text:
    Charles Armstrong v. His Creditors—J. A. Turnell, Opponent.
    An appeal will be dismissed when all the parties to the judgment are not made parties to the appeal.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      G. B. Duncan, for opponent and appellant.
    WhittaTcer, for syndic.

      J.\ Q. Bradford.r Stcmsbury é Ardey, for creditors.
   Buchanan, J.

This case is before us on two appeals from a judgment of the Fourth District Court of New Orleans, upon a tableau of distribution.

The first question to be disposed of, is a motion to dismiss the appeals for want of proper parties. The appellant, J. A. Turnell, was put upon the tableau as an ordinary creditor for the sum of $4,655. He opposed the tableau on the grounds:

1st. That he was a creditor of insolvent for the sum of $10,037, with interest and costs.

2. That he was a privileged creditor for said amount.

3d. That certain persons named, to wit: W. Monaghan, J. S. GazeneaM, J. 8. Whitaker,, 8. T. Tcmjlor, syndic, are improperly ranked as creditors upon said tableau.

4. That certain persons are improperly ranked as creditors with privilege of the fourth class on the tableau. The parties thus opposed are not named in the opposition, but by reference to the tableau their names appear to be: Mebille & Go., Huma Laeoste, J. JB. Berten, Wolfe & Singleton, Bobt. Gamble, Henry Flor anee, George Gotisehalk and A. Sehloss.

The judgment of the Court below dismissed Twrnell’s opposition, and he appealed. His petition of appeal prays that the syndic, and those creditors who specially opposed his ( Turnell’s) claim, might be cited to answer the appeal. The bond of appeal of Twmell is in favor of 8ewell T. Taylor, syndic, and of Mebille & Go., as appellees.

The record shows that the claim of Turnell was opposed by other parties besides those mentioned in his petition and bond of appeal, and also that the judgment of the Court below recognized the validity of the claims of many of those opposed by Turnell, and who have not been made parties in any manner to this appeal. Tet this appellant, in his points filed in this Court, has asked that all the claims opposed by him in the Court below be rejected.

The other appeal is taken by B. Bradley and others, who have opposed the tableau, claiming to be ranked thereon as privileged, instead of ordinary creditors, and adopting, in other respects, the opposition of John A. Twmell, with the exception of said Twrnell’s claim to a privilege which they contest.

The petition of appeal of these appellants prays for citation against the syndic and all others in interest.. Their bond is given in favor of the syndic alone. It does not appear that citations of appeal have been served upon any of the numerous parties in this cause, who are interested in maintaining the judgment of the District Court, with the exception of the syndic and two other creditors, namely : Williamison, Za/’atin & Gratiaa, and Mebille & Go.

This case appears to come clearly within the rule so often announced in this Court: “ Whoever claims relief at our hands against a judgment, must bring before us all the parties thereto, who have an interest in its remaining undisturbed.” 15 L. R. 363. 3 Rob. 436. 5 Rob. 224. 12 Rob. 203.

It is, therefore, adjudged and decreed that the appeals herein filed be dismissed, with costs.

Re-hearing refused.


source: Caselaw Access Project

author: Ogden, J.

license: Public Domain

text:
    Claiborne Myers v. David Myers — John L. Henley, Third Opponent.
    If the possession of property in Louisiana has commenced by force or fraud, practised within the limits and jurisdiction of a sister State, and in opposition to the authority and judicial process of her Courts, such property must be returned to the State from which it was thus taken, and the parties remitted to that jurisdiction to settle their rights.
    The release by ihe plaintiff in attachment in Mississippi, of any claim on the Sheriff resulting from his allowing t|ie slaves attached to remain with the person holding possession of them, in no way invalidates the seizure.
    In Mississippi the Sheriff who seizes slaves may retain possession of them, as well through the agency of a keeper, or an overseer, as by one of his deputies.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      Bonford & Finney and Chilton, for plaintiff and appellant.

      Goold, for opponent.
   Ogden, J.

The third opponent, who is the Sheriff of Harrison county, Mississippi, claims the custody and possession of twenty-three slaves who were seized and put in possession of the Sheriff of the parish of Rapides, by virtue of a writ of fieri fiaeias, from the Fourth District Court of New Orleans, in the suit of Claiborne Myers v. David Myers. He alleges that, on the 25th of December, 1851, the said slaves were lawfully in his possession, as Sheriff, in the State of Mississippi, by virtue of a writ of attachment from the Circuit Court of Harrison county, in a suit of Samuel F. Butterworth v. David Myers; that the said David Myers, on or about that time, forcibly ®nd feloniously took said slaves out of his possession and carried them to the parish of Rapides, where, by collusion between himself and his brother, Claiborne Myers, the plaintiff in this suit, the said Damid Myers caused the slaves to he seized in satisfaction of the judgment obtained against him by his brother. Claiborne Myers, in his answer, denies generally the allegations in the opposition, and specially that the opponent ever had custody of the slaves in his capacity of Sheriff. He sets forth that he had obtained a judgment, in November 1847, against Da/oid Myers, which had been duly recorded in the parish of Orleans, the place of residence of David Myers, and had thereby acquired a judicial mortgage on these slaves, who were then in the State of Louisiana. He further alleges that the existence of this judicial mortgage was well known to Butterworth, and that, in order to defeat it, he, Butterworth, had caused the slaves to he carried into the State of Mississippi, in order to subject them to his pretended claim. By a peremptory exception, subsequently filed, he relies on two additional grounds of defense; one, that if the opponent, or Sheriff, had ever levied on the negroes by process of attachment, he had abandoned and released the possession immediately after the- levy was made; the other, that the attachment, under which the Sheriff claimed the right, had been quashed and the suit dismissed, by a final judgment between Butterworth and Da/oid Myers.

The view we have taken of the law which ought to govern the case, renders it unnecessary to notice many of the points raised on the argument, and a great deal of testimony applicable only to those points. ¥e consider the only questions to bo, 1st. Whether the slaves were lawfully in the custody of the opponent, as Sheriff.in the State of Mississippi—2d.- Whether they were forcibly and feloi iously taken out of his possession, and brought to this State.

Claiborne Myers may be entitled to the judicial mortgage on the negroes,which he asserts; and Butterworth may have resorted to improper means to defeat the mortgage by causing the negroes to bo conveyed into the State of Mississippi. On the other hand, the judgment of GlaAborne Myers against his brother Demid Myers, may be collusive and simulated, and designed to protect the property from the pursuit of Butterworth; all of which the parties reciprocally charge to be true. We express nó opinion on those questions, considering them foreign to the issue. Nor do we even think it necessary to .decide the question, so much argued at bar, as to the effect of the judgment in Mississippi, dissolving the attachment and dismissing Butterworth’s suit. It may result, by virtue of that judgment, that the negroes will be restored to the defendant in Mississippi, or it may be that, by effect of a writ of error, with a supersedeas, either already or hereafter to be obtained, the possession of the negroes will be continued in the Sheriff. These questions we do not feel ourselves called on to decide.

If the possession of the parties in Louisiana has commenced by force or fraud, practised within the limits and jurisdiction of a sister State, and in opposition to the authority and judicial process of her Courts, we hold the rule stern and inflexible, that such possession must terminate as soon as an appeal is made to our laws; that the property must be returned to the State from which it was thus taken, and the parties remitted to that jurisdiction, to settle their rights. This doctrine has been repeatedly recognized in our State. See cases, Powell v. McKee, 4th Ann. 108; Wingate v. Wheat, 6th Ann. 241, and Paradise v. Farmers' and Merchants' Bank, 5th Ann, 711. The fact that the property was clandestinely taken by Demid Myers out of the possession of Ba/ylor, who was appointed keeper by the Sheriff, is fully established, and it is shown that force would have been resorted to, if it had become necessary, to accomplish the object. The case is, therefore, reduced to the single question whether the negroes were lawfully in the custody of the opponent as Sheriff, at the time they were thus removed. It is contended, 1st. That the Sheriff was never in possession of the negroes under the writ of attachment, because, before the seizure, he was authorized by the plaintiff in the writ to leave the negroes in the possession of Kendall, to whom they were then hired. 2d. That according to the statute of Mississippi, it was necessary the Sheriff should have held possession of the negroes, either by himself or by a deputy, to be appointed in writing and with certain formalities prescribed in the statute. It appears that Ba/ylor, the keeper appointed by the Sheriff, was in the employment of W. (?■ Kendall, to whom Demid Myers had hired the negroes. The written agreement or consent of Butterworth, the plaintiff in the attachment, to release the Sheriff from any liability resulting from his leaving the negroes, when attached, in the possession of Kendall, did not affect the seizure by the Sheriff, which appears, as well by his return as by the evidence, to have been made with all the formalities prescribed by law. The Sheriff’s responsibility to Butterworth has only thereby diminished. The statute of Mississippi relating to the appointment of deputies, has no application. The Sheriff could as well have retained possession by a keeper or overseer, for whose acts he was respon-sible, as by his deputies. It was made his duty, by law, to provide for the sustenance and support of the negroes until they -were sold or legally discharged from the attachment; and this he was to do on his own responsibility, as to the means to Be employed. In the performance of that duty, for his own Safetyj he might deem it necessary to incarcerate the negroes; but it would be a barbarous provision of law to require him to do so, in order to render the seizure a legal one. The legal seizure and custody of the negroes, under the attachment in Mississippi, was in every respect complete, and the plaintiff, Glanborne Myers, whatever his rights may be, cannot avail himself of the clandestine removal of the negroes to this State by his brother, David Myers, to defeat the attachment in Mississippi.

It is, therefore, ordered, that the judgment of the Court below be affirmed, with costs.


author: Ogden, J.,

text:
    Peter Conrey v. His Creditors — Dupont de Nemours & Co.—Opponents.
    All the creditors of an insolvent, privileged as well as ordinary, should be made parties to the tableau* and accordingly notified. In a concurso, all the creditors of the insolventare considered as plaintiffs and defendants, and their respective claims, whether privileged, mortgage or ordinary, must be settled contradictorily on a tableau of distribution. A separate tableau among a particular cla^s of creditors cannot be viewed but as irregular, and not sanctioned by law.
    Appeal from the Second District Court of New Orleans, Zea, J.

      Dwrant & Bornor, for the opponents and appellants.

      B. A. Bradford, for the syndic.
   Ogden, J.,

(Campbell, J., absent.) On the 28th of October, 1852, the syndic of the creditors of the insolvent filed a tableau of distribution, showing the sum of $110,100 90, cash on hand. The claims classed as privileges and mortgages amount to the sum of $85,370 73, leaving a balance of $8,973 17, for the ordinary creditors. The tableau also exhibits a list of notes, the proceeds of sales of real estate, purporting to be for the benefit of the general creditors. The names of the ordinary creditors are not specified in the tableau.

J. B. Dupont de Nemours & Go. opposed the tableau, on the ground that they were not placed thereon as ordinary creditors for the amount of a judgment obtained by them against the insolvent, and as privileged creditors for the cos'ts.

The opposition was dismissed by the Court below, chiefly on the ground that the tableau did not purport to make a distribution of funds among the ordinary creditors, but merely exhibited a balance of cash and notes on hand to be thereafter distributed among them.

We think the Court below erred. Under the act of 1837, the duties of syndics are explicitly prescribed. Whenever any funds come into his hands as such, he is required to make a tableau of distribution, containing the names of the several creditors of the insolvent debtor, the sums due them respectively, and the amount to be distributed among them, either as privileged, mortgage, or ordinary creditors. It was, therefore, essential that all the creditors of the insolvent* privileged as well as ordinary, should have been made parties to the tableau, and accordingly notified. In a concurso,-all the creditors of the insolvent are considered as plaintiffs and defendants, and their respective claims, whether privileged, mortgage', or ordinary, must be settled contradictorily-on the tableau of distribution. A separate tableau of distribution among a particular class of creditors, therefore, cannot be viewed otherwise than as irregular, and not sanctioned by law. 4 N. S. 632, 640. 7 ibid 131, 485. 1 L. 172. 9 R. 42. 9 L. 387. 14 L. 237, 250. 2 An. 451. 4 ibid 195.

Although we consider that the opponents were entitled to be placed on the tableau as ordinary creditors for the amount of their claim, yet we are not prepared to say that they were entitled to be paid out of the funds reserved by the syndic. We think the Court below should have ordered the tableau to be amended by inserting thereon the names of all the ordinary creditors, and the sums due them respectively. As all the creditors on the hilan are parties to the concurso, it appears to us the syndic is bound to notice their claims. Had this been done, it would have met the requirements of the law, and the injury apprehended by the Court below, in considering the other ordinary creditors as third persons, would not have resulted.

It is, therefore, ordered, adjudged and decreed that the judgment of the Court • below be reversed ; that the opponents be placed on the tableau, as ordinary creditors, for the amount of their judgment, and as privileged creditors for the costs of suit recovered by said judgment; that the tableau be amended by inserting therein the names of all the creditors, and the sums due them respectively, as required by law; and that new publication be made. It is further ordered that the costs of opposition be borne by the estate.


author: Slidell, C. J.

text:
    James Farnet & Noel & Guiraud v. Their Creditors — Jose Martinez del Campo, Opponent.
    The landlord loses his privilege by permitting fifteen days to elapse after the removal of the goods, without taking action to secure his privilege.
    It is impossible to give to an amicable arrangement by an insolvent with a part of his creditors, with- . out a formal assignment and a formal possession, the effect of a cessio donovmn, by which the rights of creditors are fixed at the date of the surrender. T/ierefore, the landlord’s privilege is not preserved by such an amicable arrangement, fifteen days having elapsed after the removal of the goods.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Hague for insolvents.

      Schmidt, for opponent and appellant.
   Slidell, C. J.

Martinez del Campo, the owner of a house occupied by the insolvents, was placed on the tableau of distribution as an ordinary creditor. He opposed the homologation on the ground that he should have been ranked as a privileged creditor. His opposition was unsuccessful, and he appealed.

In the beginning of April, 1852, the goods were removed from Del Campo's house, apd put on storage in another building. On the 29th May, Fa/rnet, one of the partners of Noll & Cuiraud, made a surrender, and the usual insolvent proceedings took place. The District Judge was of opinion that Del Campo had lost his privilege in permitting more than fifteen days to elapse, after the removal from the premises, without taking any action. In this opinion we concur. The 2675th Article of the Code gives the lessor a right of pledge on the movable effects of the lessee, which are found on the property leased. And Article 2679 enlarges the right in these words: “ In the exeicise of this right the lessor may seize the objects, which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified.”

It is said that the landlord’s rights were preserved in the interval between 1st of March and the surrender, by an amicable meeting of creditors, at which liquidators were appointed, who were to take charge of the property and act as trustees of all the creditors, until the will of the foreign creditors could be ascertained ; the creditors present at the meeting, meanwhile, consenting conditionally to a settlement with the insolvent firm. On an examination of the testimony; which is loose and in some degree conflicting, we find that the creditors present represented a portion only of the liabilities of the firm. They verbally appointed three persons, Barbry, Monoid and Frn'net, liquidators to supervise the management of the concern; but no formal assignment was made, and they did not take formal possession of the assets.' When Frn'net went away in April, the business of the house was left in the hands of Monoid, not, it would seem, as trustee for the creditors, but as attorney of the two partners, Farnet and ffuiraud. It is impossible to give to an amicable arrangement of this sort, made by a portion of the creditors, the effect of a eessio bonorvm, by which the rights of creditors are fixed at the date of the surrender. If formal assignment had been made, and possession had been given, it might have created an equity in favor of Bel Campo against the creditors who took part in the assignment, but certainly against none others.

Judgment affirmed, with costs.


author: Buciianan, J.

text:
    Francois Dubois v. Louis Ferrand.
    The declarations of the wife are not admissible in evidence against the husband.
    In an attempt to make the admission of the wife evidence for the husband, on the ground that she acted as his agent, it is essential to show not only the agency, but that the admission itself appeared closely and intimately connected with the subject matter of the agency. The mere fact of a note having been executed in favor of the wife, does not, per se} create the presumption that she acted as the agent of her husbaud. If she acted as his agent in making a settlement for him, in which the note in question was given, that fact should have been shown.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Bvfour and A. Robert, for plaintiff.

      Bream and Lambert, for defendant and appellant.
   Buciianan, J.

The plaintiff alleges that the defendant is indebted to him on three promissory notes, in the sum of $398.

The defendant avers that the plaintiff is indebted to him in the sum of $81; that the plaintiff had declared, in presence of witnesses, that the defendant, after a settlement, owed him nothing, but, on the contrary, he was indebted to the defendant for sundry small amounts furnished him for the purpose of defraying his daily expenses; that the note of $233 in suit, executed in favor of the plaintiff’s wife, was given by him in renewal of three promissory notes, two of which constitute a part of the plaintiff’s demand, and the last, for $68, is, as he verily believes, still in the plaintiff’s possession ; and, lastly, that the plaintiff is indebted to him in the sum of $314, on fourteen due bills, or bonds, annexed to his answer, which he pleads in compensation. Whereupon, he prays that'the plaintiff “ be condemned to pay him $81, after deducting the amount of said note of $233.”

The District Court allowed the sum of $304, as the correct amount of the due bills claimed by the defendant, in compensation, and gave judgment in favor of plaintiff for the sum of $94, as the balance due him on the notes sued upon. Prom this judgment the defendant appealed.

On the trial, several witnesses were examined and testified as to the declarations of the plaintiff in relation to the alleged settlement between the parties, posterior to the dates of the notes sued upon. There is no allegation nor proof of the nature of the claims or matters involved in that settlement, and no evidence introduced to show the alleged renewal of the notes.

The District Judge was of opinion, and we concur with him, that the defendant proved the sum of $304, which was the only amount claimed by him as a credit; that the averment in relation to the plaintiff’s admissions was obviously intended to aid the subsequent averment, that the note for $233 was given in renewal ; and that no proof whatever existed of the alleged fraud, unless it could be inferred from the plaintiff’s admissions, which were insufficient.

Our attention has been directed to several bills of exceptions in the record. We concur with the District Judge, that the declarations of the -wife are not admissible in evidence against the husband. But, it is contended, that this case forms an exception to the rule, the wife having acted as the agent of her husband. ■ To lay a proper foundation for such evidence, it is essential not only that the agency should be shown, but that the admission itself appeared closely and intimately connected with the subject matter of the agency. The mere fact of a note having been executed in favor of the wife, does not, pen' se, create the presumption that she acted as the agent of her husband. If she acted as his agent in making a settlement for him, in which the note in question was given, that fact should have been show.n.

In relation to the other bills of exception, we think that the testimony was properly ruled out, on the ground of its irrelevancy. The facts sought to be proved had clearly no connection with the allegations or the pleadings.

The conclusion to which we have come on the merits, renders it unnecessary for us to consider the motion to dismiss the appeal.

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


author: Buchanan, J.

text:
    John B. Wallace v. H. F. Smith.
    The failure of a tenant to pay the rent, authorizes the landlord to make affidavit that he has good reason to fear the property may be removed from the premises leased.
    The landlord has a lien on goods on storage to the amount of storage due.
    APPEAL from the Pirst District Court of New Orleans, Larue, J.

      Whittalem', for plaintiff.

      Livingston, for defendant and appellant.
   Buchanan, J.

This is an appeal, taken from a verdict of a jury rendered for a number of months rent of a warehouse, at the corner of Perdido and Carondelet streets. The verdict was rendered in three consolidated suits, and we have looked through the evidence without finding a syllable of proof upon which the appellant can reasonably be supposed to expect to reverse the verdict.

The appellee has’asked us to review the interlocutory judgments of the Court below, which set aside the provisional seizures in two of these consolidated suits.

In the first of the suits, No. 7689, a rule was taken on the plaintiff, to show cause why the writ of provisional seizure issued iu the case should not be set aside, on the grounds, first, that the affidavit was untrue, and that defendant was ready at all times to pay the rent due; second, that the property seized was not liable to seizure.

In order to sustain these two points, defendant introduced evidence to show that he carried on the storage business, and that he was constantly receiving and sending away goods kept on storage. He also offered in evidence the writ itself, requiring the sheriff to seize the movable property on the premises, and also an inventory describing the nature of the movables seized. He furthermore offered in evidence the suit between the same parties, No. 7469, brought for the purpose of expelling defendant from, the premises, on which said suit there is a judgment in favor of plaintiff, from which defendant has appealed. He also showed that he had deposited with the sheriff, a day or two after the seizure, the sum of $500 ; which evidence embraced all that was offered on the rule by the defendant, and .on which said seizure was set aside.

Plaintiff, on the contrary, showed by the evidence of Mr. Grane, that defendant had offered to make him a bill of sale of certain carriages belonging to him, and which had been consigned to him originally by one Mr. Sami. Oliver, but for which he had settled with the said Oliver, and taken the carriages to his own account; that said said carriages were worth, say $1500 ; that defendant did not wish him to take them as a ionafide sale, but simply as nominal owner thereof. This occurred about a week prior to the seizure, and was evidently done for the purpose of screening said property from seizure. He further proved that some carriages and buggies, belonging to defendant, had been removed shortly before the seizure.

In suit 7822, consolidated with the last by order of Court, a rule was also taken to set aside the provisional seizure issued, on the following grounds : first, that the affidavit was untrue; second, that the seizure of any sums due for rent in the hands of sub-tenants, is illegal; third, that said seizure was made from malicious motives, and to vex and harrass defendant. In this case, evidence of a similar character with that in the preceding case was offered, except that plaintiff also offered in evidence the lease of defendant to his sub-tenant, WiUon. It does not appear by the record that any seizure was actually made.

In each case, the affidavit for the provisional seizure was made in strict conformity with the 285th Article of the Code of Practice. The law gives to the landlord a privilege, and even a right of pledge, upon the property contained in the premises leased, to secure the payment of the rent. For the purpose of enforcing this lion, he is entitled to a writ of provisional seizure, upon making oath that he has good reason to fear the property may be removed from the premises leased.

In our opinion, the failure to pay the rent constitutes such good reason. In the case before the Court, other circumstances justified the allegation of fear of removal. The defendant had on the premises property for sale. Of course, when a purchaser should offer, and the sale be effected, the property would be removed. Such transactions were in the daily course of defendant’s business. And even as to property on storage, and which was liable at any time tó be removed on the order of the parties storing, the landlord had a lien to the extent of the storage due.

The circumstances mentioned seem to be entitled to the more weight, in view of the fact of arrears of rent being due when the seizure was sued out. We think the writ of provisional seizure should have been maintained in these cases.

It is, therefore, adjudged and decreed that the verdict of the jury and judgment appealed from, be affirmed, with costs in both Courts, and with the privilege of lessor on the property provisionally seized.


text:
    John B. Wallace v. H. F. Smith.
    The Act of 21st March, 1850, which gives the landlord a summary process for theexpuision of a tenant is not in violation of Articles 118 and 119 of the Constitution of 1845.
    Proceedings under this statute are summary, and are tried without a jury.
    When, after prayer for trial by jury, the parties proceed to trial without a jury, and no bill of exceptions is taken, it will be presumed that the jury is waived.
    APPEAL from the First District Court of New Orleans, Lame, J.

      Wli.ittalcer, for plaintiff.

      Livingston, for defendant and appellant.
   Buchanan, J.

This is a suit by summary process instituted by a landlord against his tenant, under the Act of 21st March, 1850, to expel him from the premises leased.

The petition alleges the lease to have been by the month, and that the notice required by the Civil Code in such cases had been given before the institution of the suit.

The answer pleaded a contract of lease, different in its terms from that set forth in the petition.

Upon those pleadings the parties went to trial, and judgment having been rendered in favor of plaintiff, the defendant has appealed.

The cause is before us upon a statement of facts. From this, it appears, that the plaintiff substantiated the material allegations of his petition by evidence in the Court below ; and that a witness named Morgan was examined for defendant, who swore that he heard plaintiff say the defendant might keep the premises until improvements were made, and that he should receive sixty days notice to quit. The statement of facts also shows that this witness, Morgan, had made, on the trial of another suit between the parties, statements inconsistent with the evidence given by him in this cause. We agree with the Judge of the District Court that no credit is to be given to the evidence of this witness. The judgment of the Court below is fully sustained by the other evidence.

The appellant appears to rely upon an exception, tiled by him, of unconstitutionality of the law on which these proceedings are based. The 118th and 110th Articles of the Constitution of 1845, it is contended by him, are violated by this law.

We have examined those articles, in connection with the statute of March 21st, 1850, and perceive no foundation for the plea.

The appellant also urges that his answer contained, a prayer for trial by jury, which was denied him.

The present action is summary, and summary cases are tried without the intervention of a jury. 0. Pr. 757. In addition to which, it may be observed that the parties seem to have gone to trial, in the Court below, before the Judge alone, without any opposition made on either side to that form of trial. In the absence of a bill of exceptions, we are bound to presume that the defendant waived his prayer for a jury.

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

       Ogden, J., declined sitting, and Campbell, J., was absent on the trial of this cause.


text:
    Municipality No. One Praying for the Opening of Orleans Avenue — Executors of John McDonogh, Appellants.
    Under the Act of 1832, providing for the opening of streets in New Orleans, there must be published in the newspapers a notice of the day on which the Commissioners will present to the Court their estimate and assessment for confirmation, A certificate of the Clerk of the Court is not evidence of such publication It must be proved, under oath, as other facts are proved.
    Appeal from the First District Court of New Orleans, La/rue, J.
    Q-riwt, for appellants.

      Wolf, for the Municipality.
   Buchanan, J.

This case comes before us upon an assignment of errors to a judgment of homologation of an assessment made by Commissioners, appointed under the provisions of the Act of 1832, page 132, entitled “An Act to regulate the opening, laying out, and improving streets and public places in the City of New Orleans and its suburbs, incorporated and non-incorporated, and in the banlieues of the same.”

The only error assigned which requires to be noticed, because we think it is sufficient to remand the cause, is that there was no evidence of the publication by the Commissioners of the notices or advertisements which they are bound to give, according to law.

The law relied upon by appellants is found in Section 3d of the Act of the Legislature above mentioned. It reads as follows: “ The said Commissioners shall deposit a copy of such estimate and assessment with the Clerk of the Court by which they were appointed, for the inspection of whomsoever it may concern, and shall give twenty days notice by advertisement, to be published three times within the first fifteen days, in at least, two of the -public newspapers printed in the City of New Orleans, in the French and English languages, of the day on which the report of said estimate and assessment will be presented to said Court for confirmation.”

The report of estimate and assessment appears to have been deposited by the Commissioners in Court on the 2d March, 1852; hut we do not find in the record any proof that they published the notice required by law of the day on which they would present said report to the Court for confirmation. What is presented to us by the attorney of the city as proof of this fact, is nothing but a certificate of the Clerk of the Court “ that the notices of the Commissioners of estimate and assessment, &c, have been published in the French and English languages, &c.” It was clearly no part of the official duty of the Clerk of the Court to give such certificate. The notices were no part of the record ; they were not, in fact, to be given by him, but by other persons. He would, no doubt, have been a competent witness to prove the notices; but he was not sworn as a witness, and his certificate must, therefore, go for nothing1. It may be remarked, in addition, that even considering the certificate as full proof of all that it contains, it does not show that any, or, if any, what day was stated in the advertisement as that on which the report would be presented to the Court for confirmation.

It is, therefore, adjudged and decreed, that the judgment of homologation of the Court below, appealed from, be reversed, and that the cause be remanded for further proceedings, according to law, the appellee to pay the costs of this appeal.


text:
    George W. Lewis v. Mary Ann Hare, Widow of Edward D. Lewis.
    By Article 1698 of the Code, “the testament falls by the birth of legitimate children of the testator posterior to its date,” and it makes no difference if a child be born before or after the death of the testator.
    The positive provisions of Article 1698 is in no manner affected by Article 1556, which provides that revocation of donations inter vivos, through the birth of children to the donor, operate only up to the disposable portion.
    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      A. W. Ogden, for plaintiff and appellant.

      Odhen, for defendant.
   Slidell, C. J.

In April, 1838, Edward D. Lewis, a resident of Louisiana, made an olographic will, by which, after providing for the payment of his debts, he gave to his wife all his furniture and a piece of land, which was equal in value to about one-half of his estate; to a sister, two thousand dollars; to a brother, one thousand; to another brother, George W. Lewis, the plaintiff, one thousand dollars; to L. W. Broadwell, one thousand dollars ; and the residue to his wife. His health was impaired at the time of making his will, and in the following May, upon the advice of his physicians, he went with his wife to Europe. Broadwell, who was on terms of intimacy with him, and one of the objects of his bounty, testifies that the testator, before his departure, informed him the will was made, and he appointed executor; that from the tenor of the testator’s conversation on the occasion, as on others, he thought the testator was not aware when he made the will that his wife was pregnant, and from the impaired state of his health believed it unlikely that such would be the case, and therefore made no provision for an heir. The testator died at Nice, in September, 1838, and a few days afterwards his wife gave birth to a child. The will was probated soon after his death, in New Orleans. The inventory exhibits a total amount of $10,923. The present suit is brought by George W. Lewis, against the widow, as administratrix and tutrix of the child, to recover the legacy of one thousand dollars, and the defence is that the subsequent birth of the child revoked the will. There was judgment for the defendant in the Court below, and the plaintiff has appealed.

The Code devotes a section to the subject “of the revocation of wills and their caducity,” and by Acticle 1698 provides as follows: “ The testament falls by the birth of legitimate children of the testator posterior to its date.” The reason of this provision is not given by the law-givers, but is obvious. It is founded upon the reasonable presumption that the testator would not have given his property to others had he foreseen that he would afterwards have offspring. It would not be easy to suggest a case more strongly illustrative of the wisdom of the law, which supplies by its own foresight the want of foresight of the testator, than the one before us. If this will should be carried into full effect, the entire estate of the testator would be absorbed in legacies, and his child be left destitute.

It is contended, on the part of the plaintiff, that the article should only be applied to the case of a child born before the death of the testator. The language used is broad and unqualified, and, as the law has made no distinction, we have no right to make one. Moreover, there is no reason to suppose that a testator would have been insensible to the welfare of a posthumous child, if the contingency of its birth had suggested itself to his mind, any more than to suppose such insensibility in the case of a child born before his death. In both cases, it is reasonable to presume the testator would have felt the promptings of parental love, and the obligations of parental duty, if the event had been foreseen.

The plaintiff refers to the 1556th Article of the Code on the subject of the implied revocation of donations, inter vims, a subject also separately treated. By that article the revocation, through the birth of children, to the donor, is made to operate only up to the disposable portion, and the plaintiff contends that it should operate to that extent only in the present case. Why the lawgiver thought proper to make a distinction between donations, inter vivos, and donations by will, may not be very obvious. But the language of Article 1698 is unambiguous. It makes the will entirely inoperative where legitimate children of the testator are born posterior to its date, and we have no right to disregard the distinction thus clearly made between the two kinds of donations, even if it be an arbitrary one. The two 'subjects, the revocation of donations inter vivos, and the revocation of donations by testament, are treated separately, and if we were permitted to call in the provisions in the one case, to explain those in the other, it would be proper only where doubtful language had been used.

The words “ even of a posthumous child,” used in the Article 1556, which was taken from the Napoleon Code, are not found in Article 1698, for which there is no corresponding Article in the Napoleon Code. We do not think this a sufficient reason to narrow the terms of Article 1698, which are unqualified, and comprehend equally both classes of children.

It must also bo observed, that by Article 29 of our Code, “ children in their mother’s womb are considered, in whatever relates to themselves, as if they were already born.

Judgment affirmed, with costs.

       Ogden-, J., absent.


text:
    Alexander Levy & Co. v. The Mutual Benefit Life and Fire Insurance Company — C. W. Hornor, Receiver. E. W. Sewell v. Same — Consolidated Case.
    The Company was organized on the mutual principle, its sole capital consisting in the premiums paid by those who insured with the Company; and the notes for premiums constituted a reserved fund for the payment of losses, which the Directors, under their charter, had no authority to divert from the payment of the losses to which they were specially affected.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Durant and Cohen, for Hornor, appellant.

      Benjamin & Hicou, for Sewell, appellee.
   Ogden, J.

This suit was instituted to enforce an act of pledge of the notes of the shareholders in the Company. The Directors made the pledge in favor of the plaintiff, to secure the payment of a sum of money which they borrowed from him. After the suit was brought, the defendants were declared insolvent, a receiver appointed to administer their assets, and this cause was transferred from the Second District Court, and ordered to be cumulated with the proceedings in liquidation of the Company. The receiver, in his answer, denies the authority of the Directors to pledge the notes of the Company in favor of the plaintiff, and asks to have them delivered over to him. The notes thus pledged were given by the stockholders for premiums on insurance due by them to the company. The twelfth section of the charter of the corporation provides that if losses are sustained by the Company to a greater amount than they have funds on hand to discharge, the Directors shall assess such deficiency in a rateable proportion on tho members of the Company, according to the amount of each member’s insurance, provided such assessment shall not exceed the amount of the premium note or obligation given by each member. The Company was organized on the mutual principle, its sole capital consisting in the premiums paid by those who insured in the Company, and the notes on hand for premiums constituted a reserved fund for the payment of losses. There is no special power in the charier by which the Directors would be authorized to make any other use of the premium notes, than the one thus pointed out by the section referred to. The act of the Legislature of 16th of March, 1818, providing for the organization of corporations, requires that the charter of the Company shall contain a distinct enumeration of the powers of the Directors. The power claimed as resulting by implication from the general powers conferred on the Directors, is not consistent with the peculiar provision above alluded to, and we think the Directors had no authority to divert the notes from the payment of the losses of the Company, to which they were specially affected.

The judgment of the Court below is, therefore, reversed, and it' is ordered and decreed that the plaintiffs deliver to the receiver, Chm'les W. Hornor, as representing the insolvent corporation, all the bills and notes described in the act of pledge, to be collected by him, and appropriated first to the payment of any losses of the Company ; and that this case be remanded to the Court below to settle the rights of the plaintiffs in concurso, with the other creditors of the Company; the costs of appeal to be bom by plaintiffs and appellees.


author: Voorhies, J.

text:
    J. J. Goodman & Son v. Wm. Allen et al; John Carroll v. Goodman et al; Lexington Insurance Co. v. Wm. Allen et al; John Carroll v. Lexington Insurance Co.
    The surety, on a bond for the release of property attached, cannot be made liable until the condition of the bond be broken and the principal put in delay.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      Mott, for plaintiffs.

      Bemm.es & Edwards, for Moses Greenwood, appellant.
   Voorhies, J.

The facts which give rise to this controversy are fully stated in the case between these parties, reported in 6th Annual, p. 373. John Oar-roll, as third opponent, claimed the ownership of the steamboat New Hampshire, attached in several cases, which were consolidated. By order of the Court, he was permitted to bond the steamer for the sum of $3200. The condition of the bond is, that he, as principal, and Moses Greenwood, as surety, “ agree to abide by the order of the Court, and, under the same, are responsible for safe return and restoration of the steamer New Hampshire, to abide the further order of the Court.” The only judgment rendered in those consolidated cases, was a judgment in favor of the plaintiffs against the defendants, “with privilege on the property according to the order of the respective attachments.” It is silent as to Garroll, the intervenor. On the return of nulla bona, on a writ of fieri facias, issued on that judgment, the plaintiffs took a rule on Moses Gh'eermood, the surety on the bond, to show cause'why he should not be condemned to pay the plaintiffs the amount of the bond. The rule, on appeal, was discharged by the Supreme Court as in case of non-suit, the Court assigning as reasons, “that the creditors cannot ask judgment by rule against the surety, without a fi. fa. against, or, at least, a putting in default of the principal. No call by fi. fa. or otherwise, has been made upon Ga/rroll for the restoration of the vessel or the payment of the bond.” In his petition of intervention, Gar-roll claimed his residence at Pittsburg, Pennsylvania. He died at Cincinnati, Ohio, on the 1st of January, 1848. In November, 1851, George W. Hynson was appointed curator of his estate ; and on the 17th of the same month, the the plaintiffs filed a petition against him, alleging that the suits thus instituted by them against the defendants W'ere consolidated only so far as the attachments were concerned, and that Ga/rroll was allowed to take the steamer on the conditions stipulated in his bond. That the cases were submitted to the Court and judgment rendered thereon against the defendants, “but that no express judgment was rendered against the said Ga/rroll.” They pray that the claim of Garroll, and of his succession, to the steamboat New Hampshire may be rejected and disallowed, and that he be condemned to return the steamer to the possession of the Sheriff, and, in default -thereof, that he be condemned as curator to pay them the sum of $3200. The curator answered by pleading the general issue, and reiterating the averments of Ga/rroll, whose succession he prayed be declared the owner of the vessel, and the bond released. Moses Greenwood filed the following appearance in this case: “ M. 0. Edwards and T. J. Bemmes, Esfrs, appear herein on behalf M. Greenwood, surety on the intervenor’s bond, and as far as said Greenzoood's interest is concerned they appear also to defend the curator of the intervenor, the said curator is present in Court himself.” On these pleadings the parties went to trial, and the District Court having rendered judgment in favor of the plaintiffs against Moses Q^'eenwood for the sum of $3200, the latter appealed.

We think the District Judge erred. As regards Ga/rrolVs claim to the steamboat New Hampshire, it is obvious that the question still remains unsettled; and it is equally obvious that the object of this suit was not intended to involve any other issue. It is clear that the surety cannot be made liable until the condition of the bond he forfeited, and the principal be put in delay. But it does not devolve upon us to say, whether the question of title to the vessel can affect the rights of the plaintiffs, as the cause of action is for damages resulting from a collision by that vessel.

The appellees complain of the judgment of the inferior Court, and pray that it he amended, so as to give them a judgment for the amount claimed against the-succession of Gcmroll. We are not prepared to say that they are entitled to such relief, as there was no judgment rendered by the inferior Court on their demand against the succession, and the latter is not appellant,

The conclusion to which we have come renders it unnecessary to notice the hills of exceptions in the record,

It is, therefore, decreed, that the judgment of the District Court be reversed, and that there be judgment in favor of the appellant as in case of non-suit, the costs of suit in both Courts to be borne by the plaintiffs and appellees,


text:
    David Moores v. D. G. Wire.
    By the Act of 1844, the legislature intended to afford protection to tbe sub-contractor, or workman, or the furnisher of materials, against payments made in anticipation: and, under that statute, the delivery of the attested account fixes the rights of the parties at time of the delivery.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Collins, for plaintiff.

      Benjamin & Miaou and F. Haynes, for defendant and appellant.
   Voorhies, J.

On the 20th of July, 1851, O. J. Miller contracted with the defendant for the erection of a two story brick kitchen and other work, according to specifications and plans annexed to their contract, and obligating himself to furnish all the materials and labor necessary to complete the same in a workmanlike manner. The price stipulated for this work was $2000, payable in the following proportions, viz: 1st. $850 when all the brick walls shall have been completed. 2d. $500 when the whole of the work contracted for shall have been finished and the keys delivered. 3d. $650 in three months after dale of delivery of said buildings, to be secured by a note of hand of that amount payable, &c.” On the 15th of August, 1851, the undertaker received the full amount of the first instalment,under this contract, and then abandoned the work and absconded.

The plaintiff furnished materials to the undertaker for the building to the amount of $509 ’T3, an attested account of which was duly served on the defendant on the 23d of August, 1851.

The question presented in this case is, whether the payment to the undertaker was premature, or made in anticipation.

After a careful examination, it appears to us that under the terms of the contract, which are clear and explicit, the completion of all the brick walls was essential to entitle the undertaker to the payment. The evidence shows, that such was not the case.

In a recent case, we had occasion to express an opinion as to the construction of the Act of 1844, on which the present action is founded. The principal object which the legislature had in view, in the enactment of that law, was to afford protection to the sub-contractor or workman, or the furnisher of materials, against payments made in anticipation. “ The delivery of the attested account fixes the rights of the parties at the time of such delivery.” Had the undertaker, in this case, done or completed the work or buildings, before the delivery of the attested account, it is obvious that the defendant would not have incurred any liability to the plaintiff.

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


author: Buchanan, J. Vookiiies, J.

text:
    Jean Bourbon v. Lewis Castera et al.
    Action against three defendants to annul a will and for damages. Each filed an exception that there was a misjoinder of actions. 0. specially excepted on the ground that his co-defendants were made parties for the purpose of depriving him of their testimony. The exceptions were sustained, as to the co-defendants, and the suit dismissed as to them—but the plaintiff’s right to proceed against C. was maintained. Plaintiff appealed—and on motion to dismiss the appeal because 0. had not been made a party to it—it was Held: that 0. should have been made a party. The dismissal of his co-defendants from the suit is a judgment which he has the greatest interest in maintaining, as he specially excepted that they Were made parties in order to deprive him of their evidence. Appeal dismissed.
    Appeal from the Second District Court of New Orleans, Lea, J,
   Buchanan, J.

(Voorhies, J. dissenting.) The plaintiff is appellant from a judgment which dismisses his suit as to the defendants Arthur Fleming and Felix Percy.

A motion to dismiss the appeal is made on the ground that L. Gastera, the principal defendant, and the most interested party in the maintenance and affirmance of the judgment appealed from, has not been made a party to the present appeal.

The appeal was by motion : and the appeal bond is made in favor of Fleming and Percy, their executors, administrators and assigns.

It is necessary, for the purpose of understanding the merits of this application, to state the nature of the suit, and the pleadings in the cause.

This suit has a double object: to annul a nuncupative testament by authentic act for want of a disposing mind and capacity in the testator and of legal formalities; and also to recover damages from the universal legatee, and from the notary and witnesses who drew and subscribed the will, in solido, for illegal actings and doings in the premises.

To the petition, which contained this prayer for cumulative remedies, exceptions were filed, severally, by all the defendants who have been cited, namely, the universal legatee Louis Oastera, the notary Felix Percy, and one of the subscribing witnesses of the will, Arthur Fleming. Each of these parties excepted that there is a misjoinder of actions—that the action for damages is premature-—and that the plaintiff is not the heir at law and next of kin, as he pretends, but an officious intermeddler. In addition to these exceptions, Louis Oastera specially charges and excepts that the plaintiff had made his co-defendants parties defendant herein, for the purpose of depriving him of the testimony of the persons thus illegally made defendants.

All the exceptions came on regularly for trial at the same time in the Court of the first instance, and were tried and submitted for decision together.

The judgment is in the following words : “ The Court having duly considered the exceptions filed by the defendants to plaintiff’s petition, for the reasons assigned in the written opinion, this day delivered and on file, it is ordered, adjudged and decreed, that the exceptions filed herein by Arthur Fleming and Felix Percy be maintained, and that so far as relates to said defendants the suit be dismissed. It is further ordered, that the right of the plaintiff to proceed in the said suit as against the defendant Oastera alone, be maintained.”

It appears to us, that Oastera should have been made a party to the appeal. It is very evident that the dismissal of his co-defendants from the suit, is a judgment which he has the greatest interest in maintaining. He makes it a special ground of exception that he needs the evidence of his co-defendants upon the matters tending to the annulling of the will, which is an issue that concerns himself alone; and that he is in danger of losing the benefit of that evidence, by the cumulation of distinct causes of action and the joinder of distinct liabilities and defendants, which this petition contains.

The judgment'appea-led from must be viewed as much the property of Costera, (Code of Practice, art. 548,) as of Fleming, or of Percy.

Appeal dismissed, with costs.

Vookiiies, J.

(dissenting.) This suit is instituted by the plaintiff as sole heir of Jacques Germain Thierry, who died in New Orleans about the 16th of March, 1852. The action is founded principally on the allegation, that the succession of the deceased is withheld from the plaintiff in consequence of the unlawful combination and contrivance of the defendants Louis Oastera, Felix Percy, Jean Grewlin, Joseph Nicolas and Arthur Fleming; the first, the instituted heir, the second, the notary, and the three last named, the witnesses to a pretended will, made in favor of Oastera, by virtue of which the latter took possession of said succession, worth upwards of $20,000. The plaintiff avers, that said will vras made at a time when the deceased was mentally and physically incapable of making a will, of which the defendants were aware. He, therefore, prays that the will be declared null—that Oastera surrender the succession, and that all the defendants be condemned to pay him, in soUdo, the sum of $5000 for their illegal acting in the premises.

This action was met in the District Court by exceptions on the part of Gaitera, Percy and Fleming, in which they averred, in substance, that Oastera was the only party in interest against whom the action to annul the will of the deceased could be legally brought, the plaintiff having maliciously and fraudulently made the others parties for the purpose of depriving him of their testimony-—that the plaintiff had joined two distinct causes of action against several defendants, when it was apparent, from his own showing, that Oastera was alone interested in the first pretended cause of action, in which the other defendants had no legal interest whatever; and that the second alleged cause of action could not, at any rate, be prosecuted until the first, for the nullity of the will, was determined, &c. The exceptions were filed separately. The plaintiff is appellant from a judgment sustaining the exceptions of Percy and Fleming.

The judgment is in these words: “Each of the defendants except to the petition filed herein, on the ground that distinct causes of action cannot be urged against different defendants in the same suit. The nullity of the will has no necessary connection with the claim for damages so far as all of the defendants, except Oastera, are concerned, and the principle on which the exception rests appears to me correct. The Court, having duly considered the exceptions filed by the defendants to plaintiff’s petition, for the reasons assigned in the written opinion this day delivered and on file, it is ordered, adjudged and decreed, that the exceptions filed herein by Arthur Fleming and Felix Percy be maintained, and that, so far ás relates to the said defendants, the suit be dismissed. It is further ordered, that the right of the plaintiff to proceed in said suit, as against the defendant Oastera alone, be maintained.”

The appeal bond is in favor of Fleming and Percy.

The appellees have filed a motion to dismiss this appeal, on the ground that Oastera, who has an interest in maintaining this judgment, has not been joined or made a party to the appeal. In support of the motion, the appellees rely on the cases reported in 9 L. R. 473; 12 ibid, 475; 12 R. R. 180; 5 Ann. 174; 4 ibid, 577; and on the case of Cousin v. Blanc, Opinion Book, No. 23, p. 159. In those cases, it is said, that the principle recognized as our settled practice and jurisprudence is, that the appellate Court will invariably refuse to take cognizance of an appeal, and will dismiss it, whenever it shall appear that all the parties having an interest in the maintenance of the judgment, are not before the Court. It is urged, that Oastera has an interest in the affirmance of the judgment appealed from, because it secures to him the advemtaae of a separate and distinct trial from the nota/ry and the witnesses, and is the only party that would really suffer by the reversal of the judgment, as he would be deprived of his best, if not sole evidence in the case—that of the notary and witnesses.

The action, in this case, is clearly an action founded on an offence, or quasioffence, under the provisions of articles 2294 and 2304 of our Code. In an ordinary action to annul a will in relation to the incapacity of the testator, arising from mental infirmity, or other causes, I apprehend the argument of the appellees’ counsel would have much weight. But does it apply in the present case, where the instituted heir, the notary, and the witnesses are all charged with collusion in maleing the pretended xoill? I cannot think so. Though it may be considered a great hardship by the party to be deprived of the testimony of his co-defendants, yet, from the very nature of the transaction or collusion charged against him, it seems to me, that their interest in the subject matter must be considered identical, and such as to exclude the testimony of one in favor of the other. The action being one purely of tort, where all the parties are bound in solido for the damages resulting therefrom, it follows, therefore, that none of them should be discharged from the action. I am unable to concur in the opinion of the District Court, that two separate and distinct causes of action are embraced in the plaintiff’s petition. I consider a collusion in making a false will as constituting the cause of action, and the damages merely the consequence of the act perpetrated. If the act be declared to be the production of fraud and collusion, it also follows as a consequence, that the party who holds the property under it, is bound to surrender it. Thus it appears to me that the damages and the surrender of the succession, are matters which are incidental to the principal action. As fraud or collusion is never presumed, except in certain specified cases, and this is not one of them, but must be supported by proof, it is clear that if the plaintiff fails to make good his allegations, by legal and competent proofs, no injury whatever can result to the appellees. I do not consider a prosecution of the notary under the Act of the 7th of June, 1806, as a necessary pre-requisite to the right of action in this case.

Tested according to the principles which I have advanced, ought the motion in this case to prevail ?

It is necessary, in the first place, to inquire whether there is any judgment in favor of, or against Gastera; and, in the second, if so, what is the nature of the interest which he has acquired under it. It is clear that Gastera, so far as his pecuniary liability is concerned, cannot be affected either by the affirmance or reversal of the judgment. Having assumed, by his exception, the whole liability, it appears to me quite immaterial whether, in that respect, the appellees be joined again in the action with him. But it is urged, that Gastera has acquired a right under the judgment to the benefit of the testimony of the appellees.

The question presented then is, whether the interest, or benefit, acquired by Gastera, under the judgment, is such as to require him to be made a party to the appeal. The cases on which the appellees rely for success, do not, in my opinion, bear them out. There is no doubt but what the rule is clearly settled, that all the parties must be cited, or made parties to the appeal, who have an interest to maintain in the judgment which is sought to be reversed or amended. But that interest, in my opinion, means such an interest as the party has in the subject-matter in dispute, and not to extraneous circumstances, or such an interest or benefit as Gastera expects to derive from the testimony of the appellees.

I am, therefore, of opinion that the appeal ought not to be dismissed.


author: VooRniEs, J.

text:
    Bach, Barnett & Co. v. Abraham Leopold—A. Levy, Intervenor.
    l'he revocatory action cannot be exercised by individual creditors until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit for liquidating the debt, brought against the original debtor. Code, 1967.
    Appeal from the District Court, Third District, Olorice, J.

      I. If. Ogden & Labatt, for plaintiffs and appellants.
    Dorsey, for defendant.

      Maries & Gotten, for intervenor.
   VooRniEs, J.

The attachment obtained by the plaintiffs in this case, based on the provisions of articles 242, 243 and 244 of the Code of Practice, as amended by the Act of 1826, was levied on certain goods, as the property of the defendant. A. Levy intervened in the suit and claimed the ownership and possession of the goods, and also $1600 as damages resulting from the illegal seizure thereof.

The attachment was dissolved on the 1st of April, 1852. The grounds urged by the defendant for its dissolution, were, that the affidavit was untrue, irregular, and not in compliance with the requirements of law ; that it was issued without the authority of the Judge; and that the bond was not legally executed. There are no reasons assigned in the judgment for its dissolution, neither does the record afford us any light on the subject. It appears that an appeal was taken from this judgment, but abandoned.

The defendant also pleaded, as a dilatory exception, the prematurity of the action. No disposition appears to have been made of this exception-—indeed, it is very questionable whether any was necessary, as the attachment essentially constituted the basis of the action,

The intervention was filed on the 21st of April, 1852. The principal grounds of objection, urged by the plaintiffs, against the intervenor’s demand, are, that the sale to him from the defendant is collusive, fraudulent and simulated ; and if not simulated, that it is fraudulent and void, because it gives an undue preference or advantage to the intervenor over the other creditors of the defendant, whose insolvent circumstances were then well known to him.

The issues between these parties were tried by a jury, who found the following verdict: “We, the jurors, find a verdict that A. Levy, intervenor, is owner of the goods seized by the Sheriff in this case, and we also find a verdict for four hundred dollars damages in the intervenor, A. Levy's favor, and against Back, Barnett & Go." The judgment on this verdict is in these words:— “The Court considering the verdict of the jury and the law and the evidence being in favor of the intervenor, it is ordered, adjudged and decreed, that A. Levy be and he is hereby declared the owner of the goods seized by the Sheriff in this suit, and that the possession thereof be delivered to him. It is further ordered and decreed, that said intervenor and third opponent, A. Levy, recover of Back, Ban’nett & Go., the sum of four hundred dollars damages and the costs of suit.” It is objected that this judgment is not pursuant to the verdict. We think otherwise. The ownership of the property and the assessment of the damages resulting from the illegality of the seizure thereof, obviously constituted the subject-matter in litigation which was submitted to the jury. The judgment rendered thereupon, decreeing the possession of the property to be delivered to the intervenor, was therefore merely incident to the verdict and essential to give it effect

The third opposition in this case was evidently converted into a revocatory action. Article 1967 of our Code provides, that this action “cannot be exercised by individual creditors until their debts are liquidated by a judgment, unless the defendant, in such action, be made party to the suit for liquidating the debt brought against the original debtor, &c.” 1 R. R. 525. As we consider this fatal to the plaintiffs’ right of action, it is unnecessary for us to express any opinion on the other points presented in the case.

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


text:
    United States, for the use, &c. v. the Union Bank.
    The Act of Congress of 8d March, 1849, which authorizes the Secretary of the Treasury to discharge the sureties of Thomas GiVbes Morgan from the payment of one-third of the judgment against them, on their paying or securing the residue, does not assign to the sureties the rights of the Government against parties with whom Morgan had dealt officially. The assignment made by the Secretary to the sureties, and the permission given by that officer to them to use the name of the United States for their benefit, was unauthorized by law.
    As a general rule, it is more than questionable whether the Court, in an action of this kind, can disregard the usees, and give a judgment for the nominal plaintiff. But in the present case, public policy, no less than legal principle, and the peculiar facts disclosed in evidence, preclude us from allowing the usees to disappear, and to substitute another actor in their place.
    The use of the name of the Government, with all its privileges and prerogatives, in the prosecution of individuals, for the benefit of other individuals, must be discountenanced by this Court.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Kunton and Benjamin & Micou, for plaintiffs.

      Denis and Durant & Kornor, for defendant.

      Benjamin & Micou,, for plaintiffs :
    The objections of the defendant on this point seem to bo pointed against the power of the officers of the Government to collect the money claimed for the use of Morgan's sureties.
    The plain answer to those objections is this : If the defendant be really liable under the facts stated in the petition, (and they must be taken as true for the purposes of this argument,) then none but the United States have the legal right to sue, and the statement in the petition that the suit is brought for the use of others cannot impair this legal right. It is a matter with which the defendant can have no concern, whether the money is to go into the public treasury, or into the coffers of private persons. The only right of a party defendant under such circumstances, is to demand ■ that the suit be brought in such form as to render the decision, if given in his favor, final and conclusive—or if against him, to protect him from any claim by other parties on the same cause of action. In the present case the parties are such as to secure this result, and there is, therefore, no right in defendant to inquire into the fact whether or not Morgan's sureties will profit by a decision in favor of plaintiffs. It suffices for him to know that the decision in this cause will be forever final, as to the rightof action, whether that decision be favorable or adverse to his pretensions. 2 Ilennen’s Dig. p. 1118.

      Denis and Duramt & Kornor, for the Bank:
    This suit was brought in the name of the United States without authority of law, and must therefore fall.
    It is not in the power of any one, at his own choice, to bring a suit in the name of the United States; this is self-evident. Nor is it sufficient that he who brings the suit should simply be a United States officer; this is equally clear. He must be the officer vested by law with authority to institute judicial proceedings in their name, and in support of this we proceed to quote the statutes.
    According to the evidence adduced on the trial, this suit, as far as the United States is concerned in it, is brought under the authority of the Solicitor of the Treasury. The powers and duties of that officer are prescribed by the act of 29th May, 1830, Sec. 1, (4th Statutes at Large, page 414) entitled “ An Act to provide for the appointment of a Solicitor of the Treasury,” which declares “ that there shall be appointed by the President of the United States some suitable person, learned in the law, to be Solicitor of the Treasury ; and that all and singular the powers and duties which are by law vested in, and required from the agent of the Treasury of the United States shall be transferred to, vested in, and required from the said Solicitor of the Treasury ; and the said Solicitor of the Treasury shall also perform and discharge so much of the duties heretofore belonging to the office of Commissioner, or acting- Commissioner of the Revenue, as relates to the superintendence of the collection of outstanding, direct and internal duties.” The duties of Commissioner óf the Revenue are defined by the sixth section of the Act of 8th May, 1792, 1st Statutes at Large, page 280, entitled “ An Act making alterations in the Treasury and War Departments,” and provides that the “ Commissioner of the Revenue shall be charged with superintending, under the direction of the head of the Department, the collection of the revenues of the United States, other than duties on impost and tonnage.” If under this the Commissioner had, by implication, the power to cause suits to be instituted, it may be granted that the Solicitor has the same, but only for the purpose mentioned in the act of 29th May, 1830, above quoted, viz : to enforce the collection of the outstanding, direct and internal duties, he would have no power to bring suit for the collection of duties on impost and tonnage, or to recover such from any party with whom they may have deposited.
    The duties and powers of the “Agent of the Treasury,” the only others vested in the Solicitor, are defined in the first section of the Act of 15th May, 1820, 3d Statutes at Large, page 592, entitled “ An Act providing for the better organization of the Treasury Department,” which says, “ That it shall be the duty of such officer of the Treasury Department, as the President of the United States shall, from time to time, designate for that-purpose, as the Agent of the Treasury, to direct and superintend all orders, suits, or proceedings in law or equity, for the recovery of money, chattels, lands, tenements, or hereditaments, in the name and for the use of the United States.” Here is given, in regard to legal proceedings, merely the faculty of guidance and direction; he has no power to institute proceedings or prosecutions. If a Collector of Customs, Receiver of Public Moneys, or other public officer make default, the Comptroller of the Treasury must make out his account, and send it to the agent, with instructions to have process issued (see same Act and page, section two;) for the Agent or Solicitor can know nothing of the state of any man’s account, and must himself wait for instructions on that head, before he can have suit brought for the amount found due. So, in case Congress should see fit to claim any particular lands or tenements, that body would order suit to be brought, and the Solicitor would guide, direct, and superintend the proceedings; but to order suits from his own prompting, he has no power, for, as is shown, none such is given to him. This power, so far as money due the United States is concerned, is lodged with another officer, viz: the Comptroller, as will be found by reference to the third section of the Act of September 2, 1789, entitled “An act to establish the Treasury Department,” 1st Statutes at Large, page 66, which says “that it shall be the duty of the Comptroller to superintend the adjustment and preservation of the public accounts, etc. He shall, moreover, provide for the regular and punctual payment of all moneys which may be collected, and shall direct propositions for all delinquencies of officers of the revenue, and for debts that are or shall be due to the United States.”
    Here wo find that it is the Comptroller alone who is clothed with authority to adjust accounts for money due the United States, and to originate prosecutions for its recovery, while it is the duty of the Solicitor to take the direction and superintendence of such suits after thejr have been ordered to be brought. In the present case no order ever emanated from the Comptroller to the United States Attorney in New Orleans, to institute suit against the Union Bank; his orders came irom the Solicitor alone, who,, as we have seen, had no power to give them, and the suit is therefore brought without authority, and must fall.
   Buchanan, J.

This suit is instituted in the name of the United States of America, “who sue for the use and benefit of Thomas W. Chinn, Mieajah Gourtenmj and Josiah Barker.”

It appears that Messrs. Ghinn, Courtenay and Barker, together with one Davenport, deceased, were the sureties upon the official bond of Thomas Gibbes Morgan, as Collector of the port of New Orleans; that after said Morgan resigned said office, suit was brought by the United States against him and his sureties for a large balance, alleged to be due by him to the public Treasury. A judgment was rendered in that suit against Mr. Morgan and his sureties, jointly and severally, for the sum of $60,569 57. After this judgment,, an act of Congress was passed for the relief of the sureties of Morgan, which act, being short, is here copied in full:

“ Suction 1. Be it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be and he is hereby authorized to discharge Thomas W. Chirm and Mieajah Courtenay, and the other sureties of Thomas Gibbes Morgan, late Collector for the District of Mississippi, from the payment of one-third of the principal and interest of a judgment rendered against them in the Circuit Court of the United States, in and for the Fifth Circuit and District of Louisiana, upon their paying or securing the payment of the residue of said judgment, to the satisfaction of said Secretary: provided, the Secretary of the Treasury shall not be authoi'ised to make the compromise of the claim as aforesaid, unless he shall be satisfied that, from the parties’ pecuniary ability, said Collector and his sureties, the said claim is not collectable; and also that it is for the interest of the United States such compromise be made. Approved 3d March, 1849.”

Under this act of Congress, Messrs. Chinn and Courtenay proposed to the Secretary of the Treasury that, upon being credited with one-third of the judgment, they would pay the entire balance of the same, in equal annual instalments of one and two years from the 30th June, 1850—afterwards extended to one, two and three years—and for such payment to give such security as would be deemed good and sufficient by the District Attorney of Louisiana.

The Solicitor of the Treasury, J. C. Olearle, in a report to the Secretary of the Treasury, dated the— June, 1850, recommended that the proposition thus made by Chinn and Courtenay, be accepted, being convinced that the principal and sureties were unable to pay thejudgment, and that the interest of the United States would be promoted by making the compromise.

The Secretary of the Treasury, W. M. Meredith, having approved of this i-eport, and referred the matter back to the Solicitor to have the amount adjusted, that officer, by a report dated June 21st, 1850, adjusted the amount to be paid for the two-thirds of the judgment and interest, and deducting $17,000 paid on the judgment on the 19th April, 1848—at the sum of $27,034 94, and directed said balance to bo settled by six notes, of equal amount, two payable one year, two payable two years, and two payable three years after the 21st June, 1850 ; and the Solicitor further added, that upon Chinn and Courtenay furnishing the said notes, they might use the judgment for the purpose of compelling their principal {Morgan,) and their co-sureties, Ba/rlcer and the representatives of the estate of Davenport, to pay their just proportions of the amount to be secured to the United States by said Chinn and Cowrtenay ; any money to be collected upon thejudgment from Morgan, Barlcer or Davenport's representatives, to inure to the common benefit of Chinn and Courtenay; and in the event of either of them, Morgan, Ba/rlcer, and Davenport's representatives, coming in and paying their proportion of the amount thus to be secured to be paid by the said Chinn and Courtenay, then the judgment shall inure to the benefit of said Chinn and Courtenay, and the party, or parties, thus coming in and paying his or their proportions, as aforesaid.

The Solicitor of the Treasury concludes this adjustment and report, by empowering Ohinn and Courtenay, and any other of the defendants in the judgment who shall come in and pay their proportion as aforesaid, to use the name of the United States to recover from anjr person or persons, or from any corporation or banking institution, any amount of money which the United States might recover on the institution of suit against them, or any of them, and which they, or any of them, are liable to pay, on account of any moneys by said Morgan deposited with them, or either of them, as Collector of the port of New Orleans, and by them, or either of them, paid over to the said Morgan illegally, the United States to be saved harmless from all costs and charges incurred in consequence of their name being used for such purposes.

It has appeared to us, after an attentive consideration of the evidence, that this contract of Messrs. Ghinn and Gourtenay with the Treasury Department, as it is styled by Mr. Ghinn, in a letter addressed by him to the Secretary of the Treasury on the 22d July, 1850, has mistaken the letter and the spirit of the act of Congress of the 3d March, 1849, for the relief of the securities of Thomas Gibbes Morgan. Congress is alone competent to make a gift of the property of the United States. The judgment against Morgan and his sureties was undoubtedly the property of the United States. The act declaratory of the will of Congress, in relation to it, is as clear as it is brief. It authorizes the Secretary of the Treasury to discharge Morgan’s securities from the payment of one-third of the judgment, on their paying or securing to their satisfaction the payment of the residue of the judgment. This was clearly a release made by Congress to certain debtors of the nation, of one-third of their debt, on condition of their paying or securing the other two-thirds. Such release was unaccompanied by any assignment to Morgan’s sureties, of the rights of the Government against parties with whom Morgan had dealt in his official capacity. The assignment made by the Solicitor of the Treasury to Ghinn and Gourtenay, and the permission given by that officer to those gentlemen to use the name of the United States for their own benefit, are viewed by us as unauthorized by law, and as conferring no right whatever to maintain the present action.

It is possible that the United States may have a legal claim against the Union Bank, for moneys deposited in the Bank by Morgan, as Collector. We do not, however, consider ourselves required to go into the consideration of that question, at this time. In the present action, the real plaintiffs are Ghinn, Govzrtenay and Barlcer. See 4 N. S. 135. 6 Rob. 17. Avowedly, any judgmont that we might render herein against the defendant, would inure to their benefit. The pretended assignment of the rights of the United States by the Solicitor of the Treasury, is an essential part of the plaintiff’s case, and has been so treated by us in this opinion. The decision to which we have come being adverse to the validity of the assignment, the action must fail.

It has been contended by the counsel for plaintiffs, en dernier ressort, that although the United States have brought this suit for the use and benefit of individuals, yet the Court may enter up judgment herein in favor of the United States for their own benefit, should the assignment be declared invalid.

As a general rule, this is more than questionable. We have seen that in an action of this kind, our jurisprudence considers the usee as the real plaintiff. The statement of the petition gives the Court to understand that the interest is in him. It seems anomalous that the Court should give judgment in favor of a party not, in reality, interested in the suit.

But, in the present case, public policy, no less than legal principle and the peculiar facts disclosed in evidence, preclude us from allowing the usees to disappear from the scene of litigation, and to substitute another actor in their stead.

The letter of Thomas W. Ghinn, to the Secretary of the Treasury, of the 22d July, 1850, claims as a right, under his contract with the Treasury Department, the immediate transmission and “Ml and faithful” assignment to Gowtenay and himself, of “the judgment obtained by the United States against Morgan an(j ]jis sureties,” as well as of “ all claim or lien which the United States may have against the Union Bank of Louisiana“ wo, the said Courtena/y and 01mm, to have and enjoy all the rights and benefits that may accrue to us from the said assignment.” Accordingly, we find that the acting Solicitor of the Treasury, in a letter of the 10th August, 1850, addressed to the District Attorney of the United States, at New Orleans, informs that officer that Messrs. Ghinn and Oourtencvy, having fulfilled all the stipulations of the arrangement made by them with the Secretary of the Treasury, on the 21st June, 1850, “ are now entitled to all advantages which said arrangement accords to them, and it is the desire of the department that you render them every aid and facility necessary to their full enjoyment. To this end, you are hereby authorized to do any and every official act which may be necessary on the part of the Government to make them available and effective, talcing care that in all they may deem it their interest to do under the judgment against Thomas Gibbes Morgan and his sureties, or in proceedings against any othm' person, corporation, or banking insiibuiAon, mentioned or referred to in said arrangement, they keep the United States free from all costs and expenses; it being clearly understood that whatever may be done, must be done at their own proper cost and changes. I have enclosed to Mr. Ghinn a copy of this letter, and informed him that he is now at full liberty to proceed as he may deem proper under the arrangement referred to.” Three ’months after that letter was written, the petition was filed in the present suit—a petition signed by the District Attorney of the United States, the same to whom the letter was addressed; but the position of that officer in the suit is most distinctly defined by the letter itself. In the institution of the suit, he has but expressed the will of the usees, and the suit itself is entirely under the control of the usees, for théir exclusive benefit, as it is at their exclusive charge.

This use of the name of the Government, with all its privileges and prerogatives, in the prosecution of individuals for the benefit of other individuals, without sanction of law, must be discountenanced by this Court. Were the claim against the defendant presented to us as a bona fide claim of the Government, divested of the circumstances which surround it, it would become our duty to examine and decide the important questions of law, relating to the liabilities of the Union Bank under its contracts with Morgan, as Collector. In its present shape, we cannot entertain the claim.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both Courts, and without prejudice to the rights of the United States, if any they have, against the defendant.