author: Slidei.l, O. J. Ogden, J.,

text:
    E. A. W. Lackey v. John R. Macmurdo.
    ‘filis was an action on a promissory note to which defendant plead prescription. The proof, to sustain the plea, was that the note was exhibited to defendant and inquiry made as to what he would do in regard to it; defendant answered, he would not pay it; that it was a debt of A. L. Addison & Go. [of which firm defendant was a member] ; that they had compromised nearly all their* debts at fifteen cents in the dollar; that he was willing to pay that amount on the face of the noto and take it up, but that he would not pay anymore. The witness could not state whether defendant used the word debt or note, or whether he used either, when alluding to it as one of the obligations of the old house of A. L. Addison & Go. Hold: This was not a sufficient acknowledgment to interrupt prescription.
    The interruption of prescription affects the rights and obligations of the parties to the contract. The proof, therefore, of the assent to such change on the part of the debtor, should be clear and unequivocal; the assent need not be express — it may be inferred; but the circumstances should be such as to justify a reasonable presumption that the debtor was willing so to change his position for the creditor’s benefit.
    Where a debtor proposes to compound with his creditors by paying them a certain percentage on their debts, he makes an explicit acknowledgement of the amount due to them. Ogden, J., dissenting .
    PPEAL from the Second District Court of New Orleans, lea, J.

      ITunton & Bradford, for plaintiff:
    It is well settled that prescription being once interrupted, the previous time can never afterwards be computed to make up the time necessary to prescribe, which recommences only from the cessation of the interruption. BAmiere v. Spencer, 2 M. R. 83. Badon v. Bohan, 4 An. R. 467.
    It is equally well settled that prescription is interrupted whenever the debtor or possessor acknowledges the debt, or adverse right against which it was running; so a promise to pay, or a partial payment before prescription, being an acknowledgment of the debt, will have the same effect. C. 0. 3486, 3516, and 17. Oarraby v. Ncma/rre, 3 L. R. 262. Lafouraade v. Barran, 8 L. R. 283. Shiff v. Hertzog, 12 L. R. 455. Montgomery v. Levistones, 8 R. R. 145. Pa/rher v. Bernard, 9 It. R. 18. Butler v. Ford, 9 R. R. 113. See also Buard v. Lemie, Syndic, 12 R. R. 250. Blossman v. Mather, 5 An. R. 335.
    The same principles are settled under the common law, and they have been applied in a case which curiously corresponds, in all its circumstances, to the one before the court. “ Where the attorney of the plaintiff, meeting one of the defendants, observed to him that the plaintiff’s account against them was in his hands — -to which such defendant replied, that it was one of the old copartnership debts; the plaintiff ought to do with it as the other creditors had done — accept fifteen cents on the dollar; he would pay that at any time.” Held: That this was an acknowledgment of a debt still due. Austin v. Bost-wieh, 9 Conn. R. 496. U. S. Digest, vol. 2, p. 818, No. 587.

      Blmore & King, for defendant and appellant:
    The most that can be said is, that if the holder of the note had accepted defendant’s offer to pay fifteen cents on the dollar, that he, defendant, would have been bound so far as that amount was concerned, and no further; and the offer having been refused, it had no effect. See 2d vol. U. S. Digest, p. 816, Nos. 535-8, 546-7. In Tyson v. MoQill, 15 L. R. 145, defendant told plaintiff’s counsel, that “ he would pay the note if long time enough was given him.” The Court said: “The conditional offer made by defendant, in a conversation with plaintiff’s counsel, does not, in our opinion, amount to a new promise which entitles plaintiff to recover.”
    The judge of the lower court admits, that the acknowledgment of a debt would not be sufficient to renounce a prescription already acquired ; but says it is sufficient to interrupt prescription. Insisting that the acknowledgment which would interrupt prescription may be of a much weaker and less distinct character than one which would be necessary to renounce prescription. This proposition we earnestly protest against. The law makes no such distinction, and we do not think that there is any reason for such a distinction. Upon the contrary, we say, that the acknowledgment to renounce prescription need bo no stronger than the acknowledgment to interrupt it. Whilst we say this, we admit that there may he a difference in the mode of proving the acknowledgment, as well as the effect it will have upon the party making the acknowledgment, and upon others. This is fully explained by Pothier, Nos. 665-6-7. See 2d volume of Troplong on Prescription, sec. 613, p. 152.
    We find no decision in our Reports, that recognizes the distinction upon which the court below decided against the defendant. Blossman v. Mather, 5 An. 340. 0. 0. 3486.
   Slidei.l, O. J.

This suit was brought in February, 1853, upon a note made by the firm of A. L Addison & Co., dated 24th May, 1845, and payable one year after date.

It is proved, that the defendant was, at the date of the note, a member of the firm of A. L. Addison & Co.; that the firm name was signed by him; and that they had compromised most of their debts at fifteen cents on the dollar. The defence rests entirely on the plea of prescription; and the only question to be determined is, whether an interruption of prescription has been proved. The reliance of the plaintiff is upon a conversation had between Macmurdo and a witness, who was sent to him in November 1848 to ask payment of the note, or obtain some settlement from him. The substance of the witness’ testimony is, that when he exhibited the note, and asked the defendant what he would do in regard to it, the latter answered he would not pay it; that it was a debt of A. L. Addison & Oo.; that they had compromised nearly all their debts at fifteen cents on the dollar; that he was willing to pay that amount on the face of the note and take it up, but that he would not pay any more. On further examination, .the witness said he could not state whether the defendant used the word debt or note, or indeed whether he used either, when alluding to it as one of the obligations of the old house of A. L. Addison & Go.

In treating of the causes which interrupt prescription, the Code says: Proscription ceases likewise to run, whenever the debtor or possessor makes aclcnowledgment of the right of the persons whose title they prescribed, or as is expressed in the French text, which is taken from Article 2248 of the Napoleon Code: La prescription, est interrompue ógalemont par la reoonnaisance que le débiteur, ou la possesseurs, fait du d/roit de celui contre lequel il pres-crivait.

In estimating the effect to be given to the conversation above mentioned, it is proper to consider what is the effect of an interruption. The effect would be to destroy the consequences which otherwise would have resulted from the lapse of time between the maturity of the note and the date of the conversation, that is to say, the note being subject to the proscription of five years, and more than two years of this time having already run, if there was an interruption, its effect would be to give a new date as the starting point for the cause of prescription; so that the note would be proscribed, not in ñve years from the 27th of May, 1846, which was the original condition of the contract, but in five years from November, 1848. As, therefore, the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, the proof of an assent to such a change on the part of the debtor, should be clear and unequivocal. It is not indeed necessary that the assent should be express; it may be inferred. But the circumstances should be such as to justify a reasonable presumption that the debtor was willing so to change his position for the creditor’s benefit.

Applying these principles to the case before us, we are not prepared to say that an assent to the interruption of proscription, clearly results from what was said by the defendant. Wo consider thb conversation, taken as a whole, as a proposition, by the defendant, to buy his peace, as an offer of partial payment, upon condition that the note should be given up to him, which proposition was declined by the debtor, and so the position of the parties remained unchanged. It does not appear to us to amount to such an “acknowledgment of the right” of the creditor as the Code contemplates.

“We have looked into the cases in our own Reports, cited by the plaintiff, and do not think they cover the case before us. A brief review of them will show the difference.

In Carraby v. Navarre, the court deduced the acknowledgment which interrupted prescription, from a request of indulgence, coupled with the expression of the debtor’s expectation of receiving, from a certain source, a sum which would enable her to pay the debt, to which request the creditor seems to have assented. 3 La. 263.

In Lafourcade v. Barran, 8 La. 283, the testimony was, that the debtor had stated the debt was a just one, and had asked the creditor to wait, and from time to time made promises that he would pay when his wife’s estate should be settled; when his wife’s property should bo sold, &c. Martin, Justice, in affirming the judgment of the district court, who had held there was an interruption of prescription by reiterated promises, observes i “ Interruption by an intermediate promise and assumpsit is alleged on the part of the plaintiff and, as believed by the court below, was fully proven; and from an attentive examination of the evidence, our minds have been brought to the same conclusion.”

In Shiff v. Hertzog, 12 La. 456, the debtor speaks, in his letter, of the note as one “dont je vous suis redevable,” wlviefo I owe you; says his other creditors have given him, some years previous to the date of his letter, a delay of nine or ten years without interest, and his duty to them obliges him to postpone the plaintiff’s claim for a like period, and hopes ho will consent to the arrangement. The creditor does not appear to have declined the offer; and brought suit at the expiration of the proposed delay.

In Montgomery v. Lemstones, 8 Rob. 147, there were payments made out of the hire of certain slaves left in the possession of the creditor by the debtor, and this possession was considered a standing acknowledgment on the part of the defendant of his indebtedness. So far as the decision in the case rests upon another and independent ground, the letter of defendant mentioned in the opinion, we might hesitate in giving it our concurrence. It seems to conflict with the subsequent case of Blossman v. Mather, 5 An. 335. But at all events there was no declaration of the debtor, that he would not pay anything unless the creditor submitted to a reduction.

In Parker v. Bernard, 9 Rob. 19, the prescription was held to have been interrupted by partial payments, which do not appear to have been tendered or received with any qualification whatever. It was a clear case of interruption.

In Butler v. Ford, 9 Rob. 113, the evidence showed that a few months before the suit was brought, the debtor, who was a surety, not only acknowledged his creditor’s right to be paid, but promised expressly to pay if his principal did not.

As our law of prescription and statutes of limitations in common law States have their points of difference, we think it most safe to rely upon our own jurisprudence and the principles of the civil law'in matters of prescription.

It is therefore decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant; the plaintiff paying costs in both courts.

Vooriiies, J., Buchanan, J., and Campbell, J., concurring.

Ogden, J.,

dissenting. The note sued on is in the hand-writing- of the defendant, who was a member of the firm of A. L. Addison & Oo., whose signature it bears. The offer of the defendant, when the note was presented to him for settlement within the period of prescription, to pay fifteen cents on the dollar, as a composition of the debt, on the same terms which had been accepted by most of the creditors of the firm of A. L. Addison & Go., in my opinion, amounts to a sufficient acknowledgment to interrupt prescription. It seems to me, such an offer could not be made without acknowledging the debt If it had been an offer to pay fifteen cents on the dollar, unaccompanied by any reason or explanation for making the offer; or if any other reason had been assigned than the inability of the firm to pay more, it would, or not, according to the circumstances, have amounted to an acknowledgment of the debt. But I think, when a debtor proposes to compound with his creditors by paying them a certain per centage on their debts, he makes an explicit acknowledgment of the amount due to them. If the prescription had been already acquired, such an offer could not be held to be a renunciation of the right to plead prescription; but there is a difference between the acknowledgment of a debt sufficient to interrupt proscription and the renunciation of prescription after it is complete. The acknowledgment rebuts the presumption that the debt is paid and interrupts the prescription which had commenced running. The renunciation of prescription when once acquired, is equivalent to a new promise, and if conditional, is not binding unless the condition is accepted. The case of Tyson v. McGill, 16 L. R., relied on by the defendant’s counsel, where the debtor said, “that he would pay the note if long time enough was given him,” must have been, I think, from the report of the facts, a case where the proscription had been already acquired. The case cited on the part of the plaintiff, of Austin v. Bostwick, 9 Conn. R. 496, is the only adjudicated case I have been able to find exactly analogous to the present one, and there, under precisely the same state of facts, it was held, that the case was taken out of the statute of limitation.

The judgment of the court below, in my opinion, ought to be affirmed.


source: Caselaw Access Project

author: Ogden, J.

license: Public Domain

text:
    Charles Roman and C. H. Kernion v. L. E. & F. J. Forstall.
    Defendants opposed a rule taken to homologate the report of auditors. The Court decreed that the sale he made absolute, and that the report of the auditors “be homologated and adopted as the basis of the judgment of the Court in the premises.” Held: That defendants had a right after the decree homologating the report of the auditors, to have the cause set down for trial on the merits. The judgment was not final; it was irregular in the Judge to sign it, but being merely interlocutory, the appeal was premature.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    Boselius, for plaintiffs. Eunton & Bradford, for defendants and appellants.
   Ogden, J.

This case was referred to auditors to settle between the partners, the affairs of the commercial firm of Homan, Forstall & Go., of which the plaintiffs and defendants were the members. On the report of the auditors being- made and returned into Court, and a rule taken by the plaintiff's to have it homologated, the defendants filed an opposition setting forth various grounds of special exception to the report, all of which, on the trial of the rule, were decided adversely to the defendants, and the Court proceeded to homologate the report of the auditors. The decree is in the following words: “For the reasons this day filed, it is adjudged and decreed, that the rule taken herein by the plaintiffs be made absolute, and that the report of the auditors of accounts herein filed on the 26th of March, 1851, be homologated and adopted as the basis of the judgment of the Court in the premises.” The first question presented for our consideration by the defendants who have appealed from the judgment as above rendered, is, whether it was competent for the Court below to render a final judgment in that manner on a rule to homologate the report of the auditors.

We are of opinion that there was no final judgment rendered in the cause ; that the defendants had a right after the decree or order homologating the report of the auditors, to have the cause set down for trial on the merits ; and it does not appear from the record, that the Court below refused any motion on application to that effect. Not being a final judgment in the case, it was irregular in the Judge to sign the decree, but considering it as we do merely interlocutory, and having only the effect of homologating the report of the auditors, we cannot take jurisdiction of the appeal which is premature.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the costs of the appellants.


author: Buchanan, J.

text:
    Judson & Co. v. N. Holmes et al.
    The law does not require the holder of a promissory note to prove the circumstafaces under which he obtained possession of it, except where the want or failure, or illegality of the original consideration is cleOA'T/y shown, and in case of a lost or stolen instrument.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Hoofman & Ogden, for plaintiffs, Hanly, for defendants.
   Buchanan, J.

This is a suit upon a promissory note by endorsee against maker and endorser. The defence is want of consideration, and that the note was fraudulently sold and conveyed to plaintiffs, at an enormous discount, by one Jones — a man of notoriously bad character, and well known as such by plaintiffs- — which Jones was without any interest in the note at the time of the transfer. The only evidence offered by defendants, is a witness named John G. Mosely, who testifies, that he was present when the note was signed by defendant, Holmes, “ endorsed by him and Waterman, and given to Jones for the purpose of buying a vessel — the note to be given to Mr. Hughes by Jones; Jones did not go to buy the vessel according to promise; Jones was instructed to carry the note to Mr. Hughes for the purpose of paying for the vessel; the one-half of the vessel was to belong to Mr. Holmes, and Jones was to buy the other half; the note given to Jones was to pay for Holmes' half; Jones had no property in the note.” No evidence is given of the circumstances under which the note came into the hands of plaintiffs- — although the protest shows it was held by them at maturity. Judgment having been rendered against the defendants, they moved for a suspensive appeal. The bond of appeal is in the name of Holmes alone, as principal, from which we infer that Waterman has abandoned his appeal.

We think that the evidence does not support the plea of the defendants. The testimony of Mosely not only proves that there was a consideration for the note, namely, a contemplated purchase of a vessel, but that Jones- — who is described in the answer to be “ a man of notoriously bad character, and as such well known to the plaintiff” — -was in fact the agent and prospective partner of the appellant, We are told by the witness, to be sure, that Jones did not go to buy the vessel according to promise, and we are left to infer that tTones negotiated the note with the plaintiffs for his own account, and in fraud of appellant; but this is more matter of inference. From very vague and Unsatisfactory premises, one thing strikes us as deserving of attention in the connection. The note was payable ninety days after date. The defendants, the party (Hughes) to whom this note was intended to be convoyed, Jones, the agent of defendants, and the plaintiffs, all resided in New Orleans. If the note was divested of its legitimate destination by Jones, that fact must have been immediately known to appellant, by his failing to get possession of his vessel, which he expected to buy with this note. In the three months which intervened before the maturity of the note, the defendants had ample time to warn the public against trading for or negotiating the note. We think the defendants should have taken some such steps, and that their neglect to do so, absolves plaintiffs from the obligation of proving the circumstances under which they obtained possession of the note — a kind of proof very hard to make; and which the law only requires, in cases where the want or failure, or illegality of the original consideration of the instrument, is clearly shown, and in case of a lost or stolon instrument. Until such exceptional case is made out by the proof, the holder is presumed to be prima facie a holder for value. Story on Bills, sec. 196.

It is proper to observe, that the answer of defendants, although it charges fraud on the part of Jones, does not distinctly aver fraud on the part of the plaintiffs, and admits that some value was given for the note.

Judgment affirmed — costs in both Courts.


author: Voordies, J.

text:
    B. F. French et al., Commissioners, &c. and T. O. Starke, Receiver, &c. v. Charles Harrod et al.
    The transcript not having been filed within the legal delay, and the appellants having failed to show that they were prevented from doing so by circumstances beyond their control — appeal dismissed.
    The rule, that where an act is to be done within a given time, it may be d<-ne afterwards, if nothing occurs to prevent, does not apply to a case where the transcript of the record has not been filed in the Supreme Court within three judicial days after the return thereof.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.—

      Elmore & King, and JP. E. Bonford, for plaintiff and appellant. Qrymes, and R. R. Strawbridge, for defendants.
   Voordies, J.

The defendants have moved for the dismissal of the appeal in this case, on the ground that the transcript was not filed in this Court on the return day, to-wit, the 28th of June, 1862, nor within three judicial days thereafter.

It appears that the transcript was filed on the 6th of November, 1862, and that, in the interval, the Court was in session on the 28th, 29th, and 30th of June; on the 1st, 2d, and 3d of July, and on the 3d, 4th, and 6th of November, the day on which the transcript was filed.

Granting the appellants the benefit of any doubt which might have existed in their minds as to the constitutionality of the session held in July, still four entire judicial days had already elapsed when they filed the transcript in this Court.

But it is urged by the appellants’ counsel, that we should, in the exorcise of our discretionary power, refuse the dismissal of the appeal, because the appel-lees have incurred no inconvenience or injury from the delay, and rely on the case of Smith v. Foster, 6 An. 651. In that case, the extension of time granted by the Supreme Court to the appellant to file the transcript had expired during the vacation of the Court, but it was filed on the first day of the ensuing term. But here the transcript was filed the 3d day after the commencement of the term. The facts stated in the affidavit submitted to our consideration by the appellants’ counsel, do not show that the appellants were prevented by circumstances beyond their control, from filing the transcript within the delay prescribed by law, so as to entitle them to relief at our hands. We adopt the rule laid down in the cases of Palfry v. Winter, 8 La. 206, and Vancampen v. Morris, 6 R. 79, as a correct exposition of articles 687 and 689 of the Code of Practice.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the appellants’ cost.


author: Slidell, C. J. Buciianah, J.

text:
    McLemore, Curran & Co. v. E. Cannon et al.
    ■Where an agent has fraudulently parted with the note of his principal, the original owner may require from the holder, proof that he is a holder for value.
    PEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Wolfe & Singleton, for plaintiffs and appellants, cited:

      Copley v. MeFmdane', 9 E. 183; Harrison v. Poole, 4 R. 193 ; Morgans. Yarborough, 13 La. 76; Louisiana State Bcmh v. Orleans Navigation Company, 3 Ann. 294; Story on Notes, sec. 195.

      William N. Runt, for defendants, cited :

      Mathews, Finley & Co. v. Rutherford, 7 Ann.; 1 Greenleaf’s Ev. art. 451; 1 Starkee, 106; Rose v. Blalcemore, Ry. & M. 383; L. 23, Cod. deprdb et praesumt; C. 0. 1842.
   Slidell, C. J.

The plaintiffs allege that they placed for sale in the hands of 8. B. Conrey, a bill broker, two bills of exchange, one for $3000 and the other for $1119 70 ; that Conrey put them in the hands of the defendants as collateral security for a pretended debt to them, they well knowing, at the time, he was not the owner; that the bill for $3000 was subsequently sold, and the proceeds received by the defendants. They asked judgment for $3000, and that the bill for $1119 70 be restored to them. Cannon answered by a general denial, and 'also pleaded that he was the lawful owner of the bill for $1119 70, having- purchased it from Soloman. There was judgment for both defendants, and the plaintiffs have appealed.

We will consider, first,'the liability of Cannon.

It is proved that plaintiffs were holders of the bills, and put them into Con-rey’s hands for sale, who has failed to account to his principals. He sold the bill of $3000, and received the proceeds of sale through a broker employed by him to sell, and who testified that he had forgotten to whom he sold. This broker gave Conrey the proceeds in his checks on a banker, one for $1000 and one for $1790. Solomon got $1000 in bank notes, and the check for $1790 from Conrey’s clerk in his absence. It does not appear that the bank notes or check ever went into Cannon’s hands, nor that ho was privy to the transaction; and although the plaintiffs have proved that there was much intimacy between Solomon and Gannon; that they occupied the same office, and had some transactions on joint account — the evidence is insufficient to establish a partnership as alleged. There is no reason, therefore, to disturb the judgment in Cannon’s favor, so far as concerns the bill of $3000 or its proceeds.

As to the bill of $1119 70, we think the judgment in Cannon’s favor erroneous.

The plaintiffs have proved that they hold the bill; that Conrey was a bill broker ; and that they put it into his hands to get it discounted. It is proved that his duty to his principals has been violated. He is a defaulter to them, having neither returned the bill nor accounted for its proceeds, when called upon by plaintiff, and the bill is now found in the hands of Cannon. There is also testimony showing that Solomon had said the bill was put into his hands as collateral security for an indebtedness of Conrey to him, the amount of which is unexplained by the defendants. It is also proved that Conrey, Solomon and Cannon, were all in the brokerage business; that there was close intimacy and constant intercourse between Cannon and Solomon, and that Solomon seems to have taken advantage of Conrey’s absence, in getting the bank notes and check from Convoy's clerk, upon a representation that Convey had authorized it, which Convey, immediately upon being informed of the payment, denied. And here it is proper to observe, that the plaintiffs have been prevented from more fully disclosing the circumstances connecting Cannon and Solomon with the matter, by the refusal of Convey to testify upon the ground that his testimony might tend to subject him to a criminal proceeding; upon which ground, as also upon the objection of defendants on the score of interest, the Court below refused to permit or compel him to testify.

We think the above showing, on the part of the plaintiffs, was sufficient to throw upon Cannon the burden of proving that he, or Solomon, from whom he pleads ho bought the bill, was a holder for a valid consideration. This he has failed to do. He rests upon his naked possession, and Solomon, his co-defendant, is equally silent. There is no doubt that in the case of a lost or stolen bill, the original owner may require from the holder, proof that ho is a holder for value, and we do not see how, in principle, the case of one, who has been defrauded by his agent and makes out such a showing as is here made, can be distinguished. Were it otherwise, one who chose to collude with a bill broker, could do it with impunity. See Story on Bills, § 198, 193; and see Haynes v. Foster, 2 Crompton & Meeson, 239.

The most favorable aspect for the defendant, who has shown no valid consideration given by himself, is that the note was put into Solomonh hands as collateral security. But if that be true, Solomon could only hold, as against plaintiffs, to the amount of his claim against Cont'ey, which is not proved; and Cannon, who received the bill from Solomon, without any valuable consideration shown, stands on no bettor footing.

With respect to the liability of Solomon, we are of opinion that he cannot be held to the plaintiffs for the bank notes, the identity not being proved. But with respect to the check for $1790, the identity is clearly established, and it was obtained by Solomon from the possession of Convey, who held it as plaintiffs’ agent, without Convoy's consent, and against his orders, by representing to the clerk that Convey had consented.

It is therefore decreed, that the judgment of the District Court be reversed; and that the bill of $1119 70, in the petition described, be delivered to the plaintiffs by said Gannon; and that, as to the residue of the plaintiffs’ claim against said Cannon, there be judgment in said Cannon's favor.

It is further decreed, that the plaintiffs recover of the said Solomon, the sum of $1790, with interest from the 19th of March, 1852, until paid, and that the costs in both Courts be paid by the defendants in solido.

Buciianah, J.

As regards the draft for $1119 70, sequestered in this case, I desire to be understood as concurring in the opinion just read, exclusively on the ground that the defendants, by objecting to the evidence of Convey, the broker, when called to the stand by plaintiffs, in the District Court, have succeeded in excluding testimony which would have thrown all the necessary light upon the circumstances under which the draft in question came into the possession of the defendant, Cannon.

As a general rule, the mere fact of a bill broker not having accounted to his customer for the proceeds of a bill put into his hands by such customer, to be discounted, does not, under the commercial law, throw the burden of proof upon a pei’son holding the bill, to show the consideration paid by him. I deem it proper to make this observation, in order that the point decided in this case, may not be misunderstood.


author: Voorhies, J. Slidell, O. J.

text:
    State of Louisiana v. John Muldoon.
    The Supreme Court has jurisdiction, in criminal cases, of questions of law alone.
    No appeal will lie from the refusal of the District Court to grant a continuance in a criminal case.
    APPEAL from the First District Court of New Orleans,

      Issaa F. Morse, Attorney General, for the State.

      Boselius & Field, for defendant.
   Voorhies, J.

The defendant was tried for the crime of murder, convicted, and sentenced to imprisonment at hard labor in the State penitentiary for life.

When the case came up for trial, he applied for a continuance grounded on an affidavit stating that he could not safely go to trial without the testimony of John Ganably, one of his material witnesses, by whom he expected and believed he would be able to prove that he was in the company of said witness at the time of the alleged homicide of Gemfils, driving quietly and peaceably his dray along the plank road on the levee, when the deceased wantonly drove his dray against his, knocked him on the ground, and then attacked him; that in self-defence he used a small light whip, with which he was driving, and struck but one blow, and not with much force; that he had caused a subpoena to issue for said witness, with directions where he was to be found, which subpoena had been served; that said witness was absent without his consent, connivance, or procurement; and that he ex pected, and had no doubt, he would be able to procure his attendance, if allowed a reasonable delay.

The Court having rejected his application, he took the following bill of exceptions :

Be it remembered that on the calling of this cause, a witness by the name of John Ganably, whose name had been furnished to the Clerk in due and proper time for the service of said subpoena. It also appeared from the return of the Sheriff to the subpoena that a copy had been left at the house of Fergus O'Doioell on Tchoupitoulas street, the place where said witness was employed as drayman, failed to attend, the defendant by his counsel caused an attachment to issue for said witness. The officer charged with the execution of said attachment went to the house of said O'Dowell, when he heard that said witness was employed at said house, was there on yesterday, and also this morning, and had left for the purpose as they supposed of attending Court. Whereupon the defendant by his counsel moved the Court for a continuance predicated upon the affidavit of the defendant herewith filed and marked A and made a part of this bill of exceptions, which motion the Court overruled and required the defendant to proceed to trial without the attendance of said witness, &c.”

The only question presented in this case is, whether a refusal to grant a continuance can be the subject of revision by us on appeal.

The jurisdiction conferred on this Court by the Constitution in criminal cases, is confined to questions of law alone. Under the Constitution of 1845, the same restriction existed in regard to the jurisdiction of the Supreme Court. In the case of The State v. Hunt, 4 Ann. 438, the question arose as to the jurisdiction of the Court to review a refusal to grant a new trial, on the application of the defendant, based on his affidavit, that he had discovered since the trial two witnesses by whose testimony he would establish an alibi. The question was discussed with great ability and determined in the negative, the Court remarking : “ It seems to us to be clear, that the Constitution, in limiting the jurisdiction of this Court, in criminal cases, to questions of law alone, by its terms excluded all cognizance of questions of fact. The Supreme Oourt of the United States, in construing its common law jurisdiction, under the Constitution, and the judiciary act of 1789— a jurisdiction by no means restricted as much as ours — has determined, by a series of decisions, what points are open for examination under a writ of error; and those decisions have all been made in conformity with what were understood to be the rules and principles of the common law. By the 22d section of the judiciary act, it is provided, that on a writ of error to the Supreme Oourt, there shall be no reversal for error in fact. That Oourt has always held, that error does not lie on the refusal of the Oourt below to grant a new trial. Although that Oourt takes no cognizance of criminal cases, except in a division of opinion of the Judges of the Oourt below, the decisions in civil cases appear to us conclusive of the principle. In the case of Barr v. Grantz, Judge Story remarked that the proposition was too plain for argument. 'Nor does error lie, on the refusal of the Oourt below to continue a cause after it is at issue. If this Oourt cannot examine a question of fact in criminal cases, it cannot review the acts of a Judge of the first instance resting in his discretion. In the present case, the Judge did not believe the affidavit of the prisoner, that he could prove an alibi. He sat on the trial of the cause, he heard the witnesses, and had an opportunity of forming an opinion of the whole affair, with its attendant circumstances; and, we think, the Constitution has provided wisely in leaving these matters in the discretion of the magistrate, who has the best means of thoroughly understanding them. If the facts attempted to be proved by the affidavit of the prisoner, were to be confessed in Oourt by the Attorney General, a different ease would be presented; and cases have occurred, in which the Courts have acted upon the confession of the Attorney General, on writs of errors of facts. In this case, nothing is conceded : and a question of fact, which we are not permitted to determine, is an insuperable obstacle to the exercise of our jurisdiction, which is confined to questions of law alone.”

In the case of the State v. Bradley, Judge Preston, in delivering the opinion of the Oourt, said: “But the rules of law which apply and should govern this case, are, that in order to obtain a continuance, it must be shown that the witness is really material, and that the party who claims the continuance has been guilty of no neglect in endeavoring to obtain the testimony of the absent witnesses, according to the rules of law and the practice of our Courts of criminal jurisdiction.” 6 Ann. 554. Thus intimating, it would seem, that the Oourt had a supervisory jurisdiction over the subject-matter of continuances. But in concurring in his conclusions, the other Judges expressly declared, that under the decision of the Oourt, in the case of the State v. Hunt, 4 Ann. 438, and in the case of the State v. Lintell, recently decided, they thought they were not called upon to express any opinion upon which the matters of fact upon which the Judge exercised his discretionary power in refusing to continue the case when called for tidal; and after the verdict, to grant the prisoner a new trial.

In the case of the State v. Brette, 6 Ann. 653, Judge Preston again held out the same intimation as that expressed in the case of Bradley in relation to continuances, but qualified it in the close of his opinion by saying : “ The District Court, however, was of opinion that the affidavit did not show due diligence to procure the attendance of the witness, and it has become the settled jurisprudence of this Oourt, that, on appeals, wo cannot revise decisions involving questions of fact.”

In the separate opinion delivered by Chief Justice Eustis in that case, in which he reviews all the former decisions of the Court touching its appellate jurisdiction in criminal matters, he says: “ My opinion is, that on the trial for murder, the District Judge was wrong in ruling the prisoner to trial, on the ground stated in the bill of exceptions, and, in so doing, committed an error of law. And my impression, when the opinion of the Court was prepared, was, that if the jury had found the accused guilty of murder, it would have been our duty to have set aside the verdict, on account of the error of law. The impression I still retain, though there are difficulties in giving the accused the benefit of this question, which embarrasses its application in the administration of criminal justice, under the powers of this Court and the Courts of the first instance. In giving a prisoner the benefit of all questions of law erroneously decided against him in the Courts of the first instance, care is necessary, in order not to encroach upon the discretionary powers which the Judges of the District Court hold, and must exercise in the delicate and responsible cases of applications for continuances and new trials, over which this Court has no supervision, except in determining the questions of law alone, submitted to them by bill of exception or an assignment of error.”

According to the doctrine laid down by the Supreme Court of the United States, in a series of decisions, it is clearthat a writ of error will not lie in cases which depend upon the discretion of the Court below. It is obvious that the revision of such cases must necessarily involve questions of fact. But it has been strenuously urged by the defendant’s counsel, that an acknowledged state of facts can only give rise to questions of law. If the facts attempted to be proved by the affidavit were confessed in Court by the Attorney General, the proposition would undoubtedly bo undeniable; but there is no such concession, and it is manifest that the Judge a quo did not believe the affidavit of the prisoner.

In the case of the Marine Insurance Company of Alexandria v. Hodgson, 6 Cranch’s R. 217, in adverting to the refusal of the inferior Court to receive an additional plea, a matter depending upon its discretion, Judge Livingston said : “ This Court does not think that the refusal of an inferior Court to receive an additional plea, or to amend one already filed, can ever bo assigned as error. This depends so much on the discretion of the Court below, which must be regulated more by the particular circumstances of every case, than by any precise and known rule of law, and of which the Superior Court can never become fully possessed, that there would be more danger of injury in revising matters of this kind, than what might result now and then from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial, or not to continue a cause, but in neither case can the party be relieved by a writ of error.”

In the case of Woods & Bemis v. Young, 4 Cranch’s R. 236, the question presented was on a bill of exceptions taken by the plaintiffs to the refusal of the inferior Court to continue the cause upon their motion, grounded on an affidavit stating the absence of a witness, the material facts they expected to prove by him, and the diligence used to procure his testimony. The Court said:— “ The question is, whether a refusal to continue a cause can be assigned for error. The impression of the Court is, that it cannot. Has the party, by law, a right to a continuance in any case ? If he has it will have weight. Is it not merely a matter of favor and discretion ? This is a case in which this Court cannot look into the merits of the question; whether the Oourt below ought to have granted a continuance of the cause.”

In the ease of Young v. Black, 7 Cranch’s R. 569, the same doctrine is reiterated.

After a careful consideration of the subject, we think we are precluded, under the Oonstitution, from taking cognizance of the merits of the question presented in this case.

It is therefore ordered, adjudged and decreed that the appeal be dismissed at the defendant’s cost.

Slidell, O. J.

This Oourt having jurisdiction, in criminal cases, of questions of law alone, I understand this Oourt to be incompetent to disturb the ruling of an inferior Court in a criminal case on a question of facts. Now in the present case, the right of the prisoner depended, among other considerations, upon these : — whether his affidavit was true or false; whether he had used diligence to obtain the attendance of the witness; whether the witness was absent by his connivance or procurement, &c. Now, for aught that appears to the contrary in the bill of exceptions, the District Judge may have disbelieved the affidavit, and been satisfied that the application was made for the mere purpose of delay or evasion of justice.

I am not prepared to say that no case, for refusal of a continuance, could come before this Oourt in such a form as to meet our jurisdiction. It is not now necessary to carry the enquiry to that extent. I take this case as it is — a case in which the Judge has refused the continuance in general terms, and in which the refusal may have been based on considerations of fact.


author: Slidell, 0. J. Vooboies, J.

text:
    Alfred Edwards & Co. v. Minvielle.
    When an endorser of a note pays it, without seasonable notice of the non-payment by the make”, he can not i ecover from a previous endorser, although he has lost no time in notifying such endorser.
    APPEAL from the Fifth District Court of New Orleans, , J.

      T. A. Clarice & Bayne for plaintiffs. L. T- Gaitera, for defendant and appellant.
   Slidell, 0. J.

The evidence is defective in this respect, that it does not appear that Oorningt6 Go. mailed the note and protest for Dunean, ShermcmS Uo.intime for the mail of the day succeeding the day of protest. Moreover, although the notices for the various endorsers enclosed by the notary under cover to Dunean, Sherman & Go. were seasonably mailed, yet it does not appear on what á&j Dunean, Sherman & Go. received them. It may be, for aught that appears to the contrary, that Dunean, Sherman & Go. received those notices before they received the note and protest sent them by Corning & Go. If so, they should on the next day after the receipt of notice have notified plaintiffs. In this uncertainty as to dates, we are unable to say that Dchoards & Go. were seasonably notified and that their notice to the defendant was seasonable, and therefore we think the judgment should be reversed. If Edwards <$ Go. paid without seasonable notice, they cannot resort to the defendant, although they themselves lost no time in notifying the defendants.

Ogden, J., and Campbell, J., concurring.

Judgment reversed and judgment for defendant, plaintiff to pay costs in both Courts.

Vooboies, J.

The defendant is sued as endorser on a promissory note made to his order at New York, and payable at the Bank of Louisiana, New Orleans. The only defence urged by him, is want of notice or diligence.

It appears that the note was duly protested at maturity, on the 14th of February, 1852. In his certificate, the notary declares, “ that the parties to the note, whereof a true copy is above written, have been duly notified of the protest thereof, by letter to them by me written and addressed, dated on the day of said protest and served on them respectively in the following manner, viz . To Joseph Hate, drawer; F. F. Minvielle, endorser; Alfred Edwards & Go., endorsers; Wm.E. Whitney & Go., endorsers; Duncan, Sherman & Go., endorsers ; which notices were placed under cover of one package, addressed to Messrs. Duncan, Sherman & Go., at New York, N. Y., and deposited this day in the Post Office of this city.”

It does not appear that this package, which contained the only notices given by the notary, ever reached its destination, except by inference. In his testimony, IK G. Eandall, the note clerk of J. Corning & Go. says: “When a note is protested one day it is handed to us the next day by the notary, and is then immediately forwarded by us to the party. In this case the note was handed to us the next day after protest by the notary, and forwarded by us to the party the same day; the note was sent to us by Duncan, Sherman & Go. from New York for collection. As note clerk, I put the notes and letters into the Post Office, which are sent out by J. Corning & Go. We sent this note and protest enclosed in a letter to Messrs. Dunaan, Sherman & Go., at New York on the day it was returned to Corning & Go. protested.” Thus it appears that the note and protest alone were sent. The next connecting link of evidence which we have, is the deposition of Lewis, cashier of Duncan, Sherman & Go., bankers in New York; he says: “I do know the note enquired of — it was enclosed to us in a letter from J. Corning & Go. in New Orleans, our correspondents, together with protest, and expenses charged to us, and that said note and protest were sent to the store of plaintiffs on the same day of its receipt by us, and a check was immediately given by them to us on their presentation, which covered amount of note and expenses. The only steps we took to notify Alfred Edwa/rds & Go. were those designated therein of sending the note and protest as we received it. I have no recollection at this time of the original notice of protest.” He adds: • “I have stated all I know : that on the day we received notice of protest and note, we forwarded it to our immediate-endorsers, A. Edwands & Go. The mails are sometimes so irregular we receive notice from our correspondent sooner than from a notary, &c.” This is certainly irreconcileable with the former part of his deposition, unless it be inferred that the notice of protest alluded to by him was one of the notices forwarded by the notary to Duncan, Sherman & Go., and this would seem to be the most natural inference, particularly if the matter be considered with reference to the depositions of A twater, the plaintiff’s Clerk. In his first deposition taken on the 6th May, 1852, Atwater says: “I received from the Post Office on the 27th of February, 1852, a letter addressed to plaintiffs, containing the notice of the protest, and another notice addressed to F. F. Mimielle, (which was enclosed in the first protest,) as endorser of the note. Mr-. Amory Edwards in my sight folded up in a letter a notice of non-payment of the note enquired of. I copied the letter myself in which the notice was enclosed. The letter in which the notice was mailed was addressed to Thomas Allen Glarlce, Esq., counsellor at law. This notice was a copy of the notice here produced and marked A, to which I now affix my name.” The notice referred to is one of the notices signed by the notary, and dated on the day of the protest. In this deposition, no allusion whatever is made to the presentment of the note and protest and the payment thereof by the plaintiffs. But in his other deposition, taken on the 18th of December, 18-52, he says: “ I saw the note after its protest in the hands of Mr. Amory Edwards, one of the plaintiffs upon the same day that it was received from Dunean, Sherman & Oo. On that same day we enclosed a notice of protest to the defendant under cover to Thomas Allen Olm'ke, Esq., in New Orleans. I saw Mr. Amory Edwards enclose the protest and note in the said cover, and I myself took it to the Post Office and mailed it in time for the first Southern mail of that day, after business hours commenced. I am positive it was the note of Joseph Ealz endorsed by the defendant. The letter to Olarke directed him to serve the notice upon defendant, as agent for plaintiffs; that was the substance of the direction.” He adds: “Notices of protest were received from New Orleans, but whether through the Post Office or from Dunean, Sherman & Go., I am unable to swear. The reception of the note and its dishonor of protest from Dunean, Sherman de Oo. were considered by our firm as a notice to plaintiffs, as endorsers, of its dishonor. Acting upon that notice the plaintiffs sent to notify the defendant through Mr. Olm'ke, &c.” This is palpably inconsistent with his former deposition. It is obvious that the notice sent to the defendant, through Mr. Olarke, must have been one of the notices forwarded by the notary to Dunean, Sherman & Oo.; indeed no others were forwarded. At what date Dunean, Sherman & Go. received them or communicated them to the plaintiffs is not shown. It is evident, however, that it must have been previous to the date of the presentment of the note and protest; but how long we are unable to discover from the evidence. Wo do not think the plaintiffs, under this state of facts, have brought themselves within the rule of the commercial law to entitle them to recover. 1 Ann. 869.

It is, therefore, ordered and decreed that the judgment of the District Court be reversed and that the plaintiffs pay the costs in both Courts.


text:
    Perin Thomas Robert v. Perin Boulat.

      JPeHn BovZat purchased property at a Sheriff’s sale — the deed was made to JPerwiBoulard. Held: That it was competent for Perm Boulat to prove, by parol, that he was the identical person to whom the property was adjudicated.
    APPEAL from the Third District Court of New Orleans, Kennedy, 3.

      Bawe-gard, for plaintiff. Oastera and 1Hoselius, for defendant and appellant.
   Buchanan, J.

This is a petitory action. The plaintiff and defendant both claim to be owners of the lo’eus in quo, two lots of ground on Carondelet Walk, in this city, under the same title, to-wit: a Sheriff’s sale made on the 22d of May, 1848, in execution of a judgment at the suit of John Hagan v. Michael Gallagher, in the Fourth District Court of New Orleans. The Sheriff’s deed shows, that at said sale, the property was adjudicated to Perin Boulan'd, for the price of three hundred and seventy dollars, payable cash, which price the Sheriff acknowledges to have received; and the only question in the cause is one of fact, namely, the identity of the vendee in the said deed mentioned.

The plaintiff has given in evidence certain probate proceedings, from which it results, that an inventory was made on the 27th April, 1849, by the Recorder of the Parish of Natchitoches, at the last residence of Perin Boulard, late of said parish, deceased, at a place called “Boulard Landing,” about fifty-one miles below the town of Natchitoches, in the Parish of Natchitoches, of the effects of said deceased, being the stock of goods in a store, the furniture of a house, some horses, a gold watch and chain, in the hands of Madame Boulard, and other personal effects. Another inventory was afterwards made in the city of New Orleans, by a notary public, on the 22d of June, 1849, which comprised certain jewelry and a gold watch, included in the first inventory, but re-appraised for want of fetching the price of the first appraisement; also the two lots of ground claimed in this suit. This last inventory was made at the request of Bose Boulard, widow of Ga/rlos AVocwez, of this city, dative testamentary executor of the succession of her late father, Perin Boulan'd, and pursuant to an order of the Third District Court of New Orleans. This inventory makes no mention of the title by which the deceased acquired the property in question, neither does it, nor the inventory made in Natchitoches, contain any minute titles or other valuable papers (“ depouillement de pa/piers”). Beyond the identity of the name, there is, in fact, nothing in the record which connects the deceased, under whom the plaintiff claims, with the adjudicatee at the Sheriff’s sale in May, 1848.

On the part of the defendant, it is contended that he was the identical person who bought and paid for the lot of ground in question, at the Sheriff’s sale; that his true name is Perin Boulat, and that the spelling of his surname, Boulard, in the Sheriff’s deed, is amere clerical error, which ought not to prejudice him. The Court below having allowed him to offer parol evidence of this error, the plaintiff excepted to such ruling, on the ground that it was proof which contradicted a public act.

We think the District Court properly overruled the objection. In the case of Palanque v. Guisnon, 15th Louisiana Reports, 311, the defendant was allowed to show that there was error in the description of the lot sold, as fronting on Frenchman street, and that the lot actually fronted on Morales street. The Court say : “ This is not an attempt to prove, by parol, a sale of immovable property, nor to contradict a valid existing instrument, but to show, that by accident or negligence, the instrument in question has not been made the actual depository of the intention and meaning of the contracting parties.” The distinction appears to us tobe correctly stated by our predecessors; and the case cited to be entirely analogous to the present one. In Palanque v. Guisnon, the deseriptio loci was erroneous; here the descriptio personas. Nothing is more arbitrary than the spelling of proper names. And when we find, as in the present instance, two names, which, with a slight variation in the spelling, have almost exactly the same pronunciation, it would seem an unreasonable refinement, pregnant with dangerous consequences, to exclude the proof that one has been written instead of the other, by the clerk who filled up a deed.

Under this ruling of the Court, the defendant proved, by the Deputy Sheriff who cried the property, that he was the identical person to whom the lots were adjudicated, and who paid the price. This testimony was fully corroborated by two witnesses who were present at the Sheriff’s sale. It is also proved that defendant did acts of ownership upon the lots, such as filling up and fencing them in, shortly after the sale. Indeed the form of this action, (petitory,) admits the possession of the defendant. The plaintiff has proved that the taxes of 1848 and 1840, were paid hy the attorney of the succession of Perin Poulard; after the hill had been presented by the tax collector to the defendant for payment, who refused to pay, saying that the name in the tax receipt was not in his name. We do not consider this refusal to amount to a disclaimer of property in the defendant. The evidence establishes to our satisfaction, that the defendant is the owner of the property in controversy, and that his name was misspelt in the Sheriff’s deed. There is no conflict of evidence in relation to the circumstances of the Sheriff’s sale. It does not appear that the deceased, Perin Poulard, ever sat up any claim or pretension to be the owner of this property, although he lived several months after the date of the Sheriff’s sale ; and this negative circumstance is received by us as corroborating the positive and direct evidence given by defendant’s witnesses.

Judgment reversed; and judgment rendered for defendant, with costs in both Courts.


text:
    Wardens of the Church of St. Louis v. J. P. Kirwan & Co. et al.
    Kirwan entered into a contract with the plaintiffs to repair the Church of St. Louis, of which they were wardens, according to plans agreed on by the parties. He failed to comply with the stipulations of his contract. Held: — The plaintiffs had a right to rescind the contract and finish the work themselves.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Pen-jcmin & Micou, for Plaintiff. 0. Poselius, for defendant.
   Buchanan, J.

This is a suit for the rescission of a building contract, and for damages; the ground of the demand being bad workmanship and materials.

Defendant, Kirwan, reconvenes for the price of work and labor done, and for damages caused by the acts of the plaintiffs. The District Court gave judgment rescinding the contract, condemning the defendant Kirwan to pay nomi. nal damages to plaintiffs, and rejecting the reconventional claim.

Erom this judgment, the syndic of Aüw'ioare has appealed.

It appears from the evidence that Kirwan, a builder, entered into a contract with the Church wardens to make extensive repairs and alterations to the Church and its tower; that by contract he was to work according to the plans, and under the superintendence, of an architect employed by the Church wardens; that many complaints were made of the manner in which Kirwan was executing the work; that the tower, after being carried to a considerable height, fell down; that this accident was attributed by the architect to the fault of the builder, who, on his part, contended that it was owing to defective plans °f architect.

The parties, however, compromised their disputes by entering into a new contract on the 5th of April 1850, by which the sum necessary to repair the damages resulting from the fall of the tower, and to complete the whole work, was ascertained and agreed upon. The parties further agree that the expenses of repairing the damages caused by the accident should be borne one-half by each party. The price of the contemplated work being fixed by this contract of the 5th of April, 1850, as well as the terms of the payment, the counsel of the appellant is right in the position that this contract is the measure of the obligations of the parties, and that it becomes immaterial to look behind it. But we think, with the District Judge, that the evidence has established the allegations of the petition filed in this case on the 26th of April, 1850, asserting a failure on the part of Kinoan to comply with the obligations of the last contract. The plaintiffs had consequently a right to finish the building as they have done. Allen v. Wills, 4th Ann. 97; Hale v. Wills. 3d Ann. 504 And it is pi’oved that they have paid about $13,000 to finish it, over and above the price of their contracts with Kiruoan. We cannot, therefore, see what cause Kvrwan has to complain of the judgment which has been rendered by the District Court. On the contrary, it would seem that the Church wardens might, with great show of justice, have recovered of Kirwan a much larger sum than the nominal damages (five dollars,) against him by the judgment of the Court below. But they do not complain of that judgment, which is therefore, affirmed with costs.


author: Voorhies, J. Slidell, O. J.,

text:
    Franklin Shaw v. James Gandolfo & Co.
    Pacts —^Partnership in an adventure.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.—

      Benyamin & Micou, for plaintiff. B. J. Sage, for defendants and appellants.
   Voorhies, J.

(Buchanan, J., and Osden, J., concurring.)

The plaintiff seeks to recover of the defendants the sum of $4095 43, as one-half of the loss which, he alleges, resulted from a mercantile adventure, founded on the following instrument, viz:

“New Orleans, May 6th, 1850.

F. Shaw, Hsg. New Orleans,

Dear Sir: We acknowledge the receipt, on consignment and for sale on your account, of six hundred and fifty bales 4-4 bro. sheetings, as per marks and numbers at foot, under the following terms and conditions, viz:

We agree to sell said goods for which you have advanced the cost, in cash, whenever you and ourselves think best. You are to get them insured at good offices in this city, for the benefit of whom it may concern, the cost of which to be charged to the goods.

We agree not to charge any commission for purchasing or selling, and to allow you six per cent, interest per annum for your money, advanced, out of the proceeds of said goods. The profit or loss which may result from this operation, to be equally divided.

James Gandolfo & Co.”

“ Bought of F. H. Petitpan,

LMC 150 bales 4-4 Laurence bro. sheetings, 115,920 yds. at 7^-c. $8,694 00

AC 200 do. 4-4 Appleton bro. sheetings, 150,765^ at 7-Jc. - 11,307 39

Bought of Whiting, Wright & Go.

LMC 170 bales 4-4 Laurence bro. sheetings, - 131,491.3

AC ISO do. do. Appleton, - - - 98,2241

229,716.0 yds.

$16,941 65 229,716.0 yds. at 7fc. ....

19 26 16,922 29 Less %c. per yd. on 5 bales bagging stained,

36,923 68.”

In support of his demand, the plaintiff relies on this instrument and the testimony of Amos Horn. The substance of the testimony of this witness is, that the parties being unable to find sales in New Orleans, Dr. Shaw, and Appleton, one of the defendants, agreed to ship the goods to New York for sale; both engaged the freight of the goods; Appleton himself engaged the drayage, as he could procure it for a lower price than Shaw.

The consignment was made in the name of the plaintiff, to Holbrook & Nelson, of New York, and sold by them for his account. It is shown by the testimony of one of the consignees, that the goods were sold at the current rates, or full market value, in New York — the net proceeds of which amounted to the sum of $32,541 63. The alleged loss is the difference between this amount and that of the invoice of the goods, including interest and charges. The account made out between the parties, including interest to the 15th of December, 1850, by the witness, Horn, shows the exact amount of that difference. It is not shown, however, that the defendants ever had any knowledge of this account, approved it, or consented to pay any part of the loss thus stated. The record shows that the plaintiff introduced in evidence, two documents, purporting to be the original bills of the merchandize purchased of F. H. Petitpan, by the defendants, one dated the 3d and the other the 4th of May, 1850. But these documents do not appear to be either written or signed by Petitpan, and even if they were, we are uninformed as to the object of their introduction.

Under this state of facts, are the defendants liable ?

Whether the agreement between the parties, evidenced by the written instrument, be considered as an agency, or as a partnership, quoad the particular transaction, we do not think it is necessary for us to determine. 8 N. S. 174. Viewed as a partnership, the aspect most favorable to the plaintiff, we think it is clear that the contract terminated by the shipment or consignment of the goods to Holbrook & Nelson. It is obvious that the consignment could not have been made under the same contract. How could the stipulation in relation to commissions on the contemplated sales in Now Orleans, which were to have been considered by the parties as profits, be reconciled to the charge of commission against the defendants on the New York sales? If the parties intended to extend the agreement to the sales in New York, it seems to us that this change necessarily superinduced the necessity of another agreement. In the absence of any other evidence, we do not think the mere consent of the defendants to the consignment, amounted to such an agreement; on the contrary, we infer from it, that it was the intention of the parties to abandon their contract.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the defendants, rejecting the plaintiffs demand, with costs in both Courts.

Slidell, O. J.,

(with whom concurred Campbll, J.)

dissenting — thought the original agreement clearly created a partnership in the adventure, and that the change in the place of sale from New Orleans to New York, to which change, according to their view of the evidence, the parties agreed, did not change the relations of plaintiff and defendants, as partners in the adventure.


text:
    George B. Prindle v. Sarah A. Williams, his Wife.
    Unless a party has some property or interest in the State, upon which the jurisdiction of the Court is to operate, the appointment of a ewrator a<% 7ioc, to represent such party, cannot be legally made.
    There are only two cases in which curators may be appointed to represent absent wives, in suits instituted by the husband; one, when the wife has committed an infamous crime and fled from justice; the other, where the husband sues for separation from bed and board, on the ground of abandon-
    APPEAL from the Eifth District Court of New Orleans, Buchanan, J.

      If. 0. Dunn, for plaintiff and appellant. John B. Bobertson, curator ad hoc.

   Ogden, J.

This is an action of divorce by the husband against the wife, on the ground of adultery. It is alleged, that the wife fled from the State with her paramour, and that the plaintiff is ignorant where she lives. The-appointment of a curator ad hoc, to defend the wife, was made under the prayer of the petition, and the cause put at issue by his answer, containing a general denial of the allegations of the petition. After hearing the evidence, and the cause being submitted, the District Judge came .to the conclusion that the appointment of a vwrator ad hoc to represent the wife was unauthorized by law, and that consequently she had not been legally cited. A judgment of nonsuit having been rendered, the plaintiff has appealed. The only general provision contained in our laws for the appointment of a ewrator ad hoc, to defend an absentee, is Arts.'57 of the Civil Code, and 116 C. P. After many conflicting decisions of our Court, as to the correct interpretation and true extent and meaning of the articles, it has been held in several of the later decisions, that the article presupposes something upon which the jurisdiction of the Court can properly be based. See cases oí Dupuy v. Hunt, 2 Ann. 562: Peterson v. McRae, 3 Ann. 101; Augusta Ins. Co. v. Muton, Ib. 417. We think our predecessors, in those cases, gave a correct construction to those articles of the Codes, and that unless a party has some property or interest in the State, upon which the jurisdiction of the Court is to operate, the appointment of a ewrator ad hoc, to represent such party, cannot be legally made.

The petition in this case represents that the parties were married in the State of Ohio, and afterwards came to this city to live; there is no allegation that they cither brought with them, or have acquired any property since their removal to this State.

Our law views marriage in the light of a civil contract. A judgment rendered in favor of husband or wife, pronouncing a divorce, by which the marriage is dissolved, rests on the same principle on which all contracts may be dissolved by reason of an active or passive violation of the obligation of the contract by either party. But the mode of proceeding, and the particular rules by which the parties must arrive at their rights, are defined by our laws on the subject of divorce and separation from bed and board. Looking to those rules, we find it is correctly stated in the reason for the judgment of the Court below, that there are only two cases in which curators may be named to absent wives in suits instituted by their husbands — that of divorce on account of defendant having committed an infamous crime and being a fugitive from justice, and that of separation from bed and board claimed on the ground of abandonment. It follows, that the appointment of a curator ad hoc to the absent wife, under the circumstances of this case and allegations of the petition, was unauthorized by any of the rules the Legislature have thought proper specially to exact for proceedings in this particular class of cases; and the appointment is not justified by the general provision referred to, providing for the appointment of a ou/rator ad hoc to absentees, any more than it would be in any other case of a suit brought to- set aside a contract between parties, without their being any property of either party within the State to be affected by the judgment.

It is therefore ordered, that the judgment of the Court below be affirmed, with costs.


author: Slidell, C. J. Campbell, J.,

text:
    George Patterson v. J. B. D’Autrive et als.
    Eights of voters, under the Act “ to regulate Elections in the Parishes of Orleans and Jefferson,” approved January 25th, 1847.
    Commissioners of election who refuse to receive a vote, in consequence of their belief that the residence of the applicant does not entitle him to that right, cannot be held liable for damages on account of such refusal.
    "Where a person offering to vote shall be challenged, or the commissioners shall be in doubt as to his qualifications, they shall administer the oath prescribed by law; if he take this oath, it is the test of his qualification, and his vote must be received, unless perhaps the falsity of the oath be estab. lished. If the commissioners reject the vote and, on demand of the applicant, refuse to tender the oath, they are liable to him in damages for such refusal. Campbell, J., dissenting.
    APPEAL from the District Court of the Parish of Jefferson, J. Galvitt Glarlce, J.

      Jourdan & Warfield, for plaintiff and appellant. Mandes, for B'Autyrive. Upton, for Waters. Purvis & Bugué, for BouttL

   Slidell, C. J.

The vote of the defendant was rejected on the ground that he was not a resident of the Parish of Jefferson. There was no doubt as to the locality of plaintiff’s dwelling, but the question was whether the locality was within the boundary line of the Parish of Jefferson. If the commissioners really believed that it was not, we do not think they can be held liable in damages to the plaintiff. When we find the District Judge deciding on evi-deuce, an important portion of which, was before the commissioners, that the plaintiff’s dwelling was clearly in Lafourche, we are not prepared to say the commissioners did not really entertain the same opinion.

In coming to the conclusion to affirm the judgment, we wish by no means to be considered as approving the conduct of the commissioner, D'Awtrvoe, noticed in the opinion of Mr. Justice Campbell.

Judgment affirmed, with cost.

Voobhibs, J., Buchanan, J., and Ogden, J., concurring.

Campbell, J.,

dissenting. The plaintiff alleges that he has been damaged by the acts of defendants, who were commissioners appointed to hold a general election at the precinct of the Barataría settlement, on the 5th of November, 1849. He avers that he was then, and now is, a resident of said precinct, and qualified to vote for the officers then to be elected ; that on the day of said election, while the polls were open, and within the hours designated by law, he presented himself and offered to vote, and tendered his ballot to said commissioners, who refused to receive it, alleging that he was not a legally qualified voter; that he thereupon proffered to take, and demanded of defendants that they should administer the oath in such case prescribed by law, which they refused, maliciously intending thereby to deprive him of his rights as a citizen and voter. Further alleging, that the motive of said commissioners in rejecting his vote, and refusing to administer the prescribed oath, was to intimidate him, and compel him, under the penalty of disfranchisement, to vote as they wished; he claims damages in the sum of one thousand dollars, which he alleges he has sustained from their wrongful acts.

To this petition, an exception was filed, which was sustained by the Court, chiefly on the ground that the action could not be maintained, inasmuch as the commissioners, in rejecting the vote of plaintiff, adjudicated upon a matter over which, by law, they have exclusive jurisdiction. On appeal, this judgment was reversed, and the case remanded for further proceedings. 6 An. 867.

The case is now before us, on an appeal upon the merits. The defendants, D'Autrwe and Boutti, admitting that they acted as commissioners, deny that they were actuated by malice, and aver, that they were influenced in rejecting the vote of petitioner, solely by the desire conscientiously to discharge their duties. Respondent, Waters, further avers, that he relied upon the representations of his co-defendants, who stated that to their knowledge and belief, plaintiff was not entitled to a vote.

Judgment was rendered in favor of defendants, and plaintiff has appealed.

The defence, then, resolves itself into two grounds :■ — 1st. That plaintiff not being a resident of the Parish of Jefferson, was not entitled to vote. 2d. That if he was entitled to vote, they refused him the exercise of the right, not from malice, but in the conscientious discharge of their duty, and are, therefore, excusable.

As respects the residence of the plaintiff, much evidence has been introduced.

It appears from the testimony of witnesses, that since 1845, plaintiff resided on Little Lake, where he now lives; that he claimed to be a resident of the Parish of Jefferson; that he was assessed in that parish, and previously to the election of 1849, had voted there; and that, until that time, the right of persons living in his neighborhood to vote, was never questioned. It further appears, that process from Justices’ Court in the Parish of Jefferson, was executed on the west side of Little Lake, which defendants claim to be within the parish of Lafourche, and that petitioner was subsequently appointed and acted as commissioner of elections in the Parish of Jefferson. It is likewise in evidence, that after the rejection of plaintiff’s vote, some of his neighbors, who live west of him, offered to vote in the Parish of Lafourche; that their votes were refused.

This testimony, it must be conceded, furnishes strong prima faoie evidence that plaintiff was a resident of the Parish of Jefferson.

Defendants seek to destroy its effect, by the production of maps and the application of the oral testimony of witnesses to them.

The maps of Bernard, Poussin and Lafon, and La Tourrette, together with a copy of the approved government survey of the township in which is situated the residence of plaintiff, has been exhibited. In these maps, as in the testimony of witnesses sought to be applied to them, there are conflictions.— The more ancient maps, seem to sustain the hypothesis of defendants; while from the map of La Tourrette and the government survey, it would seem that the residence of plaintiff is in the Parish of Jefferson. The testimony on this part of the case, is vague and unsatisfactory. To establish their defence as against the presumptions in plaintiff’s favor, resulting from his acts and averments— at times not suspicious — the general impression among his neighbors — assessment — -previous voting- — -holding office, &e. — it devolved upon them to prove that he resided out of the Parish of Jefferson. This they have not done, though the fact, if it existed, was susceptible of easy proof.

2d. Did the defendants, on refusing the vote of plaintiff, act maliciously? Or, in other words, was their act in so doing, wrongful and without just cause?

The 15th section of the Act “ to regulate elections in the Parishes of Orleans and Jefferson,” approved January 25, 1847, (page 9 of Session Acts,) prescribes, “ That it shall be the duty of the commissioners to receive the ballots of all legal voters, who shall offer to vote, deposit the same in the ballot-box, to be provided for that purpose,” &c. The next section prescribes that, “ When a person offering to vote shall be challenged, or the commissioners shall be in doubt as to his qualifications, they shall administer to the person so offering to vote, the following oath or affirmation.” Here follows the oath, which embraces all the legal qualifications of a voter, and in taking it, the party offering to vote swears, among other things, “ that he has resided in the State two consecutive years preceding the election, and the last thereof in the parish in which he offers to vote.” In the 17th section, it is expressed, “ That should any person offering to vote, refuse to take and subscribe to tie oath presented, his vote shall be refused by the commissioners.” The next section denounces against those who may swear falsely in the premises, the penalties of perjury.

Thus it appears, that the law, while it seeks to guard the purity of the ballot box, by punishing fraudulent voters, likewise protects the citizens entitled to suffrage, in the enjoyment of this privilege, by prescribing the mode in which his right to exercise it, shall be ascertained in case it be questioned. Except in cases of disqualification from crime, the oath is the test. If he refuse to subscribe it, his vote must be rejected; if he take it, his vote must bo received, unless, perhaps, the falsity of the oath be established, for which, however, the law makes no provision.

But it is urged, that the oath is only resorted to in case the person offering to vote is challenged, or the commissioners are in doubt as to his qualifications. That in this case there were no doubts, as the commissioners knew that plaintiff was disqualified. Their belief could not deprive defendant of his right to establish his qualification in the manner prescribed by law. The interpretation contended for, is the evil one which would destroy the spirit of the law. The commissioner should, upon the demand of plaintiff, have tendered the oath, and if taken, should have received his vote, unless the oath was proved to be false.

The refusal to receive the oath, would not, of itself, subject the commissioners to damages, ; for if it should appear that the party offering was not entitled to vote, it would be damnum absque injuria. It is otherwise, however, if by the wrongful refusal to administer the oath, a person entitled to vote is denied that right. This deprivation is a wrong, which carries damage with it.

In the case of Spraggins v. Haughton, 2 Scammon, p. 377, the Supreme Court of Illinois, in examing the act regulating elections in that State, which act contains a proviso, that when a person shall offer to vote, “ if either of the Judges shall suspect that he does not possess the requisite qualifications of an elector, or if his vote shall be challenged,” the Judges shall tender such person an oath, decide in effect, that, if the party offer to swear, his oath must be received; that “ they have no discretionary power: for the law is imperative that the vote should be received, unless evidence is produced that the oath is false.” We think that the oath in such case provided, should have been administered as prescribed by law.

In the case of Bridge v. Oakey, 2 An. 968, it was held, that “an inspector is not answerable in damages, for a mere error in judgment in rejecting a voter, when his motives are upright.” It must appear, says the Court, that he acted fraudulently or maliciously. “ To constitute malice, the act must be a wrongful one, done intentionally, without just cause or excuse.” Personal ill-will is not essential to its existence; and, in the absence of any declared intention, the motive may be inferred from the circumstances attending the act.”

The refusal of the commissioners to receive the vote, without tendering the •■oath, as has been seen, was illegal, and therefore wrongful. We will now in-tuiré into their motives, so far as they can be gathered from the attending circumstances.

It appears from the testimony, that the election excited a great deal of interest, in which the commissioners participated; that one oí the candidates was a brother-in-law of D'Autrii>e, a commissioner; that D'Autrvoe delivered to Patterson some tickets, to^>e distributed by him among his friends living about Little Lake; that upon Patterson's saying he had come to vote, D’Autrive replied, “ very well, I think you vote as usual;” that Patterson said, “ old man Short is a candidate for assessor,” and B’Auirive replied, “ if you support Bouligny, we shall vote for Shortf also, “ thatif he would vote for Bouligny, he would be allowed to votewith much other evidence of the same character.

Erom this, and other testimony contained in the record, I am constrained to conclude, that in rejecting the vote of plaintiff, the commissioners did not commit an error of judgment alone, but that they were influenced in their decision by improper motives.

It has been well said by Chief Justice Parker, in Lincoln v. Hopgood, “ That the right of voting in such a government as ours, is a valuable right; it is secured by the Constitution; it cannot be infringed without producing an injury to the party; and 'although the injury is not of a nature to be effectually repaid by a pecuniary compensation, yet there is no other indemnity which can be had.” Again, he says: “In cases in which it should bo made apparent that there was a wilful deviation from duty, and a wanton rejection of a vote from party motives, or from personal hostility to a citizen whose vote was refused, or even a negligence or inattentive examination of his claim, exemplary damages would be required as a compensation to the injured party, and an expiation of the high and aggravated offence against the civil and political privileges of the citizen.”

Lord Holt, in the case of Ashly v. White et al., Ld. Ray, 938, (reported in 1 Smith’s Leading Cases, p. 247,) — “ A right that a man has to give his vote at the election of a person to represent him in Parliament, there to concur in the making of laws which are to bind his liberty and property, is a most transcendent thing, and of an high nature; and the law takes notice of it as such.” He adds: “ If public officers will infringe men’s rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offences.” Upon the argument of the same case before the House of Lords, Lord Holt says: “ Let all people come in to vote fairly; it is to support one or the other party to deny any man’s vote. By my consent, if such an action comes to be tried before me, I will direct the jury to make him pay well for it; it is denying him his English right.” With more force may it be said, that to reject the vote of a citizen of this country, who is a qualified elector, is to deprive him of his American right.

I am, therefore, of opinion, that as regards the defendants, B'Aut/rwe and Boutté, the judgment of the District Court should be reversed, and judgment rendered in favor of plaintiff. And it appearing that the defendant, Waters, was willing to administer the oath, but was overruled by the other commissioners, his co-defendants, that, as to him, the judgment should be affirmed.

        Extract from judgment of District Cvwrt. — “On the trial, evidence -was introduced on both sides, to ascertain and determine the true boundary that divides the Parish of Jefferson from that of Lafourche, l'he plaintiff resided on the west or right bank of Little Lake. The defendants contend that the right or western shore of Little Lake lies wholly within the boundaries of La-fourche, and that plaintiff is, therefore, a resident of that parish — where alone he is entitled to the right of suffrage. In this position the commissioners are fully sustained by the map of G-eneral Bernard and Major Poussin, made in 1817, by that of Lafon, and by the testimony of witnesses familiar with the Barataría region, who attest the accuracy of these surveys. To contradict this array of proofs, the plaintiff relies on La Tourrette’s map. It was shown that La Tourrette has copied all his lines and boundaries from the survey of General Newcomb. The person last named, is notorious as a fugitive from justice to avoid a prosecution for forgery His surveys are entitled to no credit, when contradicted by those of distinguished engineers like Bernard, Poussin and Lafon, corroborated, as they are, by eye-witnesses well acquainted with the localities.
      “ We are satisfied by the evidence, that the west or right bank of Little Lake, is within the bounds of the Parish of Lafourche.”


author: Campbell, J.

text:
    Issac Collins v. John Monticou.
    A party who takes a suspensive appeal and abandons it, cannot afterwards take a devolutive appeal.
    APPEAL from the District Court of the Parish of Jefferson, Olmdee, J.

      Race & Foster, for plaintiff. Michel, for defendant and appellant.
   Campbell, J.

The plaintiff and appellee move to dismiss the appeal, on the ground, that a previous appeal was taken and abandoned by the appellant.

The record discloses that, on the 28d May, 1832, a suspensive appeal was ' granted on the petition of appellant, and that the required bond was filed the same day. It further appears, that this appeal was never brought up ; but that in December of the same year, appellant applied for and obtained the devolutive appeal now before the Court. .

The appeal taken, having thus been abandoned, cannot be renewed. C. P. 594. Dozer v. Sargent, 4 L. 41. Roberts v. Beuler, 1 R. 100.

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


author: Slidell, C. J. Buchanan, J.

text:
    State of Louisiana v. Orleans Navigation Co. et al. Alfred Hennen, Opponent.
    Where a creditor and stockholder of a company pursued a course of conduct which was calculated to mislead the Commissioners, and which was unjust to the stockholders, creditors, and other parties in interest; and where he had it in his power to make known his objections and have them settled before a sale of the property — but instead of doing so stands by and permits the sale to proceed, he will not be allowed to oppose it after important rights are acquired. It is not enough that such a creditor threatened at the sale to oppose it, in a voice sufficiently loud to be heard by persons present. It was his duty to state the nature of his objections, or his quality as a stockholder or creditor.
    The power to appoint a liquidating commissioner of the Orleans Navigation Oo. was given by the Legislature to the Court in which the suit for forfeiture of its charter was instituted; the power to filia vacancy in the office is necessarily implied in the general power to appoint. The constitutional power of the Supreme Court being merely appellate, except in certain specified cases, it is disqualified to make the appointment in question even if the Statute were silent.
    APPEAL from the Eifth District Court of New Orleans, Bueliaman, J.

      Alfred Eennen, for opponent and appellant. Benjamin, Mieou & Finney, L. Eunton, Thos. Allen Olwlce, Garnett Dunca/n, B. E, Dwell, for the other parties in interest.
   Slidell, C. J.

This was originally a suit instituted by the State against the Orleans Navigation Company for a forfeiture of its charter. While the cause was pending in the Supreme Court, the Legislature, anticipating a final decree of forfeiture, passed an act providing for the liquidation of its affairs, in the event of such a decree. Acts of 1852, p. 209. The act authorizes the Court in which the suit was pending, if a final decree of forfeiture should be made by the Supreme Court, to appoint a liquidating commissioner, who should forthwith proceed to take possession of the entire property of said company, and proceed to sell the same in block, at auction, after sixty days advertisement, to the highest bidder, payable one-tenth cash, and the remainder in equal annual instalments from one to twenty years.

The second section makes it the duty of this commissioner, immediately after the sale, to present a tableau, showing the amount of the sale, and receipts from all other sources — and the expenses of the commission and the amount of debts — and they are to be first paid — and that the surplus shall be paid to the stockholders, and that all the proceedings, “ shall be the same, as near as may bo, as in cases of insolvency of individuals.”

The fourth section provides, that if the purchasers shall organize themselves into a corporation for twenty-five years, for the purpose of making certain extensive improvements, and actually complete them in three years, they shall be entitled to “all such tolls and revenues for the use of said canal, bayou and road, as the Orleans Navigation Company was entitled to receive under its charter.”

The fifth section requires the corporation to be formed under it to give a bond of $50,000, to secure the completion of the improvements within three years.

The sixth section provides for a forfeiture of all work done, and money expended, if the work is not completed in a specified time.

It will be observed that by the act the purchaser was to enjoy, under certain conditions, franchises formerly enjoyed by the company, but lost by its forfeiture ; and that in a spirit of beneficence to the creditors and stockholders, the Legislature gave them the entire proceeds of sale, which we may reasonably suppose were materially enhanced by such a provision.

The commissioner proceeded to make a sale pursuant to the Statute, and one Oorrie became the purchaser at a total price of $69,000. He. subsequently assigned his interest to a new company formed under the title of “The Orleans Navigation Company.” The commissioner then filed a tableau of distribution, proposing to distribute the proceeds received from the sale among the creditors of the defunct corporation. Alfred Hennen, who is both a stockholder and creditor, filed an opposition in”which he asserted the unconstitutionality of the Statute, and the consequent invalidity of the sale made pursuant to it; and asked that the sale be adjudged void. At his request, the asssignee of the purchaser was made party.

The view we have taken upon another point dispenses us from the necessity of discussing the constitutionality of the Statute.

The appellant, Hennen, was cognizant of the decree of forfeiture, the appointment of the commissioner, and the order of sale. Before the sale he prepared a petition asserting the unconstitutionalityof the law, making the objections to the validity of the sale, which he now urges, and praying for an injunction. This petition he exhibited to the liquidating commissioner, who accepted service. Instead of filing it and asking an injunction, the appellant quietly retained it in his possession, and nothing more is heard of it until produced by Mm atjthe trial of the opposition to the tableau of distribution. This course of conduct was calculated to mislead the/commissioner, and was unjust to the stockholders, creditors, and other parties in interest, who if their petition had been filed would have been put on their guard, and could have had these questions settled before the sale. The appellant has put himself in the inequitable attitude of standing by, ¿permitting the sale to proceed, taking the chances, and now opposing it after important rights have been acquired, and all other parties, the commissioner, the stockholders, the creditors and the purchasers, are satisfied with the result.

It is said by the appellant that he gave warning at the auction. The evidence on this subject does not relieve^the appellant from the consequences of his previous course."' It appears from the testimony of the auctioneer that Mr. Hennen spoke to him before he began the sale, and forbade him to soli, saying he would oppose it in a voice sufficiently loud to be heard by the persons present, but it does not appear that he made any statement of the nature of his objections or his own quality as a stockholder or creditor. For aught that appears to the contrary, he was a mereintrucler.

It is proper to add that there is neither allegation nor proof that a new sale would result in an increased price, nor is there reason to believe that any real jjardship ^ag been sustained by the appellant.

Judgment affirmed with costs.

Buchanan, J.

The appellant has suggested the death of Jacob 8. Habey, the liquidating commissioner of the Orleans Navigation Company, and has moved this Court for the appointment of another liquidating commissioner, or for such mandate in the premises, to the Court below, as the law may require.

The appellee has answered the rule by suggesting that the District Court has already taken action in the matter, as it is authorized by law to do, and has appointed a successor to Mr. Habey.

The proceedings for the liquidation of the Orleans Navigation Company are carried on under the act of the Legislature of the year 1852, No. 809. • The first section of that act makes it the duty of the Court in which the suit for forfeiture of its charter was instituted, to appoint a liquidating commissioner. The power to fill a vacancy in that office is necessarily implied in the general power to appoint. Besides, the constitutional jurisdiction of this Court being merely appellate, except in certain specified cases, we should view ourselves as disqualified to make the appointment in question, even were the statute silent on the subject. We think with the counsel of the appellees, that the Elfth District Court, in appointing a successor to the deceased commissioner, has done what was proper and necessary in the premises; and it becomes, therefore, unnecessary , to direct any mandate to that Court in furtherance of our appellate jurisdiction.

It is ordered, adjudged and decreed that the rule taken in this case by the opponent and appellant be dismissed with costs.


author: Voobhibs, J.

text:
    Jean Chartier v. Police Jury of Plaquemines.
    It is not competent for the District Court, on the death of the plaintiff, to appoint a curator ad Uoa to prosecute the suit
    There can be no appeal from a judgment before it is signed. C. P. 546.
    APPEAL from the District Court of the Parish of Plaquemines, Bousseau, J.

      J. Bradford, for plaintiff and appellant. James Foulhouse, for defendant.
   Voobhibs, J.

The judgment appealed from is not signed by the Judge. The record shows that it was entered on the minutes of the Court on the 21st of June, 1852; and that a motion for a new trial was made by the plaintiff. Beyond this, the evidence leaves us to conjecture. It appears afterwards, on the 20th of October, 1852, that the plaintiff’s death was suggested by his counsel, on whose motion the Court appointed a curator ad hoc to prosecute this suit to final judgment. The curator ad hoc thus appointed, presented a petition to the Judge a quo, and obtained the order for this appeal.

The cases in which curators ad hoc may be appointed by Courts to represent parties in suits, are enumerated and specially provided for by law. Tfe are not prepared to say that this is one of the oases in which it may be done. In the case of McManus v. West, (18 L. R. 41,) where a similar appointment was made, the Court said: “ As the plaintiff’s death was suggested, and not being denied, it must be taken as true. It, however, does not justify the appointment of a curator to his heirs. If they were within the State, no curator could be appointed to them; and if absent, the Court of Probates possesses the exclusive power to make the appointment. Code of Practice, Art. 924, No. 4. The appointment being irregular, all the posterior proceedings contradictorily with him are equally so.” The article referred to declares, “that Courts of Probate have exclusive power: 4. To appoint curators to vacant estates and absent heirs.” That power is now vested in the District Courts, and most clearly has no application to the appointment of curators ad hoc. According to the principle thus laid down, we think it is obvious, that the curator ad hoc, in this case, cannot stand in j udgment, as the legal representative of the heirs of the succession of Jean Ohartier, deceased.

There is another objection which we consider equally fatal to the appeal. It has been repeatedly held by our predecessors, that, under the 546th Article of the Code of Practice, no appeal lies from a judgment before it is signed. We are, therefore, of opinion, that the dismissal of the appeal in this case is unavoidable.

It is therefore ordered, adjudged and decreed, that the appeal in this case be dismissed at the appellant’s costs.