text:
    Succession of W. A. Andrew.
    A mere dismissal of a rule cannot have any greater effect in the court before which the same has been rendered, than a judgment of non-suit.
    Therefore, when a rule has been dismissed and a second taken, the defendant cannot plead res judi-cata.

    The books of a liquidating partnership are in the guasi possession of the law, and must be placed in the hands of the Receiver under all circumstances.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Hyams, Labatt & Jonas, and H. M. Spofford, for plaintiff. C. Roselius, for defendant and appellant.
   Merrick, C. J.

On a rule taken by George Jonas, receiver, on Charles Maes.

The late firm of Andrew & Sierau was dissolved by the death of Andrew. Sierau was appointed by the court the liquidator of the partnership affairs. Subsequently he entered into' a new partnership with the defendant in the rule and one Wench, under the name of Andrew & Sierau.

The new firm, instead of providing themselves with new boolrs, employed those in the hands of Sierau, the liquidator of the old firm, and made their entries and kept their accounts therein.

Sierau having died, and the affairs of the old firm being still in an unsettled condition, George Jonas was appointed receiver. He applied to the defendant, Maes, for the books of the old firm, the same being in Ms possession. They were refused him by Maes on the ground that they were essential to the business of the now firm. Maes offered, however, to give him access to the books at all reasonable hours. The receiver insists that possession of the books and papers of the old firm is essential to a proper discharge of his duties as receiver.

Jonas suggesting to the Court his belief that Maes had the books in his possession, took a rule on him to show cause why he should not deliver the books, papers, property, &c., of the firm of Andrew & Sierau to him. This rule was dismissed on the 26th day of January, 1860.

A new rule was subsequently taken on grounds very similar to the preceding.

To this second rule Maes pleaded, among other defences, the dismissal of the former rule as the thing adjudged in bar of the second rule. The judgment of ■the lower Court being adverse to Maes on the second rule, ho appeals. He urges the plea of res judicata as the first ground of defence in this Court.

We are of the opinion that a mere dismissal of a rule cannot have any greater effect in the Court before which the same has been rendered than a judgment of nonsuit. See 9 Martin R. f>22. Nothing, therefore, prevented the receiver from renewing the rule.

On the merits we are of the opinion that the books, papers, &c., while in the hands of Sierau as liquidator of the partnership of Andrew <& Sierau, were in the quasi custody of the law, and that the new firm had no legal right to use the books for their own purposes. As a consequence, they, the books, papers, &c., are subject to the control of the Court, and must be restored to the present receiver, who acts under its authority. It may be true that the books contain entries important to the business of the defendant; if so, he must content himself 'with the examination of the books, and by taking copies at reasonable hours while they are in the hands of the receiver, whose possession is also that of the law.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed ; that the appellant pay the costs of appeal, it being understood that the defendant’s right to examine the books in the hands of the receiver at all reasonable hours is reserved him by said decree.


source: Caselaw Access Project

author: VooRiriEs, J.

license: Public Domain

text:
    Joseph S. Cucullu v. A. W. Walker.
    A contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot be revoked as to the advantage stipulated in his favor, without his consent. Such a person must be made a party 'to a suit whore such an interest is involved.
    Appeal from the District Court of the Parish of St. Bernard, Foulhouze, J.

      A. Beatty, for plaintiff. P. A. Ducros, Jr., for defendant and appellant.
   VooRiriEs, J.

The defendant purchased the plaintiff’s plantation for the sum of $185,000. There was a cash payment of $25,000 ; and the residue of the price was made payable in several instalments, some of which are now matured.

Previously to the sale there existed on the plantation a mortgage in favor of Villavaso for the sum of $20,000, and of C. Olivier for the sum of $10,000. The purchaser assumed to pay the former debt; and two of the purchase notes, each for the sum of $5,000, were given in lieu of the-latter. '

The object of the present suit is to compel the payment of these two mortgage debts.

Neither of the holders, Olivier and Villavaso, has been made a party to this proceeding, although they are the creditors, and as such are entitled to the proceeds of the sale, should an execution issue.

Villavaso, besides being- the creditor originally of the plaintiff, with the right of mortgage, is entitled to the advantages stipulated on his behalf in the act of sale. As he has signified his assent, these cannot be revoked without his consent. C. C. 1884,1896.

With regard to the Olivier notes, the plaintiff has parted with his interest in them by his indorsement.

In the absence of parties having such an interest in the premises, it is obvious that the matter in dispute is not susceptible of final adjudication.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that, leave being granted'to the plaintiff to make proper parties, this case be remanded for further proceedings, the plaintiff and appellee paying the costs of appeal.


author: Merrick, C. J.

text:
    Ella Looram, Wife of J. G. Pujol, v. William Burlingame.
    A person employed to retain possession for the owner, cannot be permitted to defeat the object for which he was employed, and the moment he resists the entry of the owner he becomes a trespasser. 12 An., 687. #

      Per curiam,: It would be difficult to prove, as a legal proposition, that the tenant, after the termination of his lease, and after he had left the premises, could maintain a civil possession and prevent the entry of the owner by leaving a few effects and carrying away the keys ; for the possession of the tenant is that of the owner. C. C. 3396, 3404, 487. When, therefore, he abandons the property, it would seem he ceases to possess aud cannot prevent the lawful owner, his landlord, from entering
    Appeal from tlie District Court of the Parish of St. Tammany, Wilson, J.

      H. G. Penn, for plaintiff. Alfred Hennen, for defendant and appellant.
   Merrick, C. J.

This is an action of trespass for forcibly breaking open a building and removing certain household furniture of the plaintiff. The jury gave $100 damages against the defendant, and he appeals.

The principal facts are these : In 1849, D. C. Lowber owned a house and lot and out-buildings in tbetown of Louisburg, on the lake shore, in the parish of St. Tammany. He employed the husband of the plaintiff as a laborer, and probably the plaintiff herself as a servant during the summer season, whilst he remained at the watering place, and gave them an out-building in which to reside. During his absence they were left in charge of the place. After 1853, Lowber seems not to have returned, but to bave leased the premises to others. The plaintiff and her then husband remained on the place in the house assigned them by Lowber until the death of the husbaud. It does not appear that Lowber’s tenants, who occupied the place from 1853 to 1856 or 1857 interfered with plaintiff’s occupancy of the out house. In 1856 or 1857, Lowber sold the property to J. F. A. Boyle, and the plaintiff married again and went to live with her present husband, Pujol. She, however, suffered some effects of the value of $40 or $50 to remain in the building which she lrept locked. Boyle being desirous of removing the out house nearer his dwelling, employed Burlingame, the defendant, to remove it. The latter entered the building by opening a window, and the plaintiff’s effects were placed in the coach house, another building on the same place. It does not appear that the goods were damaged by such removal. Burlingame took the roof off the building, and moved the same as intended by Boyle.

It is quite clear from the whole testimony that plaintiff did not have possession of the property as tenant. It was not expected that she or her husband should pay rent, and she never did pay rent, although a bill was presented her after she had been notified to leave the premises and she refused to go.

The solution of the question to be decided in this case depends upon the fact whether the plaintiff held the possession of the property. We think the only possession she ever had of the property was that of an agent of the owner. -She never had any adverse possession. Hence when Boyle acquired the property he acquired the possession of the out-buildings as well as the dwelling and he had the right to remove plaintiff’s effects to any other safe place or even to notify her to take them away. A person employed to retain possession for the owner, cannot be permitted to defeat the object for which he was employed, and the moment he resists the entry of the owner he becomes a trespasser. See Perret and wife v. Sanchez, 12 An. 688. There does not appear to us to be any cause of action. The goods are in Boyle’s possession and will doubtless be surrendered plaintiff on demand.

Had the plaintiff ever been a tenant at will there would have been very little merit in her action. For she had been notified to leave the premises. She had paid no rent and she had actually removed and lived elsewhere. It would be difficult to prove as a legal proposition, that the tenant, after the termination of his lease and after he had left the premises, could maintain a civil possession and prevent the entry of the owner by leaving a few effects and carrying away the keys ; for the possession of the tenant is that of the owner. C. C. 4396, 3404, 487. When, therefore, he abandons the property, it would seem he ceases to possess, and cannot prevent the lawful owner, his landlord, from entering.

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


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    Caleb Steinspring et al. v. Bennett & Sprague.
    A contract must bo uuderstood in that sense in which it will have some effect, rather than in that in which it can have none. Vt res negis valeat quamipereat.

    The Act of Congress of the 19th of June 1834, reviving the Act of the 29th of May 1830, must bo considered as embracing provisions engrafted on the latter Act by the Statute of the 23d of January 1832, under which it was not legal to assign or transfer a certificate of purchase from the Register of the Land Office, previous to the issuing of the patent. 10 An, 597 ; 20 Howard, U. S. R,, 501.
    A patent, to whomsoever issued, inures to the benefit of him to whom the patentee would be bound to make conveyance of the legal title. 4 An., 266.
    Where a party purchases from another his interest in certain land, and a patent is obtained therefor, the former is merely an equitable owner, and as the patent by fiction of law refers back to the day of entry and takes date with it, the sale of his interest was the salo of the land itself. 21 Howard 240.
    Appeal from the District Court of the Parish of Madison, Farrar, «X.

      M. Wallace, for plaintiffs. A. R. Hynes and A. Featherman, for defendants and appellants.
   Merrick, C. J.

The plaintiffs claim title to a tract of land containing one hundred and sixty-nine 63-100 acres, (in possession of the defendants,) as heirs at law of F. Steinspring and Ephraim Sprewell, deceased.

The defendants hold by alleged mesne‘conveyances from the same persons who they aver sold their interest in the lands in controversy July 27, 1835, to one Walter Byrne,

The plaintiffs allege “ that the said Frederick Steinspring and Ephraim Sprewell acquired said land by purchase from the Government of the United States, on the 27th day of July, 1835, the same having been'entered in their joint names, and that said land continued the common property between them at their respective deaths, and is still common property. „

The plaintiffs produce a certified copy of the patent which purports to have been issued to Sprewell and Steinspring on the 2d day of August, 1837.

The defendants produce, as the commencement of their claim of title, two acts under private signature, in which Steinspring and Sprewell transfer to Walter Byrne, in consideration of $211 50, “ the privilege or pre-emption right granted to them under the Act of Congress passed on the 19th day of June, 1834, and laid upon fractional section of lot (No. 71, township 15, range 13, east.”

The plaintiffs contend, among other things, that this sale is void, as in contravention of the Act of Congress of 1834 reviving the Act of 1830.

The burden of proof is upon the plaintiffs to show the facts necessary to avoid defendants’ title. Their ancestors have been paid the price of the land, and therefore they should show affirmatively that there was some legal obstacle to the transfer of title.

If their ancestors paid the price to the Government and obtained certificates bn the day they allege they acquired the land by purchase, then, on the production, of defendants’ title, in the absence of other proof, the law will presume the sales were made afterwards on the same day. Ut res negis valeat quampereat. 3 An. R. 363.

fn The testimony of James 31. Carter, taken by defendants, shows the fact is in accordance with the presumption, and that the parties all being present at Monroe, Byrne furnished the money to make the payment, and that the transfers were then made. The presumption and proof bring the case within the principle settled in the case oí. Marks v. Dickson, 10 An. 598, and 20 Howard’s U. S. R. 501.

The patent produced by the plaintiffs would lead to the supposition that the parties were mistaken as to the nature of the rights of Steinspring and Sprewell, for it recites the payment£was made under the Act of 24th April, 1820, (3 Stat. at Large, p. 566,) which allows of'the ordinary entries.

But whether the purchase was made undér the latter act or the pre-emption law of 1834 reviving the act of 1830 and the^amendment of 1832, the patent must inure to the benefit of the defendants, because plaintiffs’ ancestors were bound to make Byrne a title. See McGill v. McGill, 4 An. 266.

The acts under private signature show that Sprewell and Steinspring intended to sell, and Walter Byrne intended to acquire by those acts whatever interest the former had in the land. Art. C. C. 1840, Nos. 2, 3 and 4. As they were the equitable owners, and as the patent by fiction of law refers back to the day of entry and takes date with it, the,_sale of their interest was the sale of the land itself. 21 Howard, 240, French v. Spencer; 1 An. 426, Trudeau v. McVickars.

But if there were doubt on this subject, and the recital in the patent were to be disregarded, the case would be still with the defendants, because the Act of 1832 authorized the pre-emptors to transfer their certificates of purchase or final receipts; and the instruments offered in evidence may well be considered such transfer. 4 Statutes at Large, p. 496.

Walter Byrne having been under said act entitled to the patent, the error in issuing the same could not deprive him of his right.

It is unnecessary to consider the bill of exception taken by plaintiffs’ counsel, as the' case is with the defendants with Carter’s tenth answer rejected.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be avoided'and reversed, and that there be judgment against the plaintiffs’ demand and in favor of the defendants; and that the plaintiffs pay the costs of both Courts.


author: Buchanan, J.

text:
    George Jones v. Daniel Byrne.
    The second endorser of a promissory note, put into the hands of the plaintiff as collateral security for a greater amount than the sum advanced, is equally hound with the payee to a depositary, for the money lent upon it, with interest; and would have "been hound to any Iona fide transferee of the note before maturity, hy allowing his endorsement to he put in circulation.
    Appeal from the District Court of the Parish of Madison, Farrar, J.

      C. Janin, for plaintiff. A. B,. Hynes, for defendant and appellant.
   Buchanan, J.

Plaintiff, as holder at maturity, sues_ defendant as second in-dorser of a promissory note for $317, dated 1st May, 1852, payable six months after date, made by one Gorton, to the order of, and indorsed by H. J. Williams, and by defendant; which note was duly protested at maturity/or non-payment, and the defendant duly notified.

The defence is, that the indorsement by defendant was for the accommodation of the payee, and was known to be such by plaintiff and that said note was placed in possession of plaintiff by the’payee, aSiCollaterabsecurity'for a debt of a less sum than the face of the note, and was not received by plaintiff in the regular and ordinary course of business. Annexed to this answer, are interrogatories propounded by defendant to plaintiff. To these interrogatories plaintiff answers, that the note sued on was put in his hands by the payee, as security for the repayment of a loan, with interest at eight per cent, from date of the loan ; which loan was made by plaintiff to said payee on or about the date of the note sued on. The amount of the loan was one hundred and fifty-six dollars.

From the answers to interrogatories, which constitute the whole evidence (beside the note, protest and notices) in the case, it appears that the note in question was delivered to plaintiff by the payee and first indorser, on the day of its date, with the indorsement of the defendant upon it, for the purpose of raising money upon it; and that money was so raised, not by an assignment or transfer of the note, but by a deposit of it in the hands of the furnisher of the funds, plaintiff herein, to serve as security for the restitution of the funds thus furnished.

The defendant has allowed his indorsement to be put in circulation by the payee, and would undoubtedly be bound to any bona fide transferee of the note before maturity. He is also bound to a bona fide depositary or pledgee, like the plaintiff. But we think that his liability to the latter will be satisfied by the discharge of the debt for the security of which the note has been deposited with him.

It is, therefore, adjudged and decreed, that the judgment of the Court below be affirmed, with the following amendment: that the defendant and appellant shall be entitled to have satisfaction of this judgment entered by paying into the hands of the Sheriff one hundred and fifty-six dollars, with interest on said sum at the rate of eight per cent, per annum from the first May, 1852, until paid, and costs of the District Court; the cost of this appeal to be paid by appellee.


author: Land, J.

text:
    Martha Halloway v. Police Jury and G. F. Starns.
    Police Juries of the several parishes of this State have not the power to CQnfiscate and sell cattle running at large and belonging to citizens residing out of the parish.
    The Police Juries in the assessment of taxes on personal and real property cannot discriminate between citizens and non-residents of the parish — they are not at liberty to tax the property of nonresidents higher than that of citizens of the parish — but, on the contrary, they.are required in the exercise of the power of taxation to levy an equal and uniform tax on every species of property and on all trades and professions, in their respective parishes, which have been made tbe subjects of taxation by tbe Legislature in behalf of the State.
    An ordinance of a Police Jury making such a distinction as afore-mentioned, between the property of citizens and non-residents of the parish, is absolutely null and void.
    Appeal from the District Court of tbe Parish of Livingston, Wilson, J.

      W. E. Walker, for plaintiff. C. /. Bradley, for defendants and appellants.
   Land, J.

The Police Jury of the Parish of Livingston, in November, 1859, passed an ordinance assessing an annual tax of fifty cents per head on all cattle, horses and mules running at large in the Parish, and belonging to non-residents, or persons residing out of that parish; and provided in the ordinance for the confiscation and sale of all such cattle, and the payment of the proceeds into the Parish Treasury for the use of the parish, on the failure of the owner to pay the tax, or to remove his cattle out of the parish, after teu days’ notice from the Parish Banger.

In pursuance of the provisions of this ordinance, the Parish Banger seized and sold at public auction four head ot cattle belonging to the plaintiff, who resided in the adjoining Parish of St. Helena in this State. And the plaintiff has instituted this suit against the Police Jury and P. F. Starns, the purchaser of the cattle, to recover their value, on the ground that the oi-dinance assessing the tax and authorizing the confiscation and sale of her cattle, was illegal, unconstitutional, null and void.

Although the powers vested in the Police Julies of the several Parishes of this State are very general and almost absolute in relation to the police of cattle in their respective parishes, still the extraordinary power to confiscate and sell cattle running at large and belonging to non-resident citizens, has never been delegated to them by the Legislature, even conceding that such a power could be exercised by that body under the Constitution. Nor has the Legislature delegated to the Police Juries in the assessment of taxes on personal and real property, any power or authority to discriminate between citizens and non-residents of the parish, and to tax the property of a non-resident at a higher rate than the property of a citizen of the parish; but, on the contrary, the Police Juries are required, in the exercise of the powers of taxation, to levy an equal and uniform tax on every species of property, and on all trades and professions (in their respective parishes) which have been made the subjects of taxation by the Legislature on behalf of the State. See Revised Statutes, p. 410, sec. 19.

The ordinance in question, in assessing an annual tax of fifty cents per head upon all cattle running at large in the parish, and belonging to non-residents, is an express discrimination in the assessment of the tax between the property of citizens and non-residents of the parish, and is without any warrant or sanction in the statute law of the State, and for the want of any legal authority in the Police Jury to pass it, is absolutely null and void.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court, which is in favor of the plaintiff, be affirmed, with costs in both Courts.


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    Oran Hacket v. F. Lenares and T. J. Buffington.
    The exception of lis pmdem is only admissible when another action is pending between the same parties, for the same object and growing out of the same cause of action, before the same tribunal or one of concurrent jurisdiction. It is necessary that the parties to the suit pleaded as lis pendens should be the same, otherwise the exception should be overruled.
    In a suit between accommodation endorsers of a promissory note, where the second endorser sought to render the maker and first endorser liable to him in solido after payment of the note, and the first endorser alleged that he and the second endorser had signed the note as co-sureties — Held: That the maker was a competent witness to establish the contract of suretyship between the endor • sers of his note for his own accommodation.
    In a suit between the endorsers of a promissory note the fact that the second endorser was the endorser of a preexisting note for which this note was given in renewal, does not affect the liability of the first endorser on the note in controversy.
    Appeal from the District Court of the Parish of E. Baton Rouge, Avery, J.

      J. R. Brunot, for plaintiff and appellant. Bunn & Herron, for appellees.
   Land, J.

The plaintiff, the second endorser of a promissory note, having been sued in the same action with the maker, Felix Leñares, and the first endorser, T. J. Buffington, and having paid the judgment reudered in favor of the holder in the suit on the note, instituted the present action against the maker and first endorser in solido to recover the full amount of the judgment, interest and costs, which he had paid in the suit aforesaid.

. The first endorser, after pleading in limine litis the exception of lis pendens, which was overruled, filed his answer to the petition, and averred therein that he and the plaintiff had endorsed the note as co-sureties for the accommodation of the maker, and that the plaintiff in no event had the right to recover of him more than one half of the debt which he had paid ; and further he pleaded a tender of the amount acknowledged in his answer to be due, and deposited the same in court in satisfaction of the plaintiff’s admitted demand.

On the trial in the court below, the plaintiff reserved a bill of exceptions to the testimony of Felix Leñares, the maker of the note, offered by the defendant for the purpose of proving the alleged contract of suretyship between the endorsers, and thereby to exclude the operation of the lex mercatoria as to the liability of the first endorser to the second for the whole amount of the note ; and the plaintiff insists in this court that his bill of exceptions was well taken, and that the testimony should have been excluded.

The District Judge sustained the defence of suretyship on the testimony of the maker of the note, and rendered judgment against the first endorser for only one half of the debt.

The questions presented for our decision in the case are:

First. Whether the exception of Us pendens was admissible and should have been sustained.

Secondly. Whether the maker of the note was a competent witness to prove the contract of suretyship between the endorsers.

And Thirdly. If the maker is a competent witness, whether his testimony is sufficient to establish the alleged contract.

I. The exception of lis pendens was properly overruled. It appears that when the holder of the note, F. R. Brunot, instituted the suit above mentioned against the maker and endorsers, T. J. Buffington filed to the plaintiff’s petition, an exception, which was still undecided at the time of the commencement of this suit by the second endorser, who had paid the judgment obtained by the holder of the note ; and that the suit of Brunot is the one pleaded as lis pendens. This exception is only admissible when another action is pending between the same parties, for the same object, and growing out of the same cause of action, before the same tribunal or one of concurrent jurisdiction. But the parties to the suit pleaded as lis pendens, are different from those between whom the present action is pending. The plaintiff in the first suit is no party to this action. C. P. Art. 335, Ingram v. Richardson, 2 An. 839.

II. The maker of the note was a competent witness to prove the alleged contract of suretyship between the endorsers, because it was a question in which he had no interest either diréctly or indirectly; his liability was the same whether the contract of suretyship existed or not between the endorsers of his note, for his own accommodation.

III. The evidence of the maker is insufficient to prove the existence of a contract of suretyship, and to take the endorsement of Buffington out of the operation of the commercial law, which binds him for the payment of the whole amount of the note to the second endorser.

This evidence shows that the plaintiff consented to endorse the note for the maker, upon condition that Buffington should become the first endorser ; and the fact that the note was given in renewal of a preexisting note then due, and on which the plaintiff was bound as endorser, does not affect the legal liability of Buffington resulting from his first endorsement of the note which is now in controversy.

The judgment of the lower court is correct as to the maker, Felix Leñaren, but is erroneous as to the second endorser, T. J. Buffington, and must be amended.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment of the lower court as between the plaintiff and Felix Leñares be affirmed; and it, is further ordered adjudged and decreed, that said judgment as between the plaintiff and T. J. Buffington be avoided and reversed, and that said plaintiff recover of said Buffington the sum of six hundred and thirty-six dollars with interest-thereon at the rate of eight per cent per annum from the 6th day of May 1858, until paid, with costs in both courts.


text:
    Hugh Brown, Administrator, v. William Sadler.
    A third possessor of property which is subject to a mortgage and vendor's privilege — having been purchased ata probate sale of succession property — has no right to plead a want of registry of such mortgage where it appears that he was one of the subscribing witnesses to the procos-verbal of the sale of the property.
    At a sale of succession property, it was bought in and the purchaser gave notes for a portion of the price. This purchaser shortly afterwards sold the property and together with the administrator left the State. Another administrator having been appointed instituted a suit against the second purchaser to recover the amount of the promissory notes, and the latter answered alleging the payment of the notes, and on trial of the case produced the notes with the name of the original ven-dee erased. The Court helci: that where there was a charge of fraud made and substantiated as in this instance, against the administrator and original vendee, and where it also appeared that the latter was in indigent circumstances and without the means of paying the notes, in order to sustain this plea of payment, it was not sufficient for the defendant to produce the notes with the name of his vendee erased, but that he must also show an application of the price which he paid for the property to the extinguishment of the notes in the hands of the administrator, and the circumstances under which the notes came into bis possession.
    Appeal from the District Oourt of the Parish of East Feliciana, McVea, 3.

      R. J. Bowman, for plaintiff and appellant. McVea & Hunter, for defendant.
   Land, J.

This is an hypothecary action to enforce a mortgage and vendor’s privilege on certain real estate in the possession of the defendant, who claims title by virtue of a purchase from one Ann Gair.

The facts of the case are as follows : James Gair died in 1853, leaving a widow, who administered his estate as natural tutrix. On the 14th of March 1856, the property in dispute was sold at a Probate sale provoked by the admin-istratrix, for one third cash and the balance on a credit of one and two years, with interest at the rate of 8 per cent, per annum from date, and was adjudicated to Ann Gair at the price of $ 1150. She paid one third of the price in cash, and gave her two promissory notes at one and two years, in equal amounts for the balance, and the notes thus given were delivered to the administratrix of the succession. And on the 20th of March 1856, ten days after the Probate sale, Ann Gair sold the property adjudicated to her, to the defendant for the price of @1150 in cash ; and immediately afterwards departed for Scotland, in company with the.administratrix, Catharine Gair ; neither of whom has ever returned to this State. . '

The plaintiff soon afterwards made application for letters of administration on the succession, and having been duly appointed, he instituted this suit against the defendant' for the purpose of recovering the amount of the promissory notes given for the balance of the price of adjudication at the Probate sale.

The plaintiff alleges that Ann Gair was entirely without the pecuniary means to purchase the property adjudicated to her; that the sale was the result of a conspiracy between her and the administratrix to defraud the succession ; that the notes were fraudulently carried by the administratrix to Scotland, or were destroyed; and that in consequence of said fraudulent acts, he has been unable to obtain possession of the notes, as administrator of the succession of James Gair.

The plaintiff further alleges that the defendant, William Sadler, was well arvare from the day of the Probate sale, of the existence of the mortgage and privilege upon the property adjudicated to Ann Gair, to secure the payment of the promissory notes for the balance, of the price, and that he purchased the property from her with full knowledge of the existence of said mortgage and privilege in favor of the succession.

The defendant after pleading in his answer a general denial, specially avers that be believes that Ann Gair haS taken up the notes given by her for the purchase of the property, and thereby extinguished her debt to the succession, and that he will be able to prove the same on the trial of the cause.

The evidence shows that William Sadler, the defendant, was a subscribing witness to the proces-verbal of the sale of the property in dispute to Ann Gair, and that this sale is mentioned and referred to in the act of sale to himself; and the evidence further shows that the defendant, on the trial of the cause, adduced as proof of the payment alleged in his answer the notes given for the balance of the price, with the name of Ann Gair thereon erased. And that although the notes on their face were joint and several or in solido, they had been signed only by Ann Gair. The evidence further shows that the Probate sale of the property had not been recorded prior to the sale to the defendant, and was not recorded until the 5th day of August 1857, more than a year subsequent to the sale. And it still further shows that Ann Gair resided with her brother during his life time, and afterwards continued to reside with his widow, the administratrix, and that she did not possess any property before her purchase at the Probate sale already mentioned.

The questions which are raised for our decision are : first, whether the defendant, who was a witness to the proces-verbal of sale, which operated a mortgage and vendor’s privilege on the property adjudicated, can plead a want of registry. And second'y, whether the plea of payment contained in the defendant’s answer, (which involves a consideration of the charge of fraud against the administratrix and Ann-Gair), is sustained by the evidence.

I. The defendant cannot plead a want of registry of the mortgage, for article 3316 of the Civil Code expressly declares, that neither the contracting parties nor their heirs, nor those who are witnesses to the act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage.

II. The charge of-fraud contained in the plaintiff’s petition against the ad-ministratrix and the vendee at the probate sale, appears to be substantiated by the evidence ; and as Ann Gair was in indigent circumstances, and without the means of paying the notes, the defendant should have sustained his plea of payment by other evidence in addition to the production of the notes with the name of Ann Gair thereon erased, He should have shown an application of the price which he paid for the property, to the extinguishment of the notes in the hands of the administratrix, and should have shown the circumstances under which the notes came into his possession.

It is against the interest of the administratrix to prove the payment of the notes to herself, and for this purpose she is a competent witness for the defendant; and her testimony or that of other witnesses should have been adduced on the trial to prove the payment alleged in the defendant’s answer, in addition to the production of the notes themselves.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that this cause be remanded to the lower court for a new trial, and for further proceeding's according to law ; and that defendant and appellee pay the costs of this appeal.


author: Voorhies, J.

text:
    Olivia Andrews v. J. L. Crandell, Sheriff, et al.
    Under articles 3191, 3192, and 3193 of the C. C. a riglit of pledge exists for the keeping and feeding of horses, and a privilege upon the proceeds of their sale.
    Appeal from the District Court of the Parish of Madison, Farrar, J.

      A. R. Hynes, for plaintiff. Janies Nolan, for defendant and appellant.
   Voorhies, J.

Tne plaintiff, in her third opposition, claims a privilege on the horses and mules seized and sold by the Sheriff.

Her demand is for their board ; and the only question raised is whether, she being a livery stable keeper, the privilege attaches.

Under articles 3191, 3192 and 3193 of the Civil Code, a party is entitled to recover the expenses incurred for the preservation of property, which he has in his possession, “ whether in deposit, loan or otherwise”; and he has a right of pledge, by which he may, until reimbursed, retain the property. As a necessary consequence, the last mentioned article gives him a preference upon the proceeds of the sale.

Keeping and feeding horses must be classed among the expenses incurred for their preservation. The District Judge, therefore, held correctly that the privilege attached. Hyams v. Smith, 6 An. 362; C. C. 3184; N. C. 2102.

Merrick, C. J., absent.


author: Duffel, J.

text:
    Gustave Bouligny v. Mrs. Edward Fortier and Husband.—Mrs. Mathilde E. Fortier, Third Opponent and Intervenor.
    Tlie incapacity of the wife to contract is removed, by the assent of the husband ; but this is true only in cases where she can legally contract. For example, she can only contract with her husband in certain cases ; she cannot, except in certain enumerated cases, dispose of her dotal property ; she cannot, when there exists a community of acquests and gains between her and her husband, acquire property for her separate account. To this last rule there are exceptions ; hereafter noticed.
    The declarations of a married woman, in the generality of cases, are not binding on her unless verified, or unless she has been benefitted by the contract.
    The husband is only responsible to his wife for the amount of her paraphernal property alienated, when it is proved that he has received the price or otherwise disposed of the same for his individual interest.
    All'the effects of the spouses, not satisfactorily established to have been brought into marriage, or acquired during the marriage by inheritance or by donation made to the one or to the other particu. larly, constitute the assets of the community or partnership of acquests and gains.

      Per curiam: We have no doubt that the wife may legally make an exchange of her paraphernal property.
    The right of the wife to administer her paraphernal property and to alienate the same implies the faculty of investing or re-investing her paraphernal effects.
    All the wife's property which is not declared to be dotal is paraphernal, and the wife has the administration and the enjoyment of it, but she cannot alienate it without the authorization of her husband or of the Judge.
    Under our Code the wife has an action against her husband for the restitution of her paraphernal property.
    A wife cannot invest beyond her means, and conveyances made to the wife, on her failure to show adequateameans, or maintaining similar conveyances by reason of such adequate means' will be set aside. Various decisions re-affirmed.
    The ability of the wife to acquire, during the marriage, property in her own name and for her separate account, is an exception to the general rule, and it must, therefore, be strictly and rigidly construed ; and consequently the wife is required, not only to prove that she bad paraphernal effects at her disposal, but also that they were ample to enable her, reasonably at least, to make the new acquisition, otherwise the contract will he treated as a contract of the community. The converse of the proposition is equally true.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Johnson & Denis, and E. A. Bradford, for plaintiff. J. <& E. Bermudez and P. Soulé, for defendants. E. F. Filleul, for third opponent and intervenor.
   Duffel, J.

By public act passed before A. Mazureau, a notary public in the city of New Orleans, on the 4th of February, 1853, the third opponent, Mrs. Malhilde Labranche, duly assisted and authorized by her husband, Edmond For-tier, Jr., purchased from J. A. Livaadais, for the price of eighty thousand dollars, a plantation in the Parish of Orleans, five miles above the city of New Orleans and on the opposite side of the river Mississippi, measuring thirty-three arpents, eight toises and five feet, more or less, front to the river, and forty arpents in depth, bounded above by tbe land of Edmond Fazende, and below by that of M. Fazende; together with fifty-six slaves and seven hundred and forty-six shares of the capital" stock of the Citizens’ Bank of Louisiana, being the same property which Livau-dais had acquired from Messrs. Lacoste by act of the 26th April, 1851. To make up the above sum of $80,000, the purchaser, Mrs. Fortier, paid in cash $5,193 62, made and subscribed, on the 4th of February, 1853, three promissory notes of $8,666 66 each, to her own order and by her indorsed, payable respectively on tha 15th of February, 1856,1857 and 1858, with 6 per cent, i^eres^ from date to maturity, and 8 per cent, interest from maturity till paid,with mortgage and vendor’s privilege on the conveyed property; and for the balance of the price, the purchaser assumed the payment of the following claims, which were secured by special mortgages on the same property, to wit:

1. A loan of $14,869 18, obtained as a stockholder of the Citizens’ Bank of Louisiana, payable 1st of August, 1853, and renewable according to the charter of said bank.

2. Nine notes furnished by Livaudais to Messrs. Lacosie, his vendors as aforesaid, in part payment of his said purchase of the 26th April, 1851, two of $4,906 20J each, and one of $1,500, payable on the 1st of March, 1853, three other corresponding notes payable on the 1st of March, 1854, and three other corresponding notes payable on the 1st of March, 1855.

The act of sale to Mrs. Fortier contains the following clause : “ La Dame ac-quéreur, et le sieur Edmond Fortier son mari, déclarent expressément et reconnais-sent que l’acquisition de l’habitation, de la portion de terre, des esclaves et actions de banque sus-déerits, a été faite par la dite Dame Fortier, dans le but de faire remploi de certaines valeurs provenant de ses biens paraphernaux dont l’origine et l’existence se trouvent constatées par les actes ci-apres mentionés, savoir : sui-vant acte au rapport de Jxdes Mossy, notaire, en date du dix-neuf juin mil huit cent quarante-trois, la dite Dame Fortier a acheté de Mr. J. F. Benjamin, as-signée du sieur Edmond Fortier, 1c quart indivis d’une habitation et des esclaves y attachés, qu’elle a pris en payement de ses droits paraphernaux s’élevant a quinze mille piastres dont le sieur son mari s’était fait charge, et provenant d’une donation que lui a faite son pere le sieur Luden Labranche, par acte passé devant J. M. M. Guiramond juge, et ex-officio notaire, de la paroisse St. Charles, le vingt-huit avril mil huit cent trente. Suivant acte au rapport de Theodore Guyol, no-taire en cette ville en date du neuf janvier mil huit cent cinquante, la dite Dame Fortier a vendu le quart indivis de la dite habitation et des esclaves y attachés, á Messieurs Hermogene Babylas Labranche et Onésiphore Fictorin Labranche, pour la somme de trent mille piastres. Et suivant acte de partage fait entre les héri-tiers de feu Luden Labranche devant Daniel Clarice, jr., Recorder de la paroisse de Jefferson, le premier mai, mil huit cent quarante-sept, la dite Dame Fortier a regu quinze mille deux cent cinquante-neuf piastres et cinq sous. Desquels actes précités, il résulte que le montant des droits paraphernaux dont la Dame Fortier fait maintenant le remploi s’éleve a quarante-cinq mille deux cent neuf piastres cinq sous.”

Gustave Botiligny, the plaintiff, as holder of the last note furnished by Mrs. Fortier to her vendor Livaudais, obtained an order of seizure and sale of the plantation, slaves, &c., acquired as aforesaid on the 4th of February, 1853, and the whole property was, under said writ, adjudicated to Gustave Bouligny, on the 10th of April, 1858, for $63;400, The purchaser assumed the mortgage of the Citizens’ Bank, then reduced to $11,885, He paid in cash $1,607 50, amount of costs. He retained $11,366 86, amount, principal and interest, due him on the •writ of seizure and sale; and he also retained, under article 707 of the Code of Practice, the balance of the price, say $38,540 64, to satisfy, pro tanto, two special mortgages granted by the third- opponent to Bouligny and Ganucheau, the one for $18,000, by act before A. Mazureau, notary, on the 1st of March, 1856, and the other for $25,000, by act before P. Lacoste, notary, December 22d, 1857. This last act includes also other landed property and slaves mortgaged by Edmond Fortier, Jr., and the renunciation, by Mrs. Fortier, of her legal mortgage thereon.

The third opponent charges in her petition of intervention that there exists between her and her husband, a community of acquests and gains, and that her husband is indebted to her in the sum of $64,521 71, amount of her paraphernal property received by him and never accounted for. That the title to the Livau-dais plantation, slaves and bank stock, although taken, in her name, was in reality an acquisition for account of the community aforesaid, as she had no separate funds under her administration or control, to invest or re-invest; that the special mortgages granted on the 1st of March, 1856, and 22d of December, 1857, to Bouligny & Ganucheau, are, for the same reasons, community transactions; that she cannot legally bind herself for the debts of her husband; that she acted throughout under marital influence, and is not bound by her declarations ; that the note on which execution issued was, prior thereto, extinguished by payment.

The third opponent concludes by asking judgment against her husband for the amount claimed, with the recognition of her tacit mortgage; she also asks that the property purchased by her, and the mortgages granted by her to Bouligny & Ganucheau, be decreed to be for account of, and against, her husband or the legal community existing between her and her husband. She also asks to be paid by preference, the amount of the purchase made by Gustave Bouligny at the Sheriff’s sale aforesaid, after deducting the Citizen’s Bank’s mortgage and the costs, and judgment accordingly against Gustave Bouligny and Bouligny & Ganucheau; and her counsel, in their brief, demand in addition the nullity of her renunciation. All the above named persons were made parties to the proceedings, and no exception was taken to this mode of proceeding.

Gustave Bouligny, and Bouligny & Ganucheau, who alone contest the claims of Mrs. Fortier, contend that the third opponent was the true and sole owner of the property seized on her, and that the mortgages granted by her to Bouligny & Ganucheau are good and valid against her.

We gather from the evidence :

3. That Edmond Fortier, Jr., received on the 1st of May, 1847, the inheritance of his wife in the succession of her father, Luden Labranche, amounting to $15,259 05 ; and that on the 25th of February, 1848, he received for, and on account of his wife, the further sum of $1,762 66, being her inheritance in the succession of her sister, Catherine JDelphine Labranche, wife of Valcour Fortier.

2. That the third opponent received herself, and without the concurrence of her husband in the act, on the 10th of September, 1852, $37,500, being her share in the property originally acquired by her from the assignee of her husband, on the basis of the sale of the whole property made by her brothers, if. B. and O. V. La-branche to A. W. Walker. The last amount was received as follows : $5,000 in cash, $10,000 in six notes of $1,666 66$ each, payable, three on the 1st of September, 1853, and three on the 1st of September, 1854; two of said notes were due by H. B. Labranche, two by O. V. Labranche, and two by R. Labranche ; $22,500, in five notes of A. W. Walker of $4,500 each, payable respectively on the 1st September, 1855,1856,1857,1858 and 1859, with 6 per cent, interest from 1st September, 1852, on the four last notes. The two notes of R. Labranche, amounting to $3,333 33$, were taken up and paid by him before the date' of the sale from Livaudais to the third opponent.

3. That the four notes of H. B. and O. V. Labranche, amounting, in the aggregate to $6,666 66$ were, through the agency of Bouligny Ganucheau, discounted on the 10th February, 1853, and produced $6,056 31 ; the four first notes of Walker wore, in like manner, discounted on the 9th February, 1853, and produced $14,646 05, and the last note of Walker was likewise discounted on the 20th February, 1855, and produced $3,710 99. And those several discounts, amounting, in the aggregate, to $24,413 35 neat, constitute'the only paraphernal effects of the third opponent affected, in any manner, to the payment, in part, of her purchase of $80,000, as it is also in evidence that the $5,000 paid cash, were advanced, for that purpose, by Bouligny & Ganucheau.

4. That Bouligny <ft Ganucheau, who had married sisters of the third opponent, directed the sale to be made to the third opponent in its present shape, or at least negotiated for the same; that they, on the 3d of February, 1853, opened in their books a regular account in the name of the third opponent, which account was not, however, submitted to her before the 1st of February, 1858, nor is it shown that she was aware of its existence. The credit side contains, principally, the neat proceeds of the above described notes of Labranche and Walker, the proceeds of the personal notes, subscribed, from time to time, by the third opponent, and the proceeds of the crops made on the Livaudais plantation, and on a small adjoining place acquired by Edmond Fortier, Jr., on the 10th July, 1857, without, however, making any .discrimination. (The two places were thrown together as one plantation ; and twelve slaves bought by Edmond Fortier, Jr., on the 14th of March, 1856, and one on the 1st of April, 1856, were also worked with the other slaves of the main plantation.) The debit side, besides the price of the Livaudais plantation, or so much thereof as fell due from time to time, contains all the family, household and plantation expenses, also $972, the price of a slave sold to Hypolite Fortier, her son; $1,500, the price of a slave sold to her husband on the 1st of April, 1856; $16,200, the price of twelve slaves sold to her husband on the 14th of March, 1856 ; $1,822 60 for interest and acceptances on account of said slaves, making, iii the aggregate, $20,494 60 paid for account of Hypolite and Edmond Fortier. To which amount Bouligny & Ganucheau add, as still due on the tract of land bought on the 10th of July, 1857, by Edmond Fortier, Jr., and to be paid by the third opponent, $11,527 37.

5. That Edmond Fortier, Jr., had the full, complete and absolute control and management of the whole concern, shipping the crops and taking bills of lading in his own name; that whenever acts of mortgages or notes were required to be signed by his wife, he was written to to that effect by Bouligny <& Ganucheau; in fact, up to a very short time before the seizure of the plantation, she took no part, except to lend her signature whenever required.

Having thus, from the peculiar nature of the case, been compelled to give a full statement of the pleadings and facts, we will now proceed to draw our conclusions.

• Considering the degree of relationship which existed between the parties, the active part which Bouligny & Ganucheau took in all the transactions from their origin, and their means of knowledge, as also the manner in which they transacted and blended together the affairs, or dealings, of the third opponent and of her husband, we cannot view them in the light of third persons. C. C. 3522, No. 32; Blanchard v. Allain, 5 An. 367.

The incapacity of the wife to contract is removed by the assent of the husband (C.C. 1775, 2420,1779 ;) but this is true only in cases where she can legally contract. For example, she can only contract with her husband in certain cases. C. C.2421. She cannot, excepting in certain enumerated cases, dispose of her dotal property, C. C. 2337. She cannot, when there exists a community of acquests and gains between her and her husband, acquire property for her separate account. C. C. 2371. To this last rule we have also exceptions which will be hereafter noticed. N'or are the declarations of a married woman, in the generality of cases, binding on her, unless verified, or unless she has been benefited by the contract; and the reason is, the controlling influence which the husband is always presumed to exercise on all her acts. “Si la femme prenait, en contrac-tant, ia qualité de filie majeure, de femme divorcée, ou de veuve, le eontrat n’en serait pas morns nul; autrement ce serait ouvrir une voie pour éluder la loi. Celui qui a contracté -avec une femme, doit s’imputer de n’avoir pas connu son état. Oe n’est de la part de la femme qu’un simple dol, qui ne peut donner lieu a aucune action criminelle. C’est un mensonge, et non pas un faux caractéri-sé.” Toulier, vol. 2, No. 622; Pilcher v. Kerr, 7 An. 145; Mrs. Delery v. Her Husband et al. 7 An. 293; Mousier v. Zunts et al. 14 An. 15; Id. p. 169, and the numerous authorities therein cited; McIntosh v. Smith, 2 An. 757.

The husband is only responsible to his wife for the amount of her paraphernal property alienated, when it is proved that he has received the price, or otherwise disposed of the same for his individual interest. C. C. 2367; Olivier v. Her Husband, 6 R. 36; Succession of Hargis, 3 An. 142. This proof, under the French Code, 1450, results from the simple fact that the husband was a party to the act, and multo magis when he actually received the price. Troplong, 2,1447; Mar-cadé, 5,1450. The same rule, with certain qualifications, prevails in Louisiana. Gillett & Co. v. Deraneo et al. 6 An. 590. Hence.it results that, Edmond For-tier, Jr., having received the inheritance of his wife in the successions of her father, Luden Labranche, and of her sister, Catherine Delphine Labranche, amounting, in the aggregate, to $17,021 71, is responsible to her in that amount, unless he can show a discharge from her, or a disbursement on her account, neither of which certainly appears from the conveyance of the Livaudais property, which does not even contain a delegation. O. C. 2126 and 2188. It also results that the third opponent having, without the concurrence of her husband in the act of discharge, received her share of the Walker purchase, $37,500, her husband is not responsible therefor, unless she can establish, by legal evidence, that her husband subsequently came in possession of the same, or used it for his individual interest. And as the record does not contain such proof as to the cash payment of the Walker purchase, $5,000, and the two notes of R. Labranche, say $3,333 33J-, Edmond Fortier, Jr., will only be held responsible for the balance of the price, $29,166 66|, and this only in case the Livaudais sale be decreed to be a conveyance made to the community.

By a strict interpretation of the articles 2314, 2371, and 2374, all the effects of the spouses, not satisfactorily established to have been brought in marriage, or acquired during the marriage, by inheritance or by donation made to the one or the other particularly, constitute the assets of the community, or partnership of acquests and gains. We have already seen the exception created by the article 2421; the articles 128 and 2336 add two others. We have no doubt that the wife may legally make an exchange of her paraphernal property, although our Code does not, as the Code Napoleon, 1407, contain any provision to that effect. And it is now the well settled jurisprudence of this State, that the right of the wife to administer personally her paraphernal property and to alienate the same, (C. C. 2361 and 2367) implies the faculty of investing or re-investing her para-phernal effects. Dominguez v. Lee, 17 L. R. 299; Terrell v. Syndic, 1 Rob. 367; Gonor v. Husband, 11 Rob. 526; Stroud el al. v. Humble et al. 2 An. 930; Young v. Young, 5 An. 611; Hanna v. Pritchard, 6 An. 730; Metcalf v. Clark, 8 An. 286.

Under the French regime dotal-; as under our GiviPCotre, the property which is not deolared to be dotal, is paraphernal (C. N. 1574; C. C. 2360); and the ■wife has the administration and the enjoyment of her paraphernal property, but she cannot alienate it without the authorization of her husband or of the judge. O. N. 1576; 0. C. 2361 and 2367. And under the French conventional community, the spouses may stipulate a simple community of acquests, which would then consist of the acquisitions made during the marriage by the spouses jointly or separately, with the savings of their common industry, and the fruits and rev.enues of their separate property. 0. N. 1498; C. C. 2371. Thus it is perceived, that the provisions of our Code in relation to our legal community and the paraphernal property of the wife area combination,or at least bear a great similarity to the regime dotal and communauté réduite aux acquets. Thus, again, under the regime dotal, the husband who enjoys the paraphernal property of the wife, is liable to all the obligations of the usufructuary (C.- N. 1580); and under our Code, 2367, 2368, the wife has an action against her husband for the restitution of her paraphernal property.

The system of remploi, re-investment, is'not as ample under our Code as under the Code Napoleon, but it is sufficiently recognized to authorize us to invoke, to a certain extent, the authority of the eminent French commentators and jurists who have exhausted the subject. That the system itself is.not foreign to our laws, is apparent, among others, from the following articles of the Civil Code : 2336, 2340, 2341, 2355, 2421, and 70.

We have stated that the right of the wife to invest or re-in vest her paraphernal effects is derived from the liberal interpretations given to the articles 2361 and 2367 of the Civil Code. Were it not. so, the investment would inure to the community, and constitute the wife'a creditor of the community to the extent of the amount invested. We have searched in vain, in our Reports, for a case where the right of the wife to invest, beyond her means, was sanctioned by this Court, but we have, on the contrary, found numerous decisions either setting aside conveyances made to the wife, on her failure to show adequate means, or maintaining similar conveyances by reason of such adequate means. Ellis v. Rush, 5 An. R. 116; Squier v. Stockton, 5 An. 742; Young v. Young, 5 An. 611; Metcalf v. Clark, 8 An. 286; Pearson v. Pearson, 15 An. 119; Clark v. Norwood, 12 An. 598; Cormier v. Ryan, 10 An. 688; Bass v. Larch, 7 An. 104.

As the ability of the wife to acquire, during the marriage, property in her own name and for her separate account, is, under our jurisprudence, an exception to the general rule, (C. C. 2374) it must be, therefore, strictly and rigidly construed ; and consequently the wife is required, not only to prove that she had paraphernal effects at her disposal, but also that they were ample to enable her, reasonably, at least to make the new acquisition; otherwise, the contract will be treated as a contract of the community. Such, without doubt, would be the result in a. contestation between the creditors of the husband and the wife; and we can see no good reason to depart from the principle in the converse of the proposition, by denying to .the wife the privilege of showing the true character of the contract .because of her declarations, which, as we have already stated, do not conclude her. Prudhomme v. Edens, 6 Rob. 65; Erwin v. McCalop, 5 An.,173; Patterson v. Frazer, 5 An. 586. The authority to invest, does not carry with it the unbounded liberty to run into-wild and ruinous speculations, and was never intended to place the wife, having paraphernal property, on a footing of perfect equality with a wife separated in property by judgment or by contract, as would be the case did we hold the third opponent to her contract.

We therefore conclude that it is against the policy of the law, and the spirit and letter of our system of legal community, to sanction contracts made by the wife, under pretext of investing her paraphernal effects, when, as in thg case at bar, the amount invested bears no proportion to the value of the property substituted in its place, but on the contrary, that all such acquisitions belong to the community, saving always to the wife her action for the reimbursement of the price contributed by her.

Our notions of the necessary conditions to constitute a valid investment, are perhaps more inflexible (apart from certain forms which do not here require our notice) than those generally entertained in France, but this is due principally to the difference which marks the two systems, as will be at once perceived by reading the articles 1407 and 1408 of the Napoleon Oode. Yet we are not the less satisfied that our conclusion as to the real nature of the Livaudais purchase, would undoubtedly be the same under the French tribunals. The controlling opinion in France is, in spite of Art. 1407, N. 0., that when the property received in exchange, or acquired by way of remploi, by one of the spouses, is of double the value of the one ceded in counter exchange, or of the price invested, that the undivided half of the newly acquired property belongs of right to the community; but that when the difference is more than fifty per cent., then the property belongs either in whole, or proportionately to the community, according to the peculiar facts of each particular ease. Pothier, Trait, de la Com., part I, ch. 2, Nos. 197 and 198 ; Marcadé, verbo Cont. de Mar., vol. 5, art. 1435, par. 1; Troplong, vol. 1, 637; Duranton, vol. 14, Nos. 195 and 391.

One of the reasons assigned by Duranton is, that should it be otherwise, a husband who had sold one of his estates for 6,000 fr. could acquire an estate of the value of 40,000 fr. or more, with the funds of the community, by simply declaring in the act, that the acquisition is made to replace his conveyed property. He would thus take the profits which the community might have otherwise derived from the acquisition ; and this would be contrary to the principle of the Oode, for he ow.es to the community all his industry, all the profits which he can derive from his speculations.

It naturally follows, from our above opinion of the Livaudais purchase, that the mortgages granted by the third opponent must follow the same fate.

We express no opinion as to the validity of the renunciation made by the third opponent, on other property mortgaged by her husband, as the question was not put at issue by the pleadings.

With regard to the note on which execution issued in this case, we have come to the conclusion that the evidence does not substantiate the allegations of the third opponent.

It is, therefore, ordered, that the judgment of the District Court be reversed. It is further ordered, adjudged and decreed, that the sale of all the landed property, slaves and bank stock, made by J, A. Livaudais to the third opponent, by act before A. Mazureau, notary, in New Orleans, on the 4th of February, 1853, as also the two special mortgages granted by the third opponent on the above mentioned landed property and slaves to Bouligny & Ganucheau, the one bearing date March 1,1856, passed before the said Mazureau, and the other bearing date December 22,1857, passed before Ph. Lacoste, notary, in New Orleans, be, and the same are hereby declared to be for account of the community which then existed between the third opponent and her husband, Edmond Fortier, Jr.; and that consequently the third opponent be released from all personal liability growing out of the said acts.

It is further ordered, adjudged and decreed, that the third opponent have judgment against her said husband for the amount of her paraphernal property received by him, to wit, the sum of forty-six thousand one hundred and eighty-eight dollars and thirty-eight cents, and that her legal mortgage on all the immovable property and slaves of her husband, to secure the payment of said sum, be hereby recognized, to take effect: on May 1,1847, to secure fifteen thousand two hundred and fifty-nine dollars and five cents thereof; on February 25,1848, to secure the farther sum of seventeen hundred and sixty-two dollars and sixty-six cents thereof ; and on February 3,1853, the day of the Livaudais sale, to secure the balance, say twenty-nine thousand one hundred and sixty-six dollars and sixty-six cents.

It is further ordered, adjudged and decreed, that Gustave Bouligny, or his succession, be condemned to pay to the third opponent the amount retained in the Sheriff’s sale of the 10th April, 1858, of the property conveyed as aforesaid by J. A. Livaudais, to satisfy pro tanto the above recited mortgages in favor of Bou-ligny <& Ganucheau, to wit, the sum of thirty-eight thousand five hundred and forty dollars and sixty-four cents; which last amount, when paid as aforesaid to the third opponent, is to be credited on the judgment herein rendered against Edmond Fortier, Jr.

And in default of the above payment by Gustave Bouligny, or his succession, it is further ordered aud decreed, that the property adjudicated as aforesaid by the Sheriff, be seized and sold for cash.

It is finally ordered, that the costs of both Courts be divided and paid as follows : One-third by Edmond Fortier, Jr.; one-third by the syndic of the insolvents, Bouligny <& Ganucheau; and one-third by the succession of Gustave Bou-ligny.

Land, J., took no part in this opinion.

Merrick, O. J., absent.


text:
    Thomas B. Harper v. Johh O. Terry.
    Whore a partial payment lias been made on a judgment, and a settlement between the parties for the balance, and an alias writ of fieri facias sued out on-whicli the property of the plaintiff was sold— Held: that no action in damages could be sustained. So long as there was a balance due on the judgment, the defendant had a right to his execution for its collection.
    Where the writ issues for more than is due, the remedy is by Injunction, according totheBcvised Statutes, p. 246 sec. 3, 4.
    Appeal from the District Court of the Parish of LivingstoD, Wilson, J.

      T. A. Bartlett, for plaintiff and appellant. Whittaker & Fellows, for defendant.
   Land, J.

This is a suit to recover one thousand dollars damages, on the grouuds that the defendant illegally sued out an alias writ of fieri facias on a judgment obtained by him against the plaintiff, and illegally caused the property of the latter to be seized and advertised for sale by the Sheriff under the writ, after the judgment had been extinguished by a partial payment in money, and a settlement between the parties for the balance.

It appears that subsequently to the issue of the writ above mentioned, a pluries Ji. fa. was sued out by the defendant on his judgment against the plaintiff, and a tract of land belonging to the latter was seized and sold by the Sheriff; and that the plaintiff himself was present at the sale and became the purchaser of the property at the price of two hundred and sixty-seven dollars, which was less than the amount due on the judgment after deducting the alleged partial cash payment above mentioned. !.

These facts conclude the plaintiff from recovering damages of the defendant, for suing out the alias ft. fa., and causing a seizure to be made under it by the Sheriff. So long as there was a balance due on the judgment, the defendant had a right to his execution for its collection; and the seizure, sale and purchase by the plaintiff under the pluries writ, make conclusive proof against him of the existence of such balance, in the absence of allegation and evidence of error or mistake. And so long as the defendant had a right to issue execution on his judgment, he cannot be held liable in damages for the exercise of that right.

There is no weight in the objection that the writ issued for more than was due on the judgment, as the seizure was released by order of the defendant’s counsel; and besides, the remedy in such cases is by injunction, as provided specially by statute. See Rev. Stat. p. 246, secs. 3 and 4.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.

Merbick, C. J.*, absent.


author: Vooehies, J.

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    Geo. W. Spurlin v. Richard M. Millikin.
    Improvements upon public lands cannot form the object of a contract, where the party is not in a situation to avail himself of the preemption laws- Being a trespasser he cannot claim indemnity for his improvements.
    No suit will lie to recover back what has been paid or given in compliance with a natural obligation. C. C. 1751,1752. * ?
    Money paid for usurious interest cannot be recovered in a Court of justice. The decisions in 4 Rob. 493, and 1 An. 265, re-afflrmed.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff. DeFrance & Harper, for defendant and appellant.
   Vooehies, J.

In the spring of the year eighteen hundred and fifty-four, the defendant, then a pre-emptor on public lands, sold to the plaintiff an improvement on other public lands. The latter furnished for the purchase his two notes, each for the sum of two hundred dollars, payable to bearer.

These notes being in the hands of third persons, were taken up by the plaintiff, who gave others in renewal.

Suit is now brought to recover the amount of the two first notes, on the ground that the sale of the improvements was illegal and null, and that the vendee is consequently entitled to a repetition of the purchase money.

It appears that at the date of this transaction, whether previously or subsequently, it is difficult to determine, Sptirlin purchased public lands adjoining the land upon which were situated the improvements in question. After renting these improvements about two years, he sold them to William Barnes, who, it appears, subsequently absconded without paying the stipulated price of his purchase, .($550.)

It is well settled that the improvements upon the public lands cannot form the object of a contract, where the party is not in a situation to avail himself of the pre-emption law’s. Being a tresspasser, he cannot claim indemnity for his improvements. C. C. 1772, 1887, 1889; 3 A. 145, Wood v. Lyle, The sale from Millilcin to Spurlin was an illegal one ; and bad suit been brought by the former to compel the latter to pay the price, the demand would have been rejected.

But having paid this debt, can the plaintiff ask its repetition ? He certainly was benefitted by the transaction ; he leased and sold the premises, besides having had them in his enjoyment and possession. And, if the defendant acted illegally in this matter, the plaintiff was in no better situation by his own showing. At all events this case comes within the operation of the first section of article 0. C. 1751, classifying as natural obligations : “ Such obligations as the law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust.” In such cases, says the subsequent article (0. 0.1752) : “ No suit will lie to recover back what has been paid or given in compliance with a natural obligation.”

For reasons of general policy the law does not countenance the sale of improvements on the public lands by a party who is not in a situation to avail himself of the pre-emption laws; but there is nothing immoral or unjust in such a sale, if no undue advantage be taken of the vendee. Indeed such a sale might be the very means of enabling the latter to enter the land. A contract of this kind might, consequently, create a natural obligation, the discharge of which would be conclusive between the parties. *

Upon the same principle it has been repeatedly held that money paid for usurious interest, could not be recovered in a court of justice. 4 R. 493 ; 1 An. 265.

. In the case at bar there was unquestionably a natural obligation on the part of the purchaser to pay the stipulated price of the improvements, which were conveyed to him by the defendant. The contract was of their own seeking; and there is no proof that the latter deceived the former in this respect. The voluntary execution of the respective stipulations is a bar to this litigation.

It is, therefore, ordered and decreed, that the judgment of the District Court on the verdict of the jury, be avoided and reversed ; and that there be judgment in favor of the defendant and appellant with costs in both courts.

Merrick, C. J., absent.


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    Austin & McWilliams v. Henry E. Moore.
    In cases involving questions of fact, and where, usually, the evidence does not fully concord, no damages, as for a frivolous appeal, can be allowed.
    Appeal from the District Court of the Parish of Iberville, Avery, J.

      Samuel Mathews, for plaintiff. Zenon Labauve, for defendant.
   Duffel, J.

This case presents simple questions of facts, and we cannot say that the District Judge, who has reviewed the whole evidence with particular care, has erred in his appreciation.

In cases involving questions of facts, and where, usually, the evidence does not fully concord, no damages, as for a frivolous appeal, can be allowed.

Judgment affirmed.


author:
Voorhies, J.
     ' Merrick, C. J.

text:
    Mary M. Prendergast v. Michael Prendergast.
    Articles 1574 and 1575 of the Civil Code lay down the rules regulating the forms or formalities to he* observed in making a nuncupative will by private act. Such a will must be tested by those articles, and is subject to no other formality, 10 An. 212.
    The testator must, therefore, either dictate his will, or in the absence of such dictation, he must present the instrument, which he has caused to be written, and declare that it contains his last intentions. In other words this presentation and declaration, which is unnecessary when the will is dictated, is intended to supply the want of dictation. There is a manifest difference between dictating a will and causing it to be written. Dictation is used in a technical sense, and means to pronounce orally what is destined to be written, at the same time, by another. Such is the settled definition of this term under our jurisprudence.
    If the law requires a technical dictation, there must be a strict compliance. Nor would the courts be justified in presuming a compliance ; for in nuncupative wills by private act nothing can be taken by implication. C. C. 1640,1641; C. P. 930, 933. The decision in the case of Bordelon v. Everett, 11 An. 636, re-affirmed.
    A will cannot be annulled on ihe ground that all the formalities were carried on in the presence of the witnesses. If it will suffice to comply with some formality in their absence, a fortiori in their presence. The attendance of witnesses is intended as a sanction to the proceedings, and cannot invalidate them, in any contingency. C. C. 1642 ; Bordelon v. Baron, 11 An. 676, overruled.
    Merrick, C. J., dissenting. Article 1588 of Ihe Civil Code declares, that the formalities to which testaments are subject by the provisions of the Code, must be observed or they are null and void. There is not then any discretion left the magistrate to reason concerning the use or necessity of the formalities proscribed. It is sufficient for him that they are prescribed. Formalities are declared by the Code to be of the essence of wills, that is, essential to their validity. The law on the subject has shown the greatest care to protect the testator from surprises and captation.
    Appeal from the District Court of the Parish of E. Baton Rouge, Avery, J.

      New & Burke, for plaintiff and appellant. Dunn & Herron, for defendant.
   Voorhies, J.

The validity of the last will of Thomas Prendergast, deceased, must he tested under the provisions of articles 1574 and 1575 of the Civil Code.

These articles lay down the rules regulating the forms or formalities to be observed in making a nuncupative will by private act; and the second paragraph of the latter provides that: “ This testament is subject to no other formality than those prescribed by this and the preceding article.” 10 A. 212, Graves v. Graves.

The questions raised in this cause relate to the dictation of the will, and its presentation by the testator, accompanied by the delaration that the instrument contains bis last intentions.

The first question is whether a nuncupative will by private act, which is not written by the testator, must, in all cases, be received under his dictation. This must be answered affirmatively, for all cases arising under the first paragraph of article 1574, and negatively under the second paragraph. The former uses the expression “ from his dictation;” and the latter “ caused it to be written.”

It is true that article 1568 lays down the general rule that nuncupative testaments, which are not written by the testator himself, must be made under his dictation. But, as stated above, nuncupative testaments by private act, made under the second clause of article 1574, are specially excepted from the operation of the general rule by the last clause of the subsequent article.

The testator, must, therefore, either dictate his will; or, in the absence of .such dictation, he must present the instrument, which he has caused to be writtep, and, declare that it contains his last intentions. In other words, this presentation and declaration, which is unnecessary when the will is dictated, is intended to supply the want of dictation. This results from the very terms of the two paragraphs of the article.

There is a manifest difference between dictating a will and causing it to be written.-

Dictation is used in a technical sense and means to pronounce orally what is destined to be written at the same time by another. Such is the settled definition of this term under our jurisprudence.

But when the Code, after providing in what cases there must be a dictation, goes on stating that it will suffice if, upon complying with some additional formality, the testator causes the instrument to ' be written by another person, it is obvious that the purpose is to dispense with the technical dictation. For not only is the technical expression omitted, and words of ordinary import substituted ; but, in other passages, the lawgiver uses in this connection such expressions as: “ caused it to be committed to writing," — “written by another under his direction," etc. C. C., 1569, 1642, And, if it be true that, in these terms, there should be no difference, then the second paragraph of the article 1574 is mere tautology, with one reservation which of itself however, is sufficient to show the fallacy of such premises. That reservation would be that, although it be imperative that the will be dictated, yet the testator might make the dictation in the absence of the witnesses, to one whose agency may remain entirely unknown 1

If the law requires a technical dictation, there must be a strict compliance. Nor would the courts be justified in presuming a compliance ; for, in nuncupative wills by private act, nothing can be taken by implication. C. C. 1640, 1641. C. P. 930, 933.

To require a dictation in the absence of the witnesses is an anomaly; and the law, so construed, would contain in its bosom the germ of its own destruction.

Rules of construction are resorted to for the purpose of giving effect to the law, and not with the view of rendering it nugatory. In the case of Bordelon v. Averett, (11 A. 636), the court said : “ The nuncupative wifi, by public act, must be dictated by the testator and written by the notary as dictated; and, if under private signature, it may be written by himself, or another; but, when written by another person, it must be from his dictation, or he must have caused 'it to be written, in substance and in form, as he presents it, declaring it to contain his last will, ses derniéres volantes." The distinction is there precisely made : the testator must either dictate the will, or he must cause it to be written ; but, if he resorts to the latter mode, he must, as be presents the instrument, declare that it contains his last intentions.

Such is the doctrine of the Gode; and it is to be regretted that the ruling in the above quoted case was not adhered to in the case of Bordelon v. Barm, subsequently decided at Alexandria. (11 A. 676.) In the latter the'court held a dictation to be always indispensable under article 1568, without eveB noticing the exception introduced by the seeond paragraph of article 1575. See the case of Graves v. Graves, 10 A. 212.

We now come to another question, somewhat connected with the previous discussion, and which has never been heretofore presented to our courts.

The article says that it will suffice if the testator causes the will to be written out of the presence of the witnesses, and it is contended that, although the instrument be fn ad gjthgp respeotg regular, if it has been written in their presence, it is null and void for non-compliance, in this respect, with the letter and spirit of the law.

This doctrine is untenable. A will cannot be annulled on the ground that all the forinalitiés were carried on in the presence of the witnesses. If it will suffice to comply with some formality in their absence; a fortiori in their presence. The attendance of witnesses is intended as a sanction to the proceedings, and cannot invalidate them in any contingency. C. C. 1642.

Six witnesses signed the will of Thomas Prendergast,,deceased. By their testimony, taken down for the homologation, it appeared that this instrument, which the testator had caused to be written by one of the subscribing witnesses, was duly presented as such with the required declaration. There was, however, a conflict in the testimony of the same witnesses, when they were examined during the trial of this cause. Three of them, however, fully corroborated the former depositions upon the probate of the will. C. P. 943.

The same rules of evidence apply in this respect as in other cases, subject to the exception introduced by articles 1641 of the C. 0., and 933 of the 0. P.; and the-weight of evidence is left to the appreciation of the Judge.

There is sufficient proof in the record that the testator caused his will to be written by one of the subscribing witnesses, and that the former presented the instrument to them as his last will, declaring that it contained his last intentions. The objections raised to its validity are, therefore, unfounded.

Judgment affirmed.

' Merrick, C. J.

dissenting. The will in controversy in this case was written by one of the witnesses in the presence of the other witnesses, but the proof fails to show that it was dictated by the testatpr.

In order, therefore, to maintain the will, it is necessary to overrule the case of Bordelon v. Baron, 11 An. 676.

Having concurred in the decree in the former case, I have not yet been able to convince myself that the case was erroneously decided. Hence I feel constrained to dissent here.

It is declared by article 1588 of the Civil Code, thatthe for malities to which testaments are subject by the provisions of the Code, must be observed, or they are null and void.

There is not, then, any discretion left the magistrate to reason concerning the use or necessity of the formalities prescribed. It is sufficient for him that they are prescribed.

-It was said in the case of Babineau v. LeBlanc that Art. 1574 contemplates two forms of execution of nuncupative wills by private act, one where it is dictated in the presence of the witnesses ; the other -where the will was written by the testator, or caused to be written out of the presence of the witnesses.

The proof that this distinction exists is found in the next article which commences “ In either case ” &c., evidently referring to such distinction.

The will, it must be conceded on all sides, was not valid in the first form, if the same be necessary, because, (as it must be assumed in the absence of the requisite proof) it was not written from the dictation of the testator.

In the other form it failed in a compliance with the article, because (being written by another) it was not caused to be written by the testator “ out of the presence of the witnesses.” It is argued that this formality cannot be of any. consequence and it is considered an unheard of thing that the presence of witnesses can vitiate any instrument. It is, as I think, enough -for me that the formality is required by an express provision of law, and that formalities are declared by the Code to be of the essence of wills, that is, essential to their validity. I think that I am as much at liberty to Strike out the words “ his dictation ” from the first branch of the article as the words “ out of their presence ” in the last.

The law on the subject of wills has shown the greatest care to protect the testator from.surprises and captation, and the construction which is here given to the article, will effectually close the door to everything of the kind, and bring the article, spirit and letter, in harmony with other provisions of the Code. For it may well be supposed that there is loss opportunity to circumvent the testator in the case where he has prepared his will out of the presence of the witnesses, and where he has had abundant leisure to consider the effect of the expressions, and to correct errors and supply omissions than in the presence of the array oi five witnesses, where the spirits of the most self-possessed are liable to be flurried. In the latter case, an adroit suggestion, or even a question and an incautious reply might materially vary the testamentary disposition intended by the testator at the outset, an'd' thus there would be produced a will very different from the will which the testator would have dictated, sua sponte, or would have prepared out of the presence of the witnesses.


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    William Peters v. The New Orleans, Jackson & Great Northern Rail Road Company.
    The defendant undertook to transport for the plaintiff a car-load of live stock. It was bound to furnish a suitable and safe car, and it is responsible for any loss arising from neglect of duty in this particular. The mere presence of the owner did not lessen this responsibility if he had no power over the train, nor right to make any change in the disposition of the cars, which were necessarily under ths control of the agents of the Company.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      H. Duncan and P. Childress, for plaintiff. Michel & Koontz, for defendants and appellants.
   Merrick, C. J.

This suit is brought to recover damages for the loss of forty-four head of horned cattle killed by being deprived of air in a closed car during their transportation from Amite city to New Orleans on the rail road of defendants.

It appears that the Rail Road company have open cars made expressly for transportation of cattle. They also occasionaily carry them in what are called box-cars, but it is customary to leave the doors of such cars open and to secure the openings so made by nailing slats across the same.

The company carry cattle for so much per head ; if the consignor or owner prefer, they hire the car at so much per trip. If the latter mode, (which is the least expensive) is adopted by the owner, he has permission to put on the car as many cattle as he can, provided it be not, in the opinion of the conductor, overloaded, and he travels passage free in order to take care of the cattle.

The day before the cattle were shipped, the agent at Amite City sent to the master of transportation in New Orleans for cars for their transportation. Instead of sending cattle cars, box-cars were sent to Amite_city for that purpose.

The plaintiff’s cattle, by the assistance of his hands and those belonging to the defendants, were put in a box-car on the day they were to be brought to New Orleans. The plaintiff offered to nail slats across the openings of the doors, but the agent of the company objected to the same, as he said, for want of time. Some discussion then took place 'as to the danger of shutting the doors of the cars, but the agent being of the opinion that the cattle could go safely to the next station, locked the doors, and instructed the conductor to open the car at the next station and give the cattle air or they would die. When the train arrived at Tickfaw, the next station, no key could be found with which to open the doors ; and it proceeded to Ponchatoula. Here, according to plaintiff’s witness, (to whose testimony credence was given by the District Judge) an attempt was made to force open the doors of the car with a bar of iron in order to admit air, but after one or two unsuccessful efforts, it was abandoned.

The conductor says he offered to some one of those shipping cattle that trip to put out those in the box-car at this station, and bring them to the city the next day, but his offer was refused.

He also says a consultation was held at Frenier, forty-eight miles distance from Amite city, he thinks, with the plaintiff and a Mr. Woods, and it was concluded not to open the car. At this time he says, judging from the noise, the cattle were “ full of life.” But he is partially contradicted by the witnesses Woods and Adams, who say that the cattle seemed to be dead at Ponchatoula, and they heard no noise from them afterwards.

On the arrival of the train in the city, the car was opened by an agent of the company and the cattle were found dead, with the exception of three or four calves.

It was contended in the lower court that the plaintiff was the charterer of the car, and having a right to load the car in his own way, was subject to the risk of all accidents to his property while being transported by the company.

It appears to us, however, that the defendant stood in the relation of the common carrier to the plaintiff, except so far as that relationship had been modi, fled by the agreement in this case.

The defendant undertook to transport for the plaintiff, a car load of live stock, for the sum of $22 50 freight. The company was bound to furnish a suitable and safe car, and it is responsible for any loss arising from the neglect of duty in this particular, and the mere presence of the owner does not lessen this responsibility, for he had no power over the train, no right to make any change, in the disposition of the cars which were necessarily under the control of the agents of the company. See 1 Parsons on Maritime Law, 122. Angelí on Carriers, Nos. 161, 162,165.

The proof shows that the plaintiff offered to nail slats across the doors, but, the privilege was refused him. There can, therefore, be no pretence for the assertion that the plaintiff assumed the risk of the transportation of his cattle in the boxcar. No such agreement has been proved.

It is, therefore, ordered adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.


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    Guillaume Regis v. Michel Hébert, Administrator.
    Tho right of action on a letter of credit is prescribed by the lapse of ten years ; on account for moneys advanced it is prescribed by the lapse of three years.
    Tho factor, agent, or correspondent, to whom a letter of credit is directed, and who furnishes tho person named with the amount of money specified, stands in the relation of a drawee of a bill of exchange, to the merchant who gives said letter, and so soon as he advances or furnishes tho amount of money specified, the letter of credit, like a bill of exchange paid by the drawee, becomes extinguished, and the right of action lies upon an account for moneys advanced, and not on tho letter or order to furnish the money; and it is barred by the lapse of three years.
    Appeal from the District Court of the Parish of Iberville, Avery, J.

      Samuel Mathews, for plaintiff. Zenon Labauve, for defendant and appellant.
   Land, J.

This suit is founded on a letter of credit for the recovery of the sum of two thousund two hundred and forty-three dollars against the estate of Thomas Mille, deceased.

The plaintiff alleges that on the 27th day of May 1853, Thomas Mille was a partner in the commercial firm of Degelos, Paisant & Co., domiciled and carrying on business in the city of New Orleans; that on the day and year aforesaid the firm of Degelos, Plaisant & Co., signed and delivered to one Achille Fenille a letter of credit addressed to Mr. Frederic Fonts of Paris, wherein they requested Mr. Bonis to beg of him, the plaintiff, to render said Fenille pecuniary assistance to the amount of two thousand, or twent}'-five hundred dollars for the purpose of enabling him, Fenille, to purchase wines, &e.; and that the firm added in their letter of credit that Fenille could pay the half, or the greater part of his purchases in cash, and at all events, provided the wines and other articles were consigned to their firm, they would be responsible for the amount remaining unpaid by. Fenille.

• The plaintiff further alleges that he complied with the request contained in the letter of credit, and furnished Fenille with money to the amount of two tho'usand two hundred and forty-three dollars, and moreover, caused the wines purchased by him to be shipped from Bordeaux on the 12th of December 1853, and consigned to said firm at New Orleans as desired in their letter of credit, and that the wines thus consigned to the firm of Degelos, Plaisant & Co., were received by them from the officers of the United States Custom House at New Orleans, after paying the customary duties thereon.

The plaintiff further alleges that said firm having failed to remit to him the amount advanced on the faith of their letter of credit, he drew on them in November 1854, a bill of exchange for the amount, as he was authorized to do, but that the said firm permitted his bill of exchange to be protested for non-acceptance, and also for non-payment.

The administrator of the estate of Thomas Mille, deceased, has pleaded to the action a general denial and also prescription.

The question which has been principally argued in this case by counsel, and the one on which the plea of prescription depends, is whether the plaintiff’s right of action lies on the letter of credit, or whether it only lies on an account for moneys advanced at the special instance and request of the firm of Degelos, Plaisant & Co. If the right of action is on the letter of credit, it is only prescribed by the lapse of ten years; but if it is on an account for moneys advanced, it is then prescribed by the lapse of three years, and was barred at the time of the commencement of this suit.

A special letter of credit is thus defined or rather described. The special letter of credit is when a merchant, at the request of any other man, doth write his open letter of credit, directed to his factor, agent or correspondent, giving him order to furnish such or such a man, by name, with such or such a sum of money, at one or more times, and charge it to the account of the merchant that gives the letter of credit, and takes bills of exchange or receipt for the same. Story on Bills of Exchange, Sect. 460. '

Prom this definition of a letter of credit, it appears that the money advanced by the factor, agent or correspondent to whom it is directed, is charged to the account of the merchant who gives the letter of credit, and constitutes a debt due on account, and not a debt due on the letter of credit itself. The factor, agent or correspondent to whom a letter of credit is directed, and who furnishes the person named with the amount of money specified, stands in the relation of the drawee of a bill of exchange, to the merchant who gives the letter of credit, and so soon as he advances or furnishes the amount of money specified, the letter of credit, like a bill of exchange paid by the drawee, becomes extinguished, and the right of action lies upon an account for moneys advanced, and not on the letter or order to furnish the money. Story on Bills of Exchange, Sect. 463. Erom this view of the case it results that the plaintiff’s right of action was barred by the lapse of three years, and that the plea of prescription should have been sustained.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged, and decreed, that there be judgment in favor of the defendant, with costs in both courts.