text:
    No. 1651.
    George Ingram v. Police Jury of the Parish of St. Tammany et als.
    Where tho evidenoe shows that a river has been navigated by steamboats for a considerable length of time it will be considered as a public highway, and the plea of prescription will not, avail iu lavor of those seeking to obstruct th& navigation.
    The police jury of a parish may be prohibited by a writ of injunction from building bridges across navigable rivers running through the parish so as to obstruct the free navigation thereof.
    APPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Penn & Thompson, for plaintiff and appellant.

      Alfred Tlennen, for defendant and appellee.

      Brief of plaintiff and, appellant.

    * * * We think that we have clearly made out our case, and established the fact that the river Bogue Palia is navigable as alleged in plaintiffs petition, and by reference to the transcript it will appear that after plaintiff closed his testimony, the defendants were of the same opinion; for it was then that they filed the plea of prescription, thus tacitly admitting that our right originally existed, and resting their defence on the strange grounds that by-an uninterrupted violation of the law for several years they have acquired a right to persevere in their wrong-doing.
    We know that this court is usually loth to reverse the decision of a jury, trusting much to the correctness of their opinion, from the fact that they are able to judge of the credibility of the testimony, from personal knowledge and observation of the witnesses, but we hope there will be no such feeling on the part of the Court in this case, where the verdict of the jury is so contrary to the law and evidence, and that the Court will bear in mind the fact, that the jury knew, (and it certainly was constantly kept before them by the defendant’s counsel during the. trial,) that in deciding against the defendants in this case, they would be condemning themselves to pay costs of suit, and of erecting a proper bridge, as the Police Jury would levy a tax for this purpose, to which each inhabitant of the parish would be subject. The plaintiff does not wish to obstruct the public travel across the river, at the point in contest; he only asks that it be so arranged as to not interfere with his rights as a citizen to navigate the river. This can be easily done by constructing a drawbridge or floating bridge, such as is usually thrown over navigable streams. Although there is hut one plaintiff in this action, the rights of many persons living on the banks of the river between the town of Covington and the residence of plaintiff are interested in the decision of this case. To establish the navigation of the stream is a matter of great importance to all living above the point where the bridge has usually existed, as it will most certainly increase the value of all property situated above said point,
   Labauve, J.

This is an injunction suit brought by George Ingram, a resident of the parish of St. Tammany, who alleges that h'e has his residence and place of business on the hank of the Bogue Palia river, about one mile north of.the town of Covington in the said parish; that he is engaged in manufacturing brick for sale, and in shipping thorn down said river to the city of New Orleans. That said river is navigable up to said'point, and even beyond for ordinary vessels, flats and small size steamboats usually navigating Lake Pontchartrain, and is by the laws of the land a common highway. That said river being obstructed from the point leading from the corporation line of said town of Covington, and its free navigation being prevented thereby, said obstructions were removed in order that petitioner might exercise lvs right to navigate said stream.' That he believes and fears that the Police Jury of the parish of St, Tammany, through its officers and employés, are in the act of constructing across said river, at said point, a low bridge, which, if completed, will prevent the navigation of said river. ' That he entertains said fear from the fact that they have ordered the overseer of the road crossing the river at said point to construct said bridge. That if said bridge is erected, it will damage petitioner ip the sum of at least three, thousand dollars. That the acts of said Police Jury are illegal, and that an injunction is necessary to protect petitioner’s rights. Prays that said parties be enjoined from constructing said bridge, or obstructing the navigation of said river. The clerk issued an injunction in accordance with the prayer of petitioner.

Tlie defendants, in their answer, deny all the allegations contained in plaintiff's petition, and pray for a trial by jury. The defendants plead prescription of ten, twenty and thirty years. ,

The jury found a verdict in favor of the defendants, and the Court gave judgment accordingly, dissolving the injunction provisionally granted, at the costs of the plaintiff, who appealed.

It appears that there was formerly a bridge on the bayou or river in question, at the place mentioned in the petition, and that the defendants were about to reconstruct the same when they were enjoined from rebuilding it. That the ruins of the bridge in controversy, are about ten feet scant above the water, and that the bridge would form an obstruction to the navigation of the stream for boats and vessels of ordinary class, which could not pass at all.

If this bayou or river be navigable, the defendants have no right to build the contemplated bridge, unless it be erected on such a plan that it will not obstruct the free navigation of said river.

Captain John Thompson, testified:

“He is captain of the steamer Aurora, running from the Sulphur Snring to New Orleans, carrying bricks: The Sulphur Spring is oh the Bayou Ealia river in the parish of St. Tammany. This Steamer runs above that point and place to the brick-yard of plaintiff. The Aurora carries 20,000 bricks; her tonnage is forty-five tons registered; where the brick-yard is, the channel is about twenty feet wide in low-water, and about thirty feet in high-water; the. draft of this boat is four feet, loaded;, he has been running this boat a month and has made regular trips from the brick* ■yard to the Basin in New Orleans; from his knowledge of this river, it is navigable between the two points mentioned for vessels and small sise steamers that usually navigate Lake Ponchartrain; the br cks are manufactured for a company in New Orleans and Mr. Ingram is the foreman. Witness had already made in October, 1867, three trips, and was on his fourth; had carried between 17,000 and 18,000 bricks in low-water; there is ebb and flow in the river up to the brick-yard; generally twice a day ebb and flow; the length of the Aurora is ninety feet, breadth fourteen feet three inches.”

It appears from the testimony of other witnesses, that this Bayou Ealia lias often gone over the badge, which was carried away; that at the place of the hi'úlge, the watevs of the Bayou Ealia have risen from, lowwaier-mark, to about twenty feet perpendicular in a freshet. This Bayou Falia empties into the Tohei'unota river, and the latter into Lake Ponchartrain.

The residence of plaintiff is about a mile by land from the town of Covington in St. Tammany parish.

Upon the whole, we are of opinion that this river Falia is navigable in the intendment of the law, and that no plea of prescription can avail in such a case as this, involving a thing hors de commerce and a public right. 3 N. S. 650; 18 L. 272.

It is therefore ordered and decreed that the verdict of the jury he set aside, and the judgment rendered thereupon be annulled and avoided. It is futher ordered and decreed that the injunction be made perpetual, without prejudice to the defendants’ rights to build and erect such a bridge that will not obstruct the free navigation of said river Falia; the defendants and appellees to pay costs in both courts.


source: Caselaw Access Project

author: LabauvE, J.

license: Public Domain

text:
    No. 1708.
    Succession of Robert J. Banton.
    Where the evidence shows that justice has been done by the Judge a gao, the judgmentwill not be disturbed on appeal.
    APPEAL from the District Court, Parish of East Feliciana, Posey, J.

      MoVea & Hunter, for W. J. Banton.

      Gross & Hardee, forS. Decker, executor.
   LabauvE, J.

The executor having filed a final account of his administration, the same was opposed by divers creditors, and the Court having restrained in part said oppositions, an appeal was taken.

We have examined the case, and we believe the judgment of the Court a qua, has done justice between the parties.

Judgment affirmed, at the costs of the appellant.


author: Howerr, J.

text:
    No. 1029.
    Wm. R. Crane, Executor, v. Jules Benit et als.
    Where the certificate of notice of protest p£ a nromissory note does not show that the endorser was notified, and there is no obher evidonce fixing his liability, be will be discharged.
    APPEAL from the Sixth District Court of New Orleans, Puplantier, J.

      Durant & Hornor, for plaintiff and appellee.

      A, & M. Vourhies, for defendants and appellants.
   Howerr, J.

P. S. Sanchez has appealed from a judgment against him as an endorser of a promissory note. He complains that he has been condemned without sufficient evidence to fix his liability, and denies expressly that notice of protest was ever served on him.

On the trial, the only evidence adduced against him was the note and the protest on file; the certificate of notice of protest was not offered, arid we find in the record no proof of notice to appellant to sustain the judgment against him.

It is therefore ordered that the judgment against P. S. Sanchez, the appellant, be reversed, and tiiat there be judgment in Jus luvor, and against the plaintiff, as of nonsuit, with costs in both courts.


author: Howedd, J.

text:
    No. 1554.
    P. Moriere v. Robinson & Jones & Wm. Golding.
    Where the appellant allows three judicial days to elapse after the return-day, before filing the transcript in the Supreme Court, the appeal will be dismissed on motion of the appellee, ' ' '
    Appeal from the Third District Court of New Orleans, Fettowes, J.

      G. Dufour, for plaintiff and appellee.

      Wm. 3. Muni, for Golding, defendant and appellant.
   Howedd, J.

This appeal was returned on the second Monday, 13th day of January, 1868, and the transcript was not filed until the 22d day of said month, more than three judicial days having expired.

The appellee has filed a motion to dismiss the appeal on said ground, and the appellant replies that the motion is too late, not having been filed within the three days after the return-day. Since the ruling in the1 case of Dwight v. McMillen (4 A. 350,) it has been the practice to dismiss appeals on this ground, without reference to the delay in filing the motion, provided the appellee has not waived his right by making appearance. The present bench has had occasion more than once to apply this rule of pratice, and we see no good reason in this case for departing from it. See 10 A. 75.

The want of citation in the case of Dwight v. McMillen was one of two causes, either of which was sufficient for the decision.

The appellee is not bound after the three days to know that the, transcript has been filed, unless the return-day is extended.

It is therefore ordered that this appeal he dimissed at appellant’s costs.


author: Howedd, J. Howeee, J.

text:
    No. 1141.
    Wm. M. Surls v. John Hienn and Wife.
    The husband, being the head and master of the community, can alone be bound forthe debts of tna partnerbiiip.
    tTo recover against a raarrried woman it must be alleged and proved that the debt was contracted for, and enured to, her separate and individual benefit.
    Appeal from the Fifth District Court of New Orleans, Beaumont, J.

      B. Egan, for plaintiff and appellee.

      M. Grivot, for defendants and appellants.
   Howedd, J.

The defendants are sued as owners of the steamboat Frolic, for $1,300, the balance of an amount advanced by plaiutiff, for ihe purpose of paying certain charges on the cargo of said boat, and evidenced by a check on a bank in favor of John Hienn, one of the defendants. ' '

An answer was filed by counsel in the name of both defendants, admitting that the money was advanced, but averring that to reimburse the same certain freight-bills, amounting to $4,000 were placed in his hands by defendants, and that he collected $1,250 thereof, for which, or any part of said bills, he refuses to account to them; ''

Judgment was rendered against the defendants in solido for the amoiint claimed, and they have appealed.

The plaintiff was put on the stand to make out the defence, but his testimony disproves it, and sustains the correctness of his own claim. '

It is successfully urged, however, that the pleadings and evidence do not make the wife responsible. There is no allegation nor proof that she was separate in property, or that the money advanced enured to her separate benefit, or that of her separate property or business.

The law presumes the debt to be a community debt, for which the husband alone, as the head of the community, can be held responsible. For a community debt, the plaintiff cannot obtain j adgment against both the community, and the wife. To recover against a married woman, it must be alleged and proved that the debt is her separate debt.

It is therefore ordered that the judgment of the lower court, against Mrs. Mary Hienn, be reversed, and that there be judgment in her favor, with costs in both courts.

On Application por a Rehearing.

Howeee, J.

An application for a rehearing has been made in order to dispose of the judgment as to John Hienn, who was omitted in our decree. We think it unnecessary to grant a rehearing for such a purpose, as the appeal as to him is still before us, and we can legally dispose of it, by a supplemental decree.

We consider the judgment of the lower court against him correct, for the reason assigned in our former opinion herein.

It is therefore ordered that the judgment of the District Court against John Hienn, defendant, be affirmed, with costs.

Rehearing refused!


author: Ilsley, J.

text:
    No. 1126.
    L. Theo. Moreau v. Paul Dumagene.
    A mandate is gratuitous, unless a oontrary stipulation has been made; and no compensation is allowed unless it appear from the terms of the mandate that a charge was to be made Where the principal, having his agent in his employ atafixed rate, imposes upon him additional duties, and e ilarges his powers, without stipu atmg that he is to receive additional compensation, the agent or mandatary cannot recover any extra wages for the additional services.
    Appeal from the Sixth District Court of' New Orleans, Duplaniier, J.

      J. L. Tissot, for plaintiff and appellee.

      L. Caster a and Boselius S

      Philips., for defendant and appellant.
   Ilsley, J.

The plaintiff sues to recover from the defendant tne sum of three thousand four hundred and eighty dollars, the proceeds of sale of twenty-nine shares of the stock of the New Orleans Railroad Company, sold, by the defendant, as the plaintiff’s agent, and which proceeds he retains and refuses to pay over.

The answer is a general denial. The sale of the plaintiff’s stock is admitted; but, it was made, as the defendant avers, in order to secure his rights and claims against the plaintiff for services rendered as his agent, computed by defendant to be worth four thousand and five dollars, ox five per cent, upon the amount of sales made in the plaintiff’s two simps, superintended by him, the defendant, as clerk, invested with the plaintiff’s power of attorney, from the 1st September, 1862, to the 4th March, 1805.

The facts disclosed by the testimony are the receipt and detention by the defendant, of the proceeds of the stock, which the defendant also admits; that on the 30th of August, 1859, the defendant and Charles Testard, two of the old clerks of the plaintiff, then and now a resident of Paris, in Prance, were constituted by him as his agents, jointly or separately, to transact his commercial business in New Orleans, which they undertook and transacted without any compensation or remuneration beyond the fixed salaries, which each of them received as clerks.

Sometime in the year 1862, the plaintiff, in order.,to facilitate his money transactions between New Orleans and Paris, proposed the agency to a house in New Orleans, who declined it; when, on the 18th January, 1863, the plaintiff executed a procuration in the name of the defendant, having a short time previously revoked the power to Mr. Testard. Under this procuration to the defendant, which conferred on him some additional' powers, authorizing him to transfer all sorts of stocks, obligations, claims, etc., he continued to act until he was superseded by H. Damien, also a •Jerk in the plaintiff’s employment.

The reconventional demand, which includes the plea of compensation per tmde, is for the services rendered by the defendant, as the plaintiff’s' sole mandatary, from the 1st September, 1862, the time at which Testard’s power was revoked, until the 4th of March, 1865, when H. Damien was appointed in his stead.

The principles of law by which such cases as this are governed, are well and definitely established by our jurisprudence.

The correct doctrine, we hold to be that taught in Decour’s Heirs v. Plantagues, 10 La. 508; Elkin’s Heirs v. Elkin’s Executors, 11 La. 226, and Succession of John Rex, 14 An. 317, and Maunsel White v. C. Jones, ib. 681; it is “ that amandate is gratuitous, unless there has been a contrary stipulation; this need not be expressed but may be implied,” and compensation for services shall not be allowed when it does not appear to have been in the contemplation of either party that a charge was to be made.'

In the case of the Navigation Company v. Collens, 12 A., p. 120, the rule laid down in our Code in Article 2960, as expounded by this Court, is fully recognized, but the Court observes, “although the language of the law is comprehensive, and almost positive in its terms, many cases have been recognized in our jurisprudence as constituting exceptions to the rule, such, for instance, as those in which the mandatary’s services are rendered in the course of an employment or profession where it is customary to make charges for such services. Thus, lawyers, brokers, commission ■ merchants, land agents, etc., though mandataries, are not presumed, even in the absence of any specific agreement for compensation, to render their services gratuitously. Also, where (as in the Succession of Fowler, - 12 A. 211) there is an understanding between the parties that the services of the mandatary shall be remunerated, he might recover the value of his - services.” If, as the Court properly observes, “the Article of the Code is' to be so construed as to have any practical application, it is evident that a mandatary seeking compensation for services rendered in his capacity as such, must bring his claim within the scope of some exception to the general rule that the contract is gratuitous, and must show that his demand is made under circumstances from which it must be inferred that compensation for his services was in contemplation of both parties at the time the mandate was conferred. To recapitulate, he must show—

1. That there is a special agreement, or that it was in contemplation of both parties, at the time the mandate is conferred on him, that a charge is to'be made.

2. That the services rendered by, and for which remuneration is claimed by a mandatary, are in the course of an employment or profession, where it is customary to make charges for-such services. .

3. That the relations of the principal and agent are such as to justify the conclusion that there is an understanding between them, that the services will be remunerated.

We are satisfied from a perusal of the testimony in this case, that when the defendant was constituted the sole agent of the plaintiff, neither the one nor the other contemplated a charge for the services to be rendered by the former, who had just previously performed nearly the same services gratuitously, and who, it does not appear during his agency, in his accounts or on the books under his control, had ever made any charge whatever, except his regular salary of seventy dollars a month, and his board, at forty dollars per month. This is significant; besides, had he expected a recompense when assuming the sole agency, is it not a reasonable supposition that he would have notified or given some intimation to his principal, that he could not accept the mandate gratuitously, as he had previously done, but would require some recompense beyond his fixed salary, to perform the duties which would devolve on him, and was not his silence enough to impress his principal with the belief that the agency would be, as it had theretofore been, gratuitous?

If the defendant relied upon a custom that clerks, holding powers of attorney for their employers, who reside abroad, are to be remunerated for the services rendered by them, as agents, beyond their fixed salaries, and without special agreements, it devolved upon him, the case being exceptional, to show it, which he has failed to do.

Pardessus, vol. 2, Nos. 531, 533, speaking of the class of persons to which the defendant belongs, says: “Léspére de services que rendent ces personnes exige qu’elles soient dans certains cas depositaires de la cohfiance de leur patron, et considérés comme ses mandataires. Un commis en louant ses services est censé les avoir promis dans tout leur étendne, il ne pourrait agir pour son compte qu’en negligeant le travail qui lui est confié.” See Troplong Mandat, No. 236; G-ouyot and Mayor, Droit Commercial, vol. 2, p ; Encylopédie du Droit, vol. 4, p. 590.

The language used by the Court, in the matter of the Fowler Succession, 7 A. 209, expresses clearly what was deemed by it such an understanding in regard to services rendered by an agent, as to entitle him to remuneration therefor.

“ We do firmly,” say the the Court, believe from their relations and the evidence, that the one intended and the other expected ihat, if their relations terminated, a very liberal reward would be made for those services. ”

■ The evidence in the case before us, has convinced us that no such implied contract can be inferred, either from the nature of the employment or the relation of the parties, between whom no such intention and expectation were ever formed or entertained.

We need’not consider the questions, whether the services rendered by the agent were troublesome, or what the plaintiff’s losses were during the agency, all we have to determine is, whether the defendant has brought his-case within the rule of law, or of some recognized or valid, legal exception thereto, which entitles him to relief, and this we think he has failed to do.

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


author: Ilslev, 3.

text:
    No. 1106.
    Succession of J. J. Michel.
    A sale of property by an auctioneer,, under an order of court, which, prior to the day of sale* hab become inoperative, is a nullity, and the purchaser is not bound to comply with his bid.
    Appeal from the Second District Court of New Orleans, Thomas, J.

      Lacey & Marks, and F. Haynes, for appellants.

      Frank W. Burthe, for appellee.
   Ilslev, 3.

At a sale of the property found in the Succession of J. J. Michel, made in the city of New Orleans, on the 13th October, 1866, by N. J. Hoey, an auctioneer, and purporting to be in virtue of an order of the Second District Court of New Orleans, dated 11th July, 1866, certain lots of ground were adjudicated to Edward H i.yden and E. J. Leeke, separate purchasers, for the prices respectively stated in the procés-verbal of sale. These purchasers, having refused to pay the cash instalments, and to furnish notes in accordance with the terms of the sale, a rule was taken upon each of them to show cause why they should not do so.

They severally set up informalities and irregularities in the sales, which, as they alleged, rendered them null and void; and, as we deem one ground relied on fatal, it is needless to examine the others, which indeed if grounds of nullity, preceding the sales, would not have affected the purchasers. Hebrard’s Succession, 18 An. 485.

It seems that an order for the sale of the property had been rendered on the 11th July, 1866, but on the 5th October, 1866, several days previous to the sale, a new order of court made contradictorily between a creditor and the tutrix, who had obtained the first order, had suspended the sale until she should take out letters of administration, and furnish bond and security for the sum of $3,500, which she failed to do.

It is evident, then, that when the auctioneer proceeded to adjudicate the property, under the last order, he acted without authority, as the order of court under which he sold was not then legally operative. 2 La. Rep. 328. 11 La. Rep. 156.

Under the circumstances stated, the sale being a nullity, the purchasers thereat were not legally bound to comply with the terms of sale, (9 A. 232,) and the judgment of the lower court ordering them to do so, must be reversed.

It fs therefore ordered, adjudged and decreed that the judgment of the District Court, on the rule dated 19th October, 1866, be annulled, avoided and reversed. It is further ordered, adjudged and decreed that the said rule be dismissed, the costs thereof in both courts to be paid by the plaintiff and appellee,


author: Labaeve, J.

text:
    No. 1658.
    Eliza Lapice v. James P. Bowman et als.
    A promissory note endorsed in blank, held by the widow of her deceased husband, is presumed to be held as community properly, and is subject to all the equities existing between the original parties. . ■ ' . "
    Where the evidence shows that the consideration of a promissory note was the price of an African slave, payment thereof cannot be judicially enforced.
    The doctrine in the case of Wainxoright v. Bridges, (19 An. 234) reaffirmed.
    APPESL from the District Court, Parish of West Feliciana, Cooley, J.

      Collins & Leake, for plaintiff and appellee.

      W. D. Winter, for defendants and appellants.
   Labaeve, J.

This suit is brought on notes given in part payment and consideration of slaves sold by .the plaintiff’s husband, Joseph F. Lapice, now deceased, to said defendant, James P. Bowman, by act of sale passed on tbe 4th January, 1860.

The defence is, that the said slaves were sold, and warranted slaves for life, and that they have been emancipated by the government of the United States.

The act of sale shows that the notes were signed by said James P. Bowman, the purchaser, as principal, and by Daniel Turnbull, as surety, in solido,, to their order and by them endorsed in blank; that the plaintiff, then wife of the vendor, now Ms widow, as by her declared in the petition, appeared in the act, and renounced her rights in the usual form.

The plaintiff sues as holder of said notes, so endorsed in blank, and delivered to the vendor.

The plaintiff, being the widow of the deceased vendor, is presumed to hold said notes for the community, and the succession of her said deceased husband, and the defence herein made must prevail against her in the same manner as if the suit were brought by the vendor or any one as bis representative.

This case presents the same facts and questions as in the ease of Wainwright v. Bridges, 19 A., p. 234, and others since, and the plaintiff cannot recover.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided. It is further ordered aud decreed, that judgment be rendered in favor of defendants, and that plaintiff and appellee pay costs in both courts.


author: Hyman, C. J.

text:
    No. 1664.
    William Wells v. Hiram Turnage.
    Where the certificate of the clerk of the District Court, shows that the reoord of appeal contains everything essential to a full examination of the case in the appellate court, the appeal will nob be dismissed.
    Where the District Judge renders judgment in favor of defendant for a fixed amount, with costs, and the Supreme Court reverses that judgment, and gives judgment for a smaller amount, the defendant and appellee must pay ths costs of appeal.
    Appeal from the District Court, Parish of Livingston, Ellis, J.

      Marr & Fouie, and Wilson <& Bradley, for plaintiff and appellant.

      Duncan & Davidson, for defendant and appellee.
   Hyman, C. J.

A motion is made to dismiss the appeal, because of the clerk’s defective certificate to the transcript of. appeal, appellee contending that it is insufficient.

The clerk certified, at the close of the transcript, “ that the foregoing pages contained a true and correct transcript of all the1 proceedings had, as well as of all the documents filed, all the minutes of the court, and all the evidence adduced by the parties, except the note of evidence taken on a former trial.”

We understand that part of the clerk’s certificate, " except the note of evidence taken on a former trial,” to mean except the evidence taken on a former trial.

The proceedings of the Court show that the former trial was on the merits.

We think the certificate is sufficient, for the reason that it shows that we have before us all that can be examined by us of the proceedings of • the lower court, and of the evidence taken therein.

It would have been useless to copy evidence taken at a former trial, as we could not examine it, not having been offered and received in the second trial. Defendant, sued on his note by plaintiff, pleaded various items of payment, averred that he had more than paid the note, and for the excess, $24 75, asked judgment against plaintiff.

The case was tried by a jury, and the Judge, pursuant to their verdict, rendered judgment in favor of defendant for $24 75, less one month’s interest, at five per cent., on defendant’s note. From the judgment plaintiff appealed.

Defendant’s note is for $850, and there being no stipulation for interest, it bore five per cent, interest from the time it was due, the 5th March, 1864.

It is proved that defendant had claims amounting to $160 75 against plaintiff, when the note was due, which bore interest of like rate with it, and that plaintiff agreed that that sum should be credited on it.

The other items set up by defendant, as payments, are fully proved, and there is satisfactory evidence that, by agreement between plaintiff and defendant they were to be payments on the note; but the evidence is not clear when some of the payments were made, though it appears that all were made in the year 1864.

We are satisfied from the evidence, that defendant had paid on the 31st August, 1864, $585, and on the 31st December, 1864, $125.

By calculating the interest on the note, it will be found that defendant paid plaintiff $‘2 02 more than he owed him.

This is evidently a vexatious suit on the part of plaintiff, and it is with regret that we have to reverse the judgment, and thereby cause defendant to pay the costs of appeal.

Let the motion to dismiss the appeal be overruled. Let the judgment of the District Court be annulled and reversed, and let there be judgment in favor of defendant and against plaintiff for two dollars and two cents; plaintiff to pay the costs of suit in the lower court, those of appeal to be borne by defendant.


text:
    No. 1661.
    J. J. Mortee, Provisional Administrator, v. A. J. Edwards.
    Where a party obtains an order of appeal in open court, and fails to file his bond and take up his appeal within the time fixed in ihe order, but takes it up afterwards, he will not bo considered as having abandoned his appeal, nor will he be precludedfrom obtaining a second order under ■which he may prosecute the appeal.
    A promissory note, falling due on the happening of an event, is not a conditional obligation.
    The objection that a promissory note has not the requisite United States internal revenue s amp thereon, must be made at the time the note is offered in evidence in the lower court, otherwise it will not be noticed.
    Appeal from the District Court, Parish of St. Tammany, Ellis, J.

      Henry Avery, for plaintiff and appellant.

      H. J. Ellis, for defendant and appellee.
   Hyman, C. J.

A judgment was rendered in this case at the May term of said court, 1866.

At that term, by motion in open court, an order of appeal was granted allowing plaintiff to take a devolutive appeal from the judgment, returnable to this court on the fourth Monday of February, 1867, on his giving bond of appeal, with security, for the sum of $150, conditioned according to law. No transcript was filed in this court under this order for appeal. The appeal bond was not given by plaintiff until 4th April, 1867.

By petition, plaintiff on 29th April, 1867, obtained another order granting him an appeal from the judgment. He complied with'the terms' of this last order by giving bond and security, by citing defendant and by filing the transcript of appeal in this court at the time the appeal was made returnable.

Defendant, the appellee, has filed a motion to dismiss the appeal, because, as he contends, the plaintiff has lost the right to appeal by not prosecuting the appeal under the first order for appeal.

When the appeal bond is given, and citation of appeal served on the appellee, if the order of appeal be obtained by petition, the party asking for appeal must prosecute it, or he will be considered as having abandoned the right to appeal, and will be deprived of this right. See Code of Practice, Arts.- 581, 594 and 595.

When an order for appeal is granted, on motion in open court, as no citation is required to be served on the appellee, the appeal bond, when given, serves both for bond and citation, and the party who has obtained an order for appeal, on motion, is not considered to have abandoned the-right to appeal, nor has h1 lost this right until he has given bond under the order, and thereafter neglected to file the transcript in the appellate court in conformity with the order.

The bond given on 4th April, 1867, being given after the return-day for bringing up the appeal, on the first order for appeal, had not effect as an appeal bond, for the time for appealing under the order had passed. Therefore, plaintiff did.not lose the right to obtain a second order for appeal, and to bring up the transcript under that order.

Plaintiff sued, defendant o.n his note, made on 26th August, 1864, wherein he promised to pay to James Bowie or to his order, thirty days after peace between the Confederate States and the United States, four hundred dollars, with eight per centum per annum interest from its date,

Defendant, in answer, admitted his signature to the note, and set up the special defence, that by agreement he was not to pay the note on a certain contingency.

No evidence was adduced by defendant, as to the agreement alleged by him.

In this court, defendant contends “that the note was based upoh a condition of a thing impossible as well as illegal and immoral.” .. ,;

The payment of the note did not depend on a condition.

A term was given for its payment. A term may not only consist of a lapse of time but also of an event, and hostilities between the rebels and the government of the United States, could not but have ceased in* the course of time. C. C. 2043 and 2044.

If the demand of the plaintiff was prematuie, the defence for that cause should have been by exception in limine lilis; it cannot avail after answer. See 17 An. Rep. 232.

Defendant contends that there was no stamp on the note sued on. No objection was made to the reception in evidence of the note on that ground, and we will not presume that the note was unstamped. See 19 An. Rep. 180.

Defendant has asked us to examine a statement made by the District Judge, that the note was not stamped, and also a piece of paper, which he contends is the note sued on. Our guide to ascertain facts in a case is the certificate of the clerk as to the evidence adduced, or a statement of facts made out in the manner required by law. Beyond this guide* we do not go. See Code of Practice, 896.

Let the judgment of the District Court be annulled and reversed, and let the plaintiff recover of defendant the sum of four hundred dollars, with interest thereon, at the rate of eight per cent, per annum, from 26th day of August, 1864, till paid, and the costs of this suit.


text:
    No. 1640.
    E. A. Yorke v. Ed. Allen.
    Wherp the evidence leaves the right of plaintiff in doubt, the Court, in the exercise of a sound discretion, should render a judgment of nonsuit.
    The law does not require the Judge a quo to randera judgment of nonsuit on motion of plaintiff.
    Appeal from District Court, Parish of East Baton Rouge, Posey, J.

      Emmet D. Craig, for plaintiff and appellant,

      Burgess & Chaney, for defendant and appellee.
   Hyman, C. J.

This suit is instituted on a draft, as follows:

“New Orleans, May 6th, 1865.”

“ A. Bbahn, Esq.:

Please pay to Edward A. Yorke or order the sum of two thousand dollars and charge the same to my account. Edward Allen. ”, •

There is proof that it was presented for payment on 13th July, 1865, when it was protested for non-payment, and notice of its dishonor given to defendant.

As the draft was not put in circulation, diligence has not been used in making demand on the drawee for its payment, but it does not. follow, that because of laches iu not presenting the.draft, that defendant is not bound to pay it.

Defendant might not have had any arrangement with the drawee to accept the draft, or dealings with him, and might have had no funds or expectation of funds with him. If so, defendant would be bound to pay the draft, notwithstanding the neglect in presenting it for payment.

The judgment appealed is m favor of defendant. We think it should have b.een one of nonsuit as against plaintiff. He should not have been concluded by the judgment.

... Plaintiff has called our attention to the ruling of the court, in his petition for a judgment of nonsuit. The Judge having overruled his motion..

, There is no law requiring the Judge to render a judgment of nonsuit on motion of the plaintiff. 6 Rob. Rep. 354.

Let the judgment of the District Court be annulled and reversed, and let there be judgment against plaintiff as of nonsuit. Let defendant pay costs of appeal.


author: Labauve, J.

text:
    No. 1652.
    Frank J. Haynes, for the use of another, v. W. T. Rogillio.
    Where suit is brought on a written contract to enforce the delivery of cotton alleged to have been bought and paid for, parol evidence is admissible to show that the payment alleged to have been ma ie was in Confederate treasury notes.
    Appeal from the District Court, Parish of West Feliciana, Cooley, J.

      S. J. Powell, for plaintiff and appellee.

      Collins & Leake, for defendant and appellant.
   Labauve, J.

The petition alleges, in substance, that on the 20th August, 1863, the defendant sold to plaintiff 1760 pounds of .cotton for the price of $352, paid on said day, and said cotton was to be held by said vendor subject to petitioner’s order; that said cotton is well worth $550; that said defendant has ■ failed and refused to deliver the same or any part thereof.

The petition concludes by praying that said defendant be decreed to deliver to petitioner the said 1760 pounds of cotton, and on his failure to do so, that he be decreed to pay $550, with interest.

The defendant pleaded the general issue, and that the $352 alleged to have been paid for said cotton was paid in Confederate money, which was worthless; that said cotton was stolen by one Yankee Jew, who after-wards paid the said Frank J. Haynes, with a fine gray horse, etc.

On the trial of the cause, defendant offered witnesses to prove that the consideration of the obligation sued upon was Confederate money; plaintiff objected to the testimony on the ground'that, as the.obligation sued upon calls for dollars and cents, it could not be shown that it was to be paid in other than-currency of the United States. The objections being sustained and the testimony rejected, the ruling of the Court was excepted to.

This bill of exceptions is very inaccurately drawn, as the document 'sued upon is not an obi.gat.on to pay money, but to deliver cotton which is alleged to have been paid for, and which defendant offered to provo' was paid in Confederate money. We are of opinion that the Court erred in rejecting the testimony offered to show that this cotton was paid for in Confederate money; for it is clear that this sale of cotton has not been-executed by delivery to the purchaser, and that we are now called upon to compel the vendor to execute it by delivering it; and, if it has been, paid as alleged, and offered to be proved, plaintiff’s demand cannot stand in court, inasmuch as we cannot enforce the contract. The case must be-remanded to receive the proof offered and rejected.

It is therefore ordered and decreed that the judgment appealed from be annulled and'reversed. It is further ordered and decreed, that the ease be remanded to be proceeded with according to law, with instruction to the Judge to admit parol evidence, or other legal proof, going to show that the cotton referred to in the receipt was paid for, as alleged in the answer, and that the appellee pay costs of appeal.


author: Howell, J.

text:
    No. 1706.
    State of Louisiana, ex rel., J. B. Michond v. The Judge of the Fourth District Court of New Orleans.
    Where It is manifest that the District Court is without jurisdiction, a writ of prohibition may issue from the Supreme Court restraining the Judge from acting in the cause.
    Where the allegation in the petition show aprima facie case of jurisdiction, the Supreme Court will nob issue a writ of prohibition on application of the defendant that the court is without jurisdiction.
    VRIT OF PROHIBITION.

      J. Ad. Rozier and P. Soldé & Charvet, for plaintiffs.

      E. O. Quillet, for defendant.
   Howell, J.

The relator, J. B. Michond, avers that the Judge of the Fourth District Court of New Orleans has exceeded his jurisdiction in taking cognizance of a suit instituted against him, as universal legatee of A. Michond, who died on 22d July, 1862, by D. J. Farrar and others, as holders and owners of a certain instrument under private signature,, executed and signed by said A. Michond, in the words and figures following, to-wit: ,

“Nouvelle Orléans, le 1st Juin, 1862,-

Bon pour dix mille piastres, payables cinq ans apres ma mort.

Mille piastres á D. J. Farrar.

Mille piastres a Leopold Guichard.

Trois mille piastres & mon bon ami, Joseph Girod.

Deux mille piastres a Camille Guiilet.

Deux mille piastres á NelvU Soulé.

Et mille piastres a la Société Francaise.

(Signed) Antonie Michond.”.

Which instrument, the relator avers, is on its face an olographic will, and that the said Fourth District Court is without jurisdiction, roPone materice¡ to probate and order the execution of the same; that by law the Second District Court of New Orleans is vested with jurisdiction of probate matters, where plaintiffs in said suit should have resorted to have said instrument probated and executed as a will; that he excepted to the jurisdiction of the said Fourth District Court, but his exception was overruled, and he w'as ordered to answer to the merits, and he prays for a writ of prohibition. In answer' to the writ, the Judge pleads a peremptory exception, that the writ of prohibition cannot be allowed in this case, as the relator has a remedy by appeal, and for answer says, that the suit is an ordinary action, -the allegations of the petition showing that the defendant therein is indebted to the petitioners in a certain sum of money, duo at a date cer ain, and evidenced by a private writing duly signed; that no allegation is made that the instrument sued on is entirely written, dated and signed by the testator; that he is not asked to probate a will; that the defendant may, in his defence, set up such matters as may defeat the action, or require a transfer of the cause to another tribunal; and that the defendant, having unconditionally accepted the succession of the deceased, it is unnecessary to probate the document sued on.

In our opinoin, where it clearly appears that a Judge is exceeding his jurisdiction, or is without jurisdiction, the writ of prohibition may issue to restrain him, and that the complaining defendant should not be required to await an expensive and vexatious litigation, in order to obtain relief by appeal. This writ is intended to protect a party from a usurped jurisdiction. C. P. 846. But in this instance, we do not think the nature of tho action against the relator is shown to be such as to require tire interposition of the writ. , The plaintiffs in the action have not applied to tho Fourth District Court to entertain a probate cause, and enforce legacies made to them; but they declare the defendant to be indebted to them, on what they present as a written acknowledgment of indebtedness, and we do not consider that we can, in this proceeding, properly determine whether the said document is a will or not, or that it is necessary to do so, in order to dispose of this application. It may be, that the plaintiffs will make out their case, and under the proper issues, show that the written instrument is the evidence of obligations assumed in their favor by the deceased, or that the defendant will be able to show that no causo or consideration ever existed. These are matters which belong to the merits of the action, and which cannot now be determined. Suffice it that a prima facie case of jurisdiction is presented.

We are.not prepared, with the pleadings before ns, to say that the instrument is, on its face, a will, although it may be shown to be. We do not think it is shown that the Fourth District Court is assuming to exercise strictly probate jurisdiction.

It is therefore ordered that the provisional writ issued herein be dissolved and that the relator’s application be refused, with costs.


author: Idsley, J.

text:
    No. 1255.
    Duncan N. Hennen v. Samuel H. Gilman—Edwin Gregory, Intervenor.
    A party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings, is bound by its effect.
    It is unnecessary to bring suit to annul that which, the law declares can have no eifeot.
    Contracts entered into between belligerent enemies are absolutely null.
    In the late civil war between the United States and the (so-called) Confederate States, every indivi. dual within the military lines of the one, was a belligerent with reference to the other, and a contract entered into between one partv, residing within the military lines of the United States, and the other, residing within the Confederate lines, is absolutely null and void.
    Appeal from tlie District Court, Parish of St. Helena, Ellis, J.

      D. H. Hennen, for plaintiff.

      W. Pipkin, Hunter & Davidson, and J. 8. Whitaker, for intervenor.
   Idsley, J.

The plaintiff, having attached certain property as belonging to the defendant, Edwin Gregory intervened in the attachment suit, claiming the property attached as his, by virtue of several bills of sale, executed by Samuel H. Gilman and wife. Hennen obtained judgment against Gilman upon his confession, for the sum of twenty-four hundred and eighty-five dollars and seventy cents, -with interest, at five per cent, from August 5th, 1865, with a reservation of all rights as attaching creditor, until the disposition of the intervention of Edwin Gregory, filed on the day on which this judgment was rendered.

The intervention of Gregory was maintained by a verdict of a jury, and a judgment of the court thereon, and the plaintiff has appealed therefrom.

The intervenor, a resident of the city of Ne-sv Orleans, charged in his petition that the property seized by Hennen by virtue of his attachment, which the intervenor described as being real, personal and mixed, referring particularly for details to the sheriff’s return on the writ of attachment, was, at the time of the said seizure, in his quiet and lawful possession, as bona fide and legal possessor and owner, having acquired the same by purchase from Samuel H. Gilman and his wife, Abbey Maria Pratt, they being residents of the said parish, by authentic act of sale and conveyance passed before Warren, Notary Public, in the aforesaid parish and State, of date the«2d January, 1864.

He prayed to be recognized, and decreed to be the true and lawful owner of the property so seized and attached, and to be restored to the quiet possession thereof.

All the allegations in the petition of Gregory, the intervenor, were traversed by Hennen, who denied specially that the said property claimed by him had ever been legally transferred to him from said Gilman 'and wife; that if any pretended transfers thereof had been made to him by Gilman and wife, the same were illegal and void, and of no effect, as being contrary to law, the same having been made by parties belligerent at a time of war between the United States and the Confederate States, wherein the said Gilman and wife were then residing in the military lines of the said Confederate States, and the said Edwin Gregory was then residing in the military lines of the said United States, and said parties were incapable of contracting together; and Hannen, further, in his answer to the petition ip intervention, averred that the pretended fransfers therein set forth, were simulated and fraudulent, and were only-intended to cover the said property from the claim of the said Gilman’s creditors, and are of no effect or validity in law.

On the motion of the intervener, the District Judge struck out from Hennen’s answer to the intervenor’s, all that part which alleged the incapacity of the parties to the sales (Gilman and Gregory) to contract as belligerents and enemies, and confined Hennen solely to the allegations of simulation.

The ruling of the Court, as to the striking out the plaintiff’s (He,mien’s) allegation in regard to the incapacity of the parties, Gilman and Gregory, to contract, was unimportant, if, at the same time, evidence was adduced to prove the facts alleged, but stricken'out; for it is a well-settled rule, as was said by Mr. Justice Simon, in delivering the opinion of the Court in Powell v. Aiken and Gwinn, 18 La. 328, “a party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings, is bound by its effect.”

If then the evidence in the record establishes beyond question the facts which are alleged to invalidate the oontract of sale between Gregory and Gilman, we have no hesitation in saying that we should deem the nullity of the contraot of that absolute character, that no effect could be given to it by law.

As was said in Minville v. Lallande, 15 A. 342, it would be unnecessary to bring an action to annul that which the law declares can have ?w existence.

Contracts entered into between belligerent enemies arc absolutely null, because they affect eminently the public order; each individual becomes, by the very existence of the war, the enemy of every other person domiciled within the enemy’s territory; they are, respectively, belligerents, and subject, in that respect, to all the consequenoes and to the operations of the laws of war. The theory of the law of nations on this subject is, that there cannot be a war for arms, and peace for commerce and trading, at one and the same time. It would be dangerous for any nation in a state of civil war to permit that degree of intercourse to be carried on, which must necessarily result from, trading and commerce. It would certainly interfere with the secrecy, certainty and di-patch of military operations, without which any war could not be successfully carried on. 1 Kent’s Com., p. 66.

The proclamation of the President of die United States, prohibiting intercourse between parties domiciled within the lines of the belligerents, was in pursuance of those well-settled principles of law.

Contracts thus entered into are null and void in' their inception and original concoction, and no subsequent events can render them valid. See Howard’s U. S. S. C. Rep. 50; Kenhet’s case 18 How., p. 114.

A perusal of the evidence satisfies'us, that at the time the sale in question was passed, the vendor and his wife were domiciled residents of the parish of St. Helena, which was at that time, as is historically known, wholly beyond the military lines of,' and in open hostility to, the United States, and that the purchaser was at the same time a domiciled resident of the city of New Orleans, within the said military lines, and that the occupation of the latter was then that of a blockade-runner, trafficing between the city of New Orleans and the parish of St. Helena.

We lately held,in the case of Marchand v. Coyle, 18 A., p. 482, that Marchand, domiciled within the Federal lines, was incapable of acquiring any rights from William Wells, domiciled in the Confederate lines, and from whom his title to the obligation sued upon was acquired pendente bella.' S je also the case of Griswold v. Waddington, 15 John, 57; 16 John, 438. Vatel, 293, 4 and 5.

The intervenor; having acquired no title whatever from Gilman and wife to the property attached by the plaintiff, his intervention must be dismissed.

It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment of the court thereon be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the attachment in the suit of Duncan N. Hennen v. Samuel H. Gilman, No. 207, be maintained, and the property therein attached be sold according to law, to satisfy the judgment in said suit rendered in favor of the plaintiff, Duncan N. Hennen, against the defendant, Samuel H. Gilman; and it is further ordered that the intervenor, Edwin Gregory, pay all the costs of the intervention.

Rehearing refused.


text:
    No. 1146.
    Wallace & Co. v. J. W. Lamson et al.
    Where the agent acts within the scope of his legitimate authority, the principal is bound by his
    The Harmony Insurance Company of the city of New York, sent their agent, J. W. Lamson, to New Orleans, to cause the sunken steamer Charlotte to he raised. Lamson purchased tlie steamer Champion for the company, and used her in his efforts to raise the sunken steamer. For the price of the steamer Champion, and other expenses which he.incurred, he drew his drafts on the company in New York: Hell — That these expenses, being necessary to accomplish the main object of the agency, viz: the raising of the sunken steamer Charlotte, the company was bound to pay
    APPEAL from the Third District Court of New Orleans, FeUowes, J.

      E. IF. Huntington, for Wallace & Co.

      J. D. Mayes, for J.W. Lamson.

      Lacey, Marks <& Butler, for Harmony Insurance Company.
   Hyman, C. J.

Plaintiffs sued J. W. Lamson and the Harmony Insurance Company of the city of New York on a draft drawn by him on the company for $4,470 42, which it refused to pay. By writ of attachment plaintiffs caused certain property to be attached by the sheriff.

The company has appealed from the judgment rendered against it for the amount of the draft, interest, etc. The judgment recognized a privilege on the property attached.

Plaintiffs averred that Lamson was authorized by the company to draw the draft, and that the money that they advanced for the draft enured to its benefit and advantage.

It appears from the evidence adduced, that Lamson was sent by the company from New York to New Orleans, to cause the sunken steam vessel Charlotte to be raised; that he bought the steamer Champion for the company, and used her in his attempts to raise the sunken vessel; that he drew four drafts on the company, amounting together to $12,764 80, to pay for the Champion, and to meet other expenses which he was incurring in raising the vessel, and that the company paid all the drafts but the one sued on.

Power had to be used in raising the Charlotte, and the agent, Lamson, had to get it. Drafts drawn by him on the company, to enable him to procure this power, binds it, as it was necessary for him so to do to effect the main object of his agency. See 6 L. 590.

Let the judgment of the District Court against the company be affirmed, at the costs of appellant.


text:
    No. 1642.
    T. M. A. d’Ile Roupe v. G. R. Carradine, Sheriff et als.
    The act of the Legislature of 1865, exempting 160 acres of land from seizure and sale under execution, entitled the homestead act, does not apply where a mortgage was executed on the land prior to the passage of the law; in such a case the land may be seized and sold to pay the mortgage, notwithstanding this law exempts it from seizure and sale.
    Under the Constitution of 1864, the Legislature is prohibited from passing any law impairing the obligations of a contract.
    An order of seizure and sale on amortgage note interrupts prescription, when notice has beor given to the maker.
    APPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Remen, for defendant and appellant,

      (x. R. Penn, for plaintiff and appellee.
   Labauve, J.

On the 18th November, 1857, the plaintiff, by public act, acknowledged to be justly indebted to the defendaut in the sum of $400, for which he gave his promissory note, payable in two months, and to secure tbe payment of said note, he executed a special mortgage on certain lots of ground.

On the 10th of June, 1858, an order of seizure and sale was granted, •and duly notified, and served by the sheriff upon the plaintiff in person on the same day. The writ issued and the property levied upon, but no sale was effected, and it was returned by order of the seizing creditor’s attorney. The matter stood in statu quo, until the 6th July, 1867, when a new writ issued, and was enjoined on the 10th August, 1867, on two grounds:

1. That plaintiff is entitled by the act of the Legislature, 22d Decemr her, 1865, to the exemption therein mentioned, as he has no other property to support his wife and family than that seized, and he is entitled to a homestead.

2. That the writ of seizure and sale could not issue on the judgment of the 10th June, 1858, because it has been prescribed by the lapse of five years.

The injunction was perpetuated, and the defendants appealed.

The act, to exempt from seizure and sale a homestead and other property, (extra session of 1865, p. 52,) reads thus:

* * * That jn addition to the property and effects now exempt from seizure and sale under execution, 160 acres of ground and the buildings and improvements thereon, occupied as a residence, and bona fide owned by the debtor, having a family, or mother or father, or person or persohs dependent on him for support. * * *

This law is relied on by plaintiff, in support of his first ground for the injunction, and the testimony brings him within the dispositions of the act.

The question is then: can this statute have effect upon the mortgage executed in favor of defendants, on the 18th November, 1857, and be in accordance with the Constitution of 1864, Art. 109, reading thus?

“No«s post facto law, nor any law impairing the obligations of contracts shall be passed; nor vested rights be divested, unless, for purposes of public utility, and for adequate compensation previously made.”

When this debtor entered into this transaction, he contracted two obligations: One, the principal, by giving his note, promising to pay money; the other, accessory, by giving a mortgage upon the property to secure the payment.

Mortgage is a right granted to the creditor over the property of his debtor for the security of his debt, and gives him the power of having the property seized, and sold in default of payment. O. C., Art. 3945.

Mortgage is a species of pledge, the thing mortgaged being bound Tor the payment of the debt or fulfillment of the obligation. U.G., Art. 3946.

The mortgage is an obligation, but called accessory to a principal obli gation. C. C., Art. 3251. .,

At the time this debtor gave this mortgage, the law said to the creditor: In default of payment of your debt by the debtor, you shall have the right to seize and sell the mortgaged property to pay the debt out of the proceeds. Now, can, under the Constitution, the homestead statute hold an opposite language in saying, that mortgaged property is exempt from seizure and sale, and is reserved as a residence for the debtor and his family? We think not. It would be impairing the obligation of that contract in its most essential part, by taking away the means by which the defendant creditor could make his money, and upon the faith of which he contracted with his debtor, who, it is alleged, has no other property. Laws can prescribe only for the future. O. C., Art. 8. Heunen, p. 782, (c.) This homestead law, having been passed subsequently to the contract between these parties, cannot affect the rights of the seizing creditor in this ease. 6 N. S. 589. 12 L. 352. ■ •

The plea of prescription cannot avail; it was interrupted by the order of seizure and sale, duly notified to the plaintiff, as we have lately decided in the case of R. K. Walker & Co. v. R. P. Lee et als., and for the reasons therein given, and the authorities quoted, we are of opinion that the note sued upon is not prescribed.

The conclusion we have come to, makes it unnecessary to pass on certain bills of exceptions taken in the case. '

It is therefore ordered and decreed, that the verdict of the jurybe set aside, and that the judgment of the court thereupon be annulled and avoided. It is further ordered and decreed, that the injunction be dissolved, and that the plaintiff and appellee and his surety on theinjunctioh bond pay in solido, one hundred dollars special damages, arid costs in both courts. ’


text:
    No. 1012.
    Charles E. Alter v. George C. Waddill.
    The evidence shows that George O. Waddill resided in the parish of Madison, for a number of years, with bis family, on his plantation; that he left there with his family and most of lu*. hands in 1863, and moved to the parish of Jackson; that in 1865 he removed to N«»w Orleans, where he bought a ro'idence. m which he and. his family have since resided. Suit was brought again t him in the city of New Orleans m the year lc66. to which ho excepted, on the ground that oii domicil was in the parish of Carroll, a place where it does not appear . hat he has ever resided; That in the el« ction of his domicil in the paris.i of Uarroll, he must be considered as having abandoned his original domicil, in the parish of Madison, and the fheriifs return on the citation, showing that I'emoe was made at his residence in the city of New Orleans, is prima facia evidence, which throws the burden of proof on him to rebut.
    Appeal from the Sixth District Court of New Orleans, Huplanlier, J.

      Elmore & King, for plaintiff and appellant.

      Haynes <& Gordon, for defendant and appellee.
   Labauve, J.

The plaintiff filed this suit on the 25th April, 1866, in the Sixth District Court of New Orleans, claiming the sum of $4,000 on a note of the defendant, who is alleged to reside in this city.

The defendant excepted to the petition, on the ground that the said court had no jurisdiction; that he was not a resident of the parish of Orleans, but had his domicil and resided in the parish of Carroll.

The Court sustained the exception, dismissed the suit, and plaintiff appealed.

The citation and petition were served upon the defendant by the sheriff of New Orleans, on the 27th April, 1866. The sheriff states in his return, “ that he served the papers on G. C. Waddill, at his domicil, No. 220 St. Charles street, by leaving the same in the hands of Mrs. Waddill, who lives and resides at the said domicil.

This is prima facie evidence of domicil in New Orleans.

On the 5th day of June, 1866, the defendant purchased a piece of ground, with all the buildings and improvements thereon, situated in this city, for the price of $24,000.

In the notarial act of sale, it is declared that he was of the parish of Madison, in this State.

The testimony shows that the defendant was a planter, and resident in the parish of Madison for twenty years; that he was still trying to cultivate his plantation, and was there most of the winter himself; that country had been overflowed, and it was difficult to find habitation there; that he left his plantation in February or March, 1863; he then purchased a residence near Monroe, Jackson parish, La.; he was there about eight months; he then moved from Washita to Fechai, in De Soto parish, where he remained until the first or middle of August, 1865; from this place he came to New Orleans, bringing his family with him, and his family has been residing in the city during that time; that, as to the defendant, he has resided here one-third or one-half of that time. On leaving his plantation, defendant left on it a few hands, who cultivated it for themselves, and he carried away with him two-thirds of his hands.

It appears that the defendant has been residing in four or five different places, and the last one was in New Orleans, from the first or middle of August, 1865, where he was sued, and purchased valuable city property. It is clear that he had his domicil once in the parish of Madison; but he came into court on the 8th May, 1866, and excepted to the jurisdiction of the court, on the ground that he had his domicil and residence in the parish of Carroll, thereby admitting that he had abandoned his former domicil in the parish of Madison. The question at issue then is: Is defendant’s domicil in the parish of Carroll, where he claims it, or in the city of New Orleans, where he resides with his family, since the 1st or middle of August, 1865? Nothing shows that the defendant ever resided in the parish of Carroll, nor has he proved that he acquired a domicil any where else, except in Madison parish; but which, as we have seen, he has abandoned by pleading domicil in the parish of Carroll. The presumption is, that the defendant was domiciled in New Orleans, and we are of opinion that the onus probandi was on him to rebut it. 9 R. 213. 15 A. 533. 1 A. 79. 17 A. 61.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided. It is further ordered and decreed, that the exception to the jurisdiction of the court below be overruled and set aside; that the case be remanded to be tried according to law, and that the defendant and appellee pay costs of appeal.


text:
    No. 1303.
    Mary A. Weil v. The Sheriff of St. Helena, and Brand & Adams.
    Tile action of a creditor of the husband, to annul a judgment of separation of property between the husband and wife, and set aside the sale made by the sheriff on a writ of Jieii facias of the husband’s property to the wife in payment of her judgment, is prescribed by the lapse of one year from the date of the judgment, and sale of the property under it.
    Appeal from the District Court, Parish of St. Helena, Ellis, J.

      T. C. W. Ellis, and T. G. Davidson, for plaintiffs and appellees.

      McVea & Hunter, for defendants and appellants.
   Ilsley, J.

On the 11th July, 1855, Brand & Adams filed in the District Court of the parish of St. Helena their petition, claiming from Benjamin Weil the sum of fifteen hundred and ninety-four dollars and sixty-one cents, with interest, and at the same time asking that the sale of a certain tract of land, which Weil had sold to Thomas Green Davidson, and which was the only property Weil had to pay their claim, be declared fictitious, fraudulent and simulated, and that it be made subject to the payment of their claim, interest and costs.

On the 31st May, 1858, a final decree was rendered contradictorily with Weil and Davidson, in accordance with the prayer of Brand & Adams’ petition. An appeal from this judgment was brought up to this court, but it was dismissed.

On the 6th of September, 1860, a writ of fieri facias on the judgment of Brand & Adams was issued, and the tract of land which had been sold to Thomas Green Davidson was seized. This fieri facias was enjoined by the plaintiff, Mrs. Weil, who claimed to be the owner of the land seized by virtue of a sheriff’s sale, made on a judgment in her suit against her husband on the áth April, 1857, and actual possession under it. Her judgment against her husband, recognized her claims against him for six hundred and thirty dollars, with mortgage upon the property of defendant, her husband, on three hundred and thirty-three dollars thereof, from the 1st September, 1850, and alike mortgage upon the said property for the balance, from the 1st December, 1854.

The sheriff’s sale to Mrs. Weil, was made during the pending of the revocatory action of Brand & Adams, and unless her lien had a dato anterior to that, on which the petition of Brand & Adams, in their suit agaiust Ben. Weil and Thomas Green Davidson was filed in court, the sheriff’s sale to her was a nullity. See 2 Hen., p. 1325, (c) l 5; and particularly Cautereau v. Lacaze, 9 A. 257; also, Denton v. Woods, 19 A. 357.

In this injunction suit, Brand & Adams attacked Mrs. Weil's judgment against her husband as fraudulent'and collusive, and averred that the sale under it wasa nullity; and it would therefore have devolved upon her to prove its correctness. 1 Hen. Dig. 588, and authorities. But she has interposed in this court her plea of one year’s prescription against the plaintiffs’ demand in revocation. Art. , C. C.

The judgment of Brand & Adams, was rendered on the 31st May, 1858, and appeal in this court was dismissed on the 8th April, 1859, and their answer to the injunction suit, setting up the nullity of Mrs. Weil’s judgment and sale under it, was filed in court more than a year after they had obtained their judgment.

It is clear that a direct action by Brand & Adams, to annul the judgin' ”t of separation in favor of Mrs. Weil, and the sheriff’s sale to her made under it was prescribed; and that the defendants in injunction are not in the position to enable them to avail themselves of the rule quce temporada sunt ad agendum; sunt perpetua ad excipiendum, as held in 16 La. 92, and 8 Rob. 8.

The plea of prescription must prevail.

It is, therefore ordered, adjudged and decreed, that the judgment, of the District Oourt be and the same is hereby affirmed, at the costs of the ajjpellants.


author: Ilslev, .T.

text:
    No. 1693.
    James W. and Amanda M. Davis, Co-tutors, v. Samuel Lee.
    The receipt, of an attorney-at-law showing that he had received the amount of his client’s debt in Confederate treasury notes, and credited the amount to the debtor of his client, is not binding on the client. An attorney is not authorized to receive anything but money iu payment of the debt of his client. 19 A 172.
    Where s< veral parties, having interest in an estate, enter into a transaction, the object of which is to • end litigation and settle all matters in dispute none of the parties are bound in warranty to the others, on account of the interest in real property therein conveyed. In such oases the transfer of whatever rights any of the partios may have made to the others, is in the nature of a quit- , claim, and no warranty results therefrom.
    A transaction has, between the partios to it, the force and authority of the thing adjudged. C.C. 3045.
    APPEAL from the District Court, Parish of East Feliciana, Poseg, J.

      Me Vea <& Hunter, for plaintiffs and appellees.

      W. P. Kin-nan and Thos. B. Lyons, for defendant and appellant.
   Ilslev, .T.

In April, 1859, a suit was brought by Amanda Bell and husband, and others, the heirs of Sarah Cleveland, first wife of Samuel Lee, against their father, Samuel Lee, for their mother’s interest in the community, theretofore existing between the said spouses, aud for a par-, tition, etc.

It whs filed, 'and, numbered 2767.

Amanda Davis, tutrix, and her husband, co-tutor of the minors, Sarah E. and Leroy W. Lee, minor children of James W. Lee, the son of Samuel Lee, who are the plaintiffs in this suit, were some of the petitioners in the suit, No. 2767.

That suit terminated by compromise, as to these heirs, as is charged m the petition, and which the defendant in that suit pleaded in his answer as follows:

“ That on the 8th day of February, 1861, he compromised, and purchased all the interest and claims of the heirs of James Lee, deceased, in said estates, including rent-i, revenues, rights and credits; that on the 31st May, 1861, the family meeting, repi’esentiug the widow and only heirs of said James Lee, deceased, ratified and confirmed said contract, compromise and purchase, which was duly homologated. The last aforesaid purchases and compromises were such that the respondent agreed to pay each of the heirs $8.CK)0; with eight per cent, interest per annum, from the dates of the respective purchases and compromises.”

The transaction referred to contains the following statement: “He, Samuel Lee, agrees that to end litigation and strife in the family relations, that judgment be rendered against him for $8,010, and interest, etc., for the plaintiffs’ undivided interest in the estates of Sarah Lee, Thomas J. Lee and Martin VauBnren Lee, all deceased; and it concludes, that it is specially understood that judgment of $8,000, and interest, are in Xud satisfaction of the entire demand of the petition of plaintiffs.”

It is signed Sam/id Lee, J. W. Davis and Amanda Davis.

The present suit is on the transaction, and the plaintiffs herein claim from the defendant the sum of §8,000 and interest, as stipulated therein.

The defendant, in his answer, pleads payment and failure of consideration, as to the negroes and their hire, which formed a part of the interest of the heirs. We do not, as does the plaintiffs’ counsel, deem these pleas inconsistent. Myles v. Miller, 4 N. S. 492.

Judgment was rendered in the court below against the defendant and in favor of the plaintiff, for the amount claimed, and the defendant has appealed.

The defendant makes in this coixrt but two points. He contends—

1. That he has paid, and discharged the obligation sued upon; and

2. That the transaction was in reality a sale of lands, slaves and personal property appertaining to the Succession of Mrs. Sarah Lee, deceased; that by the act of transfer, the plaintiffs sold to the defendants their share in and' to one undivided fifth of said slaves; that all the slaves have been emancipated by the sovereign power, and although in warranty, is expressly stated. Yet, by law, the plaintiffs are bound in warranty against the eviction of the property defendant has suffered from the emancipation by the government, and that the plaintiffs are overpaid.

The evidence shows that the plaintiffs’ counsel had received in the treasury notes of the so-called Confederate States §5,604 10.

The evidence to prove this was objected to, on the ground that the plaintiffs could not show their own turpitude. The exception was properly overruled. The object of the testimony was to show that no legal payment in money had been made to their attorneys, as Confederate notes were not money, as this Court has had occasion more than once to decide, and an attorney’s receipt is not binding on his client unless he actually received money.

The decision in the case of Railey & Campbell v. William Bagley & Co., 19 An., p. 172, is conclusive on this point.

Had the ■ tutors of the minors received these Confederate notes, or been made aware of the receipt of them by the attorney and not objected, the case might have been different, but we do not find any proof of such .facts.

What was the nature of the contract entered into? Was it not a “lumping settlement,” as the plaintiffs’ counsel terms it, “ to end litigation and strife in the family relations,” and made for the purpose avowed on its face? or was it an ordinary sale imparting a warranty? or was it not a .mere relinquishment of the multifarious rights contained in the demand, such as succession, rights, rents, moneys, etc?

So far, it might be assimilated to a sale, but it was a contract embraced in the class do, ut facias, and not in the class do, ut des, to which sales pertain.

In transactions, as they are defined in our code, and in the Roman law, there is, from the nature of such contracts, something aleatory. C. C. 3038, L. 1, f. f., de Transact; L. 2, etL. ult cod, cod tit. “The objeot of a transaction is to prevent or put an end to a law suit, adjust the differences of the parties by mutual consent in the manner in which they agree on, and which each of them prefers to the hope of gaining, balanced by the danger of losing.”

Or, as Delvincourt has it: “ Dans une transaction, tout est oorrélatif. On peut supposer que les conditions de la transaction n’ont été acceptées par l’une ou l’autre des parties, que parcequ’elies out espéré étre quittes de toute discussion, prévue et imprévue.”

As regards warranty resulting from transactions, Duranton says: “Si l’une des parties est évincée par un tiers de quelques-uns des objets que l’autre lui a livrés, transactiones causa,” pour avoir ou garder ceux qui faisaient la matifere de la contestation, le Droit romain décidait, daus ce cas, qu’il n’y a pas lieu pour cela a resoinderla transaction et aressusciter le proces, mais seulement lieu á une action en garantie pour cause d’éviction, et qu’il n’y avait méme lieu a aucune action en garantie (a moins que la garantie fi’eht été promisé) si c’etait l’objet méme sur lequel on avait transigé qui a été évincé á la partie á laquelle il était demeuré par l’effet de la transaction, attehdu que dans ce cas cette partie était censée avoir voulu prendre sur elle les risques de l’exécution et l’autre partie avoir seulement voulu renoncer á ses prétentions. Telle est la double décision de Dioclétien et de Maximien dans la loi 33 du Code de Transact, et elle nous parait si juste que nous n’hésitons pas a penser qu’elle devrait étre suivie dans notre droit; sauf l’effet des conventions particuliéres, portées dans la transaction dans la prévoyance de l’cviction.

This doctrine seems a rational and sound one, but apart from it, we think, from the tenor of the agreement itself, it was the intention of the parties to it,'that the plaintiffs in the shit, which was terniimited by the transaction, merely divested themseÍY§9 £>i the rights, whateYBl' they were, asserted by them, as a mere quitclaim ; and that no obligation whatever of -warranty resulted therefrom. 17 La. 308.

The rights of the plaintiffs in the unliquidated succession and community were mere droits successi/s, and although inventories had been made, the debts and charges might have exceeded the property; and, on this point, Merlin says:

“Lorsque la vente est nommément des droits suceessifs de l’hérédité, le vendeur ést de plein droit garant que cette hérédité lui appartient a moins qn’il n’en soit autrement expliqué. Mais il h’est pas garant de la moindre, ni de la plus grande étendue de ces droits, il est censé ne vendre que ce qni se trouve dans la succession, de sorte que s’il ne se trouve ríen, la vente n’en demeure pas moins ce qu’elle était. C’est ce qu’établissent les lois du Digeste, titre de d’Hereditate, vol. Actione Vendita.” Art. 2620, C.C.-

The transaction has, between the parties to it, the authority of the thing adjudged. Art. C. C., 3045. And as the construction which we put upon it, that it amounted, on the part of the plaintiffs, to nothing but a cession of rights or pretensions, we think the judgment of the District Court should be affirmed.

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


text:
    No. 1660.
    R. W. Estlin, Liquidator, v. J. Ryder.
    Amendments to pleadings may be made after i«sue joined, and where one of the parties has answered the other has the right to answer the amendment. The answer must be made immediately, unless its nature requires further time
    Where an amendment has been allowed after issue joined, it is not necessary to render a default to make a tacit issue on the amendment The amendment forms a part of the pleadings, and the demand is precisely what it would have been had the original and,amended petition been hied at the same time.
    Appeal from the District Court, Parish of East Feliciana, Posey, J.

      Collins <& Leake, for plaintiff and appellee.

      JÍIc Vea <& Hunter, for defendant and appellant.
   Howell, J.

This case presents simply questions of practice.

R. W. Estlin, as liquidator of the firm of R. W. Estlin & Co., alleged to be composed of R. W. Estlin and-brought suit on a note made in favor of the firm by the defendant, who answered by a general denial, and a special denial of the capacity of the plaintiff.

An amended petition was filed, (the service of which was accepted,) setting out the names of the persons composing the firm, alleging that it had been dissolved, but no one had been specially empowered to liquidate its affairs, and praying that they be allowed to amend the original petition, and make themselves parties plaintiffs, and for judgment in their favor for the amount demanded in the original petition. At the next term of the court, a motion was made by defendant to strike out the amended petition, as an attempt to substitute a new plaintiff for the original one, and thereby engraft a new and distinct suit on the former one, which was overruled, and a bill reserved. Some twenty days thereafter, the defendant objected to going to trial of the cause without a default being regularly taken on plaintiff’s amended petition. The objection being overruled, tbe defendant excepted, and after judgment against bim, appealed.

In support of tbe motion to strike out, counsel rely on the case of Curacel v. Coulon 2 M. 143, in -which the substitution of another name for that of the plaintiff was not allowed, on the ground that it was making a new petition, and consequently, a new suit; but we do not regard the proceeding before us as producing such effect. Here the suit was virtually for the benefit of the firm, for which one of the members was assuming to act, and in favor of whom the note sued on was made by the defendant, and his special defence required only that the members of the firm should be properly represented, as a measure for his own protection. Setting out the names of the persons composing the firm, effected this object and did not, in any respect, change the issue. It was still whether he was bound on the obligation sued on. We think the ground of defendant’s motion, purely technical, and that the amendment was in furtherance of justice, and therefore allowable. Amendments may be made after issue joind, and where one of the parties has amended, the other has the right of answering the amendment; but it must be done immediately, unless the nature of the amendment requires further time. C. P. Arts. 419, 421. Issue being joined in this case and the amendment being properly allowed thereafter, there was no necessity for a default to make a tacit issue. When an amendment is once allowed, it forms a part of the pleadings, and the demand is precisely what it would have been had the original and amended petition been filed at the same time. Conceding to the members of the firm, the right to become" parties, carried with it the right to trial upon the issues made up, there being nothing in the nature of the amendment to induce the court to grant further time to answer, which however was not asked.- And had it been, there was ample time to do so. The right to answer to an amendment does not necessarily imply the duty on the part of the party amending to make a tacit issue if the right is not exercised.-

We think the Court did not err-in the two rulings.

Judgment affirmed.


text:
    No. 1729.
    State of Louisiana, ex rel., A. Sarrat & Co., v. The Judge of the Second District Court of New Orleans.
    A obtained an order of seizure and sale on mortgaged notes whioh on motion of B was set aside on tbe ground that tbe property mortgaged was inventoried as succession property. A took a suspensive appeal from the judgment of the Court making the rule absolute. Tlie Judge of the court after-wards granted an order of sale of the same property, on application of the executrix to pay the debts of the succession. A applies to the Supreme Court for a writ of prohibition against the Judge, on the ground that the sale of the property cannot be affected while the appeal is pending: Unid ,That it notappearing that the Judge is transcending his jurisdiction, in the mortuary proceedings, nor is he taking any steps in the case in which he granted an appeal that will affect tne jurisdiction of the appellate court, the writ of prohibition will not be granted.
    WRIT OF PROHIBITION.

      J. W. Thomas, Judge of tbe Second District Court of New Orleans.

      G. Schmidt, for A. Sarrat & Co.
   Howell, J.

The relators, being the holders of a mortgage note, signed by Mrs. S. A. Ashbridge, obtained from the Second District Court of New Orleans a writ of seizure and sale against tlie mortgaged property as belonging to her in a suit entitled A. Sarrat & Co. v. Mrs. S. A. Ashbridge, making the allegation in their petition that said property had been inventoried as community property in the succession of D. W. Ashbridge, the deceased husband of their debtor; whereupon, Mrs. Ashbridge, as testamentary executrix of the last will of D. W. Ashbridge, took a rule to set aside the executory proceedings, on the grounds that the succession of D. W. Ashbridge was in due course of administration, and it is illegal to proceed by executory process against succession property; which rule was made absolute, and plain tiff's (defendants in the rule) appealed, giving bond, as fixed by the court, in the sum of $150 in favor of Mrs. 8. A. Ashbridge.

Subsequently, Mrs. Ashbridge, as executrix, obtained an order in the mortuary proceedings, for the sale, by an auctioneer, of the same property* to pay the debts of the succession of D. W. Ashbridge, and the plaintiff's in the executory proceedings in which the appeal was granted, have applied for a writ of prohibition to restrain the Judge, the executrix and the auctioneer from proceeding with the said side.

The Judge answers that the petition discloses no legal ground for thé writ, because, among other reasons, a suspensive appeal from the judgment setting aside the writ of seizure and sale in the case of A. Sarrat & Co., v. Mrs. S. A. Ashbridge, does not operate in law as a suspension of an order of sale on the matter of the succession of D. W. Ashbridge, and that no suspensive appeal was applied for or obtained by the relators. We consider the first position taken by the Judge to be correct, and that the relators are not entitled to the remedy to which they have resorted. The appeal was taken in a suit between different parties from those in the proceeding in which the order complained of was issued; the probability or fact that the rights of the relators may be affected by the execution of said order, will not authorize the writ of prohibition; as it does not appear that the Judge is transcending his jurisdiction in the said mortuary proceedings, or is taking any steps, in the case in which he has granted an appeal, which will affect the jurisdiction of the appellate conrt.

It is therefore ordered that the provisional writ issued herein, be set aside, and the application of relators refused, with costs.


author: HowEim, J.

text:
    No. 1160.
    G. W. Logan v. G. G. Winder.
    A statement of facts made by the Judge a quo, must be filed m the record before the appeal Is granted, otherwise the appeal will be dismissed.
    Appeal from the District Court, Parish of Terrebonne, Gates,' J.

      W. Hall,' for plaintiff and appellant.

      Belcher <& Beattie, for defendant and appellee.
   HowEim, J.

A motion is made to dismiss the appeal in this case, on several grounds, one of which we think sufficient, to-wit:

Because the statement of facts was made by the Judge after the appeal bad been granted, and was too late.

The motion for an appeal was mule and granted on 30th November, 1866, .and the appeal bond filed on the 21st December, 1866. On the 4th January following (1867) the Judge wrote out a statement of facts, which was filed on 7th of same month.

We .think' it now settled that the statement of facts should be made before the appeal is .obtained, after which the case is no longer in the possession of the inferior court. 8 N. S. 304; 3 L. 455; 16 L. 236.

The appeal in this case may be considered taken or obtained when the bond was filed, after which at least the jurisdiction of the lower court was divested.

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


author: Hyman, C. J. HoweijL, J,

text:
    No. 955.
    S. Brou et als. v. Widow P. P. Becnel et als.
    Where ti purchaser of real estate and slaves, executed his notes, with mortgage on the property purchased to secure their payment, sells the same property to another paity, and for a portion of the price stipulates in the act of sale that the third purchaser assumes the payment of the notes and ' m >rtgage given by him for the property, the third purchaser, not having signed the notes, is not bound by the law merchant; but is only bound on his assumpsit of the notes, and he may plead all the equities against the notes which the maker could.
    A purchaser of real estate and slaves may avoid the contract, so far as the slaves are concerned, by , showing what portion of the price xvas for slaves; it having been judicially determined that contracts growing out of the relation of slavery have no longer any force or effect. See 19 A. 234.
    APPEAL from the District Court, Parish of St. Charles, Beauvais, J.

      Johnson & Denis, and Beraull <& Legendre, for plaintiffs and appellants.

      A. If. Ogden, for defendants and appellees.
   Hyman, C. J.

A motion has been made to dismiss the appeal, because the District Judge has not made the appeal by his order of appeal returnable to this court at any time.

The act to organize the Supreme Court, and to fix the terms thereof, approved March 13th, 1866, declares that no appeal to the Supreme Court shall be dismissed on account of any defect, error or irregularity of the petition or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all cases, the Supreme Court shall grant a reasonable time to correct such errors or irregularities.

The law had not fixed the return-day for appeals from that parish, and . we think that the Judge should have fixed the day on which the appeal was to be returned to this court, but it does not appear that this irregularity of the order of appeal is imputable to tbe appellants.

The motion is overruled, and fit is decreed that the appellants have three days to have this irregularity in the order of appeal corrected.

HoweijL, J,

This suit is brought to recover the amount of several promissory notes, given for the price of real property, and to enforce the mortgage, executed to secure their payment, which the defendant? assumed in a subsequent purchase of the same property from the makers of the notes. The defendants filed an exception to the right of the plaintiffs, who are separate third holders, to join in one suit, which was properly overruled, there not being inconsistent demands cumulated in one action. C. P. 149. They then answered, admitting the purchase of the property from the makers of the notes, and the assumption of the obligations as set forth in the act of sale, but aver that the consideration’ thereof has failed by reason of the emancipation of the slaves included in the sale, the full value of the land having been long since paid by .them; that they are not legally bound for the notes sued on; that the note held by the plaintiff, Brou, really belongs to his mother, the vendok of their vendors, and there being no privity of contract between the other plaintiffs and the defendants, the latter cannot be made liable on' the notes held by the former, because of said failure of consideration. They called in warranty their vendees of a part of the property. Judgment was rendered in favor of defendants, and plaintiffs appealed.

Pending the appeal, one of the defendants and the warrantors have gone into bankruptcy, and only one defendant, the Widow Becnel, is now before us.

There is nothing in the record to impugn the title of Seraphin Brou, to the note held by him.

The first question is, whether the plea of failure of consideration can. avail as against the plaintiffs, who are innocent third holders, without notice, and this involves the inquiry into the nature of the obligation contracted by the defendants.

Not having put their names to the notes sued on, they are not bound by the law merchant, but solely upon their assumpsit of the notes and mortgage as a part of the price of the property, of which they became ’ joint owners, and their obligation for its value or price was commensurate therewith. Solidarity is never presumed, and there is nothing in the contract which fixes upon them a solidary obligation. Their assuming,,, to pay in the place and stead of their vendors, who are bound in solido as makers and endorsers of the notes, does not make them liable thereon in^ the same manner. They are to pay the notes instead of their vendors, but under the obligation assumed by them as joint owners of immovable property.

It follows, we think, that the defendants, not being bound in solido, as parties to the notes in favor of plaintiffs, but as purchasers in a contract: of sale, the plaintiffs cannot avail themselves of the exceptional and favored character of holders of mercantile paper as against the defendants, who only owe them the price of property, of a part of which they say they have been dispossessed, and for which they are not liable,, because contracts for such property cannot be enforced.

Whatever may be the rights of the plaintiffs against the parties to the notes, we think their rights against the defendants grow out, of the contract of sale between the latter and their vendors, which contains a stipulation in their favor, which they are now seeking to enforce. But in doing this, they may be met by equities on the part of those who made the stipulation. The promise to pay the notes was a promise sub modo, & promise to pay go much as part of the price of a gale, and justly subject to the defences incident to such a promise. See 9 A. 195. We would add that a mortgage, not being negotiable, is subject to all equities between the original parties, and the assignees thereof can have no greater rights than the mortgagee himself. 8 B. 435. 14 A. 587. This does not conflict with the pact de non alienando. The equities urged do not arise from any act of the mortgagors.

We conclude that Mrs. Becnel is bound personally for one-half of the notes sued on, and that she can oppose to the plaintiffs the plea of failure of consideration, as to both the personal and real obligation, but the evidence does not show the relative value of the slaves and the other property sold; and we think justice requires the remanding of the cause to ascertain this fact, and the amount, if any, for which she is liable, for property other than slave property.

It is therefore ordered that the judgment appealed from be reversed, and the cause remanded to the lower court, to be proceeded in for the purpose of ascertaining the relative value of the slaves, and the other property sold to defendants, and the amount, if any, for which defendant, Mrs. Becnel, is liable, for property other than slave property. Ousts of appeal to be paid by Mrs. Becnel.


text:
    No. 1581.
    Auguste Bloom v. Sabin Martin.
    Tile burden of proof is on the party complaining, to show that the Judge of ihe District Court givmed an order of seizure and sale, without having the proper evidence b fore mm Th » presumption is, that the Judge had the proper evidence before him at the time he granted the order.
    Appeal from the District Court, Parish of Assumption, Beauvais, J.

      W. G. Lames, for plaintiff and appellee.

      Genlile & Whittington, for defendant and appellant.
   Hyman, C. J.

Defendant executed his note payable to his own order, which he endorsed in blank to plaintiffs, and to secure its payment he gave a special mortgage, by authentic act, on a tract of land.

Plkintiff obtained from the Judge an order of seizure and sale, which commanded the sheriff to seize and'sell the land to pay the note.

From the order defendant has taken an appeal.

Thirteen days after the order was granted by the Judge the clerk filed the petition and order, together with the note, and a copy of the act of mortgage; and defendant contends (which is the only ground of defence urged by him) “that there is no evidence to show that the note, which formed a part of the basis of the proceedings, was before the Judge at the time he granted the order.” It is to be presumed, without proof to the contrary, that the Judge granted the order on proper evidence, and that he had the note before him, when he granted it. 8 An. Bep.. p. 23.

The order of the District Judge is affirmed.