author: Taliaferro, J. IIoweix, J.

text:
    No. 1543.
    Gustave Salbadore v. Crescent Mutual Insurance Company et al.
    A resolution of llio Board of Underwriters of the city of Kcw Orleans, authorizing a reward to be paid by tho insurance companies for the apprehension, with sufficient evidence to convict any person guilty of the crime of arson, can not be explained or interpreted by parol testimony, nor is the testimony of tho iiresidenfc of the Board of Underwrites admissible i'or that purpose.
    The several fire insurance companies of the city, by resolution of the Board of Underwriters,, instructed John Youenes, fire warden, to make a searching investigation into the cause anil origin of all fires which occur in buildings, stocks of merchandise, or on board of any vessels, while lying m this port, insured by any insurance compauv m the city of How. Orleans, and to offer a reward of five thousand dollars lor tho conviction of any p.-rsort er persons found guilty ol' participation in any such fire.
    Jolm Youenes, in conformity to this authority, offered a reward of five thousand dollars, to be-pa'd to any person or persons who will procure such testimony as will convict, in the criminal court of this slat?, any person who maybe guilty of the crime of incendiarism., Two criminals, Rose and Abrahams, were imprisoned for the crime cf arson before the publication of this reward was made. After it was made, and before the trial in the criminal court, the plaintiff in this sail procured such testimony as led to their co ivietion He now seeks ti enforce payment of tho reward. The insurance companies resist the demand, on tho ground that the reward was only intended to cover, and did only cover, such crimes as might he committed after it3 publication, and did not apply to ctimes that had been committed before the reward was made. Held — Tliaf, by a fair interpretation cf the meaning of the language used in the resolution and tho notice given by Youenes, the reward was demaudablo on producing the necessary evidence to convict, whether tho crime had been committed before or after tho publication; that the terms of tho obligation cleat ]y show the object of the company to be to aid in the punishment of crime, and the protection of themselves and the public against criminals cf this character, and xrt merely as a. warning to deter parties from committing incendiary crimes.
    To enable a defendant to avail himself of the benefit of a transfer of a litigious right by paying to the transferred only the amount which he paid for the claim, with interest, lie must accept the validity of the claim. He can not contest tho claim, and, after being defeated, urge against the transferrec the litigious character oí his tillo.
    APPEAL from Sixth. District Court of New Orleans. Dwplantier, J.

      F. Fuselicr, 31. A. Dooley, 8. Belden, J. MicJiel and T.’ Droueü, tor plaintiff and appellee. 31. 3L Oohen, for defendants and appellants.
   Taliaferro, J.

In December, 18GG, a number of the insurance companies of New Orleans, through their joint agency, designated as “ The Board of Underwriters of New Orleans,” caused to be published in the newspapers of the city the following advertisement:

“Five Thousand Dollars Reward — New Orleans Board of Underwriters, December 20, I860. — Whereas, The unusual frequency of fires daring tho last five mouths, both in town and country, resulting in tbe destruction of an enormous amount of property and serious loss of life, and greatly endangering the persons and property of the citizens at largo, prove incontestably that tlio said fires are, for Ihc most part, willful and criminal acts of badly disposed persons,

“ Be it, therefore, resolved, That Captain Youenes, tho firewarden of this board, be instructed by tho chairman of the fire committee to-institute before tho proper legal tribunal tho most thorough and searching investigations into the cause and origin of all fires which occur in buildings, stock of merchandise, or on board vessels, while lying in this port, insured by any insurance company of this city, and, furthermore, that ho be authorized to offer a reward of five thousand dollars for tlie conviction of any person or persons found guilty of participation in any such fires.

Be it further resolved, That the foregoing preamble and resolutions be published by the secretary of this board in four of the daily papers of this eity for one month.

“By order of the board. • CHARLES BRIGGS,

Chairman of the Eire Committee.

“Attest:

“James II. Wheeler, Secretary.,j

“In conformity with, and by authority of the foregoing resolutions, 1 hereby offer a reward of five thousand dollars, to be paid to any person or persons who will furnish such'testimony as will convict, in the criminal court of this State, any person or persons who may be guilty of any participation in the crime of incendiarism.

doc23 lm 2dp “JOHN YOUENES, Eire Warden.»’

The plaintiff brings suit against -the various insurance companies, sixteen in all, designating each by its title, (among them the one named in the title of this suit,)’ for this reward of five thousand dollars, alleging that by his efforts' and through his instrumentality he had caused to be arrested, tried and convicted two incendiaries,, named Eose and Abrahams, found guilty of the crime of arson, in setting on fire a dwelling house on Canal street, in New Orleans; that he had claimed from defendants the reward proposed by them, but that defendants refused to bestow it.

The answer is a general denial. The ’defendants resist the claim on the ground that the proffered reward related to acts of incendiarism posterior to the date of the public notice and not to acts of that kind anterior to that time; that, as the fire caused by the criminal act of Rose and Abrahams occurred in August, 1866, several months previous to the reward offered, defendants were under no obligation to pay the plaintiff’s demand. As the interpretation to he given to the publication of defendants is to have au important hearing in determining this case, we shall, before examining the facts, consider the question as to-its purport. Aud here it will be proper, first, to dispose of a bill of exceptions taken by defendants to the refusal of the lower court to admit the testimony of the president of the Board of Underwriters, which was offered to prove the object and intention of the board in authorizing the reward.

The evidence was properly rejected. The acts should speak for themselves. It was not for the defendants, after having ushered forth to the world a formal official document, to defeat rights acquired under its conditions by explaining away its meaning by parol proof. The facts seem to he that the incendiaries were arrested in August, 1866, but not tried and convicted until January, 1867, about a month subsequent. to the issuing of the reward offered by defendants.

The verbal criticism resorted to by defendants to show that the terms in which their publication is couched, and the words and expressions employed, indicate their intention to have been to bestow rewards only for the conviction of persons who should, subsequently to the date of their publication, be guilty of acts of incendiarism, signally fails in our opinion to effect that purpose. The reward is offered “to any person who will furnish such testimony as will convict, in the criminal court of this State, any person or persons who may be guilty,” etc. This expression may bo guilty ” certainly can be applied to those who were guilty at the time the reward was announced as well as to those who might become guilty afterwards. But give the expressions the meaning contended for by the defendants and wo do not see that it benefits them. At the time the reward was offered, December 23, Rose and Abrahams were imprisoned on the charge of having set fire to a dwelling house on Canal street in the month of August previous. They were, convicted about a month afterwards. They committed the act in August, 1866, but were not found guilty until January, 1867. If the words who may be guilty” are taken to mean those who may hereafter be guilty, or may hereafter' be found guilty, in the sense contended for by defendants, the plaintiff’s position is equally covered. No condition is stated, in the publication, in regard to the time of the commission of the crime ; it treats only of conviction and the testimony to effect that object. It is insisted, however, that the reward was not intended for the conviction of the offenders who were arrested in August, 1866. Wo find no word in the entire instrument that sustains this position. The object of the defendants was plainly' to procure conviction and punishment of persons guilty of the terrible crime of arson, to have the salutary effect contemplated by the infliction of punishment, that of deterring' others from the commission of the same crime. Would not the conviction and punishment of an offender in January, 1867, for arson, the offense having been committed before the rew'ard was offered, be just as salutary as if the crime had been committed after the reWard was proposed ? * -•

Wo think a fair interpretation of the instrument, in its entirety, is against the view set up by the defendants. If there ypre ambiguity-existing, the act would be rather construed againsts the defendants. C. C. article 1953. ^

Several witnesses were examined in regard to the agency of the plaintiff, and his efficiency in bringing the offenders to trial, and securing their conviction. The evidence is, to some extent, conflicting and contradictory. Three of the witnesses were jurors on the trial of the parties convicted. One of them, Copes, testified that the jury did not attach much consequence to what the plaintiffj as a witness against the accused, said. The testimony of this witness appears to he somewhat erratic. Nelson and Nick, who were also jurymen, say that the plaintiff’s testimony was very' important to the State, particularly in regard to Rose. Nick says the jury thought plaintiff the most important witness in the case, and by whose testimony, chiefly, the accused were convicted.

Ganacheau, secretary of one of the companies, made an affidavit for the arrest of the accused, founded upon the statements of several persons, the plaintiff among them. Says his .affidavit was made previous to that of the plaintiff’s, and that before his own affidavit was made, Rose was arrested.

It appears that the affidavit of the plaintiff was the one upon which the legal investigation was carried on. It has upon the indorsement of the recorder. There were, perhaps, several affidavits made for the arrest ol tiie accused persons.

To go further into the details of-these parts of the evidence, which seem at variance, we deem unnecessary. We are satisfied that the record shows the plaintiff to have been an active and very efficient-agent in the prosecution and conviction of the offenders. He testified himself, and procured the attendance of another witness, Poweij on the part of the State. This witness -testified to important facts onithe trial of Rose and Abrahams.

Drouett, a witness in the case under consideration, says that it was only by the evidence of the plaintiff that Rose was identified as the man who was seen running out- of the store at the time the fire occurred.

Upon the whole, we have no doubt tbo judgment of tlie court; a qua was correctly rendered.

It has been shown to this court that, during the pendency of this appeal, the judgment of the lower court has been transferred by the plaintiff, with subrogation of his rights in the same, to a third party; and that the defendants hold this transfer to ho the sale of a litigious right, and, in the event, ,off the confirmation of the judgment of the lower court, they claim” the benefit of the law in such cases, of being required to pay only such sum, and interest, as the transferree paid for the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the district court he affirmed, with costs in both courts, subject to such modifications, if any, as the district court may, upon sufficient evidence, find it proper to make, on the ground of the transfer of the judgment, pending the appeal, being the sale of a litigious right, according to article 2622 of the Civil Code; and for this purpose, we remand the case. r

Mr. Justice Howe recused in this ease.

On Rehearing.

IIoweix, J.

On tlic former hearing of this cause, we affirmed the judgment of the court a qua, in favor of the plaintiff, for the amount of the reward of five thousand dollars, offered by the defendants, to he paid to any person or persons who will furnish such testimony as ivill convict, in the criminal court of this State, any person or persons who may he guilty of any participation in the crime of incendiarism ;V hut, as it was shown that, during the pendency of the appeal, the judgment had been transferred, with subrogation by plaintiff to a third party, we ordered the case, on the prayer of the defendants, to bo remanded, to enable them, in the event of an affirmance, to shoiv the consideration of said transfer, and avail themselves of the provisions of article 2622, C. C., relative to tho transfer of litigious rights.

Tho defendants applied for a rehearing, except on the point as to which the case was remanded ; ” and two days thereafter the plaintiff also asked for a rehearing, in order to amend our decree, by striking out that portion remanding the cause.

Upon this, the second hearing, we have been unable to change the opinion upon the merits of the causej hut we think the action of the defendants, in protracting the litigation, warrants the change prayed for by plaintiff.

In the case of Leftwich v. Brown, 4 An. 104, the following language of the court is peculiarly applicable to this case, to wit: Tho laws, on which tho articles of our Code, concerning litigious rights, are founded, have no other object than the prevention of unnecessary litigation, which is attained in a great measure by tho check they impose on the cupidity of speculators in lawsuits. They enable the defendant to take the iilace of the purchaser of the suit against him, by paying tlio price ho has paid for it, with interest. Thereby, the litigation is ended, and the object of tho lawr attained. But if, as the defendant has done in this case, ho continues to contest the suit, raises difficulties as to tho right of tlic plaintiff to recover his debt, and protracts the litigation, ho evidently defeats the very object of the law, and can not avail himself of the provision which the law has established in his favor, for the purpose of terminating litigation. To permit him to do it, would be to defeat the very object of the law.”

It is therefore ordered that so much of our former decree as remands (his cause to the lower court be set aside, and that, in other respects, it remain undisturbed.

Mr. Justice Howe recused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 2710.
    B. F. Wharton, Tutor, et al. v. Executors of William Silliman and Heirs of Thos. Silliman.
    In tlie testament of William Silliman appeared the following clause: “Item 8. — I give and bequeath to the children of my late brother, Thomas Silliman, one-fourth of the remainder, to be divided equally with those that may be living at my death.” The children of a daughter of Thomas Silliman, who had died befóte the date of the testament, brought suit to be recognized as 1© alces under tho will Held — That the term “children,” as used in this testament, om • included the children of Thomas Sill.man, that might be living at the death of tho testator, and did not inc.ud-* the descendants of those who had died before him; that their mother, having died before the date of the will, was not embraced among tho0 legatees, and her children could not succeed to her; that tho grandchildren could not inherit undor this clause in the will.
    from the Parish Court of East Pcliciana. JBoediclcer, Parish Judge.

      McVea Kiibourne ancl Muse & Philips, for plaintiffs ancl appellees. Gross <£ Pardee ancl J>. J. Wedge, for defendants and appellants.
   Howell, J.

The plaintiffs claim to ho recognized as legatees under the will of their deceased granduncle, William Silliman, by virtue of the following provision of his said will:

“Item 8. — I give and bequeath to the children of my late brother, Thos. Silliman, one-fourth of the remainder, to be divided equally with those that may be living at my death.”

They are admitted to be the grandchildren of the said Thomas Silliman, and the only children of his daughter, Caroline C. Silliman, deceased, wife of B. P. Wharton.

It was argued, in this court, that, as the record is silent as to the date of the death of Mrs. Wharton, the mother of the plaintiffs, and their relationship is admitted, as set forth in the petition, it may be inferí ed that she died since the testator, and therefore they are entitled to inherit or receive in her right.

If any doubt existed as to the effect of the admission, under the pleadings, as to this fact, the case would have to be remanded for evidenco thereon, as the point was not raised or passed on in the lower court, and does not appear to bo properly presented in the record.

But it is inconsistent with plaintiffs’ theory ot tho case, ancl the right by which they claim to be recognized as legatees, under the will. Their theory is, that tho word “ children,” used in the above clause of the will, includes grandchildren, and that, as such, they are legatees in their own right. This is made evident iu their first brief filed, in which it is said“ The sole question for the consideration of the court, relates to the signification ot a single word — ancl that word is children.''' The inference suggested is not warranted.

In support of their claims, which were recognized by the court a qua, they cite:

First — Article 3522, which says: “Whenever the terms, of law, employed in this Code, have not been particularly defined therein. they shall be understood as follows: “ No. 14 — Children.—Under that name are comprehended, not only the children of the first degree, but the grandchildren, great-grandchildren, and all other descendants in the direct line.”

It is clear, from, the language of this article, that this definition is confined to the word as used as a term of law in the Code itself, and to be applied where the context may require a construction or interpretation of its scope, but not when used in the ordinary affairs of men, or in written instruments, containing or evidencing their agreements, or the disposition of their property.

Men, in their dealings and writings, use words in their most Known, and usual signification. When referring to the family relations, terms are used in their common meaning aud acceptation, to designate the classes or degrees intended. Thus, parent and child, mean either father or mother, and son or daughter, the immediate progeny of the parent. If another degree is meant, the appropriate term is used i thus, grandparent, and grandchildren. A man, in speaking of, or providing for, his children, will refer to the issue of his body, direct, and not to the issue of his issue. A father’s authority is over his immediate children; and, as they become parents, their authority is over their children, and so on, in succession. And in this feature in the respective domestic relations, may originate the limitations to the meaning of the terms ordinarily used. Nature suggests and maintains the respective distinctions, and directs the thought or mind to the several successive degrees of relationship only when the distinctive appropriate terms are used.

The plaintiffs exemplify this in the description which they give of themselves in their petition. They describe themselves as grandchildren, not children, of Thomas Silliman — as the children of Caroline Silliman, one of his children, and yet invoke a cold, technical definí-, tion of law to prove themselves to be considered as the children of 'Thomas Silliman.

Without mentioning the various categories in which the word “children” comprehends also the grandchildren, groat-grandchildren, and other descendants in the direct line, when the Code is fixing the rights and obligations of persons, it is sufficient, in this case, to say, that the Code does not imply that the word shall have so comprehensive a signification, whenever used by any one in common conversation, or in making contracts for the support and education of the members of his family, or in constituting heirs or legatees to his estate.

They next cite the second clause of article 1480, C. C., which says: Under the name of children, are included descendants, of whatever degree, it being understood they are only counted for'the child they represent.”

The meaning of this clause, in the connection in which it occurs, is plain. It describes who are forced heirs — those in the direct descending line, whoso legal right of inheritance is fixed in the section of which the article is a part. But it recognizes the distinction of degrees, and declares, specially, that those of each degree shall stand for the child they represent, and not equally with such child. It is the law, speaking for itself^ and declaring whom it intends to embrace in its own provisions, hut not establishing a lexicon for ordinary uses. It does not say that the grandchildren of a man are his children, but it establishes a legal right in favor of children and their descendants — a right not involved in this controversy.

The next authority relied on, is the case of Poydras v. Poydras, 1 La. 153, which is rather adverse than favorable to plaintiffs’ position. It simply decides that a grandniece is not embraced in the term nieces, used by the testator.

, We conclude that the term “ children,” neou not, necessarily, include-grandchildren, when used in a will.

Reverting to the clause of the will under consideration, and construing it by the rule announced in article 1705, C. C., cited by plaintiffs, we experience little difficulty in determining who are the legatees therein constituted. They are only such children of Tilomas Silliman, the brother of the testator, as were living at the date ot the testator’s death; and, as the mother of plaintiffs was not living at that date, she was not embraced among the legatees, and her children could not succeed to her, no right having vested in her, and they were not included in the expression “the children of rny late brother, Thomas Silliman;” for the portion bequeathed to that branch was “ to be divided equally among those who were living at the death of the testator.”

If the plaintiffs were embraced or comprehended in the word “children,” used in this clause of the will, they would each be entitled to the same share or proportion as their uncles and aunt, and not to a. child’s portion, in right of their mother.

They are not legatees or beneficiaries, under the will.

It is therefore ordered that the judgment appealed from bo reversed,, and that there bo judgment in favor of the defendants, with costs in. both courts.

Rehearing refused.


author: Howell, J. Wylt, J.,

text:
    No. 2645.
    Julia A. Nutt, use of, etc., et al. v. Citizens’ Bank of Louisiana.
    'Wliere a stockholder efi the Citizens’ Bank gave a mortgage on his property to secure the subscription ot stock, and to secure a stock loan, under the charter of the bank, which proYideo that each stockholder should be entitled to a loan of one-half of the amount oí his stwck, and the mortgage stipulated that the pi operty mortgiged shouli stand hypo.hecated for any stock loan so mado, it was held that the mortgage included in its securities such stock loan; that the statements in the charier of the bank, ti at one-half of the amount of the stock was the maximum which the bank Was authorized to loan to a Stockholm r < n pledge of Ins stock, and the recital in the act of mortgage of the number of shares of stock owned by the mortgagor, was sufficiently definite, and operated a notico to all parties of tho extent of the incumbrance on the property mortgaged.
    Barlies acting in a representative capacity or h> Iding bank stock, and having a°sumcd the obligation ol the mortgagor to pay the stock and reimburse the back for a stock loan, occupy iho eamo position towards the bank that the orignial mortgagor did, and if there be any doubt their acts will be interpreted agamst ihera.
    'The assumption of a mortgage by a third purchaser, or mortgagee is not a novation rf the mortgage. Novation only takes place when the intention of the parties to novate is distinctly announced. The lact that the bank stock was transferred subsequent to the roaL estate subject to the mortgage given to secure the payment of the stock, did not affect the mortgage rights of the bank.
    APPEAL from tlie District Court, parisli of Tousas. Hough, J.

      Mayo & Spencer and Farrar & Beeves, for plaintiff and appellant. ■Julius Aroni, for defendant and appellee.
   Howell, J.

Tlie question presented in this suit is, whether or not two acts of mortgage executed respectively on twentieth. February, 1838, and fifteenth January, 1839, by Austin Williams and wife in favor ■of tlie Citizens’ Bank; to secure five hundred shares of the capital stock of said hank, embrace within their security such loans as might bo made under tho provisions of tlie charter of the bank to said A. Williams as a stockholder, on his said stock.

Tho language of the said acts on this point is as follows: And in order to secure his subsciiption in the capital stock of said bank, and -also to secure the payment of the principal and interest of the loan raised or to be raised to form the capital of said bank by tho issue of ■bonds signed by the Governor, etc., * * they do, by these presents, jointly and severally mortgage in favor of the Citizens’ Bank of Louisiana, tlie following described property, * * All of which property is to remain thus mortgaged until all of said bonds shall have been paid and redeemed in capital and interest, or until said Austin Williams shall have paid the amount of his shares, and have reimbursed the loan which ho may have obtained as stockholder, unless he should have previously transferred his shares and have been entirely discharged by the said bank. The said Austin Williams and Mrs. Caroline M. Williams, his wife, agree that tho present hypothecary obligation granted by them to secure said stock and the reimbursement of any loan which he, the said Austin Williams, may or shall have obtained of said bank, shall bear interest at the rate of ten per cent, per annum, if not punctually paid when due, and that all the above «described property shall likewise remain specially mortgaged to secure the payment of such eventual interest. The said Mrs. Caroline M. Williams does hereby renounce in favor of said bank all rights and privileges, whether dotal or of any other kind or nature whatever, which they may have upon the above described property, ceding and transferring her said rights to the said bank.”

The existence and validity of the obligations resulting from the subscription of Williams to five hundred shares of the capital stock of.the bank, and of the mortgages securing them, granted by the said acts of 1833 and 1839, are not. questioned; but, it is contended by plaintiffs, whose rights are derived through Mrs. C. M. Williams, the mother of the plaintiff, Mrs. Nutt, that the said acts did not grant or create a mortgage to secure any loan or loans made to Williams or his wife or any subsequent owner of the mortgaged property, and that if they expressly embraced the loans upon the stock, the mortgages are void, because the exact sum or sums secured are not declared in them as required by article 3277 Civil Code.

In the case of the Citizens’ Bank v. Nicolas, 3 An. 112, the stipulations and recitals in the act of mortgage were similar to those in this case, and virtually the same grounds of defense were made, and were decided in favor of the bank upon the authority of the decision in the case of the Union Bank v. Guice, 2 An. 249, in which it is said: “It was provided by the charter of the bank that, after the sale ol the State bonds, each stockholder should be entitled to a loan, equal in amount, to one-half of his stock. The acts of mortgage stipulated that the property affected for the security of the stock, was also to stand hypothecated for the stock loans,” and it was held that the mortgage, the stipulations of which, the record shows, are similar to those in this case, was valid, the sum being stated with sufficient definiteness.

In the case at bar, the charter, which is quoted by both parties, provides that each stockholder shall be entitled to a loan equal to one-half of his stock as in the above mentioned charter, and the two acts •of mortgage under review state the amouut of the stock secured blithe mortgage and also that it (the mortgage) is granted to secure the ■stock and the reimbursement of any loan obtained by said stockholder. This, according to the interpretation in the above cited cases, is a stipulation in the acts of the maximum to be advanced, to wit, one-half of the amount of the stock subscribed. All persons arc informed by said acts that the property described in them is encumbered with a mortgage for loans to bo made to the extent of one-half of the stock mentioned in addition to the amount of the stock itself. The case iu 3 Annual, p. 112, is quite jdaiu and direct on this point, as shown by the briefs and the opinion, and we must infer that the .question has been considered settled since that date, as we do not find that it has since been agitated.

The parties m the case now before us, are in legal contemplation, the parties to tlie original acts of mortgage, and if there be any doubt,, the interpretation of those acts must be against the plaintiffs, who hold through the parties that contracted the original obligation, to wit: Mr. and Mrs. Williams, the parents of Mrs. Nutt, one of the plaintiffs, from her the other plaintiffs acquire — the origin of her right being the donation of a part of the price of the mortgaged property-in the sale of it by her mother, Mrs. Williams, to Haller Nutt, the husband of plaintiff, who assumed the mortgage in favor of the bank.

The other points, as to the existence of a loan to Austin Williams-prior to the sale to Haller Nutt and the novation of the mortgage by the latter, present no difficulty. The record shows that such a loan existed and that the mortgage was not novated, bub expressly assumed by Haller Nutt for the balance of the said loan existing at the date of his purchase from his mother in law. The laofc that the transfer of the stock was made at a subsequent date to that of the real estate subject to it, did not affect the mortgage rights of the bank. No act of the mortgagors could impair the rights of the bank.

We think the judge a aao decided correctly.

Judgment affirmed.

Wylt, J.,

concurring. Hr entertain a different view of the law (C. C. 3277) on the main point presented in this case, to wit: The-necessity of expressing in the act of mortgage the exact sum for which it is given; but as the question seems to be settled in the decisions in 2 An. and 3 An., which are referred to in the opinion of the court, I will not render a dissenting opinion, but will concur only on the ground of stare decisis.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2424.
    Henry Weber v. Louis Frost et. al.
    An injunction granted on the allegation of nullity of tlic judgment on which execution issued',. will be dissolved, with damages, if the action of nullity is barred by prescription
    The dismissal of the appeal on the ground that the judgment of the lower court was not signed by the judge will not interrupt the prescription of the action of nullity.
    The c nstitutional provision requiring all process to issue in the name of the State of Louisiana, is sufficiently complied with, if the citation is headed “State of Louisiana.*
    APPEAL from the Fourth District Court, of New Orleans. Théard, J.

      li. King Outler, for plaintiff and appellant. Hyman, Wallace & Handlin, ior defendants and appellees.
   Taliaferro, J.

Frost, having obtained a judgment, in solido, for $1250, against Fox and his surety, Weber, for having illegally sequestered his property, and thereby caused him annoyance and injury, issued execution. Weber enjoined the writ, and in his petition for injunction prays that the judgment under which the execution issued be declared null and without effect. The defendant in injunction and appellee, filed a peremptory exception, averring that more than one year has elapsed since the judgment complained of became final; that it has become res judicata, and that no action will now lie to annul.

The court below sustained the exception, and dissolved the injunction without damages. The plaintiff in inj unction has appealed. The appellee prays that the judgment bo amended by allowing him twenty per cent, damages, two hundred and fifty dollars, and ten per cent, interest on the amount of the judgment enjoined. It is proper here to remark that the judgment now sought to be annulled, was before this court in April, 1869, on appeal, when the appeal was dismissed, on the ground that the judgment of the lower court was not signed by the judge.

One of the grounds for annulling is, that there was no action of this court on the merits of the ease; that, as the appeal was dismissed on merely technical ground, the action of nullity would be prescribed only alter the expiration of one year from the dismissal of the appeal.

We see little force in this position. The record of the suit appealed from is before us as evidence in the present case. It shows that the judgment was rendered .on the tenth of June, 1867, and that it was signed on the seventeenth of that month by the judge. The inference then, is strong that the non-appearance of the judge’s signature to the judgment, as shown in the transcript of appeal brought to this court in April, 1869, was owing to a clerical omission.

The plaintiff alleges that there was no citation of parties in that case, pointing out, that by a provision of the State constitution, all process is required to issue in the name of “ The State of Louisiana,” and contending that the citations in question are null, as the style used is State of Louisiana.” The constitutional requirement, w'e understand to bo is, that process shall be issued in the name of the State, and if the style of the process is indispensable in citations, a point which it is here unnecessary to determine, the words “ State of Louisiana,” without the definite article “ the,” are sufficiently clear to indicate the authority lrom which the process emanates. 3 M. 720.

The plaintiff fails to set out intelligently and distinctly any thing illegal or fraudulent touching the merits of the controversy resulting-in the judgment he. seeks to annul, and we discover nothing of that kind from an inspection of the record. We thence conclude that the exception taken by the defendant was properly sustained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended so as to award the defendants in injunction one hundred dollars as damages, and, as thus amended, that the judgment be affirmed, with costs.

Behearing refused.


text:
    No. 1837.
    Charles Case, Receiver of the First National Bank of New Orleans v. Robert Watson.
    A defendant is not permitted to file an amended answer, changing the substance of, or contradicting the original answer. Nor will the simple averment of the defendant, unsupported by affidavit, that tho new matter set up in tho amended answer was unknown to him at tho time of the filing of the original answer, entitle him to have it filed, if the record makes it probable that he knew the facts as well at the filing of the first answer as he did afterwards. To exclude the testimony of a witness taken under commission, on tho score of interest, which, by the act of March 13, 1867, he is only permitted to give in open court, the record must disclose his liability, and show what interest tho witness has in tho litigation.
    APPEAL from Fifth District Court of New Orleans. Beaumont, J.

      J. ID. Souse and George D. Bright, for plaintiff and appellant. Bellows & Mills, B. M. Day, and J. S. Beckwith, for defendant and appellee.
   Taliaferro, J.

This suit is instituted to recover $37,721 11, the-amount of a promissory note, made and indorsed by the defendant, and1 of which the plaintiff avers he is the owner and holder. The defendant filed a peremptory exception and answer to this demand, specially denying the plaintiff’s ownership of the note, averring that it had never become an asset of the bank; that it was held by May, at that time president of the bank, for account of whom it might concern; that it was given without any equivalent or consideration, and was merely held by May to represent a transaction between himself and James E. Dunham, given during the temporary absence of Dunham, in place of another note of smaller amount, executed in favor of May for three hundred and fifty shares of the capital stock of the bank which he held as security for the payment of the note. The defendant subsequently filed a supplemental answer, reiterating his former allegations, and detailing more specifically the transaction relating to his execution of the note sued on, and praying judgment in his favor; that May be decreed to be primarily liable, and that tho amount to his credit in the bank be charged with the amount of the note; that defendant’s action in the matter be recognized as that of a trustee, and that his liability be only for the faithful performance of his trust.

Judgment was rendered in tho court below in favor of the defendant, and the plaintiff appealed. The exception, relating to the-plaintiff’s ownership of the note, was properly overruled. In a case precisely similar, recently before this court, it had occasion to pass-upon this question.

It will be proper here to examine two of the several bills of exceptions found in the record; one of which was taken by the plaintiff, the other by the defendant. After the trial of the cause had been gone into, the defendant offered to file a second supplemental answer, in which he averred the bank ivas the owner of tho note, and charged that he was induced to execute it by the fraud, covin, deceit and misrepresentations of May, in collusion with others. This amendment was objected to by the plaintiff, on the ground that it came too late, being offered after the cause was fixed for trial and even during the trial. That such a proceeding is forbidden by a rule of the district courts of New Orleans. Further, the plaintiff excepted that the amended answer changedtheissu.es tendered by, and contradicted the allegations of, the previous answers. The amended answer was admitted by the court to be filed, to which ruling the plaintiff reserved his bill of exceptions. We tliink the court erred. Articles 419 and 420, of the Code of Practice, treat of amendments, which are reciprocally allowed in petitions and answers, “ provided the amendment does not alter the substance of the demand.” A defendant is not permitted to file an amended answer, changing the substance of, or contradicting, the-original answer. 20 An. 53; 4 N. S. 516; 8 N. S. 407; 2 An. 453. In .this case the defendant, in his original answer, denies that the bank is the owner of the note; and that if it is due by any one, it is due by May. In the third answer he admits the bank is the holder, and that-he was induced to execute it through- the fraud of May and others. In the first two answers he makes no allegation of fraud. The defendant now sets up that the falsehood and misrepresentation by which he was induced to sign the note, was not discovered until after the case was fixed for trial. This is a mere averment. The case was-called and fixed for trial on the twenty-first of December, 1867, more than three months before the filing of the third answer, and the trial commenced seventeen days before it was filed.

We see from the record that he knew of the failure of the bank, and of the insolvency of May, several months before he filed his first answer. He knew when the bank failed what May’s knowledge of its. affairs had been probably as well as he could have learned it since.

It has been frequently decided by this court^fchat an answer can not be amended after the case has been called for trial. 13 An. 536; 1 R. 58; 14 An. 355; 3 R. 123; 11 R. 448 ; 2 An. 905; 7 An. 576. It is. shown that by a rule of the district courts of Now Orleans, that “no-amendment shall be permitted to be made to any petition or answer after the cause has been called and set for trial.”

The other bill of exceptions we proposed to examine, is the one taken by the defendant to the admission of May’s testimony, taken, under commission, on the ground that evidence previously taken and found in the record, discloses thé fact that May is interested in the result of the suit, and can not, under the provisions of the act of thirteenth of March, 1867, testify in his own favor, unless in open court.

We are unable to see such a disqualifying interest in May as will1 exclude his testimony, t»vken under commission. We see no liability on May to pay the note, or what benefit he is to derive from the defendant’s having to pay it. We think the admission of the evidence-was proper.

The. defense which, the defendant aims to make is, that he signed the note sued upon to be substituted for that of his friend Dunham, about becoming due in his absence, and unprovided for; that he was induced to do so by request of May, who held certain stock of the bank, belonging to Dunham; to secure him as indorser of the note to be taken up, and that May transferred this stock of Dunham- to Watson, the defendant, as security to him for signing the note, representing to Watson that the stock was -amply sufficient, and more than ample to secure him; that May represented that a compliance with the request, ■to sign the note, would i>rcvent the stock being thrown at that time on the market and sacrificed; whereas, in the course of a month or two .a large dividend would bo declared, and the stock cont’nue valuable. The defendant contends, that if the note have been entered upon the books of the bank, as belonging to it, it was done irregularly; that its amount should have been placed to his credit as the last and only indorser thereon; that the bank gave no consideration for the note; that May, as president and sole manager of the affairs of the bank, well knew why it was given, and no transfer of it to the bank by May •could vest any right to it in the bank.

Under the pleadings to which we restrict our examination of this case, we think the defendant has failed to exonerate himself from liability. The evidence of the defendant himself docs not, in om view, show that at the time he made the note, May held out inducements to him by saying anything about the value of the stock or the probability of its paying a dividend. Watson says: “To give Mr. Dunham thirty days’ grace, I did this (sign the note) as the best thing I could do.” • •

The evidence in the case goes to show that there was, no time, until a considerable period ¡after the maturity of the note, that the stock would not have sold for a sufficient amount to discharge the note. The understanding- seems to have been that the stock was to be sold within the thirty days extended for the payment of the note. May, in his testimony, swears “ that the note in question was regularly discounted by the bank, and that Watson, on his own order, received the amount. He took up, about the time of receiving the above discount, a note of James E. Dunham for upwards of thirty thousand dollars, which was among the discounted paper of the bank, and one of its assets. Dunham’s note was payable on demand; I took the usual course to enforce its payment, that is, notifying Mr. Dunham that it had been called in, and allowing him the usual grace, during which time, Watson called on me, and representing himself as Dunham’s friend, requested mo not to enforce the payment of Dunham’s note, which I declined to agree to. Watson then, or shortly afterwards, presented his own note to me as president of the bank, for upwards of thirty thousand dollars, for discount, which was accepted by me in tlie same capacity, for the bank, and, as before stated,'he afterwards took up Dunham’s note, evidently to my mind, with the funds ho íeceived from the bank on his own note; a few days afterwards ho called upon me again and requested a transfer of the three hundred and fifty shares of the stock I had received from Dunham, which I agreed to and did transfer (as the trasfer book will show) to him upon being satisfied that I was released from liability as indorser on Dun-ham’s note.” He states further that Dunham’s note never belonged to him in any way — that it was regularly discounted by the bank for account of James E. Dunham.

We are satisfied from the evidence presented that the judgment appealed from ought to be reversed.

It is therefore ordered that the judgment of the district court bo annulled, avoided and reversed. It is further ordered, adjudged and decreed that the plaintiff recover from the defendant the sum of thirty-seven thousand seven hundred and twenty-one dollars and eleven sents, with interest at eight per cent, per annum from eighteenth of April, 1867, until paid, and all costs of suit.

Justices Howell and Howe are recused in this case.

Rehearing refused.


author: Taliaferro, J. Ludeeing, C. J. Wyey, J.,

text:
    No. 1384.
    Salmon W. Hoyt v. Hiram Benner et al.
    Xite failure of a litigant to place tbe required internal revenue stamps on tlie petition ancl affidavit in an attachment suit, under the acts of Congress of 1864, or to have the documents stamped, as required by the collector of the district, will work the nullity of the proceedings.
    Auattaclnnent suit, broughtin 1865, while the internal revenue law was inforce, requiring stamps to be placed on all petitions and affidavits in any judicial proceeding, will be dismissed on exception, if the amount of stamps required by the act of Congress has not been placed on the documents and pleadings before the filing of the suit. Alter suit has been filed and the process issued without the stamps being affixed, they must be placed there by the instructions of the collector of the district, under penalty of nullity. The placing them on the documents by the party, alter suit is filed and the opposite party cite.d, will not avail.
    APPEAL from Fifth District Court of New Orleans. Leaumont, J.

   Taliaferro, J.

This case was before the late Supreme Court, iu December, 1866, and was then remanded to the court of the first instance for further proceedings. The suit was commenced by attachment. The defendants took a rule to set aside tho attachment, on tho ground that neither the affidavit nor the petition has any such United States revenue stamp as is required by law.' The rule was dismissed, and tho defendants then filed a peremptory exception to the attachment and suit,, on the ground of nullity arising from failure by the plaintiff to affix the required revenue stamps to tho several instrumehts requiring stamps, according to the revenue" laws. The appellate court overruled this exception without prejudice, and, as before stated, remanded the cause.

Upon the opening of the case in the court a qua, the defendants took a rule upon the plaintiff to show cause why a clerical error and mistake of the clerk, in making out the note of evidence, should not be corrected ; the error consisting in having stated that the fee docket of the court, embracing charges from twenty-ninth of August, 18G5, to tenth of November following, was introduced in evidence. The testimony introduced on trial of the rule fully establishes the error alleged, and the court ordered that portion of the note of evidence to be strickeu out. The defendants then filed an exception to the plaintiff’s right to maintain the suit, for the reason that neither the original process, affidavit, writ or petition in the case was stamped within the time prescribed by law; that the stamp now found on the affidavit was illegally placed there about seven days after the issuing of the attachment; that no application was made, according to law, to the collector of internal revenue, to have this proceeding rectified by paying the fine incurred, and presenting the proper certificate of the collector to that effect; but that the said stamp is now illegally attached, contrary to the statute in such case made and provided. The plaintiff filed a rule to show cause why this exception of defendant should not bo withdrawn by them, alleging the same to be trivial, puerile and absurd on the face of the papers, and intended to defeat the ends of justice ; that the allegations contained in the exception set forth no reasons to retard, prevent, defeat or dismiss this action. This pleading the court deemed to be of the nature of a demurrer, and, consequently, as an admission of the facts set forth in the defendants’ exception. Judgment was accordingly rendered against the plaintiff, and he has again appealed.

This suit was filed on the thirtieth of August, 18G5. The act of Congress requiring certain stamps to be affixed to legal documents was then in force. The failure to affix stamps worked the nullity of the instruments required to be stamped, and imposed a fine of fifty dollars upon the party omitting to comply with the law with intent to evade its provisions. The law provided that the consequence of omission might be avoided by payment of the fine and offering the stamp with the certificate of the collector of the proper district that the law had been complied with. A further provision was made that where it appeared to the collector, by oath or otherwise to his satisfaction, that the failure to attach the required stamps at the proper time was the result of accident, mistake, inadvertance or urgent necessity, and not with willful design to defraud the United States of the stamp duty, the instrument might, within twelve months from the issuing of the same, .be rendered valid by payment of the stamp duty, and have the fine remitted by the collector.

We think it clearly proved that in this case the proper stamps were not affixed at the required time, and we think, therefore, that tho nullity of the proceeding's resulted from that failure. The suit was filed on the thirtieth of August, 1805. On the twenty-eighth of October following, the plaintiff was put upon his guard by the filing of the defendant’s exception that his process was null by reason of not being-stamped as required. Whether the omission was intentional or not, he might have cured the nullity within twelve months from the filing of his suit. This he did not think proper to do, but chose rather to rely upon-defenses entirely unavailing-. The judgment should be maintained.

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

Ludeeing, C. J.

The constitutionality of the act of Congress relative to stamps is not raised in this case. I do not deem it necessary to pass upon the question. I therefore concur in the decree rendered.

Wyey, J.,

dissenting. I can not concur in the opinion of tho majority of the court, as to the effect of omitting to affix the internal revenue stamp on the petition or affidavit for attachment in this case.

The proceeding was dismissed on the peremptory exception of the defendant, that the internal revenue stamp was not affixed at the time the attachment issued, but seven days thereafter; that under tho United States revenue acts of 1864 and 18G5, then in force, the whole proceeding was a nullity.

I think tho acts of Congress referred to furnish no ground to dismiss-the suit; that these acts palpably violate the constitution of the United States ; that the requiring of stamps is nothing more than levying a license upon citizens for seeking relief at the hands of tho State courts. If Congress has tho power to exact a license for tho privilege of resorting to a court of justice, it can fix tho amount of such license at whatever sum it may see fit, aud thus might practically prohibit all applications to State tribunals by imposing an exorbitant license. It would place it in the power of Congress practically to close the State courts. The servants of the people would thus be omnipotent, although we are taught to believe that their powers are limited in the constitution, and although the tenth amendment thereof declares that: “ The powers not delegated to the United States by the constitution, nor prohibited by it to tho States, are reserved to the States respectively, or to the people.”

There is no authority in Congress to place this restriction upon suitors in State courts; it is not a legitimate source of revenue, and it is violative of the fundamental principles of free government.

I therefore feel constrained to dissent from the opinion rendered in. this case.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 1913.
    G. M. Bowditch v. George Heation, etc.
    On the thirtieth, clay of August, 1859, the Towboat Association of the City cf New Orleans leased from the plaintiff two co u yards, with the buildings thereon, and wharves, situated on the west bank or the Mississippi river, near its mouth, for the term of five years, at a stipulated rate of rent to be pud annually, in advance. The rent was paid punctually up to the thirteenth or August, 1861. The civil war broke out at or about this time between ¿he United States and the so-eaJled Confederate States. The- mouth of the Mississippi was blockaded by the United States navy, and the Forts Jackson and St. Philip, on opposite ■sides of the river, above the coat- yards, were occupied and garrisoned by the insurgent forces, which military occupation by hostile forces prevented the lessees from using the coal yards from that date. The lessor brings this action for the rent duo on the remainder of the term of the lease. Held — That by the occupancy of the premises and surroundings of the leased property by the two contending armies, the lessees were prevented from using them as a coal yard and depot; that this interruption amounted in law to a revocation ot the lease from that date, and that no action would lie to enforce the payment of rent thereafter. 0. 0. 2667.
    APPEAL from Sixth District Court, parish of Orleans. Duplantier, J.

      J. 8. Whitaker, for plaintiff and appellant. Mor nor and Benedict, for defendants and appellees.
   Ludeling, C. J.

On the thirtieth day of August, 1859, the plaintiff ■entered into a contract with the Towboat Association of the city of New Oilcans by which ho leased to said association, for the term of five years, from thirteenth of August, 1859, two coal yards, with the buildings thereon, and wharves, situated on the west hank of the Mississippi river, at the Southwest Pass, lor the yearly rent of two hundred dollars, payable annually in advance.

The Towboat Association paid the price stipulated up to the thirteenth August, 1861, hut they have refused to pay since that date, because, thesr allege, that they were prevented by the civil war and the blockade at the mouth of the Mississippi river, from occupying or using the leased premises in any way, and that those events ■destroyed the lease.

We concur with the learned judge of the district court “ that the evidence clearly show that, owing to the blockade of the moutli of the Mississippi river by the United States navy, and the occupancy of Forts Jackson and St. Phillip by the Confederate authorities, the defendants had not free access to the premises leased during the time for which rent is claimed,” and ílhat “ this amounted, in law, to an eviction from the premises, and released them from their obligation to pay rent to the plaintiff. C. C. art. 2667.

Mr. Marcadó, commenting on article 1722 of the Code Napoleon, which is similar to article 2667 of our Civil Code, (with the exception that it does not contain the following clause, found in our Codo, “ or if it he taken for a purpose of public utility,”) remarks :

“Notre article ne parle que de la destruction inatórielle, de la suppression de la chose ríeme; mais il peut y avoir, par force majeure également, suppression do la jouissance, impossibility absolue on momentanée de se servir de la chose, sans que cetto chose soit matériellement atteinte, et le locataire pourra demander encore, selon les cas, ou la résiliation du bail, ou une diminution du loyer, ou la cessation momentanée du payement de ce loyer.

“ Ainsi quand, en temps de guerre, le locatairo est toreó de quitter son habitation, dont les troupes s’emparent; si, or temps de peste, il ue peut pas venir occupcr la maisou qu’il a louec dans une villc, parce que la police sanitaire l’empeche d’entior,” etc., “dans tons ces cas et autres analogues, le preneur pourra, suivant les circonstances, tantot faire résilier le bail, tantot obtenir soit une diminution du loyer, soitla cessation momentanée da payement de ce loyer.” Vol. 6, p. 450.

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


text:
    No. 2552.
    Mary W. Henderson v. T. L. Maxwell, Sheriff, et al.
    An injunction will not bo set aside for irregularities in the bond or affidavit, if it is manifest,, from a mere inspection of tho record, that the plaintiff would be immediately entitled to-another injunction.
    Extracts from an inventory or proces verbal, when duly certified by the proper authority, aro admissib e in. evidence, and it is unnecessary to introduce all the mortuary proceedings oí a succession to prove a fact or establish a date.
    APPEAL from the Sixth District Court, parish'of Orleans. Gooley, J.

      Bentinek JEgan, for pF in tiff and appellee. Sor nor á Benedict, for defendants and appellants.
   Ludeling, C. J.

The plaintiff claiming to he the owner of two lots-of ground, situated in the city of New Orleans, enjoined the sheriff from selling them under an execution against Nimms & Nixon.

The defendant moved to dissolve the injunction on the ground that the bond was not signed by plaintiff or any one authorized to sign it,, and that tho sureties are not solvent. Subsequently they filed an answer, and the case was tried on the merits. It is of no importance now to consider the questions raised in the motion, for even if the allegations in tho motion be true, it is our duty to decide the question of title to the property, if the evidence in the record will enable us to do it, notwithstanding the defects in the bond. It has been repeatedly decided that, when it is manifest that the plaintiff would be entitled to another injunction, courts will not set aside the writ for irregularities, in the bond or affidavit.

This view dispenses with tho necessity to notice the first bill of exceptions taken by defendant.

The second bill was to the admission in evidence of the copy of the-will of Baker Woodruff; copy of petition for probate, and order probating the will; extract from the inventory, etc. These documents-were objected to, on the grounds that the whole record of the succession should have been offered, and not a portion thereof; that the portions •offered were irrelevant to the issue; that such evidence is not the best .proof of title to real estate, and that it proves nothing.

The district court correctly overruled these objections. Extracts from inventories or from procos verbal of sales, when duly certified, are admissible in evidence. Fletcher v. Dickson, 1 R. 413; 2 An. 386; 14 An. 141.

It is not necessary that all the mortuary proceedings of a succession •should, be introduced to prove a fact or a date, which may be shown •by a particular document. Such a practice is abusive, and will not be •sanctioned. 1 R. 258; 4 R. 201; 5 An. 400 ; 6 An. 446.

The evidence shows that the plairitiff received t'ae property in controversy as a legatee under the last will of Baker Woodruff, and that she has had the possession of the same, receiving tlie rents and revenues thereof for several years. The testator’s title to the property is clearly proved.

It is therefore ordered that the judgment of the district court bo affirmed, with costs of appeal.

- Rehearing refused.


author: Wylv, J.

text:
    No. 1877.
    D. J. Farrar et al. v. J. B. Michoud.
    A conation, inter vivos is null if it lias not been passed before a notary public and two witnesses. C. 0. 1523.
    In an action to enforce payment of a donation, given in tlie form of a written document, as in this case, in the handwriting of the donee, not in the form required to give it validity as a donation inter vivos, and the donee, as a witness on the trial, is unable to show any consideration for the donation, or to explain how he came in possession of it, which was not until five years after the death of the donor. Held — That the donee could not recover on the instrument as a donation inter vivos, because the forms of law had not been observed in making or accepting it; "that it was not good as an ordinary obligation or promise to pay money, because there was no consideration shown; that the donee, having testified in hi? own behalf, and not showing any consideration lor the instrument, the conclusion followed that there was no valuable consideration.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      J. Ad. Hosier and Soulé & Oharvet, for plaintiffs -and appellants. T. TF. Gollens and F. G. Guillet, for defendant and appellee.
   Wylv, J.

The plaintiffs have appealed from the judgment dismissing their demand against the defendant, based on the following instrument:

“New Orleans, Juno 1, 1862.

“ Good for ton thnsand dollars, payable five years after my death. One thousand dollars to D. J. Farrar; ono thousand dollars to Leopold Guicliard; three thousand dollars to my good friend, Joseph Girod; two thousand dollars to Camille Guillet; two thousand dollars to Nelville Soulé, and one thousand dollars to the French Society.

“Your servant and friend,

“Ant. Miciioud.”

This instrument was addressed to “ Mr. Joseph G-irod,” or at least, that name is superscribed in apparently the same handwriting.

The petitioners allege that said Antoine Miclioud died on the twenty-second of July, 1862, leaving a last will and testament, in which the defendant was instituted his universal legatee, and, as such, accepted the succession unconditionally. They pray for judgment against him for the amounts due them respectively, as mentioned in said instrument.

The defense is, that the instrument sued on is not genuine; if genuine, it is not an onerous contract, but an olographic will.

From the view we have taken of the ease, it will not be necessary to pass on the genuineness of the instrument, concerning which the evidence is conflicting and unsatisfactory. We can not regard the instrument as a commutative contract, the evidence failing to disclose any consideration whatever therefor, and it not being in the form of a negotiable promissory note, which, for commercial reasons, is presumed to have a valuable consideration. Parsons on Bills, 175. Indeed, there is also lacking the consent of the parties, or the aggregatio mentium, as it appears that the instrument was never delivered during the life of the said Antoine Miclioud, it having come into the hands of the plaintiffs, mysteriously, five years alter his death.

One of the plaintiffs, Joseph Girod, to whom the document was addressed, was called as a witness to explain how he came in possession thereof. lie says: I happened to be at the French Consulate in New Orleans, during the epidemic of 1867. * * * At one of these interviews, Mr. Trabue presented me the letter, * * “ in which was contained the document sued on. I read the same and communicated the contents to Mr. Trabue and to Mr. Duquesnay. I can’t tell who sent me the document, because the person who addressed the envelope did not send his name. The envelope contained only the document, and nothing else. * * * I had never seen or possessed the document before then. I don’t know that Mr. Guillet had any knowledge of 'that document before then. I can’t say that any of the plaintiffs had any before then. If Mr. Miclioud left that sum to me, it is because he had some good reason to do it, inasmuch as he had had enough to do with me, and was well aware that he should do it.”

When the plaintiffs testify in their case, and are unable to state any consideration for the instrument sued on, we think it fair to conclude that there was no valuable consideration. The mysterious manner in which the plaintiffs received the instrument five years after Miclioud’s death, leads us to believe that it remained in his possession at the time of his death, never having been delivered to those who now claim its rightful possession.

The instrument is not good as a donation inter vivos, because it has not tne lonn essential for solemn acts of that character; and also it was not accepted by the donees prior to tho death of the donor. C. C. 1453, 1523,1527 ; 3R. 80; 17 La. 144. The plaintiffs, however, contend that the act is not void as a donation, because it is clothed in the form of an onerous contract, and they refer us to the decision of Wolf v. Wolf, 12 An. 529, where it was held that a formal act of sale made to secure certain advances, although not good as a sale, for want of a price, was good as a pledge.

We think this authority does not apply to the case, the instrument sued on not being a formal act of sale, nor an ordinary act of any kind evidencing the consent of the parties to an onerous contract.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Rehearing refused.


text:
    No. 2323.
    Gerard Brandon v. Wm. G. Hughes.—Stephen Duncan et al. Intervenors.
    Stipulations in an act of sale, in favor of third parties, can not be revoked after they have been accepted by those in whose favor they have been made, except in cases where just cause is shown, such as a failure of consideration of the contract, and the like.
    In this case, a sale of real property was made, for a fixed price, with a stipulation by tho vendee that he assumes all the mortgages existing on the property, and the amount of the mortgages is above the stipulated price of the purchase, for which difference the vendor executed his promissory note, in iavor of the vendee, and afterwards, and before payment, he absconded. Held — That, by the terms of the contract, this amount was to have been paid before tho vendee became bound to the mortgage creditors; that the vendor, by absconding, had placed himself in default, and that, by the failure of the vendor to comply with the conditions on which the gale depended, the vendee was entitled to have the sale rescinded, and to be discharged from any liability to the mortgage creditors, on account of the purchase of tho property.
    APPEAL from the Thirteenth District Court, parish of Tensas.

      Hough, J. A. H. & H. H. Ogden, for plaintiff and appellant. Farrar <& Fecves, for intervenors, appellees. F. JD. Farrar, curator ad hoc, for defendant.
   Ludeling, C. J.

This suit is brought to rescind a salo of real estate, situated in the parish of Tensas.

On the second day of January, 1863, William G. Hughes, a resident of Louisiana, sold to Gerard Brandon, of Mississippi, a plantation, containing, in the aggregate, about seventeen hundred and fifty acres, with the improvements,.etc.

The consideration of this sale was seventy-five thousand dollars. At the date of the sale, there were mortgages on the property to-the amount of $81,479 94, and taxes due on the property to the extent of $808 24, unpaid; all of which the purchaser assumed to pay, provided the vendor would obligate himself to the vendee to pay the difference between tho price of the property sold and the amount of the mortgages and liens on the property, to wit: $7283 23, for which the vendor executed his note, in favor of the vendee, payable on demand, and secured by a mortgage on slaves. Shortly after this sale, Hughes left this State, without paying the note given by him to his vender.'* -' <

The creditors, whose mortgages were assumed by the vendee, in the act of sale above mentioned, do not appear to have had anything to do with the agreement aforesaid. But, on the twenty-sixth day of December, 1865, Stephen Duncan instituted a suit against William G. Hughes and Gerard Brandon, in solido, for $45,000, with interest, which sum, he alleged, was due by Hughes, and was secured by mortgage on the property sold, as aforesaid, and had been assumed by Brandon, as a part of the purchase price of the plantation.

Both defendants being absentees, curators ad hoc, were appointed to represent them.

Others of the creditors of Hughes sued Brandon, under'his assumpsit, and attached all his property situated in Tensas parish, including that which was not subject to the mortgages against Hughes.

On the sixteenth day of March, 1866, Brandon instituted this suit, for the rescission of the sale, upon the ground that, as a commutative-contract, it was liable to rescission upon the failure of Hughes to pay the sum of $7288 18, as agreed upon at the time of the sale; that, by the terms of the contract, this amount was to have been paid before Brandon became bound, being in the nature of a condition precedent to the obligation of the purchaser. The petitioner averred that Hughes had absconded from the State, thereby placing himself in default, by his own act, and that the slaves, on whom a mortgage had been given to secure his obligation, had been emancipated by the Government; and that the largest mortgage creditor of Hughes had commenced proceedings against the property, although the sum of $7488 18 had not been paid to petitioner. He prayed that the sale should be rescinded, and that ho should be discharged from all personal liability.

To the suits against him, he answered, denied that he ever contracted with any of the plaintiffs, creditors of Hughes, or had dealings of any sort with them. He denied that they had any claim, in law or equity, against him, arising out of his contract with Hughes, and set up against them, the various grounds for rescission of the sale stated above, and he prayed that their demands against him be rejected.

On the twenty-seventh of June, 1867, three of the mortgage creditors of Hughes — John Watt & Co., T. H. & J. M. Allen &-Co., and D. R. Carroll & Co., and T. J. Hays — filed an intervention in the suit of Brandon v. Hughes, and asked that the claim of Brandon for a rescission of the sale bo refused, on the grounds, principally, that they had been lulled into security by the assumptsit of Brandon, and had therefore hot interfered with Hughes, when he removed his personal effects and slaves out of the State.

On the eleventh of November, 1868, about fifteen months after filing. their intervention, the creditors aforesaid filed a supplemental petition of intervention, and joined in a release to Brandon, in the nature of a remittitur of his assumptsit to them, to the extent of $7288 24, the amount of Hughes’ note to Brandon, with interest from the date of the note.

Those suits were consolidated and tried, and there was judgment annulling the sale between Brandon & Hughes, and judgment in favor of all the creditors aforesaid, except Hays, against Brandon, for the amount of their -respective-claims, subject to credits for the amounts remitted by each.

The plaintiff, Brandon, has appealed.

The creditors and intervenors rely on article 35 of the Code of Practice, and articles 1884 and 1896 of the Civil Code, to sustain them in their position, that, having accepted a stipulation made for their benefit-, in a contract to which they were not parties, it can not be revoked without their consent. The authorities, cited by them, go to establish that stipulations in favor of third persons can not be revoked, after they have been accepted by those in whose favor they were made, and that such third persons may sue to recover the thing stipulated in their favor. 5 La. 316, Pemberton v. Zacharie et al.; Mitchell v. Cooley, 5 Rob. 243.

But we do not understand the Code, or the decisions cited, to go further than to declare that such stipulations became obligatory by ■acceptance, and that they can not be revoked without just cause. It certainly can not be intended that a stipulation, in favor of third .persons, shall be obligatory — irrevocable—notwithstanding the failure ■or the consideration of the contract; as, for example, if the property sold had not belonged to the vendor, and the purchaser was evicted from it. “ An obligation- without a cause, etc., can have no effect.” -C. C. 1887. ■

But is it strictly true that the contract between Hughes and Brandon -contained a stipulation pour autrui f The assumption of the debts of Hughes, to the extent of $75,000, by Brandon, was for the benefit of Hughes, the vendor, and it was the price of the property bought.

Pothier says : “Ce n’est pas stipuler pour un autre, que de dire quo la chose ou la somme que je stipule sera délivróe óu payée á un tiers designó par la convention. Par exemple, si par le contrat je vous vends un tel heritage pour la somme do millo livres, que vous payerez .a Pierre, jo ne stipule point pour un autre ; e’est pour moi et non pour Pierre que jo stipule cette somme do mille livres : Pierre n’est dans la convention que commo une porsonno á qui je donne pouvoir de la recevoir pour moi et en mon nom.” Obligations No. 57.

The creditors and intervenors can not pretend to have acquired .greater rights than Hughes himself had; and the payments which ■were to be made to them, in discharge of Hughes’ debts, depended on Ills executing Ms obligations, according to the terms of the contract. C. C., article 2041;. 2 E. 526 ; 9 An. 194; Union Bank v. Bowman, 5 Rob. 246.

Hughes was under obligation to remove the incumbrances on the property, beyond $75,000; and, to insure the performance of this, he gave his note, and a mortgage, on slaves, then owned by him. He did not pay his note, and he removed the mortgaged property out of the State. This was an active violation of his contract. The evidence ■shows, further, that he failed to pay the note when demand thereof was made, and that Stephen Duncan had taken proceedings to foreclose the mortgage which he lield, for upwards of $45,000, against the said property bought by Brandon.

Under these circumstances, wo think Hughes was in default, and that Brandon had a right to have the sale rescinded, for the non-fulfillment of the condition, upon which the sale depended. 2 An. 475; 3 M. 244, 249.

The offer, made long after the institution of this suit, by the creditors of Hughes, to remit a proportion of their claims, to equal the amount of the incumbrances on the property, beyond the price, came too late, even if it could be regarded as a compliance with the obligation of Hughes.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of Gerard Brandon, rescinding the sale of the property from William G. nughesto Gerard Brandon, described in the act passed before Franklin M. Baker, recorder of the parish of Tensas, State of Louisiana, on the second day of January, 1863. It is further adjudged and decreed that there be judgment in favor of said Gerard Brandon, against the plaintiffs, in the attachment suits against him, rejecting their demands, with costs in both courts.

Eehearing refused.


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    No. 1981.
    A. Levi & Co. v. Wolf Silverstein.
    Tu an action to recover the value of a lot of cotton from the defendants, who, it is alleged, had. it on storage, and failed' to deliver when demanded, the evidence showed that the claimant j were not, and never had been, the owners thereof. Held — That not being owners they' could not recover the value on account of non-delivery. That to enable them to recovor under this allegation, they must estab’ish title to the cotton by eiidence. Litigants must bo held to the issues presented by their pleadings.
    APPEAL from Fourth District Court, parish of Orleans. Theard, J.

      Hace, Foster ds B. T. Merrieh, for plaintiffs and appellants. It. & II, Harr, for defendant and appellee.
   Ludeling, C. J.

The petition of the plaintiff alleges “ that Wolf •Silverstein is indebted to them in the sum of twenty-five thousand dollars for this, to wit: That on the fourth day of January, 1862. and on divers other days up to aud including the thirty-first day of March, 1862, said Wolf Silverstein received from your petitioners, at his warehouse at Tangipahoa, in this State, two hundred and twenty-two bales of cotton, averaging over four hundred pounds each, in various lots and parcels, and gave his receipts therefor, and thereby promised to hold said cotton subject to the order of petitioners, and to ship it to' them at such time as they might order it to be forwarded, all of which will the more and at large appear by reference to ten receipts numbered from one to ten, and made a part hereof.” They further alleged that they had often requested defendant to ship the cotton, and that “ on the seventh day of June, 1866, they demanded, in writing, the said cotton, and that the same be shipped to them in accordance with the tenor of said receipts.” They pray for judgment against the defendant for twenty-five thousand dollars, with interests and costs.

The defendant filed an affidavit, sotting forth the facts, that on the fourth day of January, 1862, the plaintiffs and he entered into a written contract; that it was made in duplicate; that ho has lost or mislaid his copy, and that the other is in the possession of the plaintiffs, etc. He prays oyer of the written contract, and of the account current of the plaintiffs with him.

On the production of the documents called for, the defendant filed an exception to the plaintiffs’ action, on the ground that the plaintiffs sue for the value of sundry bales of cotton, which they claim as owners, and which they profess to have delivered to defendant on storage for their account, and that it appears from an inspection of the agreement that they were not the owners thereof, but that the cotton was the property of defendant, and that Levi & Co. have no right or cause of action against defendant, except for such advances as they may have made to defendant, with respect to which no issue is tendered to him in the petition, and he lias no opportunity in the present action to plead or to make any issue. He prays that the suit be dismissed, etc

Then proceeding to answer, he denied all the allegations of the petition. He alleged that plaintiffs did not advance the money agreed to be advanced by the written contract; that some Confederate treasury notes were given in lieu of the money,' which should have been furnished, and that merchandise, to the amount of about four hundred dollars, were furnished under said agreement, but that he paid the plaintiffs six hundred and sixty dollars in 1865, which exceeded the-sum due by him to them, etc.

He further pleads the prescription of three years against the items advanced.

The exception and merits were tried together. There was judgment in favor of the defendant on Ms exception, and the suit was dismissed.

The plaintiffs have appealed.

A careful examination of this ease satisfies us that the action is for the value of the cotton, which tho plaintiffs claimed as theirs.

Tho evidence is conclusive that the cotton did not belong to tho plaintiffs. In the oral argument, as well as in tho briefs on file, the plaintiffs contend that this is a suit for damages, resulting from a breach of the contract. Nothing of tho kind is set forth in the pleadings; and litigants must be held to the issue presented by their pleadings.

It is therefoi e ordered and adjudged that the judgment of the district •court be affirmed, with costs of appeal.


author: Howe, J.

text:
    No. 2471.
    State, ex rel. S. N. Burbank, Treasurer Metropolitan Police Board, v. Antoine Dubuclet, State Treasurer.
    Where the Board of Metropolitan Police has taken an appeal from a judgment rendered in an action commenced by their treasurer, a motion by the latter to dismiss the appeal will not be listened to.
    In an action thus commenced by the treasurer, the board has aright to intervene for the purpose of showing that the action was commenced without its approval, or in contravention of its orders.
    APPEAL from the Sixth District Court, parish of Orleans. Oooletj, J.

      J. Hwwkins and J. J3. Howard, for plaintiff and appellee. A. Voorhies, for defendant and appellee. JS. Mlleul, for Board of Metropolitan Police, appellant.
   Howe, J.

The Board of Metropolitan Police have appealed from a judgment rendered heroin in favor of relator, their treasurer, and against the respondent, tho State Treasurer, and which directs the latter to pay over to tho former tho sum of $596,790 47, on account oí tho amount coming to the Board of Metropolitan Police, as a part of

the apportionment of the city of New Orleans, as provided by law.” The appellants complain that their treasurer, Burbank, commenced the proceedings in violatiou of their orders, and without authority to stand in judgment; that they sought to come into tho case by intervention and show this fact, but the judge refused to permit them so to do; to which refusal they excepted. The judgment having been given as above stated, they took this appeal.

The relator, Burbank, moves to dismiss tho appeal thus taken by tho board, on various grounds. We do not feel inclined, in tho view we have taken of the case, to consider his motion, except to say, that as financial officer of tho board, lie has no right, on technical grounds, to attempt to dismiss the appeal taken by his principal. He brought this suit in his representative capacity, and it would be strange indeed if he should be permitted to expel from this court the parties whom he represents.

The respondent, Dubuclet, has also moved to dismiss the appeal, on the ground that the judgment has been acquiesced in, or executed.. We find no evidence to support this allegation.

Upon tho merits of the case we think the court a qua erred in refusing to permit the board to come in and show, as they offered to. do, that tho relator, Burbank, was proceeding, in violation of their wishes and orders. Whatever may be thought of the general right of intervention in a summary action, it seems a self evident proposition that where a proceeding is commenced by one who alleges that he is. acting in a representative capacity, the party he claims to represent ought to be listened to when alleging that the proceeding is not only unauthorized, but contrary, to a positive prohibition. For these reasons we think the cause should bo remanded that the board may be-heard upon the issues raised by their petition.

It is therefore ordered that the judgment appealed from be avoided and reversed, and tho cause remanded to be proceeded with according to law, and that appellees pay the costs of appeal.

Rehearing refused.


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    No. 2700.
    Succession of R. D. Day—Opposition of universal legatee to executor’s account.
    Attorneys employed by tlie executor to attend to tlie litigations in which, the estate is, or may be involved, are entitled to a fair and liberal compensation for their services.
    The executor of an estate is only entitled to chargo two and one-lialf per cent, commissions on. the profierty tliab actually comes into his possession to be administered upon. He is not entitled to commissions on all the property which falls into the possession of the legatee, unless it is shown that it first passed through his hands as executor.
    APPEAL from the Parish Court of East Baton Rouge. <?'. it. Hunted,. Parish Judge.,

      Andrew S. Herron and John W. Burgess, for executor and appellant. Samuel P. Grooves, for Mrs. Dry, opponent and appellee.
   Taliaferro, J.

This controversy is confined to the question as to tho amount of commissions the executor is entitled to, and tho amount of foes that should bo paid to the attorneys employed by him in tho affairs of tho estate.

The judgment appealed from by tho executor, awarded him two and a half por cent, on $4044 — the sum of six hundred dollars to tho attorneys employed by tho executor, and three hundred and sixty-seven dollars to tho executor as attorneys’ fees for services rendered the testator in his lifetime.

R. D. Day died in the autumn of 1869, in the parish óf East Baton Rouge, leaving a succession, estimated by appraisements to be worth eighty thousand dollars. The debts were very inconsiderable compared with the value of the estate. This succession, it seems, was altogether community property. The decedent left no heirs in the descending- line. Iiis father survived him. He left a will by which lie instituted his widow universal legatee of his estate, and named B. E. Chaney, executor.

The father claimed the portion of the estate accorded to him as a forced heir. Some controversy arose out of this claim of a portion of the testator’s estate, but it was of short duration. The matter was amicably adjusted by a settlement and payment of his legitime, and the executor filed an account. It was opposed by Mrs. Day, the universal legatee, on the ground that the executor, himself an attorney at law, had needlessly engaged the services of other attorneys, and that he had done so against her expressed wishes on the subject, having been informed by her that she had employed an attorney who was recommended by the testator, and whom, on his dying bed, he requested should be employed. She offered the amount claimed by him as commissions and also his charge for attorney’s fees.

As appellee in this court she prays that the judgment of the lower court be amended so as to reject the claims for attorney’s fees.

A charge of one thousand dollars was made for the fees of the attorneys employed by the executor, and the executor claims commissions upon the whole amount going to the legatee by the will, and four hundred dollars for professional services, as attorney, rendered the testator in his lifetime.

An inspection of the record enables us to see that the litigation involved in the settlement of this succession was neither difficult nor long protracted. We do not discover the necessity which required additional counsel, and must regard the complaint of the opponent, in this respect, as not without reason. In the exercise of a sound discretion, the executor should have avoided, as far as possible, the accumulation of charges against the estate. The attorneys employed are prominent in the profession. They did render services, and they should be compensated. Under the circumstances, however, we think that the amount allowed them by the parish judge may be considered liberal, and we are not inclined to enlarge or reduce it.

Seizin of the estate was not granted by the will to the executor, and he had at no time a general possession of it. Ho contends for commissions on all that part of the testator’s succession which went into the hands of the universal legatee. Article 1677 of the Civil Code prescribes that, if the executor has not had a general seizin, his commission shall only be on the estimated value' of the object which he has had in his possession, and on the sums put into his hands for the purpose of paying the legacies and other charges of the will.”

In this case the amount administered or which passed through his. hands, and that by fiction of law, in the adjustment of the debts of the estate, seems to have been fixed by the parish judge at $4044, and on this sum his commission of two and a half per cent, was allowed. We see no error in this. The reduction of the executor’s fee, as attorney in a certain case, for the testator before his decease, making it fifty dollars instead of one hundred dollars, we do not see requires alteration.

It is therefore ordered, adjudged and decreed that the judgment of the parish court bo affirmed, with costs in both courts.


text:
    No. 1822.
    J. S. & E. A. Abbot v. J. L. Wilbur, Syndic, etc.
    Estoppels are not favored in law, for the object of the administration of justice is to discover and apply the tiuth; but there may be cases in which courts are bound to say to a litigant that he has, to his own advantage or to the injury of his adversary, asserted judicially what is false, and that, having done so, he must be forever forbidden to unfold for his own benefit the truth of the matter.
    This being an action to annul, for want of citation, a judgment of the Fifth District Court; and it appearing tint, before it3 institution, the plaintiffs had defeated, in the Third District Court, a large claim of the defendant, by the objection that there was then pending in (he Filth District Court a suit against them for the same demand, by the same party (being the same suit in which the judgment sought to be annulled was rendered): Held — That tlr's amounted to an assertion that they had been cited in the Fifth District Court, an assertion made to their own benefit and the injury of the opposite party, and they could not afterwards be heard to say, or iiermitted to prove, that this assertion was false.
    It is not intended herein to decide that the estoppel can supply the want of citation; but merely that it prevents the plaintiffs in this case from showing that such a want exists.
    The insufficiency of the evidence on which a judgment is rendered is not a ground of nullity, but is to be exposed by appeal.
    APPEAL from Fifth District Court of New Orleans. Leaumont, J.

      John McKee, for plaintiffs and appellants. K. 0. Mix and Semines & Mott, for defendant and appelle.
   Howe, J.

In January, 1806, J. S. and E. A. Abbot instituted a suit in the Third District Court of New Orleans, against Frank Borge, upon notes made by J. L. Wilbur and Borge, to the amount of $3200.

In May, 1866, the deiendant, Borge, filed his answer and reconvoational demand for $23,333 64.

In September, 1866, J. L. Wilbur, as syndic of his creditors, and of the creditors of Wilbur & Borge, intervened in the suit, and adopted the answer and reconventional demand, the latter growing out of alleged transactions between plaintiffs and the firm of Wilbur & Borge.

In December, 1866, J. L. Wilbur, as syndic, commenced a suit in the Fifth District Court of New Orleans, against the Abbots, for the same cause of action as that alleged in the reconventional demand in the Third District Court. The sheriff made a return upon the citation of personal service upon oue of the Abbots, and judgment by default was made final against them, and in favor of the syndic, on the twenty-fourth of January, 1867, for $23,383 64.

On the twenty-fifth of February, 1867, the case oi ad Dot v. Borge, in the Third District Court, came on for trial, and, as part of their evidence, the plaintiffs offered the record in the suit of Wilbur v. Abbot in the Fifth District Court, and then, when the defendant, Borge, and the intervenor, Wilbur, undertook to prove their reconventional demand, the attorney for the Abbots objected to any evidence being received, on the ground “that the said suit, in which judgment had been rendered in said Fifth District Court, was for identically the same cause of action as that set forth in the reconventional demand, and that said suit was Us pendens.'1'1 Counsel for Wilbur & Borge having admitted the cause of action in the Fifth District Court and that set up in reconvention to be the same, the court sustained the objection to going into the trial of the reconventional demand, on the ground of Us pendens, and refused to allow any evidence thereof, giving judgment in favor of plaintiffs, and dismissing the reconventional demand. This judgment was signed March 7, 1867.

On the twenty-ninth of April, 1867, the suit now before us was instituted by the Abbots for the purpose of annulling the judgment above mentioned, obtained by default in the Fifth District Court in favor of Wilbur, syndic, on the ground chiefly of want of citation, it being alleged that the Mr. Abbot who was served by the sheriff, in New Orleans, was not one of plaintiff’s firm, but a relative, who happened to be passing through the city.

To this defendant answered by a general denial, and by the further-plea that the plaintiffs had judicially admitted that they were properly cited in the suit, and were estopped to deny citation, and recited the proceedings in the Third District Court, which we have detailed above.

The court a qua sustained this plea of estoppel, and dismissed the suit of nullity,-and the plaintiffs have appealed.

Estoppels are not favored in law, for the object of the administration of justice is to discover and apply the truth. But there may be cases in which courts are bound to say to a litigant that he has, to his own advantage or the injury of his adversary, asserted judicially what is false; and that, having done so, he must be forever forbidden to unfold for his own benefit the truth of the matter.

In the case of Philadelphia Railroad Company v. Howard, 13 Howard, 335, it seemed that an action of assumpsit had been instituted in Cecil county court, Maryland, against the railroad company, and, in the progress of the trial, the company produced in court, and relied on, an instrument, as a sealed instrument, and on that ground defeated the action of the plaintiff; since, in the common law practice covenant, and not assumpsit, is the proper form of action on a sealed instrument.

The plaintiff subsequently brought an action against the company in the United States Circuit Court, at Baltimore, and offered in evidence the writing, as a sealed instrument. The defendant, on the plea of non est factum, objected to the introduction of the instrument in evidence, on the ground that it was not properly sealed. The plaintiff contended that the defendant could not be permitted to deny the validity of the sealing, because such a defense would impute to the defendants themselves a fraud, upon the administration of justice in Cecil county court, they having declared, in Cecil county court, that it was a sealed instrument.

These views of the plaintiff were sustained by the Supreme Court of the United States, which decided that the company was estopped, by its own conduct in the county court, from proving the reverse of what it had there maintained; and the principle was enunciated that where a party asserts what he knows to be false, or does not know to be true,, to another’s loss, or to his own gain, he is guilty of a fraud — a fraud in fact, if he knew it to bo false; a fraud in law, if he does not know it to be true. That it would not mitigate the fraud if the false assertion were made in a court of justice, and a suit defeated thereby; and that the defendant could nob bo heard to say that what was asserted on the-former trial was false, even if the assertion was made by mistake. £1 If it was a mistake, of which there is no evidence, it was one made by the defendants, of which they took the benefit, and the plaintiff the loss, and it is too late to correct it now.”

The principle here so forcibly illustrated has been often sanctioned by this court in different forms. See Freeman v. Savage, 2 An. 269; Gudley v. Connor, 4 An. 416; Denton v. Erwin, 5 An. 22; Devall v. Watterson, 18 An. 136.

We have not been referred to any decision where the doctrine of estoppel has been applied to prevent an inquiry into the fact of citation, as in this case, but we see no objection, on principle, to making-such an application, in a clear case, in the interest of a pure and proper administration of justice. The estoppel does not supply the want of citation; it prevents the plaintiffs from, showing- that such a want exists. So, in the case of Philadelphia Railroad Company v. Howard, the estoppel did not supply a seal to the instrument, it merely prevented the railroad company from showing there was no seal. So in the case of Freeman v. Savage, the estoppel did not pay the note, it merely prevented the party from showing it was not paid. So in Devall v. Watterson, the estoppel did not change one whit the real relation of the parties, or the facts of the case, but merely prevented the plaintiff, who had once judicially declared himself to have been an employe, from showing- that he had all the time been a partner. It would be au error, therefore, to suppose that, by sustaining- this plea, wo would seek to supply the fundamental want of citation. We only seal the lips of those who allege that want.

An illustration may be drawn from the rule in regard to acquiescence. A party who has acquiesced in a judgment, can not sue to annul it, no matter how radical its defects, or absolute its nullity. Thus, in Fluker v. Lacey, 2 La. 265, a party who bought his own property, at a sale os. a fieri faeias, and gave a twelve months’ bond, was held to ha-'. executed the judgment, so as to debar himself from an action of nullity. His purchase was surely no citation, but it closed the door of inquiry into the fact whether he had been cited or not.

In Landry v. Connely, 4 R. 127, where the ground of nullity was, that the court which rendered the judgment was without jurisdiction, it was hold that the execution, by the vendor of the party, of a lease, under private signature, was an acquiescence in the judgment, which prevented an action of nullity, not on the ground that this signing of a lease could retroactively confer jurisdiction on a court, but that, as an act of acquiescence, it prevented an inquiry into the fact of jurisdiction.

Returning to the facts of this case, we find the plaintiffs, in the Third District Court, defeating a large demand of defendant, by the-idea that there was then pending, in the Fifth District Court, a suit against them for the same demand, by the same party. They thus declared judicially that they had been cited in the Fifth District Court, and they made this assertion to their own benefit, and to the injury of the opposite party, and they can not be heard now to say that their assertion was false, and that the person on whom service of citation was made was not of their commercial firm.

The other grounds of nullity alleged by plaintiffs, concern the insufficiency of evidence on which the judgment was based. These are. matters for appeal, and not for an action of nullity

Judgment affirmed.

Rehearing refused.