text:
    H. M. Summers v. United States Insurance, Annuity and Trust Co.
    By the terms of the application for a policy of insurance, it appeared that the slave whoso life was insured was a laborer in a tobacco warehouse, and the policy declared that he was not to be employed in a more hazardous occupation; the slave was subsequently drowned in the river Mississippi by falling from a plank whilst walking on it from a steamboat to the shore, having been sent by his master up the coast, to be employed on a sugar plantation.—Jfdtl: That as the slave was not lost while actually employed on the sugar plantation, and the master was not prohibited by the policy from removing the slave front New Orleans, except that ho could not bo taken to more southern localities, the company was liable for the loss.

      Held: That parol evidence was admissible to show that the written assignment of a policy of insurance was intended as collateral security for an obligation which had been discharged before the suit was brought oil the policy.

      Held: That testimony to show that the company would not have insured at the rate of the policy, if it had been known that the slave would have been subjected to the risk of a voyage on a steamboat, was properly refuted.
    APPEAL from tbe Fourth District Oourt of New Orleans, Price, J.

      Moise tj- Randolph, for plaintiff.

      Iliestand and Leovy, for defendants and appellants.
   Cole, J.

This suit is brought on a policy of life insurance to recover tlio amount insured, on one of the three slaves described in the policy, alleged to have become lost by means of the perils insured against.

It is insisted that defendant is not liable, because, by the terms of the application, the slaves were insured as laborers in a tobacco warehouse, and the jiolicy declares that they are not to be employed in a more hazardous occupation. That the slave was lost at Lobdell’s landing, whilst walking on the plank from the steamer Emperor to the shore. That he was then being sent by plaintiff to be employed upon a sugar plantation, which defendant avers is a more dangerous occupation than that of working in tobacco warehouses.

This defence cannot be maintained.

The slave was lost whilst a passenger on a Mississippi steamboat. There was no provision in the policy to prevent the plaintiff from removing the slave from New Orleans, except that-he could not be taken to more southern localities. Which implies, he might be conducted to more northern latitudes.

Lobdell’s landing is located further north than New Orleans.

Conceding that a sugar plantation is a more hazardous employment than tobacco warehouses ; still, the slave was not lost whilst working thereupon. lie had not reached the plantation.

If plaintiff had not had the intention of employing him upon a plantation, hut had been taking the slave at the time of his death to work in a tobacco warehouse in Virginia, there could then be no doubt of the liability of the defendant. The intention to employ Mm on a sugar plantation was not the cause of his death ; but a strong wind which caused him to lose his balance and fall in the water in passing on a plank from the steamer to the shore.

If plaintiff had accompanied the slave, he might have changed his mind after arriving at the plantation and returned with the slave to New Orleans.

There is nothing in the policy which liberates the defendant from liability on account of the intentions that plaintiff might entertain during the existence of the policy of violating its terms.

There is a bill of exceptions to the admission of the testimony of Mr. West, of the firm of Cammaclc, Squires fy West.

The policy and the application bear upon them the written assignment of the plaintiff of all his rights and interest therein to Cammaclc, Squires If West.

Mr. West testified, that neither he nor his firm had any interest therein, and had not had for a long time ; that it had been given as collateral security for an obligation that had long since been settled, and the original obligation had been extinguished before the institution of this suit.

Defendant maintains that plaintiff cannot have his action upon the policy, until he shows a written reassignment to himself.

We are of opinion, that this parol evidence did not contradict a written instrument ; it did not deny that a transfer had been made to the firm, but only that the effect of the transfer had ceased, and the firm had the right to disavow any further interest in the policy.

There is also a bill of exceptions to the opinion of the Judge rejecting testimony to show that the company would not have insured at the rate of the policy, if it had been known that the slave would have been subjected to the risk of a voyage on a steamboat.

The Judge did not err. The witnesses were not offered to explain an obscure expression in the policy, but to establish a prohibition not in the 'policy .

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    A. W. Walker v. V. Sanchez.
    Jurisdiction by our court over an absentee, bjr tbe appointment of a curator ad hoc to represent him, is only acquired when the subject-matter of the suit, and the nature of the proceeding render such an appointment proper.
    The curator ad hoc cannot, by his pleadings, invest the court with-jurisdiction when otherwise the court would have none.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore If King, for plaintiff.

      A. G. Semmes, for defendant and appellant.
   Merrick, C. J.

This suit was commenced by injunction and the appointment of a curator ad hoc to recover 21 damages alleged to have been sustained by the plaintiff, by the unlawful seizure in the State of Florida, in an attachment there issued at the suit of Sanchez against J. M. Hernandez, of one hundred and fifty-five slaves bought by plaintiff of Hernandez. The attachment was levied on the 3d day of March, 1853, and the items of damage alleged are jail fees, additional interest, counsel fees, traveling expenses, and two month’s wages of one hundred hands.

The negroes were sold by Hernandez to Wallcer, in January, 1853, and were to be delivered when Wallcer complied with the terms of sale. Prior to the levy of the attachment, the negroes were delivered to one Washington, to be delivered to Wallcer on such compliance. They, or a part of them, appear to have been under seizure under other process also when the attachment was levied.

As part of the price of the negroes, Wallcer gave, among others, four notes for $490, payable in one, two, three and four years; and one for seven thousand dollars, payable four years after date, to the order of Wallcer, and dated April 1st, 1853.

These notes were deposited with Colonel Thomas F. Hunt, of New Orleans, and on the 17th day of April, an agreement was entered into in Florida, between Sanchez and Hernandez, by which the attachment was to be released by the delivery, among other things, of the note of seven thousand dollars, then in Colonel Hunt’s hands. On the 20th of the same month, Hernandez gave Sanchez an order on Colonel Hunt for the five notes in his hands, above mentioned.

Plaintiff avers the ownership of the notes in Sanchez ; alleges that he has been informed and believes Sanehez intends to transfer the notes, and as a consequence plaintiff will not be able to collect of the same, the amount which is due him.

He prays for an injunction against Thomas F. Hunt, and for a curator ad hoc to represent Sanchez, an absentee, and that judgment be rendered against Sanchez for $7,757 21 and costs. The suit was commenced June 3d, 1853.

The curator ,ad hoc prayed for oyer of the act of sale, and excepted to the suit on the ground, that it was a suit by attachment under the disguise of an injunction ; that the bond and affidavit were insufficient, and for other causes patent on the face of the petition, and prayed that the injunction be dissolved with damages and interest, and attorney’s fees.

An answer was also filed reserving exceptions, and in the absence of instructions, denying all the allegations of .plaintiff’s petition, and alleging that defendant, by reason of the unjust and illegal proceedings of plaintiff, has sustained $2,500 damages, which the curator ad hoc claims by way of reconvention.

There was judgment in favor of plaintiff for $6,324 20 ; and it was decreed, that the injunction be perpetuated until the amount of the judgment should be paid by defendant.

The curator ad hoc has taken a devolutive appeal.

The appellant’s counsel urges, as a preliminary question, that the lower court had no jurisdiction over the demand in this case.

To this, it is replied by the counsel for the appellee, that Sanchez has never disclaimed the acts of the curator ad hoc, and that the counsel who appears in this court was retained by Sanchez personally, and that he adopts the pleas of the curator ad hoc, and is, therefore, bound by them. That none of these pleas deny the jurisdiction of the court, and that the curator ad hoc, without requiring judgment upon his exceptions, filed a reconventional demand, and thereby waived all questions as to jurisdiction.

Since the decisions in the cases of Broughton v. King and Dupuy v. Hunt, 2 Ann. 562 and 569, and the subsequent decisions of this court affirming the doctrine of those cases, the curator ad hoc cannot, by any informality of pleading, invest the court with jurisdiction which the subject-matter of the suit and nature of the proceeding do not give.

As the judgment cannot, in general, be in personam, whore the service of process has been on a curator ad hoc, the court must look to the subject-matter of the controversy in pronouncing the decree. See Stevens v. Graves, 9 An. 239; Hedrick v. Banister, 10 An. 208.

Here the plaintiff’s demand, under the most favorable view, was one sounding in damages for the wrongful seizure of his property by Sanchez. Sanchez had become the holder of certain obligations of the plaintiff not yet due. It was, therefore, not possible that compensation could have taken place, and that notes which had been discharged, were about to be put in circulation. Neither did the nature of the debt give Walker a privilege upon the notes ; and it is likewise certain that the service of an injunction upon Sanchez’s agent, Colonel Hunt, could not create one. There was then nothing in the nature of the controversy or process which could give the court jurisdiction.

But it is urged : “ If Sanchez had sued Walker on these notes, the latter had an undoubted right under the Act of 1839, amending the Code of Practice (Rev. Stat. p. 96, sec. 32), to set up his claim against Sanchez, by a plea in reconvention. The greater necessarily includes the lesser right. If Walker could prevent Sanchez from compelling him to pay the notes by judgment, a fortiori, he could prevent Sanchez from compelling him to pay them by passing them off to third persons.”

This argument admits of an answer. The conditions upon which one may set up in reconvention a demand not necessarily connected with or incidental to the main cause of action are : 1st. That the party should institute an action ; and, 2dly. That he should reside out of the parish or out of the State. Rev. Stat. p. 96, sec. 32; C. P. 375.

The first of these conditions has not happened, and may never happen, and nothing prevented Sanchez from becoming a resident of this city at the maturity of his obligations. If the conditions do not happen, and Sanchez does not submit himself to the jurisdiction of our courts, no roeonventional demand can bo instituted against a prospective demand to be based upon a state of facts which it is imagined may happen four years afterwards.

Wc conclude that the proceeding in this case, is not warranted by law.

It is, therefore, ordered, adjudged and decreed by'the court, that the judgment of the lower court be avoided and reversed; and now pronouncing such judgment as ought to have been rendered by the lower court: It is ordered that the plaintiff’s demand, including the injunction, be dismissed, as for the want of jurisdiction, and that said plaintiff pay the costs of both courts.


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    Eliza Jane Eagan and Husband v. John M. Bell, Sheriff, et al.
    The tacit mortgage of a minor for an unliquidated amount, upon property, opposes no legal impediment to the seizure and sale of such property, at the instance of a judgment creditor of the owner.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      C. Roselius and H. Dugué, for plaintiff and appellant.

      Durant & PLornor, for defendants.
   Merrick, C. J.

The opinion prepared by Mr. Justice Spofford before his resignation, is adopted as the opinion of the Court. It is as follows, viz :

Spoeeord, Ex J. This injunction suit is properly a sequel to the case of Graham. v. Eagan.

After execution was issued upon the judgment in that case and levied upon the property mortgaged to Graham by Eliza Jane Eagan, she as tutrix of her minor son sued out an injunction to stay the same, upon the ground that one-half the property thus mortgaged belonged really to said minor as heir of her former husband Robert Gray, who acquired it during the community between them; and that as to the other half which really belonged to her, the creditor was debarred from seizing it because it was affected in her hands by a tacit mortgage in favor of the said minor whose claims upon her were not yet liquidated.

The injunction was wholly dissolved upon exceptions which -went to the sufficiency of the petition.

As to one-half the property admitted by the plaintiff to belong to her in her individual right as survivor in community, the judgment dissolving the injunction was manifestly right. The minor’s tacit mortgage for an unliquidated amount offered no legal impediment to a seizure and sale of the property at the instance of a judgment creditor of the owner. C. P. 710; McHugh v. Stewart, 12 An. 361; Holmes v. Hemken, 6 Rob. 51.

But as to the half alleged to be owned by the minor James Nibloch Gray, the case is different. The district judge seems to have acted upon the impression that the plaintiffs in this cause were estopped from urging this as a ground of injunction, because the facts were known to them at the time a judgment was sought by Graham against Mrs. Eagan personally with privilege upon this property; and not having been pleaded by her as a defence to that action, these facts formed no proper ground for injunction here. That would be true were the parties really the same; but in the other suit Mrs. Eagan appeared only in her personal capacity to defend her personal rights; here she does not appear at all in her own rights, but the real plaintiff is the minor, acting through her as his legal representative; and however disagreable may be the spectacle of a party coming into court as the representative of a minor to impugn acts which she herself has done to the prejudice of her pupil’s interest, we cannot on that account suffer such illegal injury to be consummated without an investigation of the facts; the minor is not estopped by the apparent lack of good faith in the tutrix.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed; and it is now ordered, adjudged and decreed, that the injunction sued out by the plaintiffs be dissolved as to one undivided half of the property seized¡ and described in the petition, and that the sheriff be authorized to proceed, to sell the said undivided half according to law ; and it is further ordered and decreed, that as to the other undivided half of the said property, the injunction he provisionally reinstated, the exceptions to the petition being so far overruled; and upon this branch of the case it is ordered that the cause be remanded for further proceedings and a trial according to law; the costs of this appeal to be paid by the defendants and appellees, the costs in the court below and the damages to be reserved for future adjudication.


author: Cole, J.

text:
    City of New Orleans v. John T. Jeter
    After the delay has expired for citing delinquent tax payors under the Act of the Legislature of March, 20th, 1855, providing the modo of collecting city taxes, the procedings are tobe conducted by the City Attorney by virtue of the Thirty-Fifth Section of that Act. '
    The Act of the Legislature of 1855, which provides that a commission of five per cent, should be added to each tax bill for the fees of the City Attorney, was repealed by the Act of 1856.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Laville Morel, for plaintiff.

      Hiestand fy Leovy, for defendant and appellant.
   Cole, J.

This is a suit for taxes due the city of New Orleans on real estate in 1857.

There was judgment for plaintiff, and defendant has appealed.

There are two points made by appellant.

That the Assistant Oity Attorney had not the right to institute this proceeding.

The Act of the Legislature, approved March 20th, 1856, entitled, “An Act to amend an Act entitled an Act to consolidate the city of New Orleans and to provide for the government of the oity of New Orleans and the administration of the affairs thereof, ” section 107, provides that it is the duty of the Treasurer to put in suit in courts of competent jurisdiction all unpaid bills for taxes levied upon property assessed in the several districts, and that it shall be the duty of the Justice of the Peace and the Clerks of the Courts in which such suits may be brought, by an advertisement in the official journal of the city, to cite all said delinquent tax payers to appear, within fifteen days from the date of the first insertion of said advertisement, before the respective courts in which the hills are put in suit, and answer the demand contained in said tax bills; and as soon as the delay for answering, expressed in said advertisement, shall have expired, then the further proceeding in said suit shall he conducted according to law.

It appears then from this section, that from the commencement of the suit up to the time that the delay expires the city Attorney is not required to act, but that the proceedings may be conducted by the Treasurer, Justice of the Peace and Clerk of the Court.

The proper officers appear to have prosecuted the proceedings at bar up to the time that the delay expired, and as the statute does not absolutely require the motion for a default, nor mention the person who is authorised to take it, the action of the Assistant City Attorney in moving for the same can not be considered illegal.

After the delay has expired, then the proceedings are to be conducted by the City Attorney by virtue of the thirty-fifth section of said Act, except for bills for fines, dues or licenses, designated and intended by sections 103,104 and 105 of said Act, which are by section 101 to be sued for by the Assistant City Attorney.

The Act of 1853, p. 86, Session Acts, amending the consolidation Act, and making it the duty of the City Treasurer to hand all unpaid bills for taxes to the Assistant City Attorney for collection, and adding a commission of five per cent, to the amount of each bill for the fees of the Assistant City Attorney, is repealed by the said Act of 1856; consequently the part of the judgment is incorrect which allows five per cent. Assistant City Attorney’s commissions upon the amount sued for.

The Assistant City Attorney has filed in this court a remittitur for these fees, but this can not liberate plaintiff from the costs of appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, so far as it allows five per cent. Assistant City Attorney’s commissions, and a special privilege for the same upon the amount sued for; and it is further ordered and decreed, that in all other respects it be affirmed, and that plaintiff pay the costs of appeal.


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    F. W. Gustine and Wife v. New Orleans Oil Manufacturing Co. Bridge, Bartlett & Co., Garnishees.
    In tlie proceeding of garnishment the real demand in contestation is the claim of the plaintiff against the debtor and garnishee. And, on appeal, if that demand is under three hundred dollars, the appeal will be dismissed.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Hunt and Denegre, for plaintiffs.

      D. C. Labatt and T. J. Semmes, for garnishees and appellants.
   Merrick, C. J.

The plaintiffs having recovered judgment against the defendant for $204, with five per cent, interest thereon from the 30th of June, 1851, issued &fi.fa., and propounded interrogatories to Messrs. Bridge, Bartlett tj* Co. by way of garnishment.

The garnishees in their answers denied that they had any funds of the defendant in their hands, but stated that the defendant was indebted to them in the sum of $1350, and that the company had pledged certain papers, as collaterals, to pay the same; that if any thing should be left after collecting the collaterals, it will belong to defendant, but whether these assets are good or bad, or whether or not any balance will remain, it is impossible to state.

On the trial, a contract of pledge was produced, in which the property affected by the pledge appeared to be a quantity of oil, instead -of the paper named in the answer of the garnishees.

The District Judge ordered the notes and obligations mentioned in the answers of the garnishees to be delivered to the Sheriff, to satisfy the judgment against the oil company.

The garnishees appealed. The appellees contend, that this court is without jurisdiction, because the demand is under $300. The garnishees aver that their contract of pledge was for $1350, and the paper iii their hands is the proceeds of the oil which was pledged to them, and, that, if the plaintiff is permitted to absorb a part of this claim, others with small claims might do the like, and thus it would happen, that although he possess a thing within the jurisdiction of this court, yet it could never be passed upon by this court in the last resort, because it has been absorbed by a number of small claims.

It is true, that there is some force in this objection, but we think the question of jurisdiction must be tested by the demand. The demand in garnishment was not to take from the defendant any particular thing, but to discover something in his hands of sufficient value to pay the debt. The garnishees deny that they have anything, and, as a defence, set up an act of pledge as proof.

The District Judge thinks that the act of pledge does not cover the notes, and compels the garnishees to hand them over to the Sheriff, in order that an amount equal to the debt be realized.

How does it then appear that a contract over $300 in value has been annulled? How does it appear that the notes to be handed tó the Sheriff are worth over three hundred dollars ? And if the act of pledge had been disregarded how does it appear, that the garnishees have had a matter in dispute under any pleadings which could have the force of the thing adjudged within the appellate jurisdiction of this court ?

The case is different where a third person in possession of property finds himself deprived of it, by the unlawful action of the Sheriff. In demanding from the Sheriff property of more than $300 in value, he demands by his suit something within the jurisdiction of this court. But it is otherwise, where parties to a suit find themselves condemned, on account of a demand less than three hundred dollars. Eor example, a mortgage for $204 might rest upon property of many thousand dollars of value, yet there could be no appeal from the decree enforcing the mortgage and decreeing the property to be sold.

An attachment is issued by a Justice of the Peace, and for a small debt; a slave or a steamboat is attached, is this court to take jurisdiction because the thing seized is worth over $300 ?

A third person is cited, in the same case, in garnishment, and answers, that there are largo dealings between the defendant and himself, and whether there will be anything due the debtor or not will depend on the validity of a contract involving a large amount, shall the Justice of the Peace, by reason of the answer, be deprived of jurisdiction ? On the contrary, it appears to us, the real demand in contestation is the claim against the debtor, and, for the like amount, over against the garnishee.

What the garnishee sets up by way of defence to the action ought not to deprive the inferior court of jurisdiction. Buisson v. Staats, 9 An. 236.

Holding these views, we conclude that the present appeal must be dismissed for want of jurisdiction.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the cost of the appellant.


text:
    John Coleman v. The Heirs of James Ballard.
    In. an action of warranty tlio vendor will not be held liable for improvements made by the vendee on the land, after the commencement of a suit to evict him, when it is not shown that the improvements increased the value of the land or benefited the warrantor.
    APPEAL from the District Court of the Parish of St. Helena, Wilson, J.

      J. F. Thompson and P. Pond, for plaintiff.

      Penn § Martin and M. W. Smith, for defendants and appellants.
   Cole, J.

This is a suit by plaintiff against the same defendants as in No. 5015, for a larger part of the tract of land in contestation in that suit.

The sole difference between the two cases is the subject of improvements.

In the present case, plaintiff bought with a full guaranty; he has a bona fide title, and is entitled to be paid by Lydia Ann Ballard her proportion of the improvements.

A part of them were made after the commencement of this suit. These cannot be allowed, as it is not shown that they increased the value of the land or benefited Lydia A. Ballard.

¥e conclude from the evidence that three hundred and fifty dollars are a sufficient allowance for the improvements made before the commencement of this suit. Mrs. Lydia A. Ballard is responsible for one-fifth of these improvements, which is seventy dollars.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, so far as the sustaining of the injunction by the District Coutrt interferes with the title and control of Lydia Ann Ballo,rd, wife of Green B. Zachary, over one undivided fifth of the land in contestation, and so far as it recognises plaintiff as the owner of the whole of the land in dispute, and makes said Mrs. Zachary and husband liable for any of the costs of suit.

It is further ordered and decreed, that the judgment be so amended as that said Mrs. Zachary be recognised as the legal proprietor of one undivided fifth of the seventy-eight acres of land sued for, being situated in the parish of St. Helena and designated by lot No. one, section No. 4, township 4, south of range No. 1, east, the whole containing 108 acres; that she be forever quieted in her title to the same.

It is further ordered, that the judgment be so amended, that plaintiff John Coleman shall recover from Mrs. Zachary seventy dollars for her share of the improvements ; and that this judgment shall not be executory as to her, until she has paid said amount.

It is further ordered, that the judgment in all other respects be affirmed, and that the costs of appeal be paid by appellee and William Spring, one of the appellants.


author: Merrick, O. J.

text:
    Charles Deranco v. W. and J. Montgomery, Executors.
    Under the Code of 1808 the office of testamentary oxocutor oxpired at the end of the year, unless it was otherwise expressed in the will, or the term of office was prolonged by tho Judge.
    The action to compel tho executor to render his account is prescribed in ton years from tho expiration of his office.
    Tho prescription against such an action by a legatee under tho will, is not suspended because tho legacy was a conditional one, depending upon the liquidation of the estate, to ascertain its amount.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      H. R. Grandmont, for plaintiff and appellant.

      P. E. Bonford, for defendants.
   Merrick, O. J.

The present proceeding is a rule taken against two of the executors of Frederick W. Am. Ende, who died in June, 1819. The will under which they were appointed was admitted to probate in July, 1819, and the rule was commenced in December, 1857, more than thirty-eight years afterwards.

The testator left (besides his widow) a surviving partner, who seems to have managed the partnership effects after his decease. The executors were not continued in office after the expiration of the year, by the will. Now, although it is by no means proven that the executors, who had not even the seizin of the estate, took possession of the same, and ousted the widow and partner and heir of possession, we will adopt the statement of the case made by plaintiff’s counsel, for the purpose of this decision, without inquiring further into its accuracy. It is as follows:

“ Frederick W. Am. Ende, formerly a merchant of New Orleans, died in 1819, leaving the following olographic last will:
I request Messrs. R. L. Rochelle & Shiff and Messrs. William, and J. Montgomery, jointly and separately, to be my executors, and I appoint them as such.
My only brother, Christian Theobald Am. Ende, is my heir in totum, having no other nearer relations.
To Mr. John C. Lang, of Philadelphia, I bequeath the sum of one thousand ■dollars, and to Mr. Charles Deronco, the sum of six hundred dollars; these amounts to he paid out of my property, provided it exceeds the sum of eight thousand dollars.
“ The will was probated in the then Court of Probates of New Orleans, and the four executors immediately entered upon the administration of the succession. They took possession of a large amount of assets, appraised in the inventory taken by order of said court, at the sum of $59,756 99, but never accounted for the same, either to the Probate Judge, or to the instituted heir of the testator. The only vouchers of payments made by them, as shown by the record, are, 1st, a receipt of the widow of the deceased, for the sum of $999, on account of her claim under a marriage contract; and 2d, another receipt for notary’s fees. Tho will itself, for want of execution, has remained a dead letter up to the present time.
“ Two of said executors have, since, departed this life.
“ The present controversy is between Charles Deranco, one of the above legatees, and the two surviving executors, Messrs. Wrn. and J. Montgomery, and has been commenced by a rule taken by said Deranco upon them, to show cause why they should not file an account of their administration with all the proper Touchers relative thereto, and the book of accounts wiich they were bound by law to keep in their said capacity."

The object of the plaintiff in demanding an account, is to ascertain the balance which was in the hands of said executors at the end of their seizin and administration, and to know whether his right to the conditional legacy made to him by the testator has accrued, and against whom it must be exer'eised.

The defendants have excepted : 1st, that they have been fundi officio more than thirty years, having been appointed and qualified on the 8th day of July, 1819, and their office having expired in one year thereafter, and they plead the prescriptions of ten, twenty and thirty years, and 2d, that said Deranco has no interest in the succession, because, any claim he might have as a particular legatee to demand payment, or an account, has been extinguished by the prescriptions of five, ten, twenty and thirty years, which they specially plead.

On the trial of the rule on the exceptions thereto, the rule was discharged, and the plaintiff therein -appeals.

As the law stood at the time the will was admitted to probate, the office of the testamentary executor expired at the end of the year, except it was otherwise expressed in the will, or the term of office was prolonged by the Judge. Code of 1808, p. 244, Art. 166, p. 246, Arts. 169, 173; 4 Martin, 340; 5 M. 202; 7 N. S. 619; 12 L. R. 131.

This being the case, the executor could not, after the expiration of the year, be said to be any longer in court. And, being but a mandatary, nothing remained for him to do but render his account. Code of 1808, p. 246, Art. 173; ibid p. 239, Art. 140, p. 240, Arts. 142, 143; C. C. 1622, 1623, 1626.

“ L’exécuteur testamentaire est un mandataire imposé par le testatcur á ses héritiers ou légataires universels, dans le but d’obtenir une plus sure, plus exacte et plus diligente exécution de ses derniéres volontés.” Zacharie, seconde partie, livre second, § 715 ; 4 An. 570.

Then, an action must exist to compel the mandatary of the legatees to render an account. Such action was not excepted from prescription by the Old Oode, and is not excepted by the New Code of 1808, p. 486, Art. 65; C. C. 3508. This case then falls within the rule established in the case of Wilson v. McGreal, 12 An. 357, unless the prescription in this case has been interrupted or suspended.

It is contended that it is suspended, because the legacy to the plaintiff was a conditional legacy, which depends upon the liquidation of his estate, and, necessarily, the rendition of an account by the executors, and as long as an account shall not be rendered, that the legacy will continue to be an inchoate and imperfect right, not subject to proscription.

If, again, it be conceded that the legacy depended upon the settlement of the succession, in order to ascertain whether the condition upon which the legacy was to take effect had happened or not, still we think it will not benefit the plaintiff’s case, for this would not be a just cause, for supposing the continuance of the functions of the executor and prolongation of his office, but a reason rather why he should have rendered his account within the year. For it must be borne in mind, that the executor to whom the seizin hath not been granted by the will is not the debtor of the legacy. Code of 1808, p. 238; Art. 140, p. 240; Arts. 142, 148; C. C. 1623. Iiis duty is to render an account.

The action to compel the executor to render his aceount having been neither interrupted nor suspended, is not affected by the supposed condition upon the happening of which the legacy was to become exigible.

After the lapse of this long period of time without complaint on the part of the widow, the heir or legatees, it is with great propriety that the statutes of prescription should be applied. It is in cases of this kind that these statutes of repose have earned the title, patrono, generis humani.

Judgment affirmed.


text:
    State v. William Thompson, alias Robinson, and S. J. Baer.
    Whore two parties woro indicted together under the Act of the 6th of March, 1819, and there were two counts in the indictment, one charging the defendants with having inveigled, taken, stolen, and earned away a certain slave, and tlio other charging them, with having aided the same slave in running away from the service of his master, and being tried together, upon the same evidence, the jury convicted the one on the first charge, and acquitted him on the second ; and acquitted the other on the first charge, and convicted him on the second.—Held: That thero is no impossibility in the co-existence of the crimes detailed in the indictment, and the commission of them by one or more individuals at the same time, and consequently thore is no repugnancy in the counts or the findings under them.
    APPEAL from the First District Court of New Orleans, Hunt, J.

      M. A. Foute, District Attorney, for the State.

      W. D. Ilennen, for appellant.
   Cole, J.

The appellant, Baer,' together with one Thompson, was indicted under the third section of the Act of 6th March, 1819. Acts of 1819, p. 63.

That section is in the following words :

“ From and immediately after the passing of this Act, all and every person and persons who shall inveigle, steal, or carry away any negro or other slave or slaves, or shall hire, aid or counsel any person or persons to inveigle, steal, or carry away as aforesaid, any such slave, so as the owner of such slave or slaves shall be deprived of the use and benefit of such slave or slaves, or that shall aid any such slave in running away, or in departing from his master’s service, such person or persons, so offending, on conviction of any such offence, shall suffer imprisonment at hard labor, for a term not less than two, nor more than twenty years.”

The indictment contains two counts: the first charges the defendants with having inveigled, taken, stolen and carried away a certain slave named John ; and the second charges them with having aided said slave in running away and departing from the service of his master.

The accused were tried together, and upon the same evidence.

Thompson was found guilty of the first, and acquitted of the second charge, and Baer was acquitted of the first, and found guilty of the second.

A motion for a new trial, and in arrest of judgment, having been overruled, the defendants were both sentenced to five years imprisonment, at hard labor, in the penitentiary.

Baer has alone appealed.

The whole defence in this court is based upon the supposed impossibility of the coexistence of the crimes detailed in the two counts and the commission of them by one or more individuals at one and the same time.

It is urged that the statute creates two classes of offences, each clearly distinguishable from the oilier. That, under tlie first, it is a-crime to “ inveigle, steal or carry away a slave,” under the second, it is a crime to “ aid a slave in running away or departing from his master’s service.”

This statute was intended for the protection of the owners of slaves in the enjoyment of their property.

We are of opinion that one may steal a slave and at the same time may aid him in departing from his master’s service.

When a slave is stolen he is not always carried away by force, perhaps, as a general rule, the slave is induced to run away under the promise of liberty in a free State, whilst the real object of the criminal is to induce him to leave, so that he may sell him.

The crime of stealing is involved in this act, for the slave is induced by certain motives to depart, whilst the intent of the tempter is to deprive the owner of his property.

A slave being possessed of corporeal and spiritual properties may be stolen in two ways ; he may be either carried away forcibly, or his mind may be operated upon so as to induce him to leave voluntarily the service of his master, and to accompany freely the one who has influenced Mm by motives. In either case the owner loses his slave.

Two persons' may agree to steal a slave, one may operate upon Ms mind and induce him to leave the service of Ms master and to accompany the other who intends to sell Mm. The first has then, in the sense of the statute, aided the slave in running away, the second has stolen him.

The learned District Judge in his opinion says, “ the object of the law is to secure to the owner the enjoyment of slave-property.

“ The acts charged in the indictment go to deprive the owner of the enjoyment of that species of property. The offences in the two counts are of a kindred character. They produce the same mischief, and their punishment is put on the same footing, and provided for in the same section of the Act. There is no repugnancy in the counts or the findings under them.

A may inveigle away a slave, entice him away so as to deprive the master of the use and benefit of such slave, and B may in many ways aid the slave so influenced or enticed, in running away and departing from his master’s service.”

Judgment affirmed, with costs.


author: Mebrick, 0. J.

text:
    Adéle Vidal, wife of Adolph Wiltz, v. Emile Commagére et al.
    Ail Act of the Legislature, authorizing the adoption of an orphan child, with the proviso that the adoption be executed by act signed before a Notary Public, within a fixed period after the passage of the law, must bo interpreted as conferring on the adopted child all the rights of a legitimate child. An orphan so adopted will inherit the estate of those making the adoption, to the exclusion of all collateral heirs.
    from the Fifth District Court of New Orleans, Augustin, J.

      G. Legardeur, for plaintiff and appellant.

      Grivot and Purvis Dugué, for defendants.
   Mebrick, 0. J.

This controversy is between the nephews and nieces of the

deceased, and an adopted child, for the property of the succession of Felicité Blanche Power, wife of P. J. B. Vidal.

It grows out of the second section of the Act of March 15,1837, which is as follows :

Be it enacted, <fc.; “ That Pierre Jean Baptiste Vidal and Félicité Blanche Poiver, of the parish of Orleans, be authorized to adopt a young orphan child named Adéle, aged about seven years, who has been brought up by them; provided the adoption be executed by act signed before a Notary Public in said parish of Orleans, within six months after the passage of this law.”

The whole question is one of interpretation. What rights did the Legislature intend to confer upon the plaintiff, by authorizing Vidal and wife to adopt her ? What was meant by adoption? We are to suppose that the Legislature intended to confer some substantial right by its action; for it cannot be presumed that a formal exertion of the sovereign power was made for a trivial purpose.

Now, if this formal act is to be construed to confer merely a right to take the orphan into the family to reside, it gives it, as we think, a slight significance. It was a right with which no one would likely interfere, even in the absence of any action of the sovereign power..

The lawgiver has directed us to construe his words according to the most known and usual signification, except when he uses words of art, which are to be interpreted according to their received meaning and acceptation with the learned in the art to which they refer. 0. 0.15,16.

If we take the most known and usual signification of the words “ to adopt,” we find them to mean “ to take a stranger into one’s family, as son and heir; to take one who is not a child and treat him as one, giving- him a title to the privileges and rights of a child.” Webster’s Die., verbo Adopt.

If we refer to history, we find the word has a similar meaning-. Thus by shield and buckler Theodoric adopted the king of the Heruli; thus Tiberius adopted Germanicus ; and when Tiberius was himself adopted by Augustus, by adrogation Germanicus became the grandson of Augustus.

Adoption was known to the Athenians and Spartans, as well as the Romans and the ancient Germans, and was familiar to the writers of the now, if not the old Testament. Thus it is a word come down to us from many sources and of such general use, that there can be no doubt of its usual signification.

Considered as a word of art, it is unknown to the common law, but one very familiar to the civilian. See Burrill’s Law Die., verbo Adoption.

Under the Roman law, the person adopted entered into the family, and came under the power of the person adopting him. And the effect was such, that the person adopted stood not only himself in relation of child to him adopting, but his children became the grandchildren of such person. Dig., lib. 1, p. 7,1. 23, 27. The French law also admitted of adoption, and the adopted succeeded to the inheritance of the adopter. Oode Napoleon, Art. 350. It was also known to the Spanish law, and the person adopted succeeded as heir to him who adopted him. See Tit. 16, 4th Partidas.

This law became the law of Louisiana, and remained um-epealed until the adoption of the Oode of 1808. Now, when in an enabling or permissive statute, the Legislature has used a word so familiar in its ordinary acceptation, and so well known in the sources of our law, does it become the judiciary to say that it has not such meaning, because the lawgiver has not himself expressly defined the sense in which he intended the word should be taken ? Oan the court say that when he used this comprehensive word, he did not intend it as ordinarily understood ? that it only meant to place this helpless orphan under the protection of these Mends (who had thus far nourished and protected her) until she should become twenty-one years of age or be married, and that then the tie should be severed ? It is a well known rule of interpretation of statutes, in states governed by the common law, that when a common law term is used in a statute,- it shall be understood in that sense in which it was understood at common law. 1 Ld. Raym. 371, Ex parte Vincent. 26 Alabama R., 145. If so, then words having a well known signification in the sources of our jurisprudence ought to be considered as used in that sense when embodied in a statute. As has already been remarked, the former laws of Louisiana authorized adoption, and the rights conferred by those laws are known to our courts and have been the subject of discussion before this tribunal. 4 L. R. 427, Fusilier v. Massé. The lawgiver ought not to be supposed ignorant of this state of things, or to use a term in a more restricted sense than it was formerly'known to our laws; and it is a rule of interpretation, that laws on the same subject-matter may be considered, whether they be in force or repealed. Church v. Crocker, 3 Mass., 17, 21; Thayer v. Dudley, Ib. 296; Holland v. Makepeace, 8 Mass. 418; Holdbrook v. Holdbrook, 1 Pick. 248; Mendon v. Worcester, 10 Pick. 235; State v. Baldwin, 2 Baily, 541; State v. Fields, Ib. 554; Coleman v. Davidson Academy, Cooke, 258. See also 3 Zabriske R. 143, 180, and Ruckmaboye v. Mottichund, 32 Eng. Law and Equity, 84.

We conclude, therefore, that, as by the common acceptation of the word adoption, the relationship of parent and child with all the consequences of that relationskip is understood, as such was the legal meaning of the word under the former laws of Louisiana, and as such is its acceptation among civilians and those conversant with the sources of our laws, we cannot say that the Legislature used the word in a more restrained sense; in a sense not understood in common parlance, not given in any dictionary, and not known in any system of laws. As by the former laws of Louisiana, the person adopted bore the relation of child to the person adopting, and inherited his estate, so we think the Legislaturé, by the solemn expression of its will, intended to confer the same right upon the plaintiff to the estate of those who were authorized to adopt her. Smith, in his Commentaries, says, sec. 467 :

“ The laws which are in favor of that which the public good, humanity, religion, the liberty of making contracts and testaments, and other such like motives, render favorable, and those which are made in favor of any persons, are to be interpreted in as large an extent as the favor of these motives, joined with equity, is able to give them, and they are not to be interpreted strictly, nor applied in such a manner as to be turned to the prejudice of those in whose favor they were made.”

We do not think an argument unfavorable to the pretensions of the plaintiff can be drawn from the fact that in many other Acts the lawgiver has taken care to define the word adoption; for we are not advised that he has in any one of them used the term in a more restricted sense than that known to our former laws. And it may be inferred, that it was not the intention of the lawgiver to bestow upon plaintiff, by the use of the comprehensive word, adoption, any less rights than it had been in the habit of granting by other similar Acts.

The argument, that the statute must be strictly construed, because it is in derogation of the law in regard to inheritances, which law has been created and moulded by positive legislation, can have, we think, no great weight; for the argument assumes, that the statute authorizing plaintiff’s adoption only intended to grant Vidal and wife the control over the person of the plaintiff. Now, it might be assumed with equal propriety, that tutorship is regulated by general laws operating upon all persons of the same class, and that, therefore, the Legislature could not have intended, by the indefinite expression used, to give Vidal and wife control over the person of the plaintiff, and thus derogate from the laws on the subject of tutorship. Put these two arguments together, and they prove : 1st, that the Act of the Legislature did not intend to give the plaintiff any right as heir, because that would be in derogation of the law of inheritance; and, 2d, that it did not create the reciprocal relations of protector and protected, and consequent control over the person of the minor, because that would be in derogation of the general laws as to tutorship ; and thus the statute is deprived of all meaning.

The parties who applied for this statute in 1831, understood it as conferring upon the plaintiff the rights of a legitimate child. This is evident from the notarial act which they executed in the form directed by the lawgiver, wherein they declared that they adopted li irrevocably now and forever the said orphan Wine, to whom they gave the name of Adile Vidal, and they desire and intend thenceforward she shall enjoy the same rights, advantages and prerogatives, as if she had been the issue of the marriage of the parties to the act, and their legitimate child.”

And as these parties understood the law, so we doubt not it would have been unhesitatingly understood by almost every one whose mind had not been trained to the distinctions and subtleties of legal argumentation.

As the parties understood the Act, so we think the Legislature intended it to be construed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the said decree of the court, recognizing said defendants as heirs of said Felicité Blanche Power, be rescinded and annulled, and that said Adile Vidal, wife of Adolph Wiltz, be recognized as the sole heir of said deceased, and be put in possession of all the property of said succession ; and that the defendants pay the costs of both courts.


author: Lard, J.

text:
    John Murphy v. William H. Crafts.
    A partner is bound to indemnify his copartners for any loss to the firm occasioned by an act of his done in violation of the contract of partnership, unless his partners, by their acts or assent, ratify and confirm his acts which occasioned the loss.
    APPEAL from the Fourth District Court of New- Orleans, Price, J.

      Singleton c6 Clack, for plaintiff.

      Coxe & Breaux, for defendant and appellant. .
   Lard, J.

The plaintiff and defendant were commercial partners, transacting a general commission business under the name and style of Murphy & Crafts, in the city of New Orleans. Their contract of partnership was in writing, and the third article thereof, was in these words: “We will not endorse any note, draft, or give our signatures separately or collectively, except for our legitimate business purposes. Crafts, in violation of this article of the partnership agreement accepted in the partnership name, for the accommodation of his brother-in-law, John C. Robertson, of the city of Boston, bills of exchange to the amount of twelve thousand five hundred dollars. Robertson failed in business, and the firm of Murphy & Crafts lost, in consequence of these acceptances, the sum of five thousand five hundred and ninety-two dollars and ninety cents.

The principal question in this ease is, whether Crafts is liable to his partner for the loss.

Article 2774 of the Oivil Code, under the head of Partnership, declares that contracts of copartnership are regulated by the rules laid down in the title of conventional obligations, in all things not differently provided for by this article.

And Article 1920, under the head of Conventional Obligations, provides, that On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these oases damages may be given whore they have accrued, according to the rules established in the following section.”

In the following section, Article 1924 declares that “ the obligations of contracts extending to whatsoever is incident to such contracts, the party who violates them is liable, as one of the incidents of his obligations, to the payment of the damages which the other party has sustained by his default.”

Judge Story, in his Commentaries on the Law of Partnership, says : One of the most obvious duties and obligations of all the partners is, strictly to conform themselves to all the stipulations contained in the partnership articles, and also to keep within the bounds and limitations of the rights, powers, authorities and acts belonging and appropriate to the due discharge of the partnership, trade or business. Of course, every known deviation from, and every excess in, the exorcise of such rights, powers, authorities and acts, which produce any loss or injury to the partnership, are to that extent to be borne by the partner who causes or occasions the loss or injury, and he is bound to indemnify the other partners therefor. The same doctrine is recognized by Pothier as existing in the French law ; and it seems, indeed, so clearly the result of natural justice as to require no particular exposition.” See Story on Partnership, section 173.

According to these rules, the defendant is clearly bound to indemnify the plaintiff for the loss resulting from his breach of the third article of their contract of partnership, unless the same mas superseded, or waived in the course of their business, with the assent of the plaintiff. And this is the defence made by the defendant to the action; but we concur with the District Judge, that the evidence is insufficient to show that the partners came to a new arrangement, in the course <of their business, and thereby superseded article third of their contract, or that the plaintiff ratified the acceptances in favor of Robertson.

The plaintiff further claims the sum of five hundred and fifty-six dollars and thirty cents, on a different account, and we concur with the District Judge, that the same is established by the evidence.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with easts in both courts.


author: "Voorhies, J. Oole, J., Spoefoed, J.,

text:
    Bernard Soulié v. Brown, Johnson & Co.
    When a party agrees to subrogate another to his rights against his debtor, upon his paying certain specified balances, in yearly installments, which are admitted to bo due upon promissory notes, bearing interest, and which constitute the debts to the rights of which he seeks to be subrogated, and when there is no release or remission of interest expressed in, or that can be implied from the agreement—Held: That the party assuming the payment of the balances due upon the obligations, cannot be subrogated to the rights of the holder of the notes, until he has paid the interest which has accrued and is duo on thorn.
    The assumption to pay a subsisting obligation, from which interest grows, necessarily implies the payment of such interest, although not stipulated “ eo nomine.”
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. Legarcleur, for plaintiff.

      Chilton fy Harrison, for defendants and appellants.
   "Voorhies, J.

The defendants were the holders of two protested promissory notes of Alexander Lesseps, an insolvent debtor. On the 18th of July, 1853, they received from the syndic of the creditors of the insolvent, the sum of $1589 22, as a dividend on account of said notes. On the 16th of May, 1854, the parties litigant entered into a written agreement, which, after stating the above facts, and that the balance due on said notes amounted to $3,714 18, contains the following clauses, to wit:

“ And whereas Bernard Soulié, of this city, is desirous of paying the aforesaid balance still due on the said two promissory notes, and as being subrogated to the rights and privileges of the said firm of Brown, Johnson Co., as holders thereof:

Now, therefore, the said Shepherd Brcrton, for and on behalf of the said firm, does, by these presents, consent and agree to receive payment of the said balances from the said Soulié, in yearly installments of eight hundred dollars on the first of March, but without prejudice to the rights of the said firm to collect and receive any further dividend, or dividends, which may be declared and paid by the syndic of the creditors of the said Lesseps, in the meantime and before the said Soulié shall have paid said balances in full, and moreover consenting and agreeing, that by the mere fact of the payment of any and every part and portion of the said balances by the said Soulié, he shall be subrogated pro tanto, to the rights and privileges of the said Brown, Johnson & Co.: provided, however, that he shall not exercise such rights or privileges until the said firm shall have received either from him or the syndic aforesaid, or both, the full amount of the said balances.”

The record contains an admission, that the defendants purchased at the judicial sale of the property surrendered, a certain lot of ground with the improvements thereon erected, which had been for a number of years the homestead of the insolvent’s family ; that in consequence of the intervention of the plaintiff, the defendants consented to make a transfer of their adjudication for the benefit of said family. This, it would seem, was the motive or cause which gave rise to the agreement between these parties.

It is contended by the plaintiff, that this contract is one of sale for a fixed price, to wit, $3,714 18, the balance then due and which he stipulated to pay, by installments, to the defendants, who bound themselves, on receiving such payment, to make him a transfer of their claim, with subrogation, against the insolvent’s estate; and that he was consequently not bound for the payment of any interest on the installments thus stipulated to be paid by him. It must be obvious, that the contract between the parties cannot admit of any such construction. Indeed, the express stipulation for the payment, without prejudice to the rights of the defendants to the dividends, of “ said balances in full,” is utterly repugnant to the idea of a transfer of their claim to the plaintiff. The only right which the latter acquired under that agreement, was that of a conventional subrogation on the payment of the balances which he thus stipulated to pay to the defendants. A different construction would certainly not comport with the plain and obvious meaning of the language used in the act, that the plaintiff “ is desirous of paying the aforesaid balances still due on the said two promissory notes, and being subrogated to the rights and privileges of the said firm of Brown, Johnson & Co., as holders thereof.” The consent of the latter to receive payment “ in yearly installments of eight hundred dollars on the 1st of March,” can hardly be construed to mean the specific sum of $3,714 18. How could that sum be paid in yearly installments of eight hundred dollars on the 1st of March” ? But it must be obvious that the plaintiff, in order to be entitled to the right of subrogation, was bound, as a precedent condition, to pay “ the balances still due on the said two promissory notes.”

The assumption to pay a subsisting obligation from which interest grows, necessarily implies the payment of such interest, although not stipulated eo nomine. 15 La. 434. There was no release or remission of the interest in this case; nor can it be implied from the terms of the contract. C. C. 2195.

It is, therefore, ordered, that the judgment of the court below be avoided and reversed; and that there be judgment in favor of the defendants, dismissing the plaintiff’s demand at his costs in both courts.

Oole, J.,

dissenting. I am of opinion that plaintiff is not liable for interest, and think the judgment of the lower court should be affirmed.

Spoefoed, J.,

dissenting. It was correctly held in the case of the Exchange and Banking Company v. Walden, 15 La. 431, that “ the interest accruing on the principal amount of a debt secured by mortgage, and the costs necessary to enforce it, are also secured by the same mortgage, and are to be paid out of the proceeds of the sale of the property.”

But here is the case of a party, who in agreeing to subrogate another to his rights against his debtor, takes the pains to specify the sums which he claims, and upon the payment of which he agrees to make the required subrogation effectual. He does not undertake to sell a debt in general terms. He goes into a calculation so minute as to insert the sum of three dollars each for two protests, and strikes the balance at the date of the contract at the sum of' $1,629 20 for one note, and $2,084 98 for the other. He requires the other party to assume the payment of the “ aforesaid balances,” and nothing more, in yearly installments of $800, on the 1st of March. No allusion is made in the notarial act of the 16 th of May, 1854, to interest, as being due at all. .And now it is contended, that by implication in the said act, the plaintiff undertook to pay between $500 and $600 of interest said to be then due, and nearly as much more since accrued.

As there was no assumpsit on the part of Soulié to pay the debt of Lesseps, and as the defendants, Brown, Johnson fy Co., took the pains to cast the balance in dollars and cents, upon the payment whereof they bound themselves to subrogate Soulié to their rights, I think the District Judge was right in declining to add a stipulation for interest to the minute and carefully drawn contract of the parties. I find it difficult to conceive that Shepherd Brown, acting for his firm, should have forgotten an item, of several hundred dollars of interest, and inserted an item of three dollars for costs of protest. If he did not forget it, then it seems he did not intend to exact interest of Sonlié. And Soulié only bound himself to pay the balances specified in the act, which he has done, or affirmed to do.

I, therefore, think the judgment of the District Court should be affirmed.


text:
    Louis Ranson et al. v. Joseph G. Long.
    The proces verbal of a probate sale is prima facie evidence of title, without the production of the decree of the court therein recited.
    APPEAL from the District Court of the Parish of St. Charles, Burthe, J.

      St. Paul Bouny, for plaintiffs.

      A. G. Semmes, for defendant and appellant.
   Merrick, C. J.

The District Judge decided this case (a petitory action) in favor of the plaintiffs, on proof of possession of more than thirty years. But the evidence does not appear to us sufficient to establish the long prescription, as the. first written evidence of ownership which plaintiffs offer, bears date in 1827. The proof also on the subject of possession, is not very conclusive, but taking into consideration the fact that the land in controversy was a vacherie, in a part of the parish of St. Charles difficult of access, until traversed by the New Orleans, Opelousas and Great Western Railroad, and that it did not admit of any very obvious marks of possession further than has been shown, we conclude that it is not our duty to disturb the finding of our learned brother of the District Court on the question of possession. The titles exhibited, with the possession which has satisfied the District Judge, establish the usucaption of ten and twenty years in the plaintiffs. And as the confirmation to Toup’s heirs was before either of those periods, and covered the land in controversy in this case, the Act of Congress of August 18,1856, chap. 158, p. 29 of Private Acts, in favor of Ambrose Lanfear, does not defeat the acquisition of title by possession.

We are not prepared to say, that the Judge erred in giving a judgment as of nonsuit on the defendant’s claim for improvements, set up by way of reconvention. The proof is not sufficient to enable us to render a judgment in favor of the defendant on this part of the case.

We think the production of the proces verbal of the probate sale sufficient, prima facie, without producing the decree of the probate court therein recited. Reynolds v. Rouley, 2 An. 890; 6 Rob. 26; 3 An. 150; 7 La. 468; 12 La. 476; 6 Rob. 471; 1 An. 200.

The admission of title in Lanfear, was doubtless in reference to the residue of the Toup’s tract, and the petition ought to be so understood.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed; the appellant paying the costs of the appeal.


author: Merrick, 0. J.

text:
    John M. Bell, Sheriff, v. Thomas Keefe et al.
    Under our law the addition of a seal only confirms tbe signature ; it adds no obligatory force to tho instrument, when its execution is admitted or proven.
    In civil cases, an instrument under seal can be executed in blank, as well as an instrument not under seal; lienee a bond is not the less valid, because it was signed and sealed, before the occasion for its use actually arose.
    ■Where a bond, which had previously been signed in blank, was taken by tho the Sheriff, and an erasure appeared, and the amount was changed in the condition of the bond, which had either been filled up at tho time of signing, or subsequently by the person to whom it was intrusted, the ink with which tho erasuro and change in the amount was made, appearing to be the same as that used in the rest of the writing ; and when also the nature of the instrument required that the condition should bo filled up with tho amount as changed—Held: That the bond was valid and binding, that the change in the amount was necessary to complote'thc instrument, and that the Sheriff, under such circumstances, is not responsible for any abuse of authority, in filling up the bond ; but, that if there is any responsibility, it rests upou the agent entrusted with that duty by the party signing in blank.
    APPEAL from the Fourth District Oourt of New Orleans, Eggleston, J.

      Benjamin, Bradford ty Einney and C. A. Taylor, for plaintiff.

      L. M. Day, for defendant and appellant.
   Merrick, 0. J.

This suit is brought upon a twelve months bond for $10,000, being part of the price of the steamboat S. F. J. Trabue, sold by the Sheriff for $34,275.

Judgment having been rendered against the defendants for the amount of the bond, the surety Adams takes the appeal.

The grounds on which he relies for a reversal of the judgment are :

“ 1st. That the bond sued on having been signed in blank, and no authority whatever shown for filling up the same, is not a valid and legal bond.
“ 2d. That if said bond ever was valid and binding, yet as the same has been altered and changed, in a material part, the condition, since its delivery to the Sheriff', it is, therefore, null and void.”

I. Tho bond was signed by the surety in blank on the 25th day of April, 1855, to be used in his absence from the city, and appears to have been delivered to the Sheriff on the tenth day of May, three days after the Sheriff’s sale, it having been filled up as of the day of the sale. The bond purports to be executed under seal.

The appellant cites numerous authorities to show that a bond cannot be executed in blank before the contingency arises for its use, and be afterwards filled up, unless a special authorization to fill up be produced. We observe that the authorities cited on this point are from the common law courts. .They depend entirely upon the effect given by the common law to an instrument under seal. Such instrument takes effect from delivery, and when once properly executed, cannot be avoided for want or failure of consideration, because the act of sealing and delivering is a solemn recognition of what is contained in the deed. Under our law, the addition of a seal only confirms the signature. It adds no obligatory force to the instrument itself when its execution is admitted or proven. Hence in civil cases, at least, an instrument, under seal, can be executed in blank, as well as an instrument not under seal. The bond, therefore, is not the less valid because it was signed and sealed before tho occasion for its use actually arose. See Breedlove v. Johnston, 2 N. S. 517; Collins v. Welsh, 3 N. S. 82; 9 L. R. 230; State v. Judge of the First District, 19 L. R. 179.

II. In the obligatory part of the bond, the amount is filled up with the sum of ten thousand dollars. In the condition of the bond the word five was first written, and the word ten written over it. For the amount of the bond the condition ought to have been filled up either with $10,000 or $34,275.

The bond was in its present form when delivered to the Sheriff, and the question arises, whether the change made of the word “ five ” to ten ” has been sufficiently explained ; for it is in a material part of the instrument.

The defendant, in his answer, admits that he signed a bond for five thousand dollars, prior to said 7 th day of May, but alleges that it was subsequently raised to ten thousand dollars after the bond was signed, and that the filling up and material altering and raising were made without the knowledge, consent or approbation of defendant.

The signing of the bond is, therefore, distinctly admitted. Defendant intended to sign a twelve months bond.

But he says he signed one for five thousand dollars only. If the amount for which he was to be bound was mentioned in the instrument at all, it would actually be stated in the bond itself, and not the condition, which could not then well be written, for the proper matter to insert in the condition was not then known. Moreover, the defendant appears to have signed the bond immediately preceding the condition, and then, at the suggestion of some one, to have struck out such signature and signed at the right place, leaving space for the condition. The proof also shows that the obligatory part of the bond was either filled up with the sum of ten thousand dollars, at the time it was signed by the defendant, Adams, or it was in blank, and afterwards that sum was written by the person with whom the bond was entrusted. The proof further shows, that the attorneys of all the parties to the suit, agreed that the Sheriff should receive the bond of this defendant for the sum for which it was given, and the bond, as already observed, was delivered to the Sheriff precisely as it now appears. As the nature of the instrument required that the condition should be filled up with either the sum of $10,000, or $34,275, the bond is' in the form it would have been if properly executed, and the ink appearing to be the same as the rest of the writing forming the condition of the instrument, we have no difficulty in concluding that in the act of filling up the bond, the word “ five ” was written by inadvertence and the word “ ten ” as soon as the error was discovered, written over the same word, with the same ink, by some-one charged with filling up the condition. We have no doubt from the testimony, that the condition was a blank when the defendant, Adams, affixed his signature, and that both the words five and ten were written afterwards in order to complete and make the instrument conform to the wishes of the parties and the requirements of the law. The alteration, therefore, appears to be sufficiently explained. See Pipes v. Hardesty, 9 An. 152; 11 An. 327.

If there has been any abuse of authority on the part of the agents intrusted with the filling up of the instrument, they may be responsible to the defendant, but as between himself and the Sheriff, an innocent person, the loss, if any, must fall -upon the person who placed it in the power of another to occasion the loss.

Judgment affirmed.


author: Land, J.

text:
    Price, Converse & Smith v. Merritt, Risley & Co.
    The process of attachment is a harsh remedy, and parties resorting to it are held to a strict compliance with the provisions of the law authorizing it.
    Merchants whose acceptances are miniatured, and unpaid, and outstanding in the hands of third parties, are not creditors within the meaning of the term which authorizes a proceeding by attachment, nor will the insolvency of the party for whom they have accepted make them such.
    APPEAL from the Fourth District Oourt of New Orleans, Trice, J.

      Singleton & Clack, for plaintiffs and appellants.

      W. H. Hunt, for defendants.
   Land, J.

On the 8th of September, 1857, the plaintiffs commenced this suit by attachment, for the sum of twenty-five thousand nine hundred dollars and four cents, by making- affidavit, giving bond, and causing writs of attachment to issue thereon.

On the following day, the 9th of September, they filed their petition.

In the affidavit the plaintiffs affirm that the defendants, who are non-residents, are indebted to them in the sum of twenty-five thousand nine hundred and eight dollars and four cents; that said debt is not yet due, but that said defendants are about to remove their property out of the State of Louisiana before said debt becomes due.

In their petition they allege that the defendants are indebted to them in the sum of twenty-six thousand nine hundred aud sixty-seven dollars and fifty cents. That they advanced by acceptancies to said defendants the sum of twenty-three thousand nine hundred and sixty-seven dollars and fifty cents, including commissions not yet due, but for which they are liable as acceptors. That the defendants were further indebted to them, in the sum of two thousand six hundred and fifty two dollars and thirteen cents, for cash advances. And that defendants had failed and become utterly insolvent.

The Sheriff seized, under the writ of attachment, 2047 barrels of flour.

A curator ad hoc was appointed to represent the defendants, and he filed a motion to dissolve the writ of attachment on the following grounds :

First—That the plaintiffs were not the creditors of the defendants at the date of the attachment.
Secondly—That the property herein seized to w'it,-barrels of flour, was not liable to attachment, at the suit of said plaintiffs, having been shipped under express instructions to plaintiffs, to forward the same to a firm in Boston, which instructions were expressly accepted by said plaintiffs, at the time of said consignment, and prior to the issuing of said attachment.
Thirdly—That said defendants are not the owners of the property attached, and hence that said attachment ought not to stand. And,
Fourthly—That said defendants are not insolvent as alleged, and that said plaintiffs’ affidavit is unfounded in fact as to any indebtedness on the part of the defendants to said plaintiffs.

The plaintiffs claimed in their petition of the defendants a debt not due, and also a debt due, and one of the questions presented, is, whether or not the writ of attachment issued for both debts or only for the debt not due.

The debt sworn to, and for which bond was given, was the debt not due. The affidavit was made, the bond given, and the writ of attachment issued, on the 8th of September, and it was not until the day following, to wit, the 9th of September, that plaintiffs claimed of the defendants the debt alleged to be due.

The oath of the creditor as to the amount of the debt due, or to become due, is a condition precedent to the issuing of writs of attachment. 0. P. Art. 243 and amendment.

The oath as to the amount of the debt alleged to be due on the 8th of September was wanting, and the writ of attachment, consequently could not have legally issued for it.

The process of attachment is considered a harsh and severe remedy, and parties resorting to it are held to a strict compliance with the provisions of the law authorizing it.

The second question is, whether the relation of creditor and debtor existed on the 8th of September, 1857, between plaintiffs and defendants, as to the'debt alleged not to be due.

The plaintiffs claim to have been the creditors of defendants at that time, on the grounds, that they had accepted their bills to the amount mentioned, as the debt not due, and that defendants had failed and become utterly insolvent.

These acceptances had not matured, were unpaid, and outstanding in the hands of third parties at the date of the issuing of the attachment. Under these circumstances the plaintiffs were not the creditors of the defendants, in the meaning of the term which authorized a proceeding by attachment. Read v. Ware, 2 An. 498.

Nor would the mere failure of the defendants have made them such. C. C. Arts. 2047-9; Millaudon v. Foucher, 8 La. 586; Carrillo v. Bank U. S., 10 Rob. 540.

We are, therefore, of opinion that the writ of attachment of the 8th of September, was rightfully dismissed by the judgment of the District Court.

The defendants, however, were personally cited to answer the petition of the 9th of September, subsequently to the appointment of the curator ad hoc to represent them, and the suit thereby became an ordinary proceeding, as to the personal demand, and will go on, although the attachment be dismissed. Evans v. Saul, 8 N. S. 252; C. P. 258; 2 An. 498.

On the 22d of December, 1857, the plaintiffs filed a supplemental petition, with leave of the court, alleging that their acceptances of the bills of defendants, to the amount of twenty-three thousand five hundred dollars, had matured and been paid by themselves since the filing of their original petition, and made a second affidavit, obtained a new order of attachment, gave bond, and caused alias writs of attachment to issue against the property of defendants and made several parties garnishees to the action—which supplemental petition, with citation, was personally served on the defendants.

It is, therefore, necessary to remand the cause for further proceedings upon the personal demands against the defendants, and upon the alias writs of attachment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, dismissing the attachment of the 8th of September, 1857, be affirmed, and that the cause be remanded for further proceedings according to law, and that the plaintiffs pay the cost of the attachment of the 8th of September aforesaid, and the cost of this appeal.


text:
    A. Miltenberger & Co. v. A. Hetch—Aldrech & Perret, Intervenors.
    The vendor of the agricultural products of the United States, in the city of New Orleans, has, under the Actof the Legislature approved March 15th, 1855, a privilege upon such products sold, superior to all others, if exercised within five days after their delivery.
    He may waive this privilege, by stating in his order for the delivery of such produce, that it is to be delivered without vendor’s privilege.
    PPBAL from the Fifth District Court of New Orleans, Eggleston, J.

      G. Legardekr, for plaintiffs.

      St. Pawl Bowny, for intervenors and appellants.
   Land, J.

On the 4th day of April, 1856, the plaintiffs sold and delivered to the defendant Hetch, thirty-eight hogsheads of sugar, for $3169 12, payable in cash. On the eighth day of the same month of April, they caused the thirty-eight hogsheads of sugar to he sequestered, on the grounds, that they verily believed that the defendant would conceal, part with, or dispose of the sugar, and thus deprive them of their vendor’s privilege upon the same.

On the 18th of April, 1856, Aldrech & Perret, a commercial house of the city of New Orleans, intervened, and set up a privileged claim for the sum of $1580 13, on the sugar, for advances made to the defendant, for commissions, storage, &c., and alleged their right to be paid by preference over the price due to the plaintiffs.

The defendant was represented by a curator ad hoc, who filed a general denial.

It is not even pretended that the price of the sugar was paid by the defendant. The contest is, therefore, really between the plaintiffs and intervenors, and the only question before the court is, which of these two parties has the first or superior privilege, and is thereby entitled to be paid by preference to the other.

This question finds its easy solution in the Act of the Legislature approved March the 15th, 1855, and entitled “ an Act relative to privileges,” which provides that any person who may sell the agricultural products of the United States in the city of New Orleans, shall be entitled to a special lien and privilege thereon, to secure the payment of the purchase money, for and during the space of five days only, after the day of delivery ; within which time the vendor shall be entitled to seize the same, in whatsoever hands or place it may be found, and his claim for the purchase money shall have preference over all others. If the vendor gives a written order for the delivery of any .such produce, and shall say therein that it is to ho delivered without vendor’s privilege, then no lien shall attach thereto.” See Acts 1855, p. 363.

The plaintiffs caused the sugar to be seized within five days after its delivery, and there is no evidence in the record showing that they waived or renounced their privilege, on its delivery to the defendant, or afterwards.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.