author:
Labatjve, J.
     Labauve, J.

text:
    No. 1026.
    William Golding v. Steamer C. Castro and Owners.
    A juror, wlio bas been excused from serving in the panel for which he has been drawn, oannofc be summoned by the sheriff to servo as a talesman-juror in the same pane) from which he has been discharged.
    Failure of the sheriff to summon witnesses, is not good ground for a continuance, where it is shown that the party failed to give the proper directions.
    In questions of fact, where the evidence is contradictory, the verdict of the jury is entitled to weight, ,and will nofbe disturbed unless it is manifestly erroneous.
    PPEAL from the Eourth District Court of New Orleans, Théard, J.

      W. H. Hunt, for plaintiff and appellee.

      G. L. Bright, for defen. dants and appellants.
   Labatjve, J.

The plaintiff claims from the defendants the sum of §2,095 13, with interest, for a balance of an account for a propeller engine and machinery, and iron work, furnished by him to the steamer . C. Castro, and on filing the suit, he obtained a sequestration of said steamer, founded on his privilege.

The petition alleges the indebtedness to be for the engine, machinery, etc., furnished by petitioner to the steamer C. Castro, now lying in the port of New Orleans, in accordance with the terms and specifications made between petitioner and the said Negrotto, for himself as well as others, the owners of said vessel, as per bill amended and filed herewith.

The defendants excepted to the petition, on the ground that:

1. “ The allegations in the petition are too vague and general, and show no cause of action against the defendants. They pray that the plaintiff’s suit be,dismissed.”

This exception was met and answered by a supplemental petition, to which were annexed, as a part thereof, the detailed bill and the contract sued upon. This petition, being allowed by the Court without objection thereto by the defendants, cured the defects complained' of in the exception. . ,

The defendants moved to dissolve the sequestration, on the ground that the sureties on the bond were insufficient, and not such as the law requires.

The sufficiency of the sureties was proven, and the motion overruled.

The defendants pleaded the general issue, and denied specially that the plaintiff put in the vessel propeller-machinery according to the contract, and they also denied that the machinery gave the vessel a speed' Of nine miles per hour. They also averred that the machinery was insufficient and defective, aud of a very inferior class: that iron was used when copper should have been used; that the heater was defective, and no steam-pump was attached.to the machinery, etc., etc.

They reconvened, by claiming of the plaintiff the sum of $8,047 50, as damages, suffered by them in consequence of the defectiveness of the engine, machinery, etc.

The contract upon which this suit is brought, is as follows:

“ New Orleans, September 5, 1804.

“ Me. D. Negrotio — Sir:

“I agree to put into your vessel propeller machinery, of the following dimensions: , ,

“ One tubular boiler 4¿¿ feet in diameter, 73 three-inch tubes, 10 feet long; grate-bar, surface feet square, 1 18-inch cylinder, 18 inch stroke, propeller, six feet in diameter. I also agree to make the wrought iron shoe, sternpost and rudder; all of‘which I will guarantee a first-class job, and a speed of nine miles in one hour. All works in connection with the machinery to be finished; all for and in consideration of the sum of nine thousand dollars.”

(Signed) • “ Wm. Golding. ”

“This certifies the above agreements meet with my approval.”

(Signed) “D. Negrotto.”

The bill sued upon commences with:

One propeller steam engine, as per contract................$9,000 00

Here follows a series of articles of different prices, amounting together to................................................ 407 13

$9,407 13

Credit by cash and wood bill.............................., 7,312 ,00

$2,095 13

The case was submitted to a jury.

On trial of the suit below, the sheriff called as juror Henry Castande, who had been discharged by the Court on the ground that lié was the secretary of an insurance company. Defendant’s counsel claimed the right to have said juror present, and to serve as such; the Court refused this right. We think the Court did not err. The juror had been excused, right or wrong; it was not a question to be re-examined collaterally amonglitigants; such matters are left to the sound discretion of the Court.

The defendants moved for a continuance on account of- the absence of witness Willis, for whom a subpoena had been taken, but not served for want of proper directions by defendants. The Court properly refused the application.

After the introduction of the evidence and hearing, the jury brought the following verdict:

“ We, the jury, find a verdict in favor of plaintiff for two thousand -and ninety-five dollars and thirteen cents, ($2,095 13) with interest, as prated for, and against defendants.”

A motion for a new trial having been overruled, the Court, being satisfied with said verdict, gave judgment accordingly, and in solido, and the defendants took this appeal.

" On the merits of the case, there are none but questions of facts. The testimony is very contradictory and conflicting. In such a. ease as that the yerdict of the jury must have weight. Hen. 1 vol. p. 02, (6.)

So we are satisfied, under the verdict, that plaintiff has complied with •his'contract, and that defendants have failed in their defence to prove the contrary, and that the work and materials were defective.

But we,are of opinion that the verdict is wrong in allowing $9,407 13, when the suit is brought upon a contract for $9,000, and there are no allegations in the petition nor proof in the record, showing that plaintiff is entitled to more — the allowing of $407 13, beyond that, for divers items furnished, is unauthorized by the petition and evidence. The judgment must be reduced to $1,688.

The defendants complain that the jury did not pass upon their reconventional demand; and further, that they are not bound in solido.

The nature of this suit, the character of the defence in reconvention and the verdict of the jury, in this case, are similar as in the case just decided, of William Golding v. A. Riemoneng, D. Negrotto and J. Viosco, Jr., and owners of steamer America, No. 1027. Wherein we decided that the recónventional demand of defendants had been virtually rejected by.the verdict, and that the defendants are not bound insólido, but jointly.

-It 'is therefore ordered, adjudged and decreed that the judgment appealed from be reduced to sixteen hundred and eighty-eight dollars, which the said defendants are decreed to pay jointly, instead of in solido; and-that a? amended the said judgment be affirmed, the plaintiff and ‘appellee to'pajf‘costs of appeal.

•Petition for rehearing, by both parties. — There is error in the judgment of the Court. ■

The exception that the petition is vague and uncertain, should have been maintained. , -

The original petition is insufficient, for the reasons set forth in the Original brief. The Court must have thought so, for it says: “This exception was met, and answered by a supplemental petition, to which were annexed as a part thereof, the detailed bill, and the contract sued upon. This petition, being allowed by the Court without objection thereto, by the defendants, cured the defects complained of in the exception.”

We respectfully say, it did not cure the defects, for it does not appear to have,been filed in the presence of the defendants. It was only served on one of the defendants, D. Negrotto (R.p. 40) on the 2d June, six days a ter the exception Was overruled, (p. 34) and tliree days after the answer was filed to the original petition ; no default was taken against Negrotto on the Supplemental petition. The other defendants remained unaffected by the supplemental petition. The exception was tried on the original petition. • The exception was dismissed, after hearing argument of counsel, not because of the filing of the supplemental petition. R. p. 34.

In Freeland v. Lanfear, 2 N. S. 261, the Uourt said: “Supposing this amended petition, by being improperly rejected, could be viewed in the same light here as if it had been submitted to the jury, there was no issue joined on it; for the answer to the original petition certainly did not apply to the subsequent amendment. The putting the case to the jury before an answer was filed, or a conlestaiio litis formed in another way, was illegal; there was nothing for them to try.” If the defendant neglected to plead, he should, as in a case quite similar in the late Superior Court, be quickened by taking a judgment by default. Austin v. Morgan, 1 Mart. 205.

If the original petition was insufficient, the supplemental should have been served. In addition to the case just cited, we refer the Court to Levy v. Weber, 8 A. 440. The Court said: “But as it does not appear that that amendment, though material as it altered the plaintiffs’ demand, was ever served on the defendants ór put at issue, it is clear that it cannot be considered as constituting any part of the pleadings in this action.”

If the original petition, was insufficient, and the supplemental petition cured the defect, the latter should have been served. 7 N. S. 646.

In 14 A. 574, the Court said: “The new demand contained in the supplemental petition, was never put at issue, either tacitly by a default or expressly by the answer of the defendants. The amendment was material, and should have been served on the defendants, and regularly put at issue, and as it was not done, the plaintiff is presumed to have waived or abandoned it. ”

A sequestration issued on the original petition. The amendment should not have been allowed without an affidavit of the truth of the allegations of the petition. Such is the rule in injunction cases, and we see no reason why it should not be in cases of sequestration. Maillot v. Martin, 15 A. 40.

But admitting, for the sake of argument, that the supplemental petition was properly allowed, properly served, and properly put at issue, we insist that it discloses no cause of action, and ask the Court to examine it, and not to decide the point by simply stating “ the supplemental petition cured the defect.” It recites nothing, but “that he herewith files the bill for the engine and machinery, furnished by him for the steamer C. Castro, which has been seized in this suit, as well as the contract, according to the terms and specifications of which said bill is made out; and that petitioner annexes said bill and contract hereto, and makes them part of this petition.

' It does not allege that the contract was made between the plaintiff and defendants. It cannot be inferred, for the contract itself shows it was made with D. Negrotto only, (p. 40.) It nowhere appears why the plaintiff has any claim against the other defendants. There is no allegation, that the plaintiff has fulfilled the contract. To hold that the petition is insufficient, is necessarily to hold that a suit may be maintained in the District and Supreme Courts, as it may be maintained before a justice of the peace, simply upon a bill. -

The Court no doubt considered the complicated nature of this suit, the time and trouble consequent to a new trial, and probably desired-to avoid dismissing this suit for bad pleading on the part of the plaintiff. Is the Court ready to say it will relieve defendants’ counsel, hereinafter, from any such imperfect pleadings, were it possible for him to frame such pleadings. Is such a consideration legal, proper and wise. Is it not better to impress the certainty of law, rather than improperly relieve an individual case of negligence.

Vague and general allegations cannot support a petition. The cause of action, the object of demand, and the nature of the title must :be stated with such certainty as to apprise defendant of every circumstance necessary to put him on a just defense, and to bar a subsequent investigation of matters once decided. If the substance of plaintiff s case be plainly set forth, mere technicalities cannot affect it; but he must be held to his material and substantive allegations, from tlie obscurity or duplicity of which he can take no advantage to the prejudice of defendant, who will he protected when surprised. See 2 Hen. p. 1144, No. 1.

We respectfully submit that the suit should be dismissed.

The Court omitted to consider the motion, made to set aside the sequestration. The point is presented in the brief, and, if considered, should be sustained by the Court.

1. The Court erred in refusing to set aside the writ of sequestration.

The'motion to set it aside is made on the ground that the sureties on the bond are insufficient, and not such as the law requires. The bond is signed by’Drummond, Doig & Co. as sureties. The plaintiff did not offer any of the bondsmen to establish their sufficiency. He offered the depositions of Doig and Drummond, taken in the suit of W. Golding v. Steamer America, No. 15,360 of the docket of the Fourth District Court. If we succeed in showing that these depositions were inadmissible, the rule stands without any evidence to establish the sufficiency of the sureé and therefore the sequestration should be set aside. First bill of exception, R. p. 31.

Counsel for defendant, in rule, offered in evidence the testimony of Doig and Drummond, taken in the case of Wm. Golding v. Steamer America and Owners, No. 15,360 of the docket of the Court, and objection was made thereto on the ground that the testimony having been given in another suit should not be read in this suit, and the witnesses must again testify, and be subjected to another cross-examination. The objection should have been maintained.

The owners of the steamer Castro are not the same as the owners of the steamer America. By reference to the petitions of the plaintiff the Court will find that A. Riemoneng and D. Negrotto are the owners of the Castro, and A. Riemoneng, D. Negrotto and J. Viosca, Jr., are the owners of the America. By the ruling of the Court, evidence is introduced against J. Viosca, Jr., taken in a suit in which he was not a party, and without allowing him the right of cross-examination.

The causes of action have no similarity, one with the other. One is for building machinery for the steamer Castro, the other is for n ac linery for the America. -The sureties upon the bond, given in the case of the steamer America, may be sufficient for that bond, but it does not follow that they are also sufficient for the bond given in the case of the Castro, for it is an additional liability. Again, the sureties may have been sufficient when they testified in the case of the America, but it does not follow necessarily that their sufficiency continued after the time their testimony was given.

Admitting the parties and the cause of action were the same, nevertheless the evidence is not admissible unless the witness be dead or absent, or for other cause cannot be produced.

Phillips on Ev. vol. 2, ch. 1, § 7, p. 88, 3d ed. says: “It is a general rule, that evidence which a witness has given on a trial between parties, is admissible upon the subject-matter between the same parties on a subsequent trial, if the witness has died in the interim, or if he has gone abroad, and is not returned.” At page 90: “Although the parties are the same, yet if the same matters were not at issue in the former cause, the depositions are not evidence.” See also 4 N. S. 449. 7 N. S. 267, 283. 1 La. 320. 15 La. 43. 1 A. 391. 5 La. 364.

.Admitting that the evidence was properly received, the sufficiency of the sureties is not shown. Drummond, Doig & Co. are sureties, pp. 9, 10. The firm was composed of Drummond, Doig & McKenzie, p. 26. The bond was signed by Doig. A partner is not authorized to sign the name of a firm on judicial bonds. Denton v. Com’l. and R. R. Bank of Vicksburg, 13 La. 488. Thatcher v. Goff, 13 La. 362. Leckie v. Scott, 10 L. 416.

It is true, Drummond says Doig signed the bond in his presence; but it does not appear that McKenzie has any knowledge of the use made of the partnership name. Therefore, neither the partnership nor McKenzie is bound. Are Drummond and Doig sufficient? There is no evidence of their sufficiency. They testify only as to the sufficiency of the firm. The firm is not bound.

The counsel for the plaintiff endeavored to avoid this point, by stating that the rules to set aside the writ in this cause and in that of the steámer America, were tried together. This is an error on his part. The rule in the case of the America was first tried, and the evidence offered in that case only. The bond was for $19,000. Case of America, p. 42.

The evidence of the witness refers to that bond, p. 43. A judgment dismissing that rule was rendered, referring to no other cause or bond, page 50.

When the rule in the ease of the Castro came up, he offered, see noté of evidence, page 23, “ the evidence in the case of W. Golding v. Steamer America, taken on rule. ”

The Court received the evidence, not on the ground that the rules were tried together, for it was not so, but because the parties in the two cases are the same, and the securities on the two bonds are also the same.” page 32.

It is moreover true, that far from being tried together, the Court, oh the objection of plaintiff, refused to consolidate the two cases.

The sequestration should be set aside.

The third bill of exception should have been maintained. Third bill of exceptions, R. p. 64.

. The Court erred, in refusing a continuance, on account of the absence of witness Willis, R. p. 165. The Court refused, on the ground that the directions to the sheriff for the witness, Willis, were not sufficient; the directions were “for Willis inquire at No. 27 Congress street.” Capt. Arnet, the master of the Castro, says, p. 165, he resides at No. 27 ConIgress street, and that the absent witness, Willis, resides two1 or thrée doors from him, viz: at No. 23 Congress street, and that he, Arnet, does not know whether any inquiry was made at his house for Willis.” The directions were sufficiently explicit. The witness, Willis, living at No. 23, lived within one house of Capt. Arnet, No. 25 only intervening. To decide whether the directions were sufficient, propound one question, viz: Would the sheriff have found the witness, had he followed the directions? We think he would, for Arnet was the master of the steamer, and felt an interest in the result of this suit. The usual directions given are between two streets; in the present case, the sheriff was directed to Capt. Arnet, 27 Congress, and to inquire there for Willis, who lived next door; as usual, he exhibited a reckless indifference to his duties.

For these reasons, we respectfully submit that the judgment of this Court should be, dismissing the suit for insufficiency of the petition; setting aside the writ of sequestration, or remanding the cause for the testimony of Willis. The Court, in its opinion, says: “The testimony is very contradictory and conflicting; in such a case as that, the verdiet of the jury must have some weight,” and the Court cites 1 Hen. p. 92.

It is evident that the Court is not satisfied with the correctness of the verdict. That the verdict is not correct is conclusive, from the fact that the Court has reduced it. In 1 Hen. p. 92, No. 4, it is said1: “But where,although it cannot approve, the Court is not prepared wholly to dissent from the verdict, which is irreconcilable with the evidence, because confused, contradictory, or for other reasons, and justice does not seem to have been done between the parties, the case will be remanded for'a new trial.”

See numerous authorities there cited.

We are not insensible to the unreasonable weight given to the verdict of a jury, even by those who are conscious of the uncertainty of a jury’s verdict. The trial by jury is respected by the influence of prejudice and long custom, but not by experience or any reasonable conviction of its goodness. The Court cannot say the verdict in this cause is a correct one; the cause should be remanded.

On Rehearing.

Labauve, J.

In this case, a rehearing has been granted on the applications of. both parties.

On re-examining the record, the pleadings and the evidence, we have satisfied ourselves that we erred in disallowing the sum of four hundred and seven-dollars and thirteen cents, being the aggregate price of extra work and articles, furnished by ,plaintiff to the defendants.

The defendants do not dispute, but on the contrary, admit the extra .charges in their brief. They say:

The extra charges made in the hill are included in the contract price.

Besides, two witnesses proved the items, and that they were extras, and formed no .parts of the contract..

Our former decision must be changed, by striking out therefrom the decretal part.

It is therefore ordered and decreed, that the decree of our former decision be set aside. It is further ordered and decreed, that the judgment appealed from be so amended as to strike out the words “in solido,” and that the word “jointly ” be substituted in lieu thereof; and it is further decreed that the judgment of the District Court and our former decision be affirmed as amended, the plaintiff and appellee to pay the costs of this appeal. .


source: Caselaw Access Project

author: H oWell; J. Taeiaeebbo, J.

license: Public Domain

text:
    No. 1219.

    W. H. Bushnell v. City National Bank of New Orleans.
    In a suit to annul a sale,on tlie ground of fraud and simulation, or defend a seizure of property under . a writ of fieri-facias which has been enjoined, evidence of the' conversations and admissions of tho parties implicated in the fraud or simulation, is admissible when offered by the attacking creditor.
    An act of sale under private signature has no date, except that at which it is offered in evidence.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      Sheldon & Pardee,• for plaintiff.

      Kelly <& Eoioe, for defendant.
   H oWell; J.

Plaintiff has in this action, enjoined a writ of fxri facias issued in the suit of the City National Bank of New Orleans v. John Spicer, in the Third District Court of New Orleans, on the ground that he is the sole owner and possessor of the property seized, having purchased and paid for the same and placed it on a plantation, in the parish of St. Mary, leased by him, to enable him to cultivate and take off the growing crop.

The defence, besides the general denial, is that if any sale of said property or any part thereof was ever made by the said Spicer to plaintiff, ■Bushnell, it is fraudulent and simulated, and was made to protect the "property of the said Spicer from the pursuit of his creditors.

Judgment was rendered dissolving the injunction, with damages, and the plaintiff has appealed.

Our attention is called to bills of exception taken by plaintiff to the refusal of the Judge to strike out certain evidence, and to the admission of other testimony to prove the statements and admissions of Spicer, plaintiff’s vendor, on the grounds that they were made out of the presence of the plaintiff. The Judge did not err. “Evidence of the conversations and admissions of the parties implicated in a fraud or simulation, may be offered on behalf of creditors, the objection going to the effect or weight of such evidence, when the declarations are not made out of the presence of the other party.” 15 A. 177; 16 A. 88; 7 A. 138; 6 A. 675, 710; 5 A. 1.

- Objection was also made by plaintiff to the. competency of Spicer; the vendor, as a witness for defendants, on the ground of interest.5 •’

We think the objection should have been sustained. His1 interest in making the property in question liable for his debts, for which it is admitted several judgments had already been obtained, is manifest, and is a disqualifying interest as the law then existed. Gr. Ev. ££386 to 392.

The competency of the vendor as a witness, is governed by a different rule from that of the proof of his declarations.

Without the testimony of this witness, plaintiff has failed to show a title to the property as against the defendants. The acts under private signature, by which the plaintiff claims to have acquired title, being unsupported by legal proof of their execution, have no date prior to the day on which they were opposed to the defendants in court.

They may have been executed subsequent to the seizui e, to serve as evidence of plaintiff’s right or pretension, and it was incumbent on him to prove by circumstances de hors, the acts that they were made at the time they purport to have been executed. 6 N. S. 132, 332. There is proof that Spicer, the alleged vendor, was the owner and possessor, and divestiture thereof prior to the seizure has not been proved.

The presence of plaintiff on the plantation under lease, and his cbntrol as stated by the overseer, cannot, under the circumstances, establish ownership in him. It may have been a device to protect the property of the debtor. The acts under private signature, introduced by plaintiff, having date as to defendants on the day when offered in evidence, only, show that Spicer was the owner up to that date. The burden was on plaintiff to make out his title, or his in junction must fail.

There is in the record a consent that the excess of interest allowed in the lower court, be considered as remitted by the defendants, and there is a prayer to amend.

It is therefore ordered that the judgment appealed from be amended, by allowing eight instead of ten per cent, interest on the amount enjoined, and as thus amended the judgment be affirmed, with costs. ■ -

On Rehearing.

Taeiaeebbo, J.

After a careful reconsideration of this case, we find to reason for altering our judgment, which will therefore remain undisturbed.


author: Howell, J.

text:
    No. 1825.
    State of Louisiana, ex rel., W. G. Bakewell, executor of A. Gordon, and Ann B. Gordon, widow of A. Gordon and executrix, v. The Judge of the Second District Court of New Orleans.
    Tile act of the Legislature of 2853, page 195, and tbe subsequent acts of 2855 and 2865, making the Second District Court of New Orleans, exclusively a probate court, and requiring all successions lo be opened therein, does not divert the other District. Courts of New Orleans of jurisdiction in succession cases pending therein at the date of the passage of the law.
    In such cases the jurisdiction of the court, u hen the case is pending, is complete and exclusive until the final termination oithe cause.
    WRIT OF PROHIBITION.

      J. Ad. Rosier, for'petitioner.
   Howell, J.

This is an application for a writ of prohibition to be directed to the Judge of the Second District Court of New Orleans, forbidding him to proceed further in the matter of- the Succession of Alexander Gordon, and in the cause of John D. Champlin ot als. v. W. G. Bakewell and A. B. Gordon, Executors of said Alexander-Gordon, and forbidding him to entertain any probate or other jurisdicition in the mortuary proceedings of said estate, and especially in the matter.of the dismissal of the said executors, and further, ordering him to transfer the record and mortuary proceedings in the said succession to the Fifth District Court of New Orleans, where the said succession was first opened, and forbidding the said Champlin et als. from proceeding in the said Second District Court with their said suit or any action in said court in the said mortuary proceedings of Alexander Gordon.

It is averred that said succession was opened in the Fifth District in 1848, where it has been under administration, until in July, 18G6, when a motion was made for the purpose, and after hearing the parties, the Judge thereof ordered the said record and proceedings to be transferred to the Second District Court, as belonging to the exclusive jurisdiction of that court, which order was executed on the fifth day of February, 1867, since which time the Second District Court has entertained'and exercised jurisdiction over said succession, as though it had been originally opened there. That in I860, John D. Champlin et als. instituted suit in the said Second District Court against the said Bakewell and Gordon, as executors, to which they filed an exception to the jurisdiction of said Court, which was overruled, and after a hearing on the merits, judgment was rendered in favor of the plaintiffs therein, and the defendants, the relators here, took a suspensive appeal. That subsequent to said appeal the said plaintiffs (Champlin et als.l took a rule in the mortuary proceedings of Alexander Gordon, to have the executors, Bakewell and Gordon, removed for cause, to which they set up the plea to the jurisdiction of the said Second District Court, which was overruled. That they alsq excepted to the right of the said plaintiffs to take any such proceeding pending the suspensive appeal -from their judgment, which was also overruled, and judgment of dismissal from their trust was rendered against the relators, as executors of Alexander Gordon, from which they say, there is no suspensive appeal. ,

The Judge of the Second District Court answers that the judgment rendered by him in the suit of Champlin et als. v. Bakewell and Gordon, executors, in-which the exception to the jurisdicton Was made, is'final and conclusive, until reversed on appeal, and the question of jurisdiction cannot be again raised pending the appeal thereon. That as regards the dismissal of the said executors, they did not raise the question of jurisdiction, until after the judgment was rendered, and then in a rule for a new-trial, and that an application for a writ’of prohibition was not made until after said rule for a new trial was set aside, and the final judgment of dismissal regularly signed, consequently the writ could not prevent their removal. That when the question of jurisdiction was first presented, after full argument and mature deliberation, ho came to the conclusion (in February, 1867) that the Second District Court legally had jurisdiction of the said succession of Alexander Gordon, and that the Fifth District Court rightly transferred the record thereof.

The question is, does the cognizance of the cause belong to tho Second or the Fifth District Court?

There is nothing ralione materice, which prevents the Second District Court from entertaining jurisdiction of the cause; for said court is specially vested with succession jurisdiction, and the question depends for solution on the fact, whether or not the several statutes, organizing the courts in this city, at different times, confined the jurisdiction of this succession to the Fifth District Court, where it was opened in 1848.

The act of 1853 (p. 190) continued, in express terms, the jurisdiction of the Fifth Court over this succession and only required all successions thereafter to be opened in the Second Court. The 9th section of the act of 1855 (p. 316) enacts: “That all successions shall be opened and administered in the Second District Court, and all appointments that may become necessary in the course of administration of estates, all matters relating to the tutorship of minors, curatorship of persons interdicted and of absentees, shall be made and carried on in said Court.” By the last section all laws on the same subject-matter, except in the Codes,were repealed. This 9th section did not necessarily and by its own vigor, divest other courts of the city of jurisdiction over succession causes then pending in them respectively. Had the law-maker intended such effect, he would have said so in express terms, and not left, so important a matter to uncertain construction.

By the common action and judgment of the bonch and bar, tho administration of successions opened in the several courts, was continued therein, after the Second District Court was established as the probate court specially. The Fifth District Court, therefore, held jurisdiction over said succession at the passage of the act of 1865 (p. 84), by which the Second District was made strictly a probate court, and vested with exclusive jurisdiction only of all successions and probate causes, etc., but by the 17th section, specially provided that said act should not apply to the cases then pending or filed before the several District Courts, and all laws on the same subject-matter were repealed; thus removing any doubt, if any could exist, as to the effect of any construction of t 1855. The act of 1865 confirmed the jurisdiction of the Fiftl Court over the succession of Alexander Gordon, which was t ing before said Court, and in our opinion the cognizanc cause" does not belong to the Second District Court, but to the Fifth. C. P. Art. 846. . ,

The executors were qualified before, and responsible to, the Fifth Court, and the law has not provided for a change of that responsibility to another tribunal.

In this proceeding, we can do nothing more than forbid the Judge of the Second District Court from proceeding further in the cause. We do not enquire into the correctness of any order which may have been made by the Judge of the Fifth Court, such a question being. examinable on appeal.

If; is therefore ordered that the'provisional writ of prohibition issued herein be made perpetual, and that the Judge of the Second District Court of-New Orleans be perpetually prohibited from proceeding further in the matter, of the succession of Alexander Gordon, deceased, and the suit of John D. Champlin et als. v. W. G. Bakewell, executor and Ann B. Gordon, executrix of the last will of the said Alexander Gordon, being No. 27,047 on the docket of said Court, and from taking cognizance of any proceedings, connected therewith, and that the said JohnD. Champlin et als. be prohibited from taking any further proceedings in the said Second District Court against the said succession of Alexander Gordon, and in their suit against W. G. Bakewell, executor, and Ann B. Gordon, executrix, No. 27,047 on the docket of said Second District Court of New Orleans.....


author:
      IiiSiiET, J.
      Hvhan, C. J. Ilslev, J. Tari arerró, J.

text:
    No. 1364.
    The State of Louisiana v. The Louisiana State Bank—W. Bailey, Intervenor.
    A proclamation by the President of the United States, deriving its authority from an act of Congress, has, irom its date, all the authority of positive law.
    Purchases of cotton within the Confederate lines, during the late war, under military sanction, were in direct contravention with the statutes of the United States and the proclamation of the Pro- , . sident, and were therefore-void.
    Where transactions that were illegal, have beoome áccomplished facts, they cannot be affected by any action oi tne courts.
    Where the State invokes tho aid of its courts to enforce its claims against its citizens, they may avail themselves of every legal defence against the State that they can against auy other suitor.
    The bonds and treasury notes of the State of Louisiana, issued under the authority of the act of the Legislature of 23d of January,’1862 ontitled an aot to raise money for the¡State treasury, being emphatically a'ttind for military purposes, designed to aid the cause ot the .rebellion against the United States, are absolutely null and void; and no action lies either by the State or any other holder to entorce their payment*
    A resolution of the directors of a bank, authorizing the president to release an agent from al: liability on account of transactions with the bank, tog- ther with the release, are admissible testimony, where his competency as a witness is attacked ou the score of interest.
    In a case wnere tho revolution of the government of the State is followed by a restoration of the ancient order of things, both public and private property, not actually confiscated, revert to the original proprietor.
    Private property temporarily sequestered in time of war, reverts to the former owner on the restoration of peuce.
    The burden of proof is on the party claiming cotton or other property, that he alleges is in the possession of another, and he will be entitled to recover only the quantity that he succeeds in identifying by proof.
    L from tbe Fourth District Court of New Orleans, Théard, J.

      té, Herron and Lynch, for plaintiff and appellant.

      Lacey, SuUiip.S'and Hughes, for intervenor and appellant.

      Roselius <& Philips Toney, for defendant and appellee.
   IiiSiiET, J.

In the year 1862, there was standing on the books ‘bf the Louisiana State Bank, to the credit of the State of Louisiana, the sum of four hundred and sixty-two thousand seven hundred and fifty-two dollars and thirteen cents, and. the bank, having then in its vaults, in “Confederate bills,” about a million of dollars, including the State’s balance, applied to Gen. Shepley, Military Governor of Louisiana, for permission thinvest this Confederate fund in cotton, within the Confederate lines of military occupation, in order from the proceeds thereof that the bank might be’ enabled to pay its debts to the State and to its other creditors.

The permission, under the sanction of the Commanding General of the Department of the Gulf, was granted; and under it the bank-succeeded in purchasing, within the Confederate lines, a large quantity of cotton, of which it saved, and brought to New Orleans, seven thousand and fifty-two bales, which after the United States government liad-withdrawn its quota, say fourteen hundred and two hales, and all commissions for purchasing, etc., and all costs and charges had been paid, yielded net, the sum of five hundred and seventy-two thousand three hundred arid sixty one dollars and eighty-three cents, out of which sum held by the bank; the State now seeks to be paid its balance.

William Bailey intervened in the suit, claiming the cotton received by the bank at New Orleans, to be his exclusive property. !

The bank’s defence, which will be specially noticed hereafter, travéfses' the claim set up both by the State and the intervenor, and there is also,’ on the part of the bank, a plea in reconvention against the State.

The State and the intervenor have appealed from a judgm jBL.r(&dered wholly against them by the District Court.

It is indubitable that the traffic in cotton, which the bank the military to engage in, was illicit, being in conflict with of the act of Congress of 13th July, 1861, and the proel President of the United States of the 16th August next f proclamation, deriving its authority from the said act, ha> all the authority of positive law.

The District Court of the United States for the South of Illinois, had occasion in the matter of the, United States cotton, G. A. Lemore & Co., and others, claimants, to in chases of cotton made within the Confederate lines u tion by the bank, and pronounced them illicit and i direct contravention with the United States statute i above referred to.

This ruling of the United States Court meets ou presumption of power in the Commanding Gener mercial intercourse between the inhabitants of districts can arise, when its exercise conflicts, law.

But does this illegality of the bank’s contracts f ton within the Confederate lines, preclude, the co the State’s claim, to be paid its balance, unde agreement entered into between the bank and <

We think not, for,' as was well said by the Supr States in Brook v. Martin, 2d Wallace, page which were illegal, have become accomplished facts, and they cannot be affected by any action of the Court in this case.”

“There is,” said the Court, “a great difference between enforcing illegal contracts and asserting title to money which has arisen from them,” a difference distinctly made in Tenant v. Elliot, 1 B. and P., 3; Farmer v. Russell, id. 69, recognized and approved by Sir William Grant, in Thomson v. Thomson, 7 Vesey, 473, all of which cases were reviewed in McBlair v. Gibbes, 17 How. 232.

It may be asserted as a point conceded, which the bank does not gainsay, that if anything is due by the bank to- the State, it is recoverable in lawful money; but the bank set up a defence against the State, which would seem, upon its bare statement, to involve the State in a dilemma; which is, that the State’s claim really represents the unpaid balance of the price of certain State bonds which the bank was compelled to take, amounting-to one million of dollars, and which the bank still holds, a fact admitted by the State, for in the brief filed in this court in its behalf, it says: “On the 23d October, 1862, the State of Louisiana stood with a credit-of $482,752 13, on the books of the Louisiana State Bank, proceeding from 1 the undrawn balance of the sale of the bonds, issued by the State and purchased by the bank.”

Now, the bank’s position is this: These bonds are either legal and valid; or they are illegal and void ab initio; and the relation between the State and the bank is either that of creditor and debtor, or of buyer and-seller.

If th$ bonds are valid, the bank holds enough of them past due to compej¡^|[^he State’s balance, and to justify a judgment in reconvenyor against the State; if the contrary, the State cannot by court an action to recover any portion of their price, wever, strenuously objects to the connecting, in any man-' for which it claims entire immunity, with the bonds k, which it repudiates, and in this connection it argues: ither by the act of the State in convention or otherwise,: lovernment in the exercise of the war-power which it over the States whilst engaged in the rebellion, have ,nd an object of abhorrence; if they are to be looked pnihilated, they can be invoked as a title by the bank ;ossible connection with the contract under which tho li transformed and actually novated the character of the bank. This contract, says the State, is made in ansaction, which does away with anything that does ‘^visions bodily and substantially; and if the bonds ihe nonentity, and the repudiation denounced against ey can be pressed upon the State by the only means ptional custom, by proper application to its constinot in the indirect way in which their redemption

proposition, it may be observed, that when the f its courts to enforce its claims against its citiemselves of every legal defence against the State [other suitor.

The State seems impressed with the idea, that Gov. Shepley was actu-/ ated by one sole motive, in permitting the bank to invest its Confederate, bills beyond the United States military line; and that was, that the State in any event, should be paid its balance in good money, It loses/ight of the fact that considerations of public policy entered deeply into the reasons for the acquiescence of the military with the bank’s request.

“It was,” as Gen. Shepley says in his depositions, “to throw thereby into the circulation of the rebel States a million of dollars of Confederate notes, then locked up within our lines, and thus tend to that extent- to depreciate their currency; besides, if the cotton bought with Confederate., money should be brought within our lines, many millions would ,be drawn from their revenues and added to those of the loyal States, without returning anything of value, and only that which would weaken them.”

The Military Governor was no doubt solicitous, that the large balance-apparently due by the bank to the State, should be paid in lawful, money; it could hardly have been supposed or intended, even by him, and much less by the bank, that when the claim of the State was asserted, it-was to be paid absolutely, and in any contingency, regardless of what ,- might be at the time the actual state of account between the State and, the bank.

That the bank should be precluded from showing that it really then owed nothing to the State; that the claim set up by the State was never due, or that if once due, it had been extinguished, and that the State,. once its creditor, had become its debtor.

We can find nothing in the understanding, which the State clings to, so, tenaciously, to sustain a position so unreasonable, so inequitable as that.

All that was expected from the bank was that, out óf the proceeds of the cotton, it should pay the debts it lawfully owed, which debts underwent no transmutation or novation by the agreement, but retained their original character; whatever that was, as regarded the obligations, the investment of the Confederate money being merely a means afforded the bank to discharge them. ,

The bank’s defence against the State involves, as between them, the whole matter in controversy, “the balance” and “thebonds,” and as' that defence is twofold, and in the alternative, it becomes, therefore,, necessary that the true character of the bonds should be ascertained and . determined.

The Judge of the lower court made a discrimination between, the treasury notes and the bonds, both issued by the State under the provi- - sions of an act of the Legislature of the State of Louisiana, approved,. 23d January, 1862, entitled “an act to raise money for the State treas-. ury,” deeming the former emphatically a military fund, expressly designed for military purposes, and the latter a fund to defray the lawful expenses of the government.

The Judge attached some importance to the fact, that the Commanding General, exercising complete control over the whole assets of the bank, only seized and confiscated out of the State obligations, consisting of the two classes above named, the treasury notes, leaving thebonds in possession of the bank; and from that circumstanoe, and his reading of the act of the 23d January, 1862, he came to the conclusion that the treasury notes were'null, but that the bonds were valid.

The treasonable character of the treasury notes, impressed upon their facé> not discernable upon that of the bonds, was the cause of thedistinctionNnade by the military between them, and caused the seizure and confiscation of the former only.

A careful perusal, however, of the statutte which authorizes the issue of both notes and bonds, has satisfied us that there is no material difference between1 the one and the other.

The great end and object of both notes and bonds, was to furnish aid in carrying on the rebellion against the United States.

The act of 1862, if interpreted solely by its enacting clauses, would sufficiently indicate what was the design and object of the Legislature in passing it, but calling in aid the preamble of the act, which, for the purpose of interpretation, but not to control the enacting clauses, is deemed a part thereof, (see Montesquien v. Hale, 4 La., page ) it becomes evident that the proceeds of both treasury notes and bonds were to be used indifferently in the prosecution of the rebellion.

' That this object was uppermost in the Legislative mind, is palpably clear from the tenor of the preamble, which is as follows:

“Whereas, the State of Louisiana has expended large sums of money, drawn from the treasury for military purposes, and contemplate further expenses thereof; and whereas, the State has assumed towards the Confederate Government the payment of the Confederate war-tax, the levy of which has been authorized by an act of the Provisional Congress, approved the nineteenth day of August, eighteen hundred and sixty-one; and whereas, during the existing state of affairs, the collection of taxes cannot, with sufficient certainty, be relied upon to meet the accumulated wants of the treasury; therefore, it is resolved, that “the Governor of the State shall borrow in behalf of the State, from time to time, as the 'wants of the treasury may require, a sum not exceeding seven millions of dollars, either by the issue of bonds or treasury notes of the State, or of both, provided that the treasury notes shall not exceed in amount two millions of dollars. ”

: The proceeds of the bonds are to be deposited in the treasury of the State to the credit of the general funds, and the treasury note shall be deposited with the State treasurer, who shall receipt therefor to the auditor, and the amount so deposited shall be credited to the military fund, whieh is hereby created, and which shall be used exclusively for military purposes, and to pay the debts contracted by the Governor for military purposes.”

There is nothing in the act to designate the particular use to which the bonds or their proceeds were to be put; but in order to ascertain whether at least a portion of them was not intended to advance the cause of the rebellion, it is well to refer to the 8th section of the act, which is significant.

" It provides, “that for the payment of the current interest that may accrue upon the bonds to be issued under this act, and of the principal of the bonds, as the same mature, it shall be the duty of the auditor of pub-lie accounts, within thirty days after he. shall have, received -the assessment rolls from the several parishes and municipal corporations:

1. To determine the rate of taxation, etc.

2. To notify the -several sheriffs and tax collectors of the rate of taxation, as ascertained and fixed by the said auditor for the payment of.said •current interest and principal (of the bonds) said rale of tqxjition.shall he designated and known as the war-tax, and said war-tax -as. annually .ascertained and fixed, is hereby levied, etc., and it shall be the duty .of the said sheriffs and tax collectors to collect the said war-tax, and the collection of the same shall be enforced as the law provides for the.collection of other taxes.”

If the bonds or their proceeds were intended solely .to defray the ordinary expenses of the government, why should the taxes to be-leviedrto meet them be designated and known as a war-tax in contradistinction to other taxes? ,.

“ Grim-visaged-war ”-pervades. the statute from one end. .of it.tq.the other: and the only difference between the-treasury notes and the bonds is, that the first were to be used exclusively for war purposes, and'the last-to aid the rebellion, and for other purposes besides. But in .the eye of the law, the notes and the bonds are equally tainted with the dye of treason; and no court of justice would undertake the task of deciding which particular bond, or what portion of the proceeds thereof, were ,to !be used for lawful, and what-for illegal purposes. It suffices to stamp the whole issue of State bonds, under the act of 23d January, 1862, with -the-seal of reprobation, that they were to be used, if at all, in attempting to overturn and disrupt the general government.

These bonds, being the basis of the State’s claim against.tbe hank, no action lies for the recovery thereof,-and the plaintiff’s action, as well as the defendants’ plea in reconvention, must be therefore dismissed.,-

We liave now come to the second branch of the case, which is the intervention of William Bailey, who sets up exclusive:title as owner to all the cotton in the bank’s possession.

In order to establish his ownership of the cotton, beyond-the presumption of the law, resulting from its possession of it, the bank produced in court several witnesses, the principal one being its agent, employed to invest its Confederate money in cotton purchases, as before stated.

This witness was objected to by the intervenor, on the score of interest and the resolution and -release granted him by the bank to render him competent to testify in the suit, -were also objected to.

As we deem the release sufficient to discharge Stevenson from all liability to tbe bank, it is -unnecessary to examine into the question of interest.

Two objections are urged against tbe release; first, that the resolution upon which it was based-was void, because the meeting of the board-of directors which authorized the president of the bank to grant the release, was only composed of five instead of nine directors, .as required by,the charter, it being, however, conceded in argument, that -by-subsequent legislation a less number-than nine might act in the premises, .provided the amendment to the charter bad-been duly accepted, which it.devolved on the bank to prove. This preliminary evidence, on the part of the bank, was unnecessary.

It was held in Dundridge v. The Bank of the United States, 12 Wheaton, 64, that the maxim omnia prcesumuntur rite et solemniter essa acia, was deemed applicable to corporations, and in that case, the principle was clearly enounced, “ that acts done by a corporation, which presuppose the existence of other acts to make them legally operative, are presumed proofs of the latter.” So, in relation to the question of acceptance of a particular charter by an existing corporation, or by a corporation already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the facts of acceptance may be inferred. See also the case of Palfry v. Paulding, 7 A. 364.

On this ground, therefore, the objection was overruled.

The resolution to release Stevenson was passed expressly to enable him to testify in the suit between the bank and the intervenor.

There is a verbal inaccuracy in the first resolution, which is beyond criticism, as it explains itself.

By it the president of the bank is authorized and empowered to execute to the said John A. Stevenson a full release and acquittance of all liability to the bank for any cotton, money or claim belonging to the bank, which shall or may be adjudged to, or to be paid to the said William Bailey. The word “belonging” should have been written claimed by, as these things could not belong to the bank and to Bailey at the same time.

' The release is sufficiently explicit and binding to protect Stevenson from any liability whatever to the bank, on account of his agency or otherwise; or from any obligation to return to the bank any part of the compensation or commission for services rendered in cotton transactions for the bank, and the release conforms sufficiently to the resolution.

Both the resolution and the release are admissible testimony, and Stevenson is a competent witness to testify in the case.

In order to substantiate beyond the legal presumption of the bank’s ownership of the cotton, brought by it to New Orleans on the Doubloon, Louis D’or, Beauregard and Texas, it adduced,other proofs for the purpose of showing when, how and where the cargoes of these boats had been acquired and shipped.

The most important of the bank’s witnesses for this purpose, was its special agent in all its cotton transactions, Stevenson and his evidence, in some particulars, is sustained by that of other witnesses, who were engaged with him in purchasing cotton, storing it at different points, and transmitting it to New Orleans on these boats.

It seems that a large portion of the cotton purchased for the bank was not bought by Stevenson himself, but by sub-agents, and purchases were made at different times, and scattered through a large extent of country in three States, Louisiana, Texas and Arkansas, it would be difficult therefore for Steyenson to speak with great accuracy, as to the loading of the four boats mentioned with the bank’s cotton, and identifying it with that purchased by or for him in 1863; that the bank nevertheless made out a strong prima facie’ Case, and it devolved upon the intervenor to rebut the bank’s evidence, and to prove conclusively tlmt the cotton claimed by liim was really his property.

This he undertook to do, and produced for that purpose a great many' witnesses.

He shows, that whilst the Federal army was at Alexandria, on Red’ River, he had collected together in that town some five or six thousand' bales of cotton.

That this cotton, bearing the mark “A. Q. M,” with “W.B.” on end, or" a large portion of it had been shipped on board United States trans-' ports, lying off the town in the river, and bound for New Orleans; but that the Federal army, having met with reverses, all the cotton was thrown ashore, in order that the transports might be used’fór other purposes.

He proves that a part of this cottoii was afterwards seen in Shreveport and at New Orleans, on board of the steamboats Doubloon, Texas, Louis, D’or and Beauregard.

The witnesses, who testify on this point, identify a portion of the cotton, seen by them, as before stated, at Shreveport and at New Orleans, when these boats brought the cotton hither, as the same cotton they had seen as the properly of Bailey, at Alexandria.

To rebut this testimony, the bank adduced proof to show that Bailey, the intervenor, never had more than a few hundred bales in Alexandria, and produced a contract between Bailey and one Simpson, an Englishman, entered into about the time of the evacuation of the town by the Federal army, with the view of saving his cotton from the Confederate army, of all he had in Alexandria, and which only amounted, to five hundred bales. Further, that upon the evacuation of Alexandria, the town was wrapt in flames, and that all the cotton therein was destroyed.

That some bales of Bailey’s cotton were got out of the town, and sent up the river, but that was accounted for, as it was all sent into the interior of the country.

Bailey explains all this. He shows that the sale to Simpson was made whilst the bulk of his cotton w»as on the transports, several days before the evacuation of Alexandria, and was thought to be safe, and that the five hundred bales mentioned in the sale was what remained in the town for want of means of transportation; and it was. in tended to protect that from seizure by the Confederates.

As to the conflagration, Bailey accounts for his cotton not being burnt, by the fact that it whs thrown ashore hurriedly from the transports all along in front of the town, under the bank of the river, and. that as the wind was at the time blowing across the river towards the town, and the fire being above the bank, his cotton was thereby protected and saved.

The intervenor, Bailey, proves by several witnesses, that some six hundred bales of his cotton, which they identify by his marks on the bales, partially erased, although not totally effaced, with the same kind of bagging, and having the same appearance of his bales, seen by them at Alexandria, were identified in the four boats, both at Shreveport and Sew Orleans.

In a controversy like this one, that there will be a vast deal of conlicting testimony, is to be expected.

We have examined the whole of it, whether adduced by the bank or the intervenor, and on drawing oar conclusion in weighing it, we are unable from the record to perceive why the witnesses on both sides are not erititled to an equal degree of credit.

Bailey claims three thousand bales of the cotton in controversy, but he has only identified as his property six hundred bales thereof, on the four boats named.

It is not shown where this cotton was put on board these boats, nor how it was up the fiver from Alexandria, but this is immaterial, if it is proved, as we hold it to be, that the cotton was identified as Bailey’s at Shreveport and New Orleans.

The Judge of the lower court displayed great learning and research'in his attempt to show that the Confederate Government was one de facto; ahd‘ that if any cotton of Bailey’s was captured by it at Alexandria, upon the surrender of the Confederate army in Shreveport,' the cotton by capture became the property of the United States.

There is nothing to show that any of Bailey’s cotton was ever confiscated by the Confederates or by the United States; and in such a ease, the rule laid down by Wheaton, in his Elements of International La'w, page 42, ed. 1855, applies:

He says: , “ If, on the other hand, the revolution in the government of the State is followed by a restoration of the ancient order of things; both public and! private property, not actually confiscated, revert to the original proprietor on the restoration of the original government, as in tho case of conquest, they revert to the former owner on the evacuation- of the territory occupied by the public enemy.”

“Private property, temporarily sequestered, returns to thé former owner, as in the case of such, property recaptured from an enemy in war, on the principle of jus posUiminii.

Eyorn the six hundred bales of cotton, which are awarded to Bailey, must be deducted the government quota, say one-fifth or one hundred and forty.bales, leaving to him four hundred and sixty bales; the weight of each bale proved to be five hundred pounds.

Taking the average of the qualities of the cotton from the tables of classification, and the average of prices for the different grades of quality from the current prices in proof, we find the mean priqe of the interven- or’s cotton to be thirty cents and eight mills per pound, equal to one hundred and fifty-four dollars per bale, equal to seventy thousand eight hundred and forty dollars, and for this sum judgment will be rendered for the intervenor. ,

,, ,It. is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed.

It is further ordered, that the demand of the State of Louisiana, against the Louisiana State Bank and the demand in reconvention of the Louisiana State Bank against the State of Louisiana, be-dismissed.

It is further ordered, adjudged and decreed that judgment be and the same is hereby rendered in favor of William Bailey, the intervenor, and against the Louisiana State Bank for the sum of seventy thousand eight hundred and forty dollars; and, it is further ordered, that the bank pay the costs of intervention in both courts.

Hvhan, C. J.

For the same reason that caused us to decide in the ease of White v. McKee, 19 A. p. 111, that there was no Legislature in Louisiana in 1863, I conclude that there was no Legislature of the State in 1862, without a Legislature in 1862, there could not have been an a,ct-passed by the Legislature in that year. ,.

A supposed act of the Legislature of that year is referred to in the decision now rendered, and the decision is against the claim of the; State, - because the so-called act has provisions for supporting the rebellion.

The decision against the State is correct, not for the reason given by the majority of the Court, but because no such act was passed by a Leg-, islature, and because no contract or arrangement could have been-, made by authority of a spurious act of 1862, between the State and the bank to bind either.

I do not differ from the majority of the Court, in their reasons for deciding on the claim of the intervenor.

I concur in the decree of the Court.

On Rehearing.

Ilslev, J.

This case, on the claim in intervention, is again before us upon a very elaborate and able oral reargument, for which ample time was allowed to the counsel of the intervenor and the bank, respectively, to educe and cull from the mass of discrepant testimony, the particular facts upon which each party relied; and from the scrutinizing exposition of the whole case so evolved, we are now enabled to form an opinion more satisfactory and reliable than our first one, in which the testimony was not so thoroughly sifted on both sides as it is now.

The case is fully open for re-examination, regardless of any predication or particular form of expression, used in our first opinion.

It devolves on the intervenor to make his claim certain, and it would, perhaps, have been more regular to examine first his case as he presents it; but as the bank does not rely solely upon its possession of the cotton claimed, we will proceed to ascertain upon what kind of title its possfession thereto rests.

The bank shows that, sometime in the year 1863, it had purchased beyond the lines of the United States military occupation, some eleven thousand bales of cotton, in which it had invested a large amount, aváilable as current funds, at the time when, and at the place where, its purchases were made.

That portion of the cotton purchased by the bank in Black, Tensas and Red rivers, had been carred above Shreveport and deposited' among the lakes.

Purchases were also made by the bank in the parishes of Bossier, Claiborne, DeSoto, Caddo and Natchitoches, which were not moved.

With this cotton, the agent of the bank, with á number of men employed by him, had remained as much as possible; and at the end of the war, as the witness, Stevenson, proves, he had in his charge, out of the original purchases, between 8,000 and 8,500 bales. He collected’ together from all the points, and shipped,-, as he says, to New Orleans, consigned to the Louisiana State Bank 7,250 bales, the remainder being lost in rebaling,; in short deliveries, and by stealing.

From the testimony of this, and other witnesses for the bank, and by admissions frankly made by the intervenor’s counsel, at page 2 of their brief, we are satisfied as to the quantity of cotton purchased and saved by Stevenson, as the agent of the bank, and his assistants, at the time when, and the localities where these purchases were made, and the points at .which the cotton was kept.

Was the cotton thus purchased, laden on the steamboats Texas, Doubloon,. Louis D’Or .and Beauregard?

As to the cargoes of the Texas and Doubloon, the intervenor, at p. 21 of his brief, says: “ The witnesses, on the part of the bank, proved the purchases by Stevenson as above,” in his brief, “ admitted, and showed that,the Texas and Doubloon received their cargoes at different points on Lake Caddo, brought them thence to Shreveport, and afterwards to New, Orleans; but, as before asserted, no part of the cargoes is shown, except by Stevenson, to have been made up of the collon purchased by the bank in 18,63.”

The “different points on Lake Caddo, “were those” at which the intervenor says, (page 21 of his brief) “ that previous to the month of July, 1863, Stevenson, as the agent of the bank, had purchased cotton on the Black and Tensas rivers, and had shipped about 2,000 bales by the steamer Osceola, to different points on Lake Caddo.”

In this connection, Stevenson says: “I went myself with the steamboats Doubloon and Texas into Lake Caddo, above Shreveport, where I loaded said two boats with cotton that I had previously carried there, with the steamboat Osceola, and with cotton that I had purchased at Monterey landing, situated on a small bayou, emptying into Lake Caddo, in Texas, but a few hundred yards beyond the line that separates it from Louisiana. This is corroborated by other witnesses, and the currrent of testimony shows that the largest portion of the cargoes of these boats was in wretched condition, the bagging and ropes rotten, many of the bales .burst open, which was the state of it, as proved by the bank, when it reached New Orleans.

With reference to the cargoes of the Louis D’Or and Beauregard, the interyenor says, page 21 of his brief: “We are not disposed to deny that, in the early part of 1863, and during the same period in which the Osceola was engaged in carrying cotton to Lake Caddo, Stevenson purchased a considerable amount of cotton in Louisiana, Texas and- Arkansas, ¡and left it at that time on the several plantations where it was bought; but we have to say, relative to the cotton on the Louis D’Or and Beauregard, as we have already urged regarding the cargoes of the Texas and Doubloon, that “ there is no evidence except that of Stevenson, to. identify the cotton in these two steamers, with that purchased for the bank in 1863, and left upon the plantations.

Stevenson thus particularizes, as to the cargoes of the Louis D’Or and Beauregard. These boats were loaded “ partly with cotton, brought by the steamer Dixie from Frank Armor’s plantation, above the Raft, and partly with cotton brought from Monterey on the steamboat Blantas. The Beauregard was loaded with some 300 odd bales of cotton at John Pickett’s plantation, above Shreveport, and the remainder of her cargo" was put on at Shreveport, with cotton, partly brought on wagons, arid' partly with cotton brought in on the small steamboat Blantas, from Monterey and Wilson’s point.

The condition of this cotton was similar to that of the cotton on the1 Doubloon and Texas, generally covered with rotten baling arid rope.’

The bank’s case as thus presented, is this: That with ample pecuniary' means in 1863, it then purchased large quantities of cotton, which weredeposited at different points; that at the expiration of the war, there remained out of the whole lot so purchased, some 7,250 bales at those' points, and that the cargoes of the Texas, Doubloon, Beauregard and Louis D’Or wore shipped at, or consisted of cotton brought from, those *' designated points.

Prom these facts, in the absence of any evidence to prove the previous' removal of this cotton from these depositories, respectively, or its destruction there, it may be reasonably inferred that that cotton formed the' cargoes of the four boats.

To destroy the presumption which the law raises in favor of the bank, ’ and to confute the positive testimony of Stevenson and other witnesses, the intervenor offers countervailing testimony, by which he undertakes' to establish the following state of facts:

That at the time of the evacuation of Alexandria by the United States' army, he owned in that place some 4,000 or 5,000 bales of cotton, all baled in new india bagging, and on which, or a large portion of it, figured the mark “A. Q. M.,” “D. N. W.,” “W. B.”

That the bulk of this cotton had been shipped in góvernnlent trains-' ports for transportation to New Orleans, but were afterwards thrown’ ashore under the river bank, along and opposite the town of Alexandria; that owing to the peculiar position of this cotton under the bank bf the’ river, it escaped destruction by fire when the town was burnt; that this cotton, after the capture of the town by the Confederate army, found its' way up Bed Biver to some points at, or in the vicinity of Shreveport, or' above or circumjacent thereto; and that the cargoes of the Doubloon,' Texas, Louis D’Or and Beauregard, consist of the identical cotton so ’■ owned by him in Alexandria.

To identify the cotton, the intervenor produces, and relies upon, 'the: testimony of four witnesses, to-wit: John L. Coates, John W. Martin, 'J:’ F. Moliere and T. H. Bradley, aud this is the only testimony we deem it'' necessary to examine, as we will consider established the factj that the' intervenor had in Alexandria a large quantity of cotton, with descriptive'' marks, which escaped destruction by fire.

J. J/. Coates was United States treasury agent for northern Texas. He' arrived in Shreveport from New Orleans for the first time on the 7th June, 1865, and remained there till he left for Marshall, Texas, arriving there forty-eight hours after leaving Shreveport, about the 11th or 12/A of the' same month.

Previous to leaving Shreveport for Marshall, he acted as assistant of Breckinridge, the local treasury agent at Shreveport.

He went on board the Doubloon arid Texas, lying at Shreveport, to’ inspect their cargoes, to know if they had any contraband cotton on -bpárd.' thesfiboafe were deeply.lacíen. líe found all the cottonmarked ‘‘ J. A. S.,” which "Breckinridge had tol'd.him'meant John A. Stevenson; -and. “-with ¡that'.lie had .nothing to, do, as it had been, arranged.”

But sfcill he proceeded to' examine this J'. Á..-S. cotton, and he found ,on the hale?-so.-marked other partial marks, W; and-B., WB., and some on thn'edge “A. Q. M.”

The J. A. -S- Ivas over some, other mark that had evidently'been changed; ■He remembered no mark of two, letters.

The bales' were uniformly, not remarkably laige, and wefe covered with india bagging apparently liew.

die.does not know'how-piany bales there were of this méde or peculiarity; but ■Jie saw'.enough Jo lead him to suppose the whole cargo was'the same.

These two boats would reach New Orleans' about the 15th June.

This is,.all Coates says about the, cargoes of the -Doubloon and Texas.

The letters W. and B. and WB., pn the bales inspected by Coates, do .not correspond-with the mark on the .Bailey,. Alexandria cotton,'.which 'was WB. connected. If iri cargoes Of cotton, densely packed, Coates could--see,enoiigh jto lead him to suppose the whole cargo was the same as the'bales he" dicl examine, -still no identity iá shown between these-cargoes and the Alexander cotton, unless the A. Q. M. and the new india bagging oh hales, marked W.‘and B. and WB., sufficed to metamorphose‘this particular mark into another one, as distinctive as it.

As no. cotton, on either of these boats was found maiked WB. it might ,:be inferred that other cotton, besides the Alexander cotton, had the le t ters A. Q. M., and was baled in new india bagging.

-As ' to .-the inspection of the cargo of the Doubloon, it is somewhat .strange that the máte of that boat had no knowledge of it, apd that not a bale was moved .to make the inspection.

Coates .'afterward*?, .in his said'¡capacity of-revenue officer,-made an .irtspeetion on the Louis D’Or, and found on her the same character .of cotton, the same bagging and erasures, as he had found on the Doubloon .and Texas.

-His -reason for making this last inspection, was his having heard in ¡Marshall, that -the agent of Stevenson had .caused the marks to.be changed on 67 bales of other cotton, by substituting J. A. S. therefor, -and-for .this Steyenson was arrested.

’'' He -found on the Louis D’Or, the WB. chiefly on the ends of the bales, 'and the marks A. ,Q. M. on the edges. .He found difficulty in deeiphering .the .marks, -because some of the marks were cut out at the edge, but by placing the pieces .together he made out the A. Q. M. It was by the application of turpentine, he discovered the J. A. S. was marked over the WB.

Ho w-,many-bales so marked were on the Louis D’Or, Coates did not say,, nor doe„s he, say that'from .what he did see on that boat, he w,as led ,-tó suppose the whole of .the cargo was the same.

This indefinite statement, in regard to the cargo of the Louis D’Or, was occasioned-probably-by the fact that any inspection he made on that boat was during the night of the 17th or I8fch June, as .from the account Coates gives of his movements from his first arrival in Shreveport, it could .only-have been ¡made then.

Be this as it may, apart from the hugeness of the supposition of Coates, as to the character of the whole of the. cotto’n on the .Doubloon and Texas, his testimony, when analyzed," amounts to very little!

John W. Martin, the next witness, followed various avocations', principally that of steamboat man, and was' in Alexandria between. 1862 and 1864, and was frequently on Bailey’s plantation! Bailey had a large press, and , his bales would average 550 lbs. Bailey had, he supposes, some 4.000 or 5,000 bales in Alexandria; of which there must have been some 3,000 bales in new india bagging. He saw Rachel marking it almost every day D. N. W., on the edge of the bales, which had in the original mark WB. He only looked at this, cotton casually, and his attention .was not particularly called to it; yet he recognized this cotton on board of the Louis D’Or and Beauregard at Shreveport, some fifteen mouths afterwards. .

He remarked to people about there, “ that must be some of old man Bailey’s cotton.”

It had been partly obliterated, by tearing the bagging, apparently by design.

On the Louis D’Or, there “ must have been ” some 300 or 400 bales, and on the Beauregard some 100, 200 or 300 bales! and the two boats must have had 500 or 600 bales.

He was watching cotton casually, but saw nothing particular about the cotton on the Louis D’Or and Beauregard.

His attention was first attracted to the cotton, by the marks being partly obliterated, and the bagging new, and the bales large, and its resembling the bagging he had seen on the bales at Alexandria.

He cannot tell exactly now, what portions of the WB. were obliterated, and what remained; enough, however, to distinguish the cotton. He examined 200 or 300 bales, on which the mark was obliterated, but lie does not know that he examined any of them particularly.

He pulled the bagging aside, and examined some 4, 5 or 6, but he did not see the quartermaster's mark on a single bale; only the bagging ‘torn off at the edge. He did not examine any particularly; there was no use to do so; eight or ten inches were cut out. He was pulling down the bagging, so as to make the letters WB. come together. When he brought •the ragged parts together, he discovered it was the same mark he had seen in Alexandria.

It may be observed here, that Martin was employed by McKee .to watch for Confederate cotton. His testimony amounts to this: He saw in Alexandria in 1864, a large pile of cotton, some 3,005 bales, which he looked at casually; but he remembered the mark WB., D. N. W., but not the A. Q. M., the size of the bales, and the kind of bagging which" covered them. He finds the WB. on a few bales; the mark obliterated on 300 or 400 on the Lo.uis D’Or, and on the Beauregard 100, 200 or 300 bales; in all, some 500 or 600 bales. There was not a sign of the quar•termaster’s mark upon it; only where it might have been, and the Court is to infer from this testimony, that there "mud have been” 500 or 000 bales on the two boats, belonging to the intervenor.

The next witness is John F. Moliere.

At the request of the intervenor, he accompanied him to the levee at New Orleans. This was about the middle of June, 1865. They went on board several boats, the Texas, Doubloon, Frolic and Pauline, (is not positive as to the Pauline) to see if they had any of Bailey’s, the intervenor’s cotton on them. This witness says he had seen Bailey’s cotton at Alexandria. He had there some 4,000 or 5,000 bales, maybe more. This cotton was marked D. N. W., A. Q. M., WB. The bagging covering it was new India bagging, which the quartermasters had brought pp from New Orleans, to distribute among loyal people. Bailey’s bales were very large, say 450 or 500 lbs.

There was a peculiarity on the baling, which Bailey explained to him, sis being caused by a defect in his press.

The rope was so far from the end, being about eighteen inches, that it made the ends of the bales swell out unevenly, thereby causing a difficulty in storing it. •

Most all the cotton had the appearance of being the same lot of Bailey’s cotton he had seen at Alexandria. On this lot (on the Doubloon, Texas, Frolic and Pauline) some 25 or 30 bales had on them the WB. quite visible.

The mark was considerably worn, yet the mark WB. could be easily-distinguished on the 25 or 30 bales. He noticed the ends turning up, and they had the same appearance as those he had seen in Alexandria, the same india bagging in appearance, comparatively new, but it had been hauled about a good deal.

On the edges of the bales in some places, by turning up the ravelled part, you could see occasionally an A. or an M. Q. D. or a W. It looked as if the mark -had been intentionally defaced. How many the witness examined on these boats he does not inform us, nor on which of the four boats (Doubloon, Texas, Frolic and Pauline) he found 25 or 30 bales marked WB.

He went afterwards on the Louis D’Or and Beauregard, and found the WB. on 8 o.r 10 bales, but could see that the whole or most part of the cotton had been tampered with, ends cut off, edges cut and ravelled.

He did not look on the Louis D’Or and Beauregard to find the letters D. N. IF. A. Q. Ml, although he was employed by Bailey to hunt up his cotton. There might have been 50 or 60 bales on all the boats on which the witness could see a 1). AT. W A. Q. or At.

. On all the six boats, there were altogether 6,000 or 7,000 bales, out of which 2,500 or 3,000 bales had the same appearance by the bagging, defaced marks, raised ends, as he had seen in Alexandria, claimed by Bailey.

.What proportion of the 300 or 400, or of the 2,500 or 3,000 bales was on the Frolic or, Pauline, (neither cargo of which is in controversy) we are left to conjecture. This witness speaks of a striking peculiarity, not observed by the other witnesses, which would have been, from his description of it, a distinctive mark for identification; but how, in six or five boats, piled with cotton, forming a solid mass, and on two of which boats there was not a bale, any one could form any estimate or an approximate of the 2,500 or 3,000 bales of, or like, Bailey’s cotton, out of'compa'ct piles of 6,000 or 7,000 bales, it is difficult to conceive. -v ’

All that this testimony, if it were consistent ‘with itself, would prove, is, that on the Doubloon, Texas, Frolic, and perhaps the Pauline, the witness found some 25 or 30 bales, with the WB. and other characteristics, and this is rendered doubtful, by the iact that on two of the boats on which they were discovered, there was not a single bale claimed from the bank. 1

The WB. on 8 or 10 bales on the Beauregard and Louis D’Or would be more reliable evidence, if being employed to hunt up Bailey’s cotton, the witness had thought of looking on those boats for the occasional B. W. W., A. Q. M, which he failed to do.

The next and last of the four witnesses called to identify the intervenor’s cotton, is T. II. Bradley.

He was a printer by trade, and had lived in Alexandria, having known the intervenor eight or nine years.

He knows the intervenor had a large quantity of cotton there. He saw one Rachel and his son marking the cotton with [the letters D. N. W., A. Q. M., WB.

He only saw this cotton casually, and was not employed to examine it carefully. He saw it, however, sufficiently to recognize it again. Being in search of the intervenor, he found him at the levee at New Orleans, where the Doubloon and Texas were discharging their cargoes. • He was greatly excited, pointing out some of the cotton, which lie swore was his.

There “must have been” 20 or 25 bales that had WB. on them, in the same‘shape as that at Alexandria. There were not a great many that the letters B. BT.W. A. Q. M., could be seen; but some 150 or 200 bales had the bagging cut out of them. He could discover some portions of .the letters where the B. N. W. A. Q. M. had been put on. They had been cut out, but by putting the pieces tqgether, parts of, but not all of, the letters could be made out.

. Later, he found on the Louis D‘Or and Beauregard 15 or 20 bales with the WB., which could be distinguished, and some portions of other letters, where the B. N. W. A. Q. M. had been cut out, but on which was an occasional M. or A., etc., not the whole.

The bales were in a very ragged condition, but about 300 or 400 were found cut and marked.

At the request of the intervenor, he found his estimate of the portion of the cargoes on the four boats, which had a similar appearance with the Alexandria cotton, and adopted the identical estimate made by Moliere, 2,500 or 3,000 bales.

■ But, comparatively, few bales could be recognized by marks. This witness, however, who had. only seen the Alexandria cotton fourteen months previously, and whose attention had not been called to it, recollected the letters marked on it; their groups, and where they were marked, their size and appearance of the bales, the kind of bagging, indeed every particularity in regard to them, oxcept the very remarkable appearance of the bales; caused by a defect in the intervenor’s press, so well described by one other witness.

This is all the testimony in the recoi’d to prove identity between the cotton brought to New Orleans, by the bank, and that which the intervener had in Alexandria, and -as it'is upon that evidence that the whole, or a- large portion of the cargoes of the Doubloon, Texas, Beauregard and Louis D’Or are claimed for the intervenor, we have examined it thoroughly.

Reading this testimony, separately and collectively, and with the oarn■est deSire'to-ascertain the. truth and the whole, truth of the case, so as to award the cotton in controversy to the party who may prove his right to it, we are constrained to say that the testimony of the interveuor, poised against that adduced by the bank, which is irreconcilable with it, particularly as to the external appearance and condition of the bales, when "Shipped and when discharged at New Orleans, does not, except for a very fetv bales,'produce that legal certainty which is absolutely essential to the recovery of property to which title is asserted. , •

10 M. 419. 14 La. 455. 2 Rob. 27. 19 La. 206. So long as the presumption of the bank’s title, resulting from its possession of the bulk of the cotton, was not rebutted by contrary proof, it was not incumbent on it to show, although we think it did show, with reasonable certainty, when,- where,,- and how it. had acquired, the cotton sought to be taken from it.

It is true that Stevenson, the agent of the bank, occupies in the suit in intervention, a prominent position as a witness for the bank; but his .testimony, as to. his purchases and storing the cotton for the bank, does not seem to.be rebutted.

True, as we said in our first opinion, Stevenson could not be everywhere, but his sole occupation at the time was to attend to his purchases, and to have them put at available points. So far as he testifies, as to his illicit movements in purchasing cotton, storing and shipping it, it suffices to say his testimony is not rebutted.

With-the ' exception of thirty-five. bales on all the boats, which the intervénor’s witnesses say they positively identify by marks, and for which allowance will be made, we think the scale turns almost entirely against the intervenor. But were the balance equipoised, the fact that the District Judge who tried the ease, and who had ample opportunity to observe the deportment of each witness who was examined before him, and to see'hó w his evidence was given, decided the case of the intervenor ¿gainst him, in favor of the bank,

The cotton was shipped On the four boats, all of which left Shreveport without hinderance or molestation on the part of the vigilant government 'officials' there; who had made or caused to be made such important discoveries respecting their cargoes, and at the time.the claim in intervention was set'up, nearly all the cargoes of the four boats were in possession of the bank.- > - - - ,

In pari causa possessor hoheri debet, et pro rei possessore in dubio est ■prom'i/ntiandum.

'•Eroffi the thirty-five bales now awarded to the intervenor, must be deducted tlae government quota, one-fiftli, or seven bales; thus, reducing the number to twenty-eight hales.

Allowing for each bale, according to our first computation, ,one hundred and fifty-four dollars, it yields an aggregate of four thousand three hundred and twelve dollars, for which judgment will be rendered for tbe intervenor. , ,

It is therefore ordered, adjudged and decreed that our first judgment on the demand in intervention of William Bailey, be so amended .as to reduce the amount allowed thereby, to the sum of four thousand three hundred and twelve dollars, (84,312) and no more; and so far as our first judgment is not in conflict with our present decree, it is affirmed.

We concur in this decision.

Zenon Labaijve, Associate, Justice,

R. K. Ho weed, “ “

Tari arerró, J.

I think the judgment first rendered in this case should not be altered, and, therefore, dissent from the opinion of the majority of the Court.

Hyman, C. J., dissenting.


author: Ho were, J.

text:
    No. 1653.
    Joachim Kohn et als. v. J. A. McHatton.—Hill & Markham Third Opponents.
    To preserve the privilege of an architect or builder against third persons for work done, materials and machinery sold, etc., for the erection of a sugar-house, sugar-mill, and saw-milt, he must have the contract or act duly recorded in the office of the recorder of mortgages within six days of the date, if the act has been passed in the place where the office of mortgages is kept, adding one day for every two leagues from the place where the act was passed to the office. O. 0.3240.
    APPEAL from District Court, Parish of East Baton Rouge, Posey, J.

      Favrot & Lamon, for plaintiffs.

      Burgess & Chaney, for appellees.
   Ho were, J.

The plaintiffs, having obtained judgment, on 27th November, 1865, against the defendant, with a recognition of mortgage on the Courtana or Little Misc.y plantation, caused the property to be seized, and advertised for sale on the 6th January, 1866. Whereupon Hill & Markham intervened by third opposition, claiming a privilege superior to all others, on the sugar-house, sugar-mill, saw-mill, engine, machinery, etc., on said plantation, for the amount of an open account for work and labor done, and machinery sold, in 1855 and 1856, for one Jordan Holt, who was then the owner of said plantation and asking that the said sugar-house, mills, machinery, etc., be appraised separately from the other property, and the sheriff ordered to retain sufficient proceeds thereof to pay their claim, with interest and costs. It is alleged that said account was duly recorded to preserve the privilege.

The plaintiffs answered, denying that said Holt, owed third opponents anything, that the charges are correct, if any work was done, and that the opponents have any privilege whatever. ,

On the trial of the opposition, judgment was rendered in favor of Hill & Markham against said Holt for the amount claimed,, and decreeing “that the proceeds of the sale of said sugar-house, saw-mill, engine, -boiler?, machinery, etc., or so much thereof as may be necessary, be appropriated to pay the said judgment in favor of liili & Markham, in preference over all others.”

From, this, plaintiffs have appealed, and they contend that the said plantation, together with the machinery, etc., thereon, having passed by sheriff’s sale under a writ of.seizure and sale, on 4th October, 1856, from Jordan Holt to James A. McHatton, a third party, from whom plaintiffs obtained their mortgage on said plantation and machinery; the pretended privilege, to have effect against said third parties, has not been preserved in the manner pointed out by law, viz: by the registry of a contract.or agreement, O. O. 2746; Whitla v. Taylor, 6 A. 480.

There is in the record a copy of the account, which appears to have' been recorded on 14th May, 1856, but it is without the signature of the debtor, Holt, and is not an agreement. The opponents contend that by ,Ar,t. 3289, O. C., it is only necessary to record the amount due and carrying, a privilege. Admitting this to be correct, (upon which we reserve our opinion) the recording was not made within the time prescribed by 3240, O. 0., in order to be valid against third persons. And furthermore it appears that these opponents made a similar opposition in the executory proceedings of Jas. A. McHatton v. J. Holt, in May, 1856, claiming the same amount and privilege, and obtained an order to have the same sugar-hpuse, mills, machinery, etc., appraised separately, to pay their claim, for which they were then asking judgment against their debtor, Holt. But the order was not executed, and they permitted the .whole property to be sold, on 4th October, 1856, confusedly in mass, ■and it was purchased by McHatton, who paid $13,900, cash into the 'hands of the sheriff, retaining the balance to pay his own mortgage and other specified creditors of Holt, not including Hill & Markham.

This, we think, relieved the property sold of any privilege which may then have existed in favor of Hill & Markham.

It is therefore ordered that so much of the judgment appealed from as sustain^ the third opposition of Hill & Markham, and orders the sugar-house, saw-mill, engine, boilers, machinery, etc., on the Courtana or Little Misc.y plantation, seized in this suit, to be appraised separately from the said plantation and other improvements, and the proceeds thereof appropriated to pay said judgment in favor of Hill & Markham in preference to all others, be reversed, and said third opposition be dismissed at the costs of opponents; and that in other respects the judgment be affirmed, costs of appeal to be paid by the opponents.


text:
    No. 1565.
    James Brown v. L. L. Johnson—C. Belcher, Executor, Intervenor.
    The inscription of ft mortgage ceases to be evidence against all parties bound by it after the lapse of ten years from the date Of inscription.
    The payment by the maker of a part of a series of notes, forming the Same indebtedness after presori,priori has obtained, will not work an interruption of prescription as to the others.
    To interrupt prescription on a piomissory note, some acknowledgment of the debt evidenced by it is required.
    APPEAL from the District Court, Parish of Lafourche, Gates, J.

      W. Hall and M. Taylor, for plaintiff,

      T. Beailie .and O. Belcher, for defendant.
   Howell, J.

The object of this suit is the recovery of $9,077 45, the amount' of a note, made in New Orleans, by W. O. and F. Webb on' the 7th March, 1846, due on 1st January, 1854, with eight per cent, interest flora 12th February, 1846, and the enforcement of a mortgage given by thd makers on a plantation and slaves in the parish of Lafourche, which, it is alleged, was assumed by the defendant in a subsequent purchase of. §aid property. Johnson, the defendant, makes no defence; but O. Belcher,’ the dative testamentary executor of W. O. Webb, one of the makers of the note, has intervened, and pleaded the jn’eseription 0f five years to the demand on the note, and the extinction of the mortgage for want of reinscription within ten years, and by the probate sale of the mortgaged property.

There was judgment sustaining the plea of prescription; and the plaintiff appealed.

In 1846 W. G. and F. Webb purchased a plantation' and slaves from the heirs of Thomas Bibb, and assumed a debt due by said Bibb to Brown, Brothers & Go., and the note now in suit by plaintiff as holder ) and owner, with others, similar, was transferred to Brown, Brothers &Co.

In 1854 F. Webb sold his undivided half of said property tó W. O. Webb, who assumed the liability on said notes, amounting then to $45,157 07, principal and interest. In 1856 W. O. Webb died and athiS succession sale, on the 10th May, 1858, the said property was sold to L. L. Johnson, the defendant, for $200,000, payable $75,000 cash, and the balance in five equal annual instalments, with special mortgage, and vendor’s privilege, and personal security. The proces-verbal of this sale was recorded in the office of the parish recorder, on the 14th June, 1858, and on the 12th July, following, the testamentary executor, Wm. K. Webb, filed an account showing receipts, disbursements, assets, debts, * notes paid, notes taken as part of the price of property sold, and a balance in favor of the succession of $1,172 81 which was declared to be apparent only. In the account is the following item:

124. Amount assumed by L. L. Johnson, payable to Brown, Brothers & Co., (Nicholson & Go.,) for which L. L. Johnson will be Sntitled to á credit, when paid..............................$85,948 88.”

This account was homologated on the 4th of September, 1858, upon the petition of O. Belcher, attorney for the executor.

The act of Mortgage of the 7th March, 1846, securing the note in suit and others, was duly inscribed in the parish of Lafourche, oh the 2d of April of that year, reinscribed on the 6th December, 1855, and again Oh the 2Ath July, 1866.

The succession of W. O. Webb, represented by G. Belcher, dative testamentary executor, is shown to be a creditor of the defendant to a large amount with mortgage and vendor’s privilege, and has manifestly such an interest as to authorize the intervention herein.

Upon looking into the proces-verbal of the adjudication, at the succession sale, on 10th May, 1858, to the defendant Johnson, we can find no assumption of the debt due to Brown, Brothers & Co. But plaintiff relies upon a document in the record, offered in evidence by him, and styled “Statement of account of Leonidas L. Johnson, with the succession of Wyatt G. Webb, deceased, as to purchase at succession sale of Webster Plantation, slaves, etc., attached May 10th 1858,” in connection with the above item in the executor’s account, to establish the assumption. This document is certified by the clerk of the court, on éáh May, 1866, to be on file and on record in his office, and in it is set forth that Johnson had assumed the said “debts due by the said succession to Brown, Brothers & .Co., (Nicholson & Qo,). amounting together, the interest calculated to. day of sale, 10th May, 1858, to $35,948 35;” but it'is unsigned and is acknowledged,, as appears, by Johnson, at Helena, Arkansas, on March 25th, 1867, after the institution of this suit, as the. settlement between himself and the executor of W. C. Webb.

We cannot give to this instrument the effect claimed by the plaintiff. It contains a material change in the terms on which the property of the Succession was ordered, to be sold, and on which, the proces-verbal shows it was sold, and has in itself no date prior to the date of the clerk’s certificate, to-wit: 4th May, 1866, and no effect as to Johnson’s creditors prior to his acknowledgment 25th March, 1867. There is no authentic or other satisfactory evidence in the record, of any assumption by Juhnson, Which will bind the succession of Webb. The succession is in no worse position as to Brown, Brothers & Co., by the sale to Johnson, than if no sale had been made. Plaintiff’s claim consequently rests upon the original mortgage of 7th March, 1846, and the assumption of W. C. Webb, in his purchase from E. Webb in 1854. There is no reinscription of this latter assumption, and it is therefore extinct.

The former was reinscribed on 6th December, 1855, and again on 24th ■July 1866, a lapse of more than ten years. Plaintiff invokes the maxim contra nonvalenieni to excuse this delay. The proof does not warrant the application of this maxim, if the maxim can apply to such a case. The inscription on 6th December, 1855, ceased to be evidence as to all parties on the 6th December, 1865; and that on the 24th July 1866, having been made after the title had passed from those bound by the mortgage, was ineffectual, and the mortgage is extinct;

The item in the account homologated on the 4th September, 1858, as to the assumption by Johnson, cannot be taken as an acknowledgment on his part, or a judgment against the succession of Webb.

It is a memorandum by the executors, that Johnson had assumed a certain amount payable to Brown, Brothers & Co., for which he would be entitled to a credit from the succession when paid.

It may be an admission of debt, and an interruption of prescription of the note as to the succession; a question not before us; but cannot have the effect of creating an obligation on the part of Johnson, or interrupting any prescription as to him. His subsequent payment of similar notes could not interrupt prescription as to the one now in suit, although originally a part of the same indebtedness. It required some acknowledgment of the debt evidenced by the note sued on, which has not been shown.

We think the plea of prescription was properly sustained.

Judgment affirmed, with costs.