author: Eustis, C. J.

text:
    McMasters v. Dunbar et al.
    Where a promissory note is payable, on its face, to the tutor of minor’s, it is notice that the obligation belongs to the minors, and a holder can acquire, by taking it, no rights adverse to' the parties- in whose interest the restriction is made.
    In an action by the holder of a) promissory note, payable to ffl party as tutor of certain minors, endorsed-in blank by the'latter, it is incumbent on the plaintiff to establish any mat ter of account between the tutor and the minors-, which may constitute a bond fide ownership of the note in the plaintiff.
    Where the under-tutor of a minor intervenes in an action by the holder against the maker of anote, secured by mortgage,-payable to the tutor, alleging that the transfer of the note by the tutor was illegal,not having been made for money, nor for any thing which enured to-the benefit of the minor, and that, though the minor is still subject to the tutorship/ the interest oi the tutor, as transferror of the note, are adverse to the minors, no execution willbe' allowed to issue for the amount due to the minor. Per Curiam.- The tutor notbeing a party to the suit cannot be removed, and he ought not to he permitted to receive the amount; nor ought it to be paid to-the under-tutor, who instituted the intervention.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. McMasters, the transferree, instituted this action against the makers of the following note:
    $3,080 37i. Alexandria, La. March 15th, 1841.
    On the second day of February, 1843, we jointly and severally (in solido) promise to pay to the order of Carter Beaman, tutor of Mary Eliza Beaman and Carter Beaman, jr., the sum of three thousand and eighty dollars, thirty-seven and a half cents, payable at the office of discount and deposit of the Bank of Louisiana, at Alexandria, with interest thereon,- at' the rate of ten per cent per annum, after-maturity, until-pa-id.-
    \Vm. Dunbar,Chas; Jones.
    ('Endorsed) CarheR- Beaman,Peter Conrey.
    For value received I transfer the within to 'McMasters Sf'Bro. April 3d, 1845.
    Peter Conrey.
    The note was secured by mortgage, and paraphed by the notary. Several payments were credited upon it.

      Mary Eliza Beaman, authorised and assisted by her husband, and'the under-tutor of-’Carter'Beaman, jr.,-the other minor, intervened, alleging that the note; sued on-was payable to their tutor and is their property; that any transfer thereof-to the plaintiff, or any other person, was illegal and void; because not made on receiving the amount thereof in money, nor in any thing else that has enured to the benefit of the minors; that- Mary E. Beaman, since her marriage, is alone entitled to recover one-half of-the amount due on the note, and that the other half can only be recovered for the use of Carter Beaman, jr., who is still a minor under the natural tutorship of the said Carter Beaman, his father, but-whose interest as the-transferror of said note, is opposed to that of his minor son. They pray for a judgment rejecting plaintiff’s claim,- and condemning the defendants, in solido, to pay to-the petitioners the balance due on the note; and that-the mortgage be recognised and enforced. The defendants, in answer to the petition-and to the intervention, acknowledged their liability for the balance; claimed on the note, butaverred that,-in consequence of the conflicting claims of different parties, they do not know to whom they should pay, and prayed for a-decision upon the rights of the claimants. The-plaintiff prayed- that the intervention might be dismissed.
    The note and mortgage were offered in evidence; tile' signatures of Carter Beaman and Peter Conrey were admitted. It was also admitted, that demand of payment of the note was duly made, and that plaintiff was entitled to any right to the note which McMasters Sf Brother had. Certain credits were also-acknowledged. There was a judgment below in favor of the- intervenors against the defendants, for the balance due on- the note, from- which the plaintiff appealed.

      Van Balsón and Grymes, for the appellant. Lewis and Bermudez, for the intervenors.
   The judgment of the court was pronounced by

Eustis, C. J.

This note, being on its face payable to the order of a tutor of minors, under the rule settled in the case of Nicholson v. Chapman, 1 Annual Reports, 223, we must hold this designation as notice that the obligation belonged to the minors; and that the holder can acquire, by taking it, no rights adverse' to the parties in whose interest the restriction is made.

We concur with the judge of the Distrifct Court in the opinion that, any matter of account between the tutor and the minors, which would constitute a Iona fide ownership of the note in the plaintiff, it .was incumbent on him to establish. Nothing of the kind has even been attempted; indeed there -is no evidence of the consideration, or circumstances under which the plaintiff became possessed of the note.

A suggestion has been made by one of the defendants, that the portion.of the debt belonging to the minor, Carter Beaman, jr., ought not .to be paid into the hands of the under-'tutor, Who has instituted the intervention. In this we concur. The tutor not being a party to this suit, we do not feel ourselves authorised to remove him from office. But, as the matter stands before us, he ought not to be permitted to receive die amount; and, if the allegations of the petition of the intervenors be true, and the representations of their respectable counsel be well founded, the interests of the minor ought to be .entrusted to other hands.

The judgment of the District Court is therefore affirmed, with costs. No execution is to issue for the half of the debt due to the minor, Carter Beaman, jr., until the further order of this court.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Taylor v. Carlile.
    A note executed by a married -woman, secured by mortgage on her property, for the repayment of money lent to her husband, cannot be enforced against her. To recover against the wife on such a contract, it must be shown that the loan enured to her benefit. C. C. 2412.
    PPEAL from the First District Court of New .Orleans, McHenry, J .

      Larue and Bryce, for -the appellant.

      Maurian and Lambert, for the defendant.
    A wife .cannot bind herself for her husband. C. C. 2412. She can, in no e.vent, become his surety; if really .a surety, the form of the contract will be disregarded. McMickenv. Smith, 5 Mart. N. S. 431. Hughes -v. Harrison, 7 Ib. N. S. 252. Filié v. Palin, 8 lb. 693. If sued as principal, the wife may contradict, by parol evidence, her own declarations in an authentic act. Brandegee v. Kerr, 7 Mart. N. S.. 64. Gas quet v. Dimitry, 9 La. 590. Firemen's Ins. Co. v. Cross, 4 Rob. 508. Ailing v. Egan, 11 Rob. 246. Pascal v. Sauvinet, 1 An. Rep. 428.
   The judgment of the court was pronounced by

King, J.

The defendant, who is a married woman, executed a promissory note, with the authorisation of her husband, payable to the order of the plaintiff, and to secure its payment gave a mortgage on a slave owned by her in her separate right. The note was not paid at its maturity, and the plaintiff obtained an order for the seizure and sale oí the slave, the execution of which the defendant enjoined, .on the ground that the note and mortgage were given for a debt due by her husband, for whieh she was in -no wise bound, which was not .contracted for her benefit, and which did not turn to her advantage. The injunction was perpetuated in the court below, and the plaintiff has appealed.

The evidence establishes satisfactorily, that the debt for which the defendant .obligated herself was contracted by her husband; the money went into his hands ; and .the plaintiff has failed to show that it enured to the wife’s use. The contract of the defendant is one which sho is prohibited by law from entering into, and it cannot be enforced against her. Civil' Code, art. 2412. Pascal v. Sauvinet, 1 Annual Rep. 429. Judgment affirmed-

       The note was executed for money lent by the plaintiff to the husband. B.


author: Slidell, J.

text:
    Clark et al. v. Preston, Executor.
    ^Vhere a testator, after making various dispositions in a will in which ho evidently intended to dispose of his whole property, declares as follows : " I give the rest and residue of my .estate to my brother, and the legal heirs at law of ray deceased wife, in equal proportions; this residue, if any shall remain after the payment of debts and legacies, will consist in notes duo me at New Orleans, .the joint property .of the estate of myself and my late wife”— the words “this residue, &c. will .consist in notes due me at New Orleans, &c.”, being mere words of description, will not be considered as limiting the generality of the phrase “ rest and residue of my estate” to potes .due to the testator at New Orleans.
    Where the language of a testament leaves the meaning of the testator doubtful, acts done by ]him after its execution, may ,be taken jnto consideration, as explanatory of his intentions. C. C. 1708.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Peytop,, and I. W- Smith, for the plaintiffs,
    cited Jackson v. Sill, 11 .Johns, 217. Mann v. Mann, 14 lb. 11. Doe v. Roe, 1 Wendell, 541.

      Preston, appellant, prpse,

    .cited C. C. 1710. Lartigue v. Duhamel, 4 Mart, N. S. 664. Thrall v. Thrall, 7 La. 23.0. Sarcp v. Dunoyer, 11 La. 223.
   The judgment of the court was pronounced by

Slidell, J.

In the year 1830, James Brown, the testator, sold to Humphreys, his co-proprie.tor, an interest of one-sixth in a certain plantation and .slaves in Louisiana, for tlje sum of $18,000, payable by an appropriation of one-.sixth of the sugar prop yearly, during four years; the debt however, if not thus satisfied, to become at all events due in four years from the day of sale. Brown and his wife w.ere in community at the time of the pale. She died soon after. H.er one-half interest in this debt passed to her legatees, and Broion remained the owner of the other half as surviving partner in community. The testator made his will, in 1832. At that time this d.ebt was outstanding. A portion of it was subsequently paid by Humphreys, during Brown's lifetime; •the residue was collected .after his death, from the heirs of Humphreys ; and a portion of this r.esidue is- now claimed from the executor, by the plaintiffs, as legatees of John Broion, who contend .that James Brown’s interest in this debt passed, by his will, to John Broion, as residuary legatee ; while, on the contrary, the executor, Preston, contends that the fund belongs e.ither to the plaintiffs jn connection with pertain other legatees under James Brown’s will, or ¡to his heirs generally.

The .clause ip jth.e will of James Brown, which is the main subject of this controversy, i.s in these words : “ I give the rest and residue of my estate to my brother John Broion, and the legal heirs at law of my deceased wife, in equal proportions; this residue, if any shall remain after payment payment of debts and legacies, will consist in notes due me at New Orleans, the joint property of the estate of myself and my late wife.” This clause is the last clausa s;f .bequest in the \yilj. The will commences by directing the dispositions of his wife’s will to be respected as to her half in the plantation and slaves, and in a house in New Orleans; it then directs that the other half of said possessions in Louisiana, that is to say the plantation, with its appurtenances in slaves and utensils, &c., should be sold by his executors, or worked in partnership with the co-proprietor, Humphreys, and the amount of sales or of annual proceeds divided as follows : one-half to his brother John Brown, and the two children of his brother Samuel Brown; the remaining half equally between his sister Mary, and the children of his sister Elizabeth, and those of his brother Preston Brown ; “ or, in other words, that I may be considered as having died intestate, except as to the preference given to the children of my brother Samuel, and to my .brother John.” The next .clause gives to a neice certain jewels. The next, to another neice, SI,000. The next, the like amount to a sister-in-law and her daughter. The next, the like amount to another neice ; and then follows the residuary bequest quoted. The testator concludes with the following declaration: “The cholera has rendered this disposition of my property urgent; and I adjure my heirs pot to go at law about my estate, as whatever may be found after my death has been the fruit .of my own industry. My wish has .ever been kindness and justice to all my relatives and connections.”

It is our duty to ascertain the intention .of the testator in this clause; and, in doing so, we must compare .it with other parts of the will, and so interpret it, if possible, that the whole may harmonise and have effect. The first impression created on the mind by the perusal of .this will is, that the testator intended to dispose of his whole property; that it should cover eyery thing which he might leave behind him. This results not only from the general frame of the ■will, and from the large and comprehensive expressions of the following specific ■legacies — “ I give the rest and residue of my estate to my brother John Brown, and the legal heirs at law of'my deceased wife, in equal proportions” — but also from the concluding expression, in which he affectionately entreats his heirs not ,to disturb the execution of his wishes — “whatever may b,e found after my death has been the fruit of my own industry.” These words clearly indicate that, he intended by his will to dispose of all that h,e should leave behind him.

But it is said that the concluding expressions of the contested clause limit the generality of the antecedent, and restrict this residuary legacy to “ notes due ,at New Orleans,” and that, as the Humphreys’ debt never existed in the form of .a note or notes, it does not therefore fall within the bounty of the testator. This interpretation is at war with that intention to dispose of all that the testator should leave at his death, which, as we have said, is plainly dsducible from ,the rest of the will. Are these expressions then sus.ceptib.le of any other interpretation, whi.ch will harmonise with the rest of the will? If they are, we are bound to adopt it.

The language is “ will consist in notes due at New Orleans.” The words are pot in the present, but the future. They may be considered as judicative of ¡his expectation that his assets will ultimately assume .that form. That su.ch may have been his expectation is in accordance with the written instructions .subsequently given to his agent at New Orleans, Erwin, in which he directs Erwin to make investments there of moneys that may come into his hands either in hank stock or safe notes. These subsequent acts of the testator, as explanatory ,of his will, we are authorised to consider by article 1708 of the Civil Code.

But because the testator entertained the expectation that his assets would, at future time, assume the form of notes, it would b.e unreasonable to say that his bounty to his brother, named as the legatee of the rest and residue of his estate, was intended to be contingent on the mere form in which his assets should exist at the time of his death. The transmutation of his assets into notes would require time, and would depend upon the contingency of meeting with satisfactory securities of that nature. But the testator cannot be supposed, from the terms of his will, to have looked forward with, certainty to the possibility of doing so. He was, as the will shows, impressed with a sense, not only of the general uncertainty of life, but of an unusual danger. A pestilence which had spread terror and destruction throughout the country, was prevailing. It was a disease which destroyed suddenly. The testator saw himself surrounded by its devastation. The next week, or the next day, might find him a victim, and under such circumstances he applies himself to the making of his will, with a manifest desire to dispose of all “the fruits of his industry which may be found after his death.” Now the testator cannot be supposed to have been ignorant of, or to have forgotten, this large debt of $18,000. But if death should overtake him speedily, this large debt could not be realised so as to accomplish his expectation of one day investing its proceeds in notes. Yet if the interpretation .claimed by the defendant be the true one, the disposition .of a very important item of “ the rest and residue” of the testator’s estate would have been left contingent and uncertain.

If, instead of regarding the language of the testator as expressive of an expectation that the residue of his estate would, at a future day, be found in the form of notes, we treat the words “notes due at New Orleans” as an enumeration, we would not be justified in considering the general and highly comprehensive words, “restand residue of my estate,” as restrained by the subsequent enumeration. This case is a stronger one in favor of the residuary legatee, than some that are to be found in the books. Thus where a man gave the remainder of his estate, viz, his Bank stock, India stock, South-Sea stock, and South-Sea annuities, to his son, and appointed him sole executor, it was held that the words following the “viz” were added by way of enumei-ation, pi-description, only of the chief particulars whereof his estate consisted, and did not restrain the word “ estate” to those particulars. See Warden Legacies (214), and the cases there cited.

Looking even to tlje expressions “ notes due me at New Orleans,” apart from the antecedent words, we are not prepared to say that they should be so rigorously construed as not to comprehend the Humphreys’ debt. That debt was evidenced by a written promise to pay, embodied in the written act of sale.

It is said that by this interpretation of the will, John Brown is largely preferred to the other relatives, for all of whom the testator prpfessed an affectionate regard, and a desire to do them justice. The preference created by the clause in question does not stand alone in this will. A preference was also given to him in an antecedent clause, which distributes the proceeds of specific property. The testator was the rightful judge of what-was just in the distribution of his property; for, as lw declared in his earnest and solemn appeal to them not to go to law about his estate, it was the fruit of his own industry. It is also worthy of remark that, with a single exception, John Brown was the nearest relative named in the will.

The argument is unsound, which the defendant derives from the expressions in an antecedent clause — “ in other words that I may be considered as having died intestate, except as to the preference given,” Sec. These expressions clearly relate to the specific property there disposed of; and the interpretation claimed by the defendant would be utterly inconsistent with all ihe subsequent dispositions, both specific and residuary.

It is contended that the debt in question was covered by the antecedent clause in the will, which disposes of the’plantation and slaves. In support of this argument it is urged, that this price of the one-sixth sold to Humphreys, was part of the capital of the partnership, which, at the date of that sale, and' by the same act, was formed between Brown and Humphreys. We do not so regard it. It was a matter distinct from the partnership. Although the debt was to b® paid by the yearly appropriation of one-sixth of the nett proceeds of the crops, yet these annual payments were expressly stipulated, “ to be made out of one-half part of the nett proceeds' of the said plantation which will belong to the said Humphreys.” The partnership was declared to exist between Brown and Humphreys, as equal owners of the plantation and slaves-. If the partnership had made no profits whatever, Humphreys was bound absolutely*. and without reference to the state of the partnership account, to pay the $18-,000 at the end of four years.

The decree of the court below in sustaining the claim of the plaintiffs has* We- believe, fulfilled the intention of the testator.

Judgment affirmed*


author: Sun ell, J.

text:
    Doat v. Maltby.
    A new trial will not be granted on the affidavit of counsel of his- ignorance of facts which were known to the party whom he represented before the commencement of the suit, but which were not communicated by him to his attorney, in consequence of the absence of the client from the State at the time of trial. Per Curiam: It was the business of the client to give proper information and instruction’ to his counsel,
    to entitle a party to a new trial, on the ground of the discovery of important evidence since the trial, it must be shown that it could not have been obtained by due diligence before. C.P. 560.
    Appeal ffom the District Court of the First District, Buchanan, J.

      Augustin, for the plaintiff. Haynes, for the defendant. Durant, for the appellant.
   The judgm'ent of the Court was pronounced by

Sun ell, J.

The only ground upon which the appellant asks the reversal of the judgment and this remanding of this cause is, that the application for a hew trial, upon the ground of newly discovered evidence, should have been granted. A portion of the evidence stated in the affidavit for anew trial, involves facts within the knowledge of the party at or before the inception of the suit. The absence of the party from the State at the time of the trial, and the alleged ignorance on the part of his counsel of these facts, and of the names of the witnesses, afford no ground for relief. It was his business to have given the proper information and instructions to his counsel, before his departure. As to the rest of the evidence, the affidavit is defective, on the score of diligence. C. P. art. 560. Judgment affirmed-


author: .Host, J.

text:
    Cavelier et al. v. Moss.
    Where tíie declarations óf a witness are the only evidence of his having been interested, and those declarations establish the release of that interest, they must be taken together as proving his competency.
    ■Where,- in an action of revehdication instituted by a former possessor to recover a slave, both parties are in good faith, and claim under titles which they believe to be just, but neither has possessed under his title long enough to perfect it by prescription, tlieir condition being equal the defendant cannot be evicted by á title not superior to his own.
    Appeal from the Parish Court of New Orleans, Maurian J.

      Blache, fo.i the plaintiffs. W. If. Hunt, for the defendant. Prentiss and Finney, for the appellants'.
   The judgment of tl.& court was pronounced by

.Host, J.

This is the action of revendication, based upon a just title not perfected by prescription, named in the roman law, Actio' Publiciana.

The plaintiffs purchased and took possession of a slave in the State of Mississippi, in 1838'. They held him on- their plantation in Louisiana till the year 1844', when he ran away, and,-having found him in the possession of the defend-ant, they instituted the present action against him. The defendant pleaded a purchase from Porterfield, in Mississippi, in December, 1844; and also that his vendor lmd a good title. There was judgment against him, and he appealed. The testimony of several witnesses, taken under commission-, and offered by the defendant in- support of his possession and title, was excepted to by the plaintiffs, and rejected-by the court. It has come up with- the record, and a perusal-of it has satisfied us that it should have' been admitted. Those witnesses were’ called upon by the defendant to testify against the inteiest they might have iff the event of the suit, and did so testify. If they ha'd not, their interest is only shown by their declarations, and those declarations establish-their release; their' evidence must be taken together. 1 Greenleafon Evidence, nos. 95, 398, 422.-

The evidence shows that the slave in controversy was- in the possession of Sparks in 1834, and that he sold hinr to Elliott, in 1836-; Elliott sold to Fox,' Fox to Gray, Gray to Knox, in 1837, and Knox to Porterfield, in 1844. It is' also shown that, in 1837, the slave ran- away from1 Knox, who advertised him,- and offered a reward for him; and that, in 1844, he was apprehended in Mississippi, and delivered-by the jailor to Knox, who paid the reward, and sold him-to Porterfield, under whom the defendant claims.

The plaintiffs have'not justified the possession of their vendor, by showing a-title in him under which they could prescribe. The defendant has equally failed to justify the possession of the original vendor, Sparks. Both parties are' in good faith, and claim under titles which they believe to be just. Neither has' possessed long enough- under his title to perfect it by prescription-. They are' of equal condition, and the defendant cannot be evicted by a title not superior to his own. “ L’ancien possesseur de bonne foi n’est pas pareillement reeu á revendiqner lachóse dontil a perdu la possession, contre un possesseur qui, sans en étre propriétaire, la posséderait en vertu d’un juste títre. Car les deux partis- étant dans ce cas d’égale condition, le possesseur actuel doit avoir la préférence'. In pari causá, potior causa possessoris.” Pothier, Droit de Propriété,1 no. 2&’4.

It is therefore ordered, that the judgment in this ease, as it affects the defendant and his Warrantor, be reversed; and that there be judgment against the plaintiffs,- and in favor of the defendant and of the warrantor, with costs in both Courts.

       The counsel for the plaintiffs, in air application for a rehearing, contended that the Publiciana in rent actio is inapplicable to the case of a fugitivo slavo. Hsbc actio in his quae usucapi non possunt, puta iurtivis, vel in servo fugitivo, locum non habet. Dig. lib.G, tit. 2,1. 9, § 5. The aetion Rei vindicatio applies to such a case. The Actio Publiciana is unknown to our laws.- The action before the court is simply a petitory action,- or action of revondicalion, as it is termed by art. 43 of the Code of Practice.

       The judgment below was against the defendant; hut in his favor against his warrantors, and the latter appealed. The answer of the defendant alleges that the purchase was made from Porterjtcld, in New Orleans. R.


author: Rost, J.

text:
    Webb, Under-tutor, v. The Union Bank of Louisiana.
    It is no objection to the validity of it mortgage executed by a married woman, under the 25tlr see. of the stat. of 2 April, 1S32, incorporating the Union Bank, to seéure aloair made to her husband, that her rights were not explained to her, out of the pV'esené'e Of her husband, by the notary before whom the mortgage was executed. Per Curiam.- The lavv requires’ that married women should be' made acquainted with their rights, When about to renounce’ them; hut the bank does not claim’ under a renu’ncia'tion by the wife, but under á' direct obligation, which she had capacity to contract.
    APPEAL front the District Court of the' First District, Buchanan, J.

      Sheaf-for the' appellant. Halsey, arid Denis, for the defendants.
   The' judgment of the court was pronounced by

Rost, J.

The plaintiff, as urider-ttttor of the' minor children of tlie late' Agnes Hoggat and of John M. Morris, her husband, seeks to annul an act of mortgage, granted by her, jointly with her husband, upon certain slaves which were her separate property, to secure the payment of a loan made by the Union Bank to her and her husband,-in the course of dealing- authorised by the charter of that institution and in the usual form. The bank filed a general denial; but first excepted to the' action, on the ground that it could' not be maintained by the under-tutor, because the interest of the minors is not in this instance in opposition to that of their father and intof. The' court below, without noticing the exception, gave judgment on the merits in favor of the defendants, and the' plaintiff appealed.

We are utterly unable to discover the object of this suit,- and what end bene-' ficial to the' minors can be attained by it. If the act of mortgage was annulled, the bond in solido, to secure the payment of which it was given, would still remain, and bind all the property of the wife. Leaving the' principal obligation in full force, and attempting to avoid that which is merely accessory to it, is a fancy proceeding in Which minors should not be involved. But there is no pretext for the' action itself. The' powef of attorney given' by the' deceased to Crawford, authorised him' to' exe'cute all the acts of mortgage and obligation that might be necessary or expedient for securing a loan to her husband, and in her name to sign all and singular the instruments that might be requiredby the board of said bank, in order to bind the constituent in solido with her said husband. The act of-mortgage in controversy was one of the instruments required by the board of the bank, and its execution by the attorney in fact was strictly within the scope of his authority.

The bank had-nothing to do with the application of the fund borrowed ; and the ground that the rights of Mrs. Morris were not explained to her on that occasion by- the notary, out of tile presence of her husband, is untenable. The 25th section of the charter of the bank removes the disability of married women, and enables them to bind themselves and their property. The law requires that married women should be made acquainted with their rights by the notary, when they-are about to renounce those rights. The bank does not claim under a renunciation of the wife, but upon a direct obligation which she had capacity to contract.

Besides these reasons, Mrs. Morris obtained in her life time a separation of property from her husband, caused the property mortgaged to be sold under her judgment, bought it, and held it, at the time of her death, subject to the bank’s mortgage. It is doubtful whether the'undep-tutor had capacity to maintain the suit, but the case is so clear for the defendants that we have thought it best to-decide it- ’ Judgment affirmed.

       Eustis, C. J,¡ being interested, did not sit in this case.


text:
    Ledoux et al. v. Cooper et al.
    Decision in Ledoux v. Anderson, ante p. 558; affirmed.
    Where the fact of the purchase of certain property by the plaintiff appears-to have been-con1ceded throughout the proceedings, and the answer- of- a witness to an interrogatory propounded by the defendant positively establishes it,-the evidence of title will be’sufficient against the defendant in a case where the question of title is merely incidental.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Wharton, for the appellants-

      Rawle, for the defendants.
    Plaintiffs-have failed to prove the most'important fact in the cause. They have not proved that they did buy the' land. There is no evidence but the sheriff’s deed. The parol evidence only shows that there was a sheriff’s sale — rem ipsam. Without authority,the sale of a sheriff is nothing; and there is no proof of a transfer of title, unless there appears, if it exist, a judgment or order- of court, a writ of execution, and the sheriff’s return upon it; they give a title without a deed, but the deed is of no use without them. It “ adds nothing.” C. P. 695. See cases of Dufour v. Camfranc, II' Mart. 611. McDonogli v. Gravin, 9 La. 542. Reeves v. Towles, 10 La. 286. Thompson v. Rogers,-4 La. 12. Donaldson v. Ronzan, 8'Mart*. N-. S. 172.'-iSamev. Winter, 8 Ib. N- S. 179.
   The judgment of the court was pronounced by

Rost, J.

This case does not differ in principle from the case of Ledoux et al. v. Anderson et al., lately determined, ante p. 558. It’ involves a claim for the proceeds of the cotton shipped by J. A. Cotton to the defendants, from the-plantation of the plaintiffs in West Feliciana, under the circumstances mentioned in the former case. The defendants resist the claim on the following groundsThat before the 3d August, 1844, Joseph A. Cotton, as executor of his father, and for himself,, was indebted to them in the sum of $7,804 43, for moneys paid and advanced to him, for supplies furnished to his plantation, and expenses paid by them- for said plantation, on account of Cotton and-his father, at their special.instance and request; that, in September, 1844,'they received from the said Cotton eighty-tliree bales of cotton, upon which they have a privilege for the balance due them, and for.their supplies and advances; that said cotton was made, grown, and saved, by the slaves and laborers of said J. A. Cotton. There was a judgment in their favor in the first instance, and the plaintiffs appealed.

In the case already cited, we held that Cotton.could be,considered in no other light than as agent of the plaintiffs, in preparing the crop for market and shipping it; the cotton and the land upon whieh it grew, having become the property of the plaintiffs by virtue of their, purchase, on the 3d of August, 1844; and their subsequent agreement with Joseph A. Cotton, if-any took place, not having been executed by him.

The point is made in this case, that there is no evidence of the purchase in the record, save the sheriff’s.deed, .which is.alleged not to be sufficient. This is not a petitory action, and the question of title is merely incidental. The fact of the purchase appears to have been conceded throughout the proceedings; and the answer of the witness, Sterling, .to a question propounded .by the defendants themselves, positively .establishes it.

The only claim which the defendants have on the proceeds-of the cotton sold by them, arises .from the privilege given them by the act of 1841, .for supplies furnished to the plantation during the year 1844. The manner in which their account is made out does .not enable us to ascertain the extent, of .their claim.; and as this appears to he a hard case for them, we will give them an opportunity to adduce further evidence in relation to it.

The judgment is therefore reversed, and the case remanded for further proceedings, in conformity with the opinion of the court; the defendants and appellees paying the .costs of this appeaL


text:
    Van Horn v. Taylor et al.
    Ehe owners of a steamer will not bo liable for the value of goods shipped under a bill of lading containing the exception of " unavoidable accidents and dangers of the river,” and lost in consequence of a collision with another boat, where there was no .fault or carelessness on •the part of those who had charge of the steamer on which the goods-were shipped, and it was not in their power to prevent the collision. Such a less is -the result of .an unavoidable accident, or danger of the river, within the meaning of .the bill oflading.
    Where goods, stored on the deck of a steamer, to the knowledge of the shipper, who was a passenger, and without objection on his part, are lost overboard, inconsequence of a collision with another boat, occurring without any faulton thepart .of those in charge of the steamer on which they were shipped, the shipper cannot recover their value from the owners of the steamer on which they were shipped, on the ground that they were lost from having been •improperly stowed-on deek, instead of in the hold.
    APPEAL from the Parish Court of New Orleans, Maurian, J, The defendants appealed from a judgment in favor .of the plaintiff.

      T. A. Clarke, for the plaintiff.
    The exception in the bill of lading is of “ unavoidable accidents and dangers of the river.'” The adjective “unavoidable” qualifies the word “dangers,” as well as “ accidents,” and has invariably been interpreted in this connection, to mean such overpowering force as is produced by superhuman agency, and which human effort could not prevent. If, then, the cause of ihe accident was the mismanagement of the Emperor, it was not the result of vis major. This interpretation of the clause in bills of lading for transportation upon the western waters, has been adopted in two cases by the courts of Tennessee, viz.: Oordohv. Buchanan, 5 Yerg. Rep. 71, and Turney v. Wilson, 7 Yerg. Rep. 340. “ If goods are injured by the wanton or careless collision of boats, the carrjer is liable tp the shipper, and must seek his remedy from the aggressor.” Wright’s Ohio Rep. 193. Whatever may be the doctrine in rplgtion to marine collisions — whether, as relates to the mutua Lights of freighter and .carrier, the carrier is responsible or not, where the bill of lading .contains tlje exception “ dangers pf the sea,” and the .collision was not the result pf his negligence — we contend that .principles of public policy require in river navigation tljat the carrier should .be held njor.e strictly responsible. The reasoning in th,© cas.es pf Trent Nav. Cp. ,v. Wppd, 3 Esp., 127, and ¿forward v, Pitlard, l Ternj. 27, here appjies,

      C. M. Randall, for the appellants.
    The tobac.co shipped pn the defendants’ steamey was well stowed. Abbot on Shipping, new ed. p. 423, note 2. 4 La. 211. Collisions are dangers of the river, within the exception of the bill of lading ; and where they o.ccur without fault .on the part of those in .charge of one pf the vessels, they are, as to thp owners of that vessel, “ unayoidable accidents,” for which they .cannot be made liable- ,C. C. 2725. 3 Stewart and Porter, 176. The case .cifced from Wright's Ohio Reports, 19.3, Is not law- It h U solitary case, unsupported by re.asop .or principle.
   The judgment of the court w.as pronounced by

Slidell, J.

This is pn action by a shipper, tp recover from the .owners of the steamer George .C.olliep thp value of .certain goods shipped und.er a bill of Jading containing t}je exception of “ unavoidable appidents and dangers of the river.” The defence is, that tlje goods Vjr.ere forp.ed overbo.ard jn .a .collision with an.otlipr stpampr, which .collision was caused by the fault of the other steanir ,er. This .cause has been already before the Supreme Coqrtt.and was remanded for a new tria}. See 7 Robinson, 201. It w?s then said by the .court, and in fhat opinion we concur, “ that if there was no faujt .or carelessness pn .the part pf those wh.p had charge of the George Colli,er, apd jt was out of their power fo have pr.eyepted th.e collision, we can see no gpod reason why it should not be .considered as an unayoidable accident, .¡and ras .o.np ,pf th.e dangers,of flap rivey yvithin the meaning of the bill of Jading.”

We have .carefully examined the .testimony in .this .canse, ¡and while, on the .one hand, we djs.cpyer gross negligence, and something approaching e.yen to wanton and malicious pondupt, on th.e part pf those in charge of the other beat, we find ¡nothing in th.e py.idpncp which would justify us in attributing th,e pojlision in .any degree tp fije faujt pr negjigenpp of th.e defendants’ officers of crew. The pbligation of thp shipowner j.s a stringent ,on,e; ,a,nd the interests of commerce, pnd the safety of human Jife, require that wh should .enforce ljgidjy the performance pf their duty by the officers of vessejs, for whom th.e ownprs arp responsible, They .are bo.und to ponstant vigilance, and if a case presents itself in which tljere is eyeij sjight fiiult, we should hold the pwners answerable to the shipper. Ip the present pas.e no faujt whatever is .attributable t,o th.e .d.efendr pnts’ officpj's and .crew-

It is said that the pjniptiff’s goods wepp improperly stowed pn deck; that th.e fleck Joad only was thrown oyprboard by the collision, the .carge jn .the hold nof being jnjjjr,ed. The gpods w.ere thus lad.en with .the knowledge and implied approbation of .the plaintiff. Lie was a passenger on boar.d the steamer, and does not appear to liave made any objection to the goods being thus carried, jthough fhe .collision occurred several days .after fjie steamer commenced her yoyage. M.oreover, jt appears by testimony, that merchandise of that sortoften carried on deck, and that underwriters do not charge a higher premium on such merchandise, carried in that way, it beinghowever considered the duty of the master to protect it from the weather.

It is therefore decreed that the judgment ,of the court below be reversed, and that there be judgment for the defendants, with costs in both courts.

       fhe merchandise shipped was tobacco in hogsheads, R,


author: Slibeli,, J.

text:
    Forgay v. Lambeth.
    The non-joinder of all the obligors in an action on an obligation alleged in the petition to be joint, can only be taken advantage of by exception in limine litis. The exception is waived by an answer to the merits.
    Appeal from the Commercial Court of New Orleans, Watts, .T.

      Watts apd Spring, for the plaintiff. W-M. Randolph, for the appellant.
   The judgment of the court was pronounced by

Slibeli,, J.

Jacobs and Lambeth were joint owners of certain lots of ground in New Orleans. The municipality gave an order requiring them to be paved. Jacobs, with the authorisation of Lambeth, made a contract for himself and Lambeth, with Forgay, for this paving. The contract was fulfilled by Forgay. Jacobs paid his half to Forgay, who gave Jacobs a full discharge, and then brought this action against Lambeth, to recover his half of the price of the work. The defendant pleaded ¡the general is,s,u,e. Pie also pleaded specially that he had become bound to sell and convey the property alleged to have been paved, before the pavement thereof, to James Donaldson, and that if the same was paved, it was for the benefit ,of Donaldson, ,and not of respondent.

Upon these issues the parties went to trial. Witnesses offered by the plaintiff proved the .contract for paving. From this testimony it clearly appeared ¡that the liability of Jacobs and Lambeth was that of joint obligors; also, that Jacobs had paid his half, and had been fully discharged by F.orgay. Upon proof ,of the contract, the defendant filed what he terms a peremptory exception, in which he suggested that it appears from the testimony of the witness, Jacobs, fhathe was jointly bound with the defendant upon the contract made with plaintiff, and moved the court ¡to djspiiss th,e suit. The ¡court disregarded the .exception, ,aud refused the m.o.tion t.o dismiss. In this, we think, the .court did pot err.

What would have been the duty of the ¡court if jt.he joipt liability had b.een presented for the first time .by the evidence, is a question which it is unnecessary to decide, Th.e averments of the petition sufficiently charge a joint obliga? jtion, and if th.e .defendant d.esirpd to.ayail hirpself of the rule prescribed in art, .2082 of the pod.e, which require# all the joint obligors to b.e made parties, even .although ope of th.e joint obligors has discharged his part ,of the obligation, he should hav.e excepted in limine litis to the non-joind.er; and be has waived the exception by answering to the merits. The ¡court h.as examined the cases cited pited by coppse], bpt does n.ot ,consider ¡them pert.ip.ent. Ip the pase of The Mayor v. Ripley, 5 La. 122, the suit was brought against .all the makers of a joint note. Before the case came to trial, the plaintiff discontinued as to three ¡of the defendants. At the trial the remaining defendants moved a dismissal of fhe .s.ui.t, which was granted by the court below, and sustained on appeal, fo Thompson v. Christian, 3 Rob. 26, the suit had been brought against all the defendants. The court below, for a supposed want of jurisdiction on the ground of domicil in another parish, dismissed the cause as to one; but on appeal it was held that, as the debtors were joint obligors, the plaintiff should have appealed from the judgment dismissing the action as to the co-obligor, and have kept him before the court till final judgment. In Duggan v. De Lizardi, 5 Rob. 226, all the co-obligors had been made defendants, and there was judgment against each for his proportion. Five of the defendants appealed, and the other defendants were not cited as appellees. There was a motion by the plaintiff to dismiss the appeal, on the ground that the action was against joint obligors, and that all the defendants in the court below were not made parties to this appeal. The motion was sustained, and the appeal dismissed. In none of these cases was there an implied waiver of the exception.

The testimony of Jacobs was excepted to, on the ground of interest. It was properly admitted. He had no interest in favor of Forgay, the party calling him. He had paid Forgay, and had been fully discharged. How the interest of the witness could be promoted by the the recovery of Forgay, against Lambeth, we are unable to perceive. It is said that, as co-obligor, he was liable insólido for costs, although he had discharged his part of the obligation. C. C. art. 2082. He would have been so liable, if he had been sued; but he was not made a party defendant, and Lambeth, as we hav.e seen, had, by his pleading, waived any objection,on that score.

The liability of the defendant is fully proved. The case does not appear to us to rest upon the testimony of a single witness. The corroborating circumstances are abundant.

When the contract was made a sale to Donaldson was in contemplation, but not executed nor recorded. Lambeth was the apparent owner. The contract was for a fair and reasonable price; it was made by Jacobs, Lambeth’s co-proprietor, with his authorisation and approval. The credit was given to them. If Donaldson has had the benefit of the work, that may give rise to a question between him and Lambeth, but do,es not concern Forgay.

Judgment affirmed.


text:
    Copley v. Benton, Executor, et al.
    Where the words of a receipt leave its meaning doubtful, the testimony of witnesses is admissible to explain it.
    Appeal from the District Court of Carroll, Mayo» J.

      S. W. Downs, for the appellant,
    contended that the parol evidence to explain the receipt was inadmissible, citing 5 Mart. N. S. 251. C. C. 2256.

      Short and Drew, for the defendants.
   The judgment of the court was pronounced by

King, J.

The plaintiff claims in this action $512 50, for his fee as an attorney, and for costs paid, in a suit instituted by Martha A. Barton, as the executrix of her husband. There was a judgment for $4 75 rendered in the court b.elow in favor of the plaintiff, from which he has appealed.

The defence mainly relied on is, that the sum claimed in this suit was indued in a receipt given on a general settlement of all accounts, made between the plaintiff and W. M. Benton. The language of a part of that receipt left the meaning of the instrument doubtful, and a Witness was called to explain the intention of the parties. The introduction of this testimony was opposed by the plaintiff, but the grounds of objection are net stated in the bill of exceptions. It was clearly admissible to explain the receipt. 8 Mart. N. S. 542, and authorities there cited. The testimony of this witness appears to- have satisfied the' district judge that the sums now claimed were included in the settlement and receipt, and we are not prepared, on this question of fact,- to dissent from the conclusion at which he arrived. The witness is uncontradicted; his veracity is not impeached; and the judge below, who heard- him testify, seems to have based his judgment upon his testimony.

Judgment affirmed*


text:
    McNamara et al. v. Jarvis et al.
    íhe failure of any of the obligors named in an instrument to sign it, authorises the others to retract; but they mu'st do so seasonably, before the contract taires- effect.
    Where in an action by Creditors against the sureties in an administrator’s bond, defendants plead that they have been discharged by the gross negligence of plaintiffs, it is an admission of their liability unless negligence be shown, and a waiver of any defects of form' in the execution of the bond.
    Appeal from the Second' District Court of NeW Orleans, Canon, J.

      Peyton and I. W. Smith, for the plaintiffs. Winthrop, for the appellant,
    cited Wells v. Dill, 1 Mart. N. S. 593. Pothier, Obilg, no. 11. 4 Cranch, 219.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs, being creditors of the late John Dwyer, were placed- as such, for the dividends coming to them,- on the tableau of distribution filed by the administrator of his succession. The tableau was duly homologated, and the administrator having failed to pay over the dividends,- writs of fi. fa. were issued against him, and returned by the sheriff — no property found. This action was instituted- against the sureties on the administrator’s bond, for the amount of the unpaid dividends. The defendant, Jarvis, filed a general denial; admitted his signature to-the bond, but resisted the claim of the plaintiffs, on the ground that he was discharged from all liability, in consequence of their gross negligence and inattention in enforcing their claims against the administrator. He further alleged that, if not so discharged, Mary, and Sally Dwyer, two of the plaintiffs, had received on account the sum of 1400, for which credit should be given. There was judgment, in sólido, against him and another of the defendants, and he appealed.

The allegations in the answer of the appellant are not sustained by proof; but Ms counsel asks the reversal of the judgment, on a point not put at issue. He alleges that the name of Goodrich, one of the sureties named in the body of the bond, was signed without authority by his attorney in fact, Thomas; and that the name of Stetson was substituted for that of 'Andrews, who did not sign the bond, although his name is also inserted in the body of it.

Had this plea been made in the answer, we are not prepared to say that, aft61' ^10 a'PPefiant had suffered the contract in which he entered to be executed Without opposition and rights to be acquired by third persons under it, he Could avail himself of that informality. We admit the doctrine, contended for by the appellant, that the failure' of any Of the obligors named i'if the instrument to sign’ it, gives the others the right to retract. But we apprehend that it is incumbent Upon them to do so seasonably, a'n'd before' the contract takes effect. The opinion of Jtfáge Marshall, relied on by the appellant, clearly lays down the distinction. The question in’that case was, whether the instrument was delivered absolutely, or merely as an escrow. On the evidence adduced, the court considered that a jury might well have found the issue in favor of the' defendants, and gave judgment on the deniurrer accordingly. BUt if it had been clearly shown that the instrument had been delivered absolutely, the judgment must have been otherwise’. 4 Cranch, 219.

But this plea appears to us inconsistent With the ansWer, and canribt be entertairled. The allegation that the sureties Were discharged' in consequence of the gross negligence of the plaintiffs, necessarily admits the liability of the de-1 fendants, if negligence is not shown. This defence is a waiver of all defects of form, and the appellant must abide by the issue he has deliberately made.

Judgment affirmed.


author: King-, J.

text:
    Drew v. Robertson.
    OUe who endorso^ a'note to which he wainiot a'pai-ty, is presumed'fo’bind:himselí’ as surety.
    Appeal ffom the Fifth District Court of New Orleans, Buchanan, J.

      J. Uunlap, for the appellant. Benjamin and- Micou, for the' defendant.-
   The judgment of the court was pronounced' by

King-, J.

This suit is instituted to recover the amount of two promissory notes, drawn by' Felix Bosworih, payable tethe order of the defendant, and'endorsed by the latter. Upon each- the name' ef the plaintiff appears as second' endorser. The plaintiff alleges that he endorsed the notes at the request of the defendant, as the guarantor of the latter, for the purpose of facilitating-their' negotiation, and that he has sinchbeen compelled to pay them. The defence' set up is,-that the'plaintiff gave the notes to the defendant in- payment of a debt, and endorsed them as a guarantor of the maker. There was a judgment in the’ court below in favor of the defendant, and-the plaintiff has appealed'.

It appears from'the evidence', that the plaintiff purchased a quantity of mer-chandise from the defendant, fbr which he' stipulated to give to- the latter in’ payment notes and other demands against third persons:- In pursuance of this’ agreement he caused two notes' to -be executed by Felix Bosworih', who was his' debtor, payable to-the order of the defendant, and'delivered them to the latter.' Whether or not they bore' the' endorsements' of the plaintiff at the time of their delivery, does not appear. The defendant, however, subsequently gave them1 in payment to Turner &f Woodruff, and at that time the name of the plaintiff figured on the back of each, as second endorser.

The plaintiff does not pretend that he intended to incur the liability of a second endorser, and it is clear from the evidence and the nature of the iransae - tion, that such was not his intention. It devolved upon him then to show that the intention of the parties and character of the endorsement were those alleged in his petition, otherwise he is presumed, by the settled jurisprudence of the State, to have bound himself as surety. No such proof has been made. 1 Ann. Rep. 249, 274. This legal presumption is strengthened, in the present instance, by the,fact that the notes were given in payment of a debt due by the plaintiff to' the defendant, and that while they were in the possession of the latter, theyjbore the endorsement of the plaintiff.

Judgment affirmed.-


text:
    Muir, Syndic, v. Henry et al.
    The validity of a sheriff's sale cannot he tested’by árale, taken by the purcha'sef ófftfte pla'üítiff in execution, to show cause why the adjudication should not be' set aside.
    A debtor in whose possession property is seized to satisfy his vendor's mortgage, who, after notice of íhte* proceedings, appears- at the sale and purchased the property, dannot after-wards complain of any irregularities in the proceedings, nor can they affedt the title to the’ property in his hands.
    Appeal from the Fifth District Court of New Orleans, Btíéhamütrí, I.

      Elmore and W. W. King, for the plaintiffs.
    A rule is not the proper’ remedy t<r set aside a sheriff’s sale; th'e remedy is by an action against the possessor of the property.' Where the debtor is himself the purchaser he cannot bring suit. He possesses by a good title, because he is in no danger of eviction. The informalities in the sheriff’s sale, if any, were' cured by the debtor’s appearance and purchase of the property. 1 An. R\ 11*. C. C. arts.-1810, 1811, 1812. 1 Story’s Equity, p. 385 and note.
    Holland, fur the appellants.
   The judgment of the court was pronounced by

King, J.

The defendant became the purchaser at a syndic’s sale of a house' and lot, together with seventy shares of the capital stock of the Citike'ns1 Bank, for which the property was Mortgaged.' A part of the'price was paid in cash, and, to secure the notes given for the rebidúe, a- mortgage was retained by the syndic. The notes not having been paid at their maturity, the syndic obtained an order for the seizure and safe of the hypothecated property, in virtue of which the sheriff seized the house and lot, and, after the usual advertisements, offered them for sale, but there was no adjudication,' for the want of bidders ; they were- not readvertised for safe at twelve-months,' but, sifter the lapse'of a short time’, a second seizure was made of the'mbrtgaged property, together with the seventy shares of stock, all of which were' offered for sale lor cash, but failing to bring two-thirds of their appraised’ value, they were not adjudicated, They were readvertised for sale, at twelve-months' credit, and adjudicated to-the defendant, Henry, who promised to furnish his bond for the price, with Jonathan Davis as his surety. Subsequently, however, he declined giving his bond, and took a rule on the syndic to show cause Why the adjudication should-not be set aside',- on-the ground that the sheriff- had no authority to make the' seizure and sale.- This rule was discharged. The plaintiff then took a-rule on' the defendant and Davis, to show'cause why they should not execute their twelve-months’ bond for the price of the adjudication, and this rule was made absolute. From-the judgments rendered on these rules the defendants have appealed.-

There is no error, in our opinion, in the judgment appealed from. We are not PrsPared to recognise the defendants’ right to test the validity of the sheriff’s sale on a rule. Admitting, however, for the purposes of the present investigation,_that the proper remedy was resorted to, the appellants have not presented a case which-entitles them to the relief for which they ask. No specific cause of nullity is alleged. The averment'is, in general terms, that the sheriff was^without authority,but wherein his authority was defective is not stated. The officer appears to have been acting in virtue’ of a writ legally issued, under a judgment rendered by a competent tribunal; and unappealed from. If there were irregularities, however, the defendant Henry cannot complain of them, nor can they affect the title to the property in his hands. He was the debtor, and the property was seized in his possession to satisfy the vendor’s mortgage. He had notice of the proceedings, and with a knowledge of the sheriff’s actsibecame thegpurctíaser.' No other party complains of having sustained injury by reason of irregularities in the proceedings; and the appellant- Henry, by appearing at the sale, bidding,-and^becoming the purchaser, waived and cured all-defects, if any existed.

The evidence shows that Davis promised to become the surety of the defendant on a twelve-months’ bond, in the event of the latter’s becoming the purehaseffofthe property. Davis lias notobjected to-the propriety of the proceedingsagainsthim-byrule-.- Judgment affirmed-


author: Rost, JV

text:
      Amis v. The Merchants Insurance Company.
    In tllB'absence of evidence to the contrary, it will be presumed- -that’ payment'was made by' the-party bound, and not by another. •
    The fact that a party was erroneously condemned by the court of the first instance-to pay half-" the costs of the action, will not authorise a reversal of the judgment "on appeal, where no' application was made to the court below tó correct the error."
    Appeal from the Fifth District Court of New-Orleans,• Buchanan, J.-

      Pepper, Stockton, and Steele, for'the appellant: £. Peirce, for the defendants.
   The judgment of the'court was pronounced by-

Rost, JV

The only, question presented by the appellant, Amis, for our consideration is, whether a sum of $2,500 received'by the defendants, was paid-by the appellant for the accommodation.of- Tlleophilus Freeman, their debtor, • or- by Freeman’Jíimaélf. The"judge of the court below being of opinion that-the evidence did not satisfactorily show its payment to have been made by. the' plaintiff, gave the defendants the benefit of-his doubts, and dismissed the cláim.

A careful perusal of the evidence has satisfied us of the correctness of the’ judgment. The plaintiff did not-substantiate his allegations, and: the legal pre-sumption is that the payment was made by the party bound.

The appellant further complains that, Ke was adjudged-to pay half of the costs-in the court below, although he partially succeeded. He should have applied to-that court to correct the error, if it be one; and as he neglected to do so, it is not a sufficient ground for the reversal of the judgment. Grailhe v. Hown, 1 Annual Rep. 140.

The appellees have asked that the judgment be amended in their favor, in relation to the other matters passed upon by the court below; but we are satisfied, it has done justice between the parties.

.Judgment affirmed.

       Slideuh, J. didi-not- sit- in this case, having be, u of counsel.


text:
    Succession of Girod.
    Tho compensation due toa parish judge for the sale of property belonging-to a .-succession though opened in another parish, is that fixed hy sec. 5 of the stat. of 28 March, 1813. He is not entitled to, the commission allowed to ordinary auctioneers on sales made by them.
    Appeal from the Second District "Court of New Orleans, Canon, J.

      Bodin, for -the appellant. Buvigneaud, for "the executors, ¡contra.
   The judgment of the court was pronounced by

Rost, J.

The appellant, being at the time parish judge of the parish of Assumption, was directed by the Court of Probates of this city, to advertise and sell the property belonging to the succession of the "late Nicholas Girod, situated within that parish. He made the sale,.and was placed on the account rendered by the executors for the fees allowed in suchcasesiby the 5th section of the act establishing an,explicit fae bill, approved March 28th, 1813. Bul. & Curry’s Dig. 439.

The appellant opposed the account, on the ground that the succession, not having-been opened in his parish, he did not make the sale by virtue,of his office, and was-entitled to the commission allowed by'law to ordinary auctioneers. His opposition was dismissed, and he appealed. The'law ¡relied „on .by the appellees provides -that, in all sales .of property belonging to an estate, parish judges shall be authorised to charge and receive one per cent on all sums not exceeding $5000, and-half of one per.centon Ail sums exceeding that amount, and no more. The counsel for the appellant states that the only difficulty is to ascertain whether this provision refers and applies exclusively to property of successions opened before the "judge himself, .or to the property .of any succession .whatever.

We are unable to perceive -any difficulty in the matter. "The Jaw-giver was -well aware that the property of successions is often situated in different parishes, and has made ample provision for-its administration in such cases. He "has, among other things, provided that ,a .uniform commission shall be paid for the judicial sale of it, without reference .to its locality:. The regulation is in every respect .a proper one. The letter of the law which establishes it is clear .and free from all ambiguity; and the attempt to disregard it, for the purpose of .discovering aliunde the mens legislatoris, would, in a case like this, be a pretext indeed. C. C. art. 13. Judgment affirmed.


author: ■Kino, J.

text:
    David v. Ferrand.
    A debtor of ono declared a bankrupt under the act of Congress of 19 Aug. 1843, when proceeded against by an individual .creditor of the ,bankrupt for the purpose of obtaining, separately, satisfaction of his claim, may set up in defence the exclusive right of the assignee of the bankrupt to recover the debt, and the pendency of a s.uit instituted by the latfcerfor ¡that purpose.
    Appeal from the Second District.Coui-t of N,e.w.Orleans, Canon, J.

      David, appellant,^™ se, L. Janin, for the defendant.
   The judgment of •the court was pronounced by

■Kino, J.

After Louis ferrand bad been .declared a bankrupt, .the .pftnntiift, as curator of M. A. liuguin, instituted a suit against him, and recovered a judgment for a sum of money. Under the execution which issued upon this judgment, the plaintiff caused to be qeiy.ed, in the hands,of Franpis Auguste, rents which had ¡qqcrued upon certain property in St. Philip street, of which Auguste .claims to be the owner. The plaintiff also presented to the .district judge a petition, in which he averred that Auguste had received rents to an amount sufficient to satisfy his judgrae.nt with interest and costs, from the property in question, which property .this .court declared in the ,c,as„e of Bernard v. Auguste, 1 An. R. 69, to belong to neither of the parties to that controversy, but to the .creditors of Louis Ferrand, and that, as a creditor of Ferrand, these rents were subject t.o seizure, in.satisfaction „of his .claim?, He concluded with a prayer .that Auguste should be required to answer under oath certain interrogatories appended to ftis petition, the object of which was to ascertain the amojunt of rents received. To this petition Auguste excepted, and averred that, from .the plaintiff’s own allegations, if true, the assignee of the bankrupt alon.e had the right to recover the property and rents, and that the assignee had instituted ,a suit against him for that purpose, which was then pending in the District .Court ,of the United States, tie also took a ¡rule <?n the plaintiff to show cause why seizures of rents, made in the hands of ft;? tenants, should not be set aside. The exceptions w,e,i;e sustained, $$$ the rule made absolute in the .court below í and tfte plaintiff has appealed.

We think there is no error in the judgment appealed from. If th.e property upon which the rents accrued belongs, as is alleged, to Ferrand's creditors, it .can only be claimed by the assignee of the bankrupt, for tfte benefit of alf .the creditors. Individual creditors cannot be pernjitted to enfore.e their .claims separately upon it, the effect of which would be to defeat the .ends of the .bankrupt law, one of tfte purposes of which is to distribute the pmce.eds of the .bankrupt’s estate generally among the creditors, with such privileges and pre:ferenc.es as are established by the act. ftt was competent to Auguste to make ¿his defence, as a writ was actually pending against him to recover the property jn question, Judgment affirmed.


text:
    Hoffmeyer, Assignee, v. White.
    A new trial will not be granted on the affidavit .of a party .that, a person whose,testimony was important in the cause, but who had not been summpned because,lie had declared that he was interested, had, since the trial, informed the applicant that he had become a compe. tent witness. Held, .that the interest of the witness was a question upon which .tfie opinion of the court should have been had, and that a new trial should not be granted.
    Appeal frpm the Fourth District Court of New Orleans, Strawhridge, J.

      Mott, lor the appellant. Edwards and Hays, for the defendant.
   The •judgment of the court was pronounced by

Rost, J.

Judgment having been rendered in favor of the defendant in this case, the plaintiff moved for a new .trial, and supported his motionby.an affidavit, stating that, since the trial, he had discovered testimony important to the caus.e, which he could not, with due diligence, have discovered before, which testi-. mony, says the affidavit, is that of II. Griffon, Esq., who .will testify, ‘.‘that the pretended payment was no.t made to Barrett Lepage, .andthat the entry in their books was an .errordeponent applied to said Griffon before the trial for his -testimony, aud he was then informed by said Griffon that he could not testify, as he was interested ; but deponent avers that .the said Griffon has, since the trial, on (Re 19th day of December, 1846, informed deponent that he has no interest in the suit, and that he has become a competent witness, and will testify to the facts above set forth.” The new trial was refused., and .the plaintiff appealed.

We cannot interfere with this judgment. T.he evidence mentioned in the affidavit was not discovered after its rendition, ft was known to .the plaintiff' long before, but he did not callón the witness to .testify, be,cause the latter had fold him that he could .not do so on the ground of interest. This was .a question ,up°n Which the opinion of the court ought to have been had on the trjal, and the omission of the plaintiff in that respect .cannot .be made by him the gro.und of a new trial.

We have no means of ascertaining how the supposed interest of the witness Ras ceased; but we are satisfied that applications of this kind should, as a general rule, be discouraged, on account of the great mdu,cenjent which the granting <of them vvould give to false swearing and perjury..

..Judgment affirmed.


text:
    Crear v. Sowles.
    Acts,of-transferof immovables, whether passed before a notary or not, have effeot against .third persons only from the time of their registry in accordance with the stat. of 20 March. 1827. The stat. of 26 January, 1838, making it the duty of notaries in New Orleans to cause to be registered in the .conveyance office all acts passed before them, which by law .ought to he so registered, does not exempt the party to whom the immovable is transferred from the duty of seeing that it is so registered; that statute may give him recourse against the notary, but does not affect his rights as against third persons.

      Appeal from the Fifth District of New Orleans, Buchanan, J.

      Elwyn, for the appellants,
    .cited stats, of 20 March, 1827, and 26 January, ■1838. McManus v. .Jewett, 6 La. 530. Planters Banhv. Allard, 8 Mart. N. ;S. 136. Hagan v. Williams, 2 La. 122. Doubrere v. Gr,illier, 2 Mart. N. ,S. 171. Grenier, Hypothéques, 1 part. ch. 1, sec. 2, § 2.

      T. J. Lacy and Preston, for the defendant.
   The judgment of the .court was pronounced by

Rost, J.

On the 11th of April, 1845, the plaintiff purchased by notarial act from Michael Glassgow, a house and lot situated in .this city. The sale was not registered in the office of the register of conveyances till the 5th of July of that year. On the 2d of July, three days before .the registry, the defendant, 'being a creditor of Glassgow, caused the house and lot to he attached.as his property, and, after obtaining judgment against'him, had them advertised ,to be sold. The plaintiff enjoined the sale, alleging the foregoing .facts, and farther that his act of sale was not registered before, through the neglect of the notary, who had promised to attend to the .registry, .and had .rec.eiyed the .fees .to be paid to the register.

'The defendant topic a rule upon .the plaintiff to show ¡cause .why the injunction shouldjiot be .djssplved, on the following grounds: 1. The petition sets forth no good and sufficient cause why the writ should have issued. 2. The facts disclosed by the petition clearly show that, the defendant’s jien by attachment is prior in point of tipie, and has preference to .his pretended deed of conveyance. The .court, aftex.a hearing, dissolved the injunction with ten per cent interest on.the amount enjoined, and fifty dollars as damages.

The plaintiff moved for a new trial, and supported his motion ’by an affidavit, alleging new matters. But the court adhered to its decision, and judgment was rendered accordingly, that the injunction be dissolved, and that the plaintiff and his surety pay, in solijo, the interest and damages. The plaintiff and his surer ty have appealed,.

The appellee exclusively re.lies.upon the provision,of the registry act of 1827, that acts of transfer of immovables ¿oí registered agreeably to law, whether they are passed before a notary public or otherwise, shall have no effect againstthird persons, but from the day of their .being registered. For the appellants, it is contended that., in the case of Hagan v. Williams et al., which involved the .question at issue, the former Supreme Court intimated that a case might be made out, in which a vende.e, situated .as the plaintiff now is, would be entitled to relief, and that,this is such a,case. 2 La. 122.

We .are unable to come to that conclusion. In this case, as in .that, the purchaser has failed to account satisfactorily for the delay in making the registry. The act of 1838, requiring .the notary to make it, ,d.id .no.t dispense him from seeing that .it was made. It probably gives him .a recourse against the notary, but it does not affe.ct the rights of an attaching .creditor. Registry jaws ought not to be so interpreted, as to enable third persons to commit frauds upon bond fide purchasers. ¡But fraud is not alleged in this case. The fact of knowledge of the transferby the defendantis not even put at issue, and is only mentioned in the affidavit made to obtain a new trial. If it had .be.en, knowledge by itself is nota badge of fraud. The defendant may well have believed, as alleged iij his answer, that the sale was simulated, and, if it was, he was justified in treating it as a nullity. Judgment affirmed.


author: Edstis,- C. J.

text:
    Lee v. His Creditors.
    The extreme term for the duration of privileges for work done, or materials furmáhed; fdf the' construction of a steamer, is sixty days, Whore the boat has been for that length of time engaged in making trips between this port and' those of other States'.
    Privileges on steamers or'other"vessels'established by the laws of other States,'ufaless ex', pressly recognised by our laws, will not'be enforced here. Pei• Curiam: The framers of our* Code did not intend to coniine their legislation on the subject'of the privileges on steamers' or other vessels to such as aré owned in this State; they laid'down general rules'as to the distribution of the proceeds of such vessels, without regal'd tb their origin, - or the' place of their owners’ residence.
    A nation within whose territory personal property is'found, lias as entire jurisdiction'over it' while there, as it has over immovable property. Its exercise, for all phi-poses; is a question' of policy.
    Privileges established by the laws of another State' for work or'labor furnished for the con-' strubtibn of a steamer form no part of the'contritcf itself, and cannot follow the property' into this State, when no such privilege exists here;
    In the distribution of insolvent estates, no distinction is'recognised' among creditors' ddpend'-ent on the pla'ch of origin of the debts. The distribution is'made as of the'proceeds of a common pledge,- according to the order of privileges and mortgages established by the Civil Code.
    APPEAL from? the'FourthlMslfkiP Court of New'Orleans, Strawbridge", J. The facts of this case are stated in the opiniomof the court.

      Wray and Hoffman', foi the appellant.
    The main question in this case is — ' Shall the liens granted under a foreign law be enforced By thd courts of Louisiana, in air insolvent' proceeding, to the prejudice, of liens acquired under outlaws, and to the injury of ordinary creditors ? The cciürt a quid considered that the lien uhefer the law of* Kentucky, was part of the cbn'tract: that the'place of the contract was Kentucky; and'that it was bound to give' th'e'same effect to the contract as if the suit was to he tried in Kentucky.
    1st. We contend that New Orleans was the place of d'o'ntractf. The drafts are all payable in New Orleans. The contract was to be performed here,- and the parties evidently had in view' the laws of Louisiana, in reference to the execution of it. Contraxisse uñusquísq'ue in e'o loco infelligitúf, in quo ut solveret se obligavif. Dig. lib. 21,- tit). 2, 1*. 6. Story on Gonf. of Laws, §'233, 270. Prentiss v. Savage, 13 Mass. 23. 2 Kent’s Com.-459.
    2d. Should Kentucky be considered the locus Contractus, still its laws can have n'o extra-te.rritófial forcé and effect'. Ee-mediés'are tb Be governed By the lex jbri, not by the lex loci.-

    3d. The principle that the lex loci as to privileges is to govern, does not hold where there are domestic liens to be enforced. Story on Conf. of Laws, | 323; an’d'Chief Justice Marshall, in Harrison v. Slerr'y et al. 5 Cranoh 289, says: “ The law of a place where a contract is made is generally speaking1 the law of the contract; i. e. it is the law by which the contract is expounded. But the right of priority forms no part of the contract. It is extrinsic, and rather a personal privilege dependent on the law'of the place where the property lies, and where the court sits which is to decide the case.” Sée Huberús, de Con. Leg. tom 2, lib. 1, tit. 3, §-2. Idem, tour 2, lib. 1, tit. 3, §4.1. “It is also requisite,” says Fonbianque, “to give a-binding force to a contract entered- into in another country, that it does not violate the rights of persons not parties to it. To this qualification of the rule may be referred those cases in which courts of justice refuse to enforce contracts entered into abroad, which, though there valid-, either violate some moral duty, or are inconsistent with a positive right accrued to a third person under the law of the country in which such- inconsistent claim is sought to be made available.” Fonblanque’s Equity,- 44-4. Also' the case of Smith v. Union Bank, 5 Peters, 518.

      4th. The court a qud, considering itself bound by the comity fef nations, upholds these foreign-liens. But the comity of nations becomes inoperative, when the lex loci and the' lex fon, as to conflicting rights acquired under each, come in direct Collision. Kent’s Com. 2 vof. 461. Story on Confl. of Laws, § 327. Saul v. His Creditors, 5 Mart. N. S. 596. By the law of Louisiana privileges on steamboats and-vessels are extinguished in sixty days from their creation, if the vessel pel-form' her usual voyage. C. C. 3204, 3211, 3212. 10 La. 75. Under our law the"opponents can claim as ordinary creditors only.
    5th. No nation- is bound to recognise or enforce any contracts which work positive injury or inconvenience to its citizens, or those claiming under its laws. LeBreton v. Nouchet, 3 Mart. 68. Oliver v. Townes, 2 Ibid. N. S. 93. Privileges are only allowed when expressly granted by law. C. C.‘ 3152. 17 La. 443. 18 La. 73-. Under art. 3204, furnishers of materials and workmen employed in the construction, &c. have a privilege, if the vessel has never made a voyage ; and of course no privilege if she has made a voyage. Terry v. Terry, 10 La. 75. Grantv. Fial, 17 La. 158. Under the law,and its judicial interpretation in this State, there can be no privilege on ships and vessels after the lapse of sixty days, and yet this court is called on to recognise a privilege under circumstances in which the law of the State declares that no privilege shall exist. The injury'to commerce which the recognition of these foreign liens would cause is manifest. The purchase and- sale of ships and vessels would be at once arrested. Oliver v. Townes, 2 Mart. N. S. 93'.
    6th. The lienk sought to be enforced,- are extinguished by prescription. C. C. 3244, §4. Prescription is part of the remedy, and is governed by the lex fori.- C. P. art. 13. Under art. 3204, § 8, builders have a privilege if the vessel has never made a voyage, which is lost if she has made a voyage in the name of a purchaser. Art. 3210. A voyage is a departure from one port and arrival at another, or the being out sixty days. Art. 3211. It is wholly inconsistent with- these provisions of law, that the creditor can retain his privilege, if he give a credit, as was done in this case, of 3, 6, or 12 months. The term of sixty days is now settled to be the limit of the privilege on steamboats navigating to distances which do not come within the meaning of the term voyage. This is the judicial interpretation of the law, and- leans in favor of creditors.' See Terry v. Terry, 16 La. 6. Shirley v. Fabrique, 1-5 La. 140.

      Molt, eontrá,
    cited WMston V. Stodder, 8 Mart. 95,133. Sabatier v. Creditors, 6 Mart. N. S. 585. Ohio Insurance Co. v. Edmondson, 5 La-. 298. Story, Confl. Laws, § 401, el seq.

   The judgment of the court was pronounced by

Edstis,- C. J.

This case was-determined in the District Court, after a very elaborate examination- of the subject involved in it on the part of the district judge, who has given us the benefit of his views in an able and well prepared written opinion. The'decision of the district judge was given in favor of certain claims for work done and materials furnished in- building the steamer Old Hickory, in Kentucky, in preference and adversely to an asserted privilege of the vendor.- The party representing this privilege has appealed, and the case has been argued at bar principally with-respect to-the relative rank of the privileges claimed' by each.

By a law of the State of Kentucky, workmen and material-men have a lien or privilege on the boat, which may be enforced at any time within twelve months, even against a purchaser without notice; and steamers, indebted to that class of creditors.-coming within that commonwealth, are subject to the lien or privilege. The district judge considered all the parties before him as non-residents, and the' enquiry was not embarrassed with the distinction between the rights of domestic and foreign creditors.

It is contended-by the counsel who argued the case' for Handy, representing the vendor’s privilege, who is the appellant, that in a concurso or litigation of all the creditors of an insolvent, opened in this State, a privilege existing under the Jaw of another State, cannot be recognised or enforced by our courts. It is ratlier singular that this question lias never been determined by the Supreme Court of this State, and we are not aware of its ever having been presented to the consideration of the court of the last resort, although in the courts of the first instante scarcely a month passes in the business season without the seizure or sale of a vessel or steamer, and the judicial- distribution- of the proceeds among the conflicting claims of creditors.

We deem it first necessary to ascertain What privileges tho appellee's, Gloéer and others/ would have under oilr laws) supposing, their contracts to have boen made,-their work done, and materials furnished'the Coat, in the State'of Louisiana. The steam'er made her first trip from ¿omsville,- in'December, 1845. Front her arrival in New Orleans, until'she was attached' and surrendered, in May,- J'846, she was engaged in the Nashville trade. She had been making, voyages during five months, before the appelleós attempted to enforce their' privilege.

We consider that the ektréme'fefin for thb durdfion of privileges oh steam5-ers,- when engaged in making voyages between this port and those of other' States, is sixty days. The subject was first brought to the consideration of the Supreme Court, in 1836. Vide Terry v. Terry, 10 La. 79. In the case of The Fulton Company v. Wright & Harris, decided in the yeárj 1837, the' judge of the late first judicial District Court, thus expressed- himself on this'subject:

“1 haveon various occasions expressed my difficulties ori' the subject of administering the law relative to'privileges* on vessels. The articles of our Code on this matter' are taken from the French Code of Commerce, and some' of them cannot be applied, for they contain expressions which refer to' a' system1 not' known with us. The article 192, nos. 6 and 7, refers to a system of registering claims against vessels with the clerk of the tribunal of commerce, within' ten days after the departure of the vessel; and other articles of that Code are framed with a- view to that registry, viz those describing the voyage, &c. The' very language of these last articles we ha-ve adopted, -while the system of the registry of claims, which makes them reasonable and practicable, is rinlfrio-ivn' to-us.- I consider that the term- voyage does not' apply to boats ori rivets/ lakes,-&c'. Either ¿he» there" is no'privilege, or it must receive á reasonable limitation'. I have adopted the'period of sixty days, by analogy to art. 321:2, as thb' period within which these'elaims must be asserted,- whbre theré áre' éonllicts of- rights.”

A-motion was made for a new trial* on which'this questiori vías'agáih cotí-sidefe'd, and we believe since that case it has been held to be'settled, with the general-concurrence of the bar. This interpretation received the sanction' of the Supreme Court in Shirley v. Fabrique, 15 La. 140. We therefore 'conclude that,- under our law the appellees had no privilege on the'pfocbbds of the steamer at the time'of the attachment.

Being- aware that our.courts had frequently had this subject before them, we directed an examination to be made of the cases decided by the late Commercial Court of New Orleans,- distributing the proceeds of steamers among the different privileged creditors.

In the case of Berthoud v. Wm. T. Gray and Sleamer Caledonia, no. 6807 of the suits of that court, Judge Watts, who decided the case of The Fulton Company v. Wright & Harris, alteran elaborate review of his whole course of decisions on the subject of privileges during a period of twelve years from the time he had presided in the- District and Commercial Courts, touching on the question of privileges given by the laws of other States, says:

“ Another principle which I have found it neccessary to adopt is, that privilege is governed by the law of the fórum, and not- of the place where the debt was contracted. In the distribution of- the proceeds-of a steamboat which came from Pittsburg, claims for privilege, the duration of which was one year under the laws of Pennsylvania, Ohio, Kentucky, Tennessee, Mississippi, and Louisiana, were presented. Such a system was manifestly impracticable, and the rule was adopted of regulating privileges by the law of the forum. It has, however, produced inconveniences, for a steamboat, sold to pay her debts under a decree of the courts of Louisiana, has been taken from the purchaser at St. Louis under the claim of privileges-given by the laws ofMissouri, and-re-sold to enforce the privileges.-

“ It is presumed, however, that more mature reflection will demonstrate the impractibility of permitting the laws of lien or privilege to follow moveables into a new jurisdiction.- That lien or privilege is part of the remedy seems clear, when we consider the purpose for which they- are given. They are the means of enforcing a right, which right is always the payment- of a sum of money ; and a privilege or lien is the-means of compelling the payment, and is analogous to a seizure or execution. We do not respect mortgages-given in other. States, when they are claimed on negroes brought into Louisiana. A- party who- claims a privilege on a moveable, must not permit that moveable to leave the jurisdiction of the State or country which confers the privilege. The utter impractibility of paying any attention to the laws of lien or privilege of other States on vessels or other moveables, is a complete answer to any claim- of right founded on the laws conferring such privileges or liens.

“ I consider that my opinion on this subject is entitled to some authority, as a long administration of justice in the courts of the fii*st instance enables me to-comprehend the bearing of these kinds of rules in practical affairs of this nature.”

Judge Buchanan, who succeeded Judge Watts on the bench-of the late First District Court, states the practice to have been uniformly to the same effect.

Without being required to assent to the principle adopted by Judge Wattsr as to liens and privileges in all cases appertaining, exclusively to the remedy and-as such regulated-by the law- of the forum,'alone, it must be admitted that the-views given-by him as to the impractibility of the opposite system are sound,, and that his exposition of the law and the practice of our courts under it in relation to privileges on ships and vessels, is in- accordance with the textual provisions of our Code.

Privilege can be claimed only for those debts to which it is expressly granted, in this Code. C. C. art.- 3152. This article has always-received the construction from our courts which its terms import, and no privilege by implication, or other than that created by positive enactment, has been recognised. Grant v. Fial, 17 La. 158. Hoffman v. Laurans, 18 La. 72. First Municipality v. Hall, ante p. 549.

Art. 3202 pi-ovides that the following debts are privileged on the price of ships or other vessels, in the order in which they are placed: they are eleven in number, and the material-men, seamen, and others are provided for in their order, and provision is made in subsequent articles for the loss and extinguishment of privileges. We are not aware of a single case in which any privilege has been recognised in the distribution of the proceeds of a vessel, other than those mentioned in the Code.

The policy of our system, which-confines privileges to those expressly created byjlaw, is very obvious .to those who have had the means of observing the abuses to which its extension would necessarily lead. It would be impossible to prevent collusion between the owner of a vessel and creditors whom he might wish to prefer, or who would hold up and keep unsatisfied their secret privileges, to be enforced as his interests required, to the detriment of bond fide creditors. Even under our system, .restricted as it .is, this abuse prevails to a certain extent, and-imposes on our courts the duty of rigid scrutiny of all claims which carry with .them privileges on the proceeds of a vessel .under judicial authority.

We think that the framers of our Code, ¡in .establishing privileges on ships and vsssels, did not intend to confine the .operation of their legislation to those belonging to this port, or owned in this State; but laid down general rules in .relation to the distribution of .their proceeds, without regard to their origin or the place of their owner’s residence. The existence .of privileges on vessels under the.law.of other States was a fact,befbre.them,,and none.of.any kind .are allowed except those expressly recognised and enumerated in the .Code.

That a failure to acknowledge, or enforce, liens or privileges on moveables created by foreign laws, cannot be .considered as derogating .from the comity which prevails among States in relation to the effect to be given to.foreign .laws, is obvious. A nation within whose territory personal property is found, has .as entire jurisdiction over it while there as it has over immovable property. Its exercise for all purposes .is a question of policy, and may be co-extensive with its authority over the-latter. Civil Code, art. 9. Story Conflict of Laws, § 550. Penny v. Christmas, 7 Rob. 499. Harper v. Stanbrough, ante p. 377. We therefore conclude, that the claims of Clover and .others .are not privileged.

The judge of the District Court from whose judgment this appeal is taken, •decided in favor of the privileges claimed by Clover and others, on the ground ¡that the privilege, attaching by the law of the place of the contract, became a ■part of the contract, which ought to be maintained and carried out in its inte.grity, and that to deprive the party of the privilege was virtually .to impair the obligation of the contract. The right of a.creditor to enforce a privilege created by a foreign law on a moveable within this State as .part of the original contract, is the antagonist theory to that which considers the privilege as exclusively appertaining to the remedy. We do notfeel ourselves .called upon to adopt either in the present case, as our own legislation has placed the moveable exclusively under the operation of our own laws, which the sovereign power has the same right to do as it has to determine what property shall, and -what shall not, be subject to the payment of debts .under execution.

Whoever has taken the trouble to examine .the opinions of writers of acknowledged authority on this vexed question of conflicting laws, will be struck with .the difficulties which every phase of it presents, and the almost necessity of •remedying the evil by positive legislation.

The learned judge has referred to several authorities in support of his opinion, which he considers as recognising the doctrine that the privilege, forming part of the contract itself by the law of the country where it is made, followed the property into one where by law no such privilege existed. The case of Whiston et al. v. Stodden Hewit's Syndics, 8 Mart. 134, was determined in 1820, and consequently without reference to the eliqct of our Code of 1825.

The opinion in the case of Sabatier et al. v. Their Creditors, 6 Mart. N. S. 589, we do nqt understand as relating to a right created under a foreign law ; and as we have s.een in the practice of our courts since, the case pf the Ohio Insurance Company v. Edmonson, 5 La. 296, decided in 1832, has never been considered as determining the question under consideration. Indeed, so far as authority is considered in relation to t\ie conflict of laws in similar cases, and (he comity which is to he observed in relation to the right of priority of payment created by the law of the place where the contract is made, the decisions of the highest tribunal in the Union are directly and positively against its recognition. Harrison v. Sterry, 5 Cranch, 298. Smith, Administrator, v. The Union Bank, &c., 5 Peters, 523.

In the distribution of insolvent estates under pur laws, we are not aware of any distinction that is recognised among creditors, dependent on the place of the origin of the debts. The distribution is made according tp the order of privileges and mortgages .established jin .the Code, its of tlio proceeds of a common pledge.

It has been urged in argument that the sale yvas made for the purpose of defeating the rights of Glover et al., the .appellees, bn the steamer, and (hat it was in that respect fraudulent, and that the appellants pan have no claim under file sale. That objection is obviated by our decision as to the existence of the privilege asserted by Glover et al. Ip regard to the bond fides of the sale itself, for the price of which Handy .claims 9 privilege, we find nothing in the evidence yyhich would authorise us in disallowing it.

The judgment appealed froin must therefore be reversed, and a privilege alIowred to Handy of the vendor on the proceeds of the one-half of the steamer .Old Hickory, for the sum of $7,750; the costs of the appeal to be paid by th§ appellees.


text:
    The State v. Russell.
    ft formal averment in an indictment that it was found by the authority of the .State, is not essential to its validity. It is a sufficient .compliance with the 69th art. of the constitution, that the prosecution appear ,to be conducted, in the name of the State.
    APPEAL from the First District Court of New Orleans, McHenry, J, The indictment on which this prosecution jyas founded commences as follows :
    The State of Louisiana.,
    (‘ First Judicial District, ss.
    “ Parish of Orleans, First District .Court of New Orleans : The grand-jurors pf the State of Louisiana, duly empannelled and sworn in and for the body of the parish of Orleans, upon their oath present, that one Edward Russell," &e. It concludes : “ contrary to the form of the statute of the State of Louisiana jn such .case made aqd provided, and against the peace and dignity of thp £>an)e,”

      Elmor.e, Attorney General, for the State, contended that the indictment was framed as required by the constitution,
    ..citing State v. Anthony, 1 McCord, 285. Allen v. Commonwealth, 2 Bibb. -210. Wharton’s Am. Crim. Law, pp. 64, 65,103,1-04. 5 Pike, 445. 1 Walker Miss. Rep. 392. ■ ■ . .

      Larue and Bryee, for the appellant,
    cited the Const, arts, 69, 117. Journal of Convention of 1845, pp. 29.7, 331, 348.
   The judgment of the court was pronounced by

King, J.

The defendant, Edward Russell, was convicted of manslaughter upon an indictment charging him with murder, and he moved for an arrest of judgment on two grounds: 1st. That the indictment does not aver, with suffi.cient .certainty, that the deceased died ..of the mortal blows .charged to have been given by the accused. 2dly. That the indictment does not purport in its margin, or in the body, tob.e carried on “in the name and by the authority of the State of Louisiana,” and does-not conclude “against (the pe,ac,e and dignity of the same.” This motion was overruled and sentence pronounced, and the accused hps appealed.

The clause o,f the indictment in which it is contended that the first of the alleged errors exists, is in the following words, viz.; ■“ of which mortal strokes, blows, wounds and bruises, given as aforesaid, the said Margaret Russell, then and there did suffer and languish, and languishing did live, and on the seventeenth day pf said month of June, in-the year of our Lord ,one thousand eight hundred and forty-six, in the parish of Orleans aforesaid, of said mortal wounds did die.” It is contended.that there is a period at the word Upa, .and that what follows, beginning with .the words, and on the seventeenth,” &.c., is a separate sentence, disconnected from the preceding .ayeyments of the mortal blows dealt, and that there is consequently noavernyent,that the deceased died of the mortal wounds alleged to to have been given by the accused.

An inspection of,the original instrument has satisfied us that the sentence is unbroken by a period, and that the objection is based upon peculiarities of the hand-writing of the framer of the indictment. The point used at the word live, resembles somewhat a period, b.ut by comparing it with the punctuation of the remainder of the instrument, it is ev.iilent that a comma is the point used. That •it was not the intention of the framer to use a full stop is further apparent, from the fact .that the point used is not followed by a capital letter, and that the sense .of the sentence, and its grammatical construction, require thatitb.e unbroken by .a period.

The second ground we deenj to be equally untenable. The expressions, -which itis contended should be need in the indictment, occur in,the constitution# ¡of several States of the Union, ¡and the point now presented has been so frequently decided in those States that it can s.carc.ely be considered an open •question. It has been repeatedly held to be a sufficient compliance with .th.e constitutional requisition, that the prosecution should uppe.ar to be conducted in the name of the State, and that a formal avermpnt that it was found by the authority of the State, was not escential .to the validity of the indictment. 5 Howard’s Miss. Rep. 36. State v. Johnson, Walker’s Miss. Rep. 392. Allen v. Commonwelth, 2 Bibb’s Rep. 210. 1 McCord, 285.

In the case of The State v. Calvin Moore (8 Rob, 518), decided by the late Court of Errors and Appeals in Criminal Cases, these words were neither directly nor impliedly held to be essential to the validity of an indictment. The Janguage of the instrument was merely quoted, from which it appeared that it contained tlic expressions which the defendant intended were required by the constitution, and consequently that the objection urged was without foundation; but there >was no intimation .of an opinion that,their absence would have been fatal. Judgment affirmed-