text:
    J. P. Walworth v. R. C. Ballard.
    Under the 12fch Section of the Act of the Legislature of 18th March, 1820, reenacted in 1855, a prosecution criminally and a conviction is a prerequisite to the civil liability of a party sought to be made liable for the debts of a vacant estate on the ground of having taken possession of it without authority, with the intent of converting the same to his own use.
    APPEAL from the District Court of the parish of Madison, Fa/rra/r, J.

      A. T. Steele, for plaintiff and appellant.

      Stacy S Sparrow, for defendant.
   Merrick, C. J.

The plaintiff being a creditor of Silas Ullan'd, deceased, for $18,888 18 with interest from February, 1848, has brought the present action against the defendant to make him responsible for the debt.

He bases his right of recovery upon the Act of 18th March, 1820. The 12th Section of which was reenacted in 1855, and is in these words,.viz :

“That incase any person shall take possession of a vacant estate or part thereof, without being duly authorized to that effect, with the intent of converting the same to his own use, he shall be prosecuted by information, and on conviction thereof shall befined, not exceeding two thousand dollars, tothebenefit of the State, and shall be, moreover, liable to pay all the debts of the said estate, exclusive of the damage to be claimed by the person who may have suffered thereby.” Acts, 1855, 400, sec. 9 ; Bullard & Curry’s Dig., 810, §2.

The defendant having excepted to the plaintiff’s action, the question is presented whether the prosecution by information and a conviction is not a prerequisite to the civil liability of the party to pay the debts of the vacant estate ?

We are not aware of anything in our law analogous to the'.’exécutor de son tort of the common law. Hence the authorities from that source can furnish but little assistance on the present question.

Prior to the passage of the Act of 1820, the liability of the person converting the effects of a vacant succession to his own. use, was merely in an action in damages to the succession for the amount of the injury sustained.

Perhaps also where all of the goods of the succession were made way with, the creditors might recover to the extent of the injury done him in a demand similar to the revocatory action.

To these remedies, which result from the general provisions of law, the Act of 1820 has, in the case of the taking possession of all or any panrt of the effects belonging to a vacant estate with the intent to convert them to the use of the taker, added, on conviction, 1st, a fine not to exceed two thousand dollars; 2d, a liability to pay all the debts of the estate.

Inasmuch as this liability “ to pay the debts of the estate is exclusive of the damages to be claimed by the parties who may have suffered thereby,” it is seen that the trespasser is responsible to the vacant succession for all the effects he may have taken, in addition to the two penalties denounced against him by the statute.

As the Act is so highly penal, we think that it was the intention of the Legislature to make both penalties depend upon a conviction under a public prosecution. That is, we think, the more natural interpretation of the -language used according to its order.

Moreover, it is hardly to be supposed that the Legislature intended to invest the private citizen with the power, upon the proof of the conversion of an article or two of small value to the use of another, to charge that other with all the debts with which a succession may be burdened, however large they might be.

The administration of criminal justice is much safer in the hands of public officers charged with the prosecution of crimes and offences, than in the hands of private persons governed by such preponderating interests.

The construction we put upon the statute in question is the same as that intimated in the case of McMasters v. Place, 8 An. 431, although the point now made does not appear to have been directly decided in that case.

The plaintiff in his petition having failed to allege that the defendant had been convicted of taking possession of the vacant estate or a part thereof, without being duly authorized to that effect, with the intent of converting the same to his own use, the exception is well taken, and the judgment of the lower court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Succession of John O’Keefe—On rule taken by G. McCrystal, Executor, v. C. Delacroix.
    The purchaser of property at a succession sale delivered to the notary who was to prepare the act of sale and mortgage the cash instalment of the price, and also left with him the notes that were to be given in compliance with the terms of the adjudication. The executor of the estate after-wards asked the notary to give him $50 of the money on account to pay a bill, which the notary did. The notary afterwards absconded with the balance of the money. JSeld: that the loss should bo borne by the purchaser.
    In order to make a valid tender the money must be placed in the power of the adverse party. If paid into court, it must be with the intention on the part of the debtor that the creditor shall be at liberty to take it out of court. If deposited with the notary, as the agent of both parties, it must be with the consent that the creditor shall be at liberty to withdraw it if he sees fit, otherwise the money is at the risk of the debtor.
    The money and notes could only have been placed at the risk of the succession or executor by a formal putting in default, or by a deposit for the benefit of the succession with the express or implied consent of the executor.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      A. McOa/rthy & T W. Oollins, for the executor and appellant.

      A. Robert, for defendant.
   Merrick, C. J.

Two lots of ground in the city of New Orleans were sold at a probate sale of property of the succession of John O'Keefe, deceased, on the 30th of December, 1884, to the defendant in the rule, for the sum of $1450, one third cash and the residue on a credit of six, twelve and eighteen months, for which notes were to be given bearing six per cent, interest until their maturity and eight per cent, thereafter, and to be secured by mortgage upon the property sold.

The purchaser delivered to the notary who was to prepare the act of mortgage and sale the instalment of cash on deposit; and, it seems, also left with him the notes.

After the money had been paid to Monaghan, the Notary Public, McOrystal asked him ([Monaghan) to give him $50 dollars on account, for the purpose of enabling him to pay a bill, and the amount was handed to him by the notary. The latter having absconded, the executor demanded, through a Notary Public, a compliance on the part of Delam'oim with the terms of sale, and on his refusal to comply further than he had already done, he took a rule upon him to show cause why he should not comply with the terms of the adjudication and accept the sale.

This rule is resisted by the purchaser, on the ground that the payment of the money to the notary and delivery of the notes was done with the consent of the executor, and the same is in itself a compliance with the terms of adjudication.

It is contended on the part of the purchaser, that the case is identical with the case of Breen v. Schmidt, 6 An. 13; that here as in that case, the vendor having withdrawn a portion of the funds from the notary, must be presumed to have consented to the payment of the money to the notary by the purchaser. But it must be remarked, that in the case cited the decision is placed expressly on the peculiar facts of the case, and on the conclusions of the District Court upon the facts, which the Supreme Court did not feel authorized to disturb.

In the case of Brovin against the same defendant, in the 7th An. 349, this court, with a slight variation of the testimony, came to a different decision, and, it seems to us, the doctrine cannot be extended beyond the case in the 6th Annual, without violating the well settled law on the subject of tender and payment.

In order to make a valid tender, the money must be placed in the power of the adverse party. If paid into court, it must be with the intention on the part of the debtor that the creditor shall be at liberty to take it out of court. If deposited with the notary, as the agent of both parties, it must be with the consent that the creditor shall withdraw it if he sees fit. If not so deposited, the property in the money remains in the debtor, the notary is his agent and the money is at his risk. C. P. 404, 407; DeGoer v. Kellar, 2 An. 496.

In the present case the money was delivered to the notary on deposit. And it does no appear to have been placed there with the consent of the purchaser that it should be withdrawn by the executor. On the contrary, it may be fairly inferred from the manner in which the deposit was made, that neither the money nor the notes were to be delivered to the executor until the further consent of the depositor should be manifested, and a satisfactory certificate of mortgage produced.

Now, did the borrowing of fifty dollars of the notary by McOrystal change the character of the deposit, and place the money and notes at the risk of the Succession of O'Keefe ?

We think this can hardly be affirmed. The money and notes could only be placed at the risk of the succession or executor by a formal putting in default or by a deposit for the benefit of the succession, with the express or implied consent of the executor.

Here the deposit cannot be considered as so made, for the depositor, it is to be presumed, did not intend to part with the control of the property, the money and notes deposited, until he had obtained from McOrystal a satisfactory title.

The money borrowed by Me Crystal of the notary appears to have been a matter between them, {Me Crystal and the notary.) It was borrowed “ on account.” It does not appear to have been demanded of the notary, as money belonging to Me Crystal, as executor, but as money belonging to the notary, and which was to be replaced probably when the price was received of the purchaser. The money received from the notary was not shown to have been received on account of the succession, and it must be presumed it was for some private object of Me Crystal.

The unfaithfulness of the notary in loaning to Me Crystal a part of the funds of his principal, if the money lent was really a part of the same, has proved less injurious to the purchaser than it would have been had the notary been a faithful depositary up to the day only of his departure with the whole. What was loaned to Me Crystal has been saved, and as the latter has offered to return the same to Delaeroix, who has refused to receive it, it may be considered as so much of the first instalment already in the hands of the executor.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the District Court be avoided and reversed, and that the said rule taken upon the said Cyril Delacroix be made absolute, and that he be ordered to comply with the said terms of the sale made the thirtieth day of December, 1854, fifty dollars of the instalment in cash being considered as already in the hands of the executor, to the credit of the said Delaeroix, and it is further ordered, that the defendant pay the costs in both courts..


author: Buchanan, J.

text:
    Widow Junek, Tutrix, v. L. F. Hezeau.
    An appeal from an order submitting a cause to referees is premature and will be dismissed.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Eyrm and J. 8. Whitaleer, for plaintiff.

      J. L. Tissot and E. Eileul, for defendant and appellant. •
   Buchanan, J.

The defendant has appealed from a decree of the following tenor:

“It is, therefore, ordered, adjudged and decreed, that the plnintiffs are entitled to have an account of all the receipts and expenditures of the whole of the property known as the cemetary of St. Vincent de Paul, and that the books and papers of said cemetary, in whose hands soever they may be, be referred to auditors, to be selected by the parties, in order that an account may be stated between them.” /

A motion is made to dismiss the appeal on the ground, among others, that “thejudgment appealed from is not final, and does not divest the inferior court of its jurisdiction over the case.”

We think this ground is well taken. It was decided in Damis v. Preval, 6 Martin 422, that an appeal from an order submitting a cause to referees is premature.

It is, therefore, decreed that this appeal be dismissed, at the costs of appellant


author: Spoffoed, J.

text:
    James W. Boatner, Administrator, v. Stephen Yarborough.
    No action lies for the price of fraud. The law leaves parties who traffic in forbidden things and then break faith with each other, to such mutual redress as their own standard of honor may award.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Smith & Pond, for plaintiff.

      Bowman & Delee and Muse & Ha/rdee, for defendant and appellant.
   Spoffoed, J.

This suit is the sequel, and we trust the final sequel, of the case of Muse, syndic, v. Yarborough et al., decided as far hack as 1838, and reported in 11 La. 521.

By the result of that suit, Elias Boatner (in whose right this action was brought) was evicted of property estimated to he worth about $27,000, of which, by the expenditure of about $5000, the creditors of the original owner, John Bostwieh, were sought to be defrauded, by means of a scheme first concocted between the present defendant, Yarborough, and the said Bostwieh, and after-wards persistently prosecuted by their confederate, EUas Boatner, deceased.

Yarborough had become security for Bostwieh to Reynolds, Byrne & Co., in the amount of five thousand dollars. His object was, first, to save this sum, and then to aid Bostwieh in defrauding his other creditors. Eor that purpose, he took a mortgage and pledge, of all his valuable property, procured from him a confession of judgment for $5,500, and made a levy upon the property mortgaged and pledged to secure this sum.

At this juncture, on the 14th January, 1834, 'the deceased, EUas Boatner, (whose administrator brings this suit) appeared with M, Boatner, and took from Ya/rborovgh a notarial transfer of all his interest in the mortgage, pledge, judgment and seizure, for which they promised to give three promissory notes, amounting to $5,164, and payable respectively on the 1st April, 1834, the 1st November, 1834, and the 1st November, 1835.

After the passage of this notarial act, EUas Boatner took control of the execution already levied upon all the property of Bostwieh, and on the 3d of February, 1834, it was adjudicated to him and his associate M. Boatner, for the price of $5,605, enough to satisfy the judgment confessed by Bostwieh in favor of Yen-borough, and by the latter transferred to Boatnm-.

Having thus, as he supposed, secured the property, Boatner, on the 15th of February, gave Yen-borough his three notes, as promised in the notarial act of the 14th January, and secured them by mortgage.

The first of these notes, it will be observed, fell due on the 1st April, 1834; but it was not paid.

On the 11th April of that year EUas Boatner was served with citation and the petition in the suit of Muse, syndic, v. Yen-borough et al. This petition in the name of the creditors of Bostwieh, who made a cession immediately after Boatner had swept off his available property, through the judgment in favor of Yarborough, distinctly charged Bostwieh, Yarborough and Boatner with having conspired to defraud the creditors of Bostwieh, through the machinery of their mortgage, pledge, judgment, transfer, Sheriff’s sale and purchase in the name of the Boatners, as the following extract will show:

■“ Your petitioner l’epresents that the said Yen-borough and the said Boatmei-s well knew that the said John Bostwieh was insolvent, and intended suing his creditors as soon as he had made the arrangement with them by which, as he thought, all of his valuable property would he screened from the claims of his creditors, and knowing this fact, they assisted and participated in the arrangement.”

The petition prayed that the judgment, transfer, seizure and sale be decreed to be null and void, on account of the fraud which infected them to the injury of the creditors of Bostwieh.

Upon the trial of the suit contradictorily with Boatn&r and Ym'borough, a verdict was rendered in favor of the plaintiff generally. There was judgment pursuant to the rule, and the defendants appealed to the Supreme Court, where they seem to have made common cause in seeking to get rid of the judgment upon purely technical grounds, and not by a denial of the fraud.

The judgment of the District Court was affirmed.

Boatner's representative now sues his confederate Ym'borough to recover the price he was to pay the latter for the mortgage, pledge, judgment and seizure, which have thus turned to ashes in his hands. He contends that Yarborough warranted their existence as valid claims, and that the warranty has been falsified by the the eviction which followed the suit of Muse, syndic.

He alleges that he has paid the three notes he gave for the price. Ym'borough denies this fact, and in support of the denial produces the original notes uncancelled.

But Boatner says that the contract was in effect novated, by giving another note of $8,000 to Ym'borough, which the latter surrendered in execution under the judgment of Reynolds, Byrne S Go. against himself as surety for Bostwieh, for which he took the mortgage and pledge as an indemnity. This note of $8000 the plaintiff contends was given in lieu of the first three notes, and was bought in on twelve months’ eredit by Boatner, the maker, when it was sold under the judgment of Reynolds, Byrne & Co. v. Yarborough, and that having paid his twelve months’ bond to Reynolds, Byrne & Co., on the 27th of June, 1836, he has thus extinguished the obligation he gave as the price of the claims of Ym'borough against Bostwieh. In confirmation of this view, he relies upon the fact that Yarborough, on the 3d of January, 1837, cancelled the mortgage given him by Boatner to secure the payment of the first three notes.

If these assertions be true, as conjectured by the District Judge, they convict Boatner as a conspirator with Ym'borough to carry out a scheme of fraud after full notice.

Bor it will be observed that the $8000 note was given by Boatner to Yarborough on the 25th April, 1834, payable 1st June, 1836, and we have already stated that the petition of Muse, syndic, against Ym'borough and Boatner, to annul their transactions, was served upon Boatner on the 11th April, 1834. An innocent purchaser in good faith, after service of that petition, could not have renewed and augmented his obligations to a fraudulent vendor who had deceived him.

The District Judge says it is clear that Boatner has paid for Ym'borough the execution that Reynolds, Byrne , & Go. issued against the latter, that he has been evicted from the claims and mortgages which the latter transferred to him, and that it is but sheer justice that one who has thus paid the debt of another should be reimbursed. That Yarborough was under a natural obligation to reimburse Boatner may be conceded.

But judicial tribunals should not be called upon to adjust the balance of profit and loss between joint adventurers in iniquity. No action lies for the price of fraud. The law, whose mission is to right the innocent and to enforce the performance of licit obligations only, leaves parties who traffic in forbidden things and then break faith with other, to such mutual redress as their own standard of honor may award.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and this suit be dismissed, the plaintiff paying costs in both courts.

Merrick, C. J., recused himself, having been of counsel for defendant.


author: Spoeeord, J.

text:
    L. H. Dearmond v. Eliza M. Courtney.
    Although the entire interest of a co-heir in a succession fallen to him may he seized and sold under execution at the instance of a creditor of the heir, the Sheriff is not dispensed from the necessity of seeing that a description of the property seized be given in as accurate a manner as the nature of the case will allow, so that bidders may know what they are bidding for, and the property of the debtor may not be unnecessarily sacrificed.
    When the proportion of the heir’s interest in the succession was not given, either in the return of the Sheriff or the advertisement of the sale, and it did not appear how many heirs there were, nor of what property the succession consisted, nor what- was the amount of the inventory, the sale was properly declared illegal and void.
    As the plaintiff, previous to bringing his action to annul the judgment, made a tender of the amount for which his rights in the succession had been sold, and which had gone to the payment of his judgment debtor, it was not necessary to make him a party to the suit to annul the Sheriff’s sale.
    APPEAL from the District Court of East Eeliciana, Ratliff, J.

      J. O. Fuqua; for plaintiff.

      Muse & Ha/rdee, for defendant and appellant.
   Spoeeord, J.

The defendant appeals from a judgment annulling a Sheriff’s sale at which she was a purchaser.

The plaintiff, before attacking the validity of the sale of his property, made a tender of the amount which the defendant had bid for it, and which had gone to the satisfaction of his judgment debts. As equity and good conscience required, the defendant has been allowed that sum in the judgment from which she appeals.

Three defects are specially relied upon in the plaintiff’s petition as reasons for annulling the sale. It is necessary to notice but one.

He alleges that “neither the seizure made by the Sheriff nor the advertisement under which said pretended sale was made, contained any such description, of the property pretended to be seized and sold as is required by law, nor any such description as would enable the appraisers properly to estimate the same, or the bidders to know what they were buying.”

The description was this: “All the right, title, interest, claim and demand' of the defendant, L. B. Fearmond, in and to the succession of his mother, FUzabeth Fearmond, late of said parish, deceased, and all the right, title, interest and claim of said Leri E. Fearmond in and to the movables, immovables and slaves of which said succession is composed.”

Under the strict rules which have been applied to forced expropriations of property, we think this description was. too vague.

It is true the eventual interest of an heir in an unliquidated succession is generally very hard to he appraised. Such a sacrifice of property was apprehended from this source in France that the Napoleon Code (Art. 2205) forbade the personal creditors of the heir to expose at sale the undivided portion of a co-heir in the immovables of a succession prior to a partition. And in our former Code this prohibition was perhaps wisely extended still further: “The undivided share belonging to a co-heir in a succession cannot be seized on execution, but the creditors have the right to demand a partition of the estate between the co-heirs.” Code of 1808, p. 490, Art. 6.

In the new Code this Article was omitted, and in Noble v. Nettles, 3 R. 153, it was held to have been repealed by the great repealing statute of March 25th, 1828. In that case, and the subsequent case of Mayo v. Stroud, 12 R. 105, the doctrine was recognized that the entire interest of a co-heir in a succession fallen to him may be seized and sold under execution at the instance of a creditor of the heir by pursuing the requisite formalities. The warrant for such a doctrine was held to be found in the Article 647 of the Code of Practice, which declares that “if the debtor has neither movables nor slaves nor immovable property, the Sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him in whatsoever right, unless it be for alimony or salaries of office.”

But this doctrine does not dispense the Sheriff from the necessity of seeing that a description of the property seized be given in as accurate a manner as the nature of the case will allow, so that bidders may know what they are bidding for, and the property of the debtor may not be unnecessarily sacrificed, as it appears to have been in this instance. In this case the proportion of the heir’s interest in the succession was not given either in the return of the seizure or the advertisement of sale. It did not appear how many heirs there were, nor of what property the succession consisted, nor what was the amount of the inventory.

In Gales v. Christy, 4 An. 295, our predecessors held that “the judicial sálete the plaintiff of the rights, interests, claims and demands of the heirs of Thomas Beale, sr., in right of their inheritance of their deceased father, on their mother and tutrix, was void, by reason of the vagueness and insufficiency of the description of the thing sold. The nature of the rights, interests, claims and demands should have been stated in such a manner as to give bidders a clue to their value. Art. 647 of the Code of Practice, authorizing the seizure of the rights and credits of the- debtor when he has neither movable nor immovable property nor slaves, does not dispense with a proper description of the rights and credits seized. The seizure and sale in this case were illegal and void.”

The present case falls within the reason of the rule thus announced in Gales v. Christy.

The appellant contends that the plaintiff is concluded by a judgment homologating the final account of the administrator of the succession of BUmbeth Decvrmond, whereon the defendant was placed as the transferree of his interest as heir by virtue of the Sheriff’s sale. But the plaintiff was not a party to that decree, and is not bound by it.

It was also contended, at a late stage of the proceedings in the court below, that the plaintiffs in execution, under whose judgments the defendants in this suit purchased, should have been made parties to the present action. They have no interest in it, as the money which they received from the purchaser at the Sheriff’s sale has been refunded to her by the judgment, and she can have no claim upon them. She is reinstated where she stood before the purchase, and justice has been done to all parties.

Judgment affirmed. .

Merrick, O. J., recused himself in this cause, having been of counsel.


author: Voorhies, J.

text:
    L. N. & S. J. Bennett v. Mary C. Bennett, Administratrix, et al.
    The adjudication to the husband of property as held in common with the minor children, when such property was in fact the paraphernal property of the deceased wife, does not divest the children of their title.-
    Nor is such a title sufficient to form the basis of prescription under Article 3444 of the Civil Code.
    APPEAL from the District Court of the Parish of East Eeliciana, Ratliff, J.

      Muse & San'dee, for plaintiffs.

      Ellis & Saynes, for defendants and appellants.
   Voorhies, J.

This is an action of partition. In 1853 Bartholomew Bennett died intestate in the parish of East Eeliciana, where his succession was opened. His first wife, Sarah Bennett, died in 1828, leaving four children as the issue of her marriage with him, to wit: Fancy Leonora, San'ah Jame, Virginia and Loretta Ann Bennett. On the 8th of August, 1838, he caused all the property to be inventoried as acquets and gains of the community, and to be adjudicated to him at the price of the appraisement under the advice of a family meeting held on the 28th of the same month. This appears to hare been the only step taken by him in relation to the settlement of the estate of his deceased wife. It does not appear that he ever rendered any account as natural tutor to his minor children. His daughter Virginia, married to Matthew Bowman, died in May, 1841, leaving an infant, who survived her until the 17th of June, 1841. Loretta Ann died in 1850, leaving her father and two sisters, Fancy Leonora and Sarah Jane, the plaintiffs, as her legal heirs. By his marriage with Mary C. Flynn, the defendant, the deceased left six minor children, to wit: Emma, Lucinda, Oynthia, Orra Amanda, Mary and Zachcuriah T. Bennett, represented by their mother and natural tutrix, and William W. Chapman, as under tutor, who is also a party to this suit. Emma was born the 3d of December, 1849, and died the 11th of September, 1856. The plaintiffs claim a slave named Letty and her increase as the separate or parapernal property of their mother, Sa/t'ah Bennett, who acquired the same under the last will of her deceased father, Jesse Bennett; which last will was declared to be valid by the then Parish Judge, on the 29th of November, 1819, and duly recorded in his office. The testator required that the slave Letty should be appraised, and after deducting the amount of her hereditary share from such appraisement the legatee was required to account to his co-heirs for the surplus.

Erom the documents annexed to the bills of exceptions in the record, which we think should have been admitted on the trial below, the following facts may be deduced in relation to Jesse Bennett's Succession: On the 7th of October, 1820, the movables were sold at auction and produced the sum of $535 81.

On the 8th of June, 1822, a partition of the slaves, estimated at $3858, in which the sum of $850 was included as the^alue, of the slave Letty, was made between the widow and heirs of the deceased, allotting to the former, under the will, the sum of $2900, and to each of the heirs the sum of $86 36 4-11, after deducting their respective collations and adjusting their several accounts The account of Sarah Bennett is thus stated:

“Her share...........................................$86 36 4-11
Balance due her on payment of debts..................... 2 40
$88 76
Deduct amount of her collations......................... 70 00
Amount due her.......................................$18 76”

Prom this we think it is clear that the title to the slave Letty was vested in Sarah Bennett as her paraphernal property. It is equally clear, under the decision of the Rivas case, 13 L. 160, that the adjudication to Bartholomew Bennett did not divest his children of their title to this property.

But it is contended, that the receipt of the price by the plaintiffs, particularly Nancy Leonora, amounted to a ratification of the adjudication. Were we to give full effect to the deposition of A. Levi, annexed to the defendant’s bill of exceptions, still we do not think the evidence would be sufficient to establish a legal ratification, 13 L. 175.

We think it is clear that the alleged adjudication is not a sufficient title to form the basis of the prescription relied upon under Article 3444 of the Civil Code, as it is not a title translative of propertyin the slave Letty. Prom the view which we have taken of the case, it follows that the interest of the respective parties in the slaves in question must be regulated in the following manner, to wit: On the death of Loretta Ann one-fourth of her interest descended to her father and the remainder to her sisters, half-sisters and half-brother, in accordance with Article 909 of the Civil Code. On the death of Mnma, the one-fourth of her interest vested in her mother and the remainder in her sisters and brother, as in the other case. The hire of the slaves must be regulated on the same principle. Prom the evidence we are not prepared to say that there is any material error in the conclusion of the Judge a quo as to the hire of the slaves. All the heirs are entitled to claim the hire or revenues derived from the slaves held as the separate property of their deceased father. The estimate fixed therefor does not appear to us to be unreasonable.

By the admission of the parties in the record it appears that the sum of $500 was paid as the price of the slave Peter; during the existence of the community. As this payment does not appear to have been made with the separate funds of the deceased, we think the Judge a quo erred in refusing to allow it as a credit to the community.

The Judge also erred in referring the parties to a notary to make a partition between them without having previously directed the manner in which the same should have beenmade, either in kind or by licitation. C. P. 1027 : O. C. 1267; 1 R. 512.

It is, therefore, ordered and decreed, that’the judgment of the court below be avoided and reversed, and that the cause be remanded for further proceedings according to law, the plaintiffs and appellees to pay the costs of this appeal.

Mr. C. J. Merrick recused himself as having been of counsel.


text:
    Benjamin Orr v. Home Mutual Insurance Co. et al.
    Insurance companies cannot be made liable in an action for damages, for having conspired and agreed with each other that they would not insure any boat in which a particular person should be employed, in order to prevent that person from obtaining employment.
    The defendants had the right, separately or acting in concert, to decline taking any risk in any boat on which the plaintiff should be employed as master.
    Courts can enforce only legal obligations and redress injuries to legal rights.
    APPEAL from the Sixth District Court of New Orleans, Gotten, J.

      Tappan & Holt, Bengmnin, Bradford & Finney, for plaintiff and appellant.

      M. M. Oohen, George Eustis and J. B. Eustis, for defendants.
   Merrick, C. J.

This action is brought to recover of the defendants, three insurance companies, damages for a conspiracy. The plaintiff alleged in his petition, in substance, that he was the master of the steamboat Red River, that he was receiving one hundred and fifty dollars per month as wages; that by means of his skill and experience and good reputation he was able to obtain employment and earn a competent livelihood for himself and family; that the defendants maliciously, and without any cause except that the plaintiff, under the instructions of the owner of the said steamboat, had charged eight dollars per bale freight on certain cotton, and five dollars per barrel on certain beef and tallow, and two and one-half dollars per barrel for sundries taken from the steamboat Julia Dean at Jacksonport, on White River, to New Orleans, which, on account of the difficulties of the navigation, were reasonable charges, combined and confederated together and agreed that they would not insure anything on any steamer on which the plaintiff might be employed, nor adventure any risk on such steamer, by reason whereof the owner of the steamboat Red River discharged petitioner from his occupation as master on said boat, and petitioner finds himself excluded from his business of steamboat navigation and *from ail useful and honorable employment, and deprived of all moans of livelihood for himself and family, and that he has been damaged $30,000

The defendants excepted on the ground that plaintiff’s petition disclosed no cause of action. The exception was sustained, and the plaintiff has appealed.

Undoubtedly, either of the defendants had the right separately to decline taking any risk on any boat on which the plaintiff' should be employed as master. Nor could the motives of the company be questioned; whether they were malicious and with the sole design of injuring the plaintiff or not, would be entirely immaterial in a legal point of view so long as there was no contract on their part and no legal obligation to insure such boat. Courts can enforce only legal obligations and redress injuries to legal rights. 4 Rob. 68 ; 8 Rob. 84.

Does the fact that the three insurance companies conspired and agreed with each other that they would not insure on any boat on which the plaintiff should be employed, in order to prevent him from obtaining employment, change the character of their acts ?

It is difficult to perceive in what respect the combination of three insurance offices out of all of the companies of this city should change the character of acts otherwise conceded to be lawful. The companies had the right to say, separately, that they would not insure any boat on which the plaintiff should be employed, and we can see no good reason why the three companies, whether they felt themselves aggrieved by plaintiff’s charges or not, might not say so in concert.

We have not deemed it necessary to advert to the distinctions of the common law on the subject of the indictment for a conspiracy, and the action on the •case in the nature of a conspiracy, nor to consider whether cases may not arise in which combinations to do acts otherwise lawful may not occasion injuries which will sustain a civil action.

It is sufficient for the purposes of the case to decide that the facts alleged in this case are not sufficient to sustain the action. The inconvenience which the plaintiff has suffered is but a damnum absque injwia.

Judgment affirmed.


author: Yoorhies, J.

text:
    Henry E. Moore v. Corning & Co. et al.
    The plaintiff residing in Missouri sent an endorsed note to ,T. -J. Anderson & Co. at St. Louis, with instructions to forward the same for collection to New Orleans, where it was payable. The note was sent to Corning & Co. at New Orleans, who caused it to be protested by a notary for nonpayment. The notary, under the instruction of his employers, sent the notice of protest for the •endorser to J. J. Anderson & Co. Meld: that the notary was exonerated from the obligation of 'giving notice to the endorser.
    The agents, Corning & Co., were only bound to give notice of the dishonor of the note to their principals, and could not be held liable to the plaintiff whose interest in the note was not disclosed •to them by their principals.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Thomas Eunton, for plaintiff and appellant.

      George Eustis, for defendants.
   Yoorhies, J.

The plaintiff seeks to make the defendants liable, in solido, for the payment of a note of which L. T. Leblanc was the maker, and W. Beaty the endorser, as damages. He alleges that said note, which he held as endorsee, was enclosed by him to J. J. Anderson & Co., at St. Louis, with instructions to forward the same to New Orleans, where it was payable at the banking house of Benoist, Shaw & Co., for collection; that it was accordingly sent to Corning & Co., who caused it to he protested for non-payment, by Thomas Layton as notary public; and, that in consequence of the latter’s failure to give legal notice of protest, the endorser was discharged, and the maker proved to he insolvent.

The grounds disclosed by the evidence, in our opinion, are insufficient to make the notary liable. The note clerk of Corning & Co. testified on the trial below, that he instructed the notary, under the authority of his employers, to inclose the notice of protest for the endorsers to J. J. Anderson & Co., at St. Louis. The clerk of the notary shows that no inquiry was made as to the residence of the endorser; that he enclosed under those instructions the notices of protest for Beaty and Moore to J. J. Anderson & Co. at St. Louis, and also mailed one to LeBlwne at Plaquemino, La., where the note appears to have been made and dated. It is, therefore, obvious that the notary was thereby exonerated from the obligation of giving notice to the endorser according to the requirements of the statute of 1821.

Neither can doming i(s Go. bo held liable to the plaintiff, whoso interest in the note was not disclosed to them by J. J. Anderson & Go., for whom they acted as agents. Under the well settled rule of the commercial law, which we consider undisturbed by the statute of 1827, providing a new and convenient mode of proof, they were only bound to give notice of the dishonor of the note to their principals, and not to the endorser, oven had they known his residence. 12 R. 127; 1 A. 369, ; 9 A. 27.'

Judgment affirmed.


text:
    Thomas S. Morgan v. C. C. Lathrop.
    The defendant, who was a private banker, being sued for a cash deposit made with him by the plaintiff, pleaded, by way of reconvention, that he had credited the amount on a protested draft of the plaintiff in his favor for a larger amount. Held: That plaintiff and defendant being both residents of New Orleans, and the reconventional demand not being connected with plaintiff Js original demand, proof of the reconventional demand was properly rejected.
    Conceding the answer to be equivalent to a plea in compensation, the defence could not be sustained, because, under our jurisprudence, as now settled by frequent decisions, compensation does not take place in the confidential contracts arising from irregular deposits of this nature.
    The depositary is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, except there is a special mandate from the depositor, or a course of dealing which will justify such application of the funds.
    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.

      Benjamin, Bradford, & Finney, for plaintiff.

      M. M. Oohen, for defendant and appellant. ■
   Merrick, C. J.

The plaintiff sues the defendant for $615 39, it feeing the balance of cash on deposit with the defendant, on the 24th day of May, 1853, as a private hanker, conducting business under the .style of “ Insurance and Banking Agency.”

Defendant reconvenes, and, admitting that there was that amount in his hands to the credit of petitioner, alleges that he indorsed (credited) it on a bill of exchange dated 23d day of March, 1853, payable thirty days after date, to the order of defendant, for fourteen hundred dollars, and drawn on George Nichols, of Shreveport, La., and protested for non-payment. The defendant claims judgment for the balance due upon the draft, after crediting the balance on deposit in favor of the plaintiff.

On the trial, the defendant offered the testimony of O. P. Miller and others to prove the facts set forth in his answer and plea in reconvention, and that, having received the money sued for, as a hanker, according to the custom of banks and bankers, he had a right to withhold the same on account of debts held by him against Morgan.

We are not prepared to say that the Judge erred in excluding this testimony. There was no allegation in the answer that there was any particular custom in New Orleans more favorable to hanks and bankers than other persons holding money on deposit, and the witnesses appear to have been offered to express an opinion on plaintiff’s case. Both plaintiff and defendant being residents of New Orleans, the reconventional demand not being connected with plaintiff’s original demand, could not be maintained, and proof of the same was properly refused. But if it be conceded that the answer is equivalent to a plea in compensation, still we think the defendant must fail in his defence. For whatever might be the opinion of the court, wore the question presented for the first time under Article 2934 of the Civil Code, we think it must now be considered as settled law, in the confidential contracts arising from irregular deposits of this nature, that compensation does not take place, and that the depositary is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, except there is a special mandate from him, the depositor, or a course of .dealing which will justify such application of the funds. See Breed v. Purvis, Wood & Co., 7 An. 35, and Bludworth v. Jacobs, 2 An. 25; 10 Rob. 200; and Bogart, Williams & Co. v. Egerton, 11 An. 73.

The conclusion arrived at by this court in the cases cited, is in conformity with those of Toulier and Marcadé on Article No. 1293 of the Napoleon Code, which is identical with Article 2207 of our own code. This Article declares that compensation does not take place against a demand for the restitution of a deposit or a loan for use.

The argument is briefly this: under the Roman law and the former law of France, (and the same may be said of Louisiana,) compensation did not take place in the case of an irregular deposit. Legis. 24 and 25, Dig. 16, 3 ; Pothier on Obligations, sec. 625. The Article ought to be understood as embracing the principle of the Roman law as to irregular deposits, because, as it is not possible that compensation can take place in the case of the regular or special deposit, it is but reasonable to suppose that the law-giver was not formally prohibiting that which was impossible, but, on the contrary, that he was prohibiting something which, without the prohibition, might easily happen. For example, if a suit be brought to recover a specific thing, as a watch, or a packet of notes enclosed, or a sealed box of coins, the action is for the identical thing deposited, and it partakes of the nature of an action in revendication. C. O. 2932, 3189. •

It is obvious that compensation cannot be pleaded against an action of this kind, because compensation can only take place where a sum of money or a quantity of consumable things is demanded. On the other hand, in the irregular deposit, it is not expected that the identical thing deposited will be returned, but only an equal quantity of other things of the like kind. There is then, in the nature of things, nothing which prevents compensation from taking place in the case of the irregular deposit, where the plaintiff, from other causes, owes the defendant an equal sum of money or quantity of consumable things as those demanded of the depositary, except the confidential relation in which the depositary stands towards the depositor. It is, therefore, but reasonable to conclude that the Legislature intended to prohibit compensation from taking place in the irregular deposit on account of the confidential nature of the contract. See Pothier on Obligations, No. 625 ; 7 Toul. No. 385; 4th Marcadé, Art. 1293, No. 830.

The force of the argument is somewhat weakened from the fact that compensation is also prohibited in the case of the loan to use, the commodojtmn,. As compensation cannot take place in this kind of contract any more than in the special deposit, it may be replied that the Legislature might as well be understood to prohibit the one as the other, particularly as Article No. 2934 has declared that the only real deposit is where the. depositary receives a thing to be preserved in kind, without the power of using it, and on the condition that he is to restore the identical thing.

If, however, compensation in the case of the irregular deposit is not prohibited by Article 2207 of the Civil Code, then that portion of the Article cited is entirely meaningless and absurd.

Although the case is not free from difficulty, on the whole we conclude that the judgment of the lower court ought to be affirmed.

Judgment affirmed.


author: Merrick, O. J.

text:
    Widow Berny Douville v. Sun Mutual Insurance Company of New York.
    Where, by the terms of the policy of insurance, the party desiring to be insured, upon any particular shipment of merchandize, was bound to present to the Insurance Company an invoice of the goods, and pay or secure the premium to the company — ITeld: That on a policy of insurance in this form, there must necessarily exist as many contracts of insurance as the endorsements upon the policy of separate shipments of goods; that such contracts only became complete when the invoices of the goods were presented and endorsed upon the policy.
    The assured under such a policy could not recover from the underwriters for the loss of goods the shipment of which did not appear by any bill of lading, and of which no invoice had been furnished to the company previous to the loss.
    APPEAL from the Second District Court of New Orleans, Morgcm, J.

      J. Bermudez and E. Filleul, for plaintiff.

      G. Schmidt and J. A. Maa/lin, for defendants and appellants.
   Merrick, O. J.

This suit is upon a policy of marine insurance. As we shall decide this case upon a single point, we do not deem it important to recapitulate all the facts, nor to notice the other questions presented by counsel in the elaborate briefs and arguments presented in this case. We shall assume that the plaintiff had an insurable interest in the goods lost; that the suit was brought by proper parties, ancf that the preliminary proof was made.

The original policy which was, delivered on the fourteenth day of December, 1850, and was on goods and merchandize to be laden on board-vessels, contained this clause:

“ This insurance is declared to be on merchandize, as interest may appear, adding ten per cent, to invoices. The risks to attach from the time of shipment, which are to be reported to the insurers (on receipt of invoices) for indorsement.”

On the 18th March, 1854, this modification was indorsed on the policy: “It is agreed that this policy shall cover merchandize to the address of the assured, from European ports to New Orleans, via Boston or New York, subject to additional premium as per tariff.”

Amédée Berny Doumlle, a member of the firm in which the plaintiff held the chief interest, having, in the summer of 1854, purchased a quantity of goods in Paris for the house in this city, wrote home, on the seventh of September, that his purchases were made, with the exception of a few articles for which he should wait until the last moment, in order to have the latest fashions; and he announced that he had retained his passage aboard the steamer Arctic for the 20th of September, and,that he would leave Paris on the 15th or 16th for London, to purchase fashions and “ nouveautés.”

After this-letter was received, : about the 8th or 10th of October, a clerk of the firm informed the agent of .the Insurance Company that Mr. Doimille was about to leave France with goods by the Arctic. The cleric was informed at the insurance office, “that it was all right, but that they would be compelled to wait the receipt of the invoice, in order to indorse this on the policy.”

It is apparent, that at this time the members of the plaintiff’s firm in New Orleans had no knowledge whether Amédée Berny Domille had carried out his intention of purchasing more goods in Paris or not, nor what was the amount of goods he intended to bring with him; hence, at this time, there was nothing definite agreed upon which could be indorsed on the policy, and no premium was offered to be paid the company.

Améd'ee Berny Domille and a Miss Eliza Bevelle (who was also sent out to Paris to assist in the purchases) sailed in the Arctic and perished in that ill-fated vessel.

Sometime after the loss of the steamship was- ascertained, an agent of. the house in Paris informed them by letter of the amount of goods which it was supposed Mr. Domille and Miss Bevelle had with them, and furnished a list showing the amount and value and the various houses in Paris from whom the merchandize was purchased. The amount was 16,565 95-100 francs. The goods never reached Now Orleans.

The testimony renders it probable that this amount of merchandize was packed in the trunks of these two persons and lost with them on the 27th of September. No bill of lading appears to have been taken of the steamer, nor any other evidence that the merchandize was shipped as a part of the cargo of the vessel. Plow these goods were carried in the trunks of the parties through England, is not explained.

After the list of articles was received from the agent in Paris, and the loss ascertained, the list was presented to the insurance office. The company refused to indorse it upon the policy or pay the loss.

It appears that goods to the amount of about 180,000 or 190,000 francs were purchased in Paris that season, after the departure of Domille from New Orleans, and only invoices to the amount of say $8166 were indorsed upon tho policy previous to the information of tho loss of. the Arctic, viz: were indorsed on the 28th day of September, 1854

This suit was instituted against the Insurance Chmpany on tho 25th day of October, 1855. Judgment was rendered against the. defendants, on the verdict of a jury, for $3229, and. the defendants appealed.

The question is presented by this state of facts, whether there was any contract of insurance relative to the goods lost upon the Arctic ?

We think it must be answered in the negative. By the terms of the policy, the party desiring to be insured upon any particular shipment of merchandize, was bound to present to the Insurance Company an invoice of the goods and pay or secure the premium to the company. When this was done and the amount of the invoice was indorsed upon the policy, the contract for insurance was complete. The plaintiff was not bound by her contract to report to the Insurance Company the 180,000 francs in value of purchases made by her firm in Paris, on the one hand, nor could the company demand of her the premium on this large amount, on the other. On a policy of insurance in this form, there must necessarily exist as many contracts of insurance as there are indorsements upon the policy of separate shipments of goods. The delivery of the policy four years previously did not constitute a contract of insurance upon goods which might be shipped by the Arctic. Something more was required, viz: consent on the part of the plaintiff a production of her invoices and the payment of the premium on her behalf, and a communication of the unusual manner in which these goods were intended to be brought over, viz, in the trunks of a partner and an employée of the house, as baggage; and on behalf of the company, an agreement to take the risk in this form. Nothing of this kind occurred. The company were informed that some goods were to be sent out by the Arctic, the unusual manner in which they were to be sent was not communicated. No amount was stated to the company, for the agents of the plaintiff did not then know what quantity of goods would be sent. No premium was offered, and if the Arctic had arrived in safety, the company would have been without power to collect the premium: the plaintiff would have been under no legal obligation to have paid it. The reply of some officer at the insurance office, that it was “all right,” when informed that it was expected that goods would be brought out by the Arctic, was coupled with a reference to the terms of the poliey which shows that the company did not intend to bind themselves beyond it. They informed the clerk “that they would be compelled to wait the receipt of the invoice, in order to indorse this on the policy.” That reply, therefore, of some officer of the company, even if he had power to bind the company beyond the terms of the- policy, created no obligation. Nothing was agreed upon beyond the policy. How then can it be construed to cover the loss of goods packed in the trunks of travellers, not subject to the payment of freight, nor covered by bills of lading, nor stowed with the cargo, nor contained in covers or boxes commonly subject to entry at the customhouse ?

The company has a right to stand upon its written policy, and say to the plaintiff: Won in liceo fedora veni. The goods were not, in a legal sense, laden on board the Arctic, nor were the invoices presented or premium offered, until the loss was ascertained.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court bo avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendants, and that the plaintiff pay the costs of both courts.


text:
    Henry Boyle v. Succession of Andrew Leitch.
    The ownership of real estate can- only be established by a written title.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Elmore & King, for plaintiff and appellant.

      Durant & Hornor, for defendant.
   Buchanan, J.

John J. E. Massicot sold to Andrew Leitch, on the 7th of June, 1851, by notarial act, a lot of ground in Conti street, between Villeré and Robertson, for a price payable partly in cash and partly in notes of Leitch endorsed by Andreio Huey.

It appears that Leitch was in partnership in the draying- business with Huey. A building- was put upon the lot in question, which was paid for by Leitch & Huey. Leitch died in September, 1853. '

The plaintiff, assignee of Huey, brings this suit against Leitchis widow and administratrix for one-half of the lot and building.

The building contract and receipts for payments on the same, in the name of Leiteh & Huey, were offered in evidence by plaintiff, for the purpose of proving the ownership of the lot. They were properly rejected by the court. The transfer of real estate can only be shown by a written title. C. C. 2255; Heiss v. Cronan, 12 An. 213.

Judgment affirmed, with costs.


author: Spofford, J.

text:
    Ann Maria Barclay, f. w. c. v. E. W. Sewell, Curator.
    The plaintiff was the slave of a citizen of Louisiana, by whose formal act and consent she was emancipated, in the year 1839, in the State of Ohio, where she was carried for that purpose. She subsequently returned to Louisiana and has been residing here since as a free person of color, her former master also residing here. Hele!; That she did not forfeit her freedom thus acquired abroad, by returning to the State. Such penalty is not imposed upon free persons of color for returning to the State in contravention of law. The Act of the Legislature in 1816 does not prohibit an express emancipation of a slave in a foreign State by a master resident in Louisiana. It only guards against manumission being implied from the mere fact that the slave, whether with or without the consent of the master, has been upon the soil of a territory where slavery is prohibited.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      O. Boselms, for plaintiff.

      J. 8. Whitaker, for defendant and appellant.
   Spofford, J.

The case comes up on the following state of facts:

“ It is admitted that the plaintiff acquired by purchase and paid for the property claimed in this suit, and all further testimony on that subject is dispensed with; the only question submitted and to be decided by the court is, whether the plaintiff has the legal capacity of holding property.
“ It is admitted that plaintiff was absent for two months in the State of Ohio, where she was emancipated, and that ever since that time she has been residing here as a free person of color, and that Gf. A. Botts (her former master) has been residing in this city as a citizen of Louisiana.”

The emancipation of the plaintiff in Ohio took place in the year 1839, and shortly afterwards, in the same year, she returned to Louisiana.

The question is, did the plaintiff, in 1839, come from Ohio into Louisiana clothed with the status of a free person of color ? If she did, no subsequent legislation in Louisiana has changed that status.

The power of the master to manumit his slave within the limit of Louisiana, has always been qualified by her laws; hut no law of Louisiana in existence in 1839, placed any restraint upon the power of the master domiciled here, to manumit a slave in a foreign State who had been carried thither for that purpose.

There is no question hut that it was lawful in Ohio for a master resident in Louisiana, to disfranchise his slave who had been carried thither.

There is no question but that the emancipation in this instance was complete and formal under the laws of Ohio.

There the slave became free by the formal act and consent of her master. Her status was changed.

Upon her subsequent return hither, did she relapse into her original condition ? Not unless some law of Louisiana in force at the time entailed such a penalty upon her for her return.

We have been referred to no such law; we think there was none.

Something has been said about the general policy of the Louisiana Legislature ; it was undoubtedly always adverse to the indiscriminate manumission of slaves, and now it has become altogether prohibitive of emancipations in the State, probably in consequence of injudicious and impertinent assaults from without upon an institution thoroughly interwoven with our interior lives.

But we find that in 1830, the Legislature recognized the validity of such emancipations as the one under consideration. In an Act embodying certain police regulations as to free persons of color it was declared, that “these provisions shall not be construed to extend to any free negro, mulatto, or other free person of color, who may have been a slave in this State and who shall have, with the consent of his owner, been emancipated in any other State of the Union, and shall have, after such emancipation, returned to this State.” (Acts 1830, p. 94, sec. 16.) Nothing in this statute prohibited thereafter, even by implication, a mode of emancipation thus expressly recognized as lawful up to that time. And we have been able to find no legislative act previous to the plaintiff’s manumission, which would involve such a marked change in the law.

The dangers supposed to flow from an increase in the free colored population out of the rank of slaves, were thought to be sufficiently guarded against by the stringent provisions against free people of color coming into the State. The plaintiff went away a slave; in Ohio she became free by a lawful act of manumission from her master; upon her return hither she subjected herself to all the penalties imposed upon free persons of color for entering the State in contravention of law. But we do not find one of those penalties to have been a forfeiture of her freedom acquired abroad. She could be ejected from the State; but she could not be reduced to slavery by the master who had emancipated her — nor did he ever resume his dominion over her.

The Act of March 16th, 1842, confirms this view of the law as it stood in 1839. That Act prohibited, for the first time, the carrying of slaves out of this State into free States ; but so far from implying that their condition could not be changed by such a removal it implies 'the reverse, by providing that slaves so removed shall be subject to all the penalties and regulations provided for in this Act or in preexisting Acts, against free persons of color coming into the State. Acts 1842, sec. 9,. p. 314. And the next section goes on to declare that nothing in the Act shall be construed to deprive an inhabitant of the State of his right of property in a slave who, conti'Umj to the consent and will of his master, shall have gone out of the limits of the State into any other State or territory of the Union, or in any foreign country where slavery does not exist; and that said owner, in case he shall recover the possession of his slave, shall be entitled to his full property, and such slave shall not be admitted to claim his freedom, because he has set his foot upon a soil where slavery is not acknowledged.

The Act of May 30th, 1846, (Acts p. 163,) went one step further, and declared that from the passage thereof, no slave should be entitled to his or her freedom, under the pretence that he or she had been, with or without the consent of his or her owner, in a country where slavery does not exist, or in any of the States where slavery is prohibited.

It will be observed that this Act does not prohibit an express emancipation of a slave in a foreign State by a master resident in Louisiana. It only guards against manumission being implied from the mere fact that the slave, whether with or without the consent of the master, has been upon the soil of a territory where slavery is prohibited.

We may also remark that this enactment was probably called out by a series of decisions in the Supreme Court of this State, which were incorrect in principle, because they held that the status of a slave whose master resided in-Louisiana, could be changed by even a transient presence upon free territory; a doctrine which was overruled in Liza v. Paissant, 5 An. 80, where the whole subject is treated and the true doctrine announced as flowing from general principles of law and supported by the highest English and American authorities.

We conclude, that the plaintiff is a free woman of color, and that the judgment must be affirmed.


author: SpoiuoitD, J.

text:
    State v. André Bogain.
    Any additional instructions desired by the prisoner to be given to the jury, should be prepared and submitted to the court by his counsel.
    The object of polling a jury is to ascertain whether the verdict, as announced by the foreman, was concurred in by all the jurors, and the inquiry should be restricted to the question u is this your verdict” f
    APPEAL from the District Court of St. James, Duffel, J.

      E. Legendre, District Attorney, for the State.

      Q. Selmddt, for defendant and appellant.
   SpoiuoitD, J.

There was nothing in the Judge’s charge prejudicial to the prisoner, as it involved no expression of opinion upon the facts, and so far as it went, correctly expounded the law.

If the prisoner wished any additional instructions to be given to the jury, his counsel should have prepared them and submitted them to the court.

When the jury was polled, the Judge correctly refused to allow the prisoner’s counsel to interrogate the jurors as to the grounds of their verdict. The object of polling the jury is to ascertain whether the verdict, as announced by the foreman, was concurred in by all the jurors, and the inquiry should be restricted to the question, “ is this your verdict” ? Even this practice is not universal, although it is generally allowed in our sister States. State v. Harden, 1 Baily, 3; State v. Allen, 1 McCord, 525; Jackson v. Hawks, 2 Wend., 619. Contra Commonwealth v. Roley, 12 Pick., 496; Fellow's case, 5 Green., 333.

Judgment affirmed.


text:
    State v. Peter Gaffery.
    The prisoner was charged with having committed larceny of the property of Mary Buckley, Proof having been adduced that she was a married woman and that the goods stolen were bought by her while residing with her husband, it was held, that the Judge should have charged the jury, that all property bought during the existence of the marriage is presumed to belong to the community.
    Por any larceny committed against the property of the community, the chattels stolen should be alleged to be the property of the community.
    Proof that the chattels belonged to the community, will not sustain the charge that the same belonged to the wife. *
    The presumption of ownership by the husband might be rebutted by the State by showing that the wife was separate in property from her husband, or that the property was bought in her own name by the wife with her paraphernal funds, or that the husband had himself transferred the goods to the wife for the purpose of replacing her paraphernal effects.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      JS. W. Moise, Attorney General, for the State.

      A. P. Field, for defendant and appellant.
   Merrick, C. J.

This is a prosecution upon an information for larceny.

Proof having been adduced that Mm'y Bueldey, the person from whom the goods were alleged to have been stolen, was a married woman, and that the goods were bought by the wife whilst residing in the house with her husband, the counsel for the accused requested the court to charge the jury, that if they believed from the evidence that Mary Bueldey was at the time of the alleged larceny a married woman living with her husband and not separated in property, in contemplation of law, the property stolen was the property of the husband and not of the wife, and should have been alleged as the property of the husband. But the court, as it appears by the bill of exceptions, considering that the common law of England was without application as to a question of property in Louisiana, refused to charge as requested and, on the contrary, charged the jury if they believed that the wife bought the property, although she was living with the husband at the time that the charge was properly laid as the property of the wife.

The court erred. It is true that the common law of England has no application to a question of ownership of property acquired in this State, and the court -was justified in refusing to look to that system in order to ascertain whether the husband or the wife was the owner of the chattels alleged to have been stolen. But testing the question by our own law, the charge requested ought not to have been entirely refused, nor should the Judge have given the charge in the form in which it was done.

As the Judge did not see fit during the trial to direct an amendment to be made as now authorized by the Statute of 1855, p. 171, sec. 1, the jury ought to have been informed that all property bought during the existence of the marriage, by either the husband or the wife, is presumed to belong to the community ; that the husband is the head and master of the community, and for any larceny committed against the property of the community, the chattels stolen should be alleged to be the property of the husband, and that the proof that they belonged to the community, will not sustain a charge that the same belonged to the wife. And the jury should have been further charged that the presumption that the property bought by the wife, during the existence of the marriage, belonged to the community, might be rebutted by the State, by showing that the wife was separate in property from her husband, or that the property was bought in her own name by the wife with her paraphernal funds, or that the husband had himself transferred the goods to the wife for the purpose of replacing her paraphernal effects alienated by him; and. that the burden of proof is upon the State to rebut the presumption of ownership by the husband, by showing the above or similar exceptional facts or circumstances, making the property stolen the separate property of the wife.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the verdict of the jury be set aside, and that the 'cause be remanded to the lower court for a new trial, with directions to that court to be governed by the views herein expressed, and otherwise proceed according to law.


text:
    J. C. Walker v. B. M. G. Brown, Sheriff, et al.
    A tender of payment by the creditor in order to exonerate him, must be followed by a consignment or deposit of the money or notes. O. O. 2103,2165; O. P. 405, 407, 412.
    APPEAL from the District Court of East Feliciana, Ratliff, J. Tried by a jury.

      John Me Yea, for plaintiff.

      W. F. Kerncm, District Attorney, for defendants and appellants.
   Voorhies, J.

The plaintiff, as sheriff of the parish of East Feliciana, was collector of the State taxes for the years 1839 and 1840. His account for the year 1840 was audited by the State Treasurer on the 14th of March, 1842, and resulted in a balance against him of $7,367 64. Previously, the following-letter was received by him:

“ Treasury Department, New Orleans, ( December 4th, 1839. j
uJohn O. Wallcer, Fsq., Sheriff of East Feliciana.
“ Dear Sir: — Your letter of the 17th inst. came to hand this morning, and in reply, allow mo to say that you can take in payment of the State taxes all notes of the several banks located in this city.
“ I remain, very respectfully,
“ Your obd’t. servant,
“F. Gardere, State Treasurer.”

In his reply to the Legislature, dated the 20th of February, 1843, the State Treasurer noticed this claim in the following terms:

“The case of the former Sheriff of East Feliciana for the year 1840, requires particular- mention. A very few days after the sudden depreciation of the notes of the banks of Atchafalaya, Improvement and others, that officer tendered in settlement of the balance now remaining due, notes of said banks, which the Treasurer declined receiving. The Legislature being then in session, a resolution was brought forward authorizing a settlement in cases similar to the above, and was rejected. Since when, no legislative action has been had on the subject.”

On the 20th of September, 1843, a writ of execution was issued by the State Treasurer for the balance thus audited against the plaintiff and his sureties, directed to the Sheriff of the parish of East Eeliciana. Upon the seizure of his property under this writ, the plaintiff obtained an injunction. After the lapse of many years, the cause was finally submitted to a jury, who returned the following verdict: “We, the jurors, dissolve the injunction, and that John G. Walker and his securities pay to the State of Louisiana the value of the money tendered by John O. Walker or his deputy” The Judge a quo, after having refused to grant a new trial, rendered a judgment pursuant to that verdict. The defendant thereupon appealed from said judgment.

The principal, indeed the only ground urged by the plaintiff and appellee in support of the injunction, is that he acted under the instructions of the State Treasurer as to what kind of funds should be received by him in payment of taxes due the State; that the Treasurer possessed the power to give such instructions ; that under, the instructions thus given, he collected nearly the whole amount of the taxes for the year 1840 in notes of the Atchafalaya Bank, which was one of the “ several banks located in New Orleans” at that time; and that after deducting the “ insolvent list” and the Collector's commission, the balance was tendered by him to the State Treasurer, who declined receiving the same, on the ground that the bank had stopped payment. Hence it is insisted, that the plaintiff should be exonerated on the principle, that when a loss is to be borne by one of two parties, that he who had the means of pre-. venting it, and did not, should bear it.

The evidence leaves no doubt on our minds but that the plaintiff received those bank notes in payment of the State Taxes in good faith, pursuant to the instructions which he had thus received.

But waiving the consideration of the question, whether the Treasurer possessed any such power or not, there is nothing to show that the alleged tender was followed by a consignment or deposit of the notes; both of which were essential to exonerate the plaintiff. O. O. 2163, 2165 ; O. P. 405, 407, 412 et seq. ; 2 An. 243; 6 An. 17.

It may be proper to remark that we consider it immaterial to notice the objection in relation to the sureties. If they were not parties to the suit, it is clear that the judgment cannot affect them.

We are of opinion that the Judge a quo erred in decreeing the dissolution of the injunction as qualified by the verdict of the jury.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the injunction in the case be dissolved, so as to allow the defendant to proceed in the execution of said writ in accordance with law, and that the plaintiff pay the costs of both courts.

Merrick, O. J., took no part in this case.


text:
    Rebecca Hickman v. G. W. Flenniken, Administrator, et al.
    A paper filed by an administrator purporting to be his account, but wliich merely gives a statement of the creditors of the estate and the debts which he has paid, but does not show that he had any money in his hands to be distributed, or that he collected or distributed any money of the succession, is not such an account or tableau as could be homologated and made binding upon either the creditors or the heirs, unless they had been personally cited.
    Any one heir may compel the administrator to render his account without the concurrence of his co-heirs and without making his co-heirs parties to the suit,
    APPEAL from the District Court of Bast Feliciana, Bailiff, J.

      A. M. Dunn and Bowman & Delee, for plaintiff.

      Muse & Ha/rdee, for defendants and appellants.
   Merrick, O. J.

This suit is brought to annul an administrator’s account, which shows a balance to his credit, and to enjoin him from selling property of the succession to pay the same.

At the time the account was homologated the minor brother and sister of the plaintiff, if not the plaintiff herself, were represented by Samuel Flennilcen, as tutor, but the tutor was not cited, although it is proven that he was present in court when the judgment homologating the account was rendered. ■ Neither has the tutor been made a party to the present suit, and the plaintiff alleges that she sues on behalf of herself and minor co-heirs.

The account was homologated in open court, after ten days publication, on the 10th day of November, 1864, and this suit was brought on the 8th of December, 1855, more than one year afterwards.

The defendant has excepted to the action on the ground, that the tutor ought to have been made party to it, and he has also pleaded the prescription of one year in bar of the same.

It occurs to us that the judgment attacked cannot have- the force of the thing adjudged under any circumstances, and therefore the tutor can have no interest in maintaining it,, and it can furnish no basis for the. plea of prescription.

The administrator in the- paper which purports to be his account, has merely given a statement of the creditors of the estate and the debts which he has paid, but he does not show that he had any money in his hands to distribute or that he had collected and disbursed any money of the succession. It was, therefore, neither an account nor a tableau of distribution. It is true that on one side of the account, the administrator charged himself with the amount of the inventory, but on looking into the inventory we find it consists entirely of property, viz, slaves, there being on it no items of cash or active debts. It was not in the power of tho administrator to treat the slaves as dash in his hands and thus change the ownership of the property. Tho paper, therefore, which he presented to the court, was not such an account or tableau as could be homologated and made binding upon cither the creditors or the heirs, unless they had been personally cited. Succession of Hart, 8 Rob. 121; Succession of Day, 2 An. 895; C. C. 1168, 1170.

In a recent case, we held that whore the administrator had funds to distribute among the creditors, and his tableau of distribution was regularly published and homologated, it had the force of the thing adjudged against the heirs as to the funds so distributed, although the administrator himself figured as a creditor upon the tableau. It is apparent that the two cases are dissimilar.

It is further urged by the defendant, that one of several heirs cannot call upon the administrator to render an account without making the co-heirs parties to the suit, and the case of Douglas v. Edwards, 9 La. 234, decided in 1836, is relied upon to sustain this position.

We think since the changes introduced by the Act of 1837, and the subsequent legislation, that any person interested may compel the administrator to render his annual account. For it is provided by the third section of the Act of 1855, p. 78, that the creditors “ or any person interested,” may file in the Clerk’s office a motion to know whether the executor, administrator, curator or syndic, has any funds, and that such executor, administrator^ curator or syndic, shall be bound within ten days to file a true statement of his accounts and bank book, (if he has one,) showing the amount of funds collected by him, and on his failure so to do he is to be dismissed from office and pay ten per cent, per annum interest on any sum for which he may be responsible. By the fourth section of the same Act, it is made the duty of executors, administrators, curators and syndics, at least once in every twelve months, to rentier to the court from which they received their appointment, a full, Mr and perfect account of their administration, and on failure to do so they shall be dismissed from office and pay ten per cent, interest, &c.

The sixth section of the Act of 1855, p. 54, relative to Clerks of the District Courts, confers on them the power to order all executors, tutors, curators, administrators and syndics, within ton days after such order may have been served, &c., to file their accounts. See the French text of the Article.

Under these provisions of law no good reason can be urged why an heir who desires the rendition of an account as preliminary to a partition, or in order to obtain the sums to which he is entitled as heir, may not compel the administrator to render his account without the concurrence of his co-heirs and without encountering the delay and expense of making such co-heirs parties defendant.

As the affidavit was clearly insufficient to entitle the party to a writ of sequestration, there is no cause for amending the judgment in favor of the plaintiff. Raynaldson v. Hamilton, 5 An. 203.

Judgment affirmed.


text:
    Denis Cronan v. The Succession of McDonogh et al.
    A title to real estate does not pass by the adjudication of an auctioneer, unless lie was authorized in writing to make the sale.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      ff. B. Dunea/n, for plaintiff.

      JLivingston, for the Cities of New Orleans and Baltimore, appellants.
   Merrick, C. J.

We consider the objections to the form of the action virtually determined by the decree of this court remanding the cause in order to make parties. See case, 9 An. 302.

The plaintiff Oronan and the appellants, the Cities of Baltimore and New Orleans, the universel legatees under the will of McBonogh, claim title through A. Hodge, Jr.

The act of sale from Hodge to Oonrey was duly recorded, and although junior to the auction sale under which the legatees of MeBonogh claim, must nevertheless prevail over it, because among other reasons it does not appear that the auctioneers were authorized in writing to make the sale. C. C. 2584; 9 An. 363.

The universal legatees of the will of MeBonogh being without interest in the property, cannot question the 'sale to Cronan for irregularities, if any such exist.

Judgment affirmed.


text:
    VanWickle & Co. v. Steamer Belle Gates and Owners.
    A privilege on a steamboat for damages, caused by non-delivery of freight, is lost at the expiration of sixty days from the date of the default and consequent liability. After that time elapses, a sequestration will not lie.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Oollins & Wooldn'idge, for plaintiffs and appellants.

      Mott & Fraser, for defendants.
   Buchanan, J.

This was a suit for damages caused by non-delivery of freight, and was commenced by sequestration. A rule was taken to set aside the sequestration, on the grounds, first, that the plaintiffs, on the face of the papers, had no right to a sequestration, and, secondly, that the affidavit was insufficient.

It is only necessary to consider the first of these grounds.

The petition sets forth that the shipment of cotton, which forms the basis of the plaintiffs’ demand, took place on the 11th of April, 1856, at Red River. The destination of the boat was New Orleans, and the cotton was consigned to Pmjne & Ha/'rison, merchants in that city.

The time of the boat’s arrival at her port of destination is not mentioned, but the bill for damages for non-delivery of the cotton is made out under date of the 25th April, 1856, and that date is assumed in the argument of plaintiffs as that of the default and consequent liability of the defendants, under Article 3204 of the Civil Code, paragraph 1. This suit was commenced on the 2d of July, 1856, more than sixty days afterwards. Under the settled jurisprudence of this court, as reviewed and confirmed in Blanchin v. Steamer Fashion, 10 An. 49, the privilege is lost.

The plaintiffs’ counsel have made an extended argument against the doctrine here spoken of, but we regard the question as no longer an open one. We may observe that the Legislature have indirectly sanctioned the limitation of privileges on ships and vessels created by our construction of the Articles of the Code, by establishing, in the Act of March 15 th, 1842, (p. 282) a longer limitation, for the privilege of a vendor of firewood to steamboats. See also Acts of 1853, p. 159.

Judgment affirmed, with costs.


author: Lea, J.

text:
    M. & B. Mullen & Co. v. T. J. Harding and J. M. Bass.—R. M. Scott et al., Intervenors.
    A judgment debtor is at liberty to waive the formalities of the law, so far as they exclusively affect his personal, interests.
    A dona fide purchaser at a Sheriff’s sale will be protected against any attack upon his title upon the ground of informalities, unless the plaintiff show injury to himself in consequence of such informalities.
    APPEAL from the District Court of Madison, Farrar, J.

      A. T. Steele, for plaintiffs.

      Stacy & Sparrow, for defendants and appellants.
   Lea, J.

There is ’ no dispute about the material facts of this case. In December, 1846, the plaintiff obtained a judgment against William Amos and Thomas P. Poe, commercial partners, for the sum of $5,298 65, with interest thereon at the rate of ten per cent, per annum from the 5th April, 1842. This judgment was duly recorded in the parish of Madison, and was reinscribed before the lapse of ten years from its first rendition. As thus inscribed, it operated as. a mortgage upon any immovable property of either of the defendants situated in that parish.

In the year 1845 Thomas P. Poe, one of the defendants, purchased from U. Pargoud the south half of section 20, township 17, range 13 east, for which he gave $638 50 in cash and two notes, each for a like amount, payable respectively in one and two years after date, secured by a special mortgage on the property sold.

The two notes above described not having been paid at maturity, Pargoud obtained an order of seizure and sale of the tract of land sold by him to Poe. The writ of seizure and sale was issued on the 30th May, 1848, and the defendant, Poe, having made a waiver of notice, appraisement and advertisement, the property was offered for sale on the 3d day of June, 1848, and sold to G. L. Douglas for $2,900.

Douglas subsequently sold to A. P. Hynes, who afterwards reconveyed the property to Douglas. The property by successive transfers passed from Douglas to the Union Bank of Tennessee, and from the Bank to John M. Pass, who sold an undivided half to Thomas J. Harding. The property is now owned in undivided halves by Thomas J. Herding and John M. Pass, the present defendants, against whom the plaintiffs have brought this suit in the form of an hypothecary action to enforce the mortgage resulting from their judgment against Poe.

It is clear that if the sale made at the suit of Pargoud had been regular in every respect, the property would have passed to the present purchasers unincumbered with the judicial mortgage in favor of the plaintiff.

It is contended that the irregularities attending the sale were such as to deprive it of the force and effect of a judicial sale, and that the judicial mortgage remains in full force and effect. A judgment debtor is certainly at liberty to waive the formalities of the law, so far as they exclusively affect his personal interests, and the court has frequently held that a bona fide purchaser at a Sheriff’s sale will be protected against any attack upon his title upon the ground of informalities, unless the plaintiff show injury to himself in consequence of such informalities. See Copeland v. Labatut, 6 An. 61; Stockton v. Downey, 6 An. 581. In this case no attack is made upon the sale, and the only question is whether the plaintiff’s mortgage has ever been legally cancelled.

The defendants in this case are bona fide purchasers for a real and sufficient ■consideration. They are also without notice, unless they are to be held to a ■constructive notice of the details of the proceedings in the case of Pargoud v. Roe. They hold under a sale made by the Sheriff in virtue of an order of court. Unless the plaintiffs can show that they have suffered injury by the in-formalities complained of, they ought not to be permitted to attack the validity ■of the proceedings.'

It is not shown that the property did not sell for its full value, and moreover It appears that had it sold for twice the amount it actually brought, the whole sum would have been absorbed by the claims of creditors holding judicial mortgages prior in the date of their registry to that of the plaintiffs.

The plaintiffs could not, therefore, by any possibility, have been injured by the alleged informalities in the sale, and have, therefore, no interest in invoking them.

The sureties of the Sheriff have no right to intervene in this suit. The payment made by them, as sureties of the Sheriff on his official bond, could only subrogate them to the rights of their principal, the Sheriff, and they have no more right to intervene in this suit than he would have.

It is ordered, that the judgment appealed from be reversed, so far as it relates to the defendants, and that there be judgment in favor of the defendants. It is further ordered, that as respects the intervenors the judgment appealed from foe affirmed, and that the costs of this appeal be paid by the appellees.


author: Spoppord, J.

text:
    Gaty, McCune & Co. v. The Franklin Marine and Fire Insurance Company.—C. C. Lathrop, Garnishee.
    When the answer of the garnishee admits in effect, the possession of funds belonging to the defendant, and he refuse to state their amount, a point upon which he was specially interrogated, he is presumed to have had a sufficient amount to satisfy the demand of the plaintiff.
    debtors cannot be permitted to tie up their funds indefinitely by putting them in the hands of an agent.
    ÍJntil notice to third persons interested in the dedication of the fund, creditors may attach.
    APPEAL from the Fourth District Court of New Orleans, Peynolds, J.

      G. B. Singleton, for plaintiff.

      M. M. Gohen, for the garnishee and appellant.
   Spoppord, J.

The Franklin Marine and Fire Insurance Company, domiciled fin the State of New York, had an agency in New Orleans, under the management of G. O. Latlwop.

The plaintiffs held adjusted claims for losses upon the company, which claims ■■accrued in St. Louis, Missouri.

They brought suit upon these claims here, and prosecuted them to a judgment, contradictorily with the company, from which no appeal has been taken.

G. O. Latlwop was made a garnishee in the cause, and appeals from a judgment condemning him to pay the debt

The cause turns wholly upon the sufficiency of his answers to interrogatories. Being asked: “Had you, at the date of the attachment in this case, or have you now, in your possession or under your control, any rights, credits, money or property, of any description whatsoever, belonging to the said Eranklin Marine and Eire Insurance Company, or in which the said company is interested ? If yea, state the value thereof. Are the rights, credits, effects, money and property of sufficient value to pay the plaintiff’s claim, say $8,900, interest and costs ?”

He answers: “No, but that, prior to the service of the writ and attachment on him in this case, he had some funds in hand under an arrangement with said company to hold them exclusively to pay any losses occurring at this agency; that with a view of closing said agency before the 1st day of Jannary, 1854, he has applied, and is applying said funds to the re-insuring the outstanding debts and adjusting losses as far as said funds may go, and therefore will have nothing left in hand belonging to said company.”

To the interrogatory: “Are you not the agent of said company? If yea, have you not bills receivable and other assets in your possession, or under your control, belonging to the said company? If yea, annex to your answers a full and detailed schedule of said bills receivable or other assets belonging to said company.” He replied: “No,'except for liquidating; that he had been agent, but closed the business with the end of the past year, as was determined on some time before. He had funds and bills receivable, as stated in his answer to interrogatory number one, but they were used, and ewe Toeing used, for the purposes set forth in his answer to said interrogatory number one. Of those funds the said company had no control; they had endeavored to direct them to other uses than those above stated, but this respondent had resisted all such efforts, as said company had no right except to any balance that might have chanced to be due to them after closing up all the risks insured by this agency, and after payment of expenses, commissions, &e., &c.”

The interrogatories were served on the garnishee on the 31st December, 1853, and answered on the 9th January, 1854.

The answers are far from being clear and categorical. They, however, in effect admit the possession 'of funds belonging to the company, and as the garnishee refused to state their amount, a point upon which he was specially interrogated, he is presumed to have had an amount sufficient to satisfy the demand of the plaintiffs. When the interrogatories were served, he was, by his own admission, the agent of the company; when he answered, he was still the agent, “for the purpose of liquidating.”

He pretends to no claim to the funds in his own right; he discloses no third persons who had liens or any other vested rights upon the funds; he does not declare that any creditors of the company had been notified that the funds were held for their benefit; his only pretence is, that by his understanding of his agreement with his principals (an understanding to which it also seems the principals did not assent) he was, as liquidator, to keep the funds until he should finally pay up all losses occurring at the agency here, and re-insuro at his leisure all outstanding risks, and pay expenses, commissions, &e. Then he admitted the company would be entitled to such balance as should chance to remain.

This statement is sufficient to vindicate the judgment appealed from. Debtors cannot be permitted to tie up their funds indefinitely, by putting them in the hands of an agent, even by instructing him to do what this agent assumes to do against the wishes of his principal. At least, until notice to third persons interested in the dedication of the fund, creditors may attach.

Judgment affirmed.