author: Rute, J.

text:
    Perot et al. v. Chambers, Tutor.
    Whore an act of sale is inscribed among tho notarial records in the office of a parish judge bat not registered in the separate volume kept by him for the inscription of mortgages, the privilege of tile vendor will not be preserved. C. C. 3238, 3331, 3353.

      Appeal from the District Court of Natchitoches, Taylor, J.

      Campbell, for the appellants,
    contended that the act of sale, under which plaintiffs claim a privilege, was properly registered, citing 6 Mart. N. S. 118. 2 La. 275. 7 La. 478. 6 Rob. 58.

      P. A. Morse, for the defendant.
   The judgment of the court was pronounced by

Rute, J.

The plaintiffs mortgaged to the Exchange Bank a tract of land and several slaves, to secure the re-payment of a bond given by tnem for a loan of 352,800. Subsequently they sold the land to Brazeale Sp Sewell for 352,000, by a public act passed before the parish judge, in whose office it was duly recorded in the book of alienations. The purchasers assured the payment of the mortgage to the bank, and received from the plaintiffs 35800, the difference between the price of the land and the mortgage assumed. On the day following the sale Brazeale Sp Sewell disposed of the land to Lenoir, by an act of exchange. Brazeale 8p Sewell having failed to make the stipulated payment for the land, the bank obtained an order of seizure and sale, in virtue of which all the mortgaged property was seized. Pending the seizure the plaintiffs paid 35500 to the' attorney of the bank, which sum was credited on the writ. An additional sum was paid by Brazeale Sp Sewell, and, some time after. Brazeale acquired the bond at a sale of the bank’s assets. Upon the exhibition of this bond to the recorder of mortgages, the mortgage was erased. The defendant, being a judgment creditor of Lenoir, issued a fieri facias, in virtue of which the land in question was seized. The plaintiffs thereupon instituted this proceeding, which is a third opposition, claiming the vendor’s privilege upon the land for the $500 paid by them towards the extinction of the mortgage debt due to the bank. Their claim was rejected in the court below, and they have appealed.

It is contended that the sum advanced by the Perots is a part of the price of the land, which remains still unpaid to the vendor. If this be conceded, the privilege of the plaintiffs can only take effect to the prejudice of third persons from the date of its due registry in the mortgage office. It is urged that the inscription of the act of sale from which the privilege results on the notarial records of the parish judge, before whom the act was passed, was a sufficient registry to preserve and give effect to the privilege. The decisions to which we are referred in support of this position were reviewed in the matter of Falconer’s Succession, 4 Rob. 5, and shown to have been made under the operation of laws which required no separate books to be kept by parish judges for the inscription of mortgages. Subsequent legislation directed a separate book to be kept for the inscription of mortgages, and only gave effect to such encumbrances, to the prejudice of third persons, from the date of their inscrip, tion on the records kept for that purpose. C. C. 3351, 3353, 3238. It appears, in the present instance, that books, distinct from the notarial records, were kept, in which mortgages were inscribed; and in those the act, from which the alleged privilege results, was not inscribed. It has not, therefore, received the publicity which the law imperatively requires, to give it effect against third persons. It is not material to enquire whether the inscription in the book of alienations of the parish judge’s office would have been a sufficient registry, if that officer, in violation of his duty, had kept no separate book for the inscription of acts importing mortgages or privileges. Separate books wore kept, and tne inscription of the privilege in them was indispensable to preserve and give it effect. The object of the inscription is to give publicity to the encumbrances with which property is charged. A registry in books not resorted to for the purpose of ascertaining the existence of such encumbrances, though kept in the same of-6 ° , fice, is not more effectual in giving notice of a mortgage or privilege, than if the act were recorded in a different office. Judgment affinncd.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Lemee, Syndic v. Bosley.
    Ah appellant“who désires to have bis case examined on the merits, mustbringup a sufficient statement of the evidence on which it was tried. If ho fail to do so, he cannot take advantage of his own omission.
    Appeal from the District Court of Natchitoches, Taylor, J.

      P.A. Morse, for the plaintiff. M. C. Bunn, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

Bosley has appealed from a judgment rendered against'him upon confirmation of1 a default. The suit was upon notes purporting to be signed by Bosley. The not'e of the evidence', upon which the cause was tried ex parte, contains the following statement:' “ Greneaux sworn, proves the sig-nature of Bosl'ey:” The defendant now'argues that this is a deduction' of the' j.udge, and that this court is not informed whatthe witness said; that therefore there is no proof of the signature, and that the judgment must be reversed'.An appellant who desires to have his cause examined on the merits, mustbiring up a'statement of the evidence' on- which'the cause was tried. If he' fail to do so, the examination cannot be made. It is the appellant’s own fault that1 He did not'brin'g'up a sufficient statement of'the evidence; and he cannot take advantage of his own omission.

The plaintiff acknowledges that there was a mistake made in the amount'for which the judgment was rendered, and assents to its correction. We will! amend the'jud^ment accordingly:-

Ifis therefore decreed that the judgment of the court'below be reversed, and'that there be judgment in favor of the plaintiff for the sum of $1,326 36, with interest at the rate of eight' per centum per annum from 14 June, 1846, until paid, with costs of the suit in the court below'; those of this appeal to -be paid b'y'the plaintiff


author: Etjstis, C. J.

text:
    Whitton v. Jones, Sheriff, et al.
    The seizure of property belonging to a third person, under an attachment, will-not subject the officer to damages iu all cases. The circumstances of the case may exempt him from liability.

      Á sheriff is responsible to the owner for any damage resulting from his neglect to take proper care' of property taken into his possession under all attachment.
    Appeal from the District Court of Caddo, Campbell, J.

      Koysdon, for the plaintiff. Crairif for the appellant.
   The judgment of the court was pro~v nounced by

Etjstis, C. J.

This case revolves itself, under the evidence, into a claim for damages against the sheriff for the seizure of a carriage belonging'to the plaintiff, under au attachment against her son-in-law, 'Hunter. The jury gave a verdict of $125 damages against the sheriff, and he has appealed.

"We should not confirm the verdict of the jury for any damages-whatever in consequence of the taking of the carriage, under 'the circumstances attending the seizure ; but we consider the sheriff liable for the manner in which the carriage was kept after the seizure, on the authority of the case of Parrish v. Hozey, 17 La. 578. The damages assessed appear to us to be evidently too high, and must be reduced accordingly. Smith v. Hozey, 14 La. 281.

The judgment appealed from is therefore reversed, and entered for the plaintiff for the sum of $50, and costs ; --the .appellee paying the costs of ,this.,appeal.


text:
    Hughes v. Boyce.
    Where an attorney .at law consents to release a judicial mortgage.in favor of his client in consideration of .a payment of a part of the debt, and of having a certain note, made by a third person, placed in his hands, as collateral security, it being stated in the receipt given by him, “ that the proceeds of the note are to be first applied to satisfy the remainder duo on said-judgment, and the balance to be paid over to the party depositing it," he will not be liable, in the absence of any proof of an undertaking on his part to put the note in suit in case.of non-payment .at maturity, for any injury which the owner of the note may sustain by the failure to sue on it in time.
    Appeal from the Distriet'Court of Natchitoches, King, J.

      .0. N. Ogden, for the appellant. JElgee, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

Greenes had obtained a-judgment against .Bailey; upon, execution, certain property had been-sold, and Bailey being himself the purchaser, gav-e-his twelve-months’-bond, whic-h matured on the 27th June, 1837. On the 3d June, 1837, Boyce, who was Greenes’ attorney of record, gave Uu'ghes, the agent, of Bailey, a receipt in the following words:

“ Dolls. 1500. “ New Orleans, June 3d, 1837.

“ Rec’d from Mr. D. M. Hughes, of New Orleans, fifteen .hundred dollars, in part payment of a twelve-months’ bond in the case of John G. Greenes agaist L. Bailey, being a judgment obtained in the-District Court.of the parish of Rapides. And it is,-in consequence of said payment, agreed by me that 1 will release the judicial mortgage iu consequence of said judgment and the said -band, on having placed in my hands a note made by 5'. K. Ouny in favor of P. M. Guny, dated 15th November, 1836, for the sum of two thousand one hundí ed and sixteen dollars sixty-six and two-thirds cents, bearing interest .from date, if not paid on the first of January, 1838 (the time the same.will be due), proceeds of said note to be first-applied to satisfy.the remainder due.on said judgment and twelve-months’ bond, and the remainder to he jpaid.over to the said Hughes. IT. ,Boyce, Attorney .for J. G. Greenes.”

The plaintiff, in his petition, -sets forth this receipt; alleges that the note of Cuny was perfectly good at its maturity, and might have been collected with out difficulty, if proper measures had been taken ; that Boyce neglected to take .any proceedings upon it until the parties had become insolvent, .so itfeat the plaintiff has -experienced a total loss of that portion which was to have been paid over to him according to the terms .of the'receipt. He asks judgment for $988 24, and interest, the portion remaining after payment of judgment against Bailey. There was judgment in favor of the defendant, and Hughes has appealed.

The case turns upon the enquiry whether Boyce hound himself personally to collect the note thus placed in his hands, and if so, whether that undertaking has been violated ? Before considering the nature and effect of the receipt, it js proper to notice certain acts of the parties which indicate the interpretation they have themselves put upon it, and some other circumstances material to the proper consideration of the .case. Although, the petition of Hughes would indicate that he relied upon the receipt to show his interest in the proceeds of the note .as having been simultaneous with the execution of the receipt, yet it is conclusively shown by his answers to interrogatories that, at the date of the receipt,he was merely the agent of Bailey ; that the receipt was taken solely for Bailey’.s henefit; nnd that his interest ,was .only acquired by a transfer from Bailey, about twelve -or fifteen months before the institution of the present action, that is to say, some time in the fall of 1843.

On the 4th January, 1838, Cuny’.s note, which Boyce had deposited in bank for collection, was protested, and the endorser was notified. In January, 1839., .an execution .was issued on the twelve-months’ bond, and soon after Bailey obtained ,an injunction. He alleges, under oath, in his petition that Boyce, as the ¡attorney of ¡Greenes, had released the mortgages created by the judgment and ¡tíhe.hond, upon the deposit of the note .of Cuny -“as collateral security,’’ and that Gir.ee/oes .cou'ld not lawfully proceed in his execution without placing this ¡collateral in the sheriff’s hands, .so ¡that he might have it in his power to deliver fit when sale Should.be .made.and the debt paid. The prayer was, that the she¡riffibe .enjoined from proceeding in the execution of the fieri facias., until Boyce idhall.deliver the .note to the sheriff,or bring it into .eourt. The pretension that Boyce had undertaken to collect the note and had been guilty of laches, was not ¡set,up by Bailey., in that cause, until May, 1840. In March, 1839, Boyce gave ¡the note .of Gv/rty to Waters.,, the attorney of record of Bailey, in the injuncition suit, a fact which was communicated to Bailey. Boyce, some months ¡afterwards, asked a written receipt from Waters, who refused to give it, and insisted that he held the note for Boyce’s benefit; he acknowledges, however., ¡that jSoyce did nottell him not to deliver.it to Bailey. Waters also testifies that .the object of Bailey in obtaining the injunction was, to obtain temporary delay .for the return of Boyce, and that he expected, after his return, to procure a .draft from Cuny on .account of it, and to,a sufficient amount .to cover Greene’s claim. The note remained in Waters’ possession-until it was about to be prescribed, when Waters suggested to the counsel of both parties thata suit.should be brought upon,it, without prejudice to either party, which was accordingly done. It ,is also shown that the note might probably have been collected in 1839, .and perhaps up to 3-840; but that, after that date, the claim became desperate. Boyce was.appointed district judge in 1834, and continued such down to the ¡trial of .the cause.

Such are the material facts in this case; and upon this state of facts we are .of opinion, that.the,case is clearly in favor of the defendant. Not only was the receipt of Boyce an act.done as the attorney of Greeves, but we look in vain ¡either in the terms of the receipt, or .the acts of Bailey himself as indicative of ,his interpretation of that instrument, for.any support of the allegation that Boyce undertook to put the note in suit. It was a collateral security placed in the hands of Greeves’ attorney, to be applied, if paid, as stated in the receipt. There was no obligation either, on the part of Greeves, or Boyce, to put the note in suit, at least without a demand to that effect, and atender of a sufficient sum towards the costs of an action. The note was in law at the disposal of Bailey upon his paying the debt, as collateral security for which it was given. Bailey has, in fact, enjoyed a greater control over the note than he was entitled to, by its delivery to Waters, his attorney; and if any loss has been incurred, it has been the result of his own want of punctuality, and his own laches.

Hughes can of course stand in no better position than Bailey, his assignor., the principal facts which we have stated having occurred anterior to the assignment. Judgment affirmed.


author: Slidell, I.

text:
    Overton v. Ricord, Sheriff.
    Where a sheriff, charged with the sale of property under execution, adjudicates it to a purchaser on condition of his executing a twelve months’ bond with surety, and subsequently perfects the adjudication without obtaining any surety on the .bond, his neglect will place him in the surety’s stead, and render him personally liable for the whole amount of the bond.
    Appeal from the District Court of Avoyelles, King, J.

      O. N. Ogden„ for the plaintiff, .cited Code of Pract. art. 681. H. Taylor and Swayze, for ltlie appellant,
    contended that the act or omission of the sheriff is not an offence ,or quasi-offence. G. P. arts. 29 to 32. 2 La, 429. Civil Code, arts. 2271, •2272, 2294. If there has been a breach of the sheriff’s bond, the action .should have been on it. If there has been no breach, no action lies.
   The judgment ,of the court was pronounced by

Slidell, I.

The defendant being charged, in his character .of sheriff, with the sale of property under execution, adjudicated itto Orr, upon twelve-months’ bond. Briggs pro nised to sign the bond as surety. Three days afterwards jthe sheriff presented the bond for signature to Briggs, who refused .to sign, 'l he return of the sheriff upon the writ states the adjudication to Orr, and that ‘.he had furnished his bond with as surety, but made no mention of the .promise and refusal of Briggs, which were exhibited by an amended return, made after the institution of the present suit. The adjudication to Orr was made in October, 1843, and the presentsuit was brought in 1845. Briggs was considered solvent at the time of sale; he has since died, and his succession, at the time of the trial of the cause, was under administration as an insolvent succession. It is not proved, however, that the liability of Briggs, if obtained, •would have been worthless, either at the maturity or the date of the bond, nor 'that the plaintiff, the creditor in execution, has done any act approving the sheriff’s conduct.

The sheriff violated his duty by perfecting the adjudication and returning the writ, without obtaining surety on the twelve-months’ bond. His neglect of duty has placed him in the surety’s stead, and as Briggs, if he had signed, would have been liable for the whole amount of the bond, that amount must be itkc.measure of damages against the sheriff'.

Judgment affirmed.


author: Rost, f.

text:
    Williams v. Dunn et al.

      A judgment by default made final in eight days after service of citation, must be reversed.
    In an action against heirs for a debt due by their ancestor, judgment must be rendered against each for his.proportional share in the. succession.
    Appeal from the District Court of Natchitoches, Greneaux, J., presiding.

      Sherburne and J. B. Smith, for the plaintiff. M. C. Dunn, for the appellants.
   The judgment of the court was pronounced by

Rost, f.

'The record in this case is not certified in such a manner as would authorise us to pass upon the merits of the controversy, but the errors assigned ■by the appellant have reluctantly brought us to the conclusion that the judgment cannot stand. It was made final against one of the parties eight days after the service of the citation, and rendered jointly, against the father and the collateral relations of (he deceased, instead o"f being rendered against each for his proper share in-the succession. ’We will therefore remand the case; but, in so doing, we cannot refrain from expressing our regret, that a claim, such as this, Should be made the subject of a;protracted litigation.

The judgment is reversed, and the case remanded for further proceedings; ;the plaintiff and appellee paying the costs of this appeal.


author: Rost, J.

text:
    Wiley v. Hunter, et ux.
    /A married woman will not be bound personally by a note executed m solido with her baseband, whernat tbe time a community of acquets existed between her and her husband, and the latter had tbe exclusive administration of her paraphernal property.
    Where there is a community of. acquéts, and the husband has the exclusive administration outlie paraphernal property of ihe.wife, purchases made during marriage fall into the comma, nity.
    Appeal from the District Court of Rapides, King, J.

      Elgee and Hyams, for the plaintiff. Waters, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff instituted suit against the defendants on two notes made in solido, secured by mortgage. There was a judgment.against the husband, and'the.property mortgaged was ordered to be sold ; but,the wife was discharged from all personal obligation under the note sued on. .From this judgment sheiiasappealed.

It lias been argued .at.bar in behalf of the appellant, that ,the sale of the land mortgrged, made to her by her brothers and sisters, was a dalion enpaiement.ior her share in the succession of her mother; but she has failed to show what that share was. She has been released from the personal obligation she had contracted, on proof of the allegations of her.answer that, at the time it bears date, a community existed between her and her husband, and that he had the exclusive administration of her paraphernal property. It has often been determined that, .under that state of facts purchases made during marriage fall into the community. Dominguez v. Lee, 17 La. 300. Terrell v. Cutter, 1 Rob. 367. Rousse et al. v. Wheeler and wife, 4 Rob. 114.

Neither the loose evidence offered to prove a partition of the succession of the mother of the defendant, nor her resumption of the administration of her paraphernal property after the institution- of this suit, can affect the rights of the plaintiff. Judgment affirmed.


author: Slideli,, J.

text:
    Morrill, Tutor, v. Carr.
    Answers to interrogatories on facts atid.- articles can only be used- against tlie party interrogated, and not against other parties to the action; the-latter have aright to insist on-a cross-examination of the witness by whose testimony they are to be bound.
    ího fact that property belonging to a succession was purchased at the probate sale by an agent of the administrator, and afterwards transferred to him, will not entitle the lieirs to recover theproperty against'a third'person, a purchaser from the administrator, in good fa'ith, without notice.
    The powers and rights of an administrator under the common law, are not the same Us in'this State. By-tlie common law he has the same property in the-goods and- chattels of the deceased as the latter had when living ; lie may, without a decree of court, sell the assets, and convert them into money for the payment of debts; and to effect a sale made by him, so as toletin the claim>of’the heir, some fraud, collusion, or misconduct between the parties, must bo shown;-
    Appeal from, the District Court of Natchitoches, Campbell, J-.

      Hertzog and Tummy, for the appellant. M. Boyce and P. A. Morse, for the defendant.
   The-judgment, of the court was pronounced by

Slideli,, J.

This is-a petitory action instituted by the tutor of-a minor to recover certain- slaves which once belonged to- Denton, the minor’s father. Denton was a resident of Arkansas, and died there in the year 1825. Fowler was appointed administrator of his estate ; andr by virtue of a decree of sale rendered by a- competent court in the county-of Denton’s domicil, the slaves were sold at public sale, in 1827, to pay debts of the succession, and Martin became the purchaser. Martin afterwards sold the slaves to Fowler, and, in 1829, Foioler sold to Hyde, the defendant’s lessor, and to one Shelton, who afterwards sold his in terest to Hyde. The possession of Hyde has been peaceable and public, since the year 1829. The various sales above mentioned'were allmade in Arkansas, where slaves are considered personal property. Hyde brought the slaves to Louisiana, in 1830, or 1831,

Fowler was called in warranty by the defendant Hyde. The plaintiff propounded interrogatories to Fowler, and at tlie'trial'offered the answers of’Fowler in evidence, to the admission of which the defendant excepted. We think the court below erred in admitting these answers against Hyde. If Fowler was a competent witness, upon which point it is unnecessary to express an opinion, the plaintiff should have examined him as any other witness, and then the defendant would have been entitled to, and would have had an opportunity to cross-examine. Here the party has thought proper to proceed ex parte, and byway of interrogatories on facts and articles propounded to the absent party under commission; and the answers are only available as between the party interrogating and the party interrogated. See the case of Johnson v. Marsh, ante p. 772.

- The ground upon Which the minor's- right to a recovery is based is that, although the sale was made to Martin ostensibly at the public judicial sale, yet that in reality Martin was a mere person interposed- and was secretly the agent of the administrator himself, to whom1 he afterwards sold the property. If we exclude the testimony of Fowler, Which, as we kaVe seen-, is inadmissible, the only evidence to establish- the agency of Martin for Fonder', is the declaration of a witness that, at a subsequent period, Fowler and Martin both told him so. If, upon such testimony,- We could be permitted- to consider the agency as proved, the difficulty sill remains that the good faith of Hyde is unimpeached. The plaintiff appealed to his conscience by propounding interrogatories to him, and his answers distinctly negative all knowledge or notice of the alleged fraud. Even under our' system of jurisprudence we would not be prepared to say that a purchaser in good faith could be affected by a- latent equity of this suit, however fatal it might be between the heir and Fowler, were he still the owner of the property.

But besides this1 view of the matter, there is another which appears to us conclusive. The sale, under which Hyde claims and peaceably held the property for move than fifteen years, was made in the State of Arkansas, where the ancestor died, and where his succession was administered. It is proved that the jurisprudence of the common law prevails there, and-that in that State slaves are considered1 as personal property. The powers and lights of an administrator Under that system, as is shown by testimony in this* cause, and well established by commentators, are very different from those of an administrator in this State. He is there the representative of the deceased as to his goods and chattels1, and has the same property in them as the principal had when living. He has authority, even without a decree of sale, to sell the assets, and convert them into money for the payment of debts. To-effect a sale by an administrator so as to let in the claim of the heir, there must be some fraud, col-lusion, or misconduct between the parties. In the present case-, there-is no-ground to impeach the good faith of Hyde; and, if the heir has been wronged, he must look to the administrator. See 2 Blackstone, 511. 1 Story on Equity, § 580. 1 Sugden on Vendors, p. 59.

Judgment affirmed*


author: EusTrs, C. J.

text:
    Roubieu v. Michel.
    One who purchases per awrsionem cannot sue for a reduction of price-. C. C. 3471.
    I'Iig frequent errors committed by the surveyors of the United States in the surveys of lando in tbis State, are matters of history; and without some other action on the part of the government then the approval by the surveyor general of a survey on which land is designated as belonging to theUnited States, the title of a purchaser of the land cannot he considered as disturbed, much less will such an approval be regarded as proof that the land belongs to the public domain.
    Appeal from the District Court of Natchitoches, Oleoit, J.

      M. Boyce, for the plaintiff. J. B. Smith and P. A. Morse, for the appellants.
   The judgment of the court was pronounced by

EusTrs, C. J.

This action was commenced in 1833. It is based on the warranty contained in three several acts of salo, which embraced an entire tract which the plaintiff bought from the defendant. The first was dated- in August, 1825, and the last in April, 1831; the intermediate act was passed in 1827. The first sale was for one-half the tract of land or plantation, and was made per aversionem,- and the land was thus described: “ The half of his plantation situate on the right bank of Red River at a place called Les Ecords, in the parish of Natchitoches, bounded above by the crevasse Dorsineau, and below by the bayou which discharges from lake Monet.” The subsequent acts do not vary the character of this sale. It was the plantation of the defendant which he had purchased from Cloutier, and which formerly belonged to Landreaux, known as such, which was sold for an aggregate sum, composed of the different prices of each sale, of §3,900.

The petition' alleges that since the purchase the plaintiff has discovered, that the defendant had no title to a considerable portion of the land ; that the title to a part of it was vested in the United States, as belonging to the public domain ; that other persons, particularly one Nicolas Garcia, pretend to have a title to part of it; by reason of all which he, the plaintiff, is liable to bo evicted and exposed to great damage, having made great and extensive improvements on the land. The pruyor of the petition is, that the defendant be decreed to-pay to him the sum of §20,000 damages, or that he give security against any eviction, or that the sales be rescinded for such portion of the tract for which a complete title may not be established.

The defendant, Pierre Michel, pleaded the general issue, and cited his vendor, Alexis Cloutier, to defend the suit. By an entry on the minutes it appears that the proceedings against the warrantor were dismissed, on the 8th of May, 1835. In this situation the suit remained, without any action whatever, until-April, 1843, when the representatives of the vendor, who had died in the interim, were made parties to the suit under the warranty by the- defendant, and judgment prayed for over against them. The case was tried in 1847, and judgment was rendered against the defendant for the sum of §779 76, without interest, and in favor of the defendant, against the representatives of Cloutier, for the same sum, each for their virile portion. The defendant has not appealed. The parties cited in warranty have taken this appeal; and the pla-intiffhas appeared, and asks that the judgment may be affirmed. As the case is before us, the action, though it had other alleged objects at its institution, resolves itself into one, for a reduction of the price in consequence of a deficiency in the quantity of land which was the subject of the sale. The Code, article 2471, refuses this action to the purchaser per aversionem.

It is contended that a portion of the land appertains to the public domain, and that the title to it is in the United States; and a copy of a township map, which purports to have been examined and compared with the field notes on file in the surveyor general’s office, and approved by the surveyor general on the 30th of October, 1835, is the only evidence offered in support of that position. It is true that on this map a part of the tract is designated as public land; but this, of itself, is no evidence of such a disturbance of the plaintiff’s long and uninterrupted possession as will authorize his suit in warranty. The frequent errors in the surveys of lands in Louisiana made by the United States surveyors are matters of history; and, without some other action of the government beside the mere approval of a survey by the surveyor general, it cannot be considered as the disturbance of the title of a proprietor, still less as evidence that the land belongs to the public domain.

The small portion of land which the plkintiff himself purchased from the United Staies-under a>pre-emption claim-, which is adjacent to the upper boundary of tlie’traeti, gives Kim-no claim against the defendant under the evidence and'the allegations of his petition. He does not ask for a rescission of the sales,, and has no* claim whatever against the defendant. His possession has Been uninterrupted except by his acquisition above mentioned, by which his own title is sought unsuccessfully to be impugned ; nor is there any evidence of the extent or value of this portion which would serve as a basis for any recourse in indemnity against the parties cited in warranty, or of any damage suffered from any cause for which they are responsible;.

The judgment appealed from in therefore reversed,, and judgment rendered, in. favor of the warrantorsj-with costs in both courts..


author: Rustís, C. J.

text:
    Dunbar et al v. Bullard.
    The acconnia-eurfent between principal and factor are necessarily provisional until settledj- and, even-after settlement, may be rectified by either party on account oi errors and» omissions.
    W-here a faotor sends an account to his*-prmcipal at the usual time, in which certain imputations are made by tile former, and the latter approves it, or receives and acquiesces in it, and no fraud or surprise is complained'of, the imputations* of payment must'be considered* as having been made by the authority of the principal, the ratification of the acts of the' factor being tantamount to original imputations- by the principal, and'relating bach to the-time of the acts which are the subject of the ratification.
    The verdict of a jury on a question of fact will not be interfered with, unless it be contrary' to the evidence, or violate some rule of law.
    The contract by which a particular partnership is formed must'be in writing, where any part' of the -partnership,stock is to consist of real estate. C. C. 2807..
    Bártüership property must he applied to the payment of partnership debts; in-* preference to these of the individual partners. C. C. 2794.
    AS PPEAL--from* the District Court of Rapides, Campbell, J. The defend-IX ant and Clcmton were ordinary partners in the cultivation of a plantation in-the parish-of Rapides, and Lambeth Thompson, the real'plaintiffs in interest,-were, for many years, their factors in New Orleans. In 1836, the defendant and- Clanton' purchased a tract of land, and, for the fast instalment of the price,.a note was made by them for ®6,670, jointly and severally, payable to the order of the vendor, Neal, and secured by a special mortgage and the vendor’s privilege. This note was transferred before maturity to R. C. Martin. Martin was a debtor of Lambeth &f- Thompson, who, in December, 1838, wrote to him that: “ Bullard, having heard that Neal has passed off the note of B. 8f C-, has sailed upon us with an urgent request that we would pay it. We must, therefore, take the note of you as cash, the day it is due. You will please enclose it to us by first boat, and it shall* be passed to yourcredit.” Martin forwarded the note to Lambeth ¿¡- Thompson, without any endorsement but that ef the original payee,, and Martin's account was credited with the amount. Lambeth ¿y Thompson subsequently put the note in circulation, and this suit is instituted upon it by the plaintiffs as holders, against Bullard as maker, and Neal as endorser- Plaintiffs acquired the note after maturity. The judgment below, rendered on the-verdict of .«. ..jury,-was in -favor of the endorser, but against Bullard, as maker. The -latter alone has appealed. The other material facts are stated in the opinion of the -court.

      Dunbar, Hyams and Elgee, pro se.

    The sole defence is, that Lambeth Sf Thompson, from whom the plaintiffs received the note sued-upon,-had been the factors and commission merchants of Bullard'Sf Clanton-fox many ..years before and after, the maturity of the note sued upon ; that they ,(B. §• C.-) had shipped their crops to their said factors; and that the note sued on, being the most burthensome debt, the first moneys that came into their hands from said crops, should have been applied to the extinction and discharge thereof.
    To meet this special defence, plaintiffs contend that their transferrers did impute the proceeds of said cotton to the payment of such debts as '-they had a right to impute them to, to wit, the payment- of the drafts of said Bullard.$* Clanton, and cash, provisions, supplies and other advances made by them .in the regular course of business ; and secondly, that even if the defendantscou-ld at the time have required a special, or other application of die fund, that not having done so, and having for years acquiesced therein, neither law nor equity will now permit him to change the imputation. C. C. 2161. 2 Pothier, -Obi. 528, 529. C. N. 1255-7. Duranton, no. 193. Paillette, notes to art. .1255 C. N.
    On the trial the defendant opposed the introduction of the accounts of Lambeth Thompson, and notes signed by him, and the testimony of the -witness Edmund Harding, to prove .the same, or any other imputation of the moneys received by Lambeth Sf Thompson than to the notes sued on, on the ground that plaintiffs had not declared upon sueh accounts or sued to recover the amounts thereof, &c-, and because no notice had been given him, that such accounts would be introduced, and that nothing but a receipt accepted by the debtor could be admitted, &c. This reasoning goes to the effect of the testimony, and not to its admissibility. The testimony was legally-admitted. The plaintiffs proved the defendants note, and asked for judgment. The defendant shows that at certain times, sums of money had come into the hands of plaintiffs’ transferers, which he contends extinguished the note. The plaintiffs, then, by rebutting evidence had the right of showing that -these funds -were applied to pay other debts of the defendant — and further too, that defendant had acquiesced therein. It being a plea of payment, it was incumbent on the defendant -clearly to make outhis case (C. C. 2229); and we had the right of opposingto it every legal defence; and there exists no necessity of giving hita -notice that he owed other debts, whieh it was his duty to discharge fiist.
    The defendant contends that this was a pure factorage transaction between himself and his merchants, and that it was the same as if he had written.an order on them in favor of Martin. He further contends, that, therefore, -when -they purchased the-note., or paid Martin for.it, it was a dead piece of paper in their hands, and they only had a right of charging him with so much money laid out and expended for his use; that this view of it must prevail because Lambeth Sf Thompson took the note from Martin without any express subrogation ; and that there was no legal subrogation,-as it was taken up at his request, and eould only form against him an item in an account-current. To complete the defendant’s hypothesis, it is presumed that it will be contended, that being ,a mere charge in an open account interest ceased on the note, and that his .solidary liability was destroyed, and he only bound for half as an .ordiunry partner. We contend that the transfer to .them of the note transferred all the .right attached to it (C. C. art. 2615), without .the necessity of subrogation.
    But-the plaintiffs urge that it was not such a transaction as the defendant-supposes; and that there is ample evidence to the contrary in the record; -and if -there was not, thatat would result from those grave presumptions, 'whieh, in the absence of positive evidence, influence .men, and govern their actions in ■-their intercourse with each other. The evidence shows that, at -the cióse of ¡the business season in 1838, Bullard, 8f Clanton owed their merchantsabalance of §12,547 98, for which they executed their two notes, bearing ten per cent interest after maturity, one for §6,246 37, due 2d and 5th of January. 1-839,-and one §6,301 61, due -1st and 4th February, 1839. and that Bullard Sf Clamton'-s additional liabilities and payments to be met out of the -.crop which went to market in the spring of 1839, was some §14,000, about §3,-000 of which the merchants-had also advanced between July, 1838, and 1st January, 1839. It is fair to presume that Lambeth Sf Thompson were aware of the position of Bullard 8f Clanton, and of the heavy debt they had to meet, and that they only consented to acquire tho note from Martin because it was solidary and bore ten per cent per annum interest, with the vendor’s lien and privilege. This was not intended as a factorage transaction- — Bullard 'Sp Clanton were heavily indebted to them — they had an interest in preventing others from holding a debt of so high h character, and consented to become tire owners because, 'by taking up the note, they acquired the fight of their transferrers; and doubtless that was their inducement and the true understanding at the time. The defendant maintains an affirmative, that he has extinguished a debt by some legal method, and he must make it appear; he has failed in doing so, and he must take the consequences of the conclusion that, in matters of doubt, the construction put upon an act, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation. The imputation made by the creditor shows his view of it, and the knowledge of that fact by the defendant implies his assent thereto. 'The relations of the parties, tho testimony of the book-keeper, showing the regular adjustment and making up of the accounts — their delivery to Mr. 'Thompson to be delivered to defendant — his frequent visits to their counting-house — his acknowledgment on the record, and production of so much of the accounts of sales as he considered necessary for the establishment of his defence — his silence for four successive crops, and all the surrounding circumstances, leave on fhe mind not the shadow of doubt of the defendant’s'know’ledge of the imputation of the proceeds of the cottons in the year 1839 to the discharge of other debts of Bullard ¡ÍJ- Clanton, regularly created in their factorage transactions— .and so the jury and tho-court below concluded.
    The defendant in order to avoid the effect of a knowledge of the application .of the crop in question, denies that he ever acquiesced in the application, by •urging that 'it was enough for him to see that “the .account contained the usual reservations of errors excepted,” and “ that he had no curiosity to look into it, until a final settlement,” and “ that he never was called u.pon for such final settlement.”
    In the case of Blood,worth v. Jacobs, ante p. 24, this court said, 'in relation to the reception of accounts-current and their effect, that article 2161 of tire Civil Code relative to the imputation of payments was applicable, to wit: that ■when the debtor had accepted a receipt, by which tlio-creditor has made an imputation of money he has received to one debt the debtor cannot change the imputation, unless in case of fraud or surprise. In the .case of Millaudon v.. Arnaud, 4 La. 545, the court said; “It .was the duty of the-defendant to have made his objections to the plaintiff in a reasonable time ; and the act .of receiving the .account-current, and retaining it for so long a period without .observation-or opposition, is an assent to the application which the plaintiff ■made of the funds of the defendant..’” If further authority is necessary on-.this point, itis to befound in the case of Flower v. Jones, 7 Mart. N. S. 143, where .the principle is settled, that when one party .receives accounts, without malting .objection .to the conduct of the other’s acts, it is considered as complete an acquiescence therein ns if he had expressly done so. See Merlin, Questions ■de Droit, verbo Compte-courante, vol. 1, p. 482. Paillette, note to art. 1985 Code Napoléon.
    The defendant lastly contends that there had been surprise on his part; that ft is not shown that he had any knowledge that Lambeth S¡- Thompson had taken up the note, until the account was rendered ; that he had no-intimation previously thereto, that the payments made by Bullard ‘4' Clanton were imputed in .a particular mannor. Were this position tenable! it would not avail the defendant after four or five years silence. It was the place of the defendant at ■once, on the receipt of the account,to have set up his objection thereto, or at least within a reasonable time. Duranton says (vol. 7, No. 193, in commenting on art. 1255, which is the same.as.art. 2161 of the Civil Code,) where a debtor is deceived in the imputation made by the creditor, it is his duty immediately to .set up his opposition to the imputation, otherwise it would be presumed he had acquiesced iu it; and.as the law has affixed no prescription within which to do iso after having discovered the fraud or surprise, this should be a matter left to ;the tribunals to judge, according to the circumstances of the case, if there has ¡been a ratification or not of the fraudulent imputation.

      M. A. 'Bullard, pro. pars, and Roselius, for -the appellant.
    'I. 'The note having been paid by the defendant’s agents and factors, at his request, was by that fact alone extinguished, and could not be revived and put in circulation, leaving to the mandataries their right to be reimbursed, the note remaining in their hands merely as a voucher in support of that item of their account with their principals, Bullard, Sp Clanton.

    It is clear the note was not received by Lambeth Sp Thompson in the ordinary course of business, but that it was paid at the request of Bullard. It was paid as the note of Bullard Sp Clanton, and is so referred to in their letter to Marlin. They took no transfer from Martin, no subrogation; they had no interest in paying other than as factors of Bullard Sp Clanton, in the 'daily expectation of receiving their crop, out of which this advance would be more than reimbursed. It is a maxim as ancient as the Roman law, and retained as a formal text by Justinian, “ Qui mandat, solvi, ipso videtui solvere.” The payment, therefore, made by Lambeth Sp Thompson, was a payment by Bullard Sp Clanton, The amount paid was an advance to Bullard Sp Clanton, which formed a charge against them in the account-current to be rendered by their mandataries or factors. The note, after it had been taken up by order of the maker, ceased to have any force as evidence, per se,-of an existing obligation. It had done its office. Could the endorser be again exposed to the risk of paying? Could the note be resuscitated as to him ? The defence did prevail as to him, and the plaintiffs have not appealed. Could it be extinguished as to one party, and not as to another? We contend that' the .only right of Lambeth Sp Thompson is to recover what they had advanced to take up the note, by the actio mandaii contraria,

    Duranton, says: “ Bien plus, un tiers qui n’est nullement intéressé a l’extinction de la dette peut la payer au nom eten l’ncquit du débiteur, sauf ce que nous dirons biontót en parlant des obligations de faire. Cette disposition a lieu égaiement quoique le débiteur s’oppose au paiement de sa dette: car la máxime “Invito benejicium non dari," n’est point applicable k,ce cas, &c. Quand nous disons qu’il est permis il un tiers tout-k-fait étrauger á l’obligation, de l’ac-quitter, nous entendons principalement cela du cas oú il agit au nom de ce débiteur, en luí procurant sa liberation; car, s’il agissait en son nom propro, il pourrait bien, k la véritó, payer la dette, mais il ne pourrait. dit cet article, étre subrogé aux droits du cróancier. Cependant cette derniére disposition a besoin de quelque explication. D’abord il n’en faut pas inférer, par contraire, que si le tiers agissait au nom du débiteur, il serait nécessairement subrogé aux droits du créancier : ce serait une erreur de le croire. lors rnémo que le paiement serait fait du consentement du premier, si les formálités presentes par l’article 1250,2°, n’étaientpasobservées, seulement, si le créancierle veut, il peut, aux termes de la premiere disposition du méme article, consentir k la subrogation, pourvu qu’il le fasse lors du paiement et non depths; car la dette une fois éteinte ne saurait revivre. L. 7Gff de Solut. Duranton, Paris ed. of 1820, vol. 3, nos. 701 and 702, pp. 61 and 63.
    The same author in subsequent paragraphs enumerates several cases in which.a third person pays the debt of another. First, when it is done in the name of the debtor and to discharge him, but with subrogation — there is no difficulty; it is in truth a change of creditor under the name of payment. But he proceeds to say, 2dly : Le paiement fait par le tiers, aussi au nom et k Vacquit du débiteur, -mais sans subrogation: alors il y a vferitablement extinction de la dette, et le tiers n’a contra le débiteur ainsi liberé, que la simple action de gestión d’affaire” &c. No. 784, p. 175.
    In this case it is manifest, that. Lambeth Sp Thompson paid in the name, and at the request, and as the mandataries of the debtor, .and that they took no transfer of the note, much less a conventional subrogation to the rights of Martin, the then holder of the note. Nor had they an interest in paying, which would operate a legal subrogation.
    Let us suppose that, between the time the note in question came into the hands of Lambeth <!y Thompson and the institution of this suit, the five years from its maturity had elapsed, could Bullard have pleaded the prescription of five years? Most,clearly not, according to these principles, because the payment by an agent ora negotiorum gestor creates a-new debt .against the principal, to be recovered, by what the Roman law terms tho actio mandati contraria, or as it is expressed by the French jurists, “Vaction de gestión d’ affaires." See Duranton, no. 787. in the sumo work, tho author treats tho question, whether if the original obligation contained a special election of domicil, the third person, paying without subrogation, could avail himself of that right ? And he decides that he could .not, but would be bound to prosecute at the real domicil of the debtor. See no. 786. These are, in fact, but corollaries from the settled .principle, that the original obligation is absolutely extinct, and forms nothing ¡more than the basis or consideration of a new indebtedness which dates from the payment. These principles would hav.e .been.applicable, even if this had ibeen the only transaction between BulLarcl, or Bullard 8f Clanton, and Lambeth Thompson. If the former had requested the latter to pay their note, and they had consented to do so, that alone would have created the relation of mandatary and principal between them in relation to that transaction, and the payment by them would have been a payment by Bullard 8? Clanton to every legal (intent. See Pothier, Mandat. A fortiori, when that relation already existed . — when they were in the habit, and had been for years, of acting as the general agents and factors of Bullard 4* Clanton, and admit in .their letter to Martin, that their intention was to pay the note for the drawers. This being the case, how could they legally, or with any propriety, after holding ,tbe .note for several years, again put it in circulation? Plow could they revive an .obligation to pay a.sum of money to the order of Neal, which had been .extinguished by their own act, and when they were not holders as the endorsers of Neal? How could they revive the obligation of Neal, the e-ndorssr ? It is true, as it may be contended, that a note endorsed in blank by the first endorser, passes by mer.e delivery ; but in this case the whole evidence repels the idea that LambethJSf Thompson received.the note in that way. There never was any privity of -contract between them and Neal, or between them and Martin. They took the note from Martin as cash, on the day it fell due, and he regarded the transaction as a payment made by Bullard 4* Clanton, through their agents.; .and we repeat the old maxims : “ Qui:mandat .solvi, ipse solvere videtur,” and “ Quifacitper alium, facit per se.”

    Towards Lambeth 8p Thompson, Bullard, as a partner-, never was liable for more than one half of the amount due to them ,by the partnership; .and although, as to Neal, the parties were originally bound in solido, yet for.any advances made to the firm by Lambeth 8p Thompson to pay the n.ote, the .partners were ■bound only .each for one half. The putting of the note in circulation by Lambeth 4* Thompson, was contrary to their duties and obligations as .the mandataries .of Bullard Clanton, and charged by them to pay the debt. .Story says, in so many words, .that an agent employed to settle a debt, cannot purchase it for his .own account, and he cites the case of Reed v. Norris, 2 M. & .Craig, 361, 574, .and his own Equity Jurisprudence, vol. 1, § 321, 322. He adds: “Indeedit may be laid down as a general principle that in all cases where n. person is either actually or constructively an agent for other persons, all profits and advantages made by him in the business, beyond his ordinary compensation, are to be for the benefit of his employers.” Story on Agency, § 211, p. 250.
    II. Even supposing Lambeth 4* Thompson to have been the holders of the note when it fell due, and subrogated to all the rights of the original payee, it ■was extinguished within three months, by imputation of payment, by the proceeds of cotton sold by Lambeth 4- Thompson for the makers.
    It was the most onerous debt due by Bullard 8f Clanton to that house. It was .secured by mortgage and vendor’s privilege, on a valuable part of their plantation, and bore an interest at ten per cent after maturity, if not punctually paid. It was hesides, first due. It ought to be premised, that the open account between Bullard 8f Clanton, and the house of Lambeth Thompson, commencing in July, 1838, when the last settlement took place, was neither due nor liquidated in January, 1839, when the mortgage note fell due, nor at the time .the remittances were made, which we contend ought .to have been, and were by operation of law, imputed to the payment of the note. The dealings of Bullard 4" Clanton were, from year to year, and all supplies and advances were made on that term of credit.
    The doctrine of imputation of payments has undergone little or no change since the publication of the Pandects. It is now, by our Code, precisely what it was in the age of Justinian. The principles are few and simple. The general rule is, that the debtor of several .debts equally due., when lie makes a payment, has a right to apply it to whichever debt he thinks proper. When no .direction is given by the debtor, the creditor has a right, at the time of payment, to impute it as he thinks proper, and the debtor wiil be bound by such application, if he accepts a receipt, showing such special appropriation, given at the time of the payment, in re agenda, m re presentí — statimatque solutum est. If no such special application is made and accepted, expressly, or tacitly, then the law imputes the payment to the debt which the debtor has the greatest interest in paying.
    Article 2161 of our Code declares that, “when the debtor of several debts has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputation to-be made to a different debt, unless there has been fraud or surprise on- the part of the creditor.”
    Art. 2162': “When the receipt bears bo imputation, the payment must be imputed to the debt which the debtor has the greatest interest in discharging, of those that are equally due.”
    Toullier, in treating upon the corresponding articles in the Code' Napoléon, says: “ Si le débiteur ne fait pas l'imputation, le créaneier a le droit de la faire, pourvu que ce soit fait á l’instant méme du paiement et dans la quittance. II ne pourrait la faire depuis: comme aussi le débiteur qui n’aurait pas fait i’imputation au- moment du paiement, ne pourrait plus la faire arbitrairement sans le eonsentement du créaneier. C’est encore la regie ancienne.” In a note he quotes-the Digest: “ Permittitur ergo creditor constitaere, in quod’ velitsolutum..., sed,constituere in re prassenti, hoc est statim atque solutum est.”’ “ Mais lorsque le' débiteur a consentí & l’imputation, eu recevant la quittance', en pleine connaissanee de cause etsans surprise,- il ne pent contredire cette imputation, quoiqu’elle-lui soit préjudiciable, suivant la máxime, volenti non fit injuria.” 7 Toullier, nos. 176, 177. Rothier is to the same effect. Treatise* on Obligations, nos. 528 and 529.
    To apply these principles to this case: A receipt is nothing more than a written acknowledgment of payment; whether couched in the form of a letter' missive, or an account of sales,showing the amount received, is immaterial. The two letters of Lambeth Thompson, acknowledging the receipt of proceeds of’ cotton sold and-placed to the credit of Bullard Sf Clanton, the one of $6,708' and the other of $2,225, making together nearly $9,000, and dated in March,. 1839, about twomonths after the note fell due, are undoubtedly receipts give» at the time, for that amount, and contain no special imputation. The law, therefore, eo instanti, made the imputation to the most onerous of the debts then du®' by Bullard Sf Clanton. If those letters had informed Bullard Sf Clanton that the amounts thus received'had been-applied by the house to discharge an open> account, rather than the notes then due, and no objection had been made at the* time, they would have been bound by that application of the fund. But the' law having fixed, the appropriation in the absence of any such special imputation, it cannot afterwards be changed without the express consent of the debtor. The debt was extinguished, and could not afterwards be revived by any mercantile arts in the mode of stating the accounts between the parties.
    But the plaintiffs contend, in the teeth of these well settled piinciples, that accounts rendered long afterwards, showing a different disposition of those-funds, and-not objected to within a reasonable time, conclude the defendants.. To this we reply that no- such accounts ever were rendered to Bullard, although they may have been- to his partner Clanton, and that even if Clanton had-expressly assented to that mode of stating the accounts and applying, the funds, it would not have bound bis partner. They were-ordinary partners, and neither' could bind the other without special authority either in the articles of partnership or otherwise. How then could he bind him by implication l One half of the funds belonged to Bullard, subject to his exclusive control and disposition. The testimony is far from showing that Bullard ever saw the accounts as rendered. But after all, what do the accounts show? In an account-current, a note held by Lambeth Sf Thompson at the time, is not charged as an item, but at the foot of the account is a remark, that they are holders of the note. Here then the account itself shows the- existence of two debts, one by note and the-other by account. What had the note to do- with the running account of supplies for the platation ? The account shows precisely that state of things which, gives the debtor a-right to choose which he will pay. The account was clearly not due at the time the money came into- the hands of Lambeth Sf Thompson. It was not due until July, 1839. It was unliquidated, and consequently they had no right to make the imputation. But the account does- not show any express imputation to the account independently of the note. The credit is general, and the note was referred to as an existing debt due at the time.
    According to article 2161 of the Code, the debtor is precluded from insisting on the imputation to the most onerous debt, when he has accepted a receipt by which the creditor has imputed what he has received to one of the debts specially. Now the converse of this proposition must be true, that until such receipt is accepted-showing a special imputation, he may insist upon and require the proper imputation. Nothing of the kind is shown here. The account, we repeat, does not show a special imputation, but shows on its face that the higher debt was then due to Lambeth 8f Thompson.

    But the rule upon- which the plaintiffs appear to rely, has no application to accounts rendered between debtors and creditors. This court is surely not prepared to infer the correctness and justice of an account rendered, merely because no objection was made to it at the time it was rendered. The rule applies only between merchant and merchant, in relation to their dealings with or for each other. It is stated by Judge Story in the following words:
    “ In respect to silence, whether it operates as a presumptive proof of ratification,may essentially depend upon the particular relations between the parties-, and the habits of business and the usages of trade. In the ordinary course of business between merchants and their correspondents, it is understood to be the duty of the one party receiving a letter from the other, to answer the same within a reasonable time, and if he does not, it is presumed he admits the propriety of the acts of his correspondent, and confirms and adopts them.”' Story on Agency, § 248.
    Greenleaf on Evidence,to the same effect, lays down the doctrine of acquiescence in the following explicit terms: “Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the affect of an admission, must exhibit some act of the mind, and amount to a voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct, or in the language of others, it must plainly appear, that such conduct was fully known, or the language fully Understood, by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated.” 1 Greenleaf, p. 229, no. 197.
    The case of Bloodworth v. Jacobs, is clearly distinguishable from this. In that case, a third person, without any allegation of fraud, complained of the improper imputations of payment made by a common debtor. Several years had elapsed from the time the payments were made, and there was evidence of .a settlement with Hunter, and his acquiescence in the disposition of his funds. The whole fund belonged to him. In-this case one-half of the fund belonged to Bullard as an ordinary partner, and no settlement had taken place. At the time the proceeds of the cotton were received- by Lambeth <iy Thompson, the account for provisions for the current year was not due. The course of dealing was from year to year. There had been a settlement in July, 1838, and the funds arose from the sale of the crop of that year, which was sold in January, February and March, 1839. If the fund in the hands of Lambeth Sf Thompson, the factors, is to be regarded as a trust fund, according to the idea of the court in the case alluded to, it could not be disposed of by them contrary to the wishes and interest of the owner of that fund ; and, even if there had been a settlement, it would have been liable to be opened on showing error. In the case of Bloodworth, the court seems to have regarded the account rendered as equivalent to the first receipt spoken of in the Code, which was received without objection and therefore conclusive on the debtor. But in this case there was a previous step, to wit: the rendering accounts of sales, and letters acknowledging the receipt of the money, and which do not make the least allusion to a particular appropriation of the fund, and which fund was consequently, by operation of law, applied, eo instanti, to the extinguishment of the most onerous debt then due, that is to say, the three notes held by Lambeth bf Thompson. After receiving these accounts of sales and the letters of Lambeth b( Thompson, the appellant supposed the proceeds would be by law imputed to tlie discharge of the most onerous debt, and that it could not afterwards be changed without his consent.

      “ These accounts,” says the' court in BloodworlWs case, “ were necessarily provisional until settled; and, even after settlement, may be rectified by either party on account of errors or omissions, subject to which every settlement is held to be made.”

      Texts of Ike Roman law in relation to payment.

    “ Tollitur autem- omn-is obligatio solutions ejus- quod debetur; vel- si quis, consentiente creditore, a-liud pro alio solverit. Nec interest q.uis solvat, utrum ipse qui debet an alius pro eo ; liberatur enim- et alio solvente, sive seiente, sive ignorante debitare.” In. lib. 3-, t. 30, De Solutions.
    “ Qui mandat solvi ipse, solvere videtur.” Dig. lib. 46.
    “ Si pro me quis solverit ereditori meo, licet ignorante me, adquiritur mil» actio pignoratitia.” Ib.

      Trost and O. N. Ogden, on the same side.
   The judgment of the court was pronounced by

Rustís, C. J.

This action is brought by the holders of a promissory note-, drawn by the defendant, and James Clanton by the defendant as his attorney in fact, for the sum of $6,670-, to the order of Thomas Neal, and by him endorsed;it is dated on the 17th of October, 1836-, and payable on the 1st of January, 1839-; it bears ten per cent interest, if not paid when due, and the promise to pay is joint and several between the debtors. There was the verdict of a jury in favor of the plaintiffs in the- court below, and the defendant, Bullard, appealed from the' judgment rendered upon it.

The cause was argued before the late Supreme Court, in October, 1844, and a decree was made, by which the verdict of the jury was set aside, and a new trial ordered. The defendant applied to have the deeree set aside and a rehearing, granted, on the ground that the court had not settled- the questions-raised by his bill- of exceptions, which-had- been taken at the trial to the admission of certain evidence on the part of the plaintiffs. He insisted, in his petition, on his right to have those questions determined by the court, whose decision was to serve as a- rule to the court below, as- to the admissibility of the-evidence, on the new trial, which had been ordered by the decree. In this-position we took- eog-nisa-nce of the cause at the last term, and the question then before us was, whether a re-hearing should be granted or not. As the parties in whose favor the decision of the court had been made, themselves applied for a revision of it, we examined the whole case, and, under the deference which- we were bound to extend to- the opinions of the court which had preceded us, we came to the conclusion that,on the grounds which the defendant assumed, the re-hearing could not be refused. It would be a vain thing in the administration of justice, for an appellate court to award a new trial without deciding on those questions in which it was alleged- error had been committed on the first trial, and to determine which the appeal' had been taken. But the decision of this court on those points might have a conclusive influence on the final decision of the cause; they might control it; and, notwithstanding the inclination of this court to maintain the decision which awarded a- new trial, the view it might take of the questions of law presented by the bill of exceptions and which the facts themselves required to be determined, might prevent its concurrence in that decision. A re-hearing was accordingly granted and the whole case was opened, and has been argued at bar,and by the defendant in person in a printed brief, which we shall consider as presenting the grounds of the defence.

The present plaintiffs are to be considered as nominal, and the controversy as being between the mercantile firm of Lambeth & Thompson, of New Orleans, and the defendant. The occasional- use of a different social name for the plaintiffs, makes no change in the relations of the parties. As we have not been able to adopt the conclusions to which our predéeessors arrived, it is proper that we should set forth our grounds of dissent in a more extended form than any intrinsic difficulty in the case would otherwise warrant. Every point has been elaborately examined, and we have the-means before us'of determiningthis litigation in a mannerwbich will do-full' justice to the parties.

Billiard & Clanton, the signers of the note sued on,-were partners in the cultivation of a cotton-plantation in the parish of-Rapides. It'was a particular partnership, and the-business of the-firm‘appears to have been conducted in the social name'of'jSííZto-íi! Sf Clanton; the partners were not bound in solido for the debts of the partnership. Lambeth Sf, Thompson were the factors of. the partnership in New Orleans,-sold the crops, made advances and paid for supplies ;-and w-e may assume that the relations subsisting between them were of principal-and factor, which had existed for several-years preceding this controversy. There is nothing in the evidence which-establishes any other relation between them*

The bill.of-exceptions taken on the trial of the cause was to the admission of certain evidence, and is thus stated : Be it remembered, &«, the plaintiffs offered in evidence sundry accounts of Lambeth & Thompson, and of W. M. Lambeth & Thompson, with Bullard Sf Clanton, and offered Edmund Harding, a-witness, to prove the correctness of the same ; and offered further certain -notes purporting to be-signed by H. A, Bullard; and also offered-further* to prove by-the said Harding a different imputation of the moneys received by W. M. Lambeth Sf, Thompson, from sales-, of cotton of Bullard Sf Clanton, than to the extinguishment of the debt sued. for. To- all- of- which the defendants, by their- counsel, objected, on the ground that the plaintiffs have not declared upon said accounts, or sued to recover the amount alleged to be due thereon ; and have given the defendants, no- notice- that such accounts Would be introduced, or proof offered in relation to the same ; and on the further ground that, no evidence of-a different imputation, than to-the most burtheusome debt-can be admitted-, except that established by the 2161st article of the Code, to-wit: the acceptance of-a receipt by the debtor, in which the «•editor has imputed what he received to-one of the debts specially, that imputation being.different from that established bylaw; and that,. consequently, when the law has established a particular mode of proof no other testimony can be resorted to, unless the absence-of legal proof is-- accounted- for. But the court overruled-the whole of said objections, and ordered the said testimony to be received-; to all which the counsel excep.t, &c.

The argumentative port of this bill of exceptions, it is unnecessary to notice-As to the questions of law ifc presents, they are attended with no difficulty whatever in their solution.-

It >s the duty of the factors to keep accounts of the transactions of- their principals, and it was necessary to prove that they wer-e kept, and-kept correctly; and the whole evidence was admissible under the issues presented in the defendant’s answer. None of the grounds of objection taken to the evidence are tenable. They go to the effect, rather than to the admissibility, of it. It is all before us, and is strictly legal and pertinent to the cause, under the defence assumed by the defendant. We have given our decision on the points set forth in the bill of exceptions itself, and not, as erroneously stated, in the petition for a re-hearing.

1 he first point made by the defendant in his printed argument is: “ That the note having been paid by the defendant’s agents andfaetors, -at his'sequest, was, by thatfact a3oner-extinguised, and could not be-revived-and put in circulation, leaving their mandataries their right to be reimbursed, the note remaining in their hands merely as a voucher in-support of that item of their account with their principals, Bullard 4* Clanton.” The proof of-the fact of .-payment, on which this argumentative proposition rests, is said to -be contained--in - a letter fr-om plaintiffs to Martin, who at the time it-was written-was the holder of the note. The letter runs thus:

■ “ New Orleans,’December 29,1838.

R. C. Marlin, Esq., Dear-Sir: — Judge Bullard, having heard'that Mr. Neal has passed off the note of B. & C., has called upon us with an urgent request that we would pay it. We must therefore take the note of you as cash the day it is due. -You will please enclose it to us-by steamboat, and it shall be passed to your credit.” It closes with remarks about the-scarcify, '&c.

On the 6th of Jan. following, Martin transmitted-the-note to the--plaintiffs,-at their request, and his aecouat-was credited-with its amount.

This letter is-held to be proof that the plaintiffs paid the note on the defendant’s account, and gave up the securities of the endorsement, the solidarity, a-nd the mortgage-which the note carried with it, becoming the simple creditors of the defendant, or of the partnership -of Bullard & Clanton. We think otherwise. The note was not yet due: the defendant undoubtedly requested the plaintiffs to pay-it. It-would have-been to-the defendant a-very advantageous conversion of an onerous debt into a demand against him in account-current; but we have no evidence that the factors assented to-it. They paid-the note to Martin,-because they could not get it otherwise. As to him, as he did not endorse the-note, payment was made — the business was closed; but the drawers and endorser were- entirely unaffected by any thing contained in the-letter, or transaction with Martin.

The conduct of the plaintiffs and defendant is- conclusive as to the character of this transaction, if it were susceptible of any doubt in its origin. Nay, the very answer and argument-of the defendant refutes this pretence. The answer expressly charges that the note, before maturity, was transferred to the plaintiffs, who have, ever since January,1839,-until recently, been the holders thereof; that by the imputation which the-law itself makes, the note has been paid by the proceeds of the crops of Bullard Clanton, - which - the plaintiffs had received-smce the-note fell due, and thus the note has been extinguished by the imputation of these payments. This payment to Mar-tin was not even pleaded; but the extinguishment by reason of the imputation of the proceeds of the crops, was alone charged in the answer, -which-is under oath. This point-of defence has no foundation whatever.

The second is ; “ That even supposing Lambeth ’4’ Thompson to have been holders of the note when itfell due, and subrogated to all the rights of the original payee, it was extinguished withinthree months by the imputation of payment, by the proceeds of cotton sold by -Lambeth S¡- Thompson for the makers.” And it is further contended that, if the imputation is not made, the partnership funds must be considered to be in the hands of the plaintiffs unapplied and subject to a final settlement, and that Bullard & Clanton have a right to insist on such an application of it as to stop the onerous interest the note bears, leaving to the plaintiffs their recourse against the partners, each for their one-half, for •the balance.which may be duo on account.

It is contended that no imputation of payment was made by the creditors or debtors, and that in that-case the .law makes At. that the mortgage note was the most .onerous, and that which the debtors -had at the time the most interest in discharging; and that it became -extinguished by the -proceeds of the crops of -the partnership., which-the plaintiffs had ¡received. It becomes necessary to ■enquire if -no imputation was made. The plaintiffs insist that an imputation was -made of the partnership funds to .the partnership debts, .consisting of advances and supplies-for the plantation.

In the.case of Bloodworth v. Jacobs, ante p. 24, we had occasion to .examine ¡the subject of the imputatio i of payments, in reference to .the .ordinary,transactions between planter and factor. We considered-that accounts between .these .parties, without-respect -to any particular agreement, were .necessarijy ¡provisional until settled, .and .even after settlement may be ¡rectified -by-either party .on account of errors or omissions.' We held .that when, at the usual .time of rendering .his accounts, the .factor sends his account to, his principal, .in which .certain,imputations of payment are made by him, and the ¡latter approves ,it, without .any fraud-or surprise, the payments .are .considered ,as .having .been made by-the authority of the debtor himself; and the ratification of the .acts .of .the agent .is considered as tantamount to an original imputation of payment by himself, and relates.back to .the time of the doing of the act which .is the subject of the ratification.

The dealings of Bullard & Clanton with .the plaintiffs were from .year .to year, and .all supplies and advances were made on that term of credit. There .are accounts of each year, which are taken from the books .of the plaintiffs, in which,the .note sued,on does not appear ever to .have been.charged .to the partnership. On the,contrary, at the foot of each account a memorandum is .made .to this effect: “N. B. We hold your mortgage note, due 1-á January, 18311, in favor of Thomas Neal, for $6,6,70.”

These accounts, showing the disposition made of the partnership funds from year .to year, and not objected to within a reasonable time, it is .contended, .conclude-the defendant. To this it is answered that, .no such accounts were .ever rendered to the defendant, although they may have been to his partner.Clanton; but if Clanton had expressly assented to that mode of stating the accounts -and applying the .funds, fit would not have bound his partner.

The.verdict of the jury has-virtually .found .the fact -that .the accounts were rendered to the partnership, and the only ground on which we could interfere with the-verdiot would be,that,it-was contrary .to .evidence, .orviolated some.rule of .law. There is no direct evidence of the reception of the accounts by either of the partners, but there is evidence from'Which¡the:i:eoeption,on.the part of the defendant may be inferred. It is such as produces conviction on our minds of the .fact, and fully authorises, nay obliges, men ¡whohave.consciences, to consider it as established.

Harding, a. witness, swears,-.that -the accounts-current offered exhibit the state of the accounts between-the plaintiffs and Bullard is Clanton, during the period-embraced by them ; ¡that the defendant ¡was the business partner of the firm, he attended ¡to the money arrangements, and Clanton attended to the plantation. The defendant frequently called at the counting-ihouse -of the plaintiffs, and'talked of his accounts. He never,-to the knowledge of witness, made any objections to -the accounts as they ware kept, and .are here exhibited. Witness .made out fonthe defendant the original accounts, .of .which-those ,preseuted are copies. Witness did.nat hand .them to .the defendant, but they were delivered to Mr. Thompson, one of the plaintiffs, to be handedto the defendant,as he resided in the city. They were made out as, in .the;usual, course of business,similar accounts .were for the other customers. Has.no .knowledge .that the defendant received the accounts thus made out. When they were handed to Thompson, he took .them, went out, and returned-without them.

The defendant has made .his defence in .person, though assisted by .counsel, and, in an elaboratalyprepared.argument, filed,on the 18th Qctoher, J8áá, thus treats-this- branch of the subject.: “ Rut.the receipt given at the time must be given and accepted without fraud or surprise!. Now, I know ,v.ar,y little about double entry. I .do not know that I .yet ¡understand that account. After receiving from Lambeth & Thompson a receipt .for ¡the .proceeds ,of .the,cotton without special imputation, I .could not imagine that ¡the account-current rendered .afterwards would give a different direction .to the .funds; and, as .the account was with the .usual reservation o.f .errors excepted, I,had no curiosity to look ¡into ¡it until the final settlement, .and I never was .called,on for such final settlement.”

If .the jury had before them this argument, and gave ¡to it the sense .which its ¡language fairly implies, and .considered it as .fortifying the testimony .which wehave stated,.they did what they were justified in doing, ¡and which we feel ourselves bound ,to do. We cannot .consider .the .verdict,.in this respect, .unsupported by evidence.

No oipection having.been made to the imputation of payments in theaooouats .until the,institution of this suit, according to ,the decision,in BloodworÜi’.s -case., they must be considered.as having been made by the .authority of the dehtor himself. We do .not think.there is any ground for the .complaint .against .the farm-of the accounts, as rendering them not easily understood. They .are free from.complexity,and simple and,clear.

Before leaving this branch of the.subject, it is proper -to add, ¡that the imputations -exhibited by the.account are such as any man of business would expeot to be made of the proceeds of the crops. Bullard & Clanton were .constantly drawing on their factors for their immediate wants, such as planters .usually have, .and of .which they appear,to have had their full share. The supplies for the plantation must be .furnished ; .its expenses.must be paid; the sums ¡required for the partners must be had. Thus there was a-.continued drain upon thefumde in the hands of .-the parties by .the orders and drafts of the partners; and yet ,iit is contended .that, fin the .face of ¡these acts of the parties and their relation as planter and.factor, every thing else was .to be disregarded in the application of the proceeds of the.crops, and they were to he .applied ¡to .this solidary obligation, secured by mortgage, .-leaving the factor .to .the mere joint liability of the planters for-even the .very advances .which .had¡enabled .them to produce the crops. Certainly the imputation thus .insisted on by the .defendant is not such .a one as,any man of common .intelligence.and prudence would .require .or .acicede to, .under the circumstances disclosed by the ¡correspondence ,and ¡the .state of the acoounts between the parties. Yide 2 Greenleaf on Evidence, ¡S29.

It is to be observed that the imputations made by the plaintiffs are objected to, ¡solely .that they .ought, to have been ap,plied to .the extinguishment of the mortgage note, as being.the most onerous. No question is made concerning the right ■ of the plaintiffs in making the imputation on any other ground, and no distinction .is rnade.as.to any of the debts paid, or advances made, by Lambeth & Thomp son, ail'd charged by the partnership; and as we differ widely in-our conclusions from the court before -which this appeal was first argued, we add another view of the subject which-is-to us obvious, and decisive as to the law of-the case, as it is presented'by the-facts.

'The note is, on its -face, not a-note given by-the partnership -of Bullard & Clanton, but by the-two persons, H. A. Bullard and James Clanton. They bind themselves in solido, and-not as partners. It is alleged in the answer, that the note was given as part of the price of a tract of land purchased by -them jointly,.as partners in -the planting business; but the act of-sale-purports to convey the-property not to Bullard & Clanton, as.partners, but to Henry Adams Bullard-and James Clanton.

In order to give this defence the-semblance of-validity, it was necessary that this note should-be a-partnership note, and it was -so-pleaded ; -but the fact has not been proved. There is no evidence of it. If -any real estate was included in this partnership,-the contract of partnership must be-in writing, according to the rules-prescribed for the conveyance of real estate. 'Civil Code,-art. 2807. And in order to test the legality of the position assumed in the defence, let us suppose-the fund to be in the hands of the plaintiff unappropriated, and at the disposition of the court-under'the respective rights -of the parties.

It is in-vain'to attempt to-disguise the result, if this-defence succeeds. It is that the creditors-of the-pa-rtnership of Bullard 8f Clantonw-e to:be left unpaid, with the partnership funds in their hands, and this diversion of the funds is to be for the benefit of the creditors of the-individual partners. What is the note sued-on ? The -joint a-nd several obligation-of H. A. Bullard and James Clanton. If that be-paid, their creditors are benefited-by it for the amount of the debt extinguished, to the wrong-and detriment of the.partnership-creditors. If the debt of the plaintiffs — the plantation or factorage -debt, be paid, -no one is wronged. Partnership property must be applied to the payment of partnership debts, in preference to those of the individual partners ; and Lambeth & Thompson have-so-applied it. -Civil Code, art. 2794. If the fund-were now to be disposed-of, under-the-case as it is before us, the-imputations of payment would stand in-law,-and the parties be left in statu quo.

These are the-conclusions to which-we have come after a-careful consideration of the questions presented -to-us. Those of-fact rest upon the verdict of a jury, not of merchants or factors in the capital, but taken from among those who are familiar with the relations of the parties, and have no bias in-favor of factors or their interests. Those of law are of so familiar a character, that we should not be authorised in dwelling on-them, except -for.the reasons before mentioned in. this opinion. .Judgment affirmed.


text:
    Brown v. Lambeth et al.
    defendants, holders of a note endorsed by plaintiff, gave it up to him, on the latter’s executing his ownnote for the amount, payable at a future period. Judgment was obtained upon the last note, without defence j and the present plaintiff purchased the property seized under execution against him, and gave a twelve-months’ bond for the price. An order of seizure having been issued on the twelve-months’bond, plaintiff enjoined it on the ground that he had executed his note in error, not having been aware at the time-that he-had been discharged from allliability as endorser by the laches of the defendants, but he made no tender of the note on which he was endorser: Held, that the injunction mast be dissolved, the plaintiff having no right to require the second note to be cancelled without restoring the original note received from the defendants.
    Under see. 3 of the stat. of 25 March, 183.1, fees of counsel may he- allowed to the’ defendant on dissolving an injunction, without proof of their having been actually paid by him, where they do not exceed twenty per cent'of the amount of the judgment enjoined, and no other damages are allowed.. Per Curiam: The judge is authorised, on the dissolution of the injunction, to allow- damages to the amount of- twenty per cent on the judgment enjoined, without proof.
    Appeal from tlie District Court of Rapides, Ring, J.

      Ryan, for the ap1-pellanü. O. N.. ügtíe«,-fortke'defendaats,
   The judgment of the court was pronounced by

Slidell, J.

The petitioner avers that, he was endorser on the note of William Brown, due- in’1837; that, in 1840; ha-ving’been’appiied to as-endorser by the defendants-, then holders of the note, he took- up William Brown's note by giving his own-note payable in 1841; that he was afterwards sued on this latter note, and snfferred judgment to go against him ; and that, upon exe1-eution, certain property belonging-to him was sold, of which he became the purchaser on twelve-months’ bond, upon which bond-aseizure has issued. He further avers that in all these matters he has acted.under error; that in fact he had been discharged as endorser of the original note by the laches of the holders in not giving.him notice-of- protest, of which discharge he was ignorant.- Upon these allegations an injunction was obtained, which the- defendants moved to dissolve.

There is clearly no equity in the petition.. Besides’the fact that judgment was obtained upon the new note, without defence, the validity of which judgement was recognised by the purchase and execution of the twelve-months’ bond, a course by which, the plaintiff probably precluded himself from relief, there is another consideration which fully justifies the dissolution of the injunction. The plaintiff giv-es no account whatever of the note of William Brown, which he received, and for whioh he substituted his own, and does not produce and tender it. If the new note is to be cancelled, how can he ask this equitable relief without restoring the defendants to their original rights? Non constat that the plaintiff may not have collected the note from the maker, or otherwise disposed of it.

The court below, in dissolving the injunction, gave judgment in favor of Lambeth & Thompson, for $150, “special damages, for counsel, fees, sustained by them.” It is said by the plaintiff that in this there is error; that counsel fees cannot be allowed as special damages, unless it be proved that the fees have been paid.

The statute of 25th March, 1831, s. 3, declares that, in case the injunction is dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of ten per cent per annum on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount are proved. In the present case, the sum of $150 was the only amount allowed to the defendants. As it does not exceed twenty per cent upon the judgment enjoined, and as up to that amount the judge was authorised to grant damages without proof, we see no reason to disturb the judgment.

Judgment affirmed.


author: King, J.

text:
    New Orleans and Carrollton Railroad Company v. Mills et al.
    To entitle the’ holder of a promissory note to recover against an endorser, on the ground of a promise to' pay made after the latter had- been discharged by failure to- protest, the-plaintiff must show that the promise was. made hy the endorser with full, knowledge of his discharge.
    APPEAL from'tlie District Court of Avoyelles, Boyce, J.

      Generes, for the-appellants. Waddell, contra-.-
   The judgment of the court was pronounced by

King, J.

The defendants are sued as the1 maker and endorsers of a promissory note. The- maker and- first endorser made no defence to the action, and a judgment was rendered against them-, of which-there is no complaint.. Briggs, the second endorser, pleads in defence that he has been discharged from his liability, in consequence of the- failure of the plaintiffs to cause the note to- be1 protested, or to notify him of its dishonor. The demand against him was rejected1 in the- court below, and the plaintiffs have appealed.

The-note on which-the suit is brought beai'S date the 3d of November, 1843, and was made- payable twelve months thereafter. At its maturity it was not protested-, but, on the 8th of November, 1844!, several days after' maturity,. Briggsi- at the request of the maker, gave the following written waiver: “ Mr. N. Durand and I are the endorsers on a note executed by Thomas Mills in the Carrollton Bank, and have agreecf to waive a protest on the same.” This-waiver, if is contended, is equivalent to a promise made by the defendant subsequent to his discharge to pay the note. If under the evidence this could' be considered as a subsequent promise to pay, it was incumbent on the plaintiff to show that it was made by the defendant with a fill!1 knowledge of his discharge. Story, on Prom. Notes, § 361. 12 La. 468. No such proof has been adduced; but, on the contrary, we are- satisfied from the evidence, that Briggs was ignorant of his discharge at the date- of this waiver, and made it under the belief that the note hndnot yet matured:. The fact of his making a waiver of protest, instead of a direct renewal of his obligation, would, of itself, in the absence of other testimony, be a strong circumstance to show that such was the impression under which he acted. Judgment affirmed.


text:
    Vitrac v. Rey, Curator.
    Where a slave, purchased a'nd paid for by the wife before marriage, is sold during its continuance, and it is not shown that the wife had the separate administration of her property, no proof will be necessax-y to charge the husband with the amount.
    APPEAL from the Court of Probates of Avoyelles, BaiLlio, J.

      Edelcn and Waddell, for the appellant. Taylor and Swayze, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The widow of the insolvent, Eleazer G. Paxton, made opposition to the homologation of the proceedings had in a meeting of his creditors, fixing the terms and conditions of the sale of the property left by him. She afterwards instituted a suit against the administrator of the succession, in which she claimed various slaves and sums of money as dotal and paraphernal property. The suit and the opposition were consolidated, and the widow having died, the administrator of the succession Intervened and prosecuted her claims. The court below gave judgment in her favor for two of the' slaves? subject to a charge of 8225 in favor of tho succession of Paxton, and dismissed the opposition for the balance of the claim. The plaintiff appealed.

Eugenie Vitrac, the original plaintiff, married Paxton, in 1822. Their marriage contract states that the future' wife brings into the community $2,100, in slaves and money. The slaves are not named in the act, but the evidence adduced on the trial shows that, at the time of her marriage, Eugenie Vitrac was in possession of four slaves, to wit: Clarisse, Marie, Jenny and Margaret. Clarissa had been purchased and paid for by her before her marriage, and was sold during its continuance, with another slave, for the aggregate suftiof $975. It is contended that the evidence adduced to prove that Paxton had received this sum was inadmissible. We think it was properly admitted ; and moreover, we consider that, as it is not shown that the wife had the separate administration of her property, no proof was necessary to charge him with the amount, A short time after tho sale, the purchaser sold Clarisse for $450, and, in the absence of other evidence, we will take that sum to have been her value at the time she was sold by Mrs. Paxton. The slave Marie, for whom and her increase, the court below gave judgment in favor of the plaintiff, is the daughter of Clarissa, and the reasons upon which the judgment rests entitle the plaintiff to recover the sum for which Clarisse was sold.

The slaves Jenny and Margaret were purchased by the wife shortly before her marriage for the sum of $850, which was paid by Paxton after the marriage ; and as there is no evidence to the contrary, the law presumes that the payment was made out of the funds of the community. These two slaves^ together with another who cost $650, were sold by Paxton and his wife for the sum of $1,700, The difference between these two sums may fairly be considered as the price obtained for the slaves Jenney and Margaret; and, after deducting from it §550 paid by the community for them, there will remain a balance of §200 in favor of the plaintiff.

The court below considered that the claims of the plaintiff for funds belong.ingto her, received by Paxton during marriage, and for payments made by her out of her separate estate, were not sufficiently proved. A careful examination of the record has brought us to the same conclusion. A recompense was improperly allowed to the community for the rearing of tho slave Marie; she was over nineteen years of age when Paxton died, and the value of her services had fully compensated the expenses of rearing her.

The judgment is therefore reversed; and it is ordered that there be judgment in favor of the plaintiff for the slave Marie and her increase ; and further for the sum of $650, the proceeds of paraphernal property alienated during marriage, with a legal mortgage for $450 thereof from the 24th day of December, 1824, and a legal mortgage for §200 from the 18th day of December, 1825. It is further ordered that the judgment be classed and paid in the course of the administration of the succession of Faxton, and that'said-succession pay-tile eosts-in .both-courts. -


author: Rostf, J:

text:
    Crawford, for the use &c. v. Jones.
    A" party may proceed by a motion to dissolve, in case of a sequestration. Peí- Gúriam: A-sequestration is a harsh remedy, and, if sued out withouteause, the party'whose property is1 unlawfully taken from him should have a summary redress.
    Appeal from the District Court of Avoyelles, I&ig, J.

      Bishop and Edelen, for the appellant; Faylor and Swayze, for the'defendant.
   The” judgment of the court wasvprououncéd by

Rostf, J:

The plaintiff, alleging that he held a mortgage on-a slave'belong-ing to defendant; stt'ed out a writ of-sequestration, on the ground that he had r'eason to believe,-and did believe, that the slave was about to be removed out of the State, before he-could exercise his right of mortgage. The defendant moved1 to dissolve the sequestration on the ground ¿-that the facts alleged-in'the petition Were untrue; and that the plaintiff'had no-interest in- the claim-secured by the' mortgage on the slave- in his possession. Several witnesses were examined on = behalf•-of- the defendant, without opposition-; and the judge, after'hearing the" evidettce'and the argument-of-counsel, dissolved the sequestration-. The plaintiff has appealed. His counsel contends that motions to dissolve are unauthor- ■ ised bylaw in cases of-sequestration, and that the only way in which property sequestrated can be released is by giving-bond, or by the judgment of the court-on the merits.

Sequestration is a harsh; remedy; and if it is sued out without a-just cause, it is'consonant witb-every principle of justice that the party whose property is unlawfully taken from him should have a- summary redress. The former Supreme Court considered that he had. See the cases of Vanwinckle v. Flecheaux, 12 La. 150. Segur v. Sorel, 11 La. 443.

On-th-e'merits of the motion, the' judge Who tried the cause had a much better-opportunity than we have to ascertain the credibility of witnesses, and we cannot say that he-erred in giving faith to the testimony. The testimony fully supports- the conclusion to which he came. Whether the other ground alleged could be-entertained- on a motion to dissolve, is a question which it is not necesary to determine:

Before-the trial of the- Hiotiomto dissolve,- the plaintiff asked-that a day be fixed in»orderto allow the defendant sufficient time to summon witnesses; the j.udge'desired the plaintiff’s counselto fix any day during the term. The counsel having, refused to-do so, the judge had the case fixed in conformity with the-general practice of the court.- No affidavit having been made for a continuance,- and no information having been given to the court that the plaintiff had any witnesses to summon, the motion was tried in its turn. The proceeding was ia every respect regular, and the plaintiff has no just ground of complaint.

Judgment affirmed*