text:
    Delacroix v. Lacaze et als.
    The right of a party purchasing real estate, in good faith and for a sound price, from one in whom the legal title is vested, as shown by the records of the country, cannot be impaired or affected by a previous simulated sale.
    from the Sixth District Court of New Orleans, J.

      J. Magne, for plaintiff and appellant. Elmore é King, and G. <& C. E-Schmidt, for defendants.
   Land, J.

The object of this suit is to set aside and annul, on the grounds of fraud and simulation, three different acts of sale, and to subject the property conveyed to the payment of plaintiff’s judgment.

The facts are stated by plaintiff’s counsel as follows.

“ On the 19th November, 1855, the plaintiff obtained against JD. Montégut and J. Lacaze, in solido, a judgment for three hundred dollars, with interest, and costs, which judgment could not be satisfied ; subsequently, he was informed that two lots of ground situate at Gentilly, in this parish, were the property of the defendant, Lacaze, although concealed under the names of other parties, and then he instituted the present suit, alleging, among other things, that the defendant, Lacaze, had, on the 15th of April, 1853, purchased said two lots of ground under the name of F. J. Robert, as vendee ; that on or about the — of May, 1854, said Lacaze married Virginie Laizer, and that on the 16th of May, 1854, — the very day the marriage contract, stipulating a separation of property, was signed. — said J. Lacaze caused his prete-nom, Robert, to assign the aforesaid two lots of ground to his future wife, Virginie Laizer; and that on the 1st of September, 1856, said Virginie Laizer pretended to sell said lots to the other defendant, Emile LaS'ere."

The good faith of the vendee, LaS'ere, is not impeached by the evidence in the record. The District Judge says, I do not consider the sale to E. La Sere simulated ; he clearly acted in good faith, and has paid the purchase price.”

In this case, the title to the lots was never in the name of Jean Lacaze, and the plaintiff was not his creditor on the 15th of April, 1853, the date of the sale to F. J. Robert by notarial act; and LaSére purchased in good faith from the party in whom the legal title was vested. Under these circumstances, the plaintiff, as the creditor of Jean Lacaze, has no right to disturb either his title or possession.

The right of a party purchasing real estate, in good faith and for a sound price, from one in whom the legal title is vested, as shown by the records of the country, cannot be impaired or affected by a previous simulated sale.

The doctrine, that the sale of the property of another is void, has no application to this case. The authorization obtained by the wife, Mrs. Lacaze. to sell the lots, from the Judge, was sufficient.

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


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Henry Zimmerman v. John Bartchy.
    When the principal, interest and costs of a judgment do not amount to fifty dollars, the Sheriff has no right to sell immovable property to satisfy it.
    from the District Court of the Parish of Jefferson, Burthe, J.

      H. Train, for plaintiff. R. K. Cutler, for defendant and appellant.
   Cole, J.

Bartchy, the defendant, having- obtained a judgment against the plaintiff in a Justice’s Court, in the parish of Jefferson, for $28 and costs, (in all thirty-two dollars), the Sheriff of Jefferson, under the judgment, seized a lot of ground with all the buildings and improvements thereon, belonging to plaintiff, being lot No. 17 of square No. 35, in Rickerville, in said parish, and adjudicated the same to the defendant in this suit, for one hundred dollars.

This suit is instituted to recover the property.

There was judgment for plaintiff, and defendant has appealed.

Several exceptions were filed by defendant; but as he went into trial on the merits without any decision upon them, it is unnecessary now to notice them.

The plea of prescription, based upon the 49th Article, paragraph 4, of the Code of Practice, 613th Article of same Code, and 1989th Article of the Civil Code, do not apply to an action like the present.

Articles 1144,1145 and 1146 of the Code of Practice provide the mode in which defendant ought to have proceeded for the satisfaction of his judgment.

As the principal, interest and costs of the judgment did not amount to fifty dollars, the Sheriff had no right to sell immovable property to satisfy it.

It is contended, that the defendant had a mortgage upon the property to secure his debt, upon which the judgment was rendered, and that immovable property can be sold to satisfy a mortgage of any amount whatever.

No mqrtgage is recognised in the judgment of the Justice of the Peace, and, besides, the defendant does not appear to have had any mortgage to secure his debt.

The sale by the Sheriff of the property in dispute, was without warrant of law, null and without effect.

The District Judge correctly reserved to the defendant all his rights resulting from the judgment in his favor before the Justice of the Peace.

Plaintiff has asked for an amendment of the judgment in Ms favor, so as to allow him damages, &c.

We are of opinion the judgment of the District Court has done justice between the parties.

Judgment affirmed, with costs of appeal.


author: Cole, J. Mebkick, O. J.,

text:
    The State of Louisiana v. Peter, a slave.
    Article 78 of tho Constitution of 1852 vests Justices of tho Teace “ with such criminal jurisdiction as shall be provided by law.”
    According to sections 21, 22, 26, 27 and 28 of tho Act of 19th March, 1857, relative to tho trial of slaves accused of capital offences, Justices of the Peace act. m the trial of slaves, not only as jurors, but also in an official capacity, and cannot bo excluded from the trial of a slave, because they have presided and taken part in a previous trial of the same slave, for the same offence.
    Before a confession is allowed to go to the jury, the witness to whom it was made should be interrogated as to whether it was voluntary.
    If ho testifies that the confession was voluntary, then the counsel for tho accused may impeach his testimony by his former statement to the contrary.
    Although the laws relative to the organization of the tribunals for tho trial oí' slaves, in the country parishes, do not contemplate that the presiding Justices of the Peace should charge the jury on points of law, yet it would not bo illegal if they thought proper so to charge them.
    *n a case of rape, the evidence of witnesses to prove the details of the complaint made by the prosecu-trix against the accused, immediately after the commission of the offence, is admissible as part of the transaction, and not as proof of the truth of the statements.
    Slaves are prosecuted as persons, and their right to have all the testimony that may establish their innocence, is superior to the principle which would exclude their owners, on the ground of interest, and their testimony ought to be received, subject to the credibility which the jury may attach to it.
    from the Justice’s Court of the Parish of West Feliciana.

      W. F. Hardee, District for the State. McVea and Muse & Har-dee, for defendant and appellant. >
   Cole, J.

The slave, Peter, having been tried and convicted, under the Act of 19th March, 1857, for attempting to commit a rape on the person of a free white female, was sentenced to capital punishment. Sess. Acts, 1857, p. 231.

He lias appealed, and relies on several bills of exception to the ruling of the court, which will be considered in their order.

1. “ Because G. W. Catlett, a Justice of the Peace, having already presided at a former trial of the same slave, accused of the same offence, when the jury could not agree, was incompetent to try him again.”

Article 78 of the Constitution of 1852 vests Justices of the Peace “with such criminal jurisdiction as shall be provided by law.”

The Act of 19th March, 1857, sections 21 and 22, p. 231, provides, that whenever it shall be necessary to try a slave accused of a capital offence, the Justice of the Peace before whom the complaint shall have been made, shall notify another Justice in the parish, and shall require such Justice to attend at his office, for the purpose of selecting ten owners of slaves for the purpose of forming the tribunal for the trial of the accused. (See also sections 26 and 28.)

Sections 27 and 28 declare that if the offender be convicted of any crime punishable with death, the said Justice or Justices shall sign a sentence to that effect, and that the said Justices, or either of them, are authorized to summon and compel all persons to appear and give evidence in all prosecutions of slaves.

These sections show that the Justices of the Peace act, in the trial of slaves, not only as jurors, but also in an official capacity; and it does not seem reasonable that, as justices, they should be excluded from the trial of a slave, because they have presided and taken part in the previous trial for the same offence, any more than District Judges are when placed in a similar position.

It is unnecessary, in the present case, to decide whether he would have been competent, if the record showed that at the first trial he had voted for the conviction of the accused; but it would seem he might, unless his mind was so impressed with the guilt of the accused, that his opinion could not be changed by evidence of a different nature at the second trial, than at the first.

2. Upon the trial, the counsel for the accused propounded to Mrs. Knight, a witness on the stand, the following question :

“ Were you, or not, at Mr. Samford’s house during the evening of Monday, the 22d of February, 1858, and if so, did you, or not, hear Mr. Samford state that he had used threats against the boy Peter to induce him to confess ?

The counsel for the State objected to this question, on the grounds, that it was hearsay, and was not the best evidence; that the best witness of the fact would be Mr. Samford, and that the object of the testimony sought to be introduced was to contradict a witness not yet on the stand.

It appears from the remarks of the Justices in the bill of exceptions, that the State proposed to prove the confession of the accused to Mr. Samford, a witness on the stand; that the counsel for the accused objected, and offered Mrs. Knight, a witness, to prove that the confession was made under threats, and the Justices were of opinion, that the questions as to threats ought to have been propounded in the first place to the witness Samford, before introducing testimony to discredit him.

There was no error in excluding the testimony at the time when it was proposed to be offered.

The usual and proper rule of proceeding is to first interrogate the witness to whom a confession has been made, before even it has been given to the jury whether it was voluntary. 1st Greenleaf on Evidence, $219.

II the witness testifies the confession to have been voluntary, then it would be competent for the counsel of the accused afterwards to impeach his testimony by his former statements, that the confession had been induced by threats, or violence, or any illegal causes.

The tribunal did not reject the offered evidence of Mrs. Knight. It only required the question, as to threats, to be asked, in the first place, of Samford.

It also appears from the next bill of exceptions, that Samford testified the confession to have been voluntary. It was, therefore, in the power of the counsel of the accused, if it were possible, to have discredited the testimony.

3. The counsel for the accused asked the Justices to charge the jury, that the testimony of Samford, a witness in the case, should not be considered by them in making up their verdict, because he stated in his examination in chief, that he asked the accused, Peter, “ what could have induced him, Peter, to do this ?” “ what could have induced him, Peter, to do this thing to this girl?” and various other questions of the same kind, at the same time; and because Samford did also state, that the confessions of Peter, made the first time, were made in answers to questions put directly by witness to Peter, and during said time that said Peter was handcuffed.

The Justices declare, in their addition to the bill of exceptions, they were of opinion that the confession was given without threats or inducements, the witness, Samford, having sworn that the confession was entirely voluntary,” and they refused so to charge the jury, on the ground that there was no law authorizing them to give any charges.

The laws relative to the organization of the tribunals for the trial of slaves in the country parishes, do not appear to contemplate that the presiding Justices of tlie Peace should charge the jury upon points of law, although, perhaps, it would not be illegal, if they thought proper to charge them.

4. There was no error in permitting Mrs. Dudley and other witnesses to prove the details and circumstances, and the particulars of the complaints made by the prosecutrix against the accused immediately after the commission of the offence, as a part of the transaction, and not as proof of the truth of the statements as made. Wharton, Crim. Law, p. 441; Starlde on Ev., yol. 2, p. 951; Greenleaf on Ev., vol. 1, p. 167,$123.

Such evidence is generally admitted after the complainant has testified to the nature of the offence committed against him, in order to show his credit and the accuracy of his recollection.

We have been thus particular in considering the bills of exceptions, because there are two, relating to the same point, which oblige us to reverse the judgment.

The counsel of defendant offered to prove an alibi by Mr. and Mrs. Sadler, the owners in community of the slave Peter. The testimony was objected to, on the ground of interest in the witnesses, and was excluded by the court.

This testimony ought to have been admitted.

Slaves are prosecuted as persons, and they ought not to be deprived of the testimony of their owners, because the verdict may injure them in a pecuniary view. The point at issue is not their value, but their guilt or innocence.

The rights of a slave to have all the testimony that may establish his innocence are superior to the principle which would exclude his owners on the ground of interest, and their testimony ought to be received, subject to the credibility which the jury may attach to it.

Besides, the interest of the owners is not direct, certain, or immediate, for they cannot know whether the slave will be convicted, or if convicted, whether he will be condemned to death, or corporeal punishment, as the jury have the right to inflict in certain cases, as in the present, either punishment. Sess. Acts, 1857, p. 232,128. Greenleaf on Ev., ji 386.

It is, therefore, ordered, adjudged and decreed, that the verdict and judgment appealed from, to-wit, of the two Justices and the ten owners of slaves, be avoided and reversed, and that this case be remanded for further proceedings according to law.

Mebkick, O. J.,

concurring. I am inclined to think the Justices of the Peace ought to have charged the jury, as required. They exercise judicial functions and also act as jurors. They cannot, therefore, be challenged, and the sentence of the tribunal receives its vitality and force only through thn judicial power vested in the Justices of the Peace. The concurrence of the jurors is a prerequisite to the judgment; but when rendered, the judgment receives its judicial force from the Justices of the Peace themselves. Const., Arts. 61 and 81; Acts 1857, $1 27 and 28, p. 232 ; State v. Isaac, 3 An. 360.

As an appeal is given as in other cases, I think the accused is entitled to have the law relied upon by the State against the accused given in charge to the jury, in order that he may present, by bills of exceptions, such legal questions to the appellate court, as arise during the trial. I know that some inconvenience may result from a want of experience on the part of magistrates ; but a discussion of the questions with the counsel for the accused and District Attorney will enable them to charge the law substantially as it exists. See Act, 1857, sec. 39 ; Acts 1855, p. 37.

I prefer to rest my concurrence upon this ground.


text:
    J. Q. Profilet v. Hall & Hildreth.
    There is a distinction to bo observed between those effects of a traveler, which arc not immediately requisite to his comfort, and which the law requires him to deposit with the inn-keeper or his servant, in order to hold such inn-keeper responsible for their loss, and those which arc essential to his personal convenience and which it is necessary to have constantly about him. So that if a guest had been personally notified to deposit at the offlco of the hotel or inn, his watch and other personal effects necessary to his comfort, this would not liberate the inn-keeper from responsibility, if they were not so deposited.
    But where the traveler contributes by his own act or negligence to the loss of such things, the innkeeper is released from liability.
    PPEAL from ilio Sixth District Court of New Orleans, Howell, J.
    X1. A. N. Ogden é Stansbury, for plaintiff. Clark & Bayne, for defendants and appellants.
   Cole, J.

The plaintiff, a citizen of the State of Mississippi, alleges that he came to the city of New Orleans during the month of July, 1857, and stopped at the St. Charles Hotel, a public house of entertainment, kept by Hall & Hil-dreth.

That petitioner was given, in this hotel, room No. 124, and retired to rest therein.

That during the night of July 10th, 1857, the room occupied by him was entered, and the following articles, his property, were taken therefrom, and wholly lost to him : one gold watch, of the value of $225 ; one seal ring, worth $30 ; one masonic medal, of the value of $20 ; and one hundred dollars cash in bills of Louisiana banks.

The answer of defendants pleads the general denial, then specially admits, they are the proprietors of the St. Charles Hotel. That as such, they aver, they have provided a safe for the deposit of valuable articles, and have given notice to all the inmates and the visitors of their hotel, to place any valuable articles in this safe, and if not so deposited, they would not be responsible for them, if lost.

That plaintiff had due notice of this fact, before he took his lodgings in the hotel, and was so bound thereby.

The District Judge was of opinion that the possession of the money and the loss thereof, were not established, and rendered a judgment for $225, the value proved upon the trial of the watch, ring and medals.

Defendants have appealed.

Laws have been made in different countries and periods, regulating the obligations of keepers of inns and hotels.

The Spanish law rendered the keepers of inns and hotels responsible for “ every thing which travelers, either by sea or land, put into inns or taverns, or ships that navigate the sea or rivers, to the knowledge of the owners thereof, or of those that act in their places,” which was lost through thoir neglect, fraud or other fault, or if were stolen by any persons who came with the travelers.”

This law, however, limited the liability of inn or hotel keepers in certain cases. The first is, where they tell the traveler, before they receive him, to take care of Ms own effects, as that they would not bo responsible for them, if they should get lost,.

The second is, whore they show him, before they receive him, a trunk or chamber, saying', “ if you choose to stay here, put your things in that trunk or room, and take the key into your own keeping.”

The third is, where the effects are lost by some fortuitous event, as by fire, &c. Partida Fifth, title 8, law 26, vol. 2, p. 744.

The Spanish law seems to have held them liable, when it was to their knowledge, or to that of their agents, that the traveler had put property in their inns or hotels.

The civil law declares, that there is formed between the inn-keeper and traveler, an agreement, in most cases tacit, by which the inn-keeper obliges himself to the traveler to lodge him, and to take care of his baggage, and other equipage ; and the traveler, on his part, binds himself to pay his charges.

This law forces inn-keepers to take the same care, as if they were expressly paid for watching the goods, and declares that this obligation is an accessory to the commerce in which they are engaged, and that it is for the interest of the public, considering the necessity under which travellers are to trust inn-keepers, that they be bound to an exact and faithful care of the things committed to their custody, and that they be made answerable even for thefts. For otherwise they might, with impunity commit thefts themselves. Domat’s Oivil Law, Cushing’s edition, vol.’l, No. 1172 to 1178.

The common law obliges the inn-keeper to keep safely all such things as his guests deposit within his inn, and Sir William Jones, in his work on the law of Bailments, quotes Cayle’s case, 8 Rep. 33, $ 4, where it was held that this obligation exists, “ although the guest doth not deliver his goods to the inn-keeper to keep.”

He further says, that the law of this case was recognized in Bennett v. Mellor, 5 Tenn. Rep. 273, where it was determined, that “ if an inn-keeper refuse to take charge of goods till a future day, because 1ns house is full of parcels, still he is liable to make good the loss, if the owner stop as a guest, and the goods be stolen (luring his stay.”

Jones further declares, that if the inn-keeper fail to provide honest servants and honest inmates, his negligence is highly culpable, and he ought to answer civilly for their acts, even if they should rob the guests who sleep in his chambers.. He gives as the reason, that travelers are obliged to rely almost implicitly on the good faith of inn-liolders, who might have frequent opportunities of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them.

He further says, that in all such cases, however, it is competent for the inn-holder to repel the presumption of his knavery, or default, by proving that he took ordinary care, or that the force, which occasioned the loss or damage, was truly irresistible. Jones on Bailments, pp. 95, 96.

Story, in his work on bailments, holds that a delivery of the goods into the custody of the inn-keeper, is not necessary to charge him with them ; for although the guest doth not deliver them, or acquaint the inn-keeper with them, still the latter is bound to pay for them, if they are stolen or carried av'ay; even though the person who stole them or carried them away, is unknown. If the goods are in his house, they are under his implied care, whether he knew it or not.

But if the inn-keeper requires of his guest, that he should put his goods into a particular chamber, under lock and key, and that then he will warrant their safety, and otherwise not; and the guest, notwithstanding, leaves them in an outer court, where they arc taken away, the inn-keeper will be discharged.

Story also says, that by the common law, as laid down in Cayle’s case, (8 Rep. 32,) the inn-keeper is bound to keep the goods of his guest safe, without any stealing or purloining, but he adds, that this doctrine is to be understood with this qualification, that the loss will be deemed prima facie evidence of negligence ; and that the inn-keeper cannot exonerate himself but by positive proof that the loss was not by means of any person, for whom he is responsible.

It is also held, that the inn-keeper may be exonerated in many other ways ; as, for example, by showing that the guest has taken upon himself exclusively, the custody of his own goods, or has, by his own neglect, exposed them to peril. Story on Bailments, % 482, 483.

The same author holds, that if goods be stolen from the chamber of a guest, the inn-keeper,is liable, although he received no notice that they were placed there. Story on Bailments, l 456 ; 8 Co. 32 ; Hayw. N. C. R. 41; 14 John. R. 115 ; 1 Bell’s Com. 469 ; 1 Bl. Com. 430 ; 2 Kent. Com. 458 to 463.

The Civil Code of Louisiana provides, that an inn-keeper is responsible for the effects brought by travelers, even though they were not delivered into his personal care, provided, however, they were delivered to a servant or person in his employment. 0. C. Art. 2937.

The doctrine of this Code seems to be, that the goods must be deposited with the inn-keeper or his agent, in order to hold the former responsible. The duties and obligations of inn-keepers are treated of under the head of the necessary deposit. C. C. 2935 to 2940; Dunn & Yates v. Branner, 13 An. 454.

It has, however, recently been held by us, in the case of Pope v. Hall & Hildreth, 14 An., that a guest is not bound to deposit with the proprietor of the \ hotel or his agent, his watch, which he may need to know the hour for a particu-l lar purpose, or a small sum of money which may be necessary to be used at any ) moment for his personal necessities.

"We see no reason to differ from this doctrine, and do not think it necessarily conflicts with the Articles of our Code upon the subject of inn-keepers. For they may be interpreted as referring to those goods which are not essential for the personal convenience of the traveler.

Certainly, it could not be reasonably averred, that these Articles required the traveler to deposit at the office of the hotel, his trunk, containing his wearing-apparel, which he might need at almost any moment. When, then, a trunk, watch or other articles of indispensable personal necessity are stolen, the hotel becomes liable, not under Articles 2935 to 2940 of the Civil Code, but under the tacit or acknowledged contract between the keeper of the hotel and his guest, that he shall exercise due diligence to protect his guest and his property whilst in his house, unless indeed he has been relieved of this liability by the negligence of the guest, or by some other lawful cause.

It is not necessary, in this case, to decide whether an inn-keeper can in any Instance absolve himself from liability, by showing notice by placards posted up in his house.

It is sufficient for the present to say, that even if a guest had been personally notified to deposit at the office of the hotel or inn, his watch and his personal effects, of an indispensable necessity for the comfort of the traveler, this would not liberate the inn-keeper from responsibility, if they were not so deposited.

The only question that remains for our consideration is, whether the plaintiff was guilty of negligence to such a degree, as to free the defendants from liability,

For, as be constitutes himself in part the custodian of such personal effects if as he is not obliged to deposit, he is bound to exercise a certain personal supervision over them. The hotel keeper cannot be held liable, if he has done all in his power to protect these effects, and if he has placed it within the ability of the guest to prevent them from being stolen, and the guest has neglected to avail himself of such means. It cannot be expected at the present day, when hotels are constructed of immense capacity and capable of holding hundreds of persons that the proprietor should be obliged to have a guard at every door.

If the keeper of the hotel provides with a lock the room where his guest lodges, which opens inside and does not open from outside, it would be in the power of the guest to protect himself and the hotel-keeper would not be responsible, unless it were shown he was guilty of gross negligence in other respects.

For Article 2939 of the Civil Code declares, the inn-keeper “ is not responsible for what is stolen by force and arms, or with exterior breaking open of doors, or by any other extraordinary violence.

The evidence, as to the key of room No. 124, is contradictory.

Mr. Soria, a witness for plaintiff, testifies, that about 9 o’clock at night, or later, on the 10th of July, 1851, he went with plaintiff to the office, and asked for the key of the room in which the latter had been previously and was then lodging; that the reply from Mr. Hitchcock, or the person then officiating, was that there was no key to that room. Witness is not positive as to the name of the person who gave this reply, but thinks it was Hitchcock

Mr. Hitchcock testifies, lie was at the town of Nahant, Massachusetts, from June to November, 1851.

D. L. Mudge testifies, he was a Clerk in the St. Charles Hotel in July, 1851; that he and Mr. Hildreth had charge of the office where the keys of the rooms are kept, when not in the door; that plaintiff arrived at the hotel on the 9th of July, at tea-time, and received the key of his room, 124 ; that during the night of the 9th, he had a friend lodging with him and had an extra breakfast on the morning of the 10th, and no complaint was made at the office of the want of a key for plaintiff’s room. That if a call had been made for a key, one would have been furnished in a few moments by the carpenter, upon an order from the office.

He further testifies, that on the evening of the 10th, plaintiff came in with three or four other gentlemen, about eleven o’clock at night. All of the party seemed to be intoxicated, and one of them asked, if plaintiff’s key was in the box. Witness looked, and seeing it was not, said he supposed that plaintiff had left it at the room, or had it with him.

The party went up stairs and the witness heard nothing more of them, except that a boy was sent down for liquor, and witness had to get bar checks for the boy, and no mention was then made of the want of a key, and witness heard nothing of any complaint until next morning.

Upon his cross examination, lie says he cannot swear positively that he handed plaintiff the key on the night of his arrival, but feels confident that he gave him the key, as there was no complaint of the want of one until the next night, when asked for by Mr. Soria.

Mr. Hitchcock testifies, that the carpenter of the hotel keeps blank keys on hand, and, by examining the locks of the doors, can file the appropriate wards, and fix a key in the lock, in some ton minutes. From the very frequent occurrence of the carrying away, by guests of the hotel, the keys, as well as carrying them with them all the time they are not staying at the hotel, instead of depositing them at the office, when they leave their rooms, it is, therefore, necessary for the carpenter to keep these blank keys. That if plaintiff had applied for a key, and there had been none in the office for him, a key would have been fitted in ten. minutes and furnished to him.

Soria testifies, that he told the servant who went for the liquor, to bring up the key of the room, and that, on his return, he said a carpenter was then fitting a key for the room. That the waiter shortly afterwards brought up a card from Mr. Lacoste, and witness again asked the waiter for a key, who replied, that there was none except the pass-key, which would only lock the door from the outside.

It appears from the testimony of Mudge, that no application was made by these two servants to him for the key. It was certainly an act of negligence to depend upon the servants, instead of going to the office to get the key. If plaintiff had done this, he would not have lost his effects.

But it appears from the testimony of Soria, that he, plaintiff and some other gentlemen, had gone on the night of the 10th of July, from the last train of steam cars of the Pontchartrain Railroad to the St. Charles Hotel. They had gone to the lake by the four or five o’clock train of cars, and during their stay there had some champagne. Upon their arrival at the hotel, plaintiff insisted that witness should stay all night with him. Witness wound up plaintiff’s watch, because he had put him to bed; he was partially asleep, and was somewhat under the influence of the liquor he had drank.

Mr. Lewis, a witness of plaintiff’, testifies, that ho was with the party to the lake, and was at plaintiff’s room at the hotel on the night of the 10th of July ; that plaintiff was affected by the liquor he had drank, and was lying on the bed, but had not been undressed.

It thus appears, that plaintiff was not in a condition to protect himself or to exercise the most ordinary vigilance.

Instead of depending upon himself, and taking proper care of his personal effects, he was obliged to confide in another.

Mr. Soria declares, that he attempted to secure the door in the best way he could, drew his bed cot against the door, as he thought, and put a chair there, but in the morning, when he woke up, he found that he had not pulled the bed far over enough, and had just left space enough for the door to be opened, and to admit an ordinary sized man without disturbing witness or the bed.

It thus appears, that the friend of plaintiff did not manifest sufficient care in seeking to protect him.

Witness also states, that he laid the watch of plaintiff on the bureau, that the ring of plaintiff was attached to the watch-guard, and also his masonic medal.

Upon waking in the morning, he found that the watch, ring and medal were gone.

It was an act of negligence to leave the watch upon the bureau. It would have been more prudent and just as easy to have concealed it under the mattress, or in some part of the room.

We are of opinion, if plaintiff had been sober, he might either have procured a key or have so concealed his effects, that they would not have been lost.

His state of intoxication raises the presumption of the omission of that care which he was bound to bestow for his own protection. If he had not been under the effect of liquor, he might have been awakened by the noise of the robber in entering' the room. His condition may have induced some one to attempt the robbery.

Under all the circumstances of this case, we think that plaintiff ought not to recover.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment in favor of defendants against the claim of plaintiff, and that plaintiff pay the costs of both courts.


author: Voorhies, J. Merrick, C. J.,

text:
    William R. Hallet v. James Desban.
    A community of profits is tlio criterion "by which to determino the contract of partnership ; hut to render a party liable as a partner, he must share in the profits as principal, and not as a more agent, factor or semant.

    from the Pifth District Court of New Orleans, Eggleston, J.

      T. J. & A. O. Semm.es, for plaintiff and appellant. Whitaker <& Fellows, for defendant.
   Voorhies, J.

The plaintiff, a creditor of the firm of J. B. Steel & Co., sues the defendant, who acted in the capacity of confidential clerk, book-keeper and agent of the firm, to render him liable as a partner, on the ground that his services as clerk and agent were remunerated by one-fourth of the net profits.

The question is, whether, notwithstanding the fact that, as between the partners, the defendant was a mere agent and subordinate, he can be held liable, as a partner, to third persons, to whom he has not appeared in any but the real capa,-city of clerk and agent. The plaintiff, it is proper to remark, states in his petition, “ that the defendant, James Beslan, ostensibly acted as the chief clerk and bookkeeper of said Steel in his said business, but in truth and in fact, the said Beslan was interested in the profits of said business, and was, in law, a dormant partner of said Steel, of which fact your petitioner was entirely ignorant.”

As between the defendant and the firm of J. B. Steel & Co., it is clear that the former was not a partner. There was no express or implied consent to that effect, and in truth, the stipulation was quite otherwise. “ Partnership must be created by the consent of the parties.” C. C. 2776; 11 An. 278, Pickerel v. Fisk.

The rule, with regard to third persons, concerning the liability of parties who have a share or proportion in the profits, is different when they appear as principals, or merely as agents, clerks, or factors. In the latter case, they are not responsible to creditors, but in the former, their liability invariably attaches. The 2784th and 2785th Articles of the Civil Code apply to the partners, and not to the class of persons whose services are remunerated by a proportion of the profits.

These Articles read :

O. 0. 2784. A participation in the profits of a partnership carries with it a liability to contribute between the parties to the expenses and losses, but, the proportion, like that of the profits, may be regulated by the stipulation of the parties, and, where they make none, is provided for by law.”

0. C. 2785. “ A stipulation that one of the contracting parties shall participate in the profits of a partnership, but shall not contribute to losses, is void, both as it regards the partners and third persons. But in the case of a partnership in commendam, hereinafter provided for, the liability to loss may be limited to the amount of stock furnished.”

These Articles evidently refer to those acting as principals in the contract of partnership, and not to such as are mere employees, whose exertions as such are stimulated by a share in the profits, without their being invested thereby with “ any additional control over the affairs of the partnership, nor authorized to bind the house or firm, further than by the express consent of the partners, or an implied consent resulting from the nature of their employment.”

Such has been the view taken upon this subject by our courts.

For instance, in the case of Bulloc v. Pailhos, reported in 9 La. 462. Bulloc had entrusted to Pailhos a quantity of goods for sale; the latter was to receive, by the articles of agreement, one-half of the profits on the goods, as compensation for his labor. The court said, “We think with the plaintiff that the defendant was not a partner, but an agent. He is so stated in the agreement. The property was not at joint risk. The share in the profits was the compensation he was to receive for his labor.” 8 N. S. 174, Bulloc v. Pailhos.

In the case of St. Victor v. Daubert, 9 La. 317, the court again said, “ Between the partners of a commercial house and a clerk who, in addition to his monthly salary, is allowed as a further stimulus to his industry, a share of the profits, we have no hesitation in deciding that this allowance does not constitute him a partner ; it gives him no additional control over the affairs of the partnership, nor does it authorize him to bind the house, or firm, further than by the express consent of the partners, or an implied consent resulting from the nature of his employment. The person thus employed and rewarded has no right to retain the funds of the house, which employed him to collect them. They must be supposed, until the affairs of the partnership are liquidated, to be provided for, and required to meet its engagements, and afterwards to reimburse the partners for their advances, before a division of the profits is made."

In the case of Cline v. Caldwell, the court remarked, “ The circumstance of the manner in which the actor was to receive remuneration or payment for his performances, by an allowance of a share in the profits gained by them, although it makes a slight change in the ordinary contract of hiring for fixed and certain wages, does not create one essentially different. Overseers of plantations are fre quently hired on the express condition of receiving, in lieu of a certain salary, a portion of the profits arising from crops, &c.; but on that account it is believed that they ought not to be considered as in partnership with the owners of the property used to produce the crops.” 4 La. 139.

The cases of Bank of Tennessee v. McKeage, 11 R. 136, and of McDonald v. Millaudon, 5 La. 408, are reconcilable with the above quoted decisions; for in both of them the parties appeared as principals, and not as employees or agents. In the case of Lee et als. v. Bullard et als., the clerk, whose compensation depended on the profits, was held liable; but the court expressly states, “ Besides this participation in the net profits, on several occasions he held himself out as a partner, and thus clearly rendered himself liable.” 3 An. 462.

Judge Story says, “ There may be a community of interest in the profits between the parties, without any community of interest in the property itself. But this participation in the profits will not (as we have seen) create a partnership between the parties themselves, as to the property, as well as the profits, contrary to their intentions. Nor will it necessarily create such a partnership in all cases, as to third persons.”.“Thus, if a party has no interest whatsoever in the capital stock and as between himself and the other parties, he has also no rights as a \partner, or no mutuality of powers and duties, hut is simply emplcryed as an agent, and is to receive either a given sum out of the profits, or a proportion out of the profits, or a residuum of the profits beyond a certain sum, as a compensation for his labor and services, as agent of the concern, and not otherwise ; he will not be deemed a partner in the concern from that fact alone; not a partner with the others inter sese, for that would be contrary to their intentions and objects, nor as to third per. sons, because the transaction admits of a different interpretation, and may justly be deemed a mere mode of ascertaining and paying the compensation of an agent, as in a naked case of agency. In such a case, it may be properly enough said, that the agent is entitled to a share or portion in the profits, liquidated or unliquidated, and, therefore, that he has, in a certain sense, a community of interest therein with the actual partners. But he does not participate therein as an owner pro tanto, or as possessed thereof per my et per tout, or as clothed with the rights, powers and duties of a partner. He has only a limited interest therein, either as entitled to a fixed sum, to be paid out of the profits, or as entitled to a lien thereon, or as possessed of an undivided portion thereof, as a tenant in common.” Story on Partnership, g 32.

Chancellor Kent says, “ A person may be allowed, in special cases, to receive part of the profits of a business, without becoming a legal or responsible partner.” Vol. 3, p. 33. He also says, in speaking of the essence of the contract of partnership, It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not as an agent.” Vol. 3, p. 25.

Smith on Mercantile Law states, at page 40 :

“ This community of profit is the criterion whereby to ascertain whether a contract be really one of partnership, for one partner may stipulate to be free from loss, and the stipulation will hold good as between himself and his companions, though it will not diminish his liability to strangers.”

But this author adds further in explanation, that, “ to constitute such a community of profit as is here intended, a partner must not only share in the profits of his companions, but must share in them as a principal, i. e., he must not be a mere agent, factor, or servant, receiving, in lieu of wages, a sum proportioned to the profits gained by his employers, or a certain portion of a fund which includes the profits, but is not dependent on them for existence.”

It is true, that it is laid down as a rule, “ that if a servant or agent stipulate for a share in the profits, and so entitle himself to an account of them, he becomes, as to third persons, a partner, though in questions between himself and his employer, he would not be so considered.” Smith, M. L. 43. The author then states, that this distinction is extremely fine, and quotes the following expression of Lord Eldon in Ex parte Harper: “ It is clearly settled, though I regret it, that if a man stipulates that he shall have, as the reward of his labor, not a specific interest in the business, but a given sum of money, oven in proportion to a given quantum of the profits, that will not make him a partner; but if he agrees for a part of the profits as such, giving him a right to an account, he is, as to third persons, a partner.”

The sum and substance of this doctrine is, that a community of profits is the criterion by which to determine a contract of partnership ; but the party must share in the profits as a principal, and not as a mere agent, factor, or servant. If, however, this agent or servant stipulates for a share of the profits, so as to entitle him to an account, then he is held bound as a partner. Bat then it is necessary that he have clearly the right to an account, in order to place him on the same footing as a principal; and Chancellor Kent lays it down, “ that the interest, however, in the profits, to render one responsible as a partner, must be such as will entitle him to an account, and give him a specific lien or preference in payment over other creditors.” Vide Smith M. L. 44, (notes).

The English decisions on this subject are not so very uniform as could be expected, as will appear by the following quotations :

“ To make a party liable to a third person, as a partner, he must either be in fact a partner, or must have held himself out as a partner.” Dickenson v. Valpy, 5 M. & R. 126.

“ An agent who is paid by a proportion of the profits of the adventure, is not therefore a partner in the goods.” Meyer v. Sharpe, 5 Taunt. 74.

“ If the agreement between the owner of a lighter and of his man had been, that the man, in consideration of working the lighter, should have received half the gross earnings, it would not have constituted a partnership, being- only a mode of paying the man for his labor. Alitor, however, if the stipulation was for the net profits.” Dry v. Boswell, 1 Camp. 329.

A partner in a firm contracted to give his clerk one-third portion of his (the partner’s) own share in the profits. The other partners knew of, and assented to the arrangement. Held: that this did not make the clerk a partner.” Holme’s case, 2 Lewin ; C. C. 256.

See also the cases of Wist v. Small, 1 Camp 331; Benjamin v. Porteus, 2 H. Black, 590 ; Smith v. Watson, 3 D. & R. 71; Burnell v. Hunt, 5 Jar. 650 O.B.; Wilson v. Whitehead, 10 Mee & W. 503.

The ground upon which is based the doctrine, that an agent who receives a share in the profits, as such, becomes liable to third persons, as a partner, is, “ that those profits form a portion of the fund upon which creditors have a right to rely for payment,” (Pott v. Eyton, 3 C. B. 32); and yet, if a clerk contracts for the net profits, after the payment in full of all the liabilities, he becomes liable as a partner, — whilst, if he gets a proportion of the gross profits, without reference to the payment of the debts, he escapes the liability of a partner! This is on a par with the nice distinction, so much regretted by Lord Eldon, between a proportion of the profits and a sum equal to a given quantum of the profits. In other words, under this distinction, a clerk who gets from his employer, in payment of his services as employee, one-fourth of the net profits, is a partner, because he has a right to sue for an account; but if he stipulates for a sum equal to one-fourth of the net profits, then he is not a partner, having no right to demand an account 1 It will be conceded, that in either hypothesis, the clerk, in this State, would have the right to sue his employer, and to look into the accounts of the firm, for the purpose of ascertaining the amount due him. And, on the other hand, it is evident that, in neither hypothesis would he have the right to sue for a liquidation or dissolution of the firm or partnership. The truth is, that the employee’s interest in the profits, where he is not, besides, a principal in the partnership, does not vest him with additional authority in the management of its affairs ; his responsibility is always the same, even as regards third persons.

Under this view of the case, — it appearing that the defendant was not in reality a partner, and did not hold himself out as such, and especially, that that was the plaintiff’s own understanding at the time, — judgment must be rendered in favor of the defendant.

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

Merrick, C. J.,

dissenting. This suit has been brought to charge the defendant as a partner of J. B. Steel.

The whole ease turns upon the construction of a contract by which Norman, Steel & Co., appointed the defendant in 1840, their confidential clerk and bookkeeper, at a salary of $1200 per annum for two years, and made this further agreement, viz : “ that from and after the expiration of said two years, and for and during the space and term of two years thereafter, that is to say, from the 3d day of November, 1842, until the 3d day of November, 1844, the said James Desban shall receive as compensation for his said services one-fourth fart of the entire net profits of the business of said firm, and at the end of the said two years, that is to say, on the 3d day of November, 1844, the said James Desban shall have it in his option to remain for two years longer in his capacity aforesaid at the said compensation of one-fourth part of the entire net profits of the said firm.”

Norman, Steel & Co., dissolved partnership in July, 1843, and the business after this time was conducted in the name of Steel alone. Steel made his power of attorney to the defendant fully authorizing him to conduct his affairs, to draw bills of exchange and promissory notes, to sell and buy real estate and slaves, to lease, let and hire houses, to receive shipments of goods, sign customhouse bonds, grant mortgages, pledges, &e., &c.

Desban continued in the employment of Steel as clerk and book-keeper until 1854, under his agreement, to receive one-fourth part of the entire net profits of the business of said Steel for his compensation. During this period, Steel became indebted to the plaintiff for the loan of money in suit which was used in the business of the house.

Did this agreement of Desban to receive as compensation for his services as clerk and manager of the affairs of the concern, the one-fourth of the net profits of Steel’s business, make Desban a dormant partner ?

The learned Judge of the Fifth District Court (who has been followed in his conclusions by a majority of the court,) after a very elaborate and able exposition of the authorities, was of the opinion that the contract partook more of the nature of the letting of industry, locatio operarum than partnership and that the defendant was not bound. It may be true, perhaps, that the defendant, as between himself and Steel ivas only a clerk; that he was bound to conduct the business as Steel directed, and was entitled to no voice in the management of the affairs, and was liable to be discharged by Steel at any moment, saving his right to claim an indemnity if he were discharged without sufficient cause.

But on the other hand, the engagement has some of the elements of a partnership in this, the defendant with extensive powers of administration brought into the concern his industry against Steel’s capital, and for this industry he was to receive one-fourth of the net profits. And he was subject to lose his entire services in case of loss.

The profits could not be ascertained until the debts were paid or deducted each year, and at the termination of his employment he had an action to compel Steel to account.

The contract we have to consider then partakes of the nature of letting, hiring and of partnership. Which shall control ? Under the civil and French law the contract would be construed with reference to third persons perhaps, as it would between the parties to the same, as the locatio operarum.

Bat the law of Louisiana must be consulted on this question. If the civil law prevails, the judgment of the lower court can be rightfully affirmed. If any other rules have been adopted they ought to be applied.

On the subject of what was intended by the Code in its reference to the commercial law, our predecessors said in 1833, that “ when the tribunals of this country were first called upon to interpret this and a similar provision in our law, there was great doubt as to what laws and usages of commerce reference was there made. It was finally concluded, though not without hesitation, that they must have had in view the usages and laws prevailing in our sister States, unless these laws and usages conflicted with the positive legislation of Spain, or were in opposition to the local usages prevailing in Louisiana. 'Whatever difficulty attended this decision when first made, there can be none in following it now. A considerable time has elapsed since it was made public. Contracts almost innumerable have been executed in reference to it. Rights have been repeatedly adjusted under its authority. Property to a large amount acquired in relation to it; and stronger than all, the legislature of the State by their silence on the subject, have authorized the belief that the court correctly interpreted the previous expression of their will.” The court concludes, “We must therefore look to the law merchant of the United States for the consequence attending acts such as are proved in this case on the defendant.” McDonald v. Millaudon, 5 L. R. 408.

This decision has been considered as settling the law in relation to commercial partnerships from that day to the present time. See Bank Tenn. v. McKeage, 11 Rob. 136. Pinton v. New Orleans and Carrollton Railroad, 3 An. 30.

But on the particular question before us, it appears to be conceded that the current of authorities under the commercial law, are adverse to the pretensions of the defendant. Wherever a party receives a compensation for services in the profits, as such, or in other words, wherever the party can call upon his employer to account in equity for the profits there, by the commercial law he is bound towards third persons as a partner. Vaugh v. Carver, 2 Henry Black, 246-7. Hisketh v. Blanchard, 4 East, 146. 3 Kent, 25 note b, 4 ed. Story, 35.

The case at bar is precisely such a case, and the judgment of this court has just been demanded upon the settlement of the account of profits between these parlies. Deshan has demanded and received, as he was entitled by his contract, the one-fourth of the net profits.

He was entitled to this therefore as a principal, that is, he had a direct claim for the one-fourth of the net profits as such. He was not to receive a per centage upon the profits which would be but a mode of ascertaining the compensation, but he was entitled to one-fourth of the profits themselves. He was, therefore, a partner; for his compensation was, (in the language of Smith, in his mercantile law,) dependant on them for existence.

Desban was interested in the debts, for they had to be paid before his net profits could be ascertained, and his agreement bound him for a share of the losses, for if the concern was unsuccessful, he lost his entire services. He ran the risk of losing his labor, and Steel the risk of losing his capital. The case comes within the summary of the common law as laid down in the opinion of the majority of the court. Mr. Justice Story says that, “ Where the agreement either expressly or by fair implication admits, that the parties are to share in losses as well as profits, that circumstance will ordinarily at common law be held to make them partners as to third persons, and in many cases also between themselves, upon the ground that such is the proper and essential accompaniment of a partnership, and that it is inconsistent with the notion that the share of the profits is designed to be a mere remuneration for services,” Story, \ 55.

In another place he says, “ The true meaning of the language on interest in the profits, as profits, (which has probably been borrowed from the subtle and refined statement of an eminent Judge,) seems to be, that the party is to participate indirectly, at least, in the losses as well as in the profits, or in other words, he is to share in the net profits, and not in the gross profits.” Story, g 34.

As heretofore observed, it seems to be conceded, that if the case were to bo governed by the rules of the commercial law that it would be with the plaintiff.

An examination of the authorities from the common law will not, I think, show that supposed inconsistency mentioned in the opinion of the majority of the court.

Of necessity in a commercial age, nice distinctions will always accompany the administration of justice, and courts have only to inquire whether such distinctions really exist, and in the event of their existence to enforce them.

I think I have shown that the commercial law has been recoguized by our courts as the law of Louisiana, and that it is in plaintiff’s favor.

If we examine such Articles of the Civil Code of 1825, as seem applicable to the case, we shall find that the provisions of the common law on this subject seem to have been adopted ex industria by the Legislature. They were not contained in the Code of 1808, and would seem to have been introduced for the purpose of rendering the law of Louisiana on this subject harmonious with that of our sister States.

Article 2772 declares that, “It is of the essence of this contract (partnership) that a profit is contemplated, and that each of the parties is to partake therein,” * -:«• « * _

Article 2784. A participation in the profits of a partnership carries with it a liability to contribute between the parties to the expenses and losses. But the proportion, like that of the profits, may be regulated by the stipulation of the parties, and where they make none, is provided for by law.”

Article 2785. “ A stipulation that one of the contracting parties shall participate in the profits of a partnership hut shall not contribute to losses, is void, both as regards the partners and third persons. But in the case of a partnership in com-mendam, hereinafter provided for, the liability to loss may be limited to the amount of stock furnished.”

Now, under our Code, the industry which the defendant was to furnish is of precisely the same dignity as money or any other capital. C. C. 2780. But if a capitalist had furnished money in any other form than in commendam, with an express agreement that he was not to be considered a partner, nor bound for losses, but should receive one-fourth of the profits, he would be held as a partner. Why should not the person whose only capital is his skill and industry, be subjected to the same liability particularly as he is daily violating the provisions of Art. 2820, which in no manner permits the partner in commendam to act as agents for the other partners ?

The Civil Code, therefore, makes a participation in the profits the criterion by which we are to judge whether an individual is or is not a partner. The cases cited from our own reports and relied on by the defence, viz : Bulloc v. Pailhos, 8 N. S. 174; 9 L. R. 317, and 4 L. R. 139, were controversies between the parties themselves, and what was said by the court in those cases has no relation to third persons.

I have no doubt that the commercial law, as it stood at the time of the adoption of the Code of 1825, is the law governing this case. And as it was adopted by the Legislature, it must continue the same, until repealed by the power which gave it force and vigor.

In my opinion, the judgment ought to be reversed, and rendered in plaintiff’s favor.


text:
    Succession of John Toy.
    The Act of 1855, regulating tile duties and powers of administrators, being highly penal, should be strictly construed.
    An executor or administrator, if he has funds to distribute before the expiration of a year from his appointment, may be called upon to distribute them after the time of delay provided by law has expired ; but if ho fails to obey the order of court, he cannot be subjected to the penalties of the Act of 1855, as he does not, under the Act, so far as relates to filing an account, become liable to its penalties until the expiration of twelve months.
    from the District Court of the Parish of East Baton Rouge, Wilson, J.

      Greeves & Seymour, for plaintiff. W. H. Sherborne, for defendant and appellant.
   Cole, J.

On the 26th May, 1858, Lafayette Caldwell, a creditor of the deceased John Toy, filed a motion, calling on Prendergast <& Jeremiah Toy, the son of John Toy, to render an account as testamentary executors of the deceased.

An order of court was granted, in accordance with the motion.

On the 2d of November, 1858, a motion was made to dismiss the executors, on the ground that they had failed to comply with the order of court.

On the 19th of November, 1858, an account was filed by Prendergast.

Upon trial of the rule to dismiss the executors, the District Court dismissed the rule, and the relator has appealed.

It appears that Jeremiah Toy cannot he held responsible for not filing an account, for he was not appointed till January, 1858, and had received no funds or property of the estate. The object of the ]aw is not to force an executor or administrator to render an account when there is nothing in his hands.

With relation to Prendergast, the judgment was correct, because the motion to file an account was made before the expiration of a year from the time of his appointment.

The order of court upon this motion was given before the expiration of the year.

The Act of 1855, to regulate the duties and powers of administrators, is highly penal, and must be strictly construed. Sess. Acts 1855, p. 78.

If the administrator or executor has funds for distribution before the expiration of the year from his appointment, he may be called upon to distribute them after the time of delay provided by law has expired. If he fails to obey the order of court, he cannot, however, he subjected to the penalties of the said Act of 1855, because the administrator or executor becomes liable to the penalties of this Act, so far as relates to filing an account, only at the expiration of twelve months. Acts 1855, sec. 4, p. 79.

The rule to dismiss the executor, because he had not obeyed the order of court to file an account, was based upon an order granted before the expiration of the year, and does not render him liable to the penalties of the Act of 1855.

Judgment affirmed, with costs.


author: Merrick. C. J.

text:
    Benjamin Weber v. Ludger Ory, Administrator.
    The right of action of an heir, to compel a partition of the immovables and slaves belonging to tho succession, in order that his portion may be sot off to him, as owner, is an immovable — and when such a right is conveyed by last will, the instrument must conform to our laws, or it cannot havo any effect.
    Where such a right was sought to be conveyed by a will made in the State of Missouri, in these words : £í I do hereby give anil bequeath, absolutely and unconditionally, to M. G. and to A. J., to have and to hold the same, unto them jointly and severally, that is to say, as joint tenants, so that all and singular, the properly hereby devised and bequeathed shall, upon the death of either of them, the said M. G. and A. J., descend, pass and belong to the survivor of them, and to the heirs of such survivor forever,”— Held: That such a disposition is a conditional substitution prohibited by our law.
    PPEAL from the District Court of the Parish of St. James, Duffel, J.
    XX Berault & Legendre, for plaintiffs. Johnson & Denis, for defendants and appellants.
   Merrick. C. J.

The principal question in this case is, whether the sum of §3,740 49, demanded, be considered to form a part of the succession of widow Ory, deceased, or whether the same is to be considered as personal property, and subject to the law of the domicil of Eugénie Ory, who died at St. Louis, Missouri. If the sum demanded can be regarded as a movable, dependent upon her succession at St. Louis, then the judgment must he affirmed ; if not, then we must further consider whether the will under which plaintiffs claim, does or does not contain a fidei commissum or substitution.

Widow J. B. Ory died in July, 1854, and an inventory was tahen at the instance of the heirs. An administrator was appointed in November following. In January, the testatrix Eugénie Ory, and her co-heirs of age brought an action of partition. A decree was entered, ordering the movables, immovables and slaves to be sold by the administrator of the succession ; the movables for cash, the land and slaves payable one-half in March, 1856, and the other half in March, 1857-.

The sale was accordingly made by the administrator on the 2d day of February, 1855. On the 3d day of July following, two days previous to her death, the testatrix made her will at St. Louis, under the forms of law of Missouri. It was admitted to probate in September following.

At the time the sale was made, in February, the administrator of the succession does not appear to have been in funds, or to have paid any debts. After the two instalments fell due, he proceeded to collect the money due the estate, and, in May, 1857, filed an account of his administration and what he called a tableau oí distribution. He charged himself with #39,583 24, amount of probate sale and crop, and claimed credit for payments made by him to the amount of #14,401 26, and proposed to pay certain other creditors, amounting to #2,737 02, and to disí tribute #22,442 96, the remainder, among the six heirs of the deceased, giving to each one #3,740 49}, the succession of Eugénie Ory being placed on the tableau as one.

This suit was brought against the administrator, to recover the above named sum of #3,740 49}, in October, 1857.

It is difficult to distinguish this case from the cases of Mercenaro v. Mordella, and Bone v. Sparrow, in 10 and 11 An. The question to be decided depends upon the condition of the estate at the time of the death of Eugénie Ory, on the 5th day of July, 1855. At this time, the administrator had not collected funds sufficient to pay the debts of the succession of Widow Ory, for the movables and the crop did not amount to a sum sufficient for this purpose. The rights of the heirs had not been fixed and settled, and the action of partition was as essential in order to ascertain and recover the rights of the heirs, as when first commenced. The heirs and administrator had made but one step towards a definitive partition, viz, a sale or licitation of the property. In order to complete the partition, a reference to a notary and the appointment of experts was necessary, in order that the map could be formed, the accounts stated, and deductions made, lots formed and drawn, or set apart, as required by law. Art. 1272, C. C., et seq. This, then, required a decree of homologation, before it could become final. The heirs too would be bound to each other for the warranties incident to a partition.

The testatrix had, therefore, at the time of her death, nothing more than an action of partition. There was no sum of money which she could claim as her own ; none of the debts due the succession were hers; in fine, there was no one thing dependent on the succession of her mother which she could call her own, and the immovables and slaves were liable to be brought back to the succession by the resolutory condition, in the event of non-payment of the price. All that she had was an action to have one-sixth part of her mother’s succession, after all collations were allowed, set off to her as owner. This action appears to us to be an immovable. 10 An. 776 ; 11 An. 185 ; C. P. 45, 164, 165 ; C. C. 463.

The form in which the administrator chose to present his account cannot change the situation of the parties. It has been repeatedly decided by the court, that an administrator cannot bind the heirs, at least when not cited, by a proposed tableau of distribution, wherein he proposes to distribute the proportion coming to each. In other words, he cannot make a partition for the heirs.

The defendants contend that the will under which plaintiff seeks to recover of the administrator, contains a substitution and fidei commissum. The clause of the ■will is as follows :

Item. As one of the heirs of my deceased mother, Marie Madelaine Ory, born Webre, late of the parish of St. James, in the State of Louisiana, I am possessed or entitled to an interest in the estate of my said mother, which consists chiefly of a plantation, together with certain slaves, and the stock on, and belonging to said plantation, situated in the said parish, all of which my said interest in the estate of my said deceased mother, be it real, personal or mixed property, and all other property whatsoever, and wheresoever situated, of which I may die seized and possessed, or to which I may be in law or equity entitled. I do hereby give, devise and bequeath, absolutely and unconditionally to Margaret J. Gallway, of " the city and county of St. Louis, in the State of Missouri, a member of the said order, and to Aloysia Jome, of the parish of Opelousas, I believe, in the State of Louisiana, a member also of the same order, to have and to hold the same unto them, jointly and not severally, that is to say, as joint tenants, so that all and singular, the property hereby devised and bequeathed shall, upon the death of either of them, the said Margaret J. Gallway and Aloysia Jouve, descend, pass and belong to the survivor of them and to the heirs of such survivor forever.”

If we have arrived at a correct conclusion in relation to the nature of the right conveyed by the will, then the instrument cannot conform to our laws as to its provisions, or it cannot have any effect. The testimony of two lawyers in Missouri had been taken, as to the effect of the instrument. One holds that it creates a joint tenancy, with a contingent remainder over to the survivor; the other, that it is a simple joint tenancy, by -which the survivor takes the whole estate. In the one case, neither can defeat the contingent remainder; in the other, either of the joint tenants may defeat the right of survivorship by a partition or sale of the property, before such right has accrued by the death of the other party.

As the instrument must have its effect in Louisiana, if at all, it must receive its construction by reference to our law. By the language of the will, it contains a conditional substitution. The predeceased is to preserve for and return to the survivor the one undivided half of the property bequeathed. As it cannot be known before the event, which one-half will be released from the charge by the condition annexed, the whole property is tied up until the condition happens.

The disposition of the will, therefore, appears to us to be prohibited by Article .1507 of the Civil Code.

We think, judgment must be rendered in favor of defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendants, and against the demand of the plaintiffs, and that the defendants recover costs in both courts.