text:
    No. 6952.
    Alfred S. Bass vs. Wm. R. Messick, Sheriff, et al. Alcus Scherck & Autey, Intervenors.
    The mere fact that one member o£ an ordinary, planting partnership is entrusted .with the management of the plantation, will not authorize him to make a claiion in payment of certaiu property of the partnership to one of the partnership creditors, and thus place the interest of his copartner, in said property, beyond the reach of other creditors of the.partnership.
    APPEAL-from the Seventh Judicial District Court, parish of Avoyelles. Ydist, J.

      Irion & Thorpe for plaintiff and appellant.

      Thos. Overton and E. J. Joffrion for defendant.

      H. A. Bordelon for intervenors and appellees.
   The opinion of the court was delivered by

Spencer, J.

Alcus Scherck & Autey having become owners by transfer of a judgment against J. W. Bass & Co., a planting partnership composed of J. W. Bass and Thomas T. A. Lyon, issued execution, and the sheriff seized a portable steam engine and other movables connected with it, and four mules, all at the time in possession of Alfred S. Bass.

All of said property, except the mules, belonged originally to J. W. Bass & Co., the mules to J. W. Bass.

J. W. Bass, who soems to have been the managing partner of Bass & Co., had employed his sons, Alfred S. Bass and D. W. Bass, as managers of the plantations worked by the partnership, and there seems no serious doubt that the firm was indebted to them in quite large amounts of money. The firm also owed their factors, Alcus Scherck & Autey, about $30,000 or more, and was evidently largely insolvent. In January, 1875, J. W. Bass, who subsequently confessed judgments individually in favor of his sons, transferred to Alfred S. Bass a number of mules, and the engine and tackle seized, and to his son D. W. Bass the four mules seized, in satisfaction pro tanto of their claims.

Tire sheriff having, as stated, seized the engine and machinery, and the-four mules in A. S. Bass’s possession, the latter enjoined the sale, making the sheriff alone defendant. Alcus Scherck & Autey thereupon intervened and joined the sheriff. A. S. Bass claims all the property as his own, except the four mules which he claims as lessee of his brother.

The defendant and intervenors plead a general denial, and that the property belonged to the firm of J. W. Bass & Co., and that plaintiff’s title, if any he had, was fraudulent and simulated. The seizure was made in September, 1876.

The evidence satisfies us, as it did the district judge, that these clations en paiement were not simulations, but real contracts, with valid considerations to rest upon. So far, therefore, as they transferred the property and interests of J. W. Bass, they could not be attacked by seizure, however fraudulent they may have been as to other creditors over whom preference was thus given.

But; as before stated, the property transferred to A. S. Bass and seized by the sheriff belonged to the partnership of J. W. Bass & Co., an ordinary planting association. Plaintiff’s counsel contends that as J. W. Bass was the managing partner he had the right to sell and dispose of the partnership property in liquidation of the partnership debts. It is not pretended that J. W. Bass derived any such authority from the articles of partnership; nor that any special power was ever given him by his partner Lyon to do so. True, it is shown that, by Lyon’s acquiescence and perhaps consent, J. W. Bass managed and administered the partnership business, but we do not think the power to alienate the property composing the capital of the firm can be inferred or implied from this fact. We think that it clearly results from articles 2867 and -2870 of the Civil Code that the power of administration which carries with it that of alienation must be specially given in writing, either in the articles of partnership or otherwise.

It is further contended that Lyon was advised or know of these transfers by J. W. Bass to his sons, and made no objections. J. W. Bass so swears, but Lyon, who seems to be without interest in the matter, swears that they were made without his knowledge, consent, or acquies•cence. A. S. Bass swears that Lyon saw him. using the things for his own purposes, but admits that he does not know that he was aware of their having been transferred to him by his father. Another witness swears to a conversation with Lyon, but speaks hesitatingly about it and at most says that Lyon knew of the transfer. We think the district judge correctly held that Lyon’s half of the property was not conveyed hy the acts of J. W. Bass.

We think the evidence shows that the gin-stand seized was bought for A. S. Bass and paid for by him, and is his separate property. The judgment appealed from must be amended so as to perpetuate the injunction as to it. We decline to allow damages either way, as we think the parties have both been partly right and partly wrong, and may therefore well compensate their respective damages.

It- is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to perpetuate the injunction as to the gin-stand in its entirety, and that in other respects the said judgment bo affirmed; the costs of appeal to be borne by appellees.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 6723.
    J. G. E. Aurich vs. Geo. G. Wolf & Levi. Joseph Wolf, Intervenor.
    Whore the lease of a store-house is taken in the name of one person, but is really taken, with the full knowledge, and consent of the lessor, for the exclusive use, and benefit of a third person, such third person will be deemed the real lessee.
    The property of a party who, to the knowledge and with the consent of the lessor, is the real, although not the nominal lessee, can not be seized under a writ of provisional soizure issued in a suit against the nominal lessee, and directed solely against the property of the nominal lessee.
    The interlocutory decree of the lower court maintaining a provisional seizure may, on the general appeal of the ease on the merits; be reviewed by this court.
    ^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      Hornor & Benedict and M. M. Cohen for plaintiff and appellee.

      B. F. Jonas and Labatt, Aroni & Clinton for intervenors and appellants.

      Jas. Graham, curator ad hoc, for defendants.
   The opinion of the court was delivered by

Egan, J.

The substantial facts of this case as they have impressed us are, that the defendants were merchants in good credit and doing a large business in the city of New Orleans in 1872. Joseph Wolf, a brother of George G. Wolf, came to New Orleans a stranger and desired to lease a store-house in which to open a mercantile business. He-selected No. 633 Magazine street, the property of the plaintiff, with whom he agreed upon a lease for two years and ten months from the first of December, 1872. Being, however, a stranger to Aurich, and it being necessary to give security for the payment of the lease price, $115 per month, and his brother George G. Wolf being prohibited by the-terms of the articles of partnership between him and his partner from becoming surety, he agreed — his partner being at the time absent — to take the lease and sign the notes in the name of his firm, which was accordingly done, although the lease was for the benefit and use of Joseph Wolf, and not of George G. Wolf & Levi. The evidence of the notary and other witnesses" sufficiently establishes that all this was done with the full knowledge and consent of the plaintiff. The notary swears that Joseph Wolf and Aurich went together to his office and had him to draw the lease; that they met there several times before they came to the final conclusion; that he “ understood that Wolf rented the place for a crockery store in the course of conversation without any reference to making out the lease.” That there was nothing said about its being a branch of the down-town store. That “Joseph Wolf” is the one he refers to, and that George G. Wolf was never there until he came there to sign the lease. For a time it appears that the notes were presented to and paid by George G. Wolf & Levi, and subsequently repaid to them by Joseph Wolf. After that Joseph Wolf was otherwise-assisted by his brother or his brother’s firm until he had fairly established himself in business. When Aurich grumbled at receiving certified checks while the banks were suspended, he was told by George G. Wolf & Levi to present the notes for payment as they fell due directly to Joseph Wolf, which he did from that time, and they were regularly-paid to him by Joseph Wolf, the last payment being made on the fourth of June, 1874, of all rent or lease price then due. . This was only four days before the institution of this suit. It appears that George G. Wolf & Levi failed for a large amount in the fall of 1873. That a judgment-of over $100,000 was recovered against them by one of their creditors, under which their entire stock of goods was seized on the 12th of January, 1874, and sóidas soon'after as possible, beginning, according to the sheriff’s return, on the twenty-fifth of February and ending the sale on the eleventh of March, 1874, and the writ returned only partly satisfied and no other property of the defendants being found, although as appears from the evidence, from sixty to eighty thousand dollars was still due upon the judgment after the sheriff’s sale. This of course put-an end to the business and firm of George G. Wolf & Levi, the former of whom shortly after left Now Orleans and returned to Europe, where-he has since resided, and the latter, Levi, went into the employment of another house in New Orleans as clerk, and so continued, as appears from the evidence. Meanwhile, Joseph Wolf continued his business at No. 633 Magazine street, the store leased from the plaintiff, and paid regularly, and the plaintiff as regularly received, his monthly rent — the last payment so made being, as before stated, on the fourth of June, 1874, only four days prior to the institution of this suit. All of these facts were notorious, and could not have been unknown to so vigilant a creditor as the plaintiff, who lived next door but one to the property occupied by Joseph Wolf, not only as a store-house but also as a residence for his family. The failure of George G. Wolf & Levi, the public sheriffs sale of all their goods, and the consequent extinguishment of the firm, the departure for Europe of George G. Wolf and the employment of Levi as a mere clerk in another house in the city, all of which occurred several months before, do not seem to have alarmed the plaintiff. Neither did the fact which seems to have been known to him that Joseph Wolf had repeatedly done, as seems to have been his custom, and that of other merchants, sent for sale to auction marts in the city goods which he found accumulating upon him and not salable in the ordinary course of business. Nor _ did he become alarmed at the fact that Joseph Wolf had a month or two before shipped to Chicago for more ready and profitable sale a quantity of goods purchased by him at the sale of the stock of George G. Wolf & Levi and otherwise at auction in this city, and perhaps some few goods from his store, and had himself gone with the goods to Chicago to attend to their sale, and had been absent from New Orleans on that account for several weeks, during which time the rent note for the month of April fell due and remained unpaid for several days, until the return of Joseph Wolf, when it was immediately paid by him. On the eighth of June, however, only four days after the payment of the note due on the first of that month, the plaintiff Aurich filed his petition in the Fourth District Court of Orleans against George G. Wolf and Isidore Levi only, and not against Joseph Wolf, setting forth the lease to George G. Wolf & Levi of the store and dwelling No. 633 Magazine street, and the execution of thirty-four notes for the lease price, of which he claimed and annexed the sixteen notes that remained unpaid, the first of which would fall due on the first of July following, and the others in their order on the first of each successive month thereafter; each note being for $115, with eight per cent interest from maturity. He further claimed a lien, privilege, and pledge upon the goods and other property in the two-story brick store and dwelling 633 Magazine street, alleged the recent dissolution of the firm of the lessees and the selling out “ by the sheriff ” of “ their large stock of goods in another and larger store, occupied by Joseph Wolf as a store and dwelling, of which he claims that 633 was “ a branch conducted by Joseph Wolf for George G. Wolf & Levi, although the name on the place was Joseph Wolf & Co.” He also alleged that George G. Wolf “ has departed from this city for Europo and Isidore Levi is now employed as a clerk in another establishment in this city;” all of which, as we have already seen, occurred several months before, and without any action on the part of the plaintiff or any evidence of apprehension of the loss of his rent, and now on the eighth* of June he alleges and swears that he has good reason to believe that his said lessees, George G. Wolf & Isidore Levi, whom alone he sues and cites or prays to cite, and against whom alone he prays for judgment in solido, “ will remove the furniture or property upon which he has a lien or privilege out of the premises, and that he may be thereby deprived of his lien,” and that he has frequently demanded of the parties some satisfactory explanations and arrangements, but never could obtain either from them.”

These are all of the allegations as to any facts relating to or acts or conduct on the part of the defendants and alleged lessees, George G. Wolf and Isidore Levi. The petition however further alleges that “ Joseph Wolf is rapidly and extensively selling out the goods and other property in the store and dwelling leased to George G. Wolf & Levi, and that placards have been for more than a week past extensively placed on said store, announcing arnoDg other things that the goods therein will be sold at half the cost of the goods at the factory, and'that at the expiration of fourteen days the balance will be sold at auction to make a clean sweep.” Upon these allegations a writ of provisional seizure was sued out and goods, etc., in the house seized to the value, according to the sheriff’s inventory, which does not seem, to have been, taken with great minuteness, of between eight and nine thousand dollars, and according to other evidence in the record to considerably more than that sum. On the sixteenth of the same month, about one week after the seizure, Joseph Wolf filed an intervention claiming to be the occupant and lessee of the store and dwelling, and that he had occupied and carried on a commercial business there since the winter of 1872-3 with the full knowledge and consent of the lessor and owner, John G. Aurich; that he leased the same from George G. Wolf & Levi, lessees of plaintiff, and that he had regularly paid the monthly rent notes; that for many months past Aurich had regularly presented them to him for payment at his said place of business, and has recognized and treated him, said Joseph, as tenant and sub-lessee of said premises; and has voluntarily and by verbal agreement reduced the monthly rent to one hundred dollars, and from that time had claimed no more, and that all the rent due up to the first of June, 1874, had been paid, and no more would become due till the first of July. ' He alleges his own sole ownership of the goods and other property; that George G. Wolf & Levi were neither owners thereof nor occupants of the premises, nor ever had any interest in them; that they were worth over ton thousand dollars, and all paid for; that Aurich well knew the facts when he sued out the provisional seizure; that the allegations of the petition and the affidavit were false to the knowledge of Aurich; that the rent of the building was all paid, *and Aurich had by law no lien or. privilege on said goods and merchandise. He further alleged that he had no intention to remove the merchandise and other property out of the premises, and prayed that the provisional seizure be set aside; that his right to claim damages bo reserved, etc. On the thirtieth of the same month Aurich filed his answer to this intervention, and “ specially denies that said intervenor is the sub-lessee of said- store and premises in question as by him represented and claimed in his petition of intervention; but on the contrary your respondent affirms and charges that although said lease was taken in the name of George G. Wolf & Levi as lessees of said store and premises, that the same was so taken at the request, with the full knowledge and for the benefit of the intervenor; that he profited by said lease; is the real lessee and is bound by the terms and condition thereof. Further answering, he says that the goods, merchandise, etc., are not the property of intervenor, but of George G. Wolf & Levi, who fictitiously transferred them to the intervenor to defraud their creditors, and adds “ and your respondent reiterates the charge ‘that said lessee’ will remove the furniture, etc., on which he has a lien, and he may be thereby deprived of said lien.” On the twenty-eighth of September, 1874, Aurich filed a supplemental petition, alleging that the lease was made for the benefit of Joseph Wolf, who expressly assumed all the obligations of the original lessees under the lease, and is liable as well as the said George G. Wolf & Levi for the lease price as claimed in the original petition; “that hewas not until lately informed, of said facts and of the assumption by said Joseph Wolf of said obligations, and consequently did not so charge him in his original petition, his knowledge on the subject having been obtained since the filing thereof,” and prays as in his original petition, and also for citation to and judgment against Joseph Wolf; also for the same amount claimed by him in his original petition, “payable in such manner and on such terms and times as the law directs in such cases, and corresponding with the dates of the maturity of the rent notes filed in the case.” The answer of Joseph Wolf to this supplemental petition was simply a general denial. An attorney ad hoc was appointed and answered for George G. Wolf, the absent defendant, also •by a general diMiial. Isidore Levi answered denying the indebtedness •of himself or his late firm for the rent of 633 Magazine street, and also denying that they have any interest in the goods or property therein, which he avers belongs to Joseph Wolf, to whom respondents’late firm sublet the said premises with the knowledge and consent of plaintiff, and that no rent is due said firm by said Joseph Wolf.

On the thirteenth of November, 1874, judgment was rendered in favor of the plaintiff against Isidore Levi personally for the amount of his demand, with lien and privilege upon the property provisionally seized, execution to be issued from month to month as each and every note falls due. This judgment was, however, subsequently set aside and a new trial granted. In February, 1875, the case was tried by a jury as to George G. Wolt and Joseph Wolf, and there were verdict and j udgment in favor of the intervenor and defendant, dismissing plaintiff’s original and supplemental petition, setting aside the provisional seizure, and reserving the intervenor’s right to claim damages for the illegal seizure. The plaistiff filed an application for and obtained a new trial, alleging several grounds for the same, only one of which, as it contains a judicial admission which bears necessarily on the issues before us, it is necessary for us to notice. That admission is in these words : “ That said original lease was made exclusively for his (the intervenor’s) benefit and advantage, and that the same so inured to his advantage and benefit that he is the lessee of plaintiff, and to be treated and considered as such.” This is not only a reiteration of the averment and allegation contained in the answer of Aurich to the intervention and his supplemental petition that Joseph Wolf was his lessee, but it goes further and distinctly contradicts the allegations and affidavit upon which the provisional seizure ■was sued out, by alleging that the lease was made exclusively for and inured exclusively to the benefit and advantage of Joseph Wolf.

Indeed, this contradiction is apparent from the answer and supplemental petition in which Joseph Wolf is alleged to be the real lessee. Aside, then, from the evidence on the subject, which wo think supports the truth of these later allegations of plaintiff and shows that to the knowledge and with the assent of all the parties while the lease was taken and the notes given in the name of George G. Wolf & Levi, who thereby became bound for the lease price, their obligations were in fact those of suretyship for Joseph Wolf, the real lessee, and it is evident that the plaintiff himself so understood it. It may be said, however, that Joseph Wolf claimed to be sub-lessee, and that one judicial allegation offsets the other; or, in the language of the books, “leaves the matter at large.” If this be true, then the evidence is that he was in form sub-lessee, under a written sub-lease from George G. Wolf & Levi, and that he had fully paid all the lease price due up to the date of seizure, and was not, therefore, liable to s\fit or seizure; while, on the other hand, if he was the real lessee there is no affidavit or provisional seizure against him or his property. The matter was not, however, left at large, for the plaintiff thought proper twice again to reiterate his judicial allegations, and, as we have seen, the last time in terms too strong to admit of further question as to the relation of the parties to each other. We think that not only the allegations of the plaintiff, but the evidence contemporaneous with the lease, and the subsequent conduct of the parties, as established by several witnesses, among whom is the plaintiff himself, show that the real relation between him and Joseph Wolf was that of landlord and tenant, lessor and lessee. We have examined with care the various bills or invoices of goods purchased by Joseph Wolf from George G. Wolf & Levi, as well as other persons, and we find nothing suspicious about them. It appears from marginal notes and memoranda that they were carefully scrutinized and often corrected and complaint made of over charges, as is not unfrequent among merchants. These facts, as well as the form of the bills and the direct and uncontradicted statements of witnesses in the record, all go to establish that Joseph Wolf was a real purchaser, and was looking after his interest as such. The fact of George G. Wolf & Levi taking out in their own name some of the policies of insurance is explained by other evidence, but is easily accounted for, as they seem to have sold largely to Joseph Wolf on a credit, and dorxbtless had an interest in having the stock insured. They are not shown to have ever been in possession or to have exercised any control over the business of Joseph Wolf. Their business both began and ended before his; and at the very time this suit was instituted not only had George G. Wolf & Levi failed and been sold out by the sheriff, but according to the allegations of plaintiff himself in his original petition, George G. Wolf had left the country and gone to Europe, and Levi had quit business on his own account and was clerking in another establishment in this city, and did not then or at any other time appear to have the slightest connection with or control over the business of Joseph Wolf, or Joseph Wolf & Co., as it seems he chose to do business under that name, although he had no partner. All the parties, George G. Wolf, Levi, and Joseph Wolf, swear positively that George G. Wolf & Levi had not at any time any interest in the business carried on at 633 Magazine street by Joseph, and the attempt by Aurich to show by his own evidence that George G. Wolf told him he wanted the store for a branch establishment of their down-town house is entitled to but little consideration in view of his own contradictory allegations and the other testimony in the record. A loose conversation with George G. Wolf to similar effect is detailed by one other witness but is not supported by the facts and circumstances of the case, and besides being, (especially under the circumstances detailed), entitled to but little credence in itself is flatly contradicted by the other party to the alleged conversation. We find nothing suspiciotis in the fact that George G. Wolf, who was already established in business, and seems at the time to have had the means and the credit to do so, assisted his brother to procure a place of business and to establish himself. Nor is it surprising that his partner at least tacitly-acquiesced in his so doing on and after his return home. Had he been in the city at the time of the lease it might possibly have been arranged otherwise; but he was not, and when he did return he made no objection to what was done.

The assistance rendered Joseph Wolf was natural and commendable and very frequent, especially between persons of that lineage standing in such relation to each other. The allegations of the plaintiff that he only recently, before filing his supplemental petition, ascertained the facts therein alleged, is not supported; but on the contrary, is contradicted by the evidence, and even by his own previous judicial admissions. He can not then claim any benefit, if such there be, from such state of facts. The view taken by the judge a quo in his charge to the jury, and in argument before us by plaintiff’s counsel, rests upon the doctrine of estoppel, and might have had greater force if it were not evident that the plaintiff was in no manner deceived by the lease being taken in the name of George G. Wolf & Levi, by the consent of Joseph. The evidence of the notary who drew the lease and that of other witnesses, and the conduct of the parties, leave no room to doubt the plaintiff’s knowledge of the facts from the beginning. We think the real lessee was Joseph Wolf, that the property provisionally seized was his, and that the plaintiff knew, or had reason to know, these facts when he sued out his provisional seizure, and made his affidavit, and brought his suit against George G. Woif & Isidore Levi, only. Nowhere in the record, either in the'original or supplemental petition, is there any allegation or affidavit for provisional seizure as against Joseph Wolf or his property, and without it the seizure could not be and was not legally made and must fall. We have not overlooked the extensive posters and other acts or facts relating to him, and which it is claimed were sufficient to warrant the suing out of the writ as against Joseph Wolf, about which we are not, however, called upon to express an opinion, as no such use was made of them or action taken against him based upon them. It is, however, urged by the able and experienced counsel for the plaintiff, that we can not now go into the question of tlie provisional seizure, as it had already been adjudged in favor of the plaintiff upon a rule in the-court below to set aside the provisional seizure, from which no appeal ivas or could now be taken. However plausible this may seem, it is now too well settled that the action of the court below in interlocutory matters comes before this court for review on the general appeal of the whole case, whether an appeal could have been taken from the particular order or not.. In this instance we think no appeal lay in favor of the party against whom the interlocutory order was made. Had the court dissolved the writ the plaintiff might have appealed, but not so the defendants or intervenor; and the latter may as well now invite our attention to this as to any'other erroneous ruling in the court below anterior to final judgment as well as in that judgment itself. The conclusions to .which we have arrived make it unnecessary to notice the several bills of exceptions reserved in the progress of the ease. Had exception been taken to the prematurity of the plaintiff’s demand against Joseph Wolf we would have been compelled to sustain it. We do not regard the allegation that he was sub-lessee and had fully paid his rent as such exception. Neither do we regard him as sub-lessee in fact, though he was so in name. We think, however’, that it is sufficiently shown by the testimony of other witnesses, and even of the plaintiff himself, that from the time of general depression in the winter of 1873-4, when other landlords were reducing their rents,.the plaintiff did agree with Joseph Wolf to reduce his rent from $115 to $100 until business revived; and that he received rent several times at the reduced rate. There is no evidence that trade did revive, but rather the contrary,- and he must be held to his reduction as agreed on. , It is further urged that Joseph Wolf paid one month’s rent, $100, to the sheriff, which has accrued or will accrue to the benefit of plaintiff. The sheriff had in hand no writ authorizing the reception of this money, which was, therefore, no payment to the plaintiff. The amount is still the property, of Joseph Wolf. It also appears that he tendered to plaintiff, through a notary, in the presence of two witnesses the sum of seven hundred and fifty dollars, and repeatedly, through his counsel, offered to pay the other rent notes as they fell due, but the plaintiff would not receive it. This continued up to the termination of the lease. It does not appear, however, that the money was deposited, and the intervenor and his counsel admit his liability for the rent, at the rate of one hundred dollars per month, with eight per cent per annum interest from the maturity of each month’s rent remaining unpaid.

Under this state of facts, and considering he was not in default when sued, he is entitled to be relieved from costs, but not from interest. The only part of the case before us results from a verdict and judgment after several trials, with varying fortune, in favor of the plaintiff, Aurich, against Joseph Wolf, on the intervention and the main suit.

It is therefore ordered, adjudged, and decreed that the verdict and judgment in the court below be and they are avoided and set aside; that Joseph Wolf be decreed to be the owner .of the property provisionally seized; that the provisional seizure sued out in this case be and it is dissolved, and the seizure under it released at the cost of the plaintiff, Aurich; and. that said plaintiff do have and recover from the defendant and intervenor, Joseph Wolf, the sum of sixteen hundred dollars principal debt, with eight per cent per annum interest on one hundred dollars thereof from the first day of July, 1874, and on each remaining hundred dollars as it matured according to the lease from the first of. each succeeding month thereafter until and including the first day of October, 1875, for the maturity of the last installment, until paid, and that his lessor’s lien and privilege be recognized on any property subject to it which may be found. It is further ordered and adjudged that all costs of both courts be paid by plaintiff, J. G. E. Aurich.


author: DeBlanc, J. Egan, J.

text:
    No. 6671.
    Henry Pinard vs. M. M. George. C. C. Haley, Surety.
    An advertisement that “ all the judgments” belonging to the succession of a certain decedent will be sold, is sufficiently specific to authorize the sale of óvory sueh j udgment.
    Neither the judgment debtor of a succession, nor the surety on the appeal bond of such debtor, is entitled to notice of the public sale of the judgment against sueh debtor, made-in the course of administration.
    The surety on an appeal bond, when his principal has been cast on appeal, may be proceeded against by rule for the amount of the judgment when the uneontradieted return of the sheriff on the fl. fa. against the principal, shows that after diligent search the principal could not be found; that the surety failed to point out property of the principal after being called on by the sheriff to do so; and that the sheriff could find no property of the principal to levy on.
    Until traversed, and' disproved, the declarations of the sheriff in his return on a writ of fl. fa. are taken to be true.
    The surety on an appeal bond can not escape his liability on the ground that the sheriff’s return on the fl. fa. against the principal on the bond was prematurely made, unless ho proves that in some form or other that premature return has inurod to his injury. To the extent of such injury, and only to that extent ho would bo discharged.
    ■Where the attorney of the plaintiff in execution instructs the sheriff to maleo a return of nulla bona, it relievos the sheriff, from the necessity of calling on the plaintiff to point out property of the defendant.
    ^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      Lougue & Fernandez for plaintiff and appellee.

      J. Livingston for surety and appellant.
   The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the application for a rehearing by Egan, J.

DeBlanc, J.

During the pendency of this suit between the original parties, Henry Pinard died. His widow prosecuted said suit as natural tutrix of her children and administratrix of the deceased’s succession, and — as such — obtained against the defendant, M. M. George, a judgment for $451, with interest. From that judgment, the said M. M. George took a suspensive appeal, and furnished bond in the sum of ■$800, with Cornelius C. Haley as her surety. The judgment appealed from was amended by this court, and increased to $687, with legal interest from the seventh of February 1873.

On the judgment thus rendered execution issued, and — on said execution — the sheriff made the following return: “Beceived February 7th 1877. After diligent search and inquiry, could not find the defendant. I was credibly informed that she was absent from the city., I called upon C. C. Haley, security on the sequestration bond, to point out property belonging to defendant, which he failed to do, and the sheriff could not find any property upon which to levy. I, therefore, return this writ no property found, by order of plaintiff’s attorney.”

This return, signed by a deputy sheriff, was made on the twentieth •of March 1877, and — on that day — on application of the widow and heirs of the late Henry Pinard, one of whom is the transferee of the .judgment rendered against M. M. George, Cornelius C. Haley was ordered to show cause, on the third of April 1877, why he should not be held liable, as surety, on the appeal bond herein mentioned for the sum of $897.69.

He appeared, and — for answer to the rule taken against him— alleges:

1. That the plaintiffs in said rule were not the plaintiffs in the original suit.

2. That there is no evidence of the pretended transfer of the judgment against M. M. George, and that — if any such transfer does exist, he was not notified of it.

3. That no demand was made upon M. M. George, the defendant in the original suit, and that he can not be held liable as surety, and — if at all — but for the amount of his bond, and not until all legal means have been exhausted to recover from said defendant.

He was condemned to pay an amount equal, in principal and interest, to that of the judgment rendered against M. M. George; said amount not to exceed that of the bond signed by him as surety. He appealed, .and plaintiffs in rule — considering the appeal as frivolous — pray, on that account, to be allowed damages against him. . .

The two first grounds of the surety’s defence are not sustained by the facts. It is admitted that Henry Pinard, the son of the original plaintiff, is the transferee of the judgment against M. M. George, and that transferee — with the widow and heirs of said plaintiff — took the rule made absolute against appellant. We have before us, not only the adjudicates of the aforesaid judgment, but every one of those who, heretofore, had an interest in it.

Respondent complains that the advertisement that a sale was to be-made of the effects and credits belonging to the succession of the original plaintiff, was insufficient and not such as the law requires. That advertisement was as follows: “All claims and judgments in favor of Henry Pinard, deceased, a list of which is on file in this, the auetioneer’soffice.” Neither he nor defendant George were entitled to notice of that sale, and — as they knew that a judgment had then already been rendered against said George and in favor of the legal representatives of said Pinard, they could not be deceived as to the fact that said judgment was certainly included in the advertisement of the intended sale of “ all judgments in favor of Henry Pinard, deceased.”

Is the sheriff’s return on the execution sufficient to hold respondent as a surety on the appeal bond? That return mentions five distinct facts- — 1: After diligent search, the sheriff could not find defendant George — 2: He was informed, and so believed, that defendant was absent from the city — 3: He called upon Haley to point out property belonging to said George, and he failed to do so — 4: He could not find any property of defendant upon which to levy — 5: And, on the twenty-first of March returned the writ which he had received on the seventh of the preceding month.

Sheriffs are not required to accomplish impossibilities, and — in this case, the sheriff has done all that he could justly have been asked or expected to do. He diligently searched for and found neither the defendant, nor property belonging to her: he applied to Haley, who was her surety on two bonds — one furnished by her for the release of furniture sequestered by Pinard — one to obtain a suspensive appeal of the judgment obtained against her, and he failed to point out any property of the principal on said bond. Ve presume that, as Haley, the plaintiffs and their attorneys were unable to point out any, and — under the instructions of said attorneys, the writ was returned.

The sheriff’s return stands uncontradicted: his statements are not denied in the answer of the surety, not refuted by any evidence, and that return creates at least a presumption that the principal on the bond is no longer in the city)- and that she has no property which could or can be seized by the sheriff. Though not conclusive, though it may be traversed, that presumption justifies the creditor’s action against the surety, and shifts the burden of proof. To avoid the effects of such a return, the surety must allege and prove its falsity; he must allege and prove that his principal does own property, rights or credits — which can be levied upon, and that he informed the sheriff of that fact: otherwise, many a bond of appeal would never mature.

• In the case relied upon by the surety’s counsel, and reported in 10th R. three executions had been issued: under the last one, no demand for property of the debtor appeared to have been made of any one: the-return on a previous one did not show that a demand had been made of plaintiff, his agent or counsel, and the declaration in that return that no-property could be found, was contradicted on the trial. The demand on a plaintiff in execution is intended to prevent an improper return, one in the interest of the judgment debtor. When the sheriff has been unable to discover, the surety unable to -point out any property of the defendant, and the creditor’s counsel orders the return of the execution, we are bound to presume that he did so after the required demand by the sheriff, after having ascertained that defendant had no property which could have been seized.

Haley’s counsel contends — in his printed argument — that the execution against defendant George has been returned too soon to fix the liability of his client-as a surety. In the case of Duncan Stewart vs, Charles Lacoume, decided on the seventh of this month, we said: Had the surety on the bond proven that — on account of such a premature return — any property which could have been seized from the date of that return to that fixed by law and the writ for said return, was no-longer subject to said writ, or had the surety proven that he has been in any way injured by said hasty action, he could certainly claim that, to the extent of the injury sustained, he has been discharged from his obligation.

In the case of A. H. Gale & Co. vs. Geo. W. Doll, our predecessors, discussing the same question, held that a similar defence could not avail the surety, because he had not shown in what he had been injured —and, in that case, the writ received by the sheriff, on the fifth of January, had been, by order of plaintiff’s counsel, returned on the twelfth of said month:

28 A. p. 718. Ante. p.

We are not inclined to discourage the exercise of the constitutional privilege of appeal, but when that privilege is used to delay or defeat the enforcement of a just claim, those who sign the bond of appeal, whether as principals or as sureties, should remember that — in so doing. —they assume a liability and contract an obligation.

We do not consider the appeal as frivolous, and merely affirm the judgment with costs.

On Application for Rehearing.'

Egan, J.

We are urged to grant a rehearing in this ease on the ground that the sheriff’s return does not show that the fi. fa. was returned nuUa bona after demand upon the plaintiff as well as the defendant — that the law requires a demand upon both parties before such return. It is only necessary to add to what was already said in an opinion heretofore read that this ground of objection was not set up In the answer of the surety to the rule, and that the sheriff’s return is accompanied by the written instructions of plaintiff’s attorney, which are referred to in the return itself. These instruct the sheriff to return the fi. fa. “No property found” after demand upon both parties. It was by virtue of this order that the writ was returned. A demand upon the attorney was for this purpose a demand on the plaintiff. We think, from all the facts in the record, that the law was substantially complied with.

It is therefore ordered that the rehearing asked for is refused.


author: Spencer, J.

text:
    No. 7003.
    Mrs. Euphrosine Blake et al. vs. the Minors Frank Kearney and Ann Eliza Lake.
    The existence of a succession free of debt can not be terminated, and’its administration avoided, and the jurisdiction of the probato court thereby divested, by any agreement of the heirs to enter into possession of and divide the succession property, when one of the heirs is a minor, represented by a dative tutor, and one of the major heirs demands an administration.
    PPEAL from the Parish Court of Iberville. Crowell, 7.

      Barrow & Pope for plaiátiff and appellant.

      Samuel Matthews for defendant.
   The opinion of the court was delivered by

Spencer, J.

This is an action brought in the parish court of Iberville to partition the succession of Adeline Dupuy, Widow Eenn, among her descendants, children, grandchildren, and great grandchildren.

The minors, Frank Kearney and Ann Eliza Lake, having no tutors, Richard A. Kearney, the father, was appointed tutor ad hoc to his son Frank, and A. Petit tutor ad hoc to Ann Eliza Lake. The facts are as follows: After the death of the ancestor, Adeline Dupuy, her heirs of age and the minors (some of whom are declared to have been emancipated, and one of them, Ann Eliza Lake, to be under dative tutorship of said Richard A. Kearney, who assumes to represent her), entered into an agreement by private act, whereby they declare and fix their respective interests in the estate, enumerate its effects in detail,, and, to avoid the expenses of a judicial settlement, they, “the heirs of age and emancipated, and the, said R. A. Kearney, assuming the entire responsibility of this act as far as it regards the interests of his ward, Eliza Ann Lake,” do covenant and agree that said R. A. Kearney be constituted tho agent of said heirs, with full authority to liquidate said estate, to sell its effects, to pay its debts, and - thereafter to distribute to the heirs the balance according to their several rights, etc. This agreement is dated October 24,1874. On the same day certain of the heirs acknowledge to have received, by way of distribution, from Kearney the sum of $250, being the balance of cash on hand belonging to the estate, after paying certain debts.

Richard A. Kearney, cited in the present suit as tutor acl hoc for his minor son Frank, appeared and excepted to the jurisdiction of the parish court, on the ground “that the heirs of Adeline Dupuy have long since entered into possession of the property of her estate, have sold a portion thereof and partitioned among themselves a part thereof, and have done acts of heirship and ownership which show an acceptance, pure and simple, and a mingling of the patrimony, so there is no succession remaining over which this court has jurisdiction to decree a partition,” etc., “the property, of said estate to be partitioned exceeding $500 in value.” It seems that the plaintiff, Euphrosine Blake, has caused lierself to be appointed administratrix of the estate of the deceased; but the date and circumstances of her appointment are not stated. The parish judge sustained the exception and dismissed the suit, and plaintiffs appeal.

Tho sole questions, therefore, are, where some of the heirs are majors accepting unconditionally and some minors necessarily beneficiary, and where there are no debts, can these heirs by agreement enter into possession and terminate, extra judicially, the existence of an estate where one of the majors demands an administration? 1 Will such agreement and possession defeat a subsequent administration and take the estate out of the hands of the probate court?

C. C. 1047 provides: “If there bo several heirs to a succession, some of whom have accepted unconditionally, and others claim the benefit of the term for deliberating (benefit of inventory), the judge of the place where the succession is opened shall, notwithstanding, cause an inventory to be made, * * and shall appoint an administrator to manage until a partition of the same be among the heirs.”

A minor, ex necessitate legis, claims the benefit of inventory. The Code directs, therefore, that an administrator shall be appointed to estates in which there are minor heirs concurring with majors who accept unconditionally. The only exception to this rule we have lately had occasion to review in the case of Soye vs. Brice, not yet reported. It is to the effect that the natwral tutors of minor children, may as such take possession of and administer the estates of the deceased parents of such children, unless and until creditors or heirs of age demand the appointment of an administrator.

It is admitted that plaintiff, Euphrosine Blake, has demanded to be and been appointed administratrix of.the estate. We do not consider the acts of the major heirs as affecting the interests of the minors who were totally without power by themselves or tutors to accept unconditionally the estate. We think the probate court has jurisdiction of the succession, which has never ceased to exist, because the minors were without power to do, extra judicially, the acts necessary to terminate it. It is now the well-settled jurisprudence of this State that where heirs of age are permitted to take possession of an estate without an administration, and to partition or dispose of its effects among themselves, the estate ceases to exist and the patrimony of the deceased is lost by confusion with that of the heir. A succession is an ideal being, a unity. It can not exist as to one heir and be extinct as to another. To terminate the existence of a succession the heirs must all be sui juris, and have capacity to render themselves, by their acts, unconditionally liable for the succession debts. This a minor can not do; and, therefore, no extra judicial acts or contracts of a minor can legally terminate the existence of the succession.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed, and that the defendants’ exception to the jurisdiction of the parish court be overruled, and that this cause be remanded to be proceeded with according to law, appellee paying costs of appeal.


text:
    No. 5945.
    B. F. George vs. N. Amacker.
    The tutor who received the proceeds of the sale of slaves, the property of the minors under his tutorship, some time before the late civil war, is liable to the minors for the amount of those proceeds.
    APPEAL from the Sixth Judicial District Court, parish 'of Tangipahoa. Kemp, J. Trial by jury.

      E. E. Bussell for plaintiff and appellant.

      O. P. Amacicer for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, as transferee of a' note of defendant for $767 50, brings this suit therefor. This note was given in renewal of a previous ijote of defendant for $750, in favor of Mrs. Emma Dean Odom.

The defense is that this note for $750, in renewal of which the note sued upon was given, was based upon a Confederate money and negro slave consideration, and was, therefore, void; and, therefore, that the note in renewal is also void. The case was tried by a jury, and there was verdict and judgment for defendant, and plaintiff appeals.

The facts are as follows: William P. Dean died some time about 1852, and defendant was appointed tutor of his minor children. Dean left an estate of some $6000, consisting of land, slaves, and movables. Ih 1853 this property was all sold and the proceeds, consisting of money and notes, were paid over to defendant, as tutor of the minors to the extent of their interest in the estate.

In May, 1861, Amaeker rendered a provisional account of tutorship, in which he charges himself with a balance in his hands, due the minors, $3988 38; of which he shows the sum of $2599 24 to be due to one of his wards, Emma Dean. This account was duly homologated.

In 1866 the tutor filed his final account, which, upon appeal being taken, was compromised and a judgment rendered in accordance with the compromise terms. In this compromise judgment the tutor, N. Amaeker, “ agrees to pay to Mrs. Emma Dean (Odom) ” (who was one of his wards) “ the sum of two thousand dollars, one fourth cash, and the balance in one and two years, with interest from maturity until paid; notes to be given, each for the sum of $750.” The tutor goes on to state, in said compromise, “that he believes said arrangement a fair and equitable settlement of his indebtedness to the parties by reason of Ms .tutorship of them, and that the same is advantageous to himself.” Here we have the origin of the $750 note, basis of the note for $767 50 sued upon.

There was annexed to the tutor’s final account a list of notes which he says were partitioned to him as tutor, from the estate of William-P. Dean, “or have been derived therefrom in due course of administration for the best interests of the minors at the time, and are now •on hand.” This list consists almost entirely of the notes of one D. W. Thompson, said to be defendant’s son-in-law, amounting to nearly $3000.

We presume the intention of the tutor (though not so expressed) was to force his wards to take this list of notes in satisfaction of what he owed them. But, as stated, the judgment on the compromise ignored all of these and gave a money judgment, in satisfaction of which, in part, the note sued on was by renewal given.

Strange to say, Amaeker swears that the notes on this list were based upon Confederate money and slave consideration; and, stranger •still, there was not one of the notes on this list which he derived from the estate of William P. Dean. He does not explain how the cash in his hands in 1861 got into the shape of Confederate money and slave notes in 1866.

The truth is that these notes did not belong to the minors. Their property was sold in 1853, and Amaeker received and collected the proceeds long before Confederate money was dreamed of, and when a ¡slave consideration was not under ban. True, the money he received was largely the price of slaves sold in 1853. His self-abnegation and anxiety to save his wards from contact with this polluted gold, by .appropriating it to himself and taking the sin thereof upon his own shoulders, are, to say the least, refreshing, and smack very much of the-martyr. We prefer that he should not burden himself thus with the sins of others, notwithstanding the magnanimity of his desire to do so.

It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be annulled and reversed, and it is now ordered and decreed that the plaintiff, B. E. George, do recover of the defendant, N. Amaoker, the sum of seven hundred and sixty-seven dollars and fifty cents, with eight per cent interest thereon from March 1,1869, till paid, and costs of both 'courts.


text:
    No. 5488.
    M. Goepper & Sons vs. Caspar Lusse.
    The facts that a written, demand was made on defendant before suit was brought,, that he answered by a general denial, and specially averred in his answer that too much interest was demanded, and it appears that he and his counsel were absent on the trial of the cause, are all corroborating circumstances, and in eon-j unction with the testimony of one witness, will prove a claim for more than five hundred dollars.
    Damages will be allowed for a frivolous appeal.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier,.

      Gabriel Fernandez for plaintiffs and appellees.

      Hornor & Benedict for defendant.
   The opinion of the court was delivered by

Spencer, J.

This is a suit for the balance of an open account for $861 87, one item of which is for two hundred bags malt, amounting to $822 14, under date October 10,1873. The defendant was personally-cited and answered by a general denial, and a special plea that the account sued upon includes interest upon which interest is claimed.

The defendant and his counsel were absent at the trial. There was judgment for plaintiff for the sum of $851 54, with legal interest from October 17,1873, the date of closing the account. The judge a quo evidently rejected the item $14 93 interest charged in the account. Defendant took a suspensive appeal, and urges as the sole ground for reversal that the item $822 14 is established only by the testimony of a single witness who proves the defendant’s acknowledgments of the correctness of the account. This witness, plaintiffs’ attorney, testifies that he, on receipt of the account, wrote defendant a letter (a copy of which he produces and offers in evidence) informing him thereof, and of its amount. That he soon after saw the -defendant himself, who said the account was right and just, and that he would pay half of it in a few days and the balance at another stated time. There is annexed to plaintiff’s petition, but not formally offered in evidence (so far as the note of evidence shows), what purports to be a telegram from defendant to plaintiffs, of date October 7, 1873, ordering two hundred sacks of malt.

The defendant was personally cited. He answered by a general denial, and a plea that too much interest was claimed. He absented himself from the trial, and made no effort to contradict the plaintiffs’ witness by his own or other evidence. The truth of plaintiffs’ witness is corroborated by these circumstances, and by the undisputed evidence that the letter was sent to defendant. Defendant’s appeal is manifestly frivolous and for delay, and plaintiffs have prayed damages therefor, and are entitled to it.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with ten per cent on the principal amount thereof as damages for frivolous appeal; and that defendant pay costs of both courts.


author: Marr, J.

text:
    No. 6903.
    Herrmann & Vignes vs. Justin L. Amédée.
    On the rule to dissolve an attachment the defendant In the suit may put at issue, and require to be passed on. all of the allegations of the plaintiffs affidavit, on which the writ of attachment itself legally rests. And when such allegations are thus put at issue, the plaintiff must prove them to be true. On such a rale however', no allegation, or fact, involving the merits of the ease, will be considered.
    PPEAL from the Fifteenth Judicial District, parish of Lafourche. Beattie, J.

      J. D. Moore and T. A. Bacleaux for plaintiff and appellant.

      E. W. Blake and E. A. O'Sullivan for defendant.
   The opinion of the court was delivered by

Marr, J.

This suit was brought to recover the balance of an account.

The petition charges that “ said Justin L. Amódée has mortgaged, assigned, or disposed of, or is about to mortgage, assign, or dispose of, his property, rights, or credits, or some part thereof, with intent-to defraud his creditors, or give an unfair preference to some of them; and that he has converted, or is-about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors.”' • ■

The allegations of the petition were sworn to, and process of attachment issued, which was dissolved on rule to show cause, and the case comes up on the appeal of plaintiffs from this judgment.

The testimony which was offered in the district court was not reduced to writing, and there is no bill of exceptions in the record. Appellants, suggesting that defendant' refused to join them in drawing a statement of facts, applied to the judge for such statement. The judge answered:

“ My only recollection of the facts proven in this case are stated in my opinion on file in the record, being reasons for judgment. In answer to this application for a statement of facts, I make that opinion my statement. It was written immediately after the matter was submitted to me.”

The minutes show that the rule was tried and taken under advisement on the fourth of December; and that the opinion and judgment were pronounced in open court and filed the next day, as follows:

“ The evidence shows that defendant had, some time in 1874, mortgaged certain property in the parish of St. James; and that shortly before the attachment was issued he sold some horses and mules.
“ Defendant was a merchant doing business in this . parish. The debt sued on is an open account for goods and merchandise sold to him by plaintiffs from June 4, 1875, to May 18, 1877, amounting to' $9551 88. Credits for payments made are allowed at different dates from June 4, 1875, up to June 20, 1877, amounting to $8050 86, leaving due $1501 02.
“While the affidavit made to obtain the writ is prima facie evidence, the facts which necessitate the issuance of the writ must be shown affirmatively. 24 An. 485.
“ The evidence does not disclose any fraudulent disposition of the property of defendant. It shows that he was selling and paying off his debts to plaintiffs and others; but does not show an undue^ unjust, and fraudulent preference. 24 An. 485.
“I do not think that the mere selling of goods by a merchant in embarrassed circumstances, or the payment of one creditor by such h sale as made by defendant herein, is such a ‘giving of unfair praference ’ as is contemplated by the act of 1868.
“ Eor these reasons it is ordered and adjudged that the attachment herein issued be set aside and annulled, at plaintiff’s costs.”

Erom the commencement of our jurisprudence under the Code of Practice, the defendant has always been allowed to prove, summarily, that the allegations on which the attachment was obtained were false and to have the writ set aside. C. P. article 258.

In Evans v. Saul the attachment was granted on the ground that defendant concealed himself to avoid being cited. The proof was that he absconded to avoid a criminal prosecution; and the attachment was dissolved. 8 N. S. 249.

In Read vs. Ware, 2 An. 498, a non-resident defendant was permitted to have the attachment set aside on rule to show cause on proof that his liability to plaintiffs was contingent. They had accepted bills for his accommodation which had not matured and which they had not paid; and in Price vs. Merritt, 13 An. 526, the attachment was dismissed on motion on the same ground.

Where the petition fails to show a cause of action, or shows that no cause of action exists, the attachment may be set aside, summarily, on exception in limine, or on rule to show cause. Where the petition shows a cause of action, but the allegations are not true in fact, or the defendant has defenses on which the demand of the plaintiff may be defeated on the merits, neither the truth of the allegations nor the defenses on the merits can be inquired into on the rule to show cause.

Where the affidavit shows any one of the causes of attachment, such as the non-residence of the defendant, or that he has departed, or that he is about to depart, from the State permanently, or that he has disposed of, or is about to dispose of, his property fraudulently, etc., the truth of the affidavit, so far as the writ itself is concerned, without reference to the merits, may be inquired into summarily on the rule to show cause.

In Miller vs. Chandler, 29 An. 89, the attachment was obtained on the ground that defendant resided in the State of Arkansas. One of the grounds of the motion was that the affidavit was untrue. All the allegations of the petition were sworn to. It was not pretended, nor was there any offer to prove, that the defendant did not reside in the State of Arkansas. There was but one traversable allegation in the petition that did not go to the merits; and that was as to the residence of the defendant, which pertained to the writ alone. We decided that the burden was on the defendant to disprove the sworn allegation as to his residence; and that on the motion to dismiss the plaintiff could not be put upon the proof of his case on the merits.

We do not understand the District Judge to mean that in all cases of motions to dissolve attachments the plaintiff is obliged to prove the truth of the allegations which he has sworn to in order to obtain the writ. It is only where the allegations so sworn to by him are denied, and the prima fade case made by his affidavit is rebutted, that he must support his affidavit by proof; and the opinion of the Judge must be limited to the case, to the facts proven.

The motion to dissolve in this case is not so specific as it might have been; and it is possible that the District Judge would have rejected the testimony offered if objection had been made by plaintiffs on that ground. It is obvious that the defendant meant, and the counsel on both sides and the Judge understood, that the matter to be tried on the rule to show cause was the question, having no relation to the merits, as to the truth of the allegations of the fraudulent disposition by defendant of his property. The inquiry was limited to that ground of the attachment; and this is the only question passed upon by the Judge. The testimony offered was received without objection, apparently; and the Judge was bound to give it its legitimate effect.

We do not know and we can not know any thing of the facts proven except as stated in the opinion of the Judge. If his statement be correct, and we are bound to accept it as correct, he has properly applied the law: the attachment was not warranted by the facts; and it was consequently dissolved.

The judgment appealed from is therefore affirmed with costs.


author: Manning, C. J.

text:
    No. 7040.
    H. J. Mitchell, Tutrix, vs. T. H. D’Armond.
    Joint obligors may be sued separately, and judgment recovered, against each of them for his proportion of the debt, without making his co-obligors parties to the suit.
    Where the evidence shows that the two individual signors of a merely joint note were, at the date of the note, commercial partners, and that the consideration of the note was money borrowed for, and used by the partnership, each of the makers will be liable on the note in solido,

    APPEAL from the Pifth Judicial District Court, parish of East Feliciana. Me Vea, J.

      W. F. Kernan for plaintiff and appellee.

      D. G. Hardee for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant is sued on this obligation ;

“ Clinton, July 27. 1869
“ Four years after date we promise to pay A. Mitchell, or order, the sum of four thousand dollars, in eight instalments, of five hundred dollars each, to be paid every six months, from January first, 1870, each instalment of five hundred dollars,, bearing eight, per cent interest after maturity till paid, for value received.
T. H. D’Abmond,
O. R. Cornelius.”

The plaintiff is the representative of the deceased payee, and prays a judgment for the whole amount, having alleged and proved that the two makers were commercial partners at the date of the note, and that its consideration was money loaned to the partnership, and used for partnership purposes-. When this testimony was offered, the defendant objected to its reception on the ground that, the trial could not proceed, and no evidence could be received until the other maker was made a party to the suit.

Prior to the act of December 30,1870, it was well settled that all the parties to a joint obligation must be sued together. That statute enacted that hereafter in all suits against joint obligors, it shall be unnecessary to make all the obligors parties to the suit, but each of the joint obligors may be sued and judgment may be obtained against each of them separately for his proportion of the obligation, whether all are joined in the suit or not. Acts 1871 p. 18.

But the plaintiff has not treated it as a joint obligation. He alleges solidarity, by reason of the existence of a commercial partnership between the makers at and before the .date of the note, and when he offered testimony to establish his allegations, objection was not made that the terms of the written contract could not be varied or altered by parol testimony, and he was permitted to prove by the defendant himself that he and his co-obligor were commercial partners, and the note was given for money, borrowed and used for and by the partnership. The style of the partnership is nowhere mentioned, and for aught that appears in the record, the style or partnership name might have been as the signature to the note reads.

The admission of this proof without other objection than that no proof at all could be received because of non-joinder, which was untenable under the law of 1870, perfects the plaintiff’s case. It establishes the fact that the note, though in form joint, was solidary in reality, and necessarily so from the relations in which the parties stood to each other. Two persons, who are commercial partners, may execute an obligation in their individual names, and if it is joint in form, it may well be presumed that they did not-intend to bind themselves otherwise, and this presumption would be strengthened very greatly if the firm had a name, and failed to use it in the signature. . We are not left to presumptions in this case.

The judgment omits a credit which is set forth in the petition as a diminution pro tanto of, the demand, and this will throw the costs of this court on the appellee. The judgment is carelessly drawn too, in reciting that interest shall run on each ‘instalment’ without saying what sum the instalment is, so that one must look outside of the judgment and examine the note in order to ascertain what the total sum really is. We shall amend it. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court is amended, and that the plaintiff have and recover of the defendant, T. H. D’Armond, four thousand dollars with eight per centum per annum interest on each five hundred dollars thereof from the first days of January and July of each of the years, 1870, 1871, 1872, and 1873 respectively, subject to the credits of five hundred dollars of date July 1st. 1870 and six hundred and seventy dollars and eight cents of date August 28,1871 and the costs of the lower court, and as thus amended that it be affirmed, the appellee paying the costs of appeal.


text:
    No. 7058.
    Henry Renshaw vs. A. Keene Richards.
    In order to recover from the maker of a promissory note it is not necessary to make a demand at the place of payment designated in the note.
    The evidence is sufficient to authorize an order of seizure and sale, when the act of mortgage, note, and protest, are authentic in form.
    The clause in an act of mortgage fixing the fees of the creditor’s attorney at five per cent, in the event of the non-payment of the debt at its maturity, makes the debtor, on the happening of that event, absolutely liable for that amount; and this liability can not be affected by the fact that the creditor has not really paid, or obligated himself to pay that amount of attorney’s fees.
    When a creditor, who proceeds by executory process, states in the charging part of his petition that he has received a certain sum, in part payment of his debt, hut in the prayer of his petition sets forth that he has received a less sum, the statement in the charging part of the petition will govern the prayer, and the order of seizure and sale, and entitle the debt to credit for the larger sum.
    Damages may be allowed for a frivolous appeal.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      Chas. M. Pilcher for plaintiff and appellee.

      J. N. Montgomery for defendant.
   The opinion of the court was delivered by

Marr, J.

This is an appeal from an order of seizure and sale. Appellant assigns for error:

First — That there was no authentic evidence before the judge in granting the order; that the act of mortgage does not show how much fees for attorney’s services were “ incurred and paid” by the plaintiff in suing out executory process; and although the act of mortgage says such fees shall be fixed at five, per cent, still there is nothing to show that such sum was either incurred or paid.

Second — That the order of the judge directs the writ to issue for six dollars costs of protest, while the payment of such sum is indorsed on the notes filed.

Appellant also urges, in his printed brief, that after the notes had been protested payment was extended on both to first December, 1876; and that demand was not then made at the place of payment design nated.

There were two notes, both dated sixth of January, 1873, one payable on the twenty-fifth of January, 1874, the other on the fourth of February, 1874, secured by mortgage of same date, with which they are perfectly identified.

On the thirtieth of December, 1873, before the maturity of either, the payment was extended on the one to twenty-fifth January, 1875, and on the other to fourth February, 1875. They were not paid at those dates, and were protested, after presentation and demand at the bank in New Orleans at which they were payable. Subsequently, Richards paid on account of the first note, interest and costs of protest, $1000, credited on the face of the note; and payment was extended to first December, 1876; and on the other note he paid $428 on account of interest and costs of protest.

It is well settled that it is not necessary to make demand at the place of payment designated in a nóte in order to recover of the maker. Ripka vs. Pope, 5 An. 61; Posey vs. Bank of Louisiana, 5 An. 188; McCalop vs. Fluker, 12 An. 551. In this case, however, at the maturity as fixed by the first extension, demand was made at the place of payment, and there were no funds provided. The new extension was a matter of grace and favor to the maker; and no new demand was necessary. If he had actually provided funds, on showing that fact he might have been relieved of costs, on making a real tender.

The evidence on which the order was granted consisted of the mortgage, the notes, and the protests, all being authentic evidence, and sufficient to establish plaintiffs right.

As to the attorney’s fees, we do not see how there could be any doubt or question. The mortgagor binds himself to the holder of the notes to pay “ all such lawyer’s fees, together with all such - costs, charges, and expenses as said mortgagee or any such holder shall ox-may incur or pay, in the event of non-payment of said notes at maturity; said attorney’s fees, however, to be fixed at five per cent on the amount so in suit.”

There can be no doubt about the meaning of this clause. It could not be known what costs, charges, and expenses might be incurred and paid in the event of non-payment at maturity; and,, therefore, the mortgagor obligates himself to pay “ all such costs, charges, and expenses as may be incurred and paid,” together with lawyer’s fees. He did not choose to bind himself for any fees that the mortgagee or holder of the notes might choose to pay his attorney; and therefore the obligation was that the fees should be fixed at five per cent on the amount sued for, absolutely and unconditionally without reference to any contract that the mortgagor or holder might make with his attorney, or to the amount which might actually be paid to the attorney.

There is as little question about the six dollars costs of protest. The petition states all the credits, and the dates. Whenever the mortgage debt is to be paid, whether by the sheriff or by the mortgagor, the amount of the notes, with interest up to the date of the payment on account, and costs of protest, will be aggregated; and the payment deducted at that date. The balance constitutes the capital sum on which interest will be calculated and added up to the date of the final payment. All this is mere matter of calculation, about which no mistake need be made. By error in the prayer, a credit which is written in the charging part of the petition in words and figures, “ four hundred and twenty-eight dollars, $428,” is written in words alone four hundred and twenty-one dollars. The statement in the charging part that such sum had been paid at such date, on account of principal, interest, and costs of protest, as is the case with respect to the credit of $1000, on one of the notes, and such sum at such date, on account of interest and costs of protest, as is the case with respect to the other note, controls the prayer and the order of seizure and sale; and compels the holder of the notes to apply these precise sums, as credits, judicially admitted, on the aggregate amount due, composed of principal, interest, and costs of protest.

We do not think the mortgagor had any cause of complaint; and we do not see how he could have hoped that the judgment appealed from would be reversed or modified. The appellee is entitled to damages for a frivolous appeal, as prayed for in his answer; but, as the debt bears interest at eight per cent, we shall allow only five per cent as damages.

The judgment appealed from is therefore affirmed with costs, and five per cent damages.


text:
    No. 6876.
    The State vs. R. W. Snow.
    An information tor uttering- a forged bill is prescribed by the lapse of one year from the time the offense was bro light to the knowledge of the officer charged with the prosecution.
    Forging a document, and uttering that document are two separate, and distinct offenses, and hence the charge of one, in an information, will not include a charge of the other.
    When the plea of prescription appears go'od, on tho face of the information, the burden of proof is on the State to show that the plea is not well founded.
    Tho allowance of an amendment to an information, changing the date of the bill charged to have been forged and uttered, allowed during the trial, and after certain admissions of the accused, will not warrant the,rejection of the admissions, nor an arrest of judgment, when it appears that no injury to tho accused resulted from the amendment.
    'The question of the sufficiency, or the insufficiency of the evidence to convict, is one of which this court has no jurisdiction.
    A PPEAL from the Fourteenth Judicial District Court, parish of Ouaix chita. Parsons, J.

      H. N. Ogden, Attorney General, for the State.

      Robert Pay for defendant.
   The opinion of the court was delivered by

Egan, J.

On the sixth of December, 1877, the District Attorney filed in the District Court of Ouachita an information against the defendant, •charging that on the twenty-first of November, 1868, he did falsely and fraudulently forge and counterfeit a certain draft, order, or bill of exchange; and in a second count, that on the same date, November 21, 1868, said defendant did feloniously, etc., offer, utter, dispose of, and put off as true and genuine said forged document or writing, knowing the same to be forged and counterfeit, etc. On the eighth of December, 1877, the accused was arrested, arraigned, and pleaded not guilty. The District Attorney thereupon made an affidavit for continuance to obtain the-testimony of one Morris, by whom he swears that he expected to prove “ that the check alleged to have been forged and counterfeited was not drawn by D. T. Head nor executed for his benefit, as it purports on its face, and he is informed that he can also prove by this witness that the indorsement W. T. Morris ” upon the back thereof is not his genuine signature and indorsement, but a forgery.” To' avoid a continuance and obtain an immediate trial, the accused agreed to admit that the witness if present would swear to the facts stated in the affidavit. The trial was then begun, and during its progress the District Attorney, with leave of the court, amended the information “ by averring that the offenses ■charged in the original information to have been committed on tho twenty-first of November, 1868, were in reality committed on the twenty-first of November, 1867.” To this amendment the counsel for the accused excepted, on the ground “ that the amendment sought to be made was a matter of substance, and could not be made on the trial.” After the amendment the District Attorney offered and was permitted to introduce the before-mentioned admission of the defendant which had been made before the trial began or the amendment made, and in view of the prosecution as then shaped and the issues then made. To the introduction of which the counsel for the accused excepted on the ground “that he had the constitutional right to be confronted with the witnesses' and that the admissions were made when the information was improper and had not been amended.” The trial proceeded and resulted in a general verdict of guilty as charged, which covered both counts.

A motion for new trial was filed and overruled, and a motion in arrest of judgment made.

First — Because the second count in the' information was prescribed by the lapse of more than one year from the time it was brought to the knowledge of the officer charged with the prosecution.

Second — That under the charge of the court the jury should have brought in a verdict upon each count of the information.

In support of the plea of prescription the defendant’s counsel filed in evidence a copy of a bill of indictment against the same defendant for the same forgery (as admitted by the District Attorney), filed March 16, 1869. This bill however contained no count or charge of uttering. The plea of prescription should have been maintained as to the charge of “uttering” contained in the second count of the information. The offense charged is distinct from that of forgery, of which it is not even a necessary element. It is punishable differently, and is prescriptible by .twelve months, as forgery is not. R. S. 1870, section 986. There is nothing in the information or evidence to take it out of prescription, and the plea was good on the face of the information. State vs. Walters, 16 An. 400; State vs. Freeman, 17 An. 69; 23 An. 433. The burden is upon the State to rebut the plea. It has not done so, and it must prevail. In indictments for forgery at common law it was necessary to set forth the exact tenor of the forged instrument, and any, even a very slight variance, was fatal. This rule which was likewise applicable to misdemeanors also, was relaxed as to them by act of parliament. 9 Geo. IV C.; 15, 12, and 13 Victoria C., 45. Subsequently this relaxation was extended by statute, 14 and 15 Victoria C., 100, from which our own statute regulating the mode of procedure in criminal cases is borrowed almost in exact terms. The adjudications under these acts of parliament, and under similar statutes of other States, are therefore not without weight in interpreting our own law, and so it has been considered by our courts. See 20 An. 145 and 408; 29 An. 601, and cases there cited. By section 1049 R. S., 1870, it is provided that in any indictment for forging, uttering, etc., any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known or by the purport thereof, by which is meant the “ substance of the instrument as it appears on its face to every eye that readmit.” Archbokl’s Criminal Practice and Pleadings, vol. 1, 7th ed., p. 297,, (N. 1); same vol. 2nd p. 804. It was then not necessary to sot forth in the information the exact tenor or language of the instrument charged to have been forged and falsely uttered. While, however, it is not necessary to set forth the exact tenor and date of the instrument, if such description is used, oven though unnecessarily, it must be proved as laid. 1 Archbold, p. 297, citing 1 McLean, 441 U. S. vs. Keene; same, p. 389 (N. 1), to the effect that “ in all cases where bills of exchange* promissory notes, or other written instruments, not under seal, are-pleaded the date if stated, must correspond with the date of the instrument when produced in evidence on the trial.” See, also, Wharton’s American Criminal Law, 4th ed., sections 599, 306, and 307. The date of the uttering of the forged instrument is material but only in view of the-statute of limitations. See same author, section 275; Waterman’s U. S. Criminal Dig., p. 333, section 108; same, 334, section 120; and such is the rule of our own law. See, again, 16 An. 400; 17 An. 69, and 23 An. 433. Where, however, the instrument or writing is set forth in full in the bill or information in totidem verbis any lack of definiteness in its designation or description otherwise was cured even at common law; and an incorrect designation might be rejected as surplusage. Wharton’s American Criminal Law, 7th ed., sec. 1467, and n. p. and authorities cited. See, also, State vs. Crawford, 13 La. An. Reports, p. 300, citing Regina vs. Williams; 2d Eng. Law and Equity Reports, p. 533. The statute of fourteenth of March, 1855, which in this respect is in terms re-enacted in section 1063 of the Revised Statutes of 1870, provides that “ no indictment for any offense shall be held insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or an impossible day, or on a day that never happened.” See, also, 10 An. 168.

The information in the present case sets out at length the exact tenor and date of the forged instrument in accordance with that stated in the amendment, -which was for that reason and under the statute just quoted unnecessary, and may be treated as surplusage, so far at least as relates to the charge laid in the first count, which is imprescriptible, while the amendment did not cure the defect as to the charge laid in the second count, which -was prescriptible and prescribed on the face both of the original and amended information. Its allowance therefore worked no injury to the accused. As to the alleged insufficiency of the evidence to convict, we could not consider that, even were the evidence before us, as it is not. 2 An. 921; 3 An. 497; Const, art. 74.

The admission of the accused,' though made prior to the amendment, which was not onty unnecessary but immaterial, was therefore properly received in evidence. The general verdict did not vitiate the finding on the good count of the information.

It is therefore ordered, adjudged, and decreed that the defendant’s plea of prescription be sustained, and the judgment arrested as to the second count for the uttering of the forged instrument, and that he bo discharged from further answering thereto, and that the verdict and sentence on the first count for the forgery charged therein be and they are affirmed,