interest and judgment over in favor of Weibling, and against his warrantor, Shannon, for the same amount and interest. No privilege on the machinery, etc., was recognized in favor of the plaintiffs; but Hughes, the intervenor, was declared the owner thereof; and Shannon only, appealed.

In this Court the plaintiffs and appellees have prayed for an amendment of the judgment, so as to recognize the privilege claimed by them.

As the record is now presented, it cannot be revised by this Court; and under the authority of Barrow v. Landry, 12 An. 83; Ennis v. Murphy, 11 Rob. 477; Agricultural Bank v. Alexander, 1 An. 246; Lyons v. Andrews, 5 An. 602, the case must be remanded for a new trial.

It is therefore ordered, adjudged and decreed that the judgment of the lower Court be avoided and reversed, and that the case be remanded to the lower Court for further proceedings according to law, at the costs of appellants.

Pelilionfor a Rehearing, by plaintiffs and appellees. — Plaintiffs would most respectfully ask for a rehearing in this, case, and, in doing so, solicit the attention of the Court to the following facts:

1. That the evidence of Capt. W. M. Weibling (Rec. pjD. 26, 27) and John Harman (Rec. 27) proves conclusively the correctness of plaintiffs’ claim.

2. That there is nothing in the record to impeach, contradict, or call in question the correctness of their testimony.

3. That the judgment of the lower Court is in favor of plaintiffs, but without allowing them a privilege on the machinery of the boat. This they asked to have amended by granting, them a privilege on the machinery sequestered; consequently the only question in the case is a legal one; that is, whether we are entitled to a privilege on the machinery of the boat; and, for the decision of this question, it will be unnecessary to send the case back to the lower Court.

The article in our Code 3244, says, privileges are lost by the destruction of the thing; but that means a total loss, not where parts of it remain. As we had a privilege on every part of the boat, previous to her loss, so we retain it on any portion that is not lost, otherwise it would be in the power of a person to defeat the privileged creditors by pulling the thing to pieces.

InsnEY, J.

A petition for a rehearing in this case has been presented by the plaintiffs, and another by the intervenor.

The plaintiffs and the intervenor hold towards each other antagonistic positions. The latter resisting, as owner of certain steamboat machinery taken out ofthe wreck of the Powell, the claim of the plaintiffs, asserting a privilege thereon to secure their demand against the defendants.

Judgment was rendered in the Court below in favor of the intervenor, declaring the property theirs, and not subject to the privilege; and the intervenor has not been made a party to this suit. This judgment cannot be disturbed, nor its correctness be questioned in this Court.

The cause for remanding the case was, that the transcript was incomplete, certain documents, according to the clerk’s certificate, being missing. This testimony related exclusively to the claim of the intervenor.

The plaintiffs ask for a rehearing, and we think, to subserve the purposes of justice, it should be granted to them.

It is therefore ordered that a rehearing be granted in this appeal.

On Rehearing.

InsiiET, J.

The plaintiffs, butchers, had furnished the steamboat JR. W Powell, with meat and supplies, amounting, as per detailed bill, to the sum of three hundred and forty-seven dollars and sixty-seven cents, for which they claimed a judgment, with privilege on the tackle, apparel and machinery saved from the wrecked boat, and which they caused to be sequestered.

Weibling, one of the defendants, pleaded a general denial, and denied specially that the plaintiffs had any privilege as claimed by them. He called in warranty his co-defendant, Shannon,

Shannon for answer to the original petition and call in warranty, pleaded the general issue, admitting, however, his sole liability for all the debts of the B. W. Powell, but denied specially that the plaintiffs had any claim upon her, or her owners.

John Hughes intervened in the suit, and claimed ownership and possession of the tackle, apparel and machinery sequestered, having purchased them from the underwriters.

The plaintiffs had judgment in the lower Court against the defendants in solido, without privilege, the intervenor being decreed owner of the property sequestered, not subject to any lien.

Shannon, the warrantor of Weibling, his co-defendant, was condemned to pay him the amount of the plaintiffs’claim, and Shannon alone appealed.

The plaintiffs’ claim was established by Weibling, whose testimony, objected to in the lower Court, was, in our first decree, declared to have been properly admitted.

The judgment as between the plaintiffs and the intervenor is final, as the latter is no party to this appeal; and had he been made an appellee, the judgment in favor of the plaintiffs could not have been amended to allow them a privilege on the property sequestered, as this Court is only seized of jurisdiction to amend a judgment as between appellant and appellee and not as between appellees. 16 An. 193.

The judgment of the lower Court must be affirmed, so far as it affects the plaintiffs, the defendants and the warrantor.

It is therefore ordered, adjudged and decreed, that our first judgment in this case be set aside, and that, the judgment rendered by the District Court in favot of the plaintiff's against the defendants, and in favor of Weibling against his warrantor, Shannon, be and the same, is hereby affirmed, at the costs of the appellant.


author: Howebh, J.

text:
    No. 953.
    J. Fennimore v. The City of New Orleans.
    The city of New Orleans, by taking charge and control of the wharfs and landings in front of the city and charging and collecting wharfage, assumed the obligation of providing and keeping in repair good and safe wharfs for the landing of goods, and it is responsible in damages for the loss of freight while being discharged from the ship, occasioned by the defectiveness or bad condition of the wharf.
    APPEAL from the Fourth District Court of New Orleans, Théard, J. .

      Clarke & Bayne, for plaintiff and appellee.

      II D. Ogden, City-Attorney, for defendant and appellant.
   Howebh, J.

Plaintiff seeks to recover the value of three hogshead of sugar lost by the breaking of the wharf in discharging them from his boat.

He charges that he paid all wharfage-dues fixed by the ordinances of the city, and that it is responsible for not keeping the said wharf in a fit and sound condition.

The defence, besides the general denial, is that if any damage was sustained, it resulted from the want of ordinary care and prudence on the part of plaintiff’s agents, and from no fault of defendant.

Judgment was rendered in favor of plaintiff as claimed, and the city appealed.

The payment of the wharfage-dues to the city, the loss and value of the sugar, and the unsound and rotten condition of the wharf are proven. It is also shown that plaintiff’s boat, on previous trips, had landed at the same point, and the wharf seemed to be still in the same condition; that the freght on this occasion was being discharged in the usual manner and with usual care; that the wharf gave way from unsoundness and fell with the staging, the sugar and several of the boat’s hands, causing the loss of several lives, as well as of the sugar. We think the city, by charging and receiving the warfage-dues, assumed the obligation of providing a good and safe wharf for the landing of goods, and keeping it in repair, and that there was in this instance no such w-ant of care and prudence on the part of plaintiff’s agents as to relieve the city from liability for the loss. Such liability has been frequently recognized by this Court. See 5 A. 100, 504; 4 A. 440. The loss resulted from the fault of the defendant.

Judgment af&med with cost.


author: IiiSLEY, J.

text:
    No. 1293.
    Joseph Sizemore and wife, Co-tutors, v. D. J. Wedge, Administrator, et als.
    A purchaser of real estate at probate sale is not bound to look beyond the decree recognizing its necessity. 19 An. 353.
    The jurisdiction of the Court is an essential inquiry, but the truth of the record concerning matters. within its jurisdiction cannot be disputed.
    Where property is sold at probate sale under an order of Court, the sheriff must state, with certainty and clearness, the price or sum which each particular piece brought.
    Where the sheriff sells two tracks of land under the same order, on the same day, and at the same time, and specifies that the whole property brought the sum of $4,000, and one piece thereof brought the sum of $1.500, the proees-verbal, thus made, fixes with certainty the amount that the other piece brought, to-wit: $2.500,
    APPEAL from the District Court, Parish of East Feliciana, Posey, J.

      Muse & Pipián, for plaintiffs and appellees.

      W. F. Kernan, for defendants and appellants.
   IiiSLEY, J.

Joseph Y. Yarborough died about the year 1852, leaving a widow, now Mrs. Sizemore, one of the plaintiffs, and several minor children, issue of their marriage, of whom the plaintiffs are the co-tutors, in which capacity they institute the present petitory action against the defendants.

The land now claimed formed a part of the separate estate of the deceased Yarborough, and was inherited, as it is represented, by his children, in whose behalf the present suit is brought.

The defendants answered separately; but they all set up the same title to the land claimed under an adjudication at a probate sale provoked by the plaintiffs, co-tutors of the minors, to pay a judgment which they represented to be due to them by the estate of Yarborough.

There was a judgment in the Court below in favor of the plaintiffs, and the defendants have appealed.

The land in controversy, called the “Home tract,” was adjudicated at a probate sale made on the 26th January, 1849, under and by virtue of a decree of the District Court dated the 22d December, 1858, to Mrs. Martha E. Ratliff, whose title the defendants hold, and who, as it is stated in the proces-verbal and sale, complied with the terms of sale.

This adjudication, and the proceedings and decree upon which it rests are, it is contended by the plaintiffs, absolute nullities, and conveyed no title whatever to the purchaser.

1st. Because the basis of the decree was the deliberations of the family meeting held in behalf of the minors, “that a specific sum, to-wit: twenty-five hundred dollars, was the price for the land definitely fixed by the meeting, by private contract before the day of sale.”

2d. Because no specific sum was stated or fixed in ths proces-verbal of sale as the price of the land.

On the first ground it may be observed, that although the family meeting, had at the instance of the co-tutors, recommended the sale of the land as advantageous for the minors, and had fixed a definite price for which it should be sold on certain terms and conditions, that Was unimportant and might have been dispensed with, as the sale was ordered to pay debts of the succession of J. Y. Yarborough. Canter vs. McMannus, 15 An. 676.

The beneficiary heirs had only a residuary interest, and the formalities for alienation of minors’ property was not required. 9 An. 107; 11 Rob. 508; 10 Rob. 457; C. C. 1042, 48, 51; 2 Hen. Dig. 1496, §10.

The purchaser at a probate sale, which is a judicial sale, is not bound to look beyond the decree recognizing its necessity. The jurisdiction of the Court is an essential enquiry, but the truth of the record, concerning matters within its jurisdiction, cannot be disputed. See the numerous authorities collected in 1 Hen. 924, ?¿ 18; 2 Hen. 1494, g 5.

The purchaser, Mrs. Ratliff, comes fully within this rule, and we will therefore restrict our enquiry to the second ground of nullity urged against the probate sale, which is, that it lacked one of the essentials to such .a contract, to-wit: a fixed and definite price.

The decree of the 22d December, 1858, in virtue of which the sale was made, was rendered at the instance of the co-tutors who, in their petition, prayed for the sale of the two tracts belonging to the succession, the Seely tract and the Home tract, (which is the one claimed) to pay debts. The Home tract was adjudicated to Mrs. Martha E. Ratliff, as the last and highest bidder, for twenty-five hundred dollars, ($2,500); although it is strenuously contended thatno price is fixed or stated in the adjudication.

It is true that the price, viz: two thousand five hundred dollars, is not particularly stated in the proces-verbal of adjudication, but there cannot be a particle of doubt, that that was the price.

The total amount of the sales of both tracts is stated in the proces-verbal to be four thousand dollars, and the price of the Seely tract is put down therein at fifteen hundred dollars, and this necessarily fixes the price of the Home tract at two thousand five hundred dollars. Id cerium esl quod cerium reddi potest. One-fourth of this sum was required to be paid in cash, which was paid by the purchaser, who otherwise complied with the terms of the adjudication, as it is declared in the proces-verbal.

There is no reason, therefore, why the defendants should be disturbed in their title and possession to the property claimed from them.

It is therefore ordered, adjudged and decreed that the judgment of the District Court, be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that judgment be, and it is hereby rendered in favor of the defendants and against the plaintiffs, with costs in both courts.

Rehearing refused.


author: Howedd, J. HoweiiXi, J.

text:
    No. 813.
    A. Delaroderie & Son v. S. M. Hart and W. S. Pike.
    Where an agent or mandatary has acted within the scope of his legitimate authority, he cannot be held personally responsible for a contract made by him with a third person in that capacity.
    Defendants were the lessees of the Louisiana Penitentiary, from 1857 to 1862, under the law of 1858. After the expiration of their lease they continued for a time to administer the affairs of the institution as agents. In the fall of 1862, they contracted with plaintiffs, in that capacity, for a lot of lumber, which was used in removing the machinery and property thereof from Baton Rouge to Clinton, Louisiana, for supposed safety. The bill for the price of the lumber is made out against them as agents. Plaintiffs now seek to hold them personally liable on the contract: Held — That, under this state of facts, they cannot be held personally liable; that plaintiffs, having admitted their agency and dealt with them in that capacity, cannot recover from them individually.
    APPEAL from tbe District Court, Parish of East Baton Rouge, Posey, J.

      Geo. S. Lacey and S. P. Greves, for plaintiffs and appellants.

      Bunn <&'Herron, for defendants and appellants.
   Howedd, J.

This is a suit on a bill of lumber furnished to defendants, under the style of S. M. Hart & Co., “Agents for the Louisiana Penitentiary.” Plaintiffs allege that the lumber was sold upon the individual credit and responsibility of the defendants, ‘ ‘ who held the proceeds of the labor of said institution,” and used said lumber in removing the machinery and property thereof from Baton Rouge to Clinton, in the fall, of 1862, for supposed safety.

The defendants admit that, as agents of the Louisiana Penitentiary, they received lumber from plaintiffs for said institution; but deny that it was upon their credit and responsibility, and deny that any partnership existed between them, except-as such agents.

Judgment was rendered in favor of defendants, and plaintiffs appealed.

The bill sued on is made out against “Messrs. S. M. Hart & Co., Agents for the Louisiana Penitentiary.” It is admitted they were agents in 1862; that they carried on the Penitentiary, and had the general management of it. It is shown that they purchased cotton and had it manufactured; that they sold manufactured goods and received payment as agents; and that they removed the machinery of the institution to Clinton in the fall of 1862, using the lumber furnished to them by plaintiffs, and giving certificates for hauling, signed “S. M. Hart & Co.” The plaintiffs contend that, under these circumstances defendants cannot successfully invoke the principles of law, which relieve an agent who deals as such with third persons, inasmuch as the Louisiana Penitentiary is not a person or corporation competent to appoint an agent, and as they did not exhibit their, power or authority to represent or act for such an institution as the Penitentiary; and that plaintiffs cannot be presumed to have given credit to the Penitentiary for the means of virtually suspending the operations of the institution.

There is much force in this position, and when we look to the act of 1858, to provide for the administration of the Penitentiary (session acts, p. 222,) we discover that the institution is committed to lessees, who seem to be responsible for the entire expense and management thereof, the State being liable in no event for any sum; and as the defendants did not disclose the names of the lessees, (if acting as their agents) they must be held personally liable.

The true construction of Art. 2981, C. C., quoted by them, if at all applicable to the case, will make them responsible under the circumstances.

It provides that “the mandatary, who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee.” Here the defendants did not communicate their authority. We can find nothing in the laws authorizing the appointment of agents for the Louisiana Penitentiary; and as the defendants have not shown how or by whom they were so appointed, we must presume that the partnership of S. M. Hart & Co. had control of and managed the institution under the act of 1858, and that in any event the removal of the machinery to a distant place, not being an act of ordinay administration of the institution, they must be held responsible for the expense thereof incurred in favor of plaintiffs.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs, representing the firm of A. Delaroderie & Son, in liquidation, recover of S. M. Hart and Wm. S. Pike, jointly, the sum of five hundred and ninety-nine dollars and fifty-two cents, with five per cent, interest thereon from láth November, 1862, and costs in both courts.

Petition for a Rehearing, by defendants. — In the above cause, in which your Honorable Court have decreed a reversal of the judgment of the lower Court, the defendants and appellees respectfully ask that a rehearing may be granted.

This Court has fallen into an error in concluding that the Louisiana Penitentiary, at the time the bill of lumber was sold to Pike & Hart, agents of the Louisiana Penitentiary, was under the control- of lessees. The lease which had been entered into in March, 1857, for five years, had expired, and the institution was under the control of the -State authorises — that is the Governor and officers appointed by him.

This fact appears from the laws of the State, which the Court, of course, takes judicial notice of. In March, 1857, an act was passed by the General Assembly, under which the Penitentiary was leased for five years, by the election, by joint vote of the Legislature, of lessees for that term, from March, 1857. In 1858 the above act was re-promulgated, in consequence of errors contained in the original promulgation. The act is not passed in 1858, it is simply and merely republished, with its original number and date. See Acts of 1857, p. Ill; Acts 1858, p. 222.

It appears from previous acts of the Legislature, that the State Penitentiary was and is an institution established for the purpose of confining and punishing persons convicted and sentenced in accordance with the laws of the State. That the institution was controlled by the State, and even when leased it was held under the general supervision of the State, through a Board of Control, and a clerk appointed by the Governor.

When the lease for five years ceased, which it did in March, 1862, the Penitentiary necessarily reverted to the exclusive control of the State authorites.

The defendants then were acting as agents for this State institution. Its status and condition being fixed by the laws of the State, must then have been known to plaintiffs at the time of their contracting with defendants as its agents.

It is not pretended that they were not agents: nor can it be contended that they did not disclose who their principal was at the time of contracting, for the account itself sued on, is made out against them as agents of the Louisiana Penitentiary. The authority of the agents is not brought into question.

The general rule as to the liability of agents is succinctly and clearly given in Story on Agency, par. 261. “In general, when a man is known to be acting and contracting merely as the agent of another, who is also known as the principal, his acts and contracts, if he possesses full authority for the purpose, will be deemed the acts and contracts of the principal only, and will involve no personal responsibility on the part of the agent, unless the other circumstances of the case lead to the conclusion that he has either expessly or impliedly incurred, or intended to incur, such personal responsiblity.”

“It is a general rule, standing on strong foundations, and pervading every system of jurisprudence, that where an agent is duly constituted, and names his principal, and contracts in his name, the principal is responsible, and not the agent.” Kent Com., sec. 41, p. 629, 630 (4th edition), This rule has uniformly and repeatedly received the sanction of the Supreme Court of this State. 3 M. R. 642; 4 N. S. 308; 1 L. R. 200; 5 L. R. 334; 10 L. R. 390; 11 L. R. 13; 13 L. R. 21; 3 R. 378; 7 A. 675; 9 A. 520.

Arts. 2981, 2982, Civil Code, have incorporated the above rule as a part of the written law of the State.

Let this case be tested by another general rule, now universally received as the law: “To whom is the credit knowingly given, according to the understanding of both parties?” “He to whom the credit is knowingly and exclusively given is the proper person who incurs liability, whether he be the principal or the agent.” Story on Agency, par. 288

In the case of P. E. Trastour v. B. Fallon et al., 12 A. 25, it was held “that the burden of proof as to terms of contract rested upon the plaintiff, and that to hold the defendants responsible he must show he contracted with them personally, or that they misled him by assuming to act for others without sufficient authority.” The Court in the same case also held that “in cases of this character the controlling question is, whom did the employer trust? If no deception or artifice was used in making the contract, and the employe knew the capacity in which his immediate employer acted, and looked to a special fund, or to a projected company to reward him, he cannot hold the honest agent responsible.” In this case the agents were not held responsible, although their principal was merely a prospective company at the time of the contract.

The decision of Your Honors intimates that additional reason for holding the agents personally liable, is found in the fact that the lumber furnished by defendants was used in moving the machín eryof the Penitentiary from Raton Rouge to a point in the interior, which was not a legitimate and ordinary operation of the institution. It is submitted that nothing adverse to the agents can b,e drawn from this state of the case. They were acting in this matter, as well as in others, simply and merely as agents, and were recognized and contracted with as such by defendants, and consequently their responsibility could in no way bo affected by the use to which articles obtained from defendants were applied, unless it should be shown (and it is not even urged that such is the case) that they had transcended their power as agents in removing the machinery.

That the authorities of the State were not acting in the interest of the State in removing the machinery cannot be presumed by the Court. Even in the absence of testimony the presumptions of law would be in favor of the officers causing its removal.

I am not certain, not having the record before mej .but I think the testimony shows the necessity for the removal, in order to preserve it from destruction. The Court knows judicially that at. the time the machinery was removed, a state of war existed in this country, and that about that time Baton Rouge was permanently occupied by the Federal forces. In anticipation of that occupation, and to protect the machinery from destruction, not by the Federáis, ñor for the purpose to prevent its falling into their hands, but to prevent its destruction by the Confederate forces, who threatened to destroy it in order that it should not fall into the hands of the United States forces, it became necessary to remove it. If this were so, it is clear that the authorities representing the State were evidently acting in the interest of the State in the removal, and their agents certainly did not make themselves personally responsible in carrying out their directions.

It is submitted that, under the law governing agencies between privato individuals, the defendants are not responsible personally.

It is submitted that they were government officers, acting for the public, appointed by the Governor, into whose hands the institution had fallen after the expiration of the lease. As such, the rules as to personal liability of agents would be less stringently applied to them than in their individual capacity. Smith’s Mercantile Law, page 211.

On REHEABiNet.

HoweiiXi, J.

This case is before us on a rehearing granted upon the application of defendants.

The plaintiffs allege that they “furnishedlumber to S. M. Hart and W. S. Pike, to be used by them under their partnership style óf S. M. Hart & Co., agents for the Louisiana Penitentiary, in the removal of the machinery and property belonging to said Penitentiary, from Baton Rouge to Clinton, in this State;” and that they “relied upon the credit and responsibility of the said S. M. Hart and W. S. Pike, individually, and not upon the institution called the Louisiana Penitentiary, of which they call themselves agents.” The plaintiffs admit that at the time the defendants were the agents of the institution, and adduce no fact to prove that they gave credit to the latter personally, except the removal of the property from the locality established by law, from which they argue that they cannot be presumed to give credit to the institution for the means of virtually suspending its operations.

This is not necessarily a legitimate inference, but we hold that under the act of 1858, p. 222, providing for the administration of the Penitentiary and all the circumstances, the defendants were presumed to be the lessees. We now find that said act, although published in the volume of the statutes of 1858, was adopted, and the lease made in March, 1857, and that the lease had expired some months prior to the transactions in question, and consequently the defendants cannot be presumed to be lessees. We must apply the law regulating the rights and obligations of principal and agent, which under the facts shown and admitted in this case, must relieve defendants from any individual liability. The bill sued on is made out against them as “agents for the Louisiana Penitentiary,” and there is no act nor promise on their part shown, which would fix liability on them personally.

It is therefore ordered that the decree heretofore rendered by us be set aside, and it is now ordered that the judgment of the lower Court be affirmed, with costs.


author: Larauve, J.

text:
    No. 1491.
    State of Louisiana v. Peter Cook.
    Where the indictment has been quashed for want of proper averments, and judgment has been arrested, the prisoner will be remanded to await the action of the court on a new indictment.
    The doctrine in the case of the State v. Peter CooJc, (lately decided,) reaffirmed.
    APPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      J. C. Stafford, for State.

      H. B. White and E. W. llobertson, for defendant and appellant.
   Larauve, J.

The defendant was convicted of robbery, and sentenced to.fourteen years’ hard labor in the penitentiary. He took this appeal.

This case presents the same questions passed upon in the case of tho State of Louisiana v. Peter Cook, No. 1492, in this Court, lately decided, and for the reasons therein assigned, the same judgment must be rendered in substance.

It is therefore ordered, adjudged and decreed that the judgment of the District Court appealed from be annulled, avoided and reversed, and that the motion in arrest of judgment be maintained, and said judgment arrested.

It is further ordered and decreed that the prisoner be detained in close custody, as the law directs, until the next session of the District Court of East Baton Rouge., then and there, to answer to a new bill of indictment, or other proceeding, that may be preferred against him for the crime of robbery committed on the person of Joseph Russels, with which he now stands charged, and to abide the orders of the District Court of East Baton Rouge thereupon,


author:
Ilsley, J.
      Hyman, C. J.,

text:
    No. 1196.
    Louis T. Rabel v. S. Pourciau.
    The maxim contra non válentem agere non currit prccscriptio, is an axiom, or first principle of natural law, and notwithstanding the terms of limitations in prescriptions contained in the old, as well as the new, civil code, they have always been construed so as to harmonize with this maxim of universal justice.
    Where a bill of exchange or promissory note has been suffered to,prescribe, and the evidence shows that the holder could have brought suit before prescription obtained, he cannot invoke the maxim Contra no7i válentem agere non cuwit prceso'iptio, to relieve it from the effect of prescription. This maxim has no application to the prescription of bills and notes, where suit might have been brought before prescription obtained.
    APPEAL from the District Court, Parish of Pointe Coupée, Cooley, J.

      E. Philips, and Race, Foster & E. T. Merrick, for plaintiff and appellant,

      A. L. Mahoudeau, for defendant and appellee.
   Ilsley, J.

This case presents but one question: Whether the plaintiff’s action on one of the two notes sued on, upon which a partial payment was made on the 30th January, 1861, thus interrupting prescription up to that time, was prescribed on the 80th April, 1866, the day on which the citation, etc., was served on the defendant.

On the 30th January, 1866, the time for prescription would have expired, but of this time, there were two years and two months, during which all j udicial actions in the parish of Pointe Coupée where the defendant resided, was suspended, as there were then therein neither courts, nor officers of courts; and we are now to determine whether the plaintiff having failed to sue within the fiveyears, although there was no impediment to his doing so during the last six months of the legal delay, his action subsequently instituted on the note partially paid, is not prescribed.

In a very elaborate and well-prepared opinion, the Judge of the Court below, regarding as authoritative the express terms of restrictions laid down in regard to prescription in our Code, and adopting the opinions of Marcadé and Troplong, sustained the plea, and dismissed the plaintiff’s action.

This Court has always considered the maxim, Contra non válentem agere non currit prcescripiio, an axiom or first principle of natural law, and notwithstanding the terms of limitation in prescription, contained in the old, as well as the new, Coda, have interpreted these terms in such a manner as to harmonize with this maxim of universal justice. This maxim, said this Court, in Reynolds v. Batson, 11 An. 729, has been applied to prescriptions, liberandi causa, in three classes of cases.

1.Where there was some cause which prevented the Courts or their officers from acting or taking cognizance of the plaintiff’s action; a class of cases recognized by the Roman law as proper for the allowance of the utile tempus. See Digest, lex 1, lib. 44, t. 3. Ibid $ 7, 8 and 9, lex 1, lib. 49, t. 4,

2.The second class of cases are those where there was some condition or matter coupled with the contract, or connected with the proceedings, which prevented the creditor from suing or acting.

3.The third class of cases is where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.

The first category of cases enunciated above would seem sufficiently large and comprehensive to embrace such, as the one now under consideration, which apparently should be governed by the doctrine taught in the case of Querry’s Executor v. Faussier’s Executor, 4 M. 609; but this Court has settled a different jurisprudence in regard to the prescriptions in actions on bills of exchange, notes payable to order or bearer, &c., and has held that the maxim, Contra non valentem,, resting solely on jurisprudence, cannot be applied to such a prescription, without violating the manifest spirit and intention of express law that that prescription running against minors and interdicted persons, thereby indicated the policy of the law-giver, and his intention that it should be strictly enforced.

The cases announcing this deviation from the general application of the maxim are those of Tyson v. McGill, 15 La. 145; Hatch v. Gilmore, 3 An. 508; and Suydam v. Kinney, 9 An. 316.

In concluding its remarks in the case of Hatch v. Gilmore, this Oourt observes, “In the view we have expressed, we have taken it for granted for the purpose of argument, that the maxim, Contra non valentem, would apply to the case before us, were the contract not of the class comprehended by articles 3505 and 3506 O. O.” All the eases referred to in 15 L. 145; 3 An. 508; 4 An. 518, and 9 An. 316; in support of this last doctrine, presented but one state of facts, that the absence of defendant from, or his removal to another State or country, was no reason for interposing the maxim against the prescription of action upon bills of exchange, &c.

From the tenor of all these cases, it may be gathered that the Oourt was of the opinion that the maxim should not prevail against the prescription just now stated, whenever a party can act, however inconvenient it may be for him to do so.

There are, however, cases, as in Boyle v. Mann, 4 An. 170, and Martin v. Jennings, 10 An. 553, wherein the maxim, Contra non valentem, was permitted to be invoked, and was deemed applicable to the prescription referred to in articles 3505 and 3506, C. C. They were cases falling within another of the categories which we have enumerated, to cases always discountenanced by Courts, that is to cases in which the debtor himself has done some act to prevent the creditor from availing himself of his action.

It being shown by the authorities we have referred to, that, unless in a certain class of exceptional cases embraced in the third category, the maxim cannot be invoked against prescriptions on bills, &c., when suit might be instituted before the expiration of the time to prescribe, it is clear that the plaintiff in this case cannot claim the benefit of the maxim, for after every obstacle had been overcome, and every difficulty removed by the opening of the courts and the appointment of officers, more than six months yet remained of the five years, during which the plaintiff’s action might have been brought; and the fact of his being a non-resident formed no valid excuse, as the law makes no distinction in prescription between resident and non-resident, indeed it excepts no class of persons, not even minors or interdicted, persons. Prescription in this case has barred the plaintiff’s action.

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

Hyman, C. J.,

dissenting. The law does not declare a different rule for suspension of prescription on notes payable to order, than it does on other obligations; and the maxim, Contra non valeniem agere non currit prmscripiio, is as applicable to them as to any other debts.

It cannot be rationally inferred that the maxim does not apply to notes payable to order, because they are prescriptible against minors and interdicted persons as well as against others.

Where written laws, nor reason, make a distinction, courts should not.

Petition for a Rehearing, by Race, Foster and E. T. Merrick. — The plaintiff respectfully prays this Honorable Court for a rehearing in this case, and submits the following reasons:

The question decided by this Honorable Court, in this case, involves so large an amount of money "in the various suits which it will affect, and it excites so much interest, both among the profession and commercial men and others, that we have thought it our duty to present to the Court some reasons why a rehearing should be granted.

It is assumed by the Court, as established, and the fact cannot be disputed, that during the time that prescription is supposed to have been running, that there were two years and two months of time, during which no suit could have been instituted against the defendant.

The question, therefore is, Did this impossibility to sue suspend prescription ? If it did, has not plaintiff the right to deduct this time from the first five years?

Troplong concedes that, according to the doctrine of Merlin, the creditor would have such a right, for that seems to have been the mode of computation where prescription was suspended.

Troplong says, Prescription No. 728: “Nousproposeronsméme uneautre limitation dont neparle pas Merlin,’’and then he states the doctrine, that if war and pestilence occur in the intermediate time, and not near the termination of prescription, it ought not to be regarded.

But the question arises, How have our Courts regarded this question? Have they followed Troplong or Merlin? We think it can be established that they have followed Merlin, and have held that where there was occasion to apply the doctrine of Contra non valeniem aaei'e non currit prcescriptio, they have held prescription to be suspended and have made the deduction accordingly.

Where a principle of law is embodied in one part of a system of laws which is equally applicable to other portions of the same laws, although not reiterated, it will be so applied by the Courts.

The legislative will is well ascertained from one example as many. The principle that cases are to be excepted, and the rules of prescription suspended in certain cases, is established by the Civil Code in articles 732 and 784, (which were cited in the original brief,) and this principle is affirmed by many decisions. Why should there be any distinction between the suspension of prescription in the case of express suspension, as shown by articles 3488 and 3491, as to minors and married women, and the case of suspension ex necessitate rei, or because it is within the spirit and reason of the whole body of the laws? If it be law, it is no less law in the one case than the other, and the Court should not hesitate to apply the principle in the one case more than the other; and we believe our Courts have not in fact made any distinction.

The first case in which the principle was applied was Querry’s Executor V. Faussier's Executor, 4 M. R. 609.

The Legislature had prohibited the bringing of suits for one hundred and twenty days, and the Court expressly says, (in estimatng prescription,) they arc not to be counted. The language is, These one hundred and twenty days ought not to be reckoned as a part of the time allowed the executor. They would suspend the prescription, Contra non valeniem agere non curi'it prosscriptio.

The next case is Morgan v. Robinson, 12 M. 76, and the Court allow the plaintiff credit for the time defendant was absent from the State. They say the maxim Contra non valenlem agere, is “an axiom or first principle of natural law and justice, and therefore applicable to every system of jurisprudence wherein the contrary is not expressly established by legislation.” The same principle is recognized in the case of Guilliet v. Erwin, 7 L. R. 581, 582. The prescription was that of one year. Service of citation, 15th March, 1831, was not made until after two years from the time of origin of the action, February and March, 1829. The defendant remained, say, three months after the latter period, February and March, 1829, in Louisiana. He came back December 5th, 1829, and left again 24th April, 1830, the year expiring while he was present. He came back again 10th January, 1831, and suit was not until 15th March, 1831. Now, if the theory of Troplong had been true, the suit ought to have been brought in February and March, 1830, because at the expiration of the year, and for two or three months previous, the defendant was a resident in Louisiana, and could have been sued. But the Court did not so hold; on the contrary, it was determined that plaintiff w'as entitled, under the maxim, to a full year, utile iempus, and his suit was maintained, although it was not brought until after defendant’s return for more than two months, and after the expiration of the second year.

The same mode of calculation was adopted in the case of Dyraud v. Babin’s Heirs, 7 N. S. 471. The plaintiff, as the law then stood, could not sue Judge Winchester in his own court. This disability, which had existed from the time of Judge Winchester’s appointment, was removed, February 5th, 1824, by an act of the Legislature. See Act 1824, p. 10. Now the suit was not filed until the 6th December, 1824, and the land seized December 20th, 1824, more than ten months after the disability was removed. If the doctrine of Troplong is law, the suit should have been commenced immediately after the removal of the disability. But the Court does not intimate any such opinion; on the contrary, it can be fairly inferred from their language that they supposed the plaintiff had the residue of his five years in which to bring his suit. See p. 481. In Landry v. L’Eglise, 3 L. R. 219, the Court required the party pleading prescription to show the removal of the obstacle to the suit to have taken place more than five years previous to the commencement of the suit, but as this obstacle grew out of a stipulation in a contract, it is not exactly in point, although it supports our position so far as to show that the disability to sue sirspends the prescription.

In the two cases of Flint v. Cuny, 6 L. R. 67, and 7 L. R. 381, it was assumed by counsel, and not disputed by the Court, that appellant had one year in which to appeal after the removal of the impediment.

In Boyle v. Mann, the Court said, the removal of defendant to Texas and Mexico, prescription having run then for three years before such removal, ‘ ‘ suspended prescription, ” although the suit was commenced by attachment, say ten years after the maturity of the note. The Court here use a statutory word, a word defined by the Code, and it is to be presumed they used it in the sense understood by the fow-giver, and as producing the same consequences as in the other cases of suspension of prescription. Smith v. Taylor, 10 Rob. 133, merely shows the force of the maxim, Contra non valeniem agere non eurritprceseripiio. Such is also the case of Martin v. Jennings, 10 An. 553. See also Murphy v. Guiterez, 17 An. R. 269.

So far, the investigation of the decision of our courts show that the inability to act is a suspension of prescription with all the consequences of such suspension.

It now becomes us to examine (he cases which support the opposite theory as it is supposed. They are four in number. If we attend to what is decided in those cases we find, that as this Court has justly remarked, they merely decide that prescription runs in favor of absent debtors. In order to show the force of the articles of the Civil Code, the Court, it is true, say, arguendo, that it runs against minors and interdicted persons. In Suydam, v. Kinney, the strongest case cited, the residence of defendant was “well-known to plaintiff, and no impracticability of enforcing the collection of his debt by legal process at any time since its maturity was proved. ” It was in reference to this state of facts that it was said that the prescription of promissory notes is peculiarly favored by our law, &c., (9 An. 316.) How different are the facts of the present case? .The plaintiff, a resident of a foreign country, was, it would seem, shut out from all access to the parish of Pointe Coupée, by a blockade, and by a “line of bayonets” for four years, in two and half of which no courts were held in said parish.

Here, then, the impediment is not that occasioned by the removal to a neighboring State by an individual, but by the nation, which creates the impediment, and it applies to a whole community. It is an act emanating from the sovereign power and binding upon all citizens and aliens. It is not a question of a day or a week, but of months and of years, if the war should so long exist, and during the existence of the war it was not possible, legally speaking, for the plaintiff to have entered the parish of Pointe Coupée to commence his suit in the Confederate courts, if any such were held, and such suit were lawful.

More than this, the plaintiff, an alien resident abroad, could not take out letters of administration on the estate of the defendant, and no administrator was appointed, against whom suit could be brought, until the 10th day of April, 1866, only six days before the suit was in fact filed; and the administrator even subscribed liis oatliafterwards. (Rec. pp. 4, 30 and 31.) Here, then, is a case in which no laches can be imputed to the plaintiff, and one in which, if equity be regarded, or the comity of nations, prescription ought not to be held to have barred the claim. But let us return to the four cases last above-referred to in 15 L. R. and 3d, 4th and 9th An., in the last of which the inference is deduced,that because bills of exchange and promissory notes are subject to prescription, as against minors and interdicted persons, that therefore, the law favors the prescription of promissory notes. We deny the deduction arrived at arguendo, in’9bh Annual. Promissory notes are not objects against which the Legislature has evinced particular hostility, and there is no reason to think that “the prescription of promissory notes is peculiarly favored by our law. ” This will appear by a moment’s reflection. Promissory notes and bills of exchange are the means by which the operations of commerce are carried on, and in times of peace they circulate with great facility. Now, as it regards this species of paper, when the Legislature came to adopt the short prescription of five years, it must have occurred to them that if this sort of paper could be held for twenty or nearly twenty-one years, during which the prescription would be suspended, it would occasion great embarrassment; the piece of paper might be purposely retained by the tutor, and it might be forgotten by the debtor, or the holder might be unknown to him, since such paper is, like bank-notes, transferable by delivery after endorsement. In the case of interdicted persons, the prescription might be suspended for even alnnger period than twenty-one years should the interdicted person so long live. It was advisable, therefore, to place minors and interdicted persons on the same footing as others; but it was so done because minors and interdicted persons are represented by tutors and curators who can at all times exercise the actions of the minors or insane persons, and so far protecting them against the negligence of the tutor and curator as to give them an action of indemnity against the latter should the debt be lost by prescription. Now, as the law compels the acceptance of the tutorship in certain cases, (C. C. 286,) and as the Judge must appoint a curator to a person whom he interdicts, and see that the minor is provided with a tutor, the argument drawn from the inexperience and tender age of a minor, and the incapacity of an interdicted person, has no force. It is an argument drawn from only a partial view of the facts and will not bear out the assertion in the case cited, that the law favors the prescription of promissory notes. Commercial paper, on the contrary, is favored by our law, and the courts, have so held in many decisions. Enlightened legislation has always looked upon it as the most convenient means of carrying on the operations of trade, and the courts, since the time of Lord Mansfield, have considered it as a real security in the hands of the holder and cautiously abstained from all discriminations against, and wherever practicable have construed the laws favorably towards it. Grave reasons induced the Legislature to indemnify the minor and interdicted person by an action against their tutors and curators who should let the action be prescribed; but this very solicitude to prevent the embarrassment ol' commerce by the detention of bills of exchange in unknown hands during minority and interdiction, is the very best evidence that bills of exchange and promissory notes are favorably regarded by the Legislulu re, and the rule was established to render them the more valuable. They weru not to be imprescriptible, but the prescription was to be five years, and, as it respected that term, all the other exceptions were understood as in other cases, and in a proper case the tutor could no doubt avail himself of the maxim, Contra non valentem, dsc., like any one elso. During the time prescription is claimed to have run, the plaintiff, it may, we think, be inferred, as resident of a friendly nation, was prevented by the acts of our government from suing. Our government would have forcibly prevented plaintiff during the greater part of the time from entering Pointe Coupée, and would have looked upon any attempt to sue in the Confederate courts as an illegal and unfriendly act, and as the prohibition was made by the war-making power of the nation, it must have the effect of suspending prescription. The. United States claimed sovereignty and jurisdiction over the territory of Pointe Coupée as well as the rest of the Southern States, and was seeking to recover it, and therefore the ease stands as it would have done between the defendant and a citizen of New York, and the right to sue was suspended. 1 Kent, 68.

The rule of the common law, as we understand it, is this, that where the government by its own acts, as by war or by statutes, prevents suits, the statute ceases to run during the disability.

In the same manner prescription does not run during the time that a suit cannot be instituted in actions governed by short prescriptions. If it does not run, then time remaining is to be counted as shown by the authorities first herein cited, and especially is it the case where the. inability to sue is occasioned by no act of the government itself.

In the case of Reynolds v. Batson, 11 An. R. 729, this Court seems to have been of the opinion that where there is an occasion to apply the maxim in cases liberandi causa, it has the effect of suspending prescription.

The distinction between the utile tempus and the continuum of the civil law was adverted to and cases recognized as proper for the computation of utile tempus. This distinction, which is treated of at large by other authors, is noticed in these words by Mackeldey,Partie Générale. Sec. 211, No. 3. ed. 1846: “Dans les actions qui ne se prescrivent que par 30 on 40 ans, le laps de la prescription est toujours un délai continu (tempus continuum,) et dans quelques actions temporaires un délai utile ($195:) la prescription n’est parfaite que lorsque le dernier jour (dies novissimus) est entierement ecoulé. ”

So indeed of the maxim ‘ ‘ Contra non valentem agere non currit prcescripiio, The verb' “ curro,” currere, means to run. The prescription runs ; the prescription does not run. If it runs it is counted; if it does not run it cannot be counted. And this is the sense of all the decisions of our Courts where the question has been considered. And it is also the fact in regard to the French decisions, notwithstanding Mr. Troplong proposes another limitation of the rule. The case he cites, No. 726, was decided by the Court of Cassation, 21st July, 1829, and that Court deducted thirty years from the time which had run. 'We quote Troplong himself: “Que cet état de choses avait duré tant que s’étaitprolong'ée la confusion; et qu’en déduisant ce temps des 30 ans nécessaires pour preserire, un délai suffisant n’etait pas acquis au jour de l’introduction de l’instance.”

Where did the Court of Cassation get the right to deduct this time on account of the confusion of the rights of debtor and creditor, which had taken place? There was no such express exception in the law. It was doubtless from an application of the maxim which Troplong, of his own authority, proposes to limit, without any judicial sanction for such limitation.

So in regard to the act of Congress of the United States. (13 Stat. at Large, 128.) This statute merely embodies a principle of law previously known, and supposed necessary to be enforced by legislative sanctions, on account of some possible hostile position of the Southern laws on the subject of limitation of actions. It suspends limitation during the time of disability; and such time of disability, is, by the express terms of the statute, to be deducted from the limitation.

Adverting again to the cases of Tyson v. McGill, 15 L. R. 145, and Hatch v. Gilmore, as well as the case in 9th A. 316, it may be remarked that they only decide, as already said, that where a defendant resides in a neighboring State, and his residence is known, that the maxim of Contra nonvalemtcm agere non currit prcescriptio does not apply.. The point is, also, decided in the same way, in Canal Bank v. Beard, 16 A. 346; 14 A. 418; 15 A. 399.

The point decided, therefore, is in perfect harmony with the other decisions of this Court. It is only what was said arguendo, which is in conflict with tho decisions, and has been overruled. What was said in Hatch v. Gilmore, adverse to the maxim, was overruled in the subsequent case of Boyle v. Mann, 4 A. 170, and what was said in Suydam v. Kinney, 9 A. 316, was overruled in Martin v. Jennings, 10 A. 553. Here, then,' we find a uniform current of decisions applied as well to promissory notes as to other obligations, and depending upon the same principles.

Surely, an argument, casually used by one Judge, and repeated by another, ought not to be permitted to overturn well-settled decisions of the Court; especially where that argument is only partial in its view, and does not grasp the whole subject, and arrive at the true reason of the rule.

Promissory notes were made prescriptible against minors and interdicted persons, because to tie them up for twenty-five or twenty-six years in favor of minors, or forty, fifty or sixty years in favor of interdicted persons, would destroy the efficiency of the same. For the advantage of trade, and for the benefit of the bill of exchange, or promissory note itself, it was made to run against tutors and curators of minors, and it is because the prescription of five years is a short prescription, that the-maxim is proper to be invoked in a case like the present.

We present to the Court, in conclusion, these facts, which we contend have suspended prescription; and according to the uniform current of onr decisions require the deduction of the time, in which no suit could bo brought, from the five years, viz:

The conceded fact that during two years and six months the courts were barred to the plaintiff and all others, and no suit could be brought; that plaintiff himself could not apply for, nor take out, letters of administration on the estate of the deceased; and that the suit was brought as soon as the administrator was qualified. And the fact to be inferred from the cause of the war, that plaintiff was barred by the blockade and military operations, of which this Court takes judicial notice, from going to the parish of Pointe Coupee during the war, to institute the action.

We, therefore, respectfully pray that a rehearing be granted the plaintiff, and for leave to adduce further authorities upon this important question, and general relief.

Rehearing refused.


author: Howedd, J".

text:
    No. 1545.
    John C. Stewart v. Martin Betzer.
    Wo appeal lies from a confession of judgment. C. P. 567.
    Where the answer of defendant admits a certain amount to he due, and judgment is rendered thereon, an appeal from such judgment will be dismissed on motion.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      Collens & Wooldridge, for plaintiff.

      Hunt and Houillion, for defendant,
   Howedd, J".

A motion is maclo to dismiss the appeal in this case on the ground that the judgment appealed from was rendered upon the confession of the defendant.

Suit was instituted on a building contract, for a balance alleged to be due. The answer admitted an indebtedness for a much smaller sum, and contested the plaintiff’s right to recover any greater amount. On motion, judgment was rendered for the sum admitted, without prejudice to the right to recover the remainder, from which defendant appealed.

The proceeding was regular, and the judgment was clearly based on the admission of the defendant, from which, under article 567 C. P., ho cannot appeal. Any admission of the claim, which leaves no issue to be tried in regard thereto, is a confession of judgment. 5R. 447; 9L. 415; 4 R. 44; 4 A. 407; 11 A. 740.

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


author: Howedd, J.

text:
    No. 1612.
    J. O. Pickens v. Zenas Preston.
    Where the evidence shows that the consideration, for which a promissory note was executed, was Confederate treasury notes, payment of such note cannot be judicially enforced.
    A bill of exceptions taken to the admission of testimony should state the ground of objections, otherwise it cannot be noticed, as the Court cannot supply it.
    APPESL from the District Court, Parish of Tensas, Farrar, J.

      Aroni & Collier, for plaintiff and appellant.

      Farrar & Reeves, for defendant and appellee.
   Howedd, J.

This is a suit on a promissory note, by the payee against the maker, the defence to which is that said note was executed to represent the balance due on a purchase of sugar and molasses made for Confederate funds, and that it was expressly agreed that its amount should be paid at maturity in such funds.

Plaintiff put the defendant on the stand, as a witness, to prove the consideration of the note, and excepted to his testifying further to the agreement as to the currency in which it was to be paid. The bill of exceptions is deficient iü not stating the ground of the objection, and we cannot supply it.

The defence is established by the testimony, and the judgment must be affirmed. Judgment affirmed.

Rehearing refused.