text:
    Mary M. Timberlake v. Widow R. Brand.
    A judgment in favor of heirs against their mother who was also their tutrix, is only prima facie evidence of her indebtedness to them, and does not bind her creditors if they can show the amount was not due.
    A mother who is tutrix of her children does not owe interest on their shares, when the same is less than the value of the support and education of the children.
    APPEAL from the Second District Court of New Orleans. Lea, J.

      R. Mott and H. D. Ogden, for appellees.

      H. H. Strawbridge, for under-tutor.

      Stockton and Steele, for opponents.
   The judgment of the court was pronounced by

Preston, J.

Robert Brand, departed this life in the city of New Orleans in the fall of 1832, leaving the defendant, his widow, and eight minor children, one of whom has since departed this life.

The widow was duly qualified as tutrix of her minor children, and had the greater part of the community property adjudicated to her. A part was reserved for the payment of debts. That part adjudicated to her amounted to $15,369. She obtained a release of the legal mortgage on the property, except on a lot in Camp street, which she specially mortgaged to the under-tutor of her children to secure their interest in the same, and her faithful administration as their tutrix.

As tutrix of her minor children she administered the estate, and caused a part of the remaining property, which was not adjudicated to her, to be sold to pay the debts of the succession.

In 1835 she rendered to the court of probates an account of her administration, which was duly homologated, establishing the balance in favor of the minor children at $9507 50. In the account she represented a lot of ground in Hevia street, estimated in the inventory at $5600, and reserved to pay debts, as yet unsold.

The widow removed to Kentucky with her children, and reared and educated them in that State.

In 1848, five of the children, being of age or married, instituted this suit against their mother, to recever their share of the balance established in their favor in 1838, and claim legal interest from the year 1833; and further demanded that the house and lot situated in Camp street, specially mortgaged to them, should be sold to satisfy their claims concurrently with the two children who were yet minors. They alleged, that she had in some manner disposed of the lot of ground in Hevia street, and claimed that she should account to them for the same.

Judgment was rendered in favor of the children for $9507 50, with interest from the 11th of March, 1833, and decreeing, that the lot in Camp street, specially mortgaged to them, should be sold for cash to satisfy the same. It was sold, and produced $11,900 free of all charges.

At this stage of the proceeding Messrs. Collins and Timberlake filed an opposition to the distribution of the proceeds of the lot among the heirs, and claiming the payment to them out of the same of a debt of about $4000 due by Mrs. Brand, and secured by a pledge of the house and lot. Judgment was rendered in their favor for $809 58, with interest, and that each heir of Robert Brand should pay out of his virile share of the proceeds of the Camp street lot bis proportion of the debt.

The heirs of Brand have appealed. They plead the prescription of one, two, three, and five years against the claim of the opponents; but the claim was acknowledged in writing by Mrs. Brand, from whom it was due in 1847 and again in 1849. And, as it is neither alleged nor proved that she was insolvent at the time she made the acknowledgment, we are of opinion that it is binding on the heirs, and gives the opponents the right to controvert the judgment in their favor against her.

The judgment in favor of the heirs against their mother is but prima facie evidence of her indebtedness to them, and does not bind her creditors if they cap show that the amount was not due. The interest on the amount due the minors cannot be allowed to the prejudice of creditors of their mother and tutrix. She had but the legal interest on $9500, deducting ten per cent for her commission on the same, with which to support and educate eight minor children. She not only necessarily expended that amount, but, it is also proved, expended far more for those objects. She had the right to deduct this interest from the claim of her children against her; and her creditors must have the benefit of that right. See the case of the Succession of Guillemin, 2d Ann. 638. The marriage or majority of some of the children may have arrested this expenditure as to them; but even this will not affect the conclusion to which we have come to affirm the judgment in this case.

Their ages are specified in the application of Mrs. Brand to qualify as their tutrix; and arresting interest at their majority, would not increase the sum due to the children more than $1500, or, in the aggregate, make $11,000 due to them.

Mrs. Brand inherited from a deceased son one fourth of his share in the $9500, say $294, which, deducted from $11,000, and the balance from the net proceeds of the sale of the house and lot would leave about $1200 surplus to meet the opponent’s claim of $809, with five per cent interest from the 1st of September, 1846; rendering it unnecessary to examine the other grounds of opposition made by the third opponents.

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


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Junius Amis v. Purvis, Wood & Co.
    Where the record of appeal is not filed until after the return day, and no application for an extension of time has been made, the appeal will be dismissed upon motion.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Isaac Thomas, for appellant.

      John Finney, for appellees.
   The judgment of the court was pronounced by

Preston, J.

The defendants and appellees have moved to dismiss the appeal in this case. It was granted on the 15th of February, 1850, and made returnable in the Supreme Court on the fourth Monday of March following ; but the transcript of the record was not filed in the court until the 17th of April, 1850, and no application was made for further time. On the 20th of April, 1850, the motion to dismiss the appeal was made. It must therefore be dismissed at appellants costs, which is decreed. Dwight v. McMillen, 4th Ann. 350. New Orleans and Carrollon Railroad Company v. Hood, 3d Ann. 226. Penney v. Sommerville, 3d Ann. 668.


author: Rost, J.

text:
    Mary E. Mackie v. Samuel Smith.
    Where mirrors have been set in the wall by making recesses therein, which recesses would be left in their rough state if the mirrors were removed, they will he considered as attached permanently to the building, and are included in a sale of the building. C. C. 459.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Joseph and Halsey, for plaintiff.

      Hoffman and H. JD. Ogden, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The heirs of Benjamin Story, of whom the plaintiff is one, caused a judicial sale of the property comprising his succession to be made for the purpose of effecting a partition.

The question presented by this case is, whether two valuable mirrors, found in one of the rooms of his dwelling house, passed under the adjudication of the house made to the defendant. The district court held that they did not, and he has appealed.

The plaintiff alleges and has shown, that at a previous sale of the movable effects of the succession the mirrors were adjudicated to her, but as the knowledge of that fact is not brought home to the defendant, we have only to inquire whether, under art. 459 of the code, they had been attached permanently to the building by the deceased; if they were, the defendant has acquired them. It is shown that they were not affixed to the building with plaster or mortar, and that they could be removed without being broken or injured. It is further contended by the appellee that they might have been removed without breaking or injuring the part of the building to which they were attached, and that, as this case comes under none of the provisions of art. 460 of the code, the judgment should be affirmed.

On this question of facts the testimony is conflicting, and if the cases specified in art. 460 could be construed as limiting the general disposition of the preceding article, we would pay great deference to the opinion to the district judge; but we do not think this interpretation can be sustained. Art. 459 provides that all such movables as the owner has attached permanently to the building are immovable by destination; it embraces all cases in which the movable has been placed by the owner ad integrandum domum; and when none of the presumptions established by art. 460 exist, the fact may be shown by any competent evidence. 2 Toullier p. 8, No. 16, 4 Duranton, p. 63, No. 68.

It is shown in this case that, after Mr. Story purchased the mirrors, recesses four and a half inches deep were cuj in the walls of the room to receive them ; that they were placed in those recesses and secured in their places by means of architraves or large wooden frames, which were nailed to plugs of hard wood fastened in the wall. The frames of the mirrors had grooves in them corresponding to a tongue in the architrave, and nails were driven from one to the other to make the glass more secure. The recesses were left rough and unfinished; the glasses and architraves being clearly intended as a permanent finishing of the wall. It is difficult to conceive a case more strictly within the letter and spirit of art. 459 of the code.

The code of France provides that if a niche is made in a wall to receive a statue, the statue placed there, though in no manner attached to the building, becomes immovable by destination ; and such we believe was the Roman law. This is a much stronger case for the application of the rule.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


author: Slidell, J.

text:
    Francois Bazin et al. v. L. S. Segura.
    The lessor’s privilege extends to the horses and carts kept by the lessee on the leased premises.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Eyma and P. Warfield, for appellants.

      Dufour, Buisson and Collins, for appellees.
   The judgment of the court was pronounced by

Slidell, J.

This case presents a contest for privilege between creditors. The appellants .were lessors of a lot and sheds in which Segura, the lessee, kept his horses and carts, and where they were found at the time of the provisional seizure. The sole contest before the district judge seems to have been whether the landlord’s privilege extends to such property. The appellee contends that the generality of the words “movable effects of the lessee which are found on the property leased,” is to be restrained by the concluding clause of the same article of the code, in which it is said, that the right of privilege includes the furniture of the lessee and the merchandise contained in the house or apartment, if it be a store or shop. Sur les meubles meublans du locataire et sur les marchandises qui garnissent la maison ou appartement loué, si c’est un magasin ou une boutique. He refers also to the expressions used in the French text of articles 285, 287 and 288 of the Code of Practice. The appellants, on the other hand, rely upon the comprehensive terms used in the English text of the articles above mentioned, and also in articles 2676 and 3185 of the Civil Code. The lawgiver there speaks of “ the effects” of the lessee, “ the movables which are found in the place leased,” “ property used in the house,” “ such furniture or property as may be found in the house.”

The legislation upon this subject is certainly loose and inaccurate, and its interpretation not free from difficulty. The conclusion to which we have arrived is, that the interpretation advocated by the appellee is too narrow. It would render many of the expressions of the lawgiver nugatory, and would also bring our code in conflict with the jurisprudence which is the source from which it is mainly derived. The landord’s privilege takes its origin from the Roman law. That law gave the lessor a tacit mortgage as comprehensive as the privilege which seems to be contemplated by the larger expressions of our codes above noticed, covering in general the movables which the lessee brings into the house. Eo jure ultimur ut qua; in prasdia urbana inducía illatave sunt, pignori esse credantur quasi id tacité convenerit. Les mémes lois Romaines accordaient ce droit d’hypothéque tacite, non seulement dans les baux des maisons, c’esl-ádire, des édifices loués pour servir, á l’habitation du locataire, mais pareillement dans les baux des auberges, magasins, cours, boutiques etautres heritages semblables. They excepted, however, movables brought there for a merely transient or temporary purpose. See Pothier, Louage, 110, 227, 245. Domat, book 3, sec. 5, §§ 14. In France, a similar latitude is allowed, although the word “garnit” used in the French text of our codes is found in the Napoleon Code. See Troplong on Privileges, No. 151. The reason for the privilege is found in the fact that the movables occupy the house, and are sheltered and protected by it. There is justice, therefore, in applying them to the payment of the rent. It will be observed, that in this opinion, we are considering the question of privilege ns to property of the lessee only.

It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment in favor of B. and A. Soulie, opponents, for the sum of $377 77; execution to issue forthwith for $115 27, and on the 1st of January, 1st April, 1st July, and 1st October, 1851, and on the 1st January and 1st April, 1852, each for the sum of $43 75, with the lessor’s lein and privilege on the proceeds of the horses, mules and carts seized and sold in this case; said B. and A. Soulie to give credit for any sums they may receive for the rent of the leased premises, until the expiration of the lease, to wit, on the 31st of March, 1852 ; the costs of the appeal to be paid ratably by the appellees, and those of the court below to be paid out of the fund to be distributed. And it is further ordered and decreed, that the judgment of the court below as amended be affirmed; the appellees to be paid after the said B. and A. Soulie, in their respective order, except Louis Janin, who shall be paid concurrently with said B. and A. Soulie.


author: Eustis, C. J.

text:
    C. C. Williams, Syndic, v. Heirs of John Nicholson.
    Under the act of 13th of March, 1837, the functions of a syndic do not cease until the estate is finally wound up; and the homologation of a tableau filed by the syndic does not operate his discharge so long as there are funds which are not distributed. Whether or not there be such funds in the hands of the syndic, is a matter to'be determined from the evidence.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Lockett, Goold and Roselius, for plaintiff.

      Benjamin, Micou and A. N. Ogden, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit is instituted by the plaintiff as syndic of the creditors of Louis Schmidt v. Heirs of John Nicholson, deceased, who was originally appointed syndic of said creditors in 1840, and who died in 1848, of whom the plaintiff claims to be the successor as syndic. The petition asserts the right of the plaintiff to the papers and books of the syndicate, and the funds thereof; and alleges the neglect of the heirs to pay over the money received by their ancestor as syndic aforesaid. It pi'ays for judgment against each heir for the virile portion of each of the sum that may appear to have been due to the estate of the insolvent by the deceased, and for general relief.

The district judge sustained certain exceptions taken by the defendants to the plaintiff’s action, and dismissed the petition. The plaintiff has appealed. The substance of the exceptions on which alone the dismissal of the petition could be sustained, as presented by the counsel for the defendants in argument, appears to be: 1. That the homologation of the tableau of distribution filed by JSicholson as syndic is in law a judgment in favor of each creditor to whom a dividend is assigned, and has, in relation to the proceeds in the hands of the syndic, the authority of res judicata. That the right of each creditor is thereby limited to his recourse against (jj6 Syn¿[¡C) h¡s heirs, and the security of the syndic on the bond for his dividend. 2. That the homologation of the tableau of distribution puts an end to the functjona tjj0 Syn(j¡c> _^s t0 the termination of the functions of the syndic by the homologation of the tableau of distribution, it is only necessary to observe, that whatever may have been the decisions previous to that time, the statute of 1837 is conclusive against the proposition. The act relating to insolvent estates provides, that all executors, administrators, curators and syndics shall continue in office until the estate shall be finally wound up; any law to the contrary not withstanding. Act of March 13, sec. 7.

We understand from the authorities quoted by counsel that a judgment homologating a tableau of distribution among the creditors of an insolvent to be a judgment conclusive inter se, as to the funds to be divided. But the administration not being terminated, it seems to us to be obvious, that the creditors claim on any fund not distributed and paid, or afterwards coming into the hands of the syndic, is not affected by this judgment. Until the estate is settled, their right to act through a syndic regularly appointed cannot be questioned. This mode avoids a multiplicity of actions, and cases have more than once occurred in which we have given this direction in judicial proceedings where the interests of a number of creditors were concerned. Lizardi v. Gossett, 1st Ann. 139. Green v. Weston, 14 Eng. Ch. Rep. 399. Whether this estate has been settled, and whether the creditors have or not been paid, and the syndic has fully administered on the property of the creditors received by him are matters in pays, and ought not to have been closed by the defendant’s exception.

There is a decree of the late Parish Court of New Orleans, of date the 10th of July, 1843, by which the final tableau of distribution was homologated, so far as not opposed, and it was ordered that the syndic be discharged from all further liabilities in the premises, except in regard to the oppositions on file. The oppositions were sustained, and the tableau amended accordingly. This decree was based upon the rule taken on the creditors, to show cause why the tableau should not be homologated and confirmed, and the funds paid accordingly, and the syndic discharged as prayed for. Admitting, for argument sake, that this decree as to the discharge of the syndic for any act of administration has any validity, it is clear that the discharge is coupled with the distribution of the funds. Indeed, it is founded upon the performance of that duty, and inseparable from it. Whether these funds have been so distributed is an issue between the parties in this suit. There is nothing before us which closes this investigation so far as the plaintiffs are concerned. The district court, we think, erred in sustaining the exceptions of the defendants and dismissing the plaintiff’s petition.

The judgment is therefore reversed, the defendants exceptions overruled, and the case remanded for further proceedings ; the appellees paying the costs of this appeal.


text:
    Albert and Quertier v. Citizens’ Bank of Louisiana.
    Where obligations are made payable in Amsterdam in guilders, and the obligor fails to meet those obligations, tbe holder, -who is compelled to exercise his recourse upon the obligor in this State, is entitled to recover the value of guilders in our money.
    Where an obligation is made payable at a particular place, and the obligor is proved not to have provided the funds at the place to pay it, the holder is dispensed from presenting it at that place.

      A holder of a class of obligations who has acquiesced in discharging a portion of them lor a sum less than they really call for, is not thereby precluded from demanding the full amount due on the remainder.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiffs.

      Pitot and C. Roselius, for defendants.
   The judgment of the court (Preston, J. declining to sit on the cause on account of interest,) was pronounced by

Slidell, J.

This suit is brought upon coupons or interest warrants attached to bonds of the State, delivered to the Citizens’s Bank in order to facilitate it in the negotiation of a loan, and which, both principal and interest the bank, by its charter, was bound to pay as they matured. The only question presented for our decision is, whether the bank is bound to pay twelve dollars, or only eleven dollars and eleven cents for each of these coupons.

The bonds and dividend warrants out of which this controversy has arisen are of the following tenor: “ Citizens’Bank of Louisiana. A. No. 1712. $444 44 — (Bond for ¿6100 sterling) — 1200 guilders. Know all men by these presents, that the State of Louisiana acknowledges-to be indebted to the Citizens’ Bank of Louisiana in the sum of one hundred pounds sterling, ($444 44 — 1200 guilders,) which sum the said State of Louisiana promises to pay to the order of the president and directors of the said bank on the first day of February, 1850, with interest at the rate of five per centum per annum, payable half yearly, at the place and in the current money named in the endorsement hereto, to wit, on the first day of February and the first day of August of every year, until the payment of said principal. In testimony whereof, the Governor of the State of Louisiana has signed, and the Secretary and Treasurer of State have countersigned these presents, and the seal of the State has been affixed thereto, at New Orleans, this first day of February, in the year of our Lord eighteen hundred and thirty-six, and of the Independence of the United States the sixty-first. (Signed) E. D. White, Governor. (Signed) Martin Blache, Secretary of State. (Signed) F. Gardere, State Treasurer.”

The bonds were endorsed as follows: “We, the undersigned, Edmond J. Forstall, President, and J. B. Perrault, Cashier, of the Citizens’ Bank of Louisiana, for value received, do hereby endorse and transfer the within bond of one hundred pounds sterling, bearing interest at the rate of five per cent per annum, to the order of-; and do hereby bind the Citizens’ Bank of Louisiana to pay the said interest half yearly, viz: on the first day of February and the first day of August of each year, in the city of Amsterdam, at the counting house of Messrs. Hope 8$ Co., at the rate of twelve guilders per pound sterling, upon presentation and delivery of the dividend warrant in the margin hereof; and also do bind the said Citizens’ Bank of Louisiana to reimburse the principal in Amsterdam, at the counting house of the said Messrs. Hope 8f Co., at the rate of twelve guilders per pound sterling, upon presentation and delivery of this bond, on the day when this bond becomes due. New Orleans, this first day of August, 1836. (Signed) Edmond J. Forstall, President. (Signed) J. B. Perrault, Cashier.”

The divident warrants attached to the bonds were to the following effect: “No. 28. Thirty guilders, being six months dividend on one hundred pounds sterling, due 1st February, 1850, payable in Amsterdam at the counting-house of Messrs. Hope & Co. No. 1712. J. B. P., Cashier.”

The form of the body of the bond was prescribed iotidem verbis in the act of 1836, being the amendatory charter of the Citizens’ Bank. The endorsement ¡g in accordance with the authorization contained in the second section of that act which reads as follows : “ the said bonds may be transferred, by the endorsement of the president and cashier of the bank, to the order of any person whatever or bearer, and the said endorsement shall fix the current money and the place at which the principal and interest shall be paid from the funds of the bank.”

For a number of years the plaintiffs, who reside in Paris, have been extensively engaged in the purchase of coupons or interest wamints attached to these bonds. It is admitted that the plaintiffs purchased the coupons in question in the European markets, either after they had fallen due or shortly before maturity; that the plaintiffs were fully aware of the tenor and endorsements of the bonds to which the coupons were attached when they purchased them; and that they were never presented for payment at the counting bouse of Hope Sf Co. at Amsterdam, nor any where else, until they were paid by the Citizens’ Bank at New Orleans.

During the years 1844, 1845,1846 and 1847, and up to the 23d November, 1848, no funds had been placed by the Citizens’ Bank in the hands of the house of Hope Sf Co. at Amsterdam, to meet the payment of the interest falling due semi-annually on the bonds. It is also admitted that the Citizens’ Bank has paid, at its counter in New Orleans, from the 16th May, 1843, to the 23d November, 1848, one hundred and sixteen thousand two hundred and ten coupons, amounting to the sum of $1,291,093 10, at the rate of eleven dollars and eleven cents for thirty guilders; and that no other or higher rate has ryVer been claimed by any of the holders of coupons, except the plaintiffs, in (October, 1847; nor has any higher rate been either claimed or paid since that time.

It appeal’s that from the 26th April, 1846, to the 16th October, 1847, the plaintiffs presented for payment at the counter of the bank in New Orleans; fifteen thousand three hundred and forty-three coupons, for which they claimed and were credited on account at the rate of eleven dollars and eleven cents, amounting to $170,460 73.

In October, 1847, the plaintiffs set up a claim to be paid twelve dollars for each coupon of thirty guilders. An arrangement was then made by which the plaintiffs agreed to receive credit on account for their coupons as heretofore, reserving to themselves the right of suingfor the difference which they claimed, provided the suit should not be instituted within a year from that date.

The suit was originally brought for the recovery of $23,123 09, being the difference in the amount paid, and that to which they allege themselves to be entitled on all the bonds which had been paid to them; but it was afterwards so far discontinued as to limit the claim to $9,467 82, the difference on the series of coupons paid since the 16th October, 1847, up to the institution of the suit.

The act of Congress of 14th July, 1832, in force at the date when these bonds were issued, declares that the pound sterling shall be estimated at four dollars and eighty cents, in the computation of duties. This rate was increased by the act of 27th July, 1842, to four dollars and eighty-four cents. The act of 2d March, 1799, fixed the rate of guilders at forty cents, at which rate they are still computed in the customhouse. Gordon’s Dig. p. 647, No. 2188.

It was also proved on the trial, that the value in commerce of guilders and pounds sterling in the United States, was about equal to the rates thus fixed by Congress. The court below sustained the claim of the plaintiffs, giving them judgment for $£¡467 82, being at the rate of twelye dollars for each coupon of thirty guilders. The defendants appealed.

The defendants insist that they should have been compelled to pay only at the rate of eleven dollars and eleven cents; and they attempt to deduce this proposition from the figures $444 44, used at the head and in the body of the bond. By this they say, “ the relative value of the different currencies of the United States, England and Holland is fixed in the body of the bonds, with a full knowledge of which the plaintiffs purchased the dividend warrants in question.”

If these figures meant that in case the bond was by endorsement made payable in the United States, it should represent a sum of $444 44, and create an obligation to that extent: the contract is, on its face, a reasonable one. But if it meant that in case the bond was made payable in a foreign country, the debtor should have the liberty of paying an obligation of one hundred pounds sterling, or twelve hundred guilders, with $444 44 of United States money, the Legislature must be considered as having proposed to the capitalist an unbusinesslike and anomalous contract.

The true intention of the contracting parties is to be mainly sought in the endorsement of the bond and in the form of the warrant. The bond expressly points to the endorsement. Its language is “ with interest at the rate of five per cent per annum, payable at the place and in the current money named in the endorsement.” When we turn to the endorsement, not a word is said of the currency of the United States. It transfers a “ bond of one hundred pounds sterling,” and fixes unequivocally and unqualifiedly the place and rate of payment. The interest is to be paid “in the city of Amsterdam,” “at the rate of twelve guilders per pound sterling.” This payment is to be made upon the presentation, not of the bond, but of the warrant only. That warrant (or coupon) is an unqualified promise to pay at Amsterdam, on a certain day, what? Not dollars, but guilders. With what show of justice, under such a contract, could an agent of the bank appear, at the maturity of such a warrant, at the house of Hope 8f Co. in Amsterdam, and tender the holder eleven dollars and eleven cents in American coin, instead of thirty guilders, of which the real value was twelve American dollars?

In this, as in any other contract, we must search for the intention of the parties. Certainly, any one taking the warrant would not expect to receive a less value than thirty guilders; and on the other hand, we do not consider the obligor as expecting to pay less. The proposition maintained by the appellants is, that the currencies are alternative or convertible. But we concur with the plaintiff’s counsel, that it was not the intention of the Legislature to permit the bonds to be issued as convertible or alternative. He has properly argued that the parlicular form was adopted to prepare them for the principal European markets, in which it was expected they would be negotiated, namely, London and Amsterdam. The three currencies were inserted to give the bank and its customers the selection of any one of them. This selection was to be made when the bond was negotiated, and to be established by the endorsement of the bond. By that endorsement the bond becomes definitively payable in the money named in it.

What was the motive which led to this contract on the part of the State, and the object intended to be effected by it? The answer is obvious. It was the desire of the State to facilitate the bank in raising money at home or abroad, and it was the interest of the bank that the bonds should have such a form as would make them acceptable to capitalists. It is certain that their market value would have heen sensibly impaired if, after negotiation, the three currencies remained convertible, so that the bank could tender guilders to the English. creditor, or dollars to the German.

W e therefore conclude, that the plaintiffs were entitled to receive thirty guilders in Amsterdam. The bank having failed to perform its contract, there, and the creditor being obliged to sue here, he ought to have just as much allowed him here as he would have had if the contract had been duly performed. Equity forbids that a debtor should be enabled, by his own default, to diminish his obligations. See Kent’s Comm. vol. 3, 117. Scott v. Bevan, 2 Barn. & Adol. 78.

But, say the defendants, whatever might have been the right of the plaintiffs to claim thirty guilders, or the equivalent thereof, if the coupons had been presented for payment at their maturity at the counting house of Hope <%• Co. at Amsterdam, no such pretension can be sustained when, as in the present instance, they were voluntairly presented for payment and paid in the United States. The answer is, the presentation here was not voluntary. For several years the bank had utterly neglected to place funds in the hands of Hope Co. at Amsterdam, as it was bound to do; and it would have been a vain expense, trouble and risk for the plaintiffs to have sent their coupons there to have a demand made which would have been met with the answer of “no funds.” It is true, that decisions of our predecessor may be found which sanction the position assumed by the appellant; but this court has considered itself compelled by the weight of reason and authority to adopt the equitable rule, that the holder of a negotiable promise to pay money need not show a demand at the appointed place when no funds have been provided there by the debtor. See Bent v. Lauve, 3d Ann. 90. Ripka v. Pope, ante p. 61.

In conclusion, we remark that the fact of the acquiescence of the plaintiffs in the redemption of other coupons at a lesser rate, is no defence to his recovery of what is lawfully due upon the obligations now before us. The opinion hitherto entertained by the bank, or the plaintiff or other holders of these coupons, may be entitled to some consideration as an opipiop, but certainly cannot control the legal effect of the obligation. And we may observe, that the fact of this former acquiescence is mu,ch less significant when we remember the disordered condition of the bank, which threw its obligations upon the market, at a great discount, so that holders were contented to realize what the bank would allow.

Judgment affirmed, with costs.


text:
    Heirs of Villars v. J. M. Kennedy et al.
    At the period of history when it was usual to surround cities with walls and fortifications, to prevent their uses as defences from being interfered with, it was customary to leave an open space outside of the walls, which was not allowed to be granted as private property. This custom was observed in the founding of the city of New Orleans.
    The decisions of the Spanish Governors of Louisiana upon questions of title, as they were vested with judicial as well as executive powers, were final judgments which sustained the plea of res judicata.

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

      G. Schmidt W. C. Micou and J. P. Wilde, for plaintiffs.

      L. Peirce,

      L. Hunton and T. J. Durant, for defendants.

      R. Preaux and C. Roselius. for Municipality No. One.
   The judgment of the court was pronounced by

Preston, J.

This is in effect a suit against the United States for that large and valuable square of ground in front of the city, on which the United States Mint is established and for its rents and profits since the year 1819.

Our predecessors, after an elaborate and able argument, determined that it was one of those cases in which the officers of the General Government might be sued for property in their possession claimed by the Government, and in which the officers had no interest. If we had the right to review the decision in this case, we do not find it necessary. Besides there is a party on record, in relation to whose rights it is imperative on us to decide, to wit, the First Municipality of New Orleans, called in warranty by the officers of the United States. The Municipality has appeared by her counsel, and joined in the defence of the title, under which the premises are occupied by the United States.

The plaintiffs, who are very numerous, declare that they are the descendants and heirs of Claude Joseph Dubreuil Pillars, who died in this city in the year 1757; that the ground in controversy was a portion of a plantation which belonged to him before his death, of which two arpents and twelve toises front on the river, embracing this square, was never alienated by his heirs or representatives.

On the hearing of this cause, the plaintiffs’ counsel observed that the presumption was in favor of the validity of plaintiffs’ title, because the judge of the district court had found it necessary to employ fifty printed pages to support his opinion adverse to the title. The district judge might indeed have summarily stated two or three leading facts, fully established by the evidence as fatal to the plaintiffs’ suit, and rendered'judgment against them. But it was far more satisfactory to public justice, and should be to both parties, for that tribunal to have examined with care every document and all the oral testimony introduced in evidence, and which had accumulated for a centuxy, and to show from all a total want of title in the plaintiffs, and a complete and pei'fect title in the defendants. He has done so with great ability and extraordinaiy cai'e and labor, and the accuracy of his detail of facts and conclusions from them cannot be too much applauded by this court.

After hearing the case fully argued on behalf of plaintiffs’ counsel, we deemed it unnecessary to hear the counsel of the defendants, believing that none of the conclusions of the district court had been successfully assailed, and with a few general observations, we will condense and adopt the reasons given for the judgment of the distx-ict court as our own.

It will be seen by the 35th chapter of the book of Numbers, and the 21st of the book of Joshua, that the children of Israel were commanded with great particularity in founding cities for emigrating tribes, to lay off extensive subui'bs outside of the walls, for the common use of the inhabitants. The Christian sovereigns of Europe, either fxuixi'a reverence for the example or the intrinsic utility of the custom, incoi'porated it into their laws for the government of their Colonies in the Indies. By the term city, in Spanish jui’ispi'udence, was undexstood a place surrounded by walls. 7 Part, title 33, law 6. And by the laws of the Indies, it was expressly provided, that no houses should be erected within the distance of three hundred paces froin the walls or breastworks of the town, this being necessaxy for the good of our service and for the safety and defence of the towns. See the Laws of the Indies, book 4, title 7, law 12; or White’s New Recopelacion, vol. 2, p. 47.

In Merlin, verbo, Fortification, vol. 12, Brussell’s Edition of 1826, it will be seen that by an ordinance of the King of France, dated the 24th of September, 1678, ramparts, ditches, and other places which had served for the fortifications of the cities of the kingdom could not be alienated by his officers, because they were things out of commerce and belonged to the king. It will be seen further, under the word Communaux, that cities could not alienate their commons, and in the collection of the laws and ordinances of the Colonies by Moreau de Saint Mery, he gives some striking cases, in which even public officers had attempted to locate themselves pei'manently on places destined to public purposes, in which their pretensions were rejected, having, as expressed in one decree, the shame of having speculated without profit upon an object, the destination of which rendered it worthy of the protection of the colonial laws. See his work, p. 262 and 309.

The City of New Orleans was founded by Governor Bienville about the year 1718. A copy of a plan which the city has obtained from the Minister of Marine, and Colonies in France, made by the Engineer de Lassas in 1726 exhibits the city and its environs. The first concession of land below the city is exhibited as made to one Dreux. By the scale of the map its upper line is more than half a mile below the city; and all the intervening space is marked on that early plan as commons of the city.

That the King of France might subsequently grant these commons to individuals we have no doubt; and that they were granted to individuals to the distance of within two arpents and twelve toises of Barracks street, the plaintiffs’ counsel have rendered probable.

For although they alleged that the square claimed by them was a portion of a tract of land belonging to their ancestor, called his Brewery, yet when the defendants, with uncommon industry and at great expense, traced the titles and location of that tract, and demonstrated that the upper line of the Brewery Plantation was a quarter of a mile below the square in controversy, and that plaintiffs’ ancestor had alienated that tract years before his death, the court allowed them to show that their ancestor owned another tract of land nearer the city, of which they contend the square in controversy was a portion. They showed neither grant nor title to this last tract; but a sale of the Brewery Plantation on the 5th of October, 1758, is in evidence, describing it as lying about a quarter of a league below the city, and bounded on the upper side by land belonging to the succession of Dubreuil Villars; and a month afterwards, on the 4th of November, 1758, a public sale of the land belonging to the succession was made, the plaintiffs contend, with a front of seven arpents and eighteen toises, embracing the square in controversy and if from these acts we may infer a grant, the question is, whether seven arpents and eighteen toises were granted, and if so, did they embrace the square for which the suit is brought ?

It is ascertained beyond a doubt that the city of New Orleans was fortified by Governor Bienville, by whom it was founded. A military governor of a feeble Colony, surrounded by numerous savages, actually at war with the powerful tribe of Chickasaws and also the Natchez, could not do otherwise than fortify his capilol. That the city was fortified at its foundation, and an esplanade left outside for the use of the fortifications, is rendered certain by a grant made in 1724 to one De Chavannes, the Secretary of the Western Company, of two arpents above the Brewery, on the condition that it could be found at the distance prescribed by the ordinances from the esplanade of the city. In 1725 he had the grant made absolute; the engineer of the province having given assurance that it would not cause any injury to the fortifications of the city.

The plaintiffs suppose this the grant under which their ancestor held the land in controversy, and the proceedings contain internal evidence that it was the nearest private grant to the city which was made.

By an inspection of the plan of the city and its fortifications, dated the 29th of May, 1724, and made by Depanger, the Engineer of the Colony, it will be seen that the city was at that period laid off into parallelograms down to Barracks street. The barracks were established at the corner of that and Levee street. The river making a turn there, the fortifications were adjoining below and in advance of the city. By comparing this plan with the site of the square in controversy, it will be seen that the square is entirely within not only the esplanade of the fortifications, but within the exterior line of the fortifications themselves, and is evidently left vacant and appropriated for the fortifications and defence of the city. It is palpable, therefore, that it was not granted to Da Chavannes.

We have reason to believe this line of fortifications was not abandoned, but was maintained and enlarged from time to time, until the treaty of peace between France and Great Britain in 1763, when the Province was ceded to Spain. It is matter of history that Perrier, the Commandant General of Louisiana in 1730, repaired them and surrounded the city with a wide ditch to protect it, as well from the Natchez and other hostile tribes of Indians as from an apprehended insurrection of the slaves, and collected three hundred regular troops and three hundred militia into the adjoiuing barracks at the corner of Barracks and Levee streets. Salmon, his successor, was constantly at war with the Indians.

Bienville, the former military governor who had established the fortifications, returned again as governor in 1734, and brought with him six hundred and fifty regular troops for the defence of the country. During his government he was constantly engaged in war. The Marquis of Vandreuil succeeded him. War existed between France and Great Britain in 1741, continued until Quebec fell aud Canada was conquered; and in 1758, the very year in which the sales, out of which this controversy arises, occurred, Fort Duquesne, the present site of Pittsburgh, was surrendered, and the French garrison came to New Orleans and was quartered by Governor Kerlerec in the barracks in the rear of the same fortifications.

We have no doubt that Governor Kerlerec extended these fortifications not only on the two arpents and twelve toises of land below the barracks, which subsequently became the subject of controversy between the Government and individuals, but so as to encroach on the adjoining plantation, admitted by the Government then as now to be private property. Because a plan of the fortifications was made in 1760 by Deverges, the Engineer of the King, showing the exterior lines of the fortifications encroached upon this private property, and exhibiting four small squares within the fortifications, marked V, which were to have been given to the owner of the plantation as an indemnity for the encroachment.

But the treaty of peace was made in 1763, the land encroached upon was no longer needed for the defence of the country. Delachaise, the owner, resumed it. His successors possessed it until the cession of the countiy to the United States, by whom it was confirmed to them and laid off and sold by the present Bernard Marigny, as a suburb of this growing city. Therefore, the indemnity was never made, but the squares were ceded or sold by the Government.

We have, therefore, the strongest possible evidence, and which is conclusive on our minds, that the square in controversy was not private property until 1763, but had been owned and actually possessed by the Government for-the fortification and defence of the city from its foundation until that year, being a period of forty-five years.

Notwithstanding the irresistible presumption against the claim of the plaintiffs growing, out of the circumstances to which we have adverted, they have endeavored to infer a title, not only to the square in controversy, but also to a tract of land having two arpents and twelve toises front on the Mississippi river, in which it is embraced from the mortuary proceedings in the succession of their ancestor. They have attempted to do so from a sale made of the plantation belonging to his succession, in the month of November, 1758. The sale was made on the application of the heirs of Villars Dubreuil to sell the whole of his property real and personal. The whole was ordered to be sold without any resei'vation whatsoever, with the approbation of the attorney general of the king. The officer charged on behalf of the heirs, and the tribunal which ordered the" sale of the plantation, advertised it in writing from time to time for two months, as follows : “A plantation of the late Mr. Dubreuil, adjoining on one side the limits of this city, and on the other the plantation of Mr. Amelot, having seven arpents and eighteen toises front by all the depth, to the limits of the Bayou and of Chantilly, together with the principal house and other buildings, a saw-mill running four saws, another mill working pestles, (for hulling rice) attached to the saw-mill, a sugar mill, a brick-yard with two kilns, containing each ninety thousand brick, five large sheds, a negro quarter, and generally all the buildings on the plantation, accessories and appurtenances, in the condition in which they are, and on the further condition that, inasmuch as the greater part of said buildings are constructed upon land which belongs to the king, and which he has reserved to himself, which land is not comprised in the above mentioned seven ai'pents and eighteen toises of front, it shall be free to the king to re-take that said portion of land which belongs to him whenever he shall think proper to do so; the purchaser removing previously all the buildings which are seated thereon.”

And on the day of sale Mr. Villars, by direction of the officers of Government, caused it to be proclaimed, and also to be reduced to writing, in the proces verbal of sale, “that to prevent reproaches and contestations on the part of the purchaser, he declares to us, in order to give through us a knowledge to bidders here present, and all others coming from one moment to another, that the house for which we are now receiving bids is situated upon land of the king, as well as all the other buildings between it and the city : and that it is only in consideration of Mr. Dubreuil, his father, that his majesty had consented to the enjoyment on the part of the said Mr. Dubreuil of two arpents and twelve toises, upon which are built the buildings above mentioned ; which two arpents and twelve toises became consequently, in passing into other hands, subject to be re-taken by his majesty, at the will of the ordonateurs of this Province, upon their permitting the purchaser to take away the buildings which are situated upon the same.” Mr. Delachaise became the purchaser, and with the heirs of Villars and officers of the Government signed the proces verbal of sale containing still another clause, “obliging himself to take away the buildings which are on the land of the Icing, in case he be ordered to do so.”

These proceedings, so far from showing that the land in controversy, or the two arpents and twelve toises embracing it, belonged to the deceased, show the contrary conclusively. The advertisement, as well as the declaration of Villars Dubreuil proclaimed to the bidders and reduced to writing in the proces verbal of sale, and not only approved but directed by the officers of the Government, declare in terms that the land belonged to the king and not to the deceased, because the king had reserved it for himself. The manifest interpretation of the advertisement and declaration is, (if they admit of interpretation,) that the king, in granting the adjoining tract, had not granted these two arpents and twelve toises, but had reserved them for his fortifications and the defence of the city.

The argument of counsel is, that the French concessions of land were made upon the condition that the king might resume what was necessary for fortifications, and the enunciation in the sale was made in reference to that condition. But this argument assumes that it was the condition of the whole grant, because it was usual in all French concessions. Why then was not this announced to be the condition upon which the whole tract was sold ? Why was the enunciation of the condition limited to two arpents and twelve toises, when it was applicable to the whole seven arpents and eighteen toises ? Why was the condition enounced at all, since it has never been customary in either public or private sales subsequent to the grant upon that condition?

The plain import of the whole proceeding is, that the vendor was selling a tract of land with improvements, and at the same time was selling some buildings on an adjacent tract of land that belonged to the king, and which had not been conceded by him. The reason it had not been granted we have shown was palpable at the time, because, 1st, it had been dedicated from its foundation as commons of the city ; and 2nd, was always indispensable to the defence of the city, being the esplanade of its fortifications.

Why then, it will be asked, was it occupied by Dubreuil Villars with houses ? It appears in evidence that he was the undertaker and builder of the fortifications for the king, and nothing was more natural than that the king’s'officers should permit him to have his dwelling, and perhaps carpenter’s shop, on the ground reserved for the use of the fortifications, upon condition of removing them whenever required. . The removal would only be required in case an attack or siege was anticipated, which might not occur in a lifetime.

Therefore, the heirs of Dubreuil Villars who sold, and the officers of government who superintended the sale, caused it to be published and then reduced to writing in a prods verbal, and then to be proclaimed orally before the sale, in order, as they say, to prevent reproaches and contestations on behalf of the purchaser, and to give full information to the bidders and all others, that the dwelling house and some other buildings offered for sale was situated, not on land which the king might resume for the fortifications, but on land belonging to the king; on land, it is further stated, reserved by the king, that is, not conceded, but reserved for his fortifications. Dubreuil Villars further stated that it was only in consideration of Mr. Dubreuil, his father, that his majesty had consented to the enjoyment on the part of Mr. Dubreuil of two arpents and twelve toises, on which are built the buildings mentioned; which two arpents and twelve toises became consequently, in passing into other hands, subject to be re-taken by his majesty at the will of the ordanateur of the Province, permitting the purchaser to take away the buildings which are situated upon the same.

No language, it appears to us, could have expressed in stronger terms that the land did not belong to the succession, but that it belonged to the king; and indeed it declared that the possession of the late Dubreuil Villars was of the most precarious character, being held by him only on account of the high consideration entertained for him by the king: and therefore clearly implies that his succession had no possession at all of the land, but only of the houses.

We have adverted to the history of the French fortifications until the peace of 1763. During the next thirty years they fell into disuse, and individuals encroached upon the esplanade. And in 1789, Col. St. Maxent sold the two arpents and twelve toises, with his plantation, to Laurent Sigur. In 1794, the Baron Carondelet surrounded the city with new fortifications, in which he was aided by Laveau Trudeau, the Surveyor General of the Province. The angles of the fort, like those of the French fortifications, encroached beyond the two arpents and twelve toises on what was indisputably private property. Trudeau, in looking at Sigur’s bill of sale, and the line of fortifications as laid off by JDuverges in 1760, which did encroach on private property and for which indemnification was to have been given, momentarily supposed that the two arpents and twelve toises belonged to Sigur, and that he was entitled to indemnification, and Sigur made a claim for it from the Spanish Government.

And here it is proper to observe that, if there was ever any pretence that this land was private properly, the pretence belonged to Laurent Sigur, and not to the.heirs of Dubreuil Villars. For the district judge has demonstrated that if they sold a certain quantify of land by measurement, they sold seven arpents and eighteen toises, all that they ever possessed; and if they sold by metes and bounds per aversionem, they sold to their extreme boundaries, and parted with all their interest. So that the claim of the plaintiffs is utterly unfounded, even if their ancestor ever had any claim to the land.

In consequence of the demand of Laurent Sigur for indemnification in 1797, Gayoso De Lemos, then Governor of Louisiana, caused a thorough investigation to be made in order to ascertain the true line between Sigur’s property and that belonging to the king. It was made in presence of persons of note, appointed on behalf of the Cabildo, in presence of Sigur, of course, and conducted by Laveau Trudeau, the Surveyor General of the Province. After much examination, the line between the city and the plantation was ascertained and fixed at two arpents and twelve toises below Barracks street, about as neai'ly as we can judge one hundred feet below Esplanade street. Much notoriety was given to the proceedings; the line was established with great formality, and was subsequently known as Gayoso’s Line. And the governor rejected the claim of Sigur for damages, on the ground that “ neither he nor the persons from whom he held could have acquired any right on the ground within the lines of the old fortifications although through error, inattention or indulgence, they might have been suffered to possess it. That with regard to the angles of Fort St. Charles, which might exceed the old fortifications, the plaintiff could not have a better title to an indemnity from the Government, because in all concessions made under the French Government, the king had always reserved the right of taking out of the lands granted the ground necessary for extending the fortifications of the city ; a right to which the King of Spain had succeeded.”

As the governor was charged with the exercise of judicial as well as executive powers, this was a decision absolutely binding upon the claimant of the land. The present Bernard Marigny, who subsequently became the proprietor of the plantation, considered it so, and claimed before the American board of commissioners for the adjustment of land titles only to Gayoso’s Line, and was confirmed to that extent and no further.

In consequence of the decision of the Spanish governor, Laurent Sigur refused to pay to the syndics of Col. St. Maxent, the whole price he had agreed to give for the plantation, on the ground that two arpents and twelve toises of the same belonged to the public and not to his vendor. He sued the syndics of St. Maxent for a proportional diminution of the price. This was the great occasion when all the old titles and plans were still in existence, also even living witnesses, and every means of ascertaining the exact truth, and when private interest to a. large amount would have established the private right to the two arpents and twelve toises, if it had been possible. The contrary was established in the suit beyond ail doubt. The proces verbal of the sale of Dubreuil Villars’ succsssion was discovered, given in evidence, and in the absence of grant or title was considered conclusive. And in 1800, the tribunal determined that a diminution of the price should be allowed to Sigur, for the two arpents and twelve toises, because, as they declare, that portion of the property “ did not belong to Col. St. Maxent when he sold it, and for the possession of which he had no title. A diminution of $25,000 was allowed on the price of the purchase, or about $10,000 the front arpent.

The judgment was not executed until after the cession of the country to the United States, and the suit was renewed before the Superior Court of the Territory of Orleans. It was contested by the ablest counsel in the Territory on each side ; for it seemed to be considered that the merits were still open to investigation, and they were again decided by the late Judge Martin adversely to the plaintiffs’ pretensions in this cause. The counsel used an argument before the Superior Court as to the declaration of Dubreuil Villars in 1758, which might be used on the present occasion if that declaration admitted of the least possible doubt, that “ verba fortius accepiuntur contra proferentem." We advert to it here because we are approaching the opinion expressed by one of the commissioners for the adjustment of land titles in Louisiana — the unfortunate expression of which gave rise to this long and expensive litigation. It is strange, however, that it should have given rise to this suit on behalf of the heirs of Villars, since the opinion was expressed in favor of the creditors of Col. St. Maxent, who, with those under whom they claimed, had held all' the rights of Villars’ succossion by perfect titles for sixty years.

The commissioner considered that as Dubreuil Villars occupied the two arpents and twelve toises as part of his plantation, and as French concessions contained a reservation that the King might take any part of the land granted for fortifications when he deemed it necessary, it might be inferred from the declaration of Villars that the king had granted the land with this reservation, and so he concluded. We have sufficiently refuted this view of the subject.

But the commissioner gave as another reason, the improbability that Villars would have erected his dwelling house and established other improvements on the land unless it had been granted. As he was the undertaker of the fortifications, it is probable his principal establishment was the saw-mill mentioned in the proces verbal of sale, and it is certain it was on what has since been called Marigny’s Canal. The sugar-mill mentioned was probably at the same place, and not very valuable either, as until this suit it had been forgotten that sugar was cultivated in the Colony at that early period, and thought that it was introduced thirty years afterwards by the late Mr. Boré. That his dwelling house, and probably carpenter’s shop, was nearer the fortifications he was erecting, and on the two arpents and twelve toises of land belonging to the king, cannot be disputed under the declaration of his son. Neither the character nor value of these buildings are shown, and we may reasonably conclude that they were of the most ordinary character, on account of the precarious possession of the place where they were erected ; being directly in the fire of a fort during a war that had existed between France and England for seven years. Charlevoix, in passing through the Colony, described the city as a collection of huts. The bubble of Law having, at a later period of the colonial history, exploded with all its misfortunes, and the Colony being constantly engaged in wars, it is not likely that it improved much previously to 1758. Indeed, Voltaire, alluding to the explosion of Law's bubble, describes the city. The existence of these buildings, under the circumstances, should have created no doubt as to the meaning of the declarations of Dubreuil Villars, which was explicit; but if they admitted of any doubt from any extraneous circumstances, “ contra proferentem,, verba fortius acccpiuntur."

The claim was not confirmed by the Commissioners nor by the Government of the United States. On the contrary, the United States, by three acts of Congress in 1807, 1811, and 1822, confirmed it to the city of New Orleans; which confirmation was equivalent to a grant, since they had never been conceded to individuals. And further, in the case of The United States v. The City of New Orleans, the Supreme Court of the United States determined that property in the same situation precisely belonged to the city.

The fort, occupying the greater part of the square in controversy, continued in the possession of the General Government and greatly aided in the ever memorable defence of the city against the invasion of 1814. With the return of peace the fort was dismantled, the works razed, and the square was subsequently donated by the city to the United States for the establishment of a mint, which has been done at vast expense and with great advantage to the city.

But much of this investigation was unnecessary, except to show that every pretence of the plaintiffs had been carefully examined and considered by the court. For, bearing in mind the military history of the country, a simple inspection of the original fortifications of the city by the French Government in 1724, as exhibited in the plan of Depanger, their engineer; their fortifications ns rebuilt in 1760, and exhibited by the plan of Deverges’, the fortifications erected by the Baron Carondelct in 1794, and exhibited by the plan of Laveau Trudeau, the Surveyor General of the Province; and the plans of Fort St. Charles, as possessed under the American Government; and the recollection of its actual site by many now living, shows that all these fortifications were situated on the very square which is the object of this suit. It will thus be seen that the square has been occupied for fortifications from the time Governor Bienville planted his Colony on the banks of the Mississippi until they were erased after the treaty of peace with Great Britain in 1815.

It was never granted or held as private property; was originally destined by the sovereign to the defence of the city ; and situated on the commons dedicated at its foundations to its use. This particular square had therefore been actually possessed and used by the public for these purposes for more than a hundred years before the institution of this suit, and never was possessed a day as private.

It was stated ia the argument, and indeed it appears by the record, that the suit is supported by distinguished names from other States. And it may be useful to mention here, that suits of the kind have given trouble and anxiety and have caused great expense in this State, with little profit to the plaintiffs, so as to have induced our Legislature to reduce the term of prescription in favor of the titles to real property, even as to non-residents, to ten years; and to manifest a strong disposition by other legislation to protect the bond fide possessors of property in this State, as far as they possibly can, consistently with justice and equity. The experience of this court has deeply impressed ús with the necessity of this legislation.

Therefore, in conclusion, we have to say, that this is a petitory action brought against the United States, who possess the property sued for with a just title and in good faith ; that it is brought without grant, title, or the shadow of equity to support it; and strange to say, is principally based upon an express declaration of the ancestor of the plaintiffs, that he had no title whatsoever, but that it belonged to his sovereign, by whose favor alone his father, out of considerations personal to him, had possessed it, and that therefore he sold only the right of removing his buildings from it. Further, the suit is not only barred by the prescription of ten years, but by an actual adverse possession in good faith for more than a century.

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


text:
      John R. Borgstede v. D. Clark et al.
    The general rale prescribed by the Code of Practice that the party cast shall be condemned to pay the costs, applies to civil suits and not to proceedings under the act of June 1st, 1846, in reference to contested elections.
    from the District Court of Jefferson, Clarke-, J.

      Brevier and Collins, for appellant.
    Elliott, for appellee.
   The judgment of the court (Preston, J., not sitting in the cause, having been of counsel in the case,) was pronounced by

Slidell, J.

At an election held in 1849, in the parish of Jefferson, Borgsiede was returned as being duly elected recorder of the parish, and Clark, who had been a candidate for the office, instituted a proceeding under the act of 1846, to contest the election. This petition was signed by himself and by twenty citizens of the parish, as required by the statute. The petition made no charge against Borgstede of any malpractice touching the election, but alleged that the election was void by reason of the incapacity of the commissioners, and the irregular and illegal performance of their functions. The prayer of the petition was that Borgstede might be cited; that the matters alleged might be inquired into by a jury; that the petitioner, Clark, might be adjudged to be entitled to the office of Parish Recorder of Jefferson; or that the election for said office may be referred again to the people. To this Borgstede answered, denying the allegations of the petition, and maintaining the legality of his election. A jury having been empannelled and the cause heard, a majority brought in a verdict for the plaintiff, declaring the election for the office of Recorder for the Parish of Jefferson to be null, and referring the same back to the people. Upon this verdict the following judgment was rendered : “ In this case, the court considering the verdict of the jury, it is ordered, adjudged and decreed; that the election for parish recorder in and for the parish of Jefferson, be annulled, and that the same be referred-back to the people.”

Subsequently, without any other judicial action, a writ of fieri facias was obtained by Clark from the clerk of the court, and the sheriff was about to execute it upon the property of Borgstede when he brought the present suit to enjoin the execution. The writ is for $559 90, being composed of $225 20 for clerk’s fees, and $304 70 for sheriff’s fees, alleged to have been incurred in the proceeding above mentioned. It appears from the evidence in this cause, that these costs were mainly incurred for subpoenaing witnesses for both parties, but in what proportion is not shown.

The district judge dissolved the injunction, and Borgstede has appealed. The question is whether the execution lawfully issued and can be lawfully enforced upon the property of Borgstede.

It will be observed, that the judgment in the matter of the contested election did not adjudge any liability on the part of Borgstede for the costs. It simply annulled the election, and referred it back to the people. But it is said that this case is controlled by the provisions of the Code of Practice, and we are referred to the articles 549 and 551. These articles are as follows : “ In every case the costs shall be paid by the party cast, except where compensation has been allowed, or real tenders made, as heretofore provided by this code.” Art. 549. “If the court have not decreed in their judgment that the party cast should pay the costs, the same are nevertheless duo to the party in whose favor the judgment had been given ; and such party shall be entitled to have the same taxed on execution of the judgment.” Art. 551.

So far as the code establishes the principle, that in ordinary actions the costs ought to be paid by the defeated litigant, it harmonizes with every system of law with which we are acquainted. Victus victori in expensis comdemnandus est, is the maxim alike of the civil and the English law. But our code goes further than the civil'or English law in declaring that costs are due and may be collected on execution, even although the decree is silent with regard to them. Those systems both contemplate an express condemnation to pay costs. See Domat, book 4, tit. 7, sec. 4. Blackstone, book 3, chap. 24. And, under the Roman law, the judge could in his discretion moderate the extent to which costs should be borne by the party cast if he had acted in good faith, and in ignoronce of the rights of his antagonist. We mention this peculiarity of our code, not with any view of weakening its effect in those cases to which it is applicable, but for the purpose of showing the propriety of confining its operation to such cases.

Now, we understand the code as laying down rules of practice in civil notions “brought,” as its own definition expresses it, “for private interests.” L’action civile est cede qui s’intente pour un interét privé. Art. 9. It is proper, therefore, to inquire whether the proceeding authorized by the statute of 1846, can be considered as purely a civil action within the contemplation of the code, or whether it is not on the contrary a proceeding, to some extent at least, of public concern, and not to be inflexibly controlled by those rules which govern controversies purely individual.

The proceeding under the statute does not rest upon the same basis as a civil action. A right of civil action is the right given to every person to claim judicially what is due or belongs to him Code, 1. But in this proceeding the party is not permitted to act without the concurrence of twenty of his fellow-citizens. Again, in actions between man and man, (the civil action contemplated by the code) a right of appeal is guaranteed by the Constitution when the matter in dispute exceeds a certain sum. But in this proceeding no appeal is permitted, no matter what may be the pecuniary value of the office. In the case of Be Buys, the constitutionality of this provision of the statute was debated. We sustained its constitutionality, and refused to entertain an appeal, because we considered the contest a matter of public concernment, and not a lawsuit between individuals.

Again, it cannot fairly be supposed to have been the intention of the Legislature to discourage citizens from presenting themselves as candidates for public office. Yet such would be the effect, if a citizen who had received the suffrages of the people could be subjected, at the will of a defeated candidate acting in conjunction with a few other persons, to the costs of an expensive controversy, not for any fault or wrong on his part, but on account of the mistakes or incapacity of commissioners of election.

For these and other reasons which will suggest themselves from a consideration of the terms of statute, and the motives which induced its enactment, we conclude that the case ought not to be controlled by the 551st article of the Code of Practice. The execution has no judicial basis, and is therefore void.

It is therefore decreed, that the judgment of the district court be reversed ; and it is further decreed, that the injunction be perpetuated; the costs in both courts to be paid by the defendants.


text:
    Lewis Florance v. Isaac Bridge.
    Where one who was liquidating partner of a firm becomes bankrupt, and at the sale of his effects purchases the interest he formerly held in a judgment in favor of the firm, he cannot issue an execution on that judgment without showing an authority from his former co-partners of a date subsequent to his purchase.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Benjamin and Micou, for appellee.

      T. H. Howard, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 3d of May, 1839, a judgment was rendered against H. Florance Sf Co., in favor of Isaac Bridge, liquidating partner of the firm of Isaac Bridge Co., for the sum of $1782 50, with interest. In the petition Bridge is styled liquidating partner of the firm composed of Isaac Bridge, Thomas Hykers and Henry Smith. Bridge became a bankrupt, and undertook to surrender his interest in this judgment, to wit, three-fifths thereof. It is alleged, that at the sale of his effects, he, Bridge, purchased this interest in the judgment, and that his former partners renewed their authority to him to represent their interest. Bridge took out execution on the judgment which was enjoined at the instance of Lems Florance, one of the former partners of H. Florance Co. One of the grounds on which the injunction was granted, was the alleged want of interest and authority on the part of Bridge to control the judgment and take execution thereon.

The district judge was of opinion that the title of Bridge to the judgment was acquired posterior to the issuing of the writ, and that therefore it was illegally issued. The injunction prohibited further proceedings under the writ of execution, and the judge made it perpetual and condemned Bridge to pay the costs. From this judgment Bridge has appealed.

Conceding that Bridge acquired the three-fifths of the judgment at the assignee’s sale, he has shown no right to issue the execution. He has shown no authority from Smith, one of his partners, and we think the evidence is not sufficient as to that of his other partner, Hykers. The execution would have been quashed on motion. The judgment of the district court is to the same effect.

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


text:
    Samuel C. Young v. Municipality Number One.
    A creditor who has a judicial mortgage upon property cannot prevent the sale of the property upon a subsequent judgment. C. P. 301, 403, 710. Nor can the purchaser refuse to pay the price until the prior general mortgage is cancelled, especially when it appears the judgment debtor has other property sufficient to pay the debt.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. Bermudez, for appellant.

      C. Dufour, L. Eyma, L. C. and Cr. B. Duncan and F. Buisson, for appellees.
   The judgment of the court was pronounced by

Eustis, C. J.

The appellant, John Pemberton, purchased at sheriff’s sale a Jot of ground for the sum of five hundred dollars, which he paid to the sheriff. The sale was made under an execution issued on a judgment rendered in favor of Samuel C. Young v. Municipality Number One. This judgment was recorded in the office of the recorder of mortgages, and of course operated as a general mortgage on the real property of the municipality. There were recorded prior to the recording of Young's judgment four other judgments. Two of them, it seems, have been paid and two others, one in favor of Cronan and the other in favor of the Carrollton Bank, remain unsatisfied.

The appellant took a rule on the judgment creditors to show cause why the proceeds of the property sold under execution should not be brought into court and distributed among them according to their rank, and the general mortgages on the property sold be release^; or, if the same should not be decreed, to show cause why the plaintiff should not furnish security to protect the purchaser from disturbance by reason of the said general mortgage. To this rule the two judgment creditors answered. The objections made by them are somewhat different, though involved in the same principles. The district judge, after argument, discharged the rule and ordered the money to be paid over to Young, the seizing creditor, and Pemberton has appealed.

Was the sale valid, or did it fail by reason of the price not having exceeded the total amount of the general mortgages ? We think an answer to this objection is found in the articles 301, 403 and 710 of the Code of Practice, which provide for the very case of property sold under execution, on which general mortgages are supposed to remain, the payment of the price by the purchaser notwithstanding.

The article 684 of the Code of Practice, relied upon by the counsel of the mortgage creditor, as prohibiting a sale of property under execution, if the price offered does not exceed the amount of the privileges and mortgages with which it is encumbered, evidently refers to special and not to general mortgages. The cases in which adjudications have been held to be invalid for that cause were both cases of special mortgage. Fernandez v. Bein, 1st Ann. 32. Trudeau v. McVicar, Ib. 426. See also Loucks v. The Union Bank, 2d Ann. 619. We think sales under execution have always been made since the adoption of the Code of Practice, even under this view of the article 684, and we have not known any case in which its correctness has been questioned. There is no subject about which there has been so much litigation, or more searching scrutiny exercised as that of the forms and requisites of sheriff’s sale, and we consider the district court did not err in holding the sale to be valid.

The sale being, then, valid, to whom was the price to be paid ? Cronan, who is the first judgment creditor, insists, if the sale be maintained, that the proceeds of the property sold must be paid to him, by virtue of his prior right of mortgage. Our impression is, that the law is clear as to the rights of a general mortgage creditor in a ease of this kind. If Cronan wants to make his money, why has he not taken his execution and seized the property of his debtor 1 And What justice is there in permitting him to lay by and defeat a creditor who is pursuing his legal remedy for the payment of his debt. The law does not postpone Cronans prior right to that of the seizing creditor, Young, but will not allow him to defeat the plaintiff’s right. It is proved, that there is ample property of the municipality to pay both their debts. Cronan can take execution for his debt, but he cannot be permitted to take from Young the money made under his execution. C. P. 403.

In giving the price of the property sold to the seizing creditor rather than to the mortgage creditor, we do not consider that we are giving any preference, in a legal sense, to the former. The seizing creditor secui'es the benefit of his legal pursuit on the ground of the non-action of the creditors- by general mortgage, and that there is sufficient property to satisfy their debts whenever they choose to enforce payment, and they suffer no injury by the payment to the seizing creditor.

We think the district judge did not err in refusing to order the judicial mortgages to be released, the ease not being one in Which the power is conferred. Their remaining on the property is certainly an inconvenience to the purchaser, who has paid his money and ought to be entitled to a clear title. But, under the provisions of the Code of Practice, we do not understand- that any provision is made for removing the incumbrance. From the amount of property of the defendant liable to execution, We think the purchaser will be protected from, disturbance, which we cannot say that he has just reason to apprehend. We do not feel ourselves justified in changing the judgment of the district court, in exacting security from the seizing creditor under the affiele 7Í0 of the Code of Practice.

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


text:
    Mary E. Andrews, Adm’x. v. City Bank of New Orleans.
    The sale ty executory pro'cess of the property of a succession before any one wás authorized to represent the succession, is null.
    Tn executory proceedings notice of the seizure must be served upon the debtor. C. P. 654, 735, 745.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      E. A. Bradford, for plaintiff.

      H. Lockett, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff, being the widow and administratrix of the estate of Z. Andrews, has instituted this suit to set aside a sale of four hundred and thirty one shares of the capital stock of the late City Bank of New Orleans, made on the 29th of May, 1848.

The stock was owned by Z. Andrews, and was pledged to the bank to secure a l°an $21,550, made to Z. Andrews on the 23d of February, 1848, and a further Joan to Andrews and Brother of $15,000 on the 27th of March, 1848.

The sale was made by virtue of two orders of seizure and sale issued by the Fourth District Court on the acts of pledge. One was issued on the 27th of April, 1848, and the other on the 3d of May, 1848; and, as stated, the sale was made on the 29th of May, 1848, for $33,618, or $78 a share.

On the 29th of April, 1848, a petition was presented to the Fifth District Court by E. B. Harris, stating that Z. Andrews died about the 22d of that month, and praying for letters of administration on his estate.

On the 3d of May, the plaintiff, his widow, filed an opposition stating the death of her husband, and claiming the administration. On the 17th of May she was appointed, and letters as administratrix were delivered to her on the 31st of July, 1848, and she has since administered the estate.

We are satisfied, that Andrews died as alleged, and that his succession was properly opened in the Fifth District Court on the 27th of April, 1848. No person was authorized to represent his estate during the executory proceedings, in virtue of which his stock was sold. The sale was, therefore, not binding upon- his succession, and his administratrix has a right to set it aside.

There was no service of the notice of seizure upon Andrews, or at his place of ordinary residence, as required by articles 654, 735, 745 of the Code of Practice; so that he would not have been bound by the sale even if he had been living.

The district judge annulled the sale on other grounds, the force of which we do not see ; but for those stated by us we think the sale ought to be annulled.

It is therefore decreed, that the judgment of the district court be affirmed, with costs.


author: Preston. J.

text:
    J. P. Estebene v. Paul Estebene.
    The rale by which partial payments are to be credited is, to calculate interest on the debt to the date of the partial payment, and deduct the payment from the aggregate sum, allowing the balance to bear the stipulated interest. This rule applies only when the payment exceeds the interest due.
    APPEAL from the District Court of Jefferson, Clarice, J.

      J. J. Michel, for plaintiff.

      A. Marks, for defendant.
   The judgment of the court was pronounced by

Preston. J.

The defendant is sued upon a promissory note for $900, bearing eight per cent interest from the 1st of December, 1848, until paid. Judgment by default was rendered against him and duly confirmed. In confirming his judgment, the plaintiff gave in evidence and credited a judgment in favor of the defendant against him for five hundred dollars. He took judgment for $232 50 with eight per cent interest from the date of the judgment; also for eight per cent interest on his note, according to its tenor, to that date.

The rule which has been well settled in this court as to partial payments is, to calculate interest on the debt to the day of part payment, and deduct it from the aggregate, allowing the balance to bear the interest stipulated, if the payment exceeded the interest due. It is possible there is a very small error in the judgment, according to this mode of calculation. But the defendant should have appeared and plead his judgment in compensation, and by his aid enabled the district judge to make an exact calculation of the amount he was entitled to offset. C. P. 327, 328. He has not made the calculation for us, nor even brought his judgment up with the record to enable us to make it for him.

If there be a material error in compensating the claim against him by his judgment, after paying the judgment in this case against him, as the compensation was made by the plaintiff, the defendant not appearing, no doubt the district court would allow a rule in his behalf against his debtor, by judgment to show cause why execution should not issue for the unextinguished balance of his judgment.

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


text:
    Kock and McCall v. H. H. Slatter.
    Where a redhibitory disease manifests itself within fifteen days after the sale of a slave, it will be presumed to have existed at the time of the sale, unless the defendant shows that the slave had been in the State more than eight months previous to the sale.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Benjamin and Micou, for plaintiffs.

      Moise and Randolph, for defendant
   The judgment of the court (Preston, J. not sitting, having been of counsel in the case,) was pronounced by

Rost, J.

This is a suit for the rescission of the sale of a slave, on the ground that before and at the time of the sale he was affected with an incurable disease, which renders him unfit for the use for which he was purchased, and totally worthless. There was judgment rescinding the sale, and the defendant has appealed.

It is proved that the slave is rendered entirely worthless by a disease which several physicians state to be incurable. It is further shown that the disease manifested itself within fifteen days after the sale; and as the defendant has not proved that the slave had been more than eight months in the State at that time, the legal presumption is, that he was unsound when sold. 13 L. R. 47. 9 R. R. 306. Act of 1834. Bullard & Curry.

This presumption, sustained as it is by the testimony of the physicians who have attended the slave since the sale, cannot be overthrown by the testimony of the defendant’s witnesses. The slave may have appeared healthy during the limited time they knew him in the defendant’s slave yard, although affected with ailments which would soon be made apparent by labor and exposure.

The judgment is therefore affirmed, with costs.


text:
    T. O. Stark, Receiver, v. Burke, Watt & Co. et al.
    The courts ¡bwe the power of appointing receivers to liquidate the affairs of insolvent c.or- - porations, if there be no other person provided by law to effect such liquidation, whenever it is necessary, in order to preserve the interests of all parties concerned.
    Where an insolvent hank was in course of liquidation under the laws of the State, and the term of the office of liquidator expired without there being any legal provision for the appointment of another, the court properly appointed a receiver.
    The receiver of an insolvent bank may sue all the stockholders for contributions of stock before the tribunal in which the bank is in liquidation, although some of them may reside in different parishes.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Elmore and King. Bonford and Grymes, for plaintiff.

      L. Reirce, W- PMicou, and C, Roselius, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

On the decision by this court in the case of Walker v. Caldwell, 4th Ann. 296., in which it was held, that Theodore O. Stark, who had been appointed liquidator of the Atchaialaya Railroad and Banking Company under the statute of the 16,th of March, 1848, could not maintain the action by reason of the statute beipg in conflict with the Constitutibn, Stark represented by petition to the Court of the Fifth District of New Orleans, that by virtue of his said appointment, he had, previous to said decision, taken possession o.f the books, papers and assetts of said company; that by virtue of said decision, his appoimnent .yvas held to be null and void, an.d that there was no person authoized fo .administer the affairs of said company, and that thereby the interests of said .company and the rights of creditors were greatly injured ; that there were large s.unjs due by the .company, and large claims on behalf of said bank in litigation, and that the proceedings for the liquidation of the affairs o.f the .company were pending before the court. On this petition the district court, having .cognizance of the proceedings before it under the statute for the liquidation of insolvent banks, appointed Theodore O. Stark receiver of .the company, according to the prayer of his petition, with power to take charge of its assetts and to liquidate its affairs, &c., on his entering into bond in the sum of $10,000, with good and sufficient security for the .faithful discharge of his duties as receiver.

By virtue of this appointment Stark instituted the present action ip the same court against Burke, Watt and other stockholders of the company, for a contribution to pay certain creditors, on the ground of their not having paid the full amount of the stock held by them.

The defendants excepted to the plaintiff-’s action, on the ground of the illegality of his appointment as receiver. The court sustained .the exception, dismissed the petition, and th.e plaintiff has appealed.

We consider that there .can be no question as to the power of the court, in the view of the condition of the affairs of the company as exhibited by the proceedings before it, to appoint a receiver for the preservation of the interests of all concerned. The court, ex proprio motu, was bound to prevent the confusion and dilapidation consequent upon the abandonment of its affairs produced by the inefficiency of the law under which Stark had taken possession of and continued to hold the records, papers and assetts of the company. The proceedings for the forfeiture of the charter of the company, and the liquidation, as far as it had progressed, being before the Fifth District Court we think the court properly exercised its authority in making the appointment. Brown v. The Union Insurance Company, 3d Ann. 182.

We think our brother of the district court labored under a misapprehension in supposing that the appointment of the receiver was tantamount to reviving a defunct corporation, and therefore illegal.

We do not understand the law to be, as contended for by counsel, that in the dissolution of a corporation the personal property of the corporation vests in the State, and the debts due to and from the corporation cannot be x-ecovered. On the contrary, by the civil law on the dissolution of corporations of this class, the property of the corporation belongs to its members and must be divided among them.

Nor do we consider the corporation, in any sense, as revived by this appointment. As a corporation it has ceased to exist; the appointment is merely a saving of the rights of creditors and of the property of the association.

There are several other exceptions taken by the defendants, which have not been decided by the district court, and of course stand reserved. There is one upon which, it is stated by counsel, it is particularly desirable that we should express an opinion, in consequence of the number of the defendants and their different places of residences, and the great delays to which proceedings in liquidation of this kind are exposed. It is, as to the plea of domicil. Our impression is, that under the allegations of the petition, and the proceedings heretofore had, all the parties defendant within the State are amenable to the jurisdiction of the Fifth District Court, notwithstanding their residence out of the parish of New Orleans. Barrow v. Norwood, 3 L. R. 436. Toby v. Hart, 8 L. R. 524. Vanwick v. Hills, 4 R. R. 140. Thompson v. Chretien, 3 R. R. 26. Drew v. Atchinson, 3 R. R. 140. Duggan v. Lizardi, 5 R. R. 226. Bourgerol v. Allard, 6 R. R. 351. Amis v. Bank of Louisiana, 9 R. R. 349. Mayor of New Orleans v. Ripley, 5 L. R. 122.

The judgment of the district court is therefore reversed, the exception of the defendants overruled, and the case remanded for further proceedings; the appellees paying the costs of this appeal.