text:
    Succession of Joseph Fowler.
    Where, for a number of years, an agent rendered important services to his principal, although there was no contract for compensation, nor any intention to charge for bis services while their relations existed; yet, where, from their habits of friendly intercourse and from the evidence, it may be inferred that the one intended and the other expected that, upon the termination of those relations, a liberal reward would be made for the services, and the principal died intestate and without making any reward, the agent may recover from the succession a reasonable compensation.
    The general rule of the Louisiana Code is, that a mandate is gratuitous; but where, from the nature of the business or conduct of the parties, it appears that no such thing was intended or expected, the law is otherwise.
    It cannot be presumed of one who has been released from his debt to a creditor, by a discharge in bankruptcy, that services, subsequently rendered to the creditor, as agent, are intended to be gratuitous; and the fact that friendly relations existed between the parties, does not assist the presumption. A moral obligation cannot compensate one which is legal.
    from the Second District Court of New Orleans. Lea, J.

      John R. Grymes, for the plaintiff:
    The appellants oppose all compensation, and insist that the relations between the parties are to be governed by the law of mandate, which, they say, is in its nature gratuitous, and none can be allowed under Art. 2960 of the Civil Code. For all the purposes of this case, the appellee is perfectly willing to meet them on this ground.
    It is admitted that, by the Roman law in its earlier stages, the contract of mandate was gratuitous in its nature and in its essence, but the spirit of progress, and the necessities of the more complicated nature of human affairs, compelled the Roman jurisconsults to relax the rigour of the law in this respect, and although they would not allow the action mandati, yet they would allow the action, prescriptis verbis or in factum, as on a contract without name, apersecutio extraordinaria. But, by the laws of France, under the regime of the Code Napoleon, and under the Louisiana Code, although the contract of mandate is in its nature gratuitous, it is not so in its essence. The court will find this matter very satisfactorily treated and explained by Mr. Troplong, in his work, Du Mandate, No. 154 to No. 175 inclusive. See also 18th Duranton, No. 197.
    Such is the doctrine, long established in this State, under the legislation of the Louisiana Code. The contract of mandate is not essentially gratuitous; a contract for compensation is lawful. Express proof of it is not required, it may be implied, from the nature of the services and all the circumstances of the case. Deeoux’s Heirs v. Plantevigne, 10 L. R., 503. Waterman v. Gibson, 5th Ann. 672.
    But the appellee is persuaded that, independent of the contract and law of mandate, the law entitles him to, and will give him an action to recover, a reasonable compensation for the services rendered the deceased in his lifetime, under the circumstances developed by the evidence in the record, on the principles laid down by this court. O’Reily v, McLeod, 2d Ann. 146. Police Jvrry v. Hampton, 5 N. S. 389. 5 R. R. 181. 18 L. R. 539. L. Code, arts. 2274, 2278.
    See also Rolland de Vellarque Traite du Notoreal verlo mandat, vol. 4, p. 449, No. 11. Merlin R. de Juris, vol. 21, verbo notaire, §6, No. 4, and the decisive argument of Pothier there quoted. Dalloz, 1827, part 2, p. 184, a case exactly like the present. Journal du Palais, vol. 21, p. 337. Project du code du commerce, prepared by Livingston and others, art. 189. Sirey, vol. 27, part 2, p. 102. Sirey, vol. 36, part 2, p. 503. Journal du Palais, vol. 21, p. 129.
    The appellee therefore prays that the judgment of the court below may be reformed or reversed, as he has prayed in his answer to this appeal, now on file, and that, in all other respects, it may be affirmed.

      Roselius, and Race and Fotler, for defendant:
    How does it happen that Mr. Bogart does not make any charge for, his valuable services rendered previously to the year 1843? This question is answered by the fact that, in 1842, he applied for, and obtained a discharge from his debts, under the Act of Congress, establishing a uniform system of bankruptcy. He was, of course, bound to make a surrender of all his ¡property, embracing all claims he might have a right to make against his debtors, to his creditors. But no claim whatever against Joseph Fowler is found on his schedule. How can Mr. Bogart account for this omission, except on the ground that he had no claim against Mr. Fowler ? In order to obtain the benefit of the bankrupt law, and have all his debts cancelled and expunged by a decree and discharge in bankruptcy, he was bound to divest himself of every thing he owned, or was due to him, in favor of his creditors. Joseph Fowler was one of his creditors for upwards of sixty thousand dollars, consequently, if he had any offset to make against this large debt, is it possible to believe that he would have omitted to state it ?
    What then is the irresistible conclusion to be drawn from these facts ? No other than this, that the claim for fifty thousand dollars is a mere after-thought; and 'that if Fowler had lived, Mr. Bogart would never have had the remotest idea of making it; nay, that the kind offices rendered by Bogart to Foviler, proceeded from the noblest motives of human action; gratitude for the benefits conferred, and feelings of friendship, originating from the intimate relations which had so long subsisted between them, commencing as far back as 1825, when Mr. Bogart was first employed by Fowler as his confidential clerk.
    Now, we would ask, by what course of reasoning can an impartial and intelligent mind be brought to the conclusion, that it ever entered into the contemplation of either Bogart or Fowler, during the lifetime of the latter, that the services rendered by the former should be compensated by the payment of fifty thousand dollars, or any other sum of money? From what source does this pretended obligation arise ? It is admitted that the services were rendered as agent; and the law is express, that “the procuration is gratuitous, unless there have been a contrary agreement.” C. C., art. 2960. But the learned counsel for the appellee insists, that this agreement need not be proved to have been made in express term, and that it may be established by implication; or, in other words, that it may be inferred. It was hardly necessary to cite authorities in support of a position which is self-evident. There are few contracts indeed, the existence of which may not be implied from facts and circumstances. One of the most important frequent contracts, that of sale, is, in many cases in commercial dealings, implied from the contract and acts of the parties. No one, therefore, would even seriously contend that an agreement to pay an agent a compensation for his services might not be implied. But, on the other hand, it is equally plain that there must be some other foundation for the implication, than any thing that is disclosed by the evidence in this record.
    We all agree that the contract of mandate, according to the law of Louisiana, is, by its nature, gratuitous, instead of being essentially so, as under the Roman law. The inquiry then arises, what is of the nature of a contract? This question is answered by the second paragraph of the 1757th article of the Code: “ things, which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract, or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract, or destroying its effect.” See Pothier on Obligations, No. 7.
    Hence, the gratuitous character of the contact of mandate is understood when no express or implied stipulation to the contrary has been made by the parties. In the present case, it is not pretended that an express agreement to compensate the mandatory for his services, has been shown : the question then recurs, is there any evidence, or are there any circumstances from which it may be implied? There are none, unless the disappointment of Mr. Bogart, in not being remembered in Fowler’s will, be considered so. Indeed, the whole'argument pf the learned judge of the district court seems to rest on that fact. All the acts and declarations of Mr. Bogart, already referred to, so utterly irreconcilable with the pretensions now set up by him, are attempted to be accounted for and explained away by his expectation of a remunerative legacy ! Fortunately for the peace and harmony of society, litigation is rapidly decreasing; but, let it once be known, that every disappointed legacy hunter can maintain an action for the recoveiy of fifty thousand dollars against a wealthy succession, for his apparently disinterested acts of friendship and attention to propitiate the good will of the rich man while living, and the dockets of our courts will soon be crowded. But, if Mr. Fowler intended to reward his friend for the services rendered, by remembering him in his will, how does it happen that he destroyed the will which he had made.
    Not a single one of the cases cited by the counsel for the appellee, supports the position in support of which they are invoked.
    The leading principles applicable to the case, are developed with great force and clearness by Troplong, in his treatise on Mandate, No. 153, et seq.

    The only case in point is that of Jacob et al. v. The Ursuline Nuns, 2 M. R. 269. 1 Greenleaf, § 15,27. C. C. 2270. Elkin's Heirs v. Elkin's Ex., 11 L. R. 224. 13 Wendell, p.464. 4 Dallas, 111-.- 13 Johns. R. 379, are also referred to.
   By the court:

Preston, J.

Joseph Fowler departed this life in September, 1850. He died intestate and without heirs in this State. He was possessed of a very large estate in New Orleans, and W. Bogart was appointed curator of his succession.

In July, 1851, he rendered the account of his curatorship and claims from the estate, besides his commisions, the large sum of fifty thousand dollars. The heirs oppose its allowance.

In answer to their opposition, he stated as the grounds of his claim, that it is for constant and continuous and uninterrupted attention to all the business of the deceased, for the whole of the period, from 1843, to the time of his death, the deceased being a large owner of real estate in the city of New Orleans, requiring constant attention to the renting and repairing his houses, collecting the rents, and all other attention and services necessarily incidental to a large mass of such property. The deceased was also a capitalist, dealing largely in money, making loans on mortgage, and discounting notes to a large amount, all of which was attended to, solely and exclusively by the respondent, constantly and unremittingly, his counting room being the place where all the books, papers, and valuables of the deceased were deposited.

His witnesses in support of the claim are, R. J. Palfrey, the cashier of the bank in which the deceased kept his personal assets, consisting, at his death, of good bills, receivable notes and mortgages, amounting to upwards of eight hundred thousand dollars; J. K. Smith and L. F. Generes, extensive money brokers, who had large transactions with him; Samuel J. Peters and W. H. Avery, both'presidents of banking corporations, and old established merchants of New Orleans; Lavillebeuve, a merchant and large property holder; J. W. Montgomery, a large capitalist,- and who appears to have been intrused with an olographic will of the deceased, but which was destroyed; Mr. Qrym.es, his confidential counsellor; and Dr. Rushton, his physician.

All these gentlemen were well acquainted with the deceased and his business, the relations between him and the claimant, and, in general, the means by which his vast fortune was accumulated. Their testimony makes out fully and satisfactorily, the grounds stated by Mr. Bogart, as the basis of his claim.

The deceased laid the foundation of his fortune by great activity, and energy and good judgment in mercantile operations. Retiring with a considerable capital, and uncommon sagacity and knowledge of men and things, he selected the claimant as his agent, through whom still to operate with his capital on the bills, notes, and other evidences of credit, so exclusively the medium of our commerce. That his selection was fortunate, is proved by the result; the ball was kept rolling and increasing in magnitude, to the hour of his death. While a different selection might have proved disastrous, from circumstances peculiar to Fowler, to which some of the witnesses allude.

His physician says, he was in bad health during the whole of the seven years, for which compensation is claimed; that he had fallen into such a disposition, that he would walk a mile to save a dime, but would not cross the street to make thousands. Although the remark of the witness was probably intended merely to illustrate his character, those acquainted with the effects of avarice upon age and infermity, know that it is literally true, rather than amere illustration of the character of a miser; and yet he was daily making large sums through the instrumentality of his agent. He was, at the same time, saving dimes by denying himself the comforts and even necessaries of life, as proved by the physician; whilst he was on the eve of losing a very large sum, as proved by his counsel, from mere listlessness, though warned of the danger, and which was saved by the promptness and energy of his agent when it was communicated to him.

In the latter part of his life, there were physicial inabilities which rendered the services of the agent the more invaluable to him. At one time he was confined six months by sickness. He became intemperate and was hypochondriacal, saying he would die in a week, when, but for the effect of intemperance on his debilitated and irritable system, he would possibly have lived to an old age. He was also often absent during the summers.

The aggregate testimony of the claimant’s witnesses shows, that the deceased referred all his customers and business to him, and kept it all in his counting house, and that whether he was sick or well, present or absent, the agent was, to use the expression of one of the witnesses, substantially his curator for three years before his death. These gentlemen, men of the highest standing in the community, estimate his services as worth fifty thousand dollars to Fowler, during the seven years. Mr. Urquhart, an extensive agent for absent capatalists and property holders, furnished the court with specific data upon which he acts, which appear very reasonable, and which would fully justify the demand of the claimant.

On the other hand, the heirs show two very large operations, amouuting to $130,000, which Mr. Fowler transacted personally. They show that he discounted the paper of the mercantile firm of the agent, to the amount of upwards of $200,000, and that his credit gave them great facilities in the commercial world, and patronage from the planters of our country. They urge that the agent was obliged to avail himself of the benefit of the bankrupt law, and was then indebted to the deceased in a sum of $60,000, which there is a moral obligation upon him to pay; and that he has received $30,000 for commissions, as curator of the estate.

There was no contract between the parties, nor do we think any intention on behalf of the claimant, to ask payment for his services while their relations existed. But we do firmly believe, from their relations and the evidence, that the one intented, and the other expected, that if their relations terminated, a very liberal reward would be made for those services. The nature and character of aged avarice rendered it morally impossible, that that reward would be made during life, and the early and long continued friendship of the parties, and great reciprocal kindness, rendered it impossible to ask it until Mr. Fowler’s death, or other separation.

Can the compensation then be legally demanded from the heirs of the deceased? The general rule of our code is, that a mandate is gratuitous; but is it so, if the nature of the business or conduct of the parties show, that no such thing was intended or expected. The contrary is the well settled jurisprudence of France, under a code very similar in its provisions to our own. In preparing a commercial code for our State, our distinguished jurisconsults expressly engrafted the principle into their project, and it is so perfectly conformable to every man’s sense of justice, that we feel bound to act on the principle; and, in fact, did adopt it in the case of Waterman v. Gibson, 5th Ann. 673. The cases of Jacob v. The Ursuline Nuns, 2 M. R., and Elkin’s Heirs v. His Executor, seems to recognize the principle, that if it. could be reasonably concluded that compensation was contemplated by both parties, it should be made.

Now, in addition to the testimony of his witnesses, a book is before the court, showing the accounts kept by the claimant of the transactions of the deceased, in the purchase of notes, bills and mortgages, and collections of his rents. It is well kept, and shows the transactions to have been of the largest character. The mental and manual labor of keeping the accounts, making the calculations of interest, securing the investments and collecting the principal and interest, making the rent rolls and bills, and collecting the rents, keeping the property in repair, insuring it, and securing good tenants, must have been so considerable, that no man could think of giving or receiving it for nothing.

Whilst, however, the books show the labor and responsibility of the agency to have been great, the evidence convinces us, that the value of the claimant’s services to the deceased consisted, principally, in the skill and judgment with which he managed his immense business, so that it produced such a wonderful result. The business being, as the deceased stated over and over again, intrusted principally to that skill and judgment, or, as he expressed '■ himself, more than to his own. The agent did not give advice alone, as contended, but exercised his own judgment and moral responsibility in investing the funds of his principal. He is not to be considered a mere clerk, of whose salaries Mr. Robb, Mr. Peters and Mr. Avery, give an account.

It does not appear that the relatives and heirs of the deceased, during these seven years, had any connection with, or influence over him, or extended to, or received any kindness from him. On reading the testimony in this record, they must see and feel that their deceased relative has received from a stranger to them, the greatest kindness and services, which relieved him from the burdens of business, for which he was physically inadequate, and probably protracted his sickly, intemperate, and irritable life; thus increasing by time alone their vast inheritance, and, thereby, that the toil, skill and judgment of that stranger ha£j ]jeen invaluable to them, when separated from their relative by a no doubt unreasonable aversion, which is proved. We do not think the laws interpose any obstacle to his demand for a reasonable compensation from them.

As already mentioned, they contend, that prominent facts proved by them, justify their opposition to the claim, even if. well founded in law.

They say, that in applying for the curatorship of the estate, he represented that there were no creditors, and could not therefore be a creditor himself. He was not; he owed the estate far more, immediately or contingently, than he could possibly expect to recover for his services.

They contend, that the claimant availed himself of the benefit of the bankrupt act of 1841, being a large debtor of the deceased, and that there is a moral obligation to make payment, and the debt should be compensated against his services. The moral cannot be opposed to the legal obligation of the heirs to compensate his services. ■ Besides, by an examination of the testimony, we find that the deceased realized nearly his whole debt and interest, out of property purchased at the bankrupt sale. It is notorious, that large mortgagees on large property, were enabled to purchase it at the bankrupt sales for small sums, and did so, to a great extent, to avoid the expenses of the sales for large prices. The property purchased by the deceased from the assignee of the claimant, was placed also under his charge, and, by his skill and management, the debt was realized by the deceased, so that perhaps the moral obligation to pay it is extinguished.

The heirs say, that the claim should not be allowed, because the claimant obtained the curatorship of the estate of the deceased, and thereby realized in a single year thirty thousand dollars out of the estate in commissions, as curator. But these commissions are allowed by law, as the legal compensation for the trouble and responsibility of administering the estate, and are not dependant at all upon the relation of debtor and creditor between the curator and the estate.

All the heirs were absent when Fowler died. It was in the middle of what is called our sickly season, when strangers are deterred from coming to New Orleans. The estate was vacant, and immediate action necessary for its preservation. Circumstances necessarily subjected the heirs to the expense of the commissions, whether the claimant administered or not. If he had not, persons less qualified by intimate relations with the deceased, would have administered, and successfully claimed the same commissions.

It is said, the credit given by the deceased to Mr. Bogart and his house, amply compensated him for all his services. The services are palpable, and susceptible of legal appreciation by testimony. The credit given by a business mutually beneficial, is not susceptible of precise appreciation in money. The claimant contends, and proves by the books, that the deceased received as high interest for the loans to himself and house, as from other customers, and that, to his knowledge, his investments with them were equally secure.

Still, the evidence satisfies us that this matter should be well considered, in fixing the compensation to be allowed the claimant. And for two other striking and many minor reasons, we do not feel authorized to adopt, as the measure of his remuneration, the large estimate made by his witnesses'.

1. The claimant might have insisted, which in all cases is the true course, on a precise and definite understanding with his employer. He being a man, not only not generqus, but penurious, would' in all probability have insisted on a small compensation, although payable only when their relations should terrninate; and having right to do so, we must consider his views, as well as those of his agent.

In the next place, notwithstanding the judicious and successful administration of Fowler’s property, yet the agent was able to devote all the time necessary to carry on the large mercantile business of his own house, which was greatly aided in its operations by the discounts of Fornler, although based upon the principle of interest.

Without entering into further minutóte, upon a full consideration of the whole record, we should have come to the same conclusions with the District Judge, and therefore affirm his judgment, with costs.


source: Caselaw Access Project

author: Preston, J. SiiiDEnii, J. Eustis, C. J.,

license: Public Domain

text:
    Charles Fonda v. E. D. Beach.

      Garland was arrested. He was released on giving a bail bond, with Beach as his security, conditioned that be should not depart from the State for the term of three months, without leave from the court. Garland left the State without the leave of the court and within the term, but returned shortly after its expiration. The question was, whether the surety was bound.
    Pkeston, J., held, that the surety was discharged, on the ground that the bond was not intended to preventa temporary-absence, but a permanent departure by the debtor, without making a surrender of his property.
    Slidell, J., concurred in the decree of Pkeston, J.
    Eustis, C. J., with whom Rost, J., concurred, held, the surety was bound, the condition of the bond being broken.
    A surety on such a bond, after its condition has been broken, ahd after judgment rendered against the principal, cannot be allowed to falsify the affidavit under which the proceedings were instituted.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Durant and Horner, for plaintiff.
    The security bound himself absolutely to pay Garland’s debt, in case he departed from the State within the term of three months. The condition having happened, the security is bound. He chose to bind himself in this manner to the sheriff and plaintiff, and must now be held liable for the debt. The bond would be, in the language of Judge Bullard, “ quite nugatory, if it were not held to be absolutely forfeited by the departure of the principal, at least, after a return of nulla bona on execution against the principal.” Bindley v. Hagens, 11 R. R. 204.
    The fact has been already shown, that the principal, Garland, did himself take a rule to set aside the writ of arrest, which was discharged; and this fact forms the basis of the third ground of objection to the admissibility of the testimony. The[reasons given by the judge for discharging this rule of Garland’s, are conclusive, and, what is remarkable, seem entirely discordant with his judgment in favor of Beach, the surety. If the arrest cannot be set aside for Garland, because “ more than three months have elapsed since the arrest was issued, and the same has become inoperative,” a fortiori, it cannot be set aside for Beach, the surety.

      Fillers v. Armstrong, 4 N. S. 21. il Under the common law, although it is a rule that the defendant cannot, in general, waive an error apparent upon the record, without giving a release of errors, yet no objection can be taken to the sufficiency of the affidavit to hold to bail after the plaintiff has'been permitted to take a subsequent step in the cause. Hence, where the defendant, not being under an arrest, has voluntarily given a bail bond, or has put in or perfected bail, or pleaded to the action, or suffered judgment by default, and notice of executing a writ of inquiry has been given, the defendant cannot, after such an implied acquiescence in the plaintiff’s proceedings, object to the affidavit to hold ball.” Petersdorf on Bail, p. 196, 10 Law Library, 109.

      Van Main, for defendant.

        E.L' Backus and Alexander Scott testified, that Garland returned to the city of New Orleans on the last of October or first of November. Joseph West testified,'that he returned on the 20th of October.

   Preston, J.

The articles 212 and 214 of the Code of Practice, authorizing the arrest of debtors, was amended by the Act of 1840, “to abolish imprisonment for debt.” The 2d section of the Act authorizes the creditor to have his debtor arrested, on making oath that he believes him about to depart, permanently, from the State, without leaving in it sufficient property to satisfy his demand.

' The supplemental Act of 1840, required the debtor, on his arrest, to give security not to depart the State for the term of three months. The 3d section of the first Act of 1840 made the condition of the bond to be, that the surety should pay the debt if the execution against the principal was returned unsatisfied.

The object of the arrest, still allowed by our laws, notwithstanding the abolition of imprisonment for debt, was to" prevent the permanent departure of the debtor from the State, without satisfying the debt, or making a surrender of his property to his creditors.

The oath required has no reference to a temporary absence of the debtor, nor was the arrest designed to prevent his temporary, but permanent departure. If the debtor is unable to give security, he may be imprisoned three months, and must then be discharged; but upon condition of surrendering his property, if required by the creditor, setting forth in a petition to the court, that the debtor had property which might be made available to his creditors.

If the debtor be released on giving bail, the same condition is, by implication, attached to his bond, that he cannot be discharged from liability, under the bond, until the lapse of three months after his arrest, and then, only, on condition that he surrender his property to his creditors, if required. The object of the imprisonment, and of the bond consequent upon the oath, and the arrest, being the same, the conditions of both must be the same. Both were intended to prevent a permanent departure, by the debtor, without making a surrender of his property, if required; both are satisfied if he does so. And both these means of effecting the same object, cease, under the law, at the end of three months, if the creditor does not require, within that time, the surrender of the debtor’s property.

The district court very properly refused, in this case, to make an order, as to the debtor, rescinding the arrest, because it had become inoperative by the lapse of the three months. In like manner he should have released the surety, because the three months had elapsed without the permanent departure of the debtor, during which time the creditor might, but had not required the surrender of his property. The surety had prevented a permanent departure of the debtor, during the term allowed to the creditor to require a surrender of property. That property remained subject to his execution, but the person of the debtor was no longer subject to the control of the creditor, under the law abolishing imprisonment for debt.

I do not concur in the reasons given by the district judge for his judgment, that the debtor had no intention to depart permanently when arrested ; but upon the principles stated, I think his judgment should be affirmed, with costs.

SiiiDEnii, J.

This case involves the construction of the Act of 28th March, ]840, and the supplementary act of the same year. The first Act is entitled “ An Act to abolish imprisonment for debt,” p. 131, a title which seems by no means to harmonize with the body of the statute.

The interpretation of much of this statute is involved in serious difficulty, and I confess myself embarrassed in attempting to apply it to this particular case. As the surety’s liability under the statute, and the proceedings and evidence in this cause does not seem to me clear, I prefer to leave the judgment of the district court undisturbed.

Eustis, C. J.,

dissenting. The plaintiff, who was a judgment creditor of James Garland and others, took a rule on Beach, who was one of the sureties of Garland on a bond given for his discharge from arrest, for him to show cause why judgment should not be rendered against him on his bond, the condition thereof having been broken by Garland's having left the State within ninety days from the date of the same.

The defence of Beach was, that the arrest of Garland was illegal, inasmuch as the affidavit on which the order of arrest was issued was false, and that Garland was not, at the time, about permanently to depart from the State. Evidence was heard on the trial of this rule, and the district judge was satisfied that Garland had not intended permanently to leave the State, and discharged the rule, holding the surety to be released from his suretyship.

The plaintiff has appealed, and the question has been argued as to the sufficiency of the matter of defence presented on behalf of the surety.

It is objected that this defence comes too late, because the bond had already become forfeited, and judgment been obtained against the principal, Garland.

The petition was filed on the 12th of July, 1851. Garland was arrested under the second section of the Act of March, 1840, entitled “An Act to abolish imprisonment for debt.” He was released on giving Ms bond, with Beach as one of his sureties, conditioned that he should not depart from the State for the term of three months, without the leave of the court; or in case of his departure without such leave, that the said Garland, or Ms sureties, shall pay the amount of the judgment rendered in the cause, &c.

Garland immediately left the State, and did not return until November following. Judgment, by default, was taken against him, but before it was confirmed he obtained a rule against the plaintiff, having for its object to set aside the writ of arrest. The rule was discharged, on the ground that more than three months had elapsed since the arrest. The ground on which this rule was granted, was the alleged falsity of the plaintiff’s affidavit, and the consequent illegality of arrest, &c. Execution was afterwards issued on the judgment against Garland, and on the return of nulla Iona, the present proceeding was taken against the surety.

The bond given in this case, under the statute, resembles that formerly required from debtors in custody, to enable them to enjoy what were then called the prison limits which, in New Orleans, at one time were confined to a single street, but afterwards, in 1823, Were extended to the limits of the city. The debtor, arrested under this act, has the whole range of the State, and the object of the law .giving the creditor the right to restrain him during the three months, is to compel Mm to pay the debt, or to make an honest surrender of his property under the insolvent laws. There can be no question that the departure of the debtor from the State, during this term, without leave of the court or authority from the creditor, operates a forfeiture of the bond. Thompson v. Blackwell, 5 L. R. 466. Gwynne on Sheriffs, 156. Landley v. Hagens, 11 R. R. 204.

It seems to us repugnant to all sound ideas of justice, to allow a surety on a bond like this, after its condition has been broken and after judgment rendered against the principal, to falsify the affidavit under which the proceedings were instituted. It is contrary to the universal practice, and has no semblance of authority to support it here, or elsewhere, that we ever heard of. In Dalton v. Barnes, 1 Merle and Selwyn, 230, Mr. Justice Bayley said, there was not an instance in which the party, after putting in bail above, had been permitted to take advantage of a defect in the affidavit to hold to bail. Petersdorf on Bail, 196. Tidd’s Practice, 1044.

In the case of Thornhill v. Christmas, cited by the counsel for the defendant, the court permitted the surety, on a bond under this act, to avail himself of the defence that the arrest was not warranted by the statute, it having been made after judgment rendered, as a means of coercing payment by imprisonment, and the proceeding being virtually a reestablishment of the writ of capias ad satisfaciendum, which the statute had abolished.

In the cases of Herrick v. Conant, 4th Ann. 276, and Quine v. Mayes, 2 R. R. 511, the objections of the sureties were to the validity and effect of the judgment which the sureties bound themselves to satisfy.

Rost, J., concurs in this opinion.'


author: Rost, J.

text:
    Emily N. Turner et al. v. S. H. Turner.
    A part of the heirs cannot claim to he put in possession of the entire estate, to the exclusion of the other heirs, on the ground that the latter were indebted to the deceased at th e time of his death, in an amount exceeding their share in the succession.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Mott and Fray ser, for plaintiffs.
   By the court:

Rost, J.

The plaintiffs, who, with their brothers, the defendants, are the heirs at law of Edward JD. Turner, claim to be put in possession of his entire estate as owners, to the exclusion of their co-heirs, on the ground that the latter were each indebted to Edward T). Turner, at the time of his 'death, in amounts far exceeding their share in his succession; and that this indebtedness has extinguished all right they might have in his estate.

The defendants made no defence, and after an ex parte hearing on the judgment by default, the district court nonsuited the plaintiffs.

This action has nothing to rest upon. The title of the heirs is in no manner affected by the amount of their indebtedness to the succession, however large it may be; and the balance for or against them can only be ascertained by a partition made in due form. It is not true, in point of fact, that the indebtedness of each of the three defendants exceeds the value of their share in the succession. One of them is entitled to a large balance, which must be allowed him by attribution when the partition is made.

The homologation of the account of the administrator is binding upon the heirs, so far as he is concerned; but it was no part of his duty, nor had he authority, to make a partition between them; and the distribution indicated by him must be viewed as a mere memorandum,forming no part of the account he was bound to render, and not covered by the judgment of homologation. See Mylne Asylum v. Orphan Boys’ Asylum et al. 7th Ann.

The judgmeñt is affirmed, with costs.


author: Eustis, C. J.

text:
    Nathaniel Townsend v. Palms and John L. Lewis.
    The sheriff charged two dollars per diem for taking care of real property. The district judge reduced the amount to one dollar per diem. The sheriff appealed. The law provides no compensation to the sheriff for taking care of real property. Held: The amount allowed was warranted by the evidence.
    By the Court: It seems to us that, under the constitutional provision, (art. 71) we are not authorized to reverse the judgment of the district court unless we should find it to be con • trary to evidence, as in any ordinary action.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      J. Blodgel Britton, for plaintiff.

      Grymes, for defendants.
   By the court:

Eustis, C. J.

This appeal is taken by John L. Lewis, who was the Sheriff of the Parish of Orleans, from a judgment of the Court of the Third District of New Orleans, giving him the sum of five hundred and eleven dollars, instead of the sum of one thousand and twenty-two dollars, claimed by him from Townsend, the plaintiff in this suit, for keeping, during five hundred and eleven days, certain buildings and improvements, together with the machineiy of a flour mill, on certain lots at the corner of Esplanade and Levee streets, in New Orleans.

The district judge considered the charge made by the sheriff, of two dollars a day, too high, and reduced it, accordingly, to one dollar a day, which he considered a sufficient and fair allowance.

It appears that, in January, 1850, the sheriff took possession of the establishment known as the Union Flour Mills, under a writ of seizure and sale issued at the instance of the plaintiff.

The proceedings were stayed by. an injunction which, in May, 1851, was dissolved, but the costs of the injunction suit and of the executory process were, by the decree of the court, to be paid by the plaintiff, TowAsend.

The sheriff appointed a guardian to take charge of the property at the instance of the plaintiff himself, and there is no question raised except as to the rate of his compensation.

The article 71 of the Constitution provides, that no court or judge shall make any allowance by way of fee or compensation, in any suit or proceedings, except for the payment of such fees to ministerial officers as may be established by law.

There is no provision for the compensation to the sheriff for taking care of real property under seizure, made in any of our statutes, that we can find. The fee bill of 1846 refers to the discretion of the court, the compensation of shei’iffs for keeping personal property and slaves legally in the hands of the sheriff, provided that the charge for keeping slaves does not exceed twenty-five cents per day’? Acts of 1846, p. 53.

It seems to us that, under this constitutional provision, we are not authorized to reverse the judgment of the district court, unless we should find it to be contrary to evidence, as in any ordinary action. We cannot recognize the usage of allowing the sheriff two dollars a day for services of this kind, the law making no allowance, by way of fee or fixed compensation, for such services. We cannot say the judgment'appealed from is not warranted by the evidence in this particular case, nor do we think proper to reverse it on a point which involves, in a good degree, the exercise of a sound judicial discretion. The question decided, appears to be one of fact exclusively.

The judgment of the district court is therefore affirmed, with costs.


author: Rost, J. Eustib, C. J.

text:
    J. M. Lapeyre v. M. A. Thompson, Gaspard Didier, Intervenor.
    Where underwriters execute a policy on which, at the time, there is the endorsement of the assured to pay it over to another, it is a recognition of the assignment, which hinds the underwriters. An adjustment of the loss, and a promise to pay to the assignee is binding, and an attachment of the money by the president of the company, as funds belonging to the assured, cannot defeat the right of the assignee.
    An adjustment and a promise by the insurers to pay in accordance with it, is equivalent to a settlement, arbitration or compromise, and concludes the parties. An action may be brought on it, or in an action on the policy itself, the adjustment will be evidence of the loss and its amount.
    By the Court: It frequently happens, that one man may represent several persons or quality of persons. He may be an executor, a syndic, an alderman, a president of a company, a church warden, &c. What he does in one quality, cannot prejudice him in another. Nor can he transfer what be has in one quality to the other. In each quality, the personation is distinct and so maintained. *
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Lambert and Tissot, and St. Paul and Bonney, for the intervenor.
    Marine policies are commercial instruments, transmitted from one part of the world to the other, in about the same manner as the goods they secure. Like bills of lading, their possession is primd facie evidence of their ownership, and when this possession is known to have been made by the insured, with the knowledge of the underwriter, it constitutes a complete title.
    Park on Insurance, page 450, note A, says, that unlike fire insurances, marine insurances are transferrable instruments.
    Burrill’s Law Dictionary, vol. X, m. Assignment, page 102: In assignments, the operative words are “assign, transfer and set over,” but any words which show an intention to pass the property, will amount to an assignment.
    United States Digest, vol. 11, page 611, No. 997: A policy having been assigned with the assent of the insurer, the assignee can claim for loss happening during the voyage before or after the assignment. 1004. Even after a loss, the insured may assign his interest in the policy without the consent of the insurer.
    Same work, vol. 4, page 150 : A chose in action may be assigned for a valuable consideration, by the delivery of the evidence of the debt, without any written transfer. Same work, vol. 1, p. 244: All choses in action may be assigned in equity.
    No. 30. Thus, a contingent debt may be assigned, and when the debt becomes due on the happening of the contingency, the assignee may sue for it.
    No. 36. A policy of insurance is assignable in equity, and every set ofT, between insurer and insured, prior to the assignment, is good against the assignee. See the following cases: Gourdon and Insurance Company of North America, 3 Yeates 327; 1 Binn. 429; 5 Mass. 201; 3 Mass. 515; 8 'Wheaton’s R. 278.
    Watkins on Conveyancing, page 228 (Law Library, 4:) Any words which show an intention to pass'the property, will amount to an assignment.
    Barbour and Harrington’s Equity Digest, vol. 1, page 187, No. 6: A bond maybe assigned in general terms. Phillips on Insurance, vol. 1, page 38: The mere delivexy of the policy without any other act of assignment, for the purpose of securing the depositary against liabilities assumed by, him, has been held to give such depositary a lien on the proceeds of such policy, for the purpose of such security or indemnify against other claims or proceeds, of which such depositary had no notice at the time of the delivery to him.”

      Benjamin and Micou, for plaintiff.
   By the court:

Rost, J.

The judgment in this case, must be affirmed. The words written by the defendant on the back of the policy of insurance before the loss occurred, (paid over to G. JDidier) were not a giving in payment, and are too informal to have the effect of a pledge against an attaching creditor; the defendant was about leaving for California, and the transfer can be viewed in no other light, than as an authority to collect whatever might become due under the policy, in case of loss by fire. There may have been an ulterior intention between the parties, that any sum thus collected by Bidier, should go to pay the notes of the defendant which he held, but the sum in controversy was attached by tha plaintiff before Bidier collected it, and before it could have been extinguished by compensation.

Judgment affirmed, with costs.

Same Case — On a Re-hearing.

Eustib, C. J.

The plaintiff recovered a judgment in an attachment suit against the defendant, and subjected to the satisfaction of it a sum of money, due on a policy of insurance by the New Orleans Insurance Company, which was claimed by Bidier, an intervening party.

The district judge decided against Bidier, on the ground that the transfer of the policy to him, was in fact under a contract of pledge, and that it ought to have been made in the form of the contract of pledge then required by the code, and not being so made, it had no effect against third persons, and held the sum due on the policy liable to attachment as the property of its original owner.

This judgment was affirmed by this court on appeal, and on the application of the counsel for the appellant, a re-hearing has been granted.

This insurance was on merchandise shipped by the mail steamer to San Francisco, and bears this memorandum: “Pay it over to G. Bidier. Margaret A. Thompson. N. O. April 14th, 1850.”

This transfer was on the policy at the time it was executed by the Insurance Company. A blank policy was furnished by the company to Bidier, who made' the application seemingly as the agent of Mrs. Thompson, and brought it back with the transfer written in the margin.

After the loss was known, Bidier applied for his money. He was told by the secretary to leave the papers, and after examination, if found correct, that the company would settle the loss. The papers were left and submitted to Mr. Lapeyre, the president of the company. His opinion was, that they were correct, and that the company would settle; and the secretary of the company told Bidier, that the papers were correct and that the company would settle. Bidier made this application for payment in his own name. The company did not settle, for the reason that an attachment of the money was levied, on the same day, in the hands of the company.

The president of the company is the attaching creditor. Bidier is also a oreditor, and was one at the time of the application for insurance. The application for insurance, was made by Bidier on behalf of the defendant; he had been her book-keeper, and he stated as a reason for the transfer of the policy to him, that she was on the point of leaving for California.

It is clear, that the assignment to Didier was made valid, as far as the company could give it effect, by their undertaking to make the policy payable to him without any reserve or qualification. It is equally clear that, except in case of error or fraud, neither of which is pretended to have existed, the company was bound by its promise to pay Didier, on the adjustment of the loss. This promise, for a sufficient consideration and in the regular course of business, could the principal officer, who is bound to execute it, by any means contrive to defeat for his own benefit? The question almost answers itself. The law of insurance attaches great importance to an adjustment and a promise by the insurers in accordance with it. It was formerly held equivalent to a note of hand. It is still held as equivalent to a settlement, arbitration or compromise, and concluding the parties. An action may bebrought on an adjustment or in an action on the policy itself; the adjustment will be evidence of the loss and its amount. Park on Insurance, 134. 2d. Phillips on Insurance, 523. It became the duty of the president, to execute and carry into effect the contract of the company, and it was incumbent on him as a moral agent, not to defeat that which he was bound to perform. The business of insurance being one in which so large a number of persons are at times obliged to have doings, who can necessarily know little about its rules, must rest in a great measure on principles of equity and honor. And it becomes quite a matter of interest to insurance companies, as well as their customers, that no private interest of their officers should interfere with a prompt and just payment of all their dues.

It frequently happens that one man may represent several persons or quality of persons. He may be an executor, a syndic, an alderman, a president of a company, a church warden, &c. Homo qui plures personas sustinet. What he does in one quality cannot prejudice him in another. Nor can he transfer what he has in one quality to the other. In each quality the personation is distinct and so maintained. Institutes of the Roman law, by Makeldey § 117.

It seems to us, that the plaintiff after having authorized this adjustment and promise to pay the amount due on the loss to Didier, in favor of whom the company had originally made the loss payable, could not avail himself of his position and the information thus acquired, in order to defeat the payment, by seizing the fund in the hands of the insurance for his own benefit. To authorize such a proceeding, would be against those just and well established rules which must always be held up and adhered to in matters of insurance.

It does not appear that the plaintiff made use of any pretext or artifice to the delay or detriment of the intervening party, but acted, as we believe, under his own view of his legal rights. Vide Berrella v. Merle, 9 L. R. 216. Under this view of the case, we consider that our former decision cannot be sustained, and the judgment before rendered in this case is set aside. And proceeding to give such judgment as ought to be rendered, it is decreed, that the judgment of the district court against theintervenor, Gaspard Didier, be reversed, and that the said Gaspard Didier recover from the New Orleans Insurance Company, the sum of eighteen hundred and thirty-two dollars and twenty-two cents, with interest from the 8th of January 1850, until paid; and that the plaintiff pay costs in both courts.


text:
    Charles Caffin v. John P. Kirwan, R. D. Shepherd, Opponent.
    A debtormay pledge whatever movable property belongs to him, provided it be susceptible of delivery, either actual, fictitious or symbolical, but a thing which is susceptible of neither of those hinds of delivery, is not susceptible of being pledged.
    The mere agreement of the parties, is not equivalent in any case to a fictitious or symbolicaldelivery, within the meaning of article 3120 C. C.
    from the Third District Court of New Orleans.

      Miles Taylor, for plaintiff.

      C. Roselius and A. R. Josephs, for defendant and opponent.
   By the court:

Eustis, C. J.

On examining those questions presented by the counsel for the plaintiff, we have been unable to come to any other conclusions than those adopted by the district judge in his written opinion. For the reasons given by him, the judgments is affirmed, with costs.

Kennedy, J. “This case turns upon the question of the validity of the pledge of the bathing establishment. Article 3109 of the La. Code declares, that a debtor may give in pledge whatever belongs to him. Article 3119, declares that it is essentia] to the contract of pledge, that the thing pledged be actually delivered to the pledgee. But article 3120, modifies the preceding article by saying, that this delivery (meaning of course the actual delivery) is only necessary with respect to corporeal things ; and that as to incorporeal rights, such as debts, the delivery is merely fictitious and symbolical. My understanding of these articles is, that a debtor may pledge whatever movable property belongs to him, provided it be susceptible of a delivery either actual, fictitious or symbolical; but that a thing which is susceptible of neither of those kinds of delivery, is not susceptible of being pledged. I am further of opinion, that the bare agreement of the parties is not equivalent in any case to a fictitious or symbolical delivery within the meaning of article 3120. In the case at bar, there was no actual delivery, and no delivery is relied upon except that which, it is contended, results from the notarial agreement of the parties and the recording of that agreement in the conveyance office. I consider the recording in the conveyance office as amounting to nothing. I believe a legal delivery might have been effected by an instrument in the form of a sale or transfer, of all Kirwan’s right to Caffin for the avowed purpose of securing him by way of pledge, accompanied by a notice to Kirwan’s lessor. This would have vested the legal title into the pledge. Every day our courts give the effect of a mortgage to contracts of this description passed in other States. But, one thing appears tome certain, namely: that if the delivery of rights under a lease cannot be effected in this manner, it cannot be effected at all, and consequently that such rights cannot be pledged by our law.”

Injunction perpetuated, with costs.


author: Preston, J.

text:
    Thomas J. Colley v. Succession of John Latourette.
    The plea of prescription is not inconsistent with the admission that the debt was once due, nor with the plea of payment and compensation.
    In an action for services rendered, to which there is a plea of prescription, it is no defence to the plea to show, that a part of the services were rendered within the prescriptible term.
    from the Second District Court of New Orleans, Lea, J.

      Dufour, for plaintiff.

      Bryne, for defendant.
   By the court:

Preston, J.

Latourette was a maker and vendor of maps. The plaintiff was employed by him, at intervals, from January, 1846, until July, 1849, in traveling with and for him, throughout this State, in procuring information for his maps, getting subscribers and selling the maps, collecting money, and other services. His employments were much the aspect of agencies ; but the district court, the counsel of the parties, and the witness to his original employment, have regarded him as a clerk, and we see no sufficient reason to take a different view of his employment.

He was employed at the rate of thirty-five dollars a month, his expenses to be paid, and sues for wages during the whole term from his engagement, until the death of Latourette, admitting, on the trial, credits to the amount of four hundred and twenty dollars.

The prescription of three .years, under the 3503d article of the code, is plead by the defendant, against the claim of the plaintiff, for services previously to the 16th of September, 1848, being three years before the institution of this suit. The plaintiff contends that the plea cannot prevail, because his services were admitted in the original answer, and payment and compensation plead against them. The plea of prescription is not isconsistent with the admission, that the debt was once due, nor with the plea of payment and compensation. On the contrary, it supposes a debt to have existed, and that it has been extinguished by payment, compensation, or otherwise.

It is next contended, that the claim for services is not prescribed, because they were continued until within less than three years before the institution of the suit. But the contrary was expressly decided by the late Supreme Court in several cases. 5 L.R. 15. 6 N. S. 226. 14 L. R. 553. And in the last case arising under the article of the code invoked in this case, the judgment of the court was fortified by such cogent reasons as to command our unqualified approbation.

We think the district court made a reasonable allowance to the plaintiff, for his services, according to the proof in the record.

The judgment appealed from is affirmed, with costs.


author: Existís, C. J.

text:
    Shultz and Hadden v. J. W. Payne.
    Where an undated bill, endorsed for accommodation of drawer, and, to enable him to use it in trade, has been deposited as collateral security, the law does not fix its date at the time of its delivery, but the holder may fix it at the time when, according to agreement, he is entitled to use the bill.

      from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiffs.
    The mere fact that Payne intrusted Lamme with the bills, without date, was a full authorization to him to fill the blanks with any date he pleased, and the plaintiffs enjoyed the same right.
    “If endorsers commit a promissory note to the maker, with a blank for the date, they thereby authorize him to fill the blank with what date he pleases.” See Mitchell v. Culver, 7 Cowen R. 336. Mechanics and Farmers’ Bank v. Schuyler, 7 Cowen, 337.
    The case then narrows itself down to this : Payne endorsed Lamme’s bills, and Lamme goes into the market and negotiates them, for his own uses. It being known that Payne was a wealthy man, his name in Lamme’s hands was equal to so much cash; he thereby obtained a credit he did not otherwise enjoy. Will the Supreme Court of our State say, that, in the commercial community of New Orleans, a person, under these circumstances, can repudiate his name and his obligation? We say, no. The judge of the district court thought, that when a merchant endorses a bill of exchange, and put it upon the market, he should pay it, when legally notified of its dishonor.

      Benjamin m&Micou, for defendant.
    These bills were delivered to the plaintiffs in May. At that time the plaintiffs gave value in credits to Lamme, and became, according to the usages of commerce, the holders and owners of the bills. But, it is the well settled principle of law, that the date is not essential to the validity of abill or note, and that, in the absence of a date, the date ol issue may be proved aliunde, and that date is regarded as the date of the bill. Smith’s Mercantile Law, 171. Story on Notes, § 45. Chitty on bills, 148, 10th Am. ed. Story on Notes, 186, 195.
    The legal effect of the delivery of these bills to the plaintiffs, on the-May, was, therefore, to give them that date. From the moment of their delivery the obligation of the defendant became fixed and complete, and the bills, from mere projects, became valid and binding contracts. Now, let us suppose that the drawer had filled up this date as of the- May, and then altered the term by striking out thirty, and inserting one hundred and twenty days. Can it admit of a doubt that the endorsee would have been released?
    But, whether the burthen is made more onerous or not, the endorsee is equally released. He is surety, and may stand upon the letter of his contract. Any alteration in its terms releases him, even if the court should think the alteration made the contract less onerous to the principal. Roman, Governor, v. Peters, 2 R. R. 479. McGuire v. Wooldridge, 6 R. R. 47. Theobald on Agency, 76. Miller v. Stewart, 9 Wheat. 680.
   By the court:

Existís, C. J.

The defendant is sued as endorser on certain bills of exchange. Judgment was rendered against him for the sum of $4941, with interest and damages, being the balance due on them to the plaintiffs. Fi’om this judgment the defendanthas appealed.

The plaintiffs, merchants in New . Orleans, are the holders of the bills for a valuable consideration, having received them as a security against loss, by reason of advances made by them on certain shipments or purchases to be made by D. L. Lamme, and consigned to their friends in Cincinnati. The plaintiffs, having taken these bills in the usual- course of business, it is indifferent to their rights whether the defendant was an accommodation endorser or not. The endoi'sement of Payne, we must presume, was for the pui'pose of giving credit to the bills, and to enable the drawer to use them for any lawful purpose of trade. There is no evidence, relative to the endorsement, as of any circumstances under which it was given. Vide Matthews, Finley & Co. v Rutherford, 7th Ann. 225.

The bills wei-e on the drawer’s house, in St. Louis. Lamme was the dx-awer, acceptoi', and payee of the bills, which were without date. They wei'e drawn in New Orleans, and handed to the plaintiffs in May last.

In August, when the result of the transactions between the plaintiffs and Lamme was ascertained by the returns to the shipments, the plaintiffs’ clerk called on the defendant to fill up the dates. On his refusal, the clerk, having communicated to the defendant the result of the accounts between the parties, and of the necessity of using the bills, filled up the blank of the dates with the 26th of August. The bills were forwarded to St. Louis, and returned under protest, of which the defendant had notice.

It is contended that the delivery of the bills to the plaintiffs, on the 5th of May, gave them that date, and, they being payable at thirty days after date, the dating them subsequently in August released the endorsor.

The right of the plaintiffs to give the bills what date they pleased, cannot be contested. They bound themselves not to use the bills except to meet their own acceptances in favor of Lamme, which the bills were given to secure. When the necessity for their being negotiated arose, it was a proper time to affix the dates to the bills.

The judgment of the district court is affirmed, with costs.


text:
    The State of Louisiana v. George Eochart.
    The change in' the name of the court merely, does not change its powers, or the modes of proceeding prescribed by law. Therefore, where the jurisdiction of the criminal court over the limits of the present Third District, was transferred to the Third District Court of the State, with it were necessarily transferred the modes of prosecution prescribed by law for the criminal court.
    APPEAL from the court of the Third Judicial District, /. Calvitt Clarke, J.

      Johnson, Attorney General, for the State.

      Walker De France for the accused.
   By the court:

Preston, J.

The prisoner has been prosecuted by an information filed against him in the Third District Court of the State, for larceny, and receiving stolen goods, knowing them to be stolen. He was convicted of the last mentioned offence, and sentenced to one year’s imprisonment at hard labor in the penitentiary. His counsel contends that the district attorney had no power to prosecute him for that offence by information.

Pz’evious to the adoption of the present Constitution, the Third District was embraced within the jui'isdiction of the Criminal Court of the First Distinct of the State. And it was provided by an act, approved the 8th of March, 1841, “ That in all criminal prosecutions in the Criminal Coui't of the First Distinct, for crimes and offences punishable by not more than two years’ hard labor, the proceedings maybe by information,” p. 59.

Under the Constitution of the State, the jurisdiction of the Criminal Court over the limits of the present Third District, was transferred to the Third District Court of the State, and with it, necessarily, the modes of prosecution prescribed by law for the criminal court. This was expressly decided by this court, in the case of The State v. McClane, 4th Ann. 435.

The change in the name of the court merely, does not change its powers, or the modes of proceeding prescribed by law.

The judgment of the district court is affirmed, with costs.


author: Slidell, J.

text:
    Matthews, Finley & Co. v. C. M. Rutherford.
    The accommodation' party to a note, holds himself oat to the public, by his signature, as absolutely bound to every person who shall take the note for value, to the same extent as if that value were personally advanced to himself, or at his request. Nor is it any defence that the party who takes the note, knows it to be accommodation paper, if, before it becomes due, he takes it bond jide and for value.
    An accommodation party to a note, who authorizes the holder to sell, cannot resist payment on the ground that he pledged it.
    A notarial act of pledge, or a written act registered in a notary’s office; is a formality which is necessary to protect the payee against third parties; but its omission is unimportant as between pledgor and pledgee.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Samuel R. Walker,ion plaintiff,
    cited Chitty on Bills, 334. Nisbet v. Galbraith, 3 Ann. 692.

      E. R. Olcott, for defendant.
    Where negotiable notes are delivered as security for a debt, and no authentic act is made to evidence the pledge, they will not confer a preference in case of insolvency. 2 L. R. 361 and 386. “ It is not every endorsement and deposit of anote as collateral security that transfers such absolute property, as will deprive the payee or depositor of all right, and the maker of every defence he may have against it previous to the notice of deposit or pledge.” Lapice v. Clifton, 17 L. R. 157.
   By the court:

Slidell, J.

This suit is brought upon a note dated in April, 1851, at eight months, for $1980, made by the defendant, to the order of S. B. Conrey, and by him endorsed in blank. The answer contains a general denial, and also pleads that the plaintiffs are not the owners of the note, but merely hold it as collateral security .for debts due them by the payee; that Conrey gave the defendant no value for it; that ho legal transfer was ever made to plaintiffs ; that they gave no value for it, &c.

There was judgment for the defendant, and the plaintiffs have appealed.

From the testimony of Conrey, a witness offered by the defendant, it appears that the defendant gave Conrey this, with other accommodation notes, amounting to between nine and ten thousand dollars. “The arrangement between witness and Rutherford was, that he, the witness, could raise money on those accommodation Dotes. The agreement between witness and Rutherford was, that witness should take the notes.” In May or June, 1851, Conrey applied to the plaintiffs for a loan of $4500, which they made upon his giving them the defendant’s notes,- as collateral security, for the payment of the money at the time stipulated, which was about twenty days. No act of pledge was made. It does not appear that the plaintiffs knew the notes were accommodation notes; and Conrey says he thinks they were not aware of it. He has repaid them $1500, and a balance of $3000 is still due.

In support of the judgment of the court below, the appellee relies on the following cases: Coddington v. Bay, 20 Johnson, 637. Rosa v. Brotherson, 10 Wendell, 86. Smith v. Van Loan, 16 Wendell, 662. Thompson v. Hule, 6 Pick. 260.

Every one of those cases will, upon examination, be found to differ from the present in the attendant circumstances, and to involve arguendo doctrines, which support, instead of invalidating, the claim of the plaintiffs.

In Coddington v. Bay, the case was this: Randolph and Savage were employed by Bay to sell a ship for him, on credit, and transmit him the purchaser’s notes. Instead of doing so they, becoming insolvent, gave the notes to Messrs. Coddington, as security against responsibilities they were already under, as endorsers of notes of Randolph and Savage, and makers of notes lent to R. and S. for their accommodation. The rights of Bay, the true owner, were considered superior to those of the Messrs. Coddington, mainly upon the ground that they gave no new consideration for them, nor parted with any security as an inducement for their being delivered. But the doctrine was distinctly recognized by all the judges, that a holder who has in the usual course of business and in good faith parted with his money, or his property, at the time of receiving the note and upon its credit, is entitled to protection, and the real owner must bear the loss.

In Rosa v. Brotherson the case was this: Brotherson was sued upon a note of $100, at nine months, payable to the order of McClelland, and endorsed by him, before maturity, to Rosa, with the understanding that he should apply $55 of its amount to pay himself a debt already due to him by McClelland, and the balance to pay another creditor of McC. But, before the note was given to Rosa, an arrangement had been made between Brotherson and McClelland, by which the note was satisfied, and was to be given up. It was, therefore, fraudlently put into circulation against the express agreement of the parties. It was held, that as the plaintiff had not paid value, nor parted with any thing at the time of the transfer of the note, thus fraudulently put into circulation, he had no equity superior to that of the makers. He loses nothing, said the court, “if the defendant succeeds in his defence. He gave nothing for the note, advanced nothing, nor incurred any responsibility upon its credit.” But the court, at the same time, distinctly recognized the doctrine, that where negotiable paper is transferred in the usual course of business, for a valuable consideration and without notice of fraud, the right of the holder must prevail.

The case of Smith v. Van Loan, establishes nothing which favors the defence in this cause; and contains, on the contrary, dicta which, by implication, are adverse to the defendant.

In Thompson v. Hall, the plaintiff took the note, which was payable on demand in six months after it was due, and under circumstances which might reasonably excite suspicion that it was affected by equities. The fact that it was taken as collateral security, was not the controlling ground of the nonsuit.

None of these cases cover the one before us. They and others, which the defendants have referred to or which may be found in the reports, at most, go to this extent, that a note, taken as collateral security for a preexisting debt, without any new consideration whatever, will be ' held subject to equities between the contending parties ; a doctrine which, even thus restricted, has not commanded universal concurrence. See 16 Peters, 1, Swift v. Tyson. But, on he other hand, the reports and commentators abound in authorities to the effect that the bond fide holder will be protected against such equities, when he has taken the note as security for advances made upon its credit. Such a case falls within the scope of the general principle of commercial law, which protects the bond fide holders, for a valuable consideration, of negotiable paper; for the term value has a very large and liberal import. The principle is jealously guarded in England and in the United States, from considerations of public policy in furtherance of the convenience and security of commercial dealings. And this policy is consonant with justice. It rests upon the same basis as the doctrine of courts of equity in other cases, where the purchaser has obtained the legal title without notice of the equitable right of a third person to the property. The only difference in the commercial law, between the absolute holder for value, and the party who takes the note as collateral security for money advanced, so far as the right of recourse against the maker is concerned, seems to be this: that the former may recover in full, and the latter, if there be equities, is restricted to the extent of his advances. In other words, he is considered as a bond jide purchaser pro tanto. See Stulker v. McDonald, 6 Hill, 95, and cases there cited.

But, if, under such circumstances, the equity of the maker must yield to the equity of the holder, although the consideration of the note may have failed, or the maker may have a just setoff against the payee, or the note may have been paid, &c., is the case of an accommodation maker to be viewed more favorably? Such is the case here, and when the true nature of the contract, in its origin, is properly appreciated, all pretence of a defence, under the commercial law, disappears.

The very object of an accommodation note is to enable the payee, by a sale or other negotiation of it, to obtain a credit with third persons for its amount. The parfy, says a learned author, hold himself out to the public, by his signature, as absolutely bound to every person who shall take the same for value, to the same extent as if that value were personally advanced to.himself or at his request. Story on Notes, § 194. See also Smith v. Knox, 3 Est. 46. Chitty, 91.

Hence, it is no defence that the note was known to the holder to be an accommodation note, if he takes it for value, bond fide, before it becomes due. If, however, an accommodation note had been given for a special object, which was abandoned, and afterwards, in fraud of the maker to whom it should have been given up, it is negotiated, and the endorsee knows or has reason to believe such fraud, his dishonest participation in its commission would bar his recovery; and this only is the extent of the suggestion in Smith v. Van Loan.

The defendant has surely subjected himself to the fullest scope of the doctrine above enunciated by Mr. Justice Story. For his witness, the payee, says unqualifiedly, “the arrangement between witness and Rutherford was, that he, the witness, could raise money on these accommodation notes.” In the face of this agreement, to say that although Rutherford would have been bound if the payee had sold the notes outright, he is not bound when the payee raises money by pledging them, is a refinement which we cannot understand ; and which is certainly in direct conflict with authority. He who has the property has a disposing power. See Collins v. Martin, 1 Bos. and P. 650. Bosanquet v. Dudman, 1 Stark, 1. Atwood v. Crowdie, 1 Stark, 483. Brywood v. Watson, 4 Bing. 496, cited Chitty note p. 85. Williams v. Smith, 2 Hill, 301. Bacruter v. Priest, 12 Pick. 406. Story on Notes, § 195. Chitty, 85. Byles, 62.

The only other question presented by the defendant is, whether the pledge to the plaintiffs is unavailing against the defendant, because it was made without the form prescribed in the 3125th article of the Civil Code,

We are of opinion that a notarial act'of pledge, or a written act registered in a notary’s office, is a formality which is necessary to protect the pledgee against third persons. But its omission is unimportant as between the pledgor and pledgee, and is not available to the defendant, who stands in the attitude of a person who has voluntarily clothed the pledgor with the ostensible ownership of &6 thing pledged, and this for the very purpose of enabling him to raise money upon it.

The purpose of the law in requiring an act of pledge before a notary, describing the thing pledged, its amount, number, weight, measure, &e., was to prevent frauds upon creditors. The date of the contract was thus made certain, and a change of valuable goods for others of inferior value prevented. Without such precautions an unfaithful debtor, on the eve of proceedings which would put his property in the custody of the law, might collude with others or withdraw it from their pursuit, or give unjust preferences by instruments ante-dated. Experience, however, has shown that the expensive and troublesome formality of a notarial act was a clog upon commerce, the movement of which should be rapid and free, and our Legislature has lately abrogated it. But, between the contracting parties, a notarial act never was necessary. This contract is open to proof by ordinary evidence. See Pothier, Nantissement, No. 17. Troplong 108, et seq.

It is therefore decreed, that the judgment of the district court be reversed and that the plaintiffs recover of the defendant the sum of $1980, with interest from 15th December, 1851, until paid, and costs in both courts, together with $2 50 costs of protest.

      Aots of 1852, p. 15. R.


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    B. F. Davega & Co. v. Crescent Mutual Insurance Company of New Orleans.
    A policy of insurance may be reformed, where it is demonstrated, by legal and exact evidence, that there has been a mistake in filling it up, which- has violated the understanding of both parties. Bat the petition must show, by clear and unequivocal allegations, that there was, before the policy was framed, an agreement, a concurrence of the minds of assured and underwriter to protect risks, which were afterwards, by the mistake or fraud of the underwriters, left out of the formal instrument, or else it will be defective, and proof to reform the policy, or vary the risks, will be rejected.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      C. Roselius and Miles Taylor, for plaintiff.
    Was the evidence properly rejected ? We contend that it was not, on the authority chiefly of the case of Tracy v. Theyer et al., 7 N. S. 355, 356, and of Adams v. His Creditors, 14 L. R. 463.

      John R. Grymes and M. M. Cohen, for defendant.
    The authorities are now clear, that parol evidence cannot be given to vary the terms of the written contract where there is no ambiguity in the contract itself, and there is none in the policy sued on. 1 Arnould, 65, 79. Truman v. Loder, 11 Ad. & El. 589, 39 Eng. Com. Law Rep. Yates v. Pym, 6 Taunt. 446, 1 E. C. L. R. 1 Hall’s S. C. R. 632. 10 Metcalf, 216. 2 Denio, 75. 1 Sanford, 132. I Green-leaf, § 292. 3 Kent’s Com. p. 260. 3 Mason, 6. 2 Sumner, 567. Ib. 327. 1 Emerigon.
   By the court:

Slidell, J.

The plaintiffs claim payment for goods destroyed by fire at San ■Francisco, on the 4th May, 1850. The policy of insurance states that it insures David C. Lahatt, for account of B. F. Davega 8f Co., against loss or damage by fire, to the amount of $5000, for one year, on merchandise, being stock in trade, consisting of dry goods and clothing, contained in the wooden building, situate on Kearney street, fronting the public square in San Francisco, occupied by D. F. Davega Sf Co. ' The blanks, in the usual printed clause, are filled up, so as to protect the assured for such loss as shall happen by fire to the properly insured during twelve months, to wit, from the 6th day of May, 1850, unto the 6 th day of May, 1851.

There was judgment, as in case of nonsuit, in the court below, and the plaintiffs have appealed.

We are inclined to the opinion that there was error in rejecting the letter and plan offered in evidence by the plaintiff1, upon the particular ground adopted by the district judge. But, it is not probable that any useful end would be attained in remanding the cause for a new trial, entertaining, as we do, the opinion, that the petition is loose and defective in its averments, not exhibiting with legal accuracy and clearness, a cause of action, nor duly enunciating matters of fact, which, it is shown by suggestions contained in the bill of exceptions, the plaintiffs intended to rely upon.

We do not doubt that a policy of insurance may be reformed, where it is demonstrated, by legal and exact evidence, that there has been a mistake in filling it up, which has violated the understanding of both parties.

But, a petition for such relief should set forth by distinct and direct averments, not only that the petitioner contemplated a different protection from that expressed in the policy, but that his wishes were communicated with reasonable certainty to the underwriters, and were by him also understood and assented to, and that the subsequent failure to embody them in the policy" was the result of fraud or mistake on the part of the underwriter. There must be a distinct showing by clear and unequivocal allegations, [not as in this case argumentatively, and by ambiguous inference] that there was before the policy was framed an agreement, a concurrence of the minds of the assured (or his agent) and the underwriter to protect risks, which were afterwards, by the mistake or fraud of the underwriter, left out of the formal instrument.

The judgment of the district court leaves the plaintiffs the right to bring another action, and for the reasons above stated, it is affirmed, with costs.


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    Emile D. Baron v. Thomas Placide.
    The fact that one party to acontract through complaisance, and at the request of the other party, rendered a service, cannot raise a presumption against the former, that she thought herself bound by the contract to render it.
    Where the contract provides a penalty for its breach, and points out the manner in which it is to be dissolved, a dissolution of it in a manner not pointed out, is a breach, and the penalty is thereby incurred.
    Where a contract has been partly executed and justice requires it, the court will modify the penalty
    APPEAL from the Third District Court of New Orleans, Kennedy J.

      Eyma and Grailhe, for plaintiff.

      Benjamin and Micou and T. H. Howard, for defendant.
   By the court:

Rost, J.

This case presents the grave question, whether the plaintiff was bound under her engagement as danseusc and mime at the theatre of the Variéties, to dance the polka, in the comedy entitled the Serious Family, when required to do so by the stage manager.

Her engagement was as seconde premiere danseuse, and had been entered into in Paris. It is considered that she is a chef demploi, and she urges that she would not as such be bound to dance parlor dances in parlor dress, with the figurants of the company, as required of her- in this case; but in the act signed by her in Paris, after the stipulation by which she binds herself to discharge all the duties of seconde premiere danseuse, the following printed clause is found: “Ainsi que tous les roles portés sur son repertoire, sous peine de résiliation et de x-estitution des avances et voyages, s’il ne les joue en vingtquatre heures, sur un simple raccord: le tout en chef ou partage, á l’option de l’Entx’eprise, quise résex've le droit de disti'ibuer les pieces nouvelles, áson choix, sans avoir égard aux distributions de Paris, dans lesquelles j’apprendrai qua'rante lignes ou portees par jour.”

The defendant contends, that she is bound, under this general obligation, to play any part that she is capable of playing; that she so understood and executed her engagement originally and danced many times in the same play, without making any objection, and that she cannot now be permitted to avail herself of an interpretation, different from that which she hei’self put upon the contract during more than twelve months.

It is further urged, that even under her engagement as premiere seconde danseuse, she was bound to fill any part assigned to her in her profession as a dancer dans son emploi, and that whether she danced in a comedy or ballet in long dress or short dress, she was dansson emploi.

It is proved by unimpeached evidence, that the printed part of the contract is a clause of style applicable to actors and singers, and not to dancers. The defendant objected to this evidence on various grounds, but we think it was properly received. The printed clause when applied to a dancing girl, if not absurd, is at least ambiguous, and as whatever is ambiguous in contracts should be determined according to the usage of the country where they are made, we perceive no valid objection to the evidence adduced to prove the usage of France in contracts of this description. Civil Code, 1948.

The printed clause may well be said to be technical, and this evidence was necessary to enable the court to interpret according to its received meaning, with those who profess the art to which it applies. Civil Code, art. 1942. There is another consideration which authorized the introduction of the evidence excepted to. It is stated in the act, that it is temporary, and is to be exchanged on the arrival of the plaintiff in New Orleans for another, samblable a cel^des articles de la troupe, clause d’éntéret et d’emploi toute fois, strictement conservée.

So that, besides her obligations as premiere seconde danseuse, there was nothing in the contract definitely binding, and evidence was admissible to show that under the usage in France, the printed clause could not have been intended to form part of her final engagement.

We think the second ground equally untenable. Her emploi was that of premiere seconde danseuse, and she could not be required to appear in any dances which did not enter into that emploi, according to the usages of the theatre, See 12 Dalloz, p. 635, § 24. Kelly v. Caldwell, 4 N. S. 38.

It is said that the plaintiff has herself put upon the contract, the interpretation for which the defendant contends; it appears to us, on the contrary, that the defendant has acquiesced in the construction upon which the plaintiff insists. The engagement of Hilaeriot, the premiere danseuse, was identical with that of the plaintiff. She was called upon to dance in the Serious Family, and peremptorily i’efused. The defendant, though vexed at her refusal, appears to have submitted to it as a matter of right. The plaintiff appeared in that piece several times, but the director of the corps de ballet has testified, that she did so through complaisance, and at the request of the defendant who asked it as a favor; her appearance under those circumstances cannot prejudice her legal rights.

We concur with our learned brother of the district court, that the refusal of the plaintiff to dance a parlor dance, in parlor dress, with the figurants of the theatre, constituted no just ground of dismissal, but we have been unable to concur with him in the measure of damages he has adopted. The defendant had a right under the contract to dismiss her, without cause, after giving two months’notice; and as he was at liberty to dispense with her services during those two months, provided he paid her the stipulated salary, the district judge was of opinion, that she could only recover two months’ salary, over and above the arrears due her, at the time of the dismissal.

In this we think there is error; the contract contains a clause that the party who commits a breach of it, shall incur a penalty of fifteen thousand francs towards the other, and the present action is for that penalty. The interpretation of the district judge obliterates the penalty in all cases in favor of the defendant, while it leaves it in full force against the plaintiff. The contract should receive such a construction as will give effect to every portion of it, and preserve equality of rights between the parties. The defendant had it in his power to put an end to the contract, by giving two months’ previous notice, but he should have given that notice, and tendered the arrears due and two months’ salary, if he intended to dispense with her services from the day the notice was given. Instead of this, he dismissed her abruptly, without making a tender and without a just cause. The breach of contract is precisely that contemplated by the clause imposing the penalty.

At the time of the breach, nearly two-thirds of the time during which the engagement was to continue had expired, and as article 2123 of the Code, authorizes us to modify the penalty when the contract has been partly executed, we deem it just to reduce it in this case, so as to allow the plaintiff eight hundred dollars in full of all her claims. This is the amount she would have been enabled to recover, if she had sued for her salary during the unexpired term of her engagement.

The judgment must therefore be amended in her favor as prayed for.

It is ordered, that the judgment in this case be amended, and that the plaintiff recover of the defendant, the sum of eight hundred dollars. It is further ordered, that the judgment as amended, be affirmed, with costs.

Defendant applied fora re-hearing, which was refused.


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    Union Bank of Louisiana v. The Executors of John McDonogh.
    Creditors of a succession ought not to be delayed, after the brief interval prescribed by the law for the payment of their claim, on the ground that the interest of legatees would he beneiited by doing so. On the application of a creditor who is unnecessarily delayed, the court will order a salo of property to pay the debt.

      By the Court: As the estate is admitted on all hands to he enormously rich, there seems no objection to providing for the payment of this particular creditor, without directing the usual formality of a tableau of distribution.

    from the Fifth District Court of New Orleans; Buchanan, J.

      H.B.. Denis, for the plaintiff.

      Pierce and Grivot, for defendant.
   By the court :

Slidell, J.

The district judge has given at length his reasons for refusing in part an order asked by the Union Bank, which corporation holds a note of McDonogh for $50,000, protested for non-payment on the 4th January, 1852. The application was for an order to the executors to sell fof cash movable effects of the succession to a sufficient amount to pay the said claim. The decree ordered the sale of certain movables in the Orleans Theatre, which were subject to the vendor’s privilege in favor of the bank for this debt, and also of certain other movables specified in the decree; and also of certain real estate specially mortgaged to secure the payment of the note, but discharged the note so far as it asked any further sale.

The duty of a living man is to pay his debts before making donations; and the same principle of justice applies in the administration of a dead man’s estate.

His debts take precedence of his legacies, be those legacies valid or invalid ; and his creditors ought not to be delayed after the brief interval prescribed by the law, because the interests of legatees may be benefited by so doing. A fortiori, should there be no delay for the sake of the supposed interests of legatees, whose rights are in litigation and undecided.

While we do not think proper, under the circumstances of the case, to disturb the order of the district judge, so far as it commands the property mentioned in the decree to be first sold, and so pay as far as it will go the debt due to the plaintiffs, we at the same time think that by reason of the acknowledged insufficiency of that property to pay the whole debt, and the right of the creditor to a prompt satisfaction of a debt matured, the district judge should have gone further and made a simultaneous provision to pay the plaintiffs in full. This provision we feel bound to make by an amendment of the decree. C. C. 1661.

It is proper to add, that as the estate is admitted on all hands to be enormously rich, there seems no objection to providing for the payment of the particular creditors, without directing the usual formality of a tableau of distribution, &c. The bank is the only creditor before us who presses for payment. We do not consider ourselves called upon, as the matter is presented and as no answer to the appeal has been filed by the appellees, to notice any other claims. When other creditors choose to act, the court below is open for their relief. We do not doubt but that the district judge, in accordance with the views we have expressed, will promptly accord it. There may be creditors who are satisfied with the interest their debts are drawing, and prefer to let them stand.

It is therefore decreed, that the judgment of the court below be so amended, as that the said executors do cause to be forthwith advertised for public sale the bonds of Municipality Nnmber One, mentioned in the inventory; said sale to be advertised to take place on the day following the sale of the property described in the decree appealed from; and that on said above first named day, the executors do cause to be sold so many only of said bonds as may be necessary to meet said claim of the Union Bank, incurred by such previous sale, whether by reason of an insufficiency of the proceeds of said previous sale, or by reason of said previous sale being, in whole or in part, from any unforeseen or lawful cause not effected on said day. And it is further decreed,that the cost of the appeal be paid by the succession.


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    Eliza Fluhart v. James Golding et al.
    APPEAL from the First District Court of New Orleans, Larue, J.

      J. H, Holland, for plaintiff.

      Randel Hunt and J, W. Frost, for defendant.
   By the court:

Eustis, C. J.

The judgment having been executed by the defendant at the instance of plaintiff, the appeal mustbe held to be abandoned. 3 Ann. 115. Code of Practice, 567.

Appeal dismissed, with costs.