author: VooKiriES, J.

text:
    Norton & White v. A. B. Cammack.
    ÍPhe liability of a surety on a sequestration bond, is only for Buch expenses as are incident to the sequestration and release. It does not extend to the entire costs of the litigation, subsequent to the bonding of the thing sequestered, except so far as the litigation is the necessary result of the bonding.
    PPEAL from the Second District Court of New Orleans, Lea, J.

      Durant & Horner, and Kearney, for plaintiffs.

      Wolfe & Singleton, for defendant and appellant.
   VooKiriES, J.

(Ogden, J., absent.)

The defendant is appellant from a judgment rendered against him on a sequestration bond, which he executed in favor of the plaintiffs as the surety of Samuel T. Williamson. The suit in which this bond was given, terminated by a final judgment rendered in favor of the plaintiffs against said Williamson. The damages claimed are alleged to have resulted from the detention in port of the plaintiffs’ steamer, called the Western World, under said sequestration, and are stated to consist, first, of $100 costs of court in that suit; second, $250 for counsel fees paid to JR. M. Kearney, Esq. ; and, thirdly, $000, the loss on passengers and freight, resulting from two days detention of the steamer in port.

The record shows that the steamer Western World arrived at the port of New Orleans on the 23d of April, 1850 ; that she was sequestered on the 25th of the same month, and on the following day released on the plaintiffs’ bond ; and that it was usual for vessels of her class to be detained in port from three to six days.

It was clearly incumbent upon the plaintiffs, as it was peculiarly within their power,'to have proved satisfactorily the alleged detention and the damages resulting therefrom. The Judge a quo, in his judgment, says: “ When the steamer loft port is not shown conclusively by the evidence, which on this point is uncertain and altogether inconclusive. The testimony of McCauley is evidently given under a misapprehension both as to days and dates; and that of MeOoy,. whose*attention was not specially directed to the subject, is too vague to form the basis of a judgment.” From a careful examination of the testimony of those witnesses, we are not ready to say that the Judge erred in his conclusion..

We concur in the opinion of the District Judge, that “whatever may be the liability of the plaintiffs, it is clear that the only liability of Omnmaek as surety on the bond, is for such expenses as are incident to the sequestration and its release, and that it does not properly extend to the entire costs of the litigation subsequent to the bonding of the steamer, except so far as the litigation is the necessary result of the sequestration.” But we think he erred in allowing the plaintiffs two hundred dollars as damages. It is not shown that the plaintiffs paid any portion of the costs faxed in the suit of Williamson against them; Williamson himself was personally liable therefor. The claim of Williamson in that suit was for $275, as damages, and $500, as the penalty under the statute, for faking his slave out of this State. The District Court rendered judgment in his favor for $275, which, on appeal, was affirmed, and afterwards, on a re-hearing, reversed in favor of the plaintiffs. Mr. Kearney testified on the trial, that his charge as attorney in the case, was $250, which had been settled by the plaintiffs.

In Penny v. Taylor, 5 Ann. 714, the court say : “ The expense the plaintiff was put to for counsel fees, for the purpose of having the vessel released from the sequestration, and other expenses resulting therefrom, the defendants, by their bond, are clearly bound to reimburse to the plaintiff. The plaintiff paid his counsel $250 for their professional services in the suit; the portion fairly due for the services relating to the release of the vessel from the sequestration we think is ah he is entitled to recover.” In this case, we think fifty dollars for the services relating to the release of the vessel from the sequestration, should have been allowed by the District Judge as a fair compensation for the services rendered by Mr. Kearney in this behalf.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiffs’ claim be reduced to fifty dollars, and that they recovei^the same from the defendant, with the costs of the District Court; the costs of this appeal to be borne by said plaintiffs.


source: Caselaw Access Project

author: Slidell, O. J.

license: Public Domain

text:
    Patrick Fox v. Thomas Sloo, Executor.
    A court will not enforce a claim for the value of services, where it is based on and springs directly from an illegal employment.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Race & Foster, for plaintiff.

      Ramie, for defendant and appellant.
   Slidell, O. J.

(Ogden, J., absent.)

In August, 1850, the Council of Municipality No. Two passed an ordinance, by which it was Resolved, “Thatthe Commissaries of the wards are hereby directed to notify all owners of lots that require filling, to have the same filled to a proper level within thirty days» under a penalty of a fine of five dollars per day, recoverable before any court of competent jurisdiction, for every day after the notification that said lots remain unfilled ; and that the Surveyor be directed to have all lots that may remain unfilled after said thirty days from notification filled at the expense of the owners.”

A few months previous was enacted a statute, entitled “ an Act relative to the city of New Orleans,” the general scope and purpose of which seems to have been to check municipal extravagance and corruption, and which contained, among other restrictive provisions, the following: “Be it further enact ed, That all contracts for public or other works, ordered by any of the said municipalities, shall be offered by the Mayor at public auction, and given to the lowest bidder; and no Alderman or other officer of the municipality shall be directly or indirectly interested in any such contract or work under pain of nullity of said contracts, and of forfeiting his office for misdemeanor.” Session Acts, 1850, p. 181.

Under the ordinance above mentioned, publication was made, notifying the various proprietors of unfilled lots in the first and second wards, of its passage and requisitions. In the list of proprietors enumerated in this advertisement, was the estate of which the defendant was executor, said therein to be represented by Mr. Eawle, as agent.

Patrick Fox, the plaintiff, applied to Ea/wle to bo employed to fill the lots, and offered to do it at sixty-five cents a cubic yard. Eawle refused to employ him. Fox repeated his visits several times, and at last told Eawle ho had been engaged by the Commissary to do the work, upon which Eawle replied that the contract was illegal, and would not be paid for by the estate. Nevertheless, upon a written order of the Commissary, approved by the Surveyor, directing Fox to do the work, and in which no price was named, Fox did the filling, and having obtained a certificate of the Surveyor, that the work was done in accordance with the proper grade, presented a. bill at the rate of seventy-five cents per cubic yard, and on refusal of payment, brought this suit, •which resulted below in a judgment in his favor at that rate, predicated on the testimony of two witnesses that such wa^the usual, or about the usual, price at that time, although we have seen the plaintiff was willing to contract at a much lower rate.

The defendant has appealed, and relies mainly for a reversal on the Statute of 1850.

That statute, as we have observed, was evidently framed for the purpose of checking municipal extravagance and corruption. The clause in question •was aimed at the correction of those evils by subjecting municipal contracts to public competition. The language is quite broad enough to cover the work in question : “ All contracts for public or other works ordered by any of the said municipalities.” There might bo cases not within the fair perview .of the statute, such, for example, as works required to be done upon a sudden emergency, but there is no reason to exclude the present case from its operation. By obedience t© the statute, it was reasonable to suppose much money would be saved to the public treasury, and individuals protected from oppressive charges, which it is well known have fallen heavily upon owners of vacant property under the old system of contracting. It was a remedial statute, and should receive from courts of justice such a construction as will tend to correct the mischief at which it was aimed. Its policy, which is very plain, must be respected and enforced.

The plaintiff in this caso has, in connection with the municipal officer, acted in violation of the statute. There is nothing to show on the part of the municipal officer, any improper motive; but the omission of duty is clear, and both he and the plaintiff are to be considered as participants in the violation of a remedial statute. The employment, then, of the plaintiff, was illegal; and his claim based on, and springing directly from that employment, cannot be aided in a court of justice, without disregarding the policy of the law and rendering its requisitions futile.

There is certainly hardship involved in a result which enriches the proprietor at the plaintiff’s expense; but it is a hardship which, however it may and should recommend itself to the conscience of the proprietor, cannot judicially countervail the higher consideration of public policy. It must also be observed that the hardship is of the plaintiff’s own seeking.

We have not overlooked the maxim familiar in our jurisprudence and embodied in our code, jure naturae requum est neminem cum alterius detrimenta pi injuria fieri loeuphliorem. It was on that principle the Roman Jurists held, that he who acted for another by transacting his business, or by making repairs on his property, could recover the amount of the expenses incurred or the value of the repairs, provided the acts of the negotiorum gestor were necessary and useful to the person for whom he acted. Porter, J., in Police Jury v. Hampton, 5 N. Series, 392. But we apprehend that this equitable doctrine cannot be safely extended to one who intrudes his services upon another against his will, and in contravention of the policy of a statute. See Jenkins v. Gibson, 3 Ann. 204.

Judgment reversed, and judgment for defendant; plaintiff to pay costs in both courts.


author: Spoffobd, J. Buchanan, J.

text:
    M. Piron v. J. M. Bach.
    Where a person improperly provokes a sale of property, deters persons from bidding, depresses the price, and himself becomes the purchaser, the sale may be set aside.
    PPEAL from the District Court of the Parish of Jefferson, Olark, J.

      Oollins and Michel, for plaintiff and appellant.

      Roselius and Marks, for defendants.
   Spoffobd, J.

This is a petitory action for fourteen lots in faubourg West Bouligny, in the city and parish of Jefferson.

It is unnecessary to trace the origin of the title, as both parties are compelled to admit that Frangois Léon was once the owner. His title, derived from one Parageau, in 1831, by authentic act before a notary in New Orleans, does not appear to have been recorded, at any time, in the parish of Jefferson. In 1841, Léon sold the lots to Wilts, and in 1847, Wilt» sold them to the plaintiff. These sales were also passed before notaries in New Orleans, and recorded in the conveyance office of that city, but not in Jefferson.

The plaintiff’s chain of title is complete, and he must recover, unless it be found that he, or one of his authors, has been legally divested of title.

The defendant pretends that such a divestiture took place by virtue of a sale under execution upon a judgment for city taxes, at which the property was adjudicated to him on the 4th of October, 1852.

The plaintiff sets up various informalities and illegalities in the proceedings, which formed the basis of this Sheriff’s sale, and claims that the sale should be annulled on account of the misrepresentations and bad faith of the defendant.

By the Act of March 9th, 1850, (Session 'Acts, p. 59,) a proceeding in rem was authorized against property on which taxes may be due in the city of Jefferson, by absent or unknown owners. This proceeding is to be had before any competent court, and in accordance with certain articles of the Code of Practice, regulating provisional seizures.

It seems that in 1851, the lots in question were, for some unexplained cause, assessed in the name of Frangois Léon, who never had a recorded title, and who parted with such title as he did have, by an act registered in the conveyance office of New Orleans, on the 6th of July, 1841. A curator ad, hoc was appointed to Léon, and the proceedings under which the defendant claims were conducted contradictorily with that curator. The property was not seized as that of an unknown owner, but as the property of Lion. The proceedings show that it was not his property, either in fact or in legal contemplation hy the effect of the registry laws. In Michel v. The Police Jury of Terrebonne, 9 Ann. 67, a similar error in a proceeding somewhat analogous, was held to be fatal. But it is not important to inquire how this error would have affected an innocent purchaser, for the evidence establishes that the defendant, Bach, cannot be regarded in that light. He seems to have been an instigator of the proceedings by which he acquired the title he now asks us to confirm. He spoke several times to the justice before whom the suit was instituted, and urged that it should go on without delay. And yet, at that time, he was in possession of the lots himself, claiming as owner under a Sheriff’s sale for State taxes, in the year 1849. Indeed, he sets up that title in a supplemental answer to the present suit, although he has not thought fit to produce it in evidence. Claiming the property under a deed, and being in actual possession, engaged in making valuable improvements, it was his duty to pay the taxes himself, and not to procure a resale for taxes assessed in 1861, against a man who never had been the recorded owner, and who had divested himself of all claims ten years before. The subsequent conduct of the defendant, taken in connection with the facts to which we have adverted, renders it necessary that the sale upon which he rests his defence, should be set aside.

After urging the magistrate to hurry forward the suit, and bring about the sale for a debt alleged to he due hy Léon, he appeared on the sale day and warned the bystanders not to bid, declaring that whoever would buy those lots would buy a law-suit with him, as they belonged to him, he having bought them at a former sale for taxes.

After making this proclamation, he proceeded to bid himself, and the lots were adjudicated to him for $2600, for which he gave his twelve months’ bonds to the Sheriff.

We have no doubt that the conduct of the defendant deterred persons from bidding for the property, and depressed the price, and that he provoked the sale for his own benefit.

As the plaintiff complains that his interests have been prejudiced by this management, he is entitled to relief.

The defendant has pleaded in reconvention a claim for improvements to the extent of five thousand dollars. There is some evidence in the record touching these improvements, hut it is not sufficiently definite for us to act finally upon the matter. His right to reimbursement depends, in a great measure, upon his good faith at the time he made the improvements, which time is not shown. He may also be liable for rents, the value of which is not shown, nor does it appear when his possession commenced. The plaintiff must refund all taxes paid by the defendant.

The cause will be remanded for the purpose of adjusting these mutual accounts.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed. It is further ordered and adjudged, that the plaintiff, Milford Pirón, be decreed to be the owner of the fourteen lots of ground in faubourg West Bouligny, described in his petition; and that he recover possession of the same from the defendant, John M. Bach, upon tendering him such sum, if any, as may hereafter be found due upon a final adjustment of their accounts. And it is further ordered and decreed, that this cause be remanded to the District Court for the purpose of ascertaining the amounts due to each other, bj the respective parties, for improvements, taxes and rents, and adjusting the balance between them according to law. It is further ordered and decreed, that the defendant pay costs in both courts.

Buchanan, J.

I consider it sufficient for the reversal of the judgment of the District Court, that the land in controversy, which was sold for taxes in the name of Francois Léon, had actually ceased to be Leon's property for many years, although the conveyances were not recorded in the parish of Jefferson; the registry laws not being applicable, in my opinion, to a case of assessment for taxes.

Vookhies, J., eoncuring in the opinion on the ground, that the proceedings under which the Sheriff’s sale was made is insufficient, as the court which rendered the judgment had no jurisdiction ratione materas.-


author: Spofford, J.

text:
    Rice & Hathaway v. Kendall, Yoe & Co.—S. H. Kennedy & Co., Intervenors.
    A vendor who gives oüt his storage receipt to the purchaser for property stored in. his own warehouse loses thereby all possession in his own right, and becomes a mere bailee, holding in trust for the real owner; and the sale of the property by the vendee, with an endorsement of the storage receipt, will pass to the purchaser a complete title.
    O. 0. 8194, 8184, No. T.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      El/more & King, for plaintiffs and appellants.

      G-oold S Stanshury, for defendants. Wolfe S Singleton, for intervenors.
   Spofford, J.

Walker sold a lot of gunny bags to Kendall, Toe & Go., and for the price took their negotiable notes at six months, which ho afterwards transferred to the plaintiffs, Rice & Hathaway.

At the time Walker sold the gunny bags to Kendall, Toe <& Go., they were stored in a wai'ehouse kept by himself. The delivery was effected by giving them his own storage receipt for the bags. Kendall, Toe & Go. then sold the same lot of bags to one Kerchkal for cash, and Kerchkal sold them on a credit to the intervenors, S. H. Kennedy Go. Both these sales were effected through a broker, who caused a delivery to be made by handing Walker's storage receipt to S. H. Kennedy & Go., after it had been endorsed in blank by Kendall, Toe & Go. All this took place while the latter firm was in good credit. On the 24th of April they were protested, and on the morning of the 25th. Kennedy & Go. presented the warehouse receipt to Walker and demanded their gunny bags. He declined giving them up until he had consulted his attorney, stating that he had heard of the failure of Kendall, Toe & Go., and might make himself liable to the syndic or some one else.

Shortly afterwards the plaintiffs caused the bags to be sequestered, alleging that they were the holders of the notes Kendall, Toe & Co. had given to Walker for the price, and as such were entitled to the vendor’s privilege. Kennedy & Go. intervened in the suit and claimed the bags as owners. They had judgment recognizing their rights and the plaintiffs have appealed.

it yvould.be fruitless to inquire whether holders of notes under these circumstances, could be! considered as subrogated to the original vendors’ privilege.

It is clear that Kendall, Yoe & Oo. had parted with all the possession they ever had, and the vendors lien vanished with the possession. 0. 0. 8194, 3184, No. 7. There were two distinct sales in good faith of the same property, one from Kendall, Yoe & Go. to Kerehival, and the other from Kerehival to the intervenors. There was a symbolical tradition of the property by the delivery of the storage receipt endorsed by Kendall, Yoe & Go. They no longer had- any control over the gunny bags, having transferred their ownership; and the warehouse receipt'whióh was the symbol of possession, to an innocent third person for a valuable consideration. After he gave out his storage receipt',’" Wallcer had no possession of the bags in his own right. He was a mere bailee, holding in trust for the real owner.. Ilis possession was the owner’s possession. He had no interest in the bags, except to the amount of his storage account, and was bound to deliver them to the holder of his endorsed receipt, upon its presentation, and a tender of the storage bill. Before the plaintiff took any step to sequester the bags, the intervenors had presented that receipt to Walker and offered to pay the storage. He could not divest or impair the rights of the intervenors thus perfected against all the world, by refusing to deliver the bags to their rightful owners.

The Act “ concerning pledges,” approved February 12th, 1852, (Session Acts, p. 15) in its second section, recognizes a warehouse receipt as evidence both of title and possession; “the delivery of property on deposit in a warehouse, shall pass by the private assignment of the warehouse receipt, so as to authorize the owner to pledge such property.” See also, Wilkes & Fontaine v. Ferris, 5 Johns. 343. Gardner v. Howland, 2 Pick. 599. Chapman v. Searle, 3 Pick. 38.

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


author: Buchanan, J.

text:
    McDowell & Peck v. General Mutual Insurance Company of New York.
    It is not competent for a party to an action to discredit his own witness, unless, at least, an opportunity has been offered to the witness to explain anything which he may have said inconsistent with his testimony.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiffs.

      Briggs, for defendant and appellant.
   Buchanan, J.

This is a suit upon a policy of insurance on goods shipped at New Orleans on board the schooner Maria, bound to the Brazos river, and alleged to have been lost by the perils of the sea, on the voyage insured. The defendants specially deny that the schooner was lost by perils insured against, and allege that she was wrecked in attempting to cross the bar at her port of destination without the assistance of the pilot of said port. Defendant further alleges, that plaintiffs well knew when they effected insurance on said vessel that the taking of a pilot was a warranty which was incident to the risk, and that no insurance could he effected in the city of New Orleans on vessels freed from this condition.

The case was tried by a jury, who found for plaintiffs, and defendants have appealed.

The testimony of witnesses offered in the court below by the defendants, as to the alleged attempt of the Maria to cross the bar of Brazos river without a pilot was as follows :

James Miller, by occupation a sailor, was taking the pilot, Lyons, on board a brig lying off the bar of Brazos river, when the schooner Maria came off the bar. After putting the pilot on board the brig, witness beat up to the Maria and hailed her, asking if she wanted a pilot. Thought the reply was, asking the price of pilotage. \\ itncss answered, it was three dollars per foot. Did not observe at the time any signal for a pilot — but about ten minutes after-wards, observed a signal for a pilot- — put the pilot boat about, went to the brig, took off the pilot and started for the Maria — but before the pilot boat could reach her, she was in the breaker?!, and witness could not get to her without risking the pilot boat.

Samuel G. Lyon, by occupation branch pilot at the mouth of the Brazos river. The schooner Maria came off the bar of that river. Witness was at the time on board a brig outside the bar. Soon after bo got on board the brig, witness observed a signal on board the Maria for a pilot, and ordered the pilot boat to come alongside the brig, which she did, and witness got on board and started for the Maria. The Maria at this time was a little to the southward of the channel, and close in to the breakers. She -bore away and stood for the mouth of the river, but before witness reached her, she was in the breakers.

Christian Miller, was master of the schooner Maria on the voyage when she was lost, at 10 A. M. April 30th, 1850; made the mouth of the Brazos river. Hove the vessel to for a pilot, witness at the same time seeing the pilot boat making for the Maria. When within hailing distance, the pilot boat hailed the schooner, and asked if they wanted a pilot. Witness answered yes — what is. the pilotage? They hailed again from the pilot boat, but witness could not hear distinctly what they'- said; but supposed they repeated their question, and he returned the same, answer. The pilot boat then bore away before the wind and went on the opposite tack ; and as it is customary on the bars of Texas for pilot boats to go in first, and for vessels to follow, witness bore away after the pilot boat and followed it for about half an hour, but not keeping up with the pilot boat, set his signal for him to wait, but he not waiting and the schooner not getting any farther off from the shore on this tack, witness put the schooner about and stood on the opposite tack. By putting the schooner about, she dropped astern, and was in three fathoms water before she got head way, and whilst standing on this tack, she not being able to clear the south breakers and her anchors and chains not being able to hold her, witness kept her away and attempted to cross the bar, this being the only alternative, cither to cross '• the bar, or drift on the north or south breakers. The wind dying away, the schooner lost her steerage way, and the current running very strong out of the river swept her on the south-west point.

Robert Morris, was seaman on the schooner Maria on the voyage when she was wrecked. When the schooner Maria approached the bar, she was hove to and a signal was made for a pilit. The pilot boat came and asked the captain 0f the Maria if he wanted a pilot. The captain answered yes; the pilot boat then went away, and the schooner followed her, hut not being able to weather the point, the schooner had to put about. When she was put about she would not stay, but drifted on the bar and was wrecked.

The evidence of these witnesses does not establish the allegation of the answer. They are all consistent with each other, and the true cause of the disaster to the schooner appears to have been that the captain of the Maria misunderstood the manoeuvres of the pilot boat. The witness, Lyon, informs us in his deposition, that he was the only pilot at the mouth of the Brazos river. He was on board a brig outside the bar, and the pilot boat was going for him to put him on board the Maria, when the captain of the Maria supposed the pilot was on board the pilot boat, and was leading the way for him over the bar. The defendants offered a protest made by the captain of the Maria for the purpose of contradicting his testimony, which was objected to, on the ground that it was not competent for them to discredit their own witness, unless, at least, an opportunity had been offered him to explain anything that he might have said or written which conflicted with his deposition. The objection was sustained by the court below, and the defendants reserved a bill of exceptions to this ruling. We are of opinion that the District Court properly rejected this document. 2 Philips on Evidence, page 447. 1 Greenleaf on Evidence, § 462. Fletcher v. Fletcher, 5 Ann., 408, 409. Paradise, Laurason & Co. v. Sun Mutual Insurance Co., 6 Ann, 596.

The fact of the schooner having attempted to cross the bar without a pilot not being proved, it is unnecessary to examine the legal doctrine of unworthiness as resulting from neglect to take a pilot, or how far such a doctrine, is modified by the custom of a particular port.

The appellant has prayed for the amendment of the judgment appealed frouf by allowing interest. We think that the appellant is entitled to this amendment; the interest to commence running from the time when the loss was demandable, by the terms of the policy, namely, sixty days after the proof of loss. It is therefore adjudged and decreed, that the judgment of the District Court be amended by allowing interest at five per cent, per annum from the 1st of August, 1850, until paid, on the amount of the judgment; that in all other respects the judgment is affirmed, and that appellants pay costs in both courts.


author: Buchanan, J.,

text:
    Blodget, Clark & Brown v. Hogan & Guyot.
    An agreement by which one creditor obtains from his debtor an illegal preference over the other creditors of the debtor, will be set aside, although the agreement may have been carried out through the instrumentality of the Courts.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Magne and Koontz, for plaintiffs and appellants.

      Grivot and I A. Olorice for defandants.
   Buchanan, J.,

(Ogden* J., andYooRHiES, J., absent.)

The petitioners allege that they are creditors of the defendant, Guyot; that Guyot being also indebted to the defendant, Hogan, made an agreement with the latter, by which the stock in trade of Quyot (the parties being all dealers in hardware,) was to be deposited with Hogan for sale, and the proceeds appropriated, pro rata, to the satisfaction of the debts due by Quyot to the plaintiffs and to Hogan respectively, those parties being the only creditors of Quyot; that Quyot'a stock in trade was delivered to Hogan; but that, afterwards, the defendants, with the view of defrauding plaintiffs, and of giving an unjust preference to Hogan, had a collusive judgment entered up by confession, under which the merchandize deposited with Hogan by Quyot, was seized and sold by the Sheriff. The petition alleges the insolvency of Quyot at the time of these transactions to the knowledge of Hogan; also, that a large portion of Quyot's stock in trade thus sold by the Sheriff, had been purchased by Quyot of the plaintiffs. Plaintiffs pray for judgment against Guyot for the amount of his debt to them; that it be decreed, that plaintiffs have a privilege on the proceeds of the property sold; that the Sheriff be enjoined from paying over the proceeds of the sale until the further order of the court; that the judgment of Hogan against Quyot be annulled, as to petitioners, and for general relief. The evidence establishes to our satisfaction the truth of the allegations of the petition. The original agreement between the defendants for the surrender of the property of Quyot to Hogan, in order to its being applied in satisfaction of the claims of plaintiffs and Hogan, pro rata, is proved by two witnesses. The deposit of Quyot’s stock in trade with Hogan, the suit and judgment of Hogan against Q'wyot, and the seizure and sale in execution of that judgment, are to be considered as one operation, having for its object the giving a preference to Hogan over the plaintiffs, in legal fraud of the rights of the latter. The insolvency of Quyot and its knowledge by Hogan, are proved by the very terms of the con- ■ tract. The state of facts is one which admits, most clearly, of the application of the revocatory action. Not only contracts which dispose of property, says the Civil Code, Article 1984, but all others which are made in fraud of creditors, and deprive them of their recourse upon the property of their debtor, come within the provisions of the section of the Code which treats of this action. In the case of Prats v. His Creditors, 5th Robinson 288, the court held “a fraud perpetrated by the machinery of a judgment, when the courts themselves are made the unconscious instruments, is as liable to be questioned and annulled, as when effected by the legal forms of a contractand in Stone v. Kidder, 6th Annual 552, the court said “ every fraudulent device, contrivance or artifice, by which a creditor may have been injured, and from which a fraud upon his rights is practiced, is reached and remedied by this action.”

It is therefore adjudged and decreed, that the judgment of the District Court be affirmed as to defendant Guyot; that as to defendant, Hogan, the judgment be reversed; and it is further decreed, that plaintiffs, Blodyet, Glaoic & Brown, recover of L. K. Quyot, fifteen hundred and eight dollars, thirty-eight cents, with legal interest from the 3d March, 1853 ; that the injunction herein issued, be perpetuated; that the judgment in the case of J. S. Hogan v. L. E. Quyot, No. 6451 of the docket of the Fifth District Court of New Orleans> rendered on the 8th February, 1853, be avoided as to its effect upon the plaintiff; that the proceeds of Sheriff’s sale under execution in said suit be applied to the payment of the judgment rendered in favor of plaintiffs against A. E. Quyot; and that the defendants and appellees, J. S. Hogan and L. E. Quyot, be condemned, jointly and severally, to the payment of the costs of the present-suit in both courts.


text:
    Martin Lotz v Folger & Lotz.—Brennen et als., Opponents.
    A n exception relating to the form of the action can not be plead after answering to the merits.
    The prescription mentioned in Articles 1982, 1989 of the Civil Code relate to revocatory actions alone and not to simulated contracts.
    from the Fifth District Court of New Orleans, Augustin, J.

      Hosier, for plaintiff and appellant.

      H. B. Ogden and F. Haynes, for defendants.
   Buchanan, J.,

(Ogden, J., absent.)

The plaintiff sued the defendants by the via executiva upon two notes amounting' to $750 secured by a vendor’s mortgage, to which he alleged that he had boon subrogated. The property mortgaged was seized and sold by the Sheriff. It was adjudicated to plaintiff himself for $2,400, and plaintiff claimed to retain in his hands the balance of the price in satisfaction pro tanto of a special mortgage of $2,000, held by him^ and which figured upon the certificate of mortgages as second to that on which the property was sold. Three parties, holders of judicial mortgages later in date than the two thousand dollar mortgage of plaintiff, filed third oppositions, claiming to be paid in preference to plaintiff, on the grounds that the vendor’s mortgage was extinguished by payment; that the plaintiff was never subro-gated to the vendor’s mortgage, as he had pretended; and that his own special mortgage was a mere simulation, fraudulently contrived to cover the property of defendants from bona fide creditors. The plaintiff and defendants separately joined issue with the third opponents, pleading a general denial, and specially avering the good faith and reality of the claims of plaintiff. This issue was set for trial; and on the da}r fixed for the trial of the same, plaintiff filed the following exceptions:

1st. That the petitions of the opponents set forth no legal ground for the third opposition and were contradictory pleas.

2d. The prescription of one year.

The court below did not err in overruling these exceptions. The first was filed too late, being an exception of form, pleaded after answering to the merits. The second, the plea of prescription, is founded upon the Articles 1982 and 1989 of the Code, which relate to revocatory actions: the prescription of which does not apply, as has been frequently decided, to cases of simulated contracts. 1 Ann. 132; ibid 262; 3 Ann. 627; 4 Ann. 400.

On the merits we agree with the District Judge that the special mortgage for two thousand dollars, granted by defendants to plaintiff on the 1st March, 1852, was simulated; and consequently that the plaintiff has no right to retain in his hands the balance of the price of adjudication remaining after satisfaction of the executory process issued herein, to the prejudice of the opponents and appellees.

Judgment affirmed, with costs.


text:
    Gillett & Co. v. Mrs. Deranco and Husband.
    Property of the husband on Which the wife had a general mortgage was sold. The proceeds of that sale were applied in satisfaction of her mortgages. Held : The wife’s recourse against the property was exhausted, and the mortgage should be released.
    from the Fourth District Oourt of New Orleans, Reynolds, J.

      Benjamin & Micou, for plaintiffs and appellants.
    Deranco, in p. p. and Barker & Bequet, for defendant.
   Buchanan, J.

The interest of Oharles Deranco in certain real estate having been sold in execution, the District Oourt has distributed the proceeds in the following manner: 1st. To the city of New Orleans, seven hundred and twenty dollars for arrears of ground rent. 2d. To Mrs, Deranco, the balance of the price, after deducting the costs of suit, in part satisfaction of her mortgage claim against her husband.

The plaintiff in execution, as warrantor of the title of the purchaser, prays that said judgment be amended, by decreeing the erasure of Mrs. Deranco's mortgage, so far as they bear upon the property sold. We think him entitled to such a decree. The mortgages of Mrs. Deranco, which are general upon her husband’s property, (see the decision in-6th Annual, 591,) exceed the amount for which this particular piece of property sold. The proceeds of that salé have been applied in satisfaction of her mortgages, by a judgment of which she does not complain; and her recourse against that property is exhausted. The purchaser is bound for nothing more than the price of adjudication. 0. P. 708.

It is therefore adjudged and decreed, that the judgment of the District Oourt be amended; that the mortgages recorded in the name of Elizabeth Nagle, wife of Charles Deranco, against Charles Deranco, her husband, be erased, so far as they bear upon the property sold in execution of a judgment in the case of F. Gillett & Co. v. Charles Deranco, in the Fourth District Court of New Orleans, being seven-eighths interest of Charles Deranco in a lot of ground in Toulouse street; that in other respects the judgment appealed from bo affirmed ; and that the appellee, Mrs. Deranco, pay costs of this appeal.


author: Spoffokd, J.

text:
    Slark, Day & Stauffer v. Broom & Caughlin-Crescent Mutual Insurance Company, Intervenors.
    A judgment will be set aside where there is no eonteetatio UMs between the parties to it.

      Gaither, for plaintiffs.
    from the Fourth District Court of New Orleans, Reynolds, J.

      D. N. & W. D. Hennen, for defendants and appellants.

      Cohen, for Crescent Mutual Insurance Company.

      Marks, for third opponent.
   Spoffokd, J.

The appellant, George L. Broom complains, that a personal judgment was erroneously rendered against him in favor of the intervenors, the Crescent Mutual Insurance Company.

His complaint is well founded. There was no contestatio litis between him and the Insurance Company, nor does it appear that he was even cited to answer the petition in intervention. Citation was served upon Coughlin, who was at one time a partner of Broom, but it seems that the partnership had been dissolved previous to the filing of the petition in intervention.

It is therefore ordered and decreed, that the judgment of the District Court in favor of the Crescent Mutual Insurance Company against George L. Broom, personally, for the sum of three hundred and sixty dollars, with five per cent, interest from the 1st of July, 1852, be annulled, avoided and reversed; and that there be judgment in favor of said Broom, as in case of nonsuit, with costs in both courts.


author: Ogden, J.

text:
    Granite Insurance Company v. Pralon et al.
    In an action by a corporation, if its existence be put at issue, it must be proved.
    from the Fourth District Court of New Orleans, Reynolds, J.

      JDufour, for plaintiff.

      Schmidt, for defendants and appellants.
   Ogden, J.

Frangois Pralon and Jean Pralon, are appellants from a judgment rendered against them in solido, for the amount of four promissory notes executed by Frangois Pralon, made payable to his own order and by him endorsed in blank.

Jean Pralon was not cited, and made no appearance in the court below, and on that ground the judgment against him must be reversed. The defence relied on by Frangois Pralon is, that the plaintiff failed to establish by legal proof, the existence of such a corporation as the Granite Insurance Company, alleged to have been created by the laws of New York.

A printed copy of the charter, certified by O. O. Laihrop, agent, was offered in evidence, and objected to on the ground that it was not properly authenticated. We think the evidence was clearly inadmissible, and ought not to have been received.

This suit is entitled, Granite Insurance Company v. F. Pralon et al., and is said, in the petition, to have been brought by C. C. Lathrop, as agent of the company. We cannot give him a judgment, because he does not sue as the holder of the notes himself, and the legal existence of the corporation, to whom he alleges the notes belong, having been put at issue, no judgment can be rendered in their favor, without legal proof of their corporate capacity.

It is therefore ordered and adjudged, that the judgment of the court below be reversed; that there be judgment in favor of Jean Pralon as in case of nonsuit; and that the case be remanded for a new trial as to Frangois Pralon with directions to the court below not to receive in evidence the printed circular of the company objected to by the defendant; and that the costs of this appeal be paid by the plaintiff and appellee.


text:
    Winston v. Tufts, Fermor & Hobart.
    Plaintiff charged defendants with selling to them, through a broker, a note drawn and endorsed by M., and with causing M. to be alleged as solvent, when it was known to defendants that he was insolvent, and prayed judgment against the defendants for the amount of the note. Held : The plaintiff’s proper remedy was in action to avoid the contract transferring the note.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    Hiestand, for plaintiff and appellant.

      Goold & Stansbury, for defendants.
   Buchanan, J.

The petition charges that defendants, being the holders of a note drawn and endorsed by one Montanye, who was insolvent to the knowledge of defendants, put the same in the market, and caused the said Montanye to be represented as perfectly solvent; through which false representations and fraud of defendants, the plaintiff became the purchaser of said note, which was protested at maturity for non-payment. Plaintiff sues defendants for the amount of the note, with interest and costs.

The answer admits, that defendants had been the original holders of the note sued on; that they had put the same into the hands of a bill-broker for sale at the highest market value; denies that they made representations to plaintiff, or any other person, as charged in the petition ; avers that plaintiff, in buying said note, could not have been made to believe that the maker was perfectly good and solvent, inasmuch as the note was offered to him and purchased by him, at an enormous discount.

There was judgment of nonsuit, from which plaintiff has appealed.

We think plaintiff has mistaken his remedy. Defendants were not endorsers of the note, and supposing the allegations of the petition to be true, plaintiff, could not claim the payment of the note at the hands of defendants, but only a return of the price paid by him for the note. O. C. 2619.

There is a prayer for general relief; but this cannot entitle him to a decree, which is inconsistent with the special remedy sought. That remedy is the specific performance of the contract of Montanye; while the law only admits an action for the avoidance of another contract, to wit, that of transfer or sale of Montanye's note. Brown v. Schmidt, 1 Ann. 849.

Apart from this technical objection, the plaintiff has failed to make out his case by evidence. The defendants have not been connected with the purchase of the note by plaintiff. That purchase was made from a broker named Levy, and the ostensible holder of Montanye's note when purchased, was one Donaldson, -who received its proceeds. The broker Tufts, through whom defendants sold the note, appears to have disposed of it to Donaldson, who paid him for the same. The answer is not viewed by us as containing an admission that plaintiff purchased the note from defendants. The allegations of the petition concerning representations of the solvency of Montanye, having been made to plaintiff at the time of the purchase, are distinctly disproved by Levy,

Judgment affirmed, with costs.


author: BuonANAN, J.

text:
    Livaudais v. Spear.
    It is competent for the court of the first instance, without motion made by either party, to refer a cause to a jury, when the nature of the questions involved, seems to render it proper that a jury should pass upon them. When the cause has been referred, the right to a jury trial can only be dispensed with by the consent of both the parties.
    PPEAL from the Second District Court of Now Orleans, Lea, J.

      Legm'deur & Bonford, for plaintiff

      Boselius & Wa/rfield,, for defendant and appellant.
   BuonANAN, J.

After issue joined, this cause was called in due.course for trial before the District Court, neither party having prayed for a jury. Evidence was given on both sides, argument heard, and the cause taken under advisement on the 2Gth of February, 1853. On the 9th of April, 1853, there appears of record an order in these words :

“ In this case, the court considering that the issue involved is one which ought to be submitted to a jury — It is therefore ordered, that the same be transferred to the jury docket, and set for trial accordingly.”

This order appears to have been made, without motion or appearance of counsel, and exproprio motu. On the 19th of April, 1853, was the following entry:

“ In this cause, the counsel for plaintiff having moved, tho court to rescind the order rendered herein on tho 9th of April, 1853, and the court considering that the case would be submitted to the jury under circumstances more disadvantageous to the plaintiff than those under which it was submitted to the court — It is ordered, that the order rendered herein on the 9th of April, 1853, directing the case to be tried by a jury, be rescinded and set aside.”

From a bill of exceptions taken to this last ruling, it appears that, when it was made, a jury was in attendance to try the cause in conformity with the order of the 9 th of April; and that the case was at once retaken under advisement by the court, although tho defendant claimed a trial by jury, under the first order. At the bottom of this bill of exceptions, we find the following remarks of the Judge:

“This case was transferred to the jury docket upon the supposed consent of .the counsel on both sides, that the case would be tried substantially upon the testimony as it stood in the record, when submitted to the court. No reexamination of witnesses was contemplated at the time the order was made. This does not appear to have been the understanding of the counsel for the defence, who were prepared to enter upon the trial of the case de novo, under circumstances which would have placed the plaintiff in a more disadvantageous position than he stood in before the court, on the trial of the case — the order referring the case to a jury was therefore rescinded.”

In the oral argument on the appeal, we have understood the counsel of plaintiff as contesting the right of the District Judge to refer the cause to .the jury docket proprio motu, and as justifying its restitution to the decision of the court, by the supposed illegality of the previous order. This is far from being the reason given by the Judge himself for rescinding the order, neither do we .consider the position as tenable. It it is well settled, that it is legal for the court of the first instance, without motion made by either party, to refer a cause to a jury, when the nature of the questions involved, seems to render it proper that a jury should pass upon them. 6 N. S. 265. 1 Rob. 73. 1 Ann. 216.

The legality of the order of the 9th of April, 1853, upon the ground assigned in that order, being established, it appears to follow, as a necessary consequence, that a right to a jury trial had been acquired, which could only be waived by consent of both parties. The case cannot be distinguished from that of a jury awarded on the prayer of one of the parties ; which, there is no doubt, that party is not at liberty afterwards to dispense with, unless with the consent of the opposite party. 2 M. R. 48.

It is therefore decreed, that the judgment of the court below be reversed, and that the cause be remanded for trial before a jury; the plaintiff and ap-pellee to pay costs of appeal.


text:
    The State of Louisiana v. Adam Gardner and Wife.
    The defendant, in a criminal action, is entitled to a reasonable time to move in arrest of judgment.
    PPEAL from the First District Court of New Orleans, Bobertson, J.
    Morse, Attorney General, for the State.

      Sehmidt, for the accused.
   Spofford, J.

The wife of Adam Gardner was found guilty, under an information, for selling spirituous liquor to a slave, without the proper authorization.

It appears from a bill of exceptions, signed by the District Judge, “That immediately after the jury had rendered their verdict, notwithstanding the defendant informed the court, through her counsel, that it was her intention to move in arrest of judgment on various grounds, as well as to apply for a new trial, for reasons which her counsel unas not then prepared to set forth and argue, and that she required some time to prepare said motion in arrest of judgment as well as said application for a new trial, the court refused to grant her any time to prepare said applications, and immediately proceeded to sentence her.”

In so doing, the court erred.

The right to move for a new trial is guarantied to defendants in the smallest civil cases. In criminal cases, the same right exists, a3 also the additional right of moving to arrest the judgment for defects apparent on the record. These rights may be waived by the parties, but they cannot be denied by the courts To refuse a reasonable time for the exercise of a right is tantamount to a denial of the right itself. This is exemplified in the present case. Some time was waisted in discussing the question, whether the judgment could properly have been arrested. This discussion was as premature as the judgment. There is no motion in arrest upon the record; and we do not sit here to try imaginary issues.

The Act of April 2d, 1832, requires that the fine and costs shall be paid in open court, immediately after the judgment of condemnation shall have been pronounced, not that judgment shall be pronounced immediately after the ver-diet of guilty shall have been rendered. Bui. & Cur. p. 71.

According to Hawkins, the rule in the King’s Bench, in cases of misdemeanors, was that four days should elapse between the conviction and the judgment, if there were so many days in the term remaining. Hawkins, b. 2, c. 48, s. 1.

It is said by Ohitty, that the court, if they grant a rule nisi for a new trial, will, at the instance of the party applying, make it a part of the rule, that the defendant shall have a certain time, e. g., three days, to move in arrest of judgment, after they shall have given their opinion upon the motion for a new trial, or the defendant may obtain a rule in the alternative; though, as the motion in arrest of judgment may be made at any time before judgment is pronounced, it should seem that such a special rule is not necessary. 1 Chitty’s Crim. Law, p. 654.

The analogy between criminal and civil proceedings in the English courts, in regard to these matters of practice, is very striking.

Our Code of Practice relates to civil proceedings alone; but, by analogy, it may occasionally afford a safe guide in criminal proceedings.

The District Judges themselves are authorized to make rules of practice to be observed in their own courts, where the laws are silent.

Wo are not called upon to determine what a reasonable time for the preparation of the motions in question would be ; we only say that the Judge erred in refusing to grant any time whatever.

It is therefore ordered, that the sentence pronounced against the defendant herein, upon the 26th of June, 1854, be set aside and annulled as having been prematurely pronounced, and that the cause be remanded with leave to the said defendant to make motions for a new trial and in arrest of judgment, and for further proceedings according to law.


author: Büoiianan, J.

text:
    Charles Schmidt v. John Braunn.

      LiUa p&tidem is not necessarily a peremptory exception ; for, if the litigation pleaded in the exception be at an end when the exception is argued, the exception falls as a matter of course.
    from the Second District Court of New Orleans, Lea, J.

      Lucros and Halen, for plaintiff.
    Budd, for defendant and appellant.
   Büoiianan, J.

On the 9th of February, 1850, plaintiff sold at public auction a lot of ground, which was adjudicated to defendant for twelve hundred dollars, payable one-fourth cash and the remainder at six, twelve and eighteen months credit. The defendant deposited the cash with a notary, who absconded with it. Afterward, defendant sued plaintiff for a conveyance of the property ; but it was decided in the last resort, that he was not entitled to have the land, the money taken by the notary being at his risk, and not at that of the vendor, from the time of its deposit. See the case of Brown v. Schmidt, reported in 7th Annual, page 349, which was decided at the June term, 1852. In that case, Schmidt, the present plaintiff, had pleaded in reconvention, claiming the price of the land sold. This reconvontional demand was rejected by the same judgment of the Supreme Court. The present suit was brought in February, 1852, tendering a title accompanied by a clear mortgage certificate. Defendant first filed the exception of litis pendem, the reconventional demand being then pending in the Supreme Court. This exception was tried in June, 1852, after the decision of that case, and was overruled; which forms the first ground of complaint of appellant. We do not think the Judge erred. Litis pendem is not necessarily a peremptory exception. It is cured by the termination of the suit mentioned in the plea. Such was the case in the present instance. The litigation pleaded in the exception being at an end when the exception was argued, the exception fell to the ground as a matter of course.

Upon the merits, the plaintiff is entitled to recover. The incumbrance upon the property sold, appears by the mortgage certificate to have been raised on the 14th of May, 1850, and the defendant was duly put in default by the tender, on the part of the plaintiff, on the 2d of February, 1852, of a fulfilment of his obligation as vendor. C. C. 1907. There is something in the evidence which might induce the belief that defendant had previously put plaintiff in default — it is the admission of record, that Mr. Gaiennié would have stated, if present, that he served a letter on Sahmidt, putting him in default, previous to the institution of the first suit. But this pretended putting in default was evidently defective, as remarked h}r the District Judge, in this, that there was no tender by Braunn to Schmidt of the cash portion of the price; which, on the contrary, Braunn contended, in that first suit, was well paid to the notary. Notwithstanding the long time that intervened, the obligations arising out of the adjudication at auction, always existed until put an end to by a formal default.

The appellant complains of the allowance of interest from the day of sale. We think, under the circumstances, it should run from the date of putting in default, which, as we have seen, was the 2d February, 1852. And as the terms of sale were one-fourth cash, one fourth at six months, one-fourth at twelve months, and one-fourth at eighteen months, the notes bearing interest at six per cent, from date to maturity, and if not then paid, to bear eight per cent, interest, we would be carrying out the intentions, and satisfying the rights of the parties, by considering the maturity of the notes for the price to have been respectively the 5th of August, 1852, the 5th of February, 1853, and the 5th of August, 1853 ; being, six, twelve and eighteen months after the 2d of February, 1852, with the days of grace added.

It is therefore adjudged and decreed, that the judgment of the District Court he amended; that plaintiff recover of defendant, twelve hundred dollars, with interest, at the rate of five per cent, on three hundred dollars from the 2d February, 1852, until paid; at the x'ate of six per cent, on three hundred dollars from February 2d, 1852, until August 5th, 1852, and at the rate of eight per cent, after August 5th, 1852, until paid; at the rate of six per cent, on three hundred dollars from February 2d, 1852, until February 5th 1853, and at the rate of eight per cent, after February 5th, 1853, until paid ; at the rate of six per cent, on three hundred dollars from the 2d February, 1852, until the 5th of August, 1853, and at the rate of eight per cent, after the 5th of August, 1853, until paid. It is further decreed, that in other respects, the judgment of the District Court be affirmed; and that the plaintiff and ap-pellee pay costs of appeal.

         Bpofforcl) J., declined to take any part in this case. — Rep.


text:
    Succession of John B. Barker
    Nos. 3496 and 3321.
    It can not be urged by way of opposition to an Executor’s account that the legacies are illegal— “being disguised donations in trust, for a concubine of the deceased” — such an objection must be made the subject of a separate and direct action against all the parties interested in maintaining the will, or who are in possession of the property derived by it.
    A legacy of the rent of a house to A. during her life, and of the house itself to B. after her death, is the legacy of the usufruct to one, and of the naked ownership to another, which is allowed by
    from the Second District Court of New Orleans, Lea, J.

      Stockton & Steele and Pitts, for appellants.

      J. O. Cla/rke, for appellees.
   Buchanan, J.

George Lynch-, surviving executor of the last will of John B. Bm'ker, was sued for an account, on the 30th October, 1852, hy Joshua Barker and others, claiming to he the next of kin and heirs at law of the testator.

The representatives of Charles A. Jacobs, the other executor of Barker, (said Jacobs being dead) were made parties defendant.

To this suit all the defendants excepted that they had already filed a final account and distributed all the effects of the succession.

This exception was, after hearing, overruled; and the defendants answered, by pleading the general issue; denying specially that plaintiffs are heirs of Barker and entitled to an account •; and reiterating their plea, already overruled, that they had rendered a final account, which had been homologated.

Upon this issue, the District Court rendered judgment on the 10th September, 1853, recognizing the petitioners as sole heirs at law of John B. Ba/rker, and that George l/yr.ch, surviving executor, be ordered to file an account of the receipts and expenditures of said executors as such, and of their acts and doings in the premises sin^p the rendition of their last account. Prom this judgment, the petitioners have appealed through abundant precaution. It seems to us that it granted them all that they asked, and left open all the questions subsequent^' made upon the construction of the will of Barker, and the lapsing of certain legacies contained therein. These questions seem to have been touched upon by the District Judge in his reasons for judgment; but they do not appear either in the pleadings or in the decree; and we consider the decree alone, as the judgment between the parties. If there were any difficulty upon this point, it is removed by the interlocutory judgment already mentioned, overruling- the exception of defendants.

The surviving executor, Lynch, filed an account, in obedience to the judgment of 10th September, 1853.

It is opposed by the heirs at law:

1st. Denying the correctness of the charges for moneys paid, contained therein.

2d. Alleging that the executor had come into the possession of certain property of the estate for which he is bound to account to them, and has not done so; namely, three brick houses on North Market street, and two brick houses on St. Thomas street. That the three brick houses in Market street were devised in the will of Barker, by particular legacy, to certain persons who have no existence. And that the legacy of one of the houses in St. Thomas street to George Lynch is void, because it was not to take effect until an uncertain time after the death of the testator, the' property being vested by the will in the mean time, and after Barber's death, in the deceased himself, which is a disposition impossible in its terms, and therefore illegal and void.

It is also alleged in this opposition that the legacies contained in the will to Gliarles A. Jacobs, to Lynch and Jacobs, and to George Lynch, are illegal and void, being disguised donations in trust, for a concubine of the deceased.

Wo agree with the Judge of the District Court, that (his last mentioned ground of opposition is not properly a subject of opposition to this account. It goes in fact to annul the will, and as such should be the subject of a separate and direct action against all the parties interested in maintaining the will, or who are in possession of the property devised by said will.

Upon the ground of the non-existence of the three legatees described in the will as the children of Charles A. Jacobs, no evidence exists in the record, nor, (so far as the record informs us,) was any evidence offered upon the subject.

The legacy of the rent of a house in St. Thomas street to the testator’s sister, during her life, and of the house itself to George Lynch after her death, is regarded by us as the legacy of the usufruct to one, and of the naked ownership to another; which is allowed by law. C. C. 532, 1509.

The charges contained in the account were proved.

The judgments of the District Court appealed from are therefore amended, by reserving to the appellants their right to sue for the revocation of the will of John B. Barber; and with this amendment are affirmed; costs of the first of these appeals (No. 3321,) to be paid by the appellants, and those of the second appeal (No. 3496,) by the appellees.


author: Spoeforb, J.

text:
    Jean Pierre Boissy v. Louisa Lacou, f. w. c.
    Simulated assignment. The case presents a question of fact only.
    from the Fifth District Court of New Orleans, Augustin, J.

      J. G. David, for appellants.

      St. Paul & Bouney for Frois & Go. Bon-ford, for Letchford S Go.

   Spoeforb, J.

Prosper Bideau appeals from ajudgment discharging a rule which he had taken upon T. Frois & Go. and Wm. E. Letchford, & Go., to show cause why he should not be paid in preference to them, out of the proceeds of the order of seizure and sale in this case.

Boissy was the holder at maturity of the note and mortgage upon which the order of seizure and sale issued. He prosecuted the seizure in his own name. It was not until after his creditors Frois & Go. and Letchford & Go. had attached his interest in the suit that Bideau presented himself in court as the real party plaintiff.

He appeared by the same attorney, who had represented Boissy in conducting the seizure and sale. He produced an assignment by private act from the original plaintiff to himself, purporting to have been executed a few days before the attachments were levied by Boissy’s creditors. The record compels us to add that the only witness who offered to prove the date of the transfer and the fact of its notification to the defendant, lacou, is the attorney at law who first brought the suit for Boissy, after his rights were attached took the rule for Bideau, and now files a brief in this court, referring us to his own testimoney as a basis upon which he claims a reversal of the judgment.

The attaching creditors contend that this assignment was a mere simulation concocted to shield the property of their debtor from pursuit. The document itself is clothed in a suspicious garb. “Je soussigné transiere a Mr. Prosper' Bideau tous mes droits, titres et intéréts dans cette affaire pour la somme de six cents piastres, montant que je lui dois pour m’avoir passé le billet hypothécaire pour lequel j’ai obtenu un ordre de saisie et de vente dans cette affaire dans la dite cour.” If any reliance is to be placed upon this instrument, Bideau sold to Boissy without security and on an indefinite credit, a note amply secured by mortgage and pajmble by a specified day; and, on the other hand Boissy, bound himself to pay Bideau six hundred dollars for a note of. five hundred dollars which he never negotiated but kept till its maturity and then put in suit. These things are so contrary to the usual course of dealing among men that they are not credible without further explanation. The surrounding facts as well as the intrinsic appearance of this pretended assignment lead us to the conclusion that the District Judge did not err in refusing to recognize its verity.

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


author: Vooruies, J.

text:
    J. P. Scanlan & Co. v. W. S. Warwick and Wife.
    Where the wife is not separated in property from her husband or has not the administration of her paraphernalia, a debt contracted by her is a charge on the community for which her husband is alone liable and can alone be sued.
    0. 0. 2371, 2872
    from the Fifth District Court of New Orleans, Augustin, J.

      Larue & Whittaker, for plaintiffs. W. JD. Eennen, for defendants and appellants.
   Vooruies, J.

The plaintiffs allege in their petition that they sold to Mrs. Wa/rwick, a married woman, merchandize amounting to the sum of $1136 10, the payment of which was assumed by her husband and co-defendant, who executed in their favor for the amount thereof the two promissory notes declared upon, and which were duly protested at maturity. Whereupon they pray that the defendants may be condemned to pay them in solido the amount of said notes. ,

In the answer, the husband admits his liability, hut the wife denies specially that she is in any manner indebted or liable to the plaintiffs.

The District Court having rendered judgment in favor of the plaintiffs as prayed for, the wife, assisted by her husband, has appealed therefrom.

The record shows, that the notes sued upon, were given by the husband as alleged in the plaintiffs’ petition. It is neither alleged nor shown that the wife was ever separated in property from her husband, or that she had the administration of her paraphernalia. It is clear as the general rule that the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund; and it is immaterial whether contracted by the husband or wife. 0. 0. Art. 2871, 2372. The husband, as the head and master of the community, is alone liable and suable for the debts due by the community, the wife not being in any wise liable therefor.

It appears to us clear, under the pleadings and evidence in this case, that the plaintiffs were not entitled to a judgment against the appellant.

It is therefore ordered and decreed that the judgment of the District Court in favor of the plaintiffs against the appellant Mrs. Warwick be avoided and reversed at the appellees’ costs for the proceedings as to Mrs. Warwick in both courts, and that said plaintiffs’ demand against her be rejected.


author: Buchanan, J. Ogden, J.,

text:
    John McDowell, Jr. v. C. A. Crook—Speake & McCreary, Garnishees.
    The answers of the garnishees must be taken as full proof against the seizing creditor until they are contradicted by other evidence.
    A surety can not compensate his contingent liability as such, against a deposit, unless the deposit has been made expressly to guarantee the depositary against such contingent liability.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Price, for plaintiff'and appellant.

      Upton, for defendant.

      Race & Foster,

    for garnishees.

      McGarty & Holland,, for intervenors.
   Buchanan, J.

(Ogden, J., dissenting.)

Plaintiff obtained judgment against defendant, upon confession, in February, 1851, for the sum of $3,284, with interest. In April, 1851, plaintiff recovered, by judgment on third opposition, a portion of the proceeds of property sold under execution, the amount of which portion is left uncertain by the record, but which did not exceed $688, leaving a balance of more than two thousand dollars of his judgment unsatisfied, for which an alias fi. fa. was issued on the 24th April, 1854, and process of garnishment served on the 25th of the same month on Speake & McCreary. The plaintiff traversed the answers of the guarnishees to interrogatories, and ruled them to show cause why they should not be condemned to pay the amount of the judgment, on the grounds:

1st. That the answers are not full, clear, and categorical.

2d. That garnishees have in their hands, by their own showing, two thousand dollars belonging to defendant.

3d. That garnishees can not compensate against the amount in their hands, their liabilities, real or supposed, as sureties of defendant upon a certain contract of charter party.

4th. That the answers are untrue, as appears by judicial admissions of the garnishees.

The answers of the garnishees to interrogatories, are to the effect, that defendant deposited with them on the 23d March, 1854, a sum of two thousand dollars, and that subsequently a settlement of accounts was made between them, at which seven hundred and thirty-eight dollars and eighty-five cents was allowed and paid to the garnishees by the defendant out of the said sum deposited, loaving a balance in garnishees’ hands to the credit of defendant, of $1,261 15. The garnishees do not state in express terms that the money was deposited with them for any particular purpose, but they claim to hold the balance of $1,261 15, subject to the payment of claims against' the steamboat Texas, incurred between the 13th July, 1853, and the 13th December, 1853, during which period the Texas was running for account of defendant under a charter party, in which garnishees were sureties of defendant. The garnishees aver, moreover, that they have paid since the attachment, a claim against the boat of $128, out of the balance of $1,261 15 in their hands, and that other claims (not specified) are coming in.

To contradict these answers, plaintiff has given in evidence the pleadings in a suit pending between Grooh, plaintiff, and Speake & Me Or ear y, defendants; in which Grooh claims the return of the two thousand dollars deposited, and Speake & McCreary make allegations substantially the same as they have made in their answers to those interrogatories, which we observe were filed on the same day as their answer to the petition of Grooh. The only material difference between the two answers, is that Speake & McCreary declare in their answer to Grooh's suit that the charter party for which they were Groolc's securities was dated the 13th June, 1853, and expired five months after that date, or on the 13th November. But the garnishees have not averred in the said answer, any more than in their answers to interrogatories, that the deposit was made for the purpose of guaranteeing them from loss by their surety-ship for the charter of the Texas. We view this however as of no great consequence. If they have paid these claims out of moneys in their hands belonging to Grooh, we consider such payment as made by them as Crook's agents, and although they may be hereafter compelled to prove the reality of such payments in the suit instituted by Grooh against them, yet for the purposes of this garnishment thj^nswers^of the garnishees must be taken as full proof against the seizing éreditor of Oroole until they are contradicted by other evidence ; which does not appear to us to have been done. According to the answers of the garnishees, then, the balance in their hands belonging to Grooh, at the time of the attachment, was $1,261 15. It must be remarked that we do not recognize the right to compensate a contingent liabilityr as surety, against a deposit, unless the deposit has been made expressly to guarantee the depositary against such contingent liabilityr. Consequently, no necessity exists for postponing the enforcement of the garnishment until after the decision of the case in the Sixth District Court of Crook v. Speake & McCreary. The issue of that suit may render the latter liable for a further sum than is acknowledged by their answers to interrogatories to be in their hands. But that circumstance does not interfere with the right of the plaintiff to make them liable for the amount acknowledged. It may further be observed, that any payments made by the garnishees, on account of claims against the Texas after the service of citation in the suit of Grooh, could scarcely be viewed as made under a mandate from Grooh, that suit having put an end to such supposed mandate; neither could such payments made after the service of the garnishment avail aught against plaintiff, whose rights have been fixed by such service.

It is therefore decreed, that the judgment of the District Court be reversed, and that plamtiff, John McDowell, Junior, recover of Speake & MeOreary, ap-pellees, twelve hundred and sixty-one dollars and fifteen cents, with legal interest from April 25th, 1852, until paid; and that appellees pay the costs of the rule in both courts.

Ogden, J.,

dissenting. The answer of the garnishees appears to me to be evasive as to the date of the settlement by which the sum of $738 85, was agreed by the defendant to be paid, out of the sum previously deposited with them. They say that the sum of $2,000 was deposited with them by Crook on the 23d of March, and that at a subsequent period, the. settlement with Crook was made; but was that settlement prior or subsequent to the attachment; unless prior to it the rights of the plaintiff were not affected by it. The garnishees must have known that it was essential to fix the date of that settlement, and their failure to do it, or to ask leave to make their answer more explicit when called on by rule to show cause why they should not be condemned to pay the amount, subjects them to liability under the rule laid down in J£irkman v. Hill, 16 L. R., 523.

I think there should be judgment in favor of the plaintiff for the whole amount of the deposit made by the defendant in the hands of the garnishees on the 23d of March.