text:
    Commercial Bank of New Orleans v. Susan Poland.
    Where a note secured by mortgage is endorsed by tliepayee to a third person, the endorsee cannot issue executory process on the mortgage, without authentic evidence of the endorsement.
    APPEAL from the District Court of Jefferson, Clarice, J.

      E. Rawle, for plaintiff.

      Dunlap and Clark, for defendant.
   The judgment of the court, (Preston, J., not sitting in the case on account of interest) was pronounced by

Eustis, C. J.

This is an appeal from an order of seizure and sale issued by the judge of the third district.

The appellant asks for a reversal of the judgment appealed from, because there is no evidence that the plaintiffs are the owners or holders of the note of the character required for the issuing of the executory process — that is, evidence by authentic act.

The note on which the order of seizure and sale was issued is signed by Susan Poland, the defendant and appellant, and is in favor of the executors of the estate of Robert Layton, deceased, and bears the endorsement of Isaac T. Preston, Executor. The plaintiff holds und.er this endorsement in blank, without any evidence of the transfer being exhibited. We said, in the case of French v. The Mechanics and Traders’ Bank, 4th Ann. 153, “It is requisite that the evidence on which executory proceedings are had should be authentic.” The judge in granting the order can take no cognizance of matters resting inpais. We do not think this defect is aided by the fact of the mortgage given to secure the payment of the note being in favor of the executors of Layton or any other holder of the note. This clause gives the plaintiffs the mortgage, but not the note.

The decision on this point renders it unnecessary to examine the other questions raised in argument by the counsel for the appellant.

The judgment of the district court is therefore reversed, and the plaintiffs’ petition dismissed, with costs in both courts.


source: Caselaw Access Project

author: Prestow, J.

license: Public Domain

text:
    Fellows & Co. v. H. Frelson & Co.
    Where cotton had been consigned to the plaintiffs by the shipper, and the clerk of the boat by mistake, filled up a bill of lading to the defendants, who, received and sold the cotton, notwithstanding the claim of the plaintiffs and the correction of the mistake by the clerk of the boat soon after the delivery, the defendants will be held liable for the advances made by the plaintiffs and the commissions received for the sale of the cotton; and in such case the consignor is a competent witness for the plaintiff.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, L

      Molt and Fraser, for plaintiffs.

      Durant and Hornor, for defendants.
   The judgment of the court was pronounced by

Prestow, J.

The evidence, in this case, does not leave the least doubt that about the last of January, 1850, Thomas Evans, residing on Bayou Mason, shipped on board the Ann Lancaster, Captain Reeding, thirty bales of cotton, consigned to the plaintiffs, commission merchants in New Orleans, and took a bill of lading to that effect. On the arrival of the boat in this city, the defendants caused the cotton to be sequestered as being consigned to them; and the master consented that it should be delivered to them by the sheriff, on condition that they would hold him harmless. They took possession of the cotton and sold it. Their reason for doing so was, that a bill of lading was filled by the clerk or master of the boat, making them consignees of the cotton and delivered to them the day she arrived. The master', however, immediately got possession of the bill of lading, corrected and delivered it to the true consignees, and testifies that it was filled up by error in favor of the defendants, and the mistake made known that very day. The defendants refused to deliver up the cotton. The plaintiffs immediately sequestered, and defendants bonded it, and retained possession and sold it, as commission merchants, about two weeks afterward, and rendered the account of sales to Evans.

The latter, in consigning the cotton to the plaintiffs, accompanied it by a letter of advice and order for a bill of supplies for his plantation, by the return of the boat. He also drew some small drafts on the consignees. The supplies were furnished and the drafts paid, and some money advanced on the faith of the shipment; and the plaintiffs were entitled to be paid out of-the proceeds of the cotton, and also to receive the commissions for the sale of the same, of which defendants deprived them without any reasonable pretext.

It is unnecessary to examine the regularity of the plaintiffs’ proceedings to sequester the cotton, because the defendants bonded it, and a personal judgment is rendered against them; nor is it worth inquiring whether the plaintiffs had a lien or not on the cotton. They would have been paid their claim and earned the commissions, but for the unwarrantable interference of the defendants.

The testimony of Evans was properly admitted in evidence. He was disinterested between the parties. If the defendants are compelled to pay the proceeds of the cotton to the plaintiffs, they will be exonerated from payment to the witness.

A bill of exceptions was taken to. his testimony contradicting the bill of lading delivered to the defendants. He did not contradict, but sustained it, as it was exhibited in court. By whom it was offered, does not appear by the record, but we suppose by the defendants; if so, he might contradict it. It was not his act, nor was he bound by it, nor his consignees to whom he had transmitted the true bill of lading.

Judgment was properly rendered in favor of the plaintiffs against the defendants for the advances and commissions, of which they have been deprived by the acts of the defendants; and it is affirmed, with costs.


author: Rost, J.

text:
    Succession of Felix Connolly.
    A certificate of a commissioner to take testimony, at the end of the answers to the interrogatories in these words, “ sworn to and subscribed before me, commissioner, &c.” is not alone a sufficient proces verbal, to authorize the reception of the testimony in evidence.
    Where testimony has been taken under a commission, which on the trial was rejected on account of informalities in the manner of execution, and it appears that the testimony had been filed long enough before the trial for the party to have had it taken over again, the case will not be remanded to allow him an opportunity of re-taking the testimony.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      C. Roselius, for appellant.

      Hoffman and Ogden, for appellees.
   The judgment of the court was pronounced by

Rost, J.

Our attention in this familiar case has been called to a bill of exceptions taken by the counsel of the opponent, John M. Bach, to the opinion of the court refusing to receive in evidence the testimony of John Deas, taken under commission, on the ground that there was no proces verbal showing the manner in which the commission was executed, or that the witness was sworn before the deposition was taken.

The rejected evidence comes up with the bill of exceptions. It is nothing more than answers to the interrogatories, at the close of which these words are found, “sworn to and subscribed before me, Lewis F. Robertson, commissioner,” &c. Such a certificate does not furnish all the guarantees of truth which the law requires in the testimony adduced before courts of justice, and the court very properly held it insufficient.

We have been asked to remand the case, so as to give the opponent another opportunity to procure the rejected evidence.

The return of the commission was filed in the district court on the 18th of December, and the case was not tried until the 7th of March following. The opponent had ample time to take another commission and to have it properly executed. Judson should not be prejudiced by his omission to do so. There must be an end to lawsuits, and we think it high time, that this litigation should be closed. If the evidence had been admitted, we would not, in all probability, have given it the weight to which the opponent seems to think it is entitled. It proves almost too much. On the merits, the case presents mere questions of fact.

John M. Bach and Miles Judson both claim to be the owners of a judgment rendered against Felix Connolly, in favor of a commercial firm of which neither of the parties was a member. The district judge has dismissed the opposition, and substantially decided that the judgment belongs to neither party. We believe this to be a righteous judgment, and one with which we ought not to interfere.

The reservation made in favor of the real owners of the judgment, is legal and proper in every respect.

The judgment is therefore affirmed, with costs.


author: Shdell, J.

text:
    William Whitla v. S. T. Taylor.
    Where a person who had famished materials to a contractor for the erection of a building, took a note, specifying that it was for materials furnished the contractor, and gave a receipt, acknowledging payment in anote, Held: that under the circumstances, he was not debarred by the receipt, from claiming to be paid out of the funds of the contractor in the hands of the owner, the requisite notice under the act of March, 18th 1844, having been given.
    Under the act of March, 18th 1844, material men and workmen have no privilege upon the building, even after giving the notice therein required, unless the contractor has himself a privilege.
    Under art. 2746, C. C., the contractor has no privilege upon the building where the contract exceeds five hundred dollars, unless the contract be reduced to writing, and recorded in the mortgage office.
    APPEAL from the Third District Court of New Orleans, Kennedy, 3.

      T. IV. Collens, for plaintiff.

      P. S. Warfield, for defendant.
   The judgment of the court.was pronounced by

Shdell, J.

Whitla furnished materials for a building which Payne was erecting for Taylor. During the execution of the work, Payne gave Whitla a promissory note dated December, I9tb, 1849, and payable ten days from date, for $328 52, stated in the note to be “ for lumber furnished and delivered to Sewell Taylor's buildings on Hevia street.” Upon the back of this, Whitla, on the same day, wrote a declaration, that the claim stated in the note was correct; which he subscribed and swore to before a justice, and caused a copy of the note and affidavit, together with a copy of the account for lumber, sworn to before a justice, to be delivered to Taylor, in the latter part of December, 1849. It is further proved, that before the note fell due, it was exhibited to Taylor, who, being asked to discount it, offered to give $250 for it, which was declined. When the note was given, Whitla gave Payne a receipt at the foot of his account in these words. “ Received payment by note, payable ten days from date.”

As the note expresses on its face a promise to pay so much for the lumber, we should violate the intentions of the parties if we considered Whitla as abandoning his position as a creditor, for lumber furnished and not paid for. We would do wrong to look only to the language of the receipt, and construe it with technical rigor, disregarding the language of a contemporaneous instrument, directly connected with it and the surrounding circumstances.

We are unable to perceive why an indulgence of a few days given to Payne should affect Whitla's right to stop any monies in Taylor's hands, under the statute. The term had probably run out when service was made. If there was any loss of interest for a day or two, it would fall on Payne; but that he could and did virtually consent to,

The defendant has not proved any default by Payne ; nor has he shown what payments he has made. There may be equities in defendant’s favor against Payne, but the evidence before us does not prove them.

We think, however, the judgment was erroneous in granting a privilege. Under the statute of 1844, the workman and furnisher of materials may, by the means prescribed, stop monies in the hands of the proprietor, and thus acquire a money claim against him, even if the contract is not registered. In addition, he may acquire a subrogation to the contractor’s privilege, if the contactor has one. See sec. 4, p. 35. But here it does not appear that Bayne had a privilege, for there is no evidence that the contract, which exceeded $500, was recorded. It will be observed, that the language of article 2746 is peculiar, and no privilege exists, in contracts over $500, even as between the contractor and the proprietor, without recording. For the enjoyment of the privilege, the contract must be “ reduced to writing, and registered with the recorder of mortgages.” See Spence v. Brooks, ante, p. 63. Taylor v. Crain. 16 L. R. 294.

It is decreed, that the judgment so far as it confers a privilege be reversed, and that the privilege claimed be refused ; and that "in other respect's the judgment be affirmed; the plaintiff paying the costs of the appeal.


author: Slidell, J. Rost, J.,

text:
    Johnson and Erwin et al. v. Peters and Millard.
    The defendants had contracted to furnish their notes, payable at one, two, three, four and five years, but did not do so, and the plaintiffs, after the lapse of twelve years, brought suit against them. Held: that the action was barred by prescription.
    APPEAL from the Third District Court of "New Orleans, Kennedy, J.
    In this case the judgment of the district court was as follows: “This is strictly a personal action. C. P. art. 3. The defendants oppose to it the prescription of five and ten years.
    “Personal actions, in general, are prescribed by ten years. C. C. 3508. Actions on negotiable notes, by five years. Art. 3505. The obligation of the defendants, contracted in 1837, was to furnish negotiable notes, for a certain deficiency to be determined by a future event, all payable before the year 1843. The deficiency was ascertained before the end of 1837.
    “Prior to the period fixed for the maturity of the notes, the plaintiffs’ right, if any they had, against the defendants, was limited to an action to compel them to furnish their notes according to contract; the alternative right of rescinding the contract is not now in question. After the period of maturity, an action to compel the furnishing of notes past due would have been as absurd as unnecessary, for the right to exact the amounts that would then have been due on the notes, if they had been furnished, was perfect. At all events, the right to institute such an action is barred in ten years; and more than twelve had elapsed froip the time the deficiency was ascertained, when this suit was brought. On the other hand, more than five years had also elapsed since the period at which the notes would have matured if they had been, furnished. The dófendants must be treated either as having executed their contract by giving notes, or as having refused so to execute it; they are entitled to one or the other of these two positions. The prescription of five years covers the' first position; the prescription of ten, the second; unless the plaintiffs can bring themselves within the exception “ contra non valentem,” &c. This was attempted by an argument that Erwin, the plaintiffs’ assignor, had no right of action until the mortgage on the square sold was raised. There are two answers to this: 1st. That Erwin was the party bound to raise the mortgage; and if he did not raise it sooner, it was his own fault. 2d. That the defendants could not have defended themselves, on that ground, in an action for a specific performance, for the reason that the raising of the mortgage was not made a condition precedent to the furnishing of any of the notes, nor to the payment of any of them, except the notes amounting to about $100,000, which were, by agreement, to remain on deposit with the notaiy. These notes, it will be observed by reference to the auctioneer’s proces verbal, were the notes to be furnished by the purchasers at the sale, in payment of the price of adjudication. The object of this special deposit to double the amount of the mortgage, was clearly to make the parties safe in executing the contract in all its other parts, and to leave them no legal excuse for backing out; and the security was ample.
    “For the reasons assigned in'the written opinion of the court, this day delivered and on file, it is adjudged and decreed, that the peremptory exception filed by the defendants be maintained, and that the plaintiffs’ petition be dismissed, with costs.”

      Thomas and Snyder, for plaintiffs.

      H. Lockett, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

We concur with the district judge in the opinion that the defendants are protected by prescription.

It is therefore decreed, that the judgment of the district court be affirmed, with costs.

Rost, J.,

dissenting. Green and Ogilvie made an agreement, by which they bound themselves to pay James Erwin the sum of $320,000 on certain terms of credit, for a square of ground belonging to him in this city, on condition that it should be divided into lots and sold at public auction on the terms agreed upon for the price, and that Erwin should make titles to the purchasers, and receive in payment their notes satisfactorily endorsed; Green and Ogilvie to receive the surplus of the sale over the price, or to account for the deficiency as the case might be. These parties then made a contract with a company, in which they bound themselves to take all the necessary steps to have the ground divided into lots; to cause those lots to be sold at public auction within a given time, and to account to the company for all that might remain from the net proceeds of the sale, after paying James Erwin $320,000, and retaining for their trouble and labor in effecting the sale, and as a profit upon their purchase, the further sum of $30,000; and in case the net proceeds of the sale were less than $350,000, the members of the company agreed each to furnish, for the deficiency in proportion to the amount of their stock, six notes satisfactorily endorsed : the first payable six months after the day when the deficiency was ascertained, and the other five in one, two, three, four and five years from that date, these being the terms on which the property was to be sold.

The square was accordingly divided into lots, and on the 29th March, 1837, a public sale was effected in presence of the defendants, who purchased some of the lots. The aggregate amount of that sale was $291,400; but it was reduced by a re-sale of part of the property rendered necessary by the failure of the purchasers to comply with the terms of the sale. The re-sale took place on the 29th June, 1837, and the loss sustained in consequence of it, amounts to the sum of $11,307 50, thus reducing the actual amount of the sale to $284,092 50, which was received by James Erwin, in the notes of the purchasers, and leaving a clear loss to the company of $69,907 50. Of this sum, $39,907 50, with the stipulated interest at six per cent, was to make good the sum of $320,000 to James Erwin at the date of the sale, and the remaining $30,000 were to be paid to Green and Ogilvie.

The defendants held stock of the company to the amount of $20,000, and this suit was instituted by the assignees of Erwin, and by Green and Ogilvie, to recover from them the proportion of the loss which they assumed to pay.

Green and Ogilvie discontinued the suit, so far as they were concerned, and there was judgment in favor of the defendants, against the other plaintiffs, on the ground of prescription. The latter have appealed.

I do not think that the facts of this case admit of any reasonable doubt. James Erwin accepted the stipulations in his favor contained in the agreement between Green and Ogilvie and the company, by recording the proces verbal of the auction sale, making titles to the purchasers and receiving their notes in payment, in conformity with that agreement.

The defendants having been present at the sale, had notice of the mortgage existing upon the property, and of the provision which was made to secure the purchasers against it. That mortgage was subsequently raised, and they cannot now set up its existence at the time of the sale, in avoidance of their obligation.

At the re-sale, Green and Ogilvie were acting for the defendants and in their presence; and so far as Erwin is concerned, the defendants are as much bound by the acts of these parties as they would be by their own. They never objected to the proceeding, and the loss sustained should be determined by the re-sale.

The main ground of defence is, that this action is based on the alleged promise to give notes for the deficiency, and that taking the 29th June, 1837, the day of the re-sale, as the day on which the deficiency was ascertained, and James Erwin had the right to demand these notes, more than ten years elapsed from . that day to the institution of the suit, and the claim is barred by prescription.

I do not understand this action to be on the promise to give notes for the deficiency, but rather on the promise to pay the deficiency. The giving of notes was subsidiary to the principal obligation, and could be dispensed with without impairing it.

. The omission of Erwin to require the security which the defendants were bound to give, amounts to a waiver of it on his part, and leaves unimpaired their obligation to contribute to the payment of the loss upon the sale.

Had notes been given, they would have been barred by the prescription of five years. As the case stands, the prescription of personal actions can alone be invoked, and the ten years necessary to perfect it should be counted on each installment from the day of its maturity. Under this view of the law, the three first installments are barred by lapse of time, and the three last only can be recovered.

Green and Ogilvie having discontinued their suit, and the first three installments of the claim of the other plaintiffs being prescribed, that claim should be limited to one-half of the pro rata proportion of the loss upon $39,907 50, the amount remaining due to James Erwin, for this sum, divided into three equal installments, falling due respectively on the 29th of June, 1840, 1841 and 1842, and interest at six per cent after maturity, I am of opinion the plaintiffs are entitled to a judgment.


author: Slidell, J.

text:
    The State v. The Judge of the Third District Court of New Orleans.
    A mandamus -will not be issued to a judge of the district, directing him to grant an appeal from an interlocutory decree ordering the sale of partnership property in a suit between partners for a dissolution and settlement of the partnership.
    A MANDAMUS was applied for on the following grounds : “ That, by the record of the said suit, it appears that the parties, plaintiff and defendant, were interested as partners and co-partners, but not equal in interest, in a newspaper published in this city, known as the Daily Orleanian. That the plaintiff, J. C. Prendergast, in December last, sued for a dissolution of said interest, claiming that it was not a full partnership interest which O'Reilly, the defendant, held, but only a smaller part interest. That then the defendant, in his answer, sued out a writ of sequestration, and sought to take all the property in his own hands and control; so the plaintiff was compelled to give large bond therefor. That then the suit upon its merits was referred to auditors, and the said auditors have not yet passed upon the same. That while the suit was yet before the auditors, and before any hearing had been had upon the merits, the defendant moved for a sale of the property in dispute, viz: the Daily Orleanian; and the same was ordered by the court to be sold en bloc on time, for notes which should be deposited in court, to abide the final decree in the cause. That, from this order, as well as from an interlocutory judgment, the plaintiff prayed leave to appeal, and filed a good bond therefor, and the same was ordered ; and that after and on the 26th of April, instant, the court diu rescind the said order, and has refused to allow the said appeal, and the sale of the whole property will take place; and so, unless the mandate of this honorable court intervene, irreparable injury will be done the plaintiff, your petitioner.
    “ Your petitioner respectfully shows, and does on oath aver, that the defendant is not and never was a full partner with him; that this is a question at issue, to be passed upon on the trial of this cause. That 'there is no good reason on the defendant’s part, to show that the sale ordered is either just, necessary or reasonable ; and if made now, it will assuredly do great mischief and hurt to your petitioner, and will indeed work him an irreparable injury. That he has a right to the appeal to this honorable court, which has been duly asked for and refused, and he hopes to obtain it. And having thus respectfully stated the nature of his right, and of the injury which he will sustain, he prays, all being considered and the record, that this honorable court will interpose its high authority and grant the rule prayed for, and order the appeal asked, and in due time make it absolute, and all right do in the premises.”
    The answer of the district judge was as follows: “ The judge of the Third District Court of New Orleans, for cause why a mandamus should not issue herein, respectfully shows, that the property referred to is partnership property not susceptible of division in kind; a sale of which, at some time, is therefore unavoidable. The power of district courts to order the sale of partnership property, without waiting for the settlement of the partnership accounts, was recognized in the case of Kohn et al v. Marsh, 3 R. R. 48. If the plaintiff, Prender
      gasi, should suffer loss by having the property taken out of his possession by a sale, it would be simply damnum absque injuria: the loss of a benefit to be gained by employing the common stock, after the dissolution of the partnership, to the exclusion of his co-partner. If he means that a sale, after the final decision of the cause, will be more beneficial to all the parties in interest than a sale at this season, what certainty is there that the final decision will not be delayed until this season next year? If any period short of the final decision may be selected, by whom, the parties disagreeing, can it be selected- except by the district judge in the exercise of a sound discretion ? The evidence taken in the rule to show cause why the order of appeal should not be rescinded, satisfied the district judge that the execution of the decree of sale would not cause an irreparable injury to the plaintiff, in the sense of the law. The entire record of the suit is herewith transmitted for reference and verification of the facts above stated. And the respondent now submits himself, as in duty bound, to the decision of this honorable court. T. H. Kennedy, Judge of the Third District Court of New Orleans.

      W. S. Upton, for application.
   The judgment of the court was pronounced by .-

Slidell, J.

In consideration of the views expressed by the district judge, it is ordered, adjudged and decreed, that the application for a writ of mandamus in this case be refused, at the applicant’s costs.


author: Etjstis, C. J.

text:
    Henry R. Morgan v. Albert Wintercast.
    The plaintiff had seized, on an execution, property on which there appeared to he a mortgage, by the recorder's certificate. He then took a rule against the mortgagee to show-cause why the mortgage should not be cancelled, upon the ground that it was simulated: Held: that the validity of the mortgage could not be tested in this summary mode, but that the plaintiff must resort to an ordinary action.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Durant and Hornor, for plaintiff.

      Grymes and Vandalson, for defendant.
   The judgment of the court was pronounced by

Etjstis, C. J.

The plaintiff, who is a judgment creditor of the defendant, seized certain real estate under an execution which was, according to the certificate of the recorder of mortgages, incumbered with a mortgage in favor of R. F. Williams. He took a rule on Williams to show cause why the mortgage should not be cancelled and erased from the records of the recorder, as it was an obstacle to the sale under execution, and was fictitious and simulated. Williams excepted to this mode of proceeding against him by rule, and alleged that the mortgage was good and valid, and given to secure four certain promissory notes mentioned in the act of mortgage, on the faith of which the notes had been negotiated and put into circulation in the regular and usual course of business, and were then in the hands of bond fide holders.

The district judge maintained the exception, discharged the rule, and the plaintiff has appealed.

Waiving the question of the right of the party to appeal, as the point has not been made in argument, we think the district judge did not err in discharging the rule. His decision is in conformity with the rule of practice laid down in the case of The Bank of Louisiana v. Delery, 2d Ann. 650. The respondent asserted, on the record, a legal right, which it was not competent for the court to act upon and determine under the summary process of a rule. The plaintiff has his ordinary action against the respondent, of which the respondent is entitled to have the benefit.

The judgment of the district court is therefore affirmed, with costs.


author: Preston, J.

text:
    James Nicholson v. Frances N. Ogden, et. al.
    Where tlie executor, appointed by the testator, was absent from the country at the time the succession was opened, and' the court appointed a dative testamentary executor, who proceeded to administer the estate, and who had so nearly completed the administration, that when the executor named by the testator appeared and claimed the revocation of his appointment, he filed a final account and delivered the property to the heirs, Heidi that the court would not, under the circumstances, revoke the appointment of the dative executor, and that neither he nor the heirs were liable for the commissions to the testamentary executor.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      M. M. Cohen, for plaintiff.

      Benjamin and Micou, for defendants.
   The judgment of the court was pronounced by

Preston, J.

John Nicholson departed this life, in May, 1848. By an olographic will made in May, 1833, he distributed his property equally among his children, except as to Mrs. Conrad, a niece, whom he declared he regarded as his child, and gave her an equal share with his own children. He made no other disposition of his property, except for the support of a family servant, who he declared had acted the part of a mother to his motherless children. He appointed the plaintiff, a brother, in whom he appears to have entertained great confidence, his executor with seizin of his estate. The plaintiff was absent in Pennsylvania, at the time of the testator’s death; and by the misdirection of letters did not hear of the event, or return until after it became necessary to appoint a dative executor. William T. Hepp was appointed at the instance of the heirs. Nicholson returned, and applied to cancel the appointment of Hepp; but during the pendency of the proceedings for this purpose, Hepp rendered his final account, and placed the whole estate in the possession of the heirs, with which proceedings they were satisfied, and in the final account, allowed and paid Hepp the commissions of the executor of the will.

The plaintiff sues for these commissions, amounting to upwards of three thousand dollars, alleging that he has been deprived of them by the acts of the defendants and heirs of John Nicholson.

The record shows clearly, that it became necessary to appoint a dative executor in consequence of the absence of the plaintiff; and if it did not, one having been appointed and recognized by the district and by this court, the propriety of the appointment is a matter adjudged, and not to be re-investigated in this suit. The dative executor appears to have faithfully executed the will to the satisfaction of the courts and heirs, and has received the commissions.

It would be unreasonable to impose upon the heirs double commissions, and in favor of the plaintiff, who has never rendered the services for which the commissions are allowed by law, and who lost them by an absence which was for his own convenience and over which the heirs had no control, and for which they should not suffer.

It is the duty of courts to see, and the right of heirs to demand, that the execution of wills should be promptly performed. The will of the testator, as to the executorship should be obeyed, but only when it can be done without delay to the heirs and legatees. The office of executor is but auxiliary to the great object of settling and distributing the estate.

We are not prepared to hold, with the counsel of plaintiff, in the opinion formed upon authorities at common law, that the executor has a vested interest in the estate of the testator from his death. Our impression is, that even at common law, the rights of the executor commence with the acceptance of the trust, and that if from any cause the executor is not qualified, the courts in England would give the administration of the estate with the will annexed to an administrator, as our courts do to a dative executor. Be that as it may, the duties of an executor commence under our laws from the time of his appointment by the court, and his being qualified by taking his oath; and the law then allows him two and a half per cent commissions on the value of the estate, he having the seizin thereof, for his trouble and care; and we may add the responsibility of his trust. Code 1676.

It is desirable that the office of executor should not be considered one of great profit, and the commissions should be but an equivalent for onerous duties. Testatoi-’s should bestow their liberality by direct donations, and not indirectly, so as to produce the impression that considerable sums are allowed by law or courts, as commissions under the pretence of onerous duties which are not onerous, or are never performed.

’ The whole merits of which the case is susceptible, is presented by the exceptions of the defendants ; and we think the judgment of the district court should be affirmed, with costs.


text:
    Charles Caffin v. Claudius Redon.
    The lessee cannot claim a dissolution of a lease on account of the repairs which may become necessary. C. 0. 2670. He can only claim a l'eduotion of the rent. But if the work to he done is a re-construction of a part of the building, rendered necessary by an original defect, the lessor’s implied warranty is violated, and the lessee has the right to demand the dissolution of the lease. C. C. 2665.
    Where a building was in danger of falling down,-in consequence of the original defectiveness of the pillars which supported it, the remedying of this defect is not a repair, but a re-construction in legal contemplation.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Jarán and Taylor, for plaintiff.

      C. Roselius and L. C. and G. B.Duncan, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims $291 66, the amount of one month’s rents of a tenement leased by him to the defendant for a term of years, three of which were unexpired at the time; and further alleging that the defendant was about to leave the premises, and that he was liable for'the rent until the expiration of the lease. He obtained a provisional seizure of the merchandise in the store for the sum of $10,791 66.

The defendant admitted his indebtedness to the plaintiff for one month’s rent, tendered the amount, and, on the refusal of the plaintiffs to receive it, deposited it in court. Assuming, then, the character of plaintiff in reconvention, he denied any further indebtedness or liability to the plaintiff, and prayed for the dissolution of the lease, on the ground that there were inherent defects and vices in the construction of the building, which rendered it dangerous to tenants and passengers, and unfit for the use he had intended to make of it.

In his answer to the demand in reconvention, the plaintiff admitted that the rented premises stood in need of repairs; but further averred that the repairs had been begun, and the building would soon be put in perfect condition; that he had informed the defendant that he was ready to indemnify him for any loss he might sustain in consequence of the making of those repairs; and that he had no right to claim a dissolution of the lease.

There was judgment in favor of the defendant that the lease be dissolved; and the court, considering the real tender and deposit of the amount of rent due, adjudged the plaintiff to pay costs. He has appealed.

The question upon which this case turns, is, whether the changes which the plaintiff made in the building were repairs, in contemplation of the parties to the lease, or re-constructions rendered necessary by inherent defects of the building? If they were repairs, the case must be governed by art. 2670 of the Code. The defendant must suffer them to be made, whatever be the inconvenience he undergoes thereby, and although he may be temporarily deprived of the use of the building. He is entitled in such a case to a remission of the rent, but has no action for the dissolution of the lease. If, on the other hand, the work done was a re-construction of a part of the building, rendered necessary by a defect in the original construction, there is a breach of the lessor’s implied warranty, that the thing leased was free from any vices and defects which might prevent its being used; and even if it should appear that the lessor knew nothing of those vices and defects, or that they have arisen since the lease was made, provided they did not arise from the fault of the lessee, the defendant is entitled to a resolution of the lease. C. C. Art. 2665.

Repairs and re-constructions run so closely into each other that there is some difficulty in drawing the line which separates them. Work which would be repairs in an old building may be re-constructions in a building of recent date; and the succession of time, or the act of God, may render repairs necessary which would cause greater inconvenience to the lessee than any re-construction rendered necessary by original defects. The right to have the lease dissolved does not depend upon the degree of inconvenience to which the lessee is put. If the thing leased does not fulfill his object in consequence of some inherent defect the action ex conducto will lie, although the inconvenience resulting from the defect may be too light to authorize a claim for damages. Troplong du Louage, vol. 2, p 6.

The action ex conducto is a redhibitory action, based on the vices and defects of the thing leased, and the warranty of the lessor that it would be free from them- The only thing to be ascertained is, whether there were vices and defects in the leased premises which rendered them unsafe and unfit for the use which the defendant intended to make of them. We think, with the district judge, that the testimony upon this fact is conclusive. The house had been built little more than two years, when the city surveyor considered it his duty to inform the mayor, in writing, that the construction of it was defective, the brick pillars of the wall fronting on Customhouse street being too light, cracked and out of plumb, as well as the walls above them; and to advise that immediate action be taken to prevent the fall of the entire building. On receipt of this letter, the mayor appointed a committee of architects and civil engineers, who, after a minute examination of the premises reported, that the pillars fronting on Customhouse street were built with country brick of inferior quality, and could not bear the pressure of the upper stories; that the bricks in the pillars were not properly tied, in consequence of which several of the pillars were cracked; that the lintel over the pillars was of wood and not as thick as the wall, in consequence of which the front part of the wall had nothing to rest upon.

On the faith of this report, the mayor ordered the plaintiff to prop the house, to take down the brick pillars and wooden lintels, and replace them with granite or iron. The plaintiff obeyed the order without remonstrance. His compliance with it can be viewed in no other light than as an admission on his part that the changes ordered to be made were rendered necessary by defects in the original construction of the building. The fact that the building was originally defective is proved beyond all doubt, even by the plaintiff’s own witnesses. It is shown, that the sub-tenants of the defendant left it on account of its dangerous condition ; that the apprehensions of danger were sucjf; as to prevent persons from going into the store, or even passing on that side of the street; and that the danger became imminent in the business season of the year. It is clear, that the defendant could no longer apply the rented premises to the use he intended when he agreed to pay so high a rent, and that his attempt to continue in them must have been followed with heavy losses, and perhaps entire ruin. It appears to us impossible to suggest a case,»which would come within the provisions of art. 2665 more clearly than the present. The fact shown by the evidence, that the necessary changes have been made, and that the building is now free from defects, cannot impair the rights of the defendant arising from the original defects of construction which made those changes necessary. The taking out of the brick pillars and wooden lintels, and replacing them with granite, was, in legal intendment, a re-construction, and not a repair of that part of the building. The inherent defect which made that re-constiuction necessary, entitles the defendant to a dissolution of the lease. .

The judgment is therefore affirmed, with costs.


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    Philip Vidichi v. Francois Cousin.
    Payment of a judgment maybe proved by parol; but where the debtor relies Upon parol proof of payment of a judgment, the evidence should render the fact of payment certain.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      C. Roselius, for plaintiff.

      Elmore and King, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff enjoins execution on a judgment in favor of the defendant, rendered against him in 1843, for two hundred and ninety-six dollars seventy-six cents. He alleges that he has paid and settled the judgment, and claims damages. >

There was another judgment against him in favor of the defendant, rendered about the same time for upwards of a thousand dollars. An execution was issued upon this judgment in 1847, which has not been returned; but the record shows that satisfaction of the judgment was entered probably in 1847. A witness for the plaintiff proves, that about that time he borrowed four hundred dollars from Joseph Lanata, and paid it over to the defendant. The witness understood, from both parties, that it was in satisfaction of all claims of the defendant against the plaintiff. But Joseph Lanata, who loaned the money, was also present atthe settlement, and heard Vidichi say, in handing defendant tbemoney, “It is well understood this is for the judgment on the note you have against me.” Cousin objected, saying, “In conscience this is not enough; you owe more than a thousand dollars.” Vidichi refused to give more, and gave reasons. Cousin refused awhile, and then said very well; that the next day he would go to court and enter satisfaction, and give up the papers of the judgment he had ; so he would have no claim against Vidichi. - He further says, it was understood by Vidichi and Cousin, that the settlement was a final one between them.

This is certainly strong evidence in favoi of the plaintiff. Nevertheless the district court dissolved the injunction, with damages. We cannot say he erred. A judgment is the highest evidence of indebtedness : payment can be proved by parol; but it is so easy to have satisfaction of judgment entered, and is so usual on payment; it is also so universal to take a receipt or discharge, that when these things are wanting, and a judgment debtor relies upon parol evidence of its settlement, he should render it certain that the judgment was paid, and that there was no mistake.

The fact that Cousin entered satisfaction as to but one judgment, shows that he did not understand that the four hundred dollars was a compromise of more than the judgment for a thousand dollars. It is true that the recollection of the witnesses after more than three years is, that the parties spoke of a final settlement of all claims. But this general recollection does not convey that certainty to the mind which is produced by the fact, that the defendant, in speakiDg particularly, said the four hundred dollars was for the note of a thousand dollars ; because it is worthy of observation, that the judgmentfor one thousand dollars was on a note for that amount; whilst the judgment enjoined is rendered on an account. Circumstances are disclosed by the plaintiff’s own witness which disincline the court to presume much in his favor.

The judgments were rendered in 1843 on debts due in 1842. The plaintiff did not even compromise the judgment of one thousand dollars, until 1847, and for about a third of its amount, including interest; although it is in evidence that ho had property covered from his creditors, in the name of a female whom he after-wards married, and left the country worth fifty thousand dollars. There is not sufficient proof that the small judgment was compromised, much less satisfied.

The judgment of the district court is therefore affirmed, with costs.


author: Smdelx., J.

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    Stephen Glover v. Dufour, Williams & Co.
    Where casks of wine had been so badly stowed, that in a gale of wind of no great violence, they were turned with the bungs down, so as to cause leakage through the vent holes left for the fermentation of the wine, Held,: that the vessel was not entitled to freight.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      W. II. Hunt, for plaintiff.

      W. O. Denég e, for defendant.
   The judgment of the court was pronounced by

Smdelx., J.

The action is for amount of freight and primage on a quantity of mats and quarter casks of wine, per bark Fanny, from Alicant to New Orleans. The defendants admit the delivery of the goods, but plead that two of the quarter casks were empty, seventeen -nearly empty, thirty had lost from four to fourteen gallons each, and the leakage arose from improper stowage.

The testimony shows, that there were vent holes in the bungs which would permit leakage if the bungs were turned down, but that this would not occur if the casks were stowed bung up, except such slight loss as might result from fermentation. The evidence satisfies us, as it did the district judge, that the unusual leakage which occurred was the consequence of the casks breaking loose from their stowage in a gale, and the bungs being thus more or less turned down. Then the question remains, were the casks badly stowed ? The district judge thought so; and a perusal of the evidence has not satisfied us that he drew a wrong conclusion. The gale does not appear to have been of such extraordinary violence as would have disarranged the casks in the manner described by the plaintiff’s own witness, if the stowage had been careful.

Judgment affirmed, with costs.


author: Eustis, C. J.

text:
    Reading, Peck & Co. v. John Donovan
    The art. 1928, C. C., merely undertakes to secure a full indemnity to the aggrieved party. It does not authorize a speculation upon the default of one of the contracting parties.
    Where a drayman contracts to haul all the cotton intended for a certain cotton press at a fixed price per bale, and fails to comply with his contract, he is liable for the increased price which the owners of the press may have to give for hauling the cotton, hut is not liable for the loss of profits which the press might have made by compressing cotton which they failed to get, as the owners allege, from his not complying with his contract.
    Where a earner fails in a contract to transport merchandise from one part of the city to another, no other indemnity ought to be recovered from the carrier than the expense of performing the contract on his account, and such, damage as the default of the carrier occasioned directly to his employer-
    PPEAL from the Third District Court of New Orleans, Kennedy, J.

      J. Finney, and Moise and Randolph, for plaintiffs,
    upon the subject of the consequential damages, made the following argument: If the defendant undertook to haul this cotton for us, knowing that we wished it hauled with a view to realize the profit on compressing, and yet failed to haul it without any good excuse, and thus deprived us of the profit which we would otherwise have made, and rendered dead and fruitless the large capital we had invested, it would seem that lie is liable for the damage he has caused. The damage is the direct consequence of his default, and is such damage as must have entered into the contemplation of the parties at the time of the contract, and thus comes within the meaning and intent of article 1928 of the Civil Code. It must have entered into the contemplation of the parties, for it consists in the stoppage of an immense business in which a large outlay had been made, with a view to the prosecution of which the very contract, whose breach causes the damage, had been made. The contract, whose breach is complained of, was a mere means for the accomplishment of an end, to wit, the realization of profits by compressing cotton. The parties to that contract must have had in view the end which was the object of their contract. And we have shown that the cotton would have been compressed if it had come to our press — for at that time all cotton was compressed — and that it failed to come to our press, merely because the defendant would not haul it, although he was pretending to do so. And we have shown that by compressing it, we would have realized a profit of forty-five or fifty cents per bale. We only claim forty cents in the petition; and we believe it to be a claim well founded in law. Sedwiek on Damages, 64, 65. L. C. 1928, § 1 and 2. 1 Domat’s Civil Law, b. 3, tit. 5, s. 2, No. 4.
    It will be said by the defence that even if we had got the cotton hauled and stored, it does not follow that we would have had the benefit of compressing it; that cotton is sometimes stored at one press and compressed at another. This might have happened, but it is very improbable. Men generally pursue their interest, and as the removal of the cotton to another press would have necessarily involved extra drayage and storage, and been productive of no advantage whatever to the shipper, it is very improbable that he would have incurred this additional expense.
    The judge rejected this part of our claim, on the ground that it was a claim for probable profits and not recoverable at law. We think the learned judge misapplied the rule with regard to probable profits. It is laid down in the books, it is true, that courts of justice do not award compensation for the loss of speculative profits or probable profits. But we understand that rule to refer to a different kind of profits from those whose loss we are claiming compensation for. We have invested a large sum of money, in buildings, warehouses, machinery and labor, and the defendant, by his neglect and misconduct, renders dead and inert all this capital. We have shown that, but for his conduct, we would have had full employment, and would have realized a profit. Are these profits so speculative that a court of justice will not indemnify a party for the loss of them. If a court refuses compensation for the loss of the profits of an establishment of that kind, it in fact refuses compensation for the deprivation of the establishment itself. The establishment has no value except in the use of it and the earning of profits. If the court refuses to protect the profits, and the use of the property, it in fact refuses to protect the property itself. What we claim is a compensation for the stoppage of an immense and extensive establishment; and that compensation is measured by the work we would have got, and the price we would have received for it.
    We will simply say, with regard to the plea of vis major, that all the testimony on both sides shows it to be ridiculous. A slight increase of force would have enabled the defendant to have fulfilled his contract with certainty. Nor can he excuse himself on the score of humanity: that he was afraid to expose his negroes to the cholera. He might have indulged his humanity and still fulfilled his contract, if he had not thought so much of his purse. Why could he not hire other draymen 1 Why could he not hire the same that we did 1 They had to work on the levee for some person; they did work on it for some person. And they might as well be exposed to the cholera in the employment of the defendant as any one else. The truth is, he abandoned his contract, simply because he found it unprofitable, and thought he could employ his negroes with more advantage otherwise. We hope your honors will increase the judgment in conformity to the views we have presented.

      C. Roselius, for the defendant, contended:
    The plaintiffs complain that the defendant has violated his contract with them, for the hauling of an indefinite quantity of cotton, at the rate of six cents per bale. They allege that 26,031 bales of cotton have been hauled in the city of New Orleans, which the defendant was bound to haul according to the terms of said contract, but which he refused and failed to haul; on the hauling of which your petitioners have suffered a loss of $2,396 79 beyond the sum the said defendant was bound to do said hauling. This suit was instituted on the 9th of March, 1849. No supplemental petition was filed. It is true, the plaintiffs allege, that they will receive a large quantity of cotton on which they estimate their loss at $2700. But it is submitted that, under a contract like that on which this suit has been instituted, no prospective damage can be claimed, and at all events not recovered without a supplemental petition, in which the actual damages suffered are set forth. It is therefore submitted, that under no aspect of the case can the plaintiffs recover more than $2396 79. It is, however, insisted that under the evidence in this record, the plaintiffs are not entitled to recover damage, because they did not resort to the proper means of ascertaining the loss resulting from the defendant’s non-compliance with his contract. When they found that he did not haul the cotton as he was bound to do, they should have employed other draymen to haul it, and then have charged him with the difference. Instead of pursuing this course, they thought proper to purchase teams, &c., and now seek to make the defendant responsible for the money invested and the expense incurred by them. This, surely, is not the correct mode of ascertaining the amount of damage for which the defendant is liable. It is for the ■ plaintiffs to make out their case clearly; and having failed to do so, they ought to be non-suited.
   The judgment of the court (Presión, J., not sitting in the cause, having been consulted as counsel) was pronounced by

Eustis, C. J.

This appeal is taken by the defendant from a judgment of the Court of the Third District of New Orleans rendered against him for the sum of four thousand one hundred and sixty-six dollars fifty cents, being the amount of damages sustained by the plaintiffs for a breach of a contract on the part of the defendant. The plaintiffs are the proprietor’s of a cotton press, and the defendant is a drayman; and the contract was, that the defendant, for the period of one year from the 1st September, 1848, should haul all the cotton landed in New Orleans, consigned to any of the plaintiffs’ customers, to their press warehouses, for the sum of six cents per bale. The defendant broke his contract, and the plaintiffs hauled the cotton themselves at an expense of fifteen cents per bale. The district judge allowed them the difference between the two sums on 44,500 bales, making the aggregate of four thousand and five dollars, and some small items, which form the amount of the judgment.

The plaintiffs in their answer have prayed an amendment of the judgment in their favor. They allege that under the evidence they are entitled to recover from the defendant the sum of seven thousand five hundred dollars, and ask for an amendment of the judgment accordingly. The principal ground for increasing the amount of the damages allowed by the district judge is, that the defendant, by his breach of the contract, deprived them of the-profits they would have made on a large quantity of cotton by pressing it. This, it is alleged, was by the neglect and fault of the defendant diverted from the plaintiffs’ press; and they claim the profit of forty cents per bale lost to them thereby. The district judge did not consider that this claim for the loss of profits rested on grounds sufficiently certain to warrant a judgment, and disallowed it.

The proposition put by the counsel for the plaintiffs is, that if the defendant undertook to transport on his drays the cotton for the plaintiffs, knowing the profit to be realized on the pressing, and failed to transport it without any good excuse, he thus deprived them of the profits which they would have made, had the cotton been transported in time; and this damage is the direct consequence of the defendant’s default, and is such as must have entered into the contemplation of the parties at the time of the contract, for which he, the defendant, is in law responsible.

We understand the Code, art. 1928, in laying down the rules upon which damages are to be assessed on a breach of contract, merely undertakes to secure a full indemnity to the aggrieved party, and does not authorize a speculation upon the default of the other contracting party.

On the default of Donovan to perform his contract, the plaintiffs were authorized to cause it to be performed at his expense. They could have incurred any expense in the furtherance of the contract, and Donovan would have been obliged to reimburse them. Let us suppose a drayman to contract with an importing house to transport to their warehouses the cargoes consigned to them: a cargo of wines arrives, the drayman refuses or delays to transport it, it could hardly be maintained that the drayman would be liable to the importer for any loss of profit on the wine, accruing between his default and the time when the importer chose to take his wine from the vessel to his warehouse. The case of a retailer buying a cask of liquor, and making a bargain with a drayman to transport it to his shop, which the latter refused to perform, presents a still stronger case. The carrier would be liable for the consequences of his delay, aad his employer would be authorized to have the contract performed at his expense; but as to any contingencies resulting from the delay of the employer, the drayman has nothing to do with it.

We have always held carriers accountable for damages resulting from unnecessary delay in the performance of their contract, where it was not justified by some sufficient excuse in law. In Rathbone v. Neal, 4 Ann. 563, we held the masters and owners of a vessel liable to a shipper for the loss of a market for his goods, in consequence of unnecessary delay on a voyage from Boston to New Orleans. But it appears to us that where the delay consists in not transporting, in a proper time, merchandize from one part of the city to another, no other indemnity ought to be recovered from the carrier than the cost and expense of performing the contract on his account, and such damage as the default of the carrier occasioned directly to his employer. Even where the inexecution of the contract proceeds from fraud, the damages allowed must be confined to those which are the immediate and direct consequence of the breach.

The veiy uncertainty which the district judge recognizes as attending the evidence on which this claim for profits rests, is a necessary consequence of its remoteness from the cause assigned, and is one of the reasons of the limitation which the law wisely imposes on all claims for damages.

The judgment of the district court is therefore affirmed, with costs.


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    C. F. Berens v. J. P. M. Dupre, et. al.
    An administrator has no right to bring a revocatory action to annul a sale of property •which had been made by the intestate, unless there be creditors who have been injured by the sale.
    The only ground on which a creditor can attack a sale made by his debtor is, that he has been injured by it.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      G. Le Gardeur and James Foulhouze, for plaintiff.

      C. JDufour, H. Train and C. Redmond, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 14th of December, 1849, Emeline Soule, sold all her real properly, worth about $3000, to the plaintiff, by an authentic act before a notary public. Pie assumed as the consideration of the sale, a mortgage upon the property for $500, in favor of Pierre Caillou, and agreed to pay her fifteen dollars a month in money, during her life. He made the payment in money daily, but about two months after the sale she died.

The defendant applied for the administration of her estate, at the instance of Cydalise and Minelte Tardos, who claimed to be the only heirs of the deceased, and he was appointed and qualified. The undisputed effects of the deceased were appraised at only twenty-three dollars; but the administrator caused to be inventoried, as effects of the successson, the real property sold to Berens which was appraised at $3150.

He applied for and obtained an order to sell this property, for the purpose, as alleged, of paying debts and winding up the succession. Berens, by virtue of the deed to him of the 14th of December, 1850, enjoined the sale of the property. The administrator answered the petition for an injunction, and claimed its dissolution on various grounds, in which Cydalise and Minette Tardos, substantially joined by means of an intervention.

They alleged substantially, that the sale was obtained from the deceased while in a state of insanity, of which even the act itself afforded intrinsic evidence, that she was the whole day on which it was executed in a state of intoxication, which incapacitated her to contract ; that fraud and imposition was practised in obtaining the sale ; that it should be rescinded for manifest lesion; that the act was a disguised donation of all the donor’s property, not even reserving enough for her subsistence; and was, therefore, null by article 1484 of the Civil Code.

The deceased died intestate, she is proved to have been the natural child of one Bellcjine Bardonelle. She left neither ascendents nor descendents, brothers, sisters, nor surviving spouse, and the presumption is, that the State succeeds to her estate, if she left any.

It is proved beyond doubt, that Cydalise and Minelle Tardos, at whose instance administration was granted on the estate, are not heirs of the deceased.

They have, therefore, no interest in winding up 'the estate, and the sale to Berens cannot be annulled on their behalf.

So it appears that there were no debts of the deceased, except the mortgage infavor of Pierre Caillou, which was assumed by Berens, and with which, for aught that appears, Caillou is content. We concur in opinion with the district judge, that a sale cannot be annulled by an administrator, when it clearly appears that no creditor has been injured by the sale. The only ground on which a creditor can attack the act of his debtor, however fraudulent, is that he is injured by the act.

Although, therefore, the parties have agreed that this shall be considered a revocatory action by the administrator to annul the sale to Berens, we do not feel it our duty to investigate the case on its merits ; because, if our decision should be in favor of Berens, contradictorily with those who have no interest in the case, it ought not to be binding upon those who may hereafter shew an interest to have the sale annulled.

■ The plaintiff, having at least an apparent title to the property, has a right to enjoin the sale of it by those who have no interest to annul his title. ' We do not consider that such an interest can ho created by an administration or its expenses. The acts of the deceased can be attacked only by heirs, legatees or creditors, whose debts existed at the time of her decease.

The injunction against the sale of the, property by the administrator of Emeline Soulé, is therefore maintained, at the costs of the defendant, without prejudice, however, to the rights of any party having an interest to attack the plaintiff’s title. With this explanation, the judgment of the district court is affirmed, with costs.