author: Hyman, O. J.

text:
    No. 1290.
    T. C. Mahan v. Steamboat Olive Branch, Captain and Owners.
    A steamboat is responsible to the consignees for the damage caused to freight, by failing to deliver it at the time specified in the bill of lading. The amount of damages must he proved.
    APPEAL from the Third District Court of New Orleans, FeUowes, J.

      Sullivan, Billings & Hughes, for plaintiff and appellant.

      Wm.,H. Hunt, for defendants and appellees.

      Reporter. — The evidence in this case shows that the steamboat Olive Branch took on board at St. Louis, a lot of apples consigned to T. C. Mahan, at New Orleans, and gave a clear bill of lading; that on the way to New Orleans the apples were landed, and after several days delay reshipped on another boat; that on their arrival at New Orleans they were very much damaged, and nearly valueless — caused by the delay in transposition. The price of good, sound apples is shown to be $10 50 per barrel. The damage to the lot of apples is shown to be $327.
   Hyman, O. J.

This case was remanded to the District Court for- new trial, because plaintiff had not shown that the apples, for which damages are claimed, were sold at their value, and because he had not established satisfactorily the extent of his damages. 18 An. Rep., p. 107.

On the new trial, no additional evidence was adduced, but such as showed that the apples were sold at their value, and that plaintiff had sustained a certain amount of damage.

The jury and District Judge disregarded the additional evidence, and gave verdict and judgment for defendant.

It is impossible to account for the procedure of the Judge and jury, as neither the knowledge, nor veracity of the witness, whose evidence shows that the apples were sold for their value, and that plaintiff sustained certain damages, is questioned.

■ It is satisfactorily proved that the apples were sold at their full value, and that plaintiff, through the want of diligence on the part of defendants, in preserving and delivering them, lost three hundred and twenty-seven dollars, for which sum he should have had judgment, with interest, as claimed by him.

It is decreed that the verdict of the jury be set aside, and that the judgment of the District Court be annulled and reversed. It is further decreed, that plaintiff recover of defendants the sum of three hundred and twenty-seven dollars, with legal interest thereon, from the 16th day of November, 1864, till paid, and the costs of this suit in both courts, and that plaintiff’s privilege in the steamboat Olive Branch, to secure payment of his claim, be recognized and enforced.


source: Caselaw Access Project

author: InsiiEr, J.

license: Public Domain

text:
    Nos. 1227 & 1237.
    John Perkins, Sr., v. John Perkins, Jr.
    Where an appeal has been taken from a judgment of the lower court, and filed in the Supreme' Court thereby investing the appellate court with jurisdiction over the case, the appeal cannot be withdrawn without the consent of all the parties to the record. The consent of the parties, plaintiff and defendant, will not bind the intervenors.
    Where an intervention has been filed before or after issue joined, time must be allowed to cite th# party against whom it is directed, and the same delays to answer, eto.

      Appeal from the District Court, Parish of Tensas, Farrar, J.

      A. If. S H. If. Ogden, for executors.

      C. M. Conrad <& Sons, for intervenor and appellant.

      T. P, Farrar, curator ad hoc.
   InsiiEr, J.

On the 7th day of April, 1837, the plaintiff, John Perkins, Sr., by notarial act passed in the city of New Orleans, made to his son, John Perkins, Jr., a donation inter vivos, duly accepted, of one of the largest estates in Louisiana, comprising five plantations, slaves, etc.

It was stipulated in the act, as the conditions on which the donation was made:

1.That the donee should pay to his father annually, and on the first day of January, the sum of fifteen thousand dollars.

2.That he should pay to Mrs. Ellen M. Perkins, the widow of the donor’s deceased son, William Perkins, twenty thousand dollars.

3.That at the death of the donor, he should, pay to the grandchildren of the donor, the daughters of the deceased’s son, William Perkins, three in number, the sum of two hundred and forty thousand dollars.

John Perkins, Jr,, under this act of donation, went into possession of the large estate of eighteen thousand acres of land, etc., and enjoyed its revenues.

He complied with the second condition, but the other conditions remained unfulfilled; and the present suit was instituted against the donee, an absentee, to whom a curator ad hoc was appointed by the Court, to revoke the donation.

Afterwards, some of the creditors of John Perkins, Jr., instituted attachment suits for large amounts.

These creditors attempted, but were not allowed by the Court to intervene in the present suit, the Court being of opinion that the interventions would retard its progress, as there .was not sufficient time to have the petitions of intervention served, and issue joined on them.

The case was' submitted to a jury, and a judgment was rendered on their verdict in favor of the plaintiff revoking the donation, and from this judgment the curator ad hoc and the creditors have appealed.

In this court the defendant appears by.counsel and attorney in fact, specially appointed by him, who has filed, with his procuration, a paper, in which he states, that the defence of the case is entirely without merits, and he acquiesces in the demand of the plaintiff to the dismissal of the appeal.

This, so far as regards the appeal taken by the ourator ad hoc, he is at liberty to do; but the appeal taken by the creditors, whose interventions were rejected, stands upon a very different footing. They, as appellants, regularly in court, have the legal right to prosecute their appeal, and that right cannot be defeated by any cbncert of action between the original parties to the suit. 571, C. P.

The joint motion of the plaintiff and defendant, to dismiss the appeal, is therefore overruled.

The proceedings in this case, in the court below, stated chronologically, were as follows: The petition, in the revocatory action, was filed on the 13th December, 1865, and two days after a curator ad hoc was appointed to represent the absent defendant. Ha was served with process on the 21st March following, but no issue whatever was joined by him until the 19th November, 1866, when he filed an answer. Two days afterwards the interventions were filed, and being dismissed, the trial took place, and the judgment therein was rendered on the 21th of the same month.

The object of the ere litors’ interventions, in the suit, was to prevent the revocation of the donation, which they considered a fraudulent and collusive scheme to defeat their claims against the donee.

On these grounds they had the legal right to intervene in the suit, either before or after issue joined, provided the interventions did not retard the principal suit. See Art. 391, O. P.

No service of the interventions could then be legally made, to enable them to take part in the trial which took place; but, otherwise, they declared their readiness to go to trial.

The question submitted to us by bills of exception, and by assignment of errors, is' whether, under the facts and circumstances of this case, the intei-ventions were properly shut out.

This Court has already had occasion to interpret Art. 391 of the Code of Practice, and the construction put upon it is not the strictly literal one adopted by the Court below, but that the letter of the law may be disregarded with the honest intention of seeking its spirit; and the Court says: “ The construction which the inferior Judge has given to the Art. 391 of the Code of Practice, is Lord Coke’s maledicia interpretado, corrodil viscera testi.”

The substance of the decisions in 16 La. 268 and 3 An. 331, is, that although an intervention, filed before or after issue joined, cannot retard the principal suit; yet, time must he allowed to cite the party against whom it is directed, and the same delays to answer, etc. Quando lex aliquid alioui conced'd, concederé videtur id sine quo res ipsa esse non potest.

The Judge below erred, in refusing to admit the creditors’ interventions. Art. 391, C. P. And the judgment rendered by him must he set aside, and the cause remanded.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is further ordered that the interventions of the creditors of John Perkins, Jr., the appellants in this case, in the case of John Perkins, Sr., v. John Perkins, Jr., be admitted and allowed, and that the case be remanded to the District Court for that purpose, and for further proceeding according to law. It is further ordered, that the costs of appeal be paid by the appellees.

Labauve, J., recused.


author: Ix,sxjEY, J.

text:
    No. 1,000.
    John M. Gould & Co. v. Louisiana Mutual Insurance Co.
    ¡Vhere a shipper contracts.with an insurance company, to insure the safe transportation of a cargo, or portion thereof against marine loss, with the words in the body of the policy‘'only against qeneraX average, and absolute total toss.*’ the underwriters are oaly bound in case of absolute destruction or total loss of the goods insured.
    Vhere the vessel has bem stranded, and the oargo has been wrecked and sold for salvage, the shippers cannot recover the insurance from the underwriters, under the clause in the policy, "absolute and total loss."

    A LA PPEAL from the Fifth District Court of New Orleaus, Leaumnnt, J.

      E. W. Huntington, for plaintiffs.

      Race, Foster & E. T. Mei-rick, for ofendan ta.
   Ix,sxjEY, J.

The plaintiffs claim in this action, on an open marine policy of insurance, the sum of two thousand three hundred and thirty-nine dollars, the value of three invoices of goods, boots, shoes and caps, shipped by them at New York on the first August, 1856, on the ship Isaac Alberton, bound to New Orleans. The entry of the risk is under date of the 11th September, 1856, and it is only against general avei-age and absolute total loss.

The defendants plead the general issue, and they set up specially the character of the loss, which they aver was not an absolute total one.

The case was submitted to a jury, and from a judgment on their verdict in favor of the plaintiffs, the defendants have appealed.

The plaintiffs, having proved the insurance of their goods and their value, the question is presented, whether there was an absolute total loss of the goods.. If this is shown, the defendants are bound, but not otherwise.

The Isaac Alberton sailed from New York for New Orleans on the 7th August, 1856, and about the end of the same month, she was wrecked on a reef about twelve or fifteen miles from Key "West. She drifted over the reef, and sunk in four or five fathoms water, the whole of the vessel being submerged, except a part of the stern-rail.

Nearly all the cargo was saved.-by wreckers, except that portion of it which was destroyed or floated off when the wreckers, to get at the freight, blew up the decks. The goods saved were taken to Key West, libelled and condemned for salvage in the United States District Court, in that place, and subsequently sold, yielding, after the payment of costs, salvage, etc., some seven hundred and fifty dollars.

Before proceeding to examine the testimony in the record, we must determine the meaning of the words .in the policy, “absolute total loss,” whether they must be understood in their natural or in their legal sense. A very careful examination of the numerous authorities, which, by the industry of counsel have been furnished us, we are satisfied that the underwriters in this case insured only against the complete and absolute déstruction of -the thing insured, or its entire physical loss.

In Gueslain v. The Columbian Insurance Go., the insurance was upon goods specified in the margin, being beef, butter, soap, candles, apples and potatoes, and the policy contained the following written clause: “The assurers of this policy take no other risk than general average, and such total loss-as may arise by the absolute destruction of the property.” It appears that the ship being stranded, the cargo was unladen and stored. A part of the cargo was afterwards put aboard another vessel, and wrecked and lost. Part of the cargo, consisting of beef, candles, soap, apples and potatoes, perishable articles, was sold at Barnegat, at public auction, and the residue lost or stolen.

The Supreme Court said: “ The defendants are entitled to judgment. There is neither a case of general average, nor an absolute destruction of the property, andin no other event were the defendants to beliable. Theidea that for each item or article of the cargo which was totally lost, the defendants are liable, is not well fouir led. The insurance was upon so much cargo as an integral subject. In the French policies at Marseilles, certain perishable articles are declared free of average, general and particular, which means that the underwriter is answerable only for an entire loss of the subject insured; and therefore, where a part of a cargo of wheat has been thrown overboard in case of extremity, the insurer has repeatedly been held not responsible. 1 Emery’s, O. 12, § 45. 7 Johnson’s R. 527.

In Murray v. Hatch, 6 Mass. R., the C.ourt says:,,, “ The memorandum is a restriction to some purpose, in every event insured against, that the insurer is in no case liable, unless a total loss be proved.”

In Nicholson v. Columbian Insurance Co., 3 Cain’s Rep. 110, theSupreihe Court of New York use this language: “ So long as the corn physically existed, there could not be a total loss. Though good for nothing, the defendants were not liable, being protected by the clause in the memorandum.” See also 1 Johnson’s cases, Wilson v. Smith, 3 Burrowes, 1350.

In this country, the above rule is uniformly recognized by the courts. There must be, to constitute an absolute total loss, “ a destruction of the thing in specie.” 1 Cain’s, 196; 3 Cain’s, 108; 1 John’s cases, 226; 3 ib, 321; 14 ib, 138; 18 ib, 208; 4 N. S. 640; 5 N. S. 520; 1 Wheat. 219;‘25 Pick. 415; 2 Summer, 245; 7 How. 605; and in Skinner v. Western Marine Insurance Company, 19 La. 274, this Court held that so long as the memorandum articles continue to be of any value, the underwriters are not liable for a total loss. • -

It seems, says Phillips, 1 vol. 487, that “ although such articles are so damaged as to be rendered absolutely of no value, still if they remain in specie, if they so subsist that they may still be properly designated by the same name, the underwriters are not liable for the loss.” And Kent, vol. 3, 295, states plainly the doctrine recognized by our courts. He says: “Although a total loss may exist in certain cases, when the voyage is defeated, yet in eases of perishable articles, within the memorandum, the insurer is secure against all damage to them, whether great or small, whether it defeats the voyage or only diminishes the price of the goods, unless the article is completely and entirely destroyed, so as no longer physically to exist.”

These authorities refer, it is true, to memorandum articles; -but á fortiori, the principle announced in them, becomes more applicable where a policy, as in this ease, apart from the risk of general average, places the insurer’s liability solely upon the event of an absolute total loss, and this doctrine is not shaken by the authorities relied on by plaintiffs in 14 Conn. 60; 25 Ward. 618; 6 Cowan, 270; and 19 An. 42. The plaintiff’s position, that a sale for salvage is an absolute total loss, cannot be maintained either upon principle or authority. - '

It is in conflict with the Gueslain case, in which memorandum articles were, as we have seen, sold at Barnegat. It is not concordant with the case of Aranzamendi et al. v. Lou. Ins. Co., 2 La. 432, in which, in a very elaborate and able opinion, rendered by Mr. Justice Porter, as the organ of the court, it is said: “A preservation of the thing up tcvthe time "of its arrival at an intermediate port and sale there, must have the same effect as at the terminus of the voyage, unless (in the most favorable point of view, in which the law can be considered for the plaintiff) it is'shown the cargo could not have been carried there without a total loss being the inevitable consequence. ”

The sale of insured property for salvage is not beyond the control of the owner of it. It is indeed entirely optional with him, whether he will have it sold or not. It is laid down as a rule, in Benedict’s Admiralty Practice, $444, p. 244, ed. 1850, that “instead of a sale, the Court may, oil. the application of the claimant, under an appraisement of the property to be made, order the same to be delivered to the claimant, on his depositing in court so much money as the Court shall direct; or the Court ma,y order it to be delivered to him, on his giving a stipulation with sureties in such sum as the Court shall direct to pay the money awarded, and abide the final decree rendered by the Court, if any appeal be taken. Orders for sale or delivery may be taken at any time, as well in vacation, as in term.”

: Arnould, p. 1004, referred to by the plaintiffs, shows, as we think, quite clearly, that salvage cannot be considered as an absolute total loss, but a mere constructive loss. This is his language: “If the ship founders at sea, or goods go in bulk to the bottom of the ocean, so as to leave no assignable chance of their recovery; this 4s a clear case of absolute total loss. If, on the other hand, they are merely submerged in shallow water, so there is a chance of getting them up again, though at a cost probably greater than their value when recovered, this is only a constructive total loss, and, the insured to recover the whole amount of insurance must give due notice of an abandonment.

Having disposed of the question of law, we will now proceed to ascertain and determine whether there was, in point of fact, an absolute total loss of the plaintiffs’ goods insured by the defendant. This, it devolved on, the plaintiffs, under the plea of the general issue, to prove.

None of the goods, lost or destroyed by the acts of the wreckers, are' shown to have belonged to the plaintiffs. The remainder of the cargo was saved, or to use the plaintiff’s language, “fished up,” and among the cargo thus saved were boxes and packages, with marks upon them.

So far from the plaintiffs’ goods having been lost or destroyed in specie, there is a strong probability that they were saved. Without attaching too much significance to the fact that the plaintiffs were engaged in collecting, and did collect evidence at Key West, to be used on the trial of this case, no light is shed by them by the production of the record of the case in admiralty there, as to the true state of the case. There was certainly an average adjustment, which is not in the record, upon which the plaintiffs figured as sharers of the proceeds of the net proceeds of the cargo of the wrecked ship, and to recover their distribute share in these proceeds, the plaintiffs appointed John T. Adams their special agent. By the subjoined extract of their letter to the defendant, written in December, 1857, it may be well inferred that the plaintiffs’ goods were saved in specie. They say: “ The goods were an actual total loss to us, so far as they were of use to us in our business, they could not have been sold as an article of merchandise, having been under water a long time, and were fished up from a depth of twenty feet, the deck of the wreck being reported such to that depth. It is well known that the articles composing our invoice, when so completely saturated with salt-water, never dry thoroughly; the salt reappears, whenever the atmosphere becomes damp. ”

They go on then to give their interpretation of the words absolute total loss, which they do not constrne to mean the physical destruction of property thus insured against; but, as in their own case, the small' per centage realized upon the amount of the insurance.

Being satisfied that the plaintiffs have failed to make out their tardy suit, which was only brought two years after the loss of the.ship, it is’ unnecessary to examine the defendant’s bill of exceptions, nor to determine whether there was any suppressio veri on the part of the plaintiffs, when insuring their goods a considerable time after the shipwreck.

We are of opinion that the judgment of the District Court should be reversed.

It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment- appealed from be annulled, avoided and reversed; and proceeding to give the judgment, which, under the -' law and facts of the case, should have been rendered in the court below. It is ordered, adjudged and decreed, that judgment be and it is hereby' rendered in favor of the defendant, the Louisiana Mutual Insurance Co., and against the plaintiffs, J. M. Gould & Co., and that the said plaintiffs and appellees pay the costs in both courts.

P ‘UHcm for Rehearing, by plaintiffs. — The plaintiffs solicit a rehearing ' on the following grounds, to-wit:

1. The Court erred in deciding that nearly all the cargo was ss ved by wreckers.

2. It erred in holding that absolute total loss means the complete and absolute destruction of the thing insured, or its entire physical loss; and in saying that this rule was uniformly recognized by the courts in this country.

3. It erred in applying to this case the principle applicable to memorandum articles.

I. The plaintiffs were not guilty of laches as charged by the Court, for' not intervening in the suit for -salvage at Key West, as they were not' aware of the existence of the suit until long after its termination.

5. After the plaintiffs had shown the destruction of the ship, and non-arrival of the cargo at the port of destination, it was not incumbent upon thorn under the general issue, toshow the total loss of their goods.

6. The Court erroneously held that a strong probability existed that the plaintiffs’ goods were saved. Whether they or any part of them, were or were not saved, was a question of fact peculiarly within the pr wince of the jury, whose verdict negatives the idea that any of them were saved.

7. The Court erred, in inferring that the plaintiffs’ goods were saved from their letter, appointing Adams their agent.

Rehearing refused.


author: Howemi, J.

text:
    No. 930.
    Matthias Doll v. John Rizotti.
    The possession of negotiable commercial paper oarries the title with it to the holder.
    The pavty who takes negotiable paper before due, for a valuable consideration, without knowledge of any defect of title, in good faith, holds it by a title good against the whole world.
    The burden of proof lies on the person who assails the right claimed by the party in possession of a bill of exchange or promissory note negotiable in form,
    A mortgage, executed to secure the payment of a promissory note, having been cancelled and erased by authority of the holder, will not be revived in favor of a subsequent holder of the note, .

      Appeal from the Second District Court of New Orleans, Thomas, J.

      Budd <& Lambert and Runt <& Denegre, for plaintiff and appellee.

      Bor nor & Benedict, for defendant and appellant.
   Howemi, J.

This is an action to recover the amount of a promissory note made to the order of and endorsed by the defendant, and to enforce a mortgage executed in favor of one A. Siekman, or any holder to secure its payment; the defence to which is, that said note was paid to the 'mortgagee and bona fide holder, who delivered the same to the defendant, after which it was lost or stolen, and upon defendant’s affidavit of its loss, the said mortgagee caused the mortgage to be erased from the public records; that the said loss and payment were duly advertised; and that the said note came thereafter into the possession of the plaintiff, without consideration, out of due course of business, and under circumstances depriving him of the legal or equitable right to recover upon the same. The case was tried before a jury, who rendered a verdict in favor of plaintiff, from a judgment on which the defendant has appealed.

In the case of Murray v. Lardner, 2 Wallace 110, the Supreme Court of the United States elaborately reviewed the authorities upon the rights and liabilities of parties to commercial paper, and educed the following propositions as settled law:

“ The possession of such paper'carries the title with it to the holder. The possession and title are one and inseparable”

, “ The party who takes it before due for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world. ”

“ Suspicion of defect of title or the knowledge of circumstances whioh would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, at the time of the transfer, will not defeat his title. That result can be produced only by bad faith on his part.

“ The burden of proof lies on the person who assails the right claimed by the party in possession. ”

In this case, it is shown that on the 21st August, 1861, the defendant borrowed of one A. Siekman a sum of money, and gave his note due at one year, secured by a mortgage in favor of the said Siekman or any ■h,older; that on 26th September following, he paid the note in presence of a witness to Siekman, who delivered it up to the defendant, and on the same day or the day following, the two applied to the notary, before whom the act of mortgage had been executed, to have it cancelled, when it was discovered that the note was lost; that the notary required the affidavit of the maker to the fact of the loss; advised the advertisement thereof, and upon the acknowledgment of Siekman that, as tiie last bona fide holder, he had received payment of the note, he gave the usual certificate, upon which the recorder of mortgages cancelled the mortgage; that the loss was, on the next day, (28th September,) and two ' subsequent occasions, advertised in the New Orleans Bee; that in December following, a stranger placed the note in the hands of E. Houillion, an attorney-at-law, to be discounted, who offered it to the plaintiff, and the two (Houillion and plaintiff) applied to Joseph Cohn, a notary, to ascertain if the mortgage was correct or not; that Cohn expressed the opinion to plaintiff that the note was genuine; that at the request of plaintiff he called at the office of the former notary, (Her) examined the original act of mortgage, satisfied himself that it was the first mortgage resting on the property and duly recorded, and returned the note to Houillion with said information, through whom the plaintiff purchased, and paid a valuable consideration for the note on 27th December, 1861, about eight months before its maturity, there being no evidence that the advertisement of the loss was known to him.

In all this or in the whole evidence in the record, we find nothing to show bad faith or want of good faith in the plaintiff. The circumstances at the time of the transfer, as described by the witnesses, are not such as to defeat his title to the note or deprive him of the right to recover on the same.

According to the doctrine as above announced, his title would not be defeated by proof, that with the exercise of active vigilance he might have discovered the existence of the facts set up as a defence. It must be shown that he acted in bad faith; that he had knowledge or closed his eyes to facts or circumstances, which would carry knowledge of a defective title. 2 Parsons on Bills, 272, 279; 20 Howard, U. S. Rep. 843; 22 Id. 96.

On the evidence, however, before us, we must view plaintiff as a holder in good faith, for a valuable consideration before maturity, and that it is defendant’s misfortune to have to pay twice. To relieve the latter under the circumstances would seriously impair the negotiability of commercial paper. There is reason for maintaining the liability of the maker of a note under such circumstances.

It is possible that he may, after payment before maturity, reissue the note, and the public are not required to be on their guard in this respect, until after maturity. Mr. Story, in his work on Notes, § 384, says, “Although, as between the real and Iona fide holder and the maker, the payment whenever and however made, will be a conclusive discharge from the obligation of the note; yet, as to third persons, it may be far otherwise; for payment means payment in due course, and not by anticipation. If therefore, the maker should pay a promissory note, before it is due, to any holder, who should afterwards, and before its maturity, endorse or pass the same to any subsequent bona fide endorsee, or other holder, the latter would still be entitled to full payment thereof, from the maker, at its maturity; for payment of the note before it becomes due, is no extinguishment of the debt as to such persons,” This rule applies with the same force and justice where the maker loses the note, for he could guard against such contingency by erasing his name or otherwise defacing the note as soon as paid.

But the question as to the mortgage rests upon a different principle. When, as is shown, the note was paid and came into the possession of the maker and mortgagor, confusion took place, and the subsequent reissue of the note could not revive the mortgage. C. C. 2214, 3252, 3374; 4 R. 416. A mortgage is but an accessory to the principal obligation, the extinction of which, though it import a confession of judgment, by prescription, payment, novation, or otherwise, releases the mortgage.

Mortgages, not being negotiable, are not subject to the rules of the commercial law by which the rights and obligations of parties to commercial paper are fixed. The mortgage in this instance, having been can-celled by the consent of the parties having the right, prior to the reissue of the note, so far as shown, was not revived in favor of the subsequent holders of the note.

We think the plaintiff entitled to recover on the note under the law merchant, but without mortgage.

' It is therefore ordered that the judgment appealed from; be reversed, and that plaintiff, Matthias Doll, recover of defendant, John Bizotti, the sum of twelve hundred dollars, with eight per cent, interest, from August 24th, 1861, till paid, five dollars cost of protest, and costs of suit in the lower court; costs of appeal to be paid by plaintiff and appellee.

Rehearing refused.


author: Ilslby, J. InsnEV, J.

text:
    No. 1282.
    Gleason & McManus v. The Sheriff et als.
    Where a creditor has acquired a privilege on movable property, by virtue of a seizure under Art. 723 of the Oodeof Practice, it cannot be defeated by the subsequent rendition of a judgment against the debtor, or the registry after tho seizure of another lien. This rule does not apply, where the property seized is affected in advan ce, with a special privilege or pledge in favor of a lessor upon goods on his premises at the time seizures are made.
    In a conflict for the proceeds of sales of property found upon leased premises, any legal evidence is admissible to prove the lessor’s claim for rent, and, when proved, the Jien attaches regardless of the action of other creditors against the property pledged.
    A judgment is prima facie evidence against third parties, unless direotly attaoked for fraud and collusion.
    A judgment, recognizing the lessor’s privilege on property, is defective, if it does not fiz the date at which the privilege attaches.
    Proof of occupation alone is insufficient to establish the relation of lessor and lessee.
    Appeal from the District Court, Parish of East Feliciana, Poney, J,

      W. F. Kernan, for plaintiffs.

      MoVea <& Hunter and Fuqua & Kilbourn, lor appellants.
   Ilslby, J.

Several of the creditors of John F. McGinn had issued executions in the judgments which they had respectively obtained against their debtor, and in virtue thereof the sheriff, on the 4th Deoeraber, I860, levied on a stock of goods.

Subsequently, on the 20th March, 1861, the plaintiffs, third opponents, caused to be stayed in the sheriff’s hands the proceeds of John F. Mc-Ginn’s stock of goods, out of which they claimed to be paid the amount due them, say six hundred and ninety-seven dollars, for which they held the lessor’s pledge, and claimed to be paid therefrom the amount due them by privilege and preference.

After trial in the court below, the claim of the third opponents was sustained according to the prayer of the petition, and the balance, if any. of the proceeds of sale, was ordered to be paid to the seizing creditors ir the order and rank of their seizures.

From this judgment the defendants have appealed.

A very careful examination of the record satisfies us that there is in error in the judgment of the District Court.

No objection seems to have beaL made to the introduction, as evidene< on the trial, of the opponent’s judgment against the common debtor, John E. McGinn, by which their privilege was recognized on the goods seized, by virtue of the.several fieri facias sued out by the defendants. This judgment, not having been attacked for fraud and collusion, is prima fade evidence against third parties. Judson v. Connolly, 5 A. 401. Fox v. Fox, 4 A. 135. 17 La. 205. 15 La. 59. Adams v. His Creditors, 14 La. 459. And there is no evidence in the record to disprove the validity of the opponents’ claim and privilege, which is superior to those of the seizing creditors.

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

Petition for a Rehearing, by appellants. — On the 4th December,' 1860, the appellants levied their executions on the stock of goods, the proceeds of which are in controversy. On that day, then, they acquired a privilege on the stock of goods for the payment of their judgments. Code of Practice, Art. 722. Even the bankruptcy of the judgment-debtor, if subsequently declared, could not defeat this privilege. Campbell v. His Creditors, 3 Rob. 106.

The rendition of another judgment against him, or the registry of another lien after that date, could not defeat it. Antognini v. Railey, 11 A. 275. Payne & Harrison v. Raerdon, 10 A. 349.

The appellants then had a special privilege fastened on these goods from and after the 4th December, 1860.

By what means is it sought to oust this fixed privilege? Solely by a judgment rendered on the 8th February, 1861; more than two months afterwards, in a suit brought seventeen days previous to judgment, or nearly two months after our special privilege was acquired by actual seizure under our judgments — a suitto which we were entire strangers — a suit which proceeded in hot haste, and evidently without contestation, if not by connivance, without any manner of notice to us, then known to be the only interested parties; and a judgment, which simply recognized a privilege without a date from which the privilege was to run.

What is the effect of this judgment rendered in a suit brought so long subsequent to the acquisition of our special piivilege?

If it were res judicata as to us, it could not bust our privilege, because it does not antedate it.

But it is not res judicata as to us. for we were strangers to it. The plaintiffs avoided making us parties, well knowing that if we were cited, no such judgment could be obtained.

As to us, this judgment, (introduced in evidence simply) only proves rem ipsam, that such a judgment was rendered at such a date. The privilege recognized by it, as to these strangers to the judgment, can only date from the rendition thereof, aud can in no view affect our acknowledged lien acquired two months before. It cannot fetroact to divest the already vested rights of third persons, strangers to the .judgment. Its terms and effect cannot be enlarged to their prejudice.

We are told it was not objected to as evidence. It could not have been objected to, for it was admissible to prove rem ipsnm, and that was all it was offered for, as will be shown presently. This Court cannot presume that it was offered for. illegal purposes, and therefore give it a greater effect than the law ascribes to it, viz: the effect of res judicata as to strangers, which is boldly claimed for it in so many words in the plaintiffs’ brief. “A record, or other paper, which is legal evidence of one fact and not of another, is never presumed to have been offered to establish what by law it could not; and though no exception be taken to ihe pan illegal, the exception may be made on appeal.” Breedlove v. Turner, 9 M. 380. Lartigue v. Baldwin, 5 M. 496. Amoat v. Russel, 1 N. S. 527.

Moreover, the appellees themselves, by their subsequent course iu proving up tlieir case, show that they had only offered the judgment to prove vein, ipsam; for they went on to introduce testimonial proof to establish a privilege antedating ours, viz: by introducing A. S. Norwood, H. Reinbarg and A. McKenna, (Rec. pp. 4 4J4) to show a contract of lease which would carry a lessor’s privilege back of our seizure, an attempt in which they utterly failed. Por they only proved an occupation without any contract of lease, or any fixed price of a house worth, they should think,"$10 or $12 per month, perhaps more! It was fully decided, in Jordan v. Meade, February 10th, 1867, and in Haughery v. Lee, 17 An. p. 22, and cases there cited, that no lessor’s privilege could flow from such a state of facts. If it could, a large part of the pretended claim was prescribed, although prescription was specially pleaded.

On Rehearing.

InsnEV, J.

This case is before us on a rehearing, and it is urged as the ground for the application, that the seizing creditors of John F. Mc-Ginn, having by virtue of Art. 722, O. P., acquired a privilege upon his stock of goods by their seizure of them, their lien so acquired cannot be defeated by the subsequent rendition of a judgment against their debtor, or the registry after the seizure of another lien.

This proposition, as a general rule, cannot be questioned; but can it be made applicable to a case where property is affected, in advance, with a special privilege or pledge, in favor of a lessor upon goods on his premises, at the time seizures by creditors of the lessee are made? This question carries with it its own answer? for, if it were otherwise, the security which the law accords to a lessor could at any time be defeated by any judgment-creditor of a tenant whose seizure was made first.

In a conflict for the proceeds of sales of property, found upon leased premises, any legal evidence suffices to prove a lessor’s claim for rent, and this proved, the special privilege attaches, regardless of the action of other creditors against the property pledged.

In our first decisipn we held, and properly, that judgments are prima facie evidence against third persons, unless they are directly attacked for fraud and collusion; (1 La. 377. 8 La. 199. 17 La. 205;) and that to put the party offering, to the proof of the facts upon which the judgment was rendered, fraud and collusion must be alleged. 8 La. 199. 14 La. 454. 13 La. 176. 4 A. 136.

On the trial of the opposition, made by the plaintiffs, the record of tlmir suit was in evidence, but it did not contain the evidence upon which judgment in their favor was rendered and their privilege recognized.

The. judgment is defective, in not showing at what date the lessor’s privilege attached, nor is it shown by other evidence. There is proof of the occupation by McGinn of the plaintiffs’ premises, at the time of, and and previous to, the defendants.’ seizures; but no contractoi lease is shown, nor any fixed price, which is essential to such-a contract, as we held in Haugherty v. Lee, 17 A. 22, and in Jordan v. Meade, 19 A. 101.

Upon a re-examination of the testimony, we do not think it sufficient to sustain the plaintiffs’ third opposition. We are, however, satisfied that the debtor, McGinn, occupied the opponents’ building previous to and when the goods were seized by the defendants, and as the former evidently attached too much weight to their judgment, and did not there*' fore adduce such other evidence as might, and probably would have shown a lease and pledge in their favor, we will, in the exercise of our discretion, (Art. 906, O. P.) and to serve the purposes of justice, remand the case to the court below for a new trial. , ■

It is therefore ordered, adjudged and decreed, that the judgment of the District Oourt be annulled, avoided and reversed. It is further ordered that the case be remanded for a new trial, and further proceedings according to law, the costs of appeal to be paid by the plaintiffs and appellees;


author: Labaijve, J.

text:
    No. 1156.
    Mrs. Bazilize Shiff et als v. Mrs. Emily L. Shiff.
    The rule ia well settled, that a tutor can do no aot affecting the rights or property of his ward, uni authorized by law, and in the manner pointed out. \

    The law does not authorize the tutor to bind his pupil as surety, and all obligations of that charac* ter made by the tutor are null and void.
    The contract of suretyship, made by the surviving widow in the name of the succession of her late husband, which she administers in her capacity of natural tutrix to her minor child, is null and void.
    Appeal from the Second District Oonrt of New Orleans, Thomas, J.

      Clarke & Bayne and H. M. Spofford, for plaintiffs and appellants.

      JR. Hunt and P. 11. Moi'gan, for defendant and appellee.
   Labaijve, J.

We think it is necessary to give a substantial extract of the petition, in order to show the cause or ground of action.

The petition represents that on the 29th January, 1861, by notarial act, the defendant, widow of Edward Shiff, deceased, in her own name and behalf, and in her capacity of natural tutrix of her minor child, Edward Shiff, the only issue of her marriage with her late husband, guaranteed the payment of certain notes and obligations, mentioned and described in an account annexed to said act, in proportionable payments, during the years, 1861, 1862, 1863, 1861 and 1865, at the end of which periods, all said notes and obligations, and the interest thereon, should become due and exigible from said Mrs. Shiff, in her capacities aforesaid; and by said act it was also agreed, that your petitioner, Arthur Shiff, should receive an annual salary of 000 per year, as clerk of the said Mrs. Shiff, until the final payment and settlement of the obligations aforesaid, all which will appear by said act, and the documents annexed for reference and part hereof. That said Mrs. Shiff has failed to comply with her said agreement in great part, having only paid such instalments and-interest as are stated iu the document “A,” hereto annexed; that petitioners have frequently made demand of the defendant for the payment of said instalments as stipulated in said act, but that she has utterly refused to recognize the validity of said act.

Petitioners state that they now and here make proffer of said notes and obligations to the defendant, upon her compliance with said obligations in said act assumed; that they have complied with all their obligations contained in said act, an'l that Arthur Shiff has performed his duties as clerk, and was always and is still ready to do his duties as such, and that he has received his salary up to the 30th November, 1862, and the balance is still due.

The petition concludes by praying, that the said defendant be decreed in solido, personally and as tutor, to pay the amount of said notes and obligations, with interest, subject to a deduction of one-sixteenth part, coming to Mrs. Shiff, as representative of her deceased husband, as heir of Shiff, and real estate sold, and also to pay Arthur Shiff his salary, as clerk, at the rate of $4,000 per annum, from the lit November, 1862, until the final settlement of the claims aforesaid, with interest, from the periods when said salary became due.

The defendant excepted to the petition, on the ground that plaintiffs show no cause of action; that they allege that the obligation sued upon is a contract of suretyship, and that should that be the case, which is denied, she would, under no circumstances, be accountable to plaintiffs until the obligations became due, and remained unpaid by the principal obligors, and that it is not alleged that said obligations are either due or unpaid by them; that the allegations in the petition are vague and uncertain, and that no specific demand is made against her, and she cannot frame her answer to them. ,

She prays to be hence dismissed.

The Court overruled this exception, and we think properly. The petition charges, that it was agreed that the amount of the notes should be paid proportionably during five years, and that at the end of which all said notes and interest thereon should become due and exigible from said Mrs. Shiff, in her capacities aforesaid. This is an absolute promise to pay. The amount is sufficiently certain by the allegation, that the notes sued upon are described in an account annexed to the act, all of which will appear by said act, and the documents annexed for reference and part hereof.

The defendant, answering on the merits, denied that she ever made any contract whatever with the plaintiffs; that if she ever made any contract, the same is void, because the amount of money agreed to be paid to Arthur Shiff was usurious interest in disguise; and because Arthur Shiff has not complied wi’h the terms thereof; that said contract, if any was made, which she denies, is null and void, and was so from the confection thereof, because there was no consideration for the same, and that it was without a cause.

As tutrix, she says that the contract was null and void for the reasons above stated; that there was no cause or consideration for such a contract, if any was made, which she denies; she avers that her late husband was the mandatary of the plaintiffs; that as such he invested their means; that the investments which he made of their funds were kept separate, and were never mixed with his own; she avers that if any obligation ever existed between her late husband and the plaintiffs, it was the obligation of principal and agent, not debtor and creditor, and that at the time of his death, nor at any time was her husband in any manner indebted unto the plaintiffs.

She alleges that the alleged contract never had any foundation in law; that when she signed it, she signed it as natural tutrix of her minor child, and that no tutrix, under the laws of Louisiana, is authorized to contract any obligation on the part of her ward, or to become the surety of any person or persons; that her duties are confined to the administration of the property of her ward, and not to the creating of debts against him; and that this she is not entitled to do, under any circumstances, save fur his actual support, and that the sanction of a family meeting, and the homologation of the proceedings thereof by the Court, can give no force or effect to a contract, which, by law, she was prohibited from making.

Upon these pleadings the parties went to trial, and a judgment was rendered in favor of the defendants, and the plaintiffs took this appeal.

It is shown by the petition, that Widow Edward Shiff is sought to be made personally liable in solido, and as natural tutrix of her minor child, for the whole amount claimed and represented by the notes sued upon. The cause of action is said to be founded upon, and the liability of the defendant in his said capacities, to result from an act passed between these parties, before Theodore Guyol, Notary Public, on the 29th January, 1861, In that act Arthur Shiff, one of the plaintiffs, acted for himself, and as agent of all his co-plaintiffs. The first appearance is by the defendant, and the notary states:

“ Personally came and appeared Mrs. Emily L. Andrews, widow of the late Edward Shiff, deceased, of this city, and herein acting in her own name and behalf, as well as in her capacity of natural tutrix of her minor child, named Edward Shiff, the only issue of her marriage with her said late husband. ”

After naming the plaintiffs, the act states that the appearers declared that the said late Edward Shiff, in his lifetime, acted as the agent and attorney in fact of the said Arthur Shiff, and his several constituents, and as such received for their account, by way of investments of their funds, sundry promissory notes and obligations, for the payment of money executed by planters doing business with said Edward Shiff; and it is further déclared that, whereas said notes and obligations have been delivered up by the succession of the said Edward Shiff to the said Arthur Shiff, in his above capacities, a detailed account of which notes and obligations is hereunto annexed and made a part of this act.

Now the said appearers have agreed and contracted, as follows, to-wit: “ The said Mrs. Shiff hereby, in the name of the succession of her late husband, guarantees the payment of the notes and obligations described in the annexed account, in the manner and at the periods following, to-wit: (Here are the proportionable payments which were to be made in 1861, 1862, 1863, 1864 and 1865.)

It is further declared in the act:

That in consideration of said guarantee and mode of payment, the said Arthur Shiff binds himself and his constituents not to enforce the said guarantee beyond the proportions specified, nor in any case exact payment from any of the planters, whose notes are the subject of this act, •without the previous assent in writing of the representatives of the succession of the said Edward Shiff, deceased. He further binds himself and his constituents not to part with the said notes, but to hold the same until the full payment thereof, and upon the payment of the same, or any of them, to subrogate the succession of the said late Édward Shiff, to all the rights, claims, privileges and mortgages accessory thereto, and to deliver the said notes on payment to said succession.

It was further stipulated, that the said succession should have the right to pay in anticipation of the term fixed, all or any of the said notes, it being the intention and desire of the representatives of the said succession to be relieved from the guarantee aforesaid as speedily as possible.

'It was also agreed, that said Arthur Shiff or his constituents, should not, during the said guarantee, induce any of the planters doing business with the late firm of Edward Shiff & Co., to discontinue their business either with the succession or with the new firm to be established for liquidating the affairs of the said succession, which said new firm should 'take no new business with other planters than those doing business with the said succession; but should limit its business solely to the liquidation of the affairs of said succession in the shortest delay.

It was further agreed, that in consideration of the promises, and the .advantage to the succession arising from the funds of plaintiffs, being left with the said succession, the said Arthur Shiff was to be engaged as clerk in the pew firm as long as the debt due to the plaintiffs by the planters remained unpaid, at a salary of $-1,000 a year, until one-half of said debt was paid, and thereafter a salary of $3,000 a year, until the remainder was paid. ”

Subsequently, in February following, this act was made, acted on, ratified and approved by a family meeting and the Judge, as a compromise.

Between the defendant and her deceased husband, there existed no matrimonial community, they being separated in property by their marriage contract; therefore, the whole commercial assets and effects as well as the debts and charges, were of the estate proper of said deceased.

We are going to examine the various grounds upon which this case turns:

1. The first position taken in argument, but not as a cause of action, for no such allegation is made in the petition or in the notarial act, passed on the 29th January, 1861, is, that Edward Shiff, up to the time of his death, had been plaintiffs’ agent for many years, and having in his hands and under his control for them, hundreds of thousands of dollars, which he- placed at interest among his customers, whose crops he was selling, became responsible towards plaintiffs for such loans, and that his estate is bound for the same, and that this made the validity of the notarial act.

Plaintiffs’ counsel state in their brief:

“ We presume that it will not be contended that the agreement sued upon is valid, if at the time of his death Edward Shiff was liable to the plaintiffs for the obligations referred to therein. We, therefore, in the first place, propose to demonstrate that liability. ”

Little further, upon this same point, they observe:

“ That Edward Shiff himself knew that he was personally responsible to his relations for the paper transferred to them, executed by his planters. we think is equally demonstrable. ”

.The facts upon, which plaintiffs rely to fix this liability and responsibility of E. Shiff, are that the notes referred to in the agreement were given by planters doing business with the house of Shiff; that the mortgages, given to secure their payment were executed in favor of said house, and represented loans made by said firm to their customers, many of whom bound themselves in the act of mortgage to send their crops to Shiff; that the paper was all passed through the books of the house to the debit of the note account of the respective planters, and to the credit of bills payable, showing they were the property of the house, and that E. Shiff charged a commission to planters as endorser of some of said notes, which figured to the credit of bills payable in the journal and ledger.

We must test this liability of Shiff, in the same manner as if the suit were now brought against the estate upon that ground. The rule is, that a plaintiff must make out a clear case to recover. From the above facts and circumstances, and the relation of the parties, we must say that we are of opinion that plaintiffs have failed to show (or demonstrate) that Edward Shiff became responsible for the notes in questions, and that the act called compromise can derive no force and no vitality from that source.

The money was given by plaintiffs to Shiff, as their agent, to be loaned out at interest. What difference did it make whether Shiff loaned it to his customers or others? If anything, it was to their advantage. For Shiff, receiving the crops of his planters, had a better opportunity to receive payment. His taking mortgages in his own name did not make him the owner of the notes,, which, being delivered to his principals, carried the mortgage with them. His charging the notes in his books as his property, did not make Shiff the owner as between him and his principals; but he was owner as regarded his customers, who knew no one but him as their creditor. His charging commission to his customers, as endorser of such notes, did not make him liable as such towards his principal, when in fact he had not endorsed; this charge was a matter between him and his customers, who could well object to pay such a charge; but the question is, did he endorse the notes? No such thing is pretended.

There can be no responsibility attached to Edward Shiff in this case, unless it arise from his acts of agency or from a contract of suretyship. In the first case, he is not charged in the petition or in the act called compromise, with non-performance of his duty, or with fault or neglect. And on the 29th January, 1861, the defendant, Widow Shiff, acting as tutrix of her child, rendered an account of the agency of her deceased husband to the plaintiffs, and delivered over to them the notes and obligations sued upon, and they received them without any reservation of recourse against the estate for maladministration or otherwise. Therefore no liability is shown on the estate upon that score in support and as a motive of the notarial act sued upon. In the second case, it is contended that E. Shiff, having charged a commission to the planters, became guarantee for the notes when he negotiated them. ' This is nothing more nor less than a suretyship under our Civil Code.

“Art. 3004. Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.”

Then the agreement to become surety is a contract requiring the consent of two parties — the creditor and'the surety.

Here, E. Shiff aeted as agent, in negotiating the notes; how could he have stipulated from himself individually, a promise to become surety for the debtors of the notes? It was a thing legally impossible. There could not have been that concurrence of two minds essential to the contract. 6 L. 407. 2 B. 556. Therefore there was no suretyship on the part of Shiff, and the aot called compromise has nothing here to stand upon.

2. The next question is, as regards the liability of the minor, and the succession of E. Shiff to pay the notes sued upon according to the stipulations contained in the notarial act of the 29th January, 1861. It is necessary to determine first the nature of this notarial act, and whether it contains a transaction or compromise or a suretyship on the part of the succession and the minor.

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a law suit, adjust their differences by mutual consent, in the manner which they agree on. C. C. Art. 3038.

In this act there is nothing said about a suit being pending, or to be brought, or difference, or difficulty existing between the parties. This act on its face does not purport to be a transaction or a compromise, it simply states, as we have related above, that said Edward Shiff, in his lifetime, acted as the agent of plaintiffs, and, as such, received for their account, by way of investments of their funds, sundry promissory notes and obligations for the payment of money, executed by planters doing business with said Shiff, and that, whereas said notes and obligations have been delivered up by the succession of the said Edward Shiff to said plaintiffs, a detailed account of which notes and obligations is hereunto annexed.

Now the said appearers have agreed and contracted as follows, to-wit:

The said Mrs. Shiff hereby, in the name of the, succession of her Late husband, guarantees the payment of the notes and obligations described in the annexed account, in the manner and at the periods following:....

It is not pretended in said aot, that the succession of Edward Shiff could or might have been made liable for the payment of those notes, and that there was a contest about it; these are simple notes due by third persons to the plaintiffs, and with,which the succession of Edward Shiff has nothing to do, and there is, nothing to give the denomination of compromise to this act, which is substantially an act of suretyship in regard to those notes, and nothing else.

The name of compromise, given to this act in the proceedings before the family meeting and the Judge, cannot make it so inlaw, when, according to Merlin, its substance shows it to be something else, to-wit: an aot of suretyship. The distinction here is important, for if it had been a compromise carried out according to law, the minor and, as a consequence, the succession, might have been bound. C. C. Art. 3068.

3. We now come to the question of sureties of Mrs. Edward Shiff and the succession of E. Shiff, in regard to the payment of said notes and Obligations, and, whether Mrs. Shiff contracted in both capacities, as tutrix and in her own name, or in one capacity alone; this necessarily involves a question of interpretation or construction of the said notarial aot.

From the whole context of the said act, we are of opinion that Widow Edward Shiff acted as natural tutrix, and in the name of the succession, in guaranteeing the payment of said notes and obligations, and not in her individual capacity; it is true, that the act commences by declaring that she appears in her own name and as natural tutrix; but the clause of guarantee is restricted to the succession, thus:

“The said Mrs. Shiff hereby, in the name of the succession of her late husband, guarantees the payment of the notes and obligations.”

If, therefore, she guaranteed those notes in that name, she did not do so in any other name. Inclusio unius est exclusio alierius, and all the subsequent clauses relating to said notes, carry out the idea that the estate was intended as a guarantee, and no one else.

In the next following clause, thus:

“ The plaintiffs bound themselves not to enforce the said guarantee beyond the proportions specified, nor in any case exact payment from any of the planters, whose notes are the subject of this act, without the previous assent in writing of the representatives of the succession of the said Edward Shiff, deceased.’‘

‘On the payment of said notes, or any of them, plaintiffs bound themselves to subrogate the succession of the said Edward Shiff, to all the rights, claims, privileges and mortgages accessory thereto, and to deliver the said notes on payment to said succession.”

It was also stipulated in the act, that the succession (not Mrs. Shiff) should have the right to pay in anticipation said notes, it being the intention and desire of the representatives (not of Mrs. Shiff) of the said succession, to be relieved from the said guarantee as speedily as possible; then it was in contemplation of the parties that the succession was the guarantor.

Throughout, the succession is considered as the surety; the payment of the notes would not be required by plaintiffs previous to certain periods, without the written consent of its representatives (not of Mrs. Shift's.)

On payment of the notes the succession was to be subrogated, (and not Mrs. E. Shiff) and the notes were to be delivered to the succession (and not to Mrs. Shiff.) Mrs. Shiff was not thought of, and looked to per* Bonally; the succession was in view all the time, in relation to these notes.

Having determined that Mrs. Shiff, in guaranteeing the payment of said notes, acted in the name of the succession, and as natural tutrix of her minor child, the next question arises: are the minor and the succession bound by such a guarantee, admitting that the tutrix was authorized by family meeting and the Judge to do so?

The general rule is, that a tutor can do nothing affecting his ward’s property or rights unless authorized by law, and in the manner pointed out.

We know of no law authorizing a tutor to bind his pupil as surety; and tve have been referred to none.

This act of suretyship is a mere nullity, and can have no effect either against the minor or against the succession of Edward Shiff, and Mrs. Shiff did not bind herself personally.

As to the claim of Arthur Shiff, for services rendered as clerk, we are of opinion that he has failed to make out a clear case.

Upon the whole, we are of opinion that our learned brother below, has made a proper application of the law to the facts of the case.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: HoweiiXi, J.

text:
    No. 1692.
    Mrs. E. S. Dunn v. David Pipes, Sr.,
    A consent judgment is binding between the parties, and has the force and effect of the thing adjudged, unless reversed in the mode and within the time prescribed by law.
    A receipt given in satisfaction of a judgment is only prima fade evidence of what it contains, and may be shown to contain error of fact.
    APPEAL from the District Court, Parish of East Feliciana, Poseg, J.

      W. F. Kernan and T. B. Lyons, for plaintiff and appellant.

      Gross é Hardee and Race, Foster & F. T. Merrick, for defendant and appellee.
   HoweiiXi, J.

This is a proceeding by rule, to compel the defendant to pay to plaintiff the sum of $11,629 55, with interest from 13th February, 1866, as being yet due on a judgment, rendered on said date, for certain specific sums of money; the one-ninth of the net proceeds of 299 bales of cotton, shipped to New Orleans, when sold; the one-ninih of 100 bales on hand, when sold, (the said two lots being the crops of 1861 & 1862,) less the one-ninth of the expenses of getting it to market and of selling, and the sum of $71 50, cost of bagging and rope; and for the delivery to plaintiff of all the stock and personal property in the possession of defer dant and in controversy in this suit.

The amount claimed in the rule is made up of the following sums: $250, proceeds of a two-horse wagon; $1,800, proceeds of 9 mules; $40, the value of one-ninth of two bales of cotton, which, it is alleged, should have been included in the 100 bales mentioned in the judgment; $71 50 cost of bagging and rope retained twice by the defendant; and $9,468 05, proceeds of one-ninth of 401 bales of cotton, which it is alleged, should have been included also in the crops of 1861 and 1862, in addition to the 100 and the 299 bales for which judgment was rendered as above stated, and in satisfaction of which judgment a receipt was given in error.

The defendant filed the plea of res judicata averring that the judgment of 13th February, 1866; was final, and settled all matters and transactions between the parties growing out of the issues involved in the original suit, and had been acquiesced in by plaintiff, and ratified by receiving payments under the same.

The exception was maintained as to the amount of crops of the years 1861 arid 1862; and defendant answered by a general denial; reaffirming his exception, and denying the right of plaintiff to set up error in the satisfaction of the judgment, without tendering the amount received under the same.

There was judgment for defendant, and plaintiff appealed.

We think the Court did not err in sustaining the plea of res judicata as to the quantity of cotton of the crops of 1861 and 1882, inasmuch, as that question was submitted by the parties to referees, whose report thereof was the basis of the judgment rendered, and in which the plaintiff acquiesced by executing it in part, at least.

The plaintiff seeks to evade the effect of this plea, upon the doctrine that a consent decree (which she alleges the one in question to be) decides nothing, and is therefore not binding; and she relies upon the case of the Union Bank v. Marin, to sustain her position. This case, in our opinion, simply declared, in this respect, that such decrees render private agreements executory between the parties, and that their effects, as to third persons, are those of trasactions made in authentic form.

A consent judgment is binding between the parties, and has the effect of the thing adjudged, unless reversed in the mode and within the time prescribed by law. 12 A. 426. A judgment, however, is not necessarily a consent judgment, because based on the award of arbitrators or referees, to whom parties by consent, and in due form, submit their differences.

This disposes of plaintiff’s first bill of exception.

The second, is to the action of the court in permitting a witness to correct his testimony after having been discharged. We can see no legal objection to such ruling in this particular instance, where the correction was made on a fact as to which he was not cross-examined, and one as to which it appears the court, the clerk and the counsel disagreed as to whether it had been taken down correctly. The better course would have been for the testimony to have been read over to the witness before leaving the stand; but this not having been done, should not, in our opinion, deprive the witness or the party from having the correction made so as to conform to the truth.

The Court did not err in the ruling, to which defendant objected, that plaintiff could show error in the receipt given by the agent of the latter in the satisfaction of the judgment. Receipts are prima facie but not conclusive evidence of what they purport to be.

The only item, however, set out in the rule, which we think is established by the evidence, as not included in the settlement of the.judgment, is the two-horse wagon, which is shown to be worth $100, and to have been sold by defendant’s wife, some time in 1863. In other respects we see no error in the judgment below.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant $100, with interest from 1st January, 1864, and costs in both courts.


author: Labauve, J.

text:
    No. 1147.
    Chappel, Bruce & McIntyre v. Geo. N. Raymond & Co.
    A party in possession of a promissory note for collection cannot* without- express authority from the principal, extend the time of payment,
    The fact that a party was the agent of another ata particular date, is no evidence that he was his agent at a prioi* date*'
    Appeal from the Fourth District Court of New Orleans, Théard, J.

      Hayes, Adams é Moise, for appellants.

      Hawes <& Grant, for appellees.
   Labauve, J.

The plaintiffs brought an attachment suit .against the defendants, who are non-residents* upon a note dated about the 2.0th December, 1865, for $1,433 13, payable ninety days after date, subject to a credit of three hundred dollars. No date is given to this payment.

The defendants took a rule upon plaintiffs, to show cause why the attachment should not be dismissed, upon the grounds that the debt was not due when the suit was brought in attachment, nor since, and that the affidavit upon which the writ issued, is untiue and insufficient.

On trial of the rule, defendants offered in evidence the following document:

“Vicksburg, Mississippi, March 23d, 1866.”

“ This is to certify that in consideration of three hundred dollars, this day paid to the cashier First National Bank of Vicksburg, Mississippi, by G. N. Raymond, on note for fourteen hundred and thirty-three 13-100 dollars, given by G. N. Raymond & Co., that I agree to stay collection for six months.”

(Signed) “Chapped, Beuce & Co.

by T. F. Allen.”

The Court, after a hearing, sustained the exception, and dismissed the suit, at'the' costs of plaintiffs, and they took this appeal.

• There is no evidence in the record showing that the said T. F. Allen, on the 23d March, 1866, when he agreed to extend the payment of the note for six months, was authorized, as agent or otherwise, to enter into such agreement for the plaintiffs.

It is true, that, to obtain the attachment, he took the required oath, as agent of plaintiffs, on the 19th, and signed the bond on the 20th April, 1866; but proof that he was agent on the 19th April, 1866, does not establish the fact that he was so on the 23d March, 1866. Therefore, the agreement to postpone the payment of the note, not being binding on the plaintiffs, the note was due when the suit was filed.

The affidavit is in due from to authorize the issuance of an attachment on a debt due at the time of bringing the suit.

We are therefore of opinion that the judgment appealed from, is erroneous.

" It is therefore ordered and decreed that the judgment of the District Court, be annulled and avoided. It is futher ordered and decreed that the rule to dismiss the suit be overruled, the attachment reinstated, and the case remanded to be proceeded with according to law, and that the defendants and appellees pay costs of appeal.

Rehearing refused.


author: Ilsley, J. Ilsley, J.

text:
    No. 1118.
    Mrs. Maria Smith v. George Purves and the Sheriff of the Parish of Orleans.
    An appeal involving only the regularity of the proceedings of seizure and sale, does not affect? any other remedy which the creditor has for the recovery of his debt»
    Appeal from the Sixth District Court of New Orleans, Luplantier, J.

      J. L>. Augustin and J B. Cotton, for plaintiff in rule, appellant.

      Bucros <& Sambola, fbr defendant and appellee.

      Geo, S. Lacey, for sheriff, appellee,
   Ilsley, J.

The defendant, in the suit of George Purves v. Mrs. Maria Smith, pending in the court below, having obtained an injunction to stay proceedings under a writ of fieri facias, issued out in that suit, the plaintiff, during the pendency of the injunction, caused the writ to be returned and substituted in its stead an alias fieri facias, which the sheriff was about to execute, when the defendant proceeded by a rule on him to show cause why the alias fieri facias should not be quashed, or why he should not abstain from acting under the alias fieri facias, until the injunction-suit was disposed of, and from a judgment dismissing this rule, the defen* dant has taken a suspensive appeal.

A motion is made in this court to dismiss the appeal, because that remedy is not allowed by law from a judgment on a rule to arrest proceedings under final process by a writ of fieri facias, which the plaintiff says could only be done by way of injunction, and the appellee relies, in support of his motion, on the case of The State of Louisiana v. The Judge of the Second District Court of New Orleans, 9 A. 302.

That was a proceeding for a mandamus, to direct the Judge of the inferior court to grant a suspensive appeal from a judgment on a rule to quash a writ of fieri facias, and the Court in that case very properly held that the right of the plaintiff to execute the judgment, which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond given for an injunction.

The bare statement of the facts and circumstances of this case shows, that there is no analogy whatever between it and the one referred to, and relied on.

Whether the judgment appealed from disposed of the injunction-suit, or was an interlocutory decree, which may cause the defendant, Mrs. Smith, an irreparable injury, an appeal may be taken from it, and the motion to dismiss the appeal, therefore, cannot be maintained, and is overruled.

Ilsley, J.

The plaintiff and appellant sued out an injunction to restrain the sheriff from executing a judgment in favor of the defendant, Purves, because the execution was issued prematurely, before notice of judgment, which was one by default, was served on her.

Pending the injunction, the writ of fieri facias was returned into court, and a notice of judgment was regularly served upon the appellant; and afterwards, in due time, an alias fieri facias was issued, and under it the sheriff seized and advertised for sale the same property, which had been seized on the writ of fieri facias.

A rule was then taken by the appellant upon the defendant, Purves, to show cause why the alias writ of fieri facias should not be quashed by reason of the injunction previously granted against the original writ.

The rule was dismissed at the mover’s costs, and a suspensive appeal taken from the decision of the District Court.

The original writ was returned into court unconditionally, and this released the seizure made'under it. The seizure complained of'was made under the alias fieri facias.

We think this case comes within the principle enounced in Wright v. Roussell, 6 A. 73.

The Court therein say: “The question is presented, whether the plaintiff's appeal (from a judgment dissolving an injunction) was a legal impediment to the subsequent proceedings of the creditor by executory process.

Tne matter at issue, in the case in which the appeal was pending when the alias writ was issued, was as to the regularity of the proceedings under the executory process, in the notice required to bo given to the debtor, and the advertisement of the land seized. The injunction was against further proceedings, on the ground that the sale under them would be illegal and injurious to the debtor.

The return of the writ terminated all action under the process then issued.

But the statute, obliging courts to award damages on the dissolution of injunctions of executions, and the right of parties to their appeal, necessarily, kept open for decision the question as to the regularity of the proceedings by which the land was to be sold, inasmuch, as the damages to be awarded against the principal and his surety would be dependent on that decision.

“ We do not consider,” says the Court, “ that the appeal involving the mere irregularity of the proceedings of seizure and sale, as affecting any other remedies which the creditor had for the recovery of his debt. We tbinkthe Court below did not err in dismissing the rule.”

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


author: Hvatan, C. J.

text:
    No. 1613.
    Payne & Harrison, in liquidation, v. Geo. Douglass.
    Where promissory notes are prescribed on their face, the plea of prescription must prevail, nobwith* standing it is shown that ilie holder was prevented from bringing suit for several years on account of the late war, unless it is shown that suit could not have been brought at the time or prior to the time that prescription was acquired.
    The doctrine in the case of Rabel v. Pourciau (ante page 131) reaffirmed.
    Appeal from the District Court, Parish of Tensas, Farrar, J.

      Hynes & Gordon, for plaintiffs and appellees.

      Aroni <& Collier, for defendant and appellant.

      Brief of plaintiffs and appellees.

    There is nothing in this case to sustain tbe plea of prescription, on which defendant alone relies under the recent rulings of this honorable court.
    There have been no laches, no neglect, no unnecessary delay on the part of plaintiffs'.
    The President’s proclamation of peace, which is the only authoratative point from which- to count the renewal of intercourse, is dated April 2d, 1866. _ _ .
    _ _ The earliest possible date at which the parties plaintiffs could avail themselves of this removal was taken advantage of, and their petition was on- file in parish of Tensas, on the 7th of the same month, while the general order, in which the proclamation was promulgated, was dated April 16th, 1866.
    The defendants and appellants, in their pleadings recognize and claim a five years’ suspension of intercourse, dating from April, 1861.' Record, page 9.
    It may be proper to suggest to the Court, that should the maturity oí the four later notes, to-wit: April 12th, 1861, render the plea of prescription valid as against them, then that the account current is opened by the pleadings of defendant, the prescription of which at three years, from June 4th, 1861, say June 4th, 1864, was at a time at which certainly the doctrine of “ contra non valentem■ agere non curntprcescrwtio” would be in full force, and that all due and indeed extraordinary*diligence has been exhibited in the pressing this claim at the moment of the promulgation of peace.
    We cite for the convenience of the Court, the well known-laws of Congress, viz: Act of July 2d, 1864, section 5, prohibiting intercourse between the portions of a loyal State with those under control of the insurgents. Page 376, Acts of 1864.
    And the Acis of June, 11, 1864, “in relation- to the limitations of actions in'certain cases,” (page 123, Acts of 1864,) by which “the time during which such person shall so be beyond the reach of legal process shall not be deemed or taken as any part of the time limited by law for the commencement of such action.”
   Hvatan, C. J.

Plaintiffs sued defendant on his six promissory notes. Two of them were payable in 1860, and four on the 15th April, 1861.

Defendant was cited to defend this action on 18th April, 1866, and he, in his answer, pleaded prescription of five years.

Five years having elapsed since the maturity of the notes, before defendant was cited, the plea of prescription must prevail, notwithstanding defendant has, in his pleadings, actually acknowledged that it was not posssible in consequence of the late rebellion for plaintiffs to institute suit on the notes for several years after their maturity.

See the case of Louis T. Rabel v. S. Pourciau, (ante page 131.)

The judgment of the District Court is in favor of plaintiffs. It must be reversed.

Let the judgment of the District Court be annulled, avoided and reversed. Let there be judgment in favor of defendant, and let plaintiffs pay the costs of suit.


author: HvirAN, C. J.

text:
    No. 1684.
    Wm. White, Admr., et als. v. T. J. Bird, Sheriff, et als.
    A judgment rendered against a married woman, without her being authorized to appear in Court, is null.
    An answer filed by a married woman, unauthorized to appear in court, has no legal effect.
    APPEAL from District Court, Parish of East Baton Rouge, Posey, J.

      Barrow & Pope, for plaintiffs and appellants.

      Favrot'(& Lamon, and B. W. Knickerbocker,for defendants and appellees.
   HvirAN, C. J.

Plaintiffs instituted suit against Artemeze Esnard, and her husband Thompson W. Bird, and also the Sheriff T. J. Bird, claiming in their petition a privilege on certain property seized by the sheriff under executions issued on a judgment of separation of property of the said wife from her husband.

They also obtained a writ of injunction prohibiting the sale of the property.

No judgment by default was taken. The husband made no appearance, but the wife filed her answer without authority from him or the court.

Judgment was rendered by the Judge, which was partly in favor and partly against plaintiffs, and from which they have appealed.

They have suggested that the judgment should be reversed, because the wife was not authorized to appear in court.

No issue .was joined by her unauthorized answer, and the judgment must be reversed. 19 An. 148.

It is ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the case be remanded to the said court to be proceeded with according to law.


author: Hvman, C. J.

text:
    No. 1657.
    Robinson J. Cotton v. Mrs. Mary C. Sterling et als.
    A executed his promissory note, payable to himself, endorsed in blank, which he transfers to B for a valuable consideration before maturity. B transfers the note to C after maturity with a knowledge of the consideration. 0 brings suit against A on the note, who resists the payment on the ground that the consideration was illegal: Held — 'That inasmuch as A. could not urge the defence of illegality of the considertion against B, he could not against O, and he is therefore bound on the note.
    APPEAL from the District Court, Parish of West Feliciana, Cooley, J.

      Collins & Leake, for plaintiff and appellee.

      B. M. Spofford and W. J). Winter, for defendants and appellants.
   Hvman, C. J.

This action is brought by plaintiff to recover of defendants the amount of their four notes, with interest.

The notes were made by defendants payable to their own order, and by them endorsed in blank.

The defence to the suit is, “that the notes were given without any consideration which was legal, valid or binding in law, having been executed for a loan of Confederate money.”

The evidence in this case is, that plaintiff acquired the notes after their maturity from a party who had acquired them before maturity for a I valuable consideration, and that plaintiff understood before he got them that their consideration was Confederate money.

The defence of illegal consideration of the notes could not have been valid against the holder from whom plaintiff got them, as he is presumed to have acquired them in good faith; nor can it be validly urged against plaintiff, as his knowledge of the defective consideration of the notes did not prevent him from acquiring by transfer the rights of the bona fide holder.

Let the judgment which is in favor of plaintiff, be affirmed; defendant, who is appellant, to pay costs of appeal.


author: Ilsuey, J.

text:
    No. 1672.
    No. 1213.
    No. 420.
    Wm. White, Administrator, v. Thompson W. Bird, T. J. Bird, Sheriff,—Heirs of Bird v. D. T. Ross, (Consolidated Cases.)

    Tlio sheriff, who has been made the depositary of funds in his official capaoity, about which a contest is going on in the court, is no party to the litigation, and need not be made a party to the appeal.
    Delivery of the thing ceded, is essential to oomplete a contract of dation en paiement, and in the sale or transfer of debts, or claims upon a third person, notice must be given to the debtor that the transfer has been made.
    Appeal from the District Court, Parish of East Baton Rouge, Posey, J.

      Barrow <& Pope, for appellee.

      Fuqua & Callahan, for appellant.
   Ilsuey, J.

On the 2d March, 1867, Thompson J. Bird, sheriff of the parish of East Baton Rouge, executed a judgment in favor of the Heirs of A. Bird v. D. T. Ross.

The distributive share in the judgment of one of these heirs, Thompson W. Bird, was twenty-one hundred dollars, which he had previously, on the 21st April, 1866, transferred and assigned to Jackson E. Libby.'

Libby died in 1866, and Thompson W. Bird qualified as his testamentary executor, and in that capacity he claimed, and could have received the distributive share from the sheriff, when on the day of the sale Wm. H. Graham, the tutor of Saloame, the minor child of Jackson E. Libby, filed in court a third opposition, and obtained an order to stay the proceeds claimed by the executor of Libby. The minor, having subsequently attained the age of majority, became a party to the suit, and adopted her tutor’s opposition.

On the 13th July, 1867, judgment was rendered in her favor, with a' reservation of the rights of William White, Administrator, who, being a judgment-creditor of Thompson W. Bird, had, on the 25th March, 1867, seized the fund in the hands of the sheriff, by propounding interrogatoto him.

On the 18th June, 1867, Saloame Libby intervened in the suit of Wm. White, Administrator, v. T. W. Bird, setting up her claim to this fund, upon the ■ grounds set forth in her thiid opposition, which was consolidated with this suit.

On the 24th ^une, White, administrator, answered the said intervention, and one which had been filed by T. W. Bird, executor, denying there had ever been any valid transfer from Bird to Libby of the judgment against Ross, for the reason that the judgment-debtor had not been notified of the transfer, and claiming a privilege by virtue of his seizure.

On the 12th July, 1857, White filed an amended answer, alleging that the transfer from Bird to Libby was simulated, and in fraud of Bird’s creditors, and was never consummated.

Erom a judgment rendered by the District Court in favor of White, administrator, Saloame Libby alone prosecuted a suspensive appeal to this court, but did not make Thompson J. Bird, the sheriff, a party to the appeal, and on this ground, White, administrator^ has moved to dismiss the appeal.

Throughout the proceedings in the District Court, the sheriff seems to have been considered a mere nominal party. No citation against him was prayed for by either of the parties; no judgment by default was entered against him,- and he made no appearance, except to answer in open court interrogatories propounded to him by William White, adm’r.

As a general rule garnishees must be made parties to appeals, but when, as in a case like this, a sheriff, a mere depositary of a fund, received by him in his ministerial or official capacity, cannot be affected by any decision which the Court might render; he is not a necessary party to an appeal. 1 A. 205. 2 A. 323. 5 A. 668. 11 A. 486.

The motion to dismiss the appeal is therefore overruled. “

The contest in this case is for the distributive share of Thompson W. Bird, in the proceeds of the sheriff’s sale, made in the suit of A. Bird v. D. T. Ross, and the parties claiming this fund are the heir and representatives of Jackson E. Libby, and William White, administrator — the former claiming it in virtue of a contract of dation en paiement, made to Libby by Thompson W. Bird, and the latter, under a seizure upon a fieri facias, made of it as the property of Thompson W. Bird, his judgment-debtor.

The result of this controversy depends entirely upon the solution of the question, whether when White’s seizure was made, the title to the fund seized by him was fully vested in Libby’s succession; if it was not, supposing the dation en paiement to be real and not simulated, it was because the cession to Libby of the judgment against Ross was never notified to him. This, Libby’s counsel deemed unnecessary, as by the sale of the property of Ross, to satisfy the judgment against him, his interest in the matter had ceased, and that a notice on the sheriff, who held the fund, was a sufficient compliance with the law in that particular.

In contracts of dation en paiement, which it is conceded the transfer from Jackson W.Bird to Libby was, delivery of the thing ceded, is essential to complete it. Art. 2620, C. O. 12 L. 376. And in the sale or transfer of rights, debts or claims upon a third person, “ the transferree is only possessed, as it regards third persons after notice has been given to the debtor of the transfer having taken place. ” C. C. 2612, 2613, 1916, 1917. 14 A. 689. 7 A, 620. 5 A. 651. 8 N. S. 211. 12 R. 8. 2 La. 425.

The counsel of White has suggested different hypothetical examples, as to the effect the want of notice might have produced on Ross, but we need not consider them — the only question here being, was the title acquired by Libby complete or inchoate, when the property of Ross was sold to satisfy it? If it was, the mere fact of the judgment being represented by the proceeds of the sheriff’s sale, would not render the Libby title any stronger, as against White, than it was before.

The object of notification of a transfer of a debt to the debtor seems to have an object, besides and beyond that of preventing an improper payment. On this point, Marcadé says, vol. 6, p. 324:

On comprend facilemen't' pourquoi la loi a exige la signification ou l’acceptation pour la transmission des créances á l’égard des tiers. II íallait, comme le dit trés-bien M. Troplong, “ que le cessionnaire prit possession effective de la créance, en élevant une barriere entre l’ancien créancier et le débiteur; qu’il prouvht le défaut d’intérét ultérieur et le dessaisissement sérieux du cédant____Si cette prise effective de possession n’est pas un moyen de faire cesser absolument les surprises, elle les rend beaucoup plus difficiles, puisqu’elle oblige l’acheteur a jouer un roleactif qui répugne presque toujours a un simple préte-nom. ”

Be this as it may, no notification of the transfer from Jackson W. Bird to Libby was ever given to Ross, and we deem applicable to this case the doctrine taught in Marshall v. Morehouse, 14 A. 689, “ that the assignment of a debt without delivery, or notice to the debtor thereof, divests the assignor and his heirs of the ownership, without, however, depriving hi3 creditors of the right to seize them as his property.” This doctrine is consonant with the letter and spirit of the law, which cannot be disregarded, under the facts presented, in the present controversy.

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