author: InsiiEY, J.

text:
    Succession of Juan Y. de Egana.
    ‘The notification of the filing of a tableau operates as a citation to all persons concerned therein (ere* ditors as well as legatees); and the homologation of an account and tableau bare all further enquiries as to all matters included in the account.
    APPLICATION for a re-hearing.

      G. LeGardeur, Win. H. Hunt and P. E. Morgan, for the motion to dismiss. E. A. Bradford, L. Cosiera, Edward Briggs and G. E. Brady, contra. W. B. Mills, for absent heirs.

       It would have afforded the Reporter pleasure to have inserted the briefs of the very learned counsel in this case, but, being so voluminous, they would have swelled the pages much beyond the number contracted for.

   InsiiEY, J.

In this case a re-hearing is prayed for in behalf of the Canal Bank and other appellants. Their counsel, before urging the grounds upon which, in his opinion, the motion to dismiss was improperly sustained by this Court, has gone at some length, 'and with his usual ability, into the merits of the case; but, as we said in the judgment, the reconsideration of which is now solicited, it is not our province, at this stage of the proceedings, to examine into the merits of the case. Our task is simply to determine whether, by their voluntary acts in executing or ratifying the execution of the judgment, the appellants have lost their right of appeal, and cannot be listened to in this Court.

We will, therefore, confine ourselves to the examination of those gounds .alone, of the very able and elaborate petition presented by the appellants, which bear upon the motion to dismiss.

I. The first ground is: “That, if the statement annexed to the tableau disclosed the fact that the sum of $54,813 33, proposed to be distributed, .and also the note of C. DeLassus, particularly referred to, were received from the liquidator, it showed also that the note of C. DeLassus, and the greater part, if not the whole, of the money were part of the separate ■ estate of J. Y de Egana, which had been given o^er to the liquidator without authority, and which had been, at least, half surrendered before the judgment against the Lizardis was given, and that, from whatever source the money was derived, if it was part of the assets of the succession in the hands of the executor, it was his duty to distribute it, and as ■ clearly the right of the creditors to receive it.”

We have no authority to determine (for we cannot go into the merits of the case) whether the assets spoken of were or were not the separate property of Egana, and whether or not they improperly passed from the hands of the executor into those of the liquidator. Suffice it to say that, in point of fact, they were in the joint possession of both the executor and the liquidator; that neither of them had the right to withdraw them from the bank, wherein they were deposited, without the consent of the other; that the judgment of the 11th January, 1864, condemned the liquidator to surrender them to the executor; that a rule was taken against him to enforce the execution of that part of the judgment; that said rule was made absolute, and, in obedience thereto, the sheriff took possession of these-very assets which he thus surrendered to the executor.

This we considered, and do still consider, to be a partial execution of the judgment; and, in our opinion, which remains unchanged, the consent of the creditors to the distribution of the assets which had thus returned into the hands of the executor, by this partial execution of the judgment, was a clear and complete ratification of the acts of the executor, and a formal acquiescence in the judgment.

Besides, the whole amount of $54,813, which the executor proposed to distribute among the creditors, and to the distribution of which the latter assented, did not proceed from what the appellants style the separate property of Egana.

A portion of it, to wit: $16,337 11, was paid in satisfaction of that portion of the judgment which condemned the Lizardis to surrender the assets of the commercial house.

It cannot be controverted, therefore, that the payment of this sum of $16,337 11, under the writ in the hands of the sheriff and the order of the Court, was a partial execution of the judgment, and that, by consenting to the distribution thereof, the appellants have ratified and acquiesced in the judgment.

II. The second ground is : “ That several of the appellants had filed no opposition, and made no appearance in any proceeding connected with the tableau; that the homologation of a tableau has been held to have the authority of the ‘ thing adjudged’ in respect to the funds included in tha distribution, but has never been held to have any further effect; and it is incorrect, therefore, to say that these appellants are bound by the judgment of the 19th January, 1865, which homologates the account, so far as not opposed, and thereby approved and ratified the settlement of the executor with M. de Lizardi.”

We see no reasons for being dissatisfied with the conclusion we have arrived at, upon this point.

It rests upon the principle, well settled in our jurisprudence, that “the notification of the filing of a tableau operates as a citation to all persons concerned therein (creditors as well as legatees); and that the homologation of an account and tableau bars all further enquiries as to all matters included in the account.” Succession of Poytavin, 10 Rob. 118. Smith v. Lallande, 1 Rob. 385. Coiron v. Millaudon, 3 An. 664.

In this case the usual notices were given, as required by law; some of the creditors opposed the homologation of the account, but expressly consented to the distribution proposed by the executor, whilst the others remained silent and suffered the usual orders to be made without opposition.

We, therefore, think that the former having expressly, and the latter tacitly, consented to the distribution of the funds received under the execation of the judgment, they, all of them, have ratified that execution, and, consequently, acquiesced in the judgment.

HI. The third ground is : “ That the appeal of the Canal Bank and some others, taken on the 22d December, 1864, was prosecuted, both against the judgment of the 11th January, 1864, and that rendered on the 27th July, by which it was ordered that the previous judgment, and the execution issued thereon, be declared satisfied and the Lizardis discharged from all further liability in the premises; and that, conceding these appellants are debarred from all appeal from the judgment of the 11th January, there is no reason why they should be refused the right of appeal from that of the 27th July.”

The judgment of the 27th July, by declaring that the judgment of the 11th January has been satisfied, virtually decides that this last judgment was properly executed.

It is plain, therefore, that the Canal Bank and its co-appellants cannot be permitted to appeal from the judgment, since it assumes and is based upon the correctness of an execution which was effected by their legal representative, and which they, themselves, have ratified, and have no right to question.

TV. The fourth ground is : “ That the appellants have made the executor, J. M. Cabellero, a party to the appeal, and, as stated in their brief, they seek relief against him, as well as against the other appellees; that no motion was made in his behalf for the dismissal of the appeal; that the grounds of dismissal occupied by the Lizardis are not available for him, and yet, the order for the dismissal of the appeal is general, and would seem to dispose of the whole case. ”

We have dismissed the appeal upon the ground that the appellants cannot be listened to in this Court, because they have ratified the execution of, and, consequently, acquiesced in the judgment appealed from. This, necessarily, disposes of the whole case as it stood before us.

We cannot, after holding on the motion of the Lizardis that the appellants have lost their right of appeal and cannot be heard in this Court, listen to them on any part or portion of the judgment. The dismissal of the appeal has left nothing before us.

A rehearing is also prayed for by the absent heirs of Egana; but if, as stated by the attorney appointed to represent them, “they are not appellants in the said appeal, and, therefore, their rights under the judgment of the District Court cannot be changed or affected by the dismissal of the appeal; we are at a loss to conjecture upon what ground and for what purpose a rehearing is prayed for on their behalf.

Besides, they are not appellants; and, as was said by this Court in the case of Lalland v. McRea, reported in 16 An. p. 195; and in Converse, Kennett & Co. v. Steamboat Lucy Robinson, in 15 An. p. 433: “This Court is only seized of jurisdiction to amend the judgment, ds between the appellant and appellee. ” The dismissal of the appeal, as we have just said, disposes of the whole case and leaves nothing before us. We have given to the appellants’ application for a rehearing in this case, a very attentive examination, and have maturely considered the able argument of their counsel in support of it.

The reasons so earnestly pressed on us to satisfy us of the propriety of opening the judgment rendered by us have proved powerless to shake our conviction of its correctness in every particular; and, therefore, for the reasons we now give, responsive to every ground relied on, our judgment cannot'be disturbed.

It is therefore ordered that the rehearing prayed for be refused.

Howell, J., recused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    Charles L. Brauer v. Barque “Almoner,” Captain and Owners.
    Tho oommon oarrier, under the commercial law, is answerable for all losses that do not fall within the excepted cases of the act of God (perils of the seas)or of public enemies, but he may limit his responsibility by special notice of the liability he means to assume, so that the shipper will be bound to prove negligence or fault in the carrier in case of loss or damage in the goods shipped.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. C. Roselius & A. Philips, for plaintiff. A. Saucier, for defendant and appellant.
   Howell, J.

This is an action to recover the value of a cask of claret, shipped to plaintiff in this city from New York, on board the barque Almoner.

The bill of lading is in the usual form, with the limitation therein, that the defendants would not be “responsible for leakage,” which they allege has exempted them from liability for the loss incurred, and they further allege that the cask was insufficient.

The latter ground is not sustained by the evidence.

It is shown that the cask was received by defendants in good order, and when delivered here two or three of the chimes were broken, in consequence of which the entire contents were lost. No stress of weather, or other perils of sea are proven, and whether the injury to the cask resulted from pressure of other freight, or any other direct violence, through the carelessness of defendants, the limitation in the bill of lading merely relieves the common carrier from ordinary leakage, and does not authorize him to deliver empty casks. The leakage in this instance was more than ordinary. The facts of this case are not analagous to those in the cases of Thomas v. The Morning Star, 13 A. 269, and The New Jersey Steam, Navigation Company v. Merchants Bank, 6 Howard, 384, cited by appellants.

We think the evidence, under the law, establishes the responsibility of the defendant, and that there is no error in the judgment of the lower Court.

Judgment affirmed, with costs.


author: Hxman, O. J.

text:
    Classen & Co. v. D. R. Carroll et al.
    Silence and inaction are, under some circumstances, the means of showing an assent that creates an obligation; if after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other,
    The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other, at least fifteen days before the expiration of the month, which has begun to run.
    If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he cannot be compelled to deliver up the house or room, without having received the legal notice or warning directed by Article 2656 of the Civil Code.
    APPEAL from the Sixth District Court of New Orleans,

      Duplaniier, J. O. E. Schmidt, for plaintiffs and appellants. Whitaker, Fellows & Mills, for defendants.
   Hxman, O. J.

Plaintiffs alleged that the defendants, Daniel R. Carroll and John G. McLearn, as commercial partners of the firm of D. R. Carroll & Co., were jointly and severally indebted to them, under a contract of lease, for the sum of $1,875, with'interest.

Defendants filed a general denial, and prayed for trial by jury.

The case was, without objection, tried by jury.

The jury gave a verdict in favor of plaintiffs, for $900, with costs.

The Judge rendered judgment pursuant to the verdict; and from the judgment plaintiffs have appealed.

The evidence is, that defendants leased of plaintiffs, a part of a house in New Orleans, from 1st November, 1860, and paid quarterly, that is, every three months, $312 50 for the enjoyment of the same; that the defendants paid in this manner up to the 1st of May, 1862, and that, after that time, they ceased to -pay, but held and occupied the property leased until 1st November, 1863.

Thus the lease is proven, and the price agreed to be given, and the time when it was to be paid, is also proven by the payments; and if there be any doubt for what period of time the lease was to continue by contract, the defendants remaining in. possession of the part of the house leased, without opposition from their lessors, fixed the duration of the lease,\ during the time of their possession,. See Civil Code, Articles 1811, 2656 and 2659.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed. It is further decreed, that plaintiffs recover of defendants, Daniel R. Carroll and John G. McLearn, in solido, the sum of one thousand eight hundred and seventy-five, dollars, with legal interest thereon, as follows, to wit: on $312 50, from 1st of August, 1862; on a like sum from 1st of November, 1862; on alike sum from 1st of February, 1863; on a like sum from 1st of May, 1863; on a like sum from 1st of August, 1863, and on a like sum from 1st of November, 1863, till paid. It is further decreed that defendants pay all costs of suit.


author: Hyman, C. J.

text:
    Succession of Mary McGinnis.
    A creditor of a deceased person, who purchases property of the succession of the deceased, cannot compensate his claim against the price which he has agreed to give for the property.
    A creditor who gets possession of the price for which the property of a succession is sold, has no greater right than a creditor who purchases the property of a succession.
    All kinds of fruits, natural, cultivated or civil, produced during the existence of the usufruct, by the things subject to it, with the exception of the children of slaves, belong to the usufructuary.
    APPEAL from the Second District Court of New Orleans,

      Whitálcer, J. . Huntington, for plaintiff. A. Shaw, for defendant and appellant.
   Hyman, C. J.

Matthew Behan and Mary McGinnis were married, and during their marriage they acquired, as community property, a lot of ground in the City of New Orleans.

In 1850, Matthew Behan died intestate, leaving neither ascendants nor descendants. In 1861, Mary McGinnis died. In 1863, the lot was sold, by order of Court, for the price of $1,400. This money passed into the possession of the administratrix of the succession of the said deceased Mary McGinnis, who filed a tableau, and petition that it might be homologated, and that she be authorized to distribute this money among the creditors of the succession of Mary McGinnis, as they were classified in the tableau.

The administrator of the succession of Matthew Behan, opposed to the tableau, and claimed that the half of the proceeds of the sale of the lot belonged to the estate of Behan.

The District Judge rendered judgment, and decreed that the tableau be amended, rejecting some of the items thereof, reducing others, and also decreeing that $1,000 be deducted out of the proceeds of the sale of the lot, as an amount due to the estate of Mary McGinnis, and that the remainder of the proceeds, say $400, be equally divided between the two estates.

The administrator of the succession of Behan has appealed from this judgment.

In this Court it is admitted by the attorney of the administratrix of the succession of Mary McGinnis, that the administrator of Behan’s estate is entitled to claim from her a half of the proceeds of the sale of the lot; but he contends that she, as the administratrix of the estate of Mary McGinnis has a right to compensate against this half the sum of $500, as the said Mary McGinnis had acquired, since the death of Behan, a claim of $1,000, owing by the community which had existed between Matthew Behan and Mary McGinnis, during their marriage.

A creditor of a deceased person, who purchases property of the succession of the deceased, cannot compensate his claim against the price which he has agreed to give for the property. 2 A. 412; 3 A. 150.

A creditor who gets possession of the price for which the property of a succession is sold, has no greater right than a creditor who purchases the property of a succession.

If creditors of an estate were'permitted to compensate in this manner, the intention of the law to distribute"the effects of the deceased among persons having just claims on his succession, might be entirely defeated. 7 N. S. 239; C. C. 1056.

The pretence that the estate of Behan had a claim against Mary Mc-Ginnis, because she had enjoyed the fruits and revenues of the community property, has no foundation in law; for she was entitled to the usufruct of the community during her life, and as usufructuary she had a right to the fruits and revenues. See Act relative to community property, approved March 25th, 1844; C. C. Article 536.

Equally unsupported by law is the claim set up by the administratrix of the estate of Mary McGinnis, against the succession of Behan, for the constructing, by Mary McGinnis, of a kitchen and hydrant on the lot. Such buildings must be abandoned by the usufructuary at the end of her usufruct, to the owner. They are not extraordinary repairs. See Civil Code, Articles 563, 565, 566.

The estate of Behan, not being a creditor of Mary McGinnis, nor of her estate, its administrator has no right to ask that the tableau filed by the administratrix of the estate of Mary McGinnis be amended so as to affect the order in which the creditors are to be paid out of the assets belonging to the estate of Mary McGinnis. He can only claim that the money of Behan’s estate be not used to pay the creditors of Mary Mc-Ginnis or of her estate, and that it be paid to him.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed. It is futher decreed, that the one-half of the nett proceeds of the lot of ground sold for (§1,400) one thousand four hundred dollars, be declared to belong to the succession of Matthew Behan, and that the same be delivered to Daniel Behan, administrator thereof, by Elizabeth Cummings, administratrix of the estate of Mary McGinnis, and that the costs of opposition be paid by'the estate of Mary McGinnis, reserving to this estate whatever rights it may have against Behan’s estate.

It is further decreed, that the tableau filed by the administratrix of the estate of Mary McGinnis, be homologated, and that she distribute the assets in her possession belonging to the estate of Mary McGinnis, Among the creditors thereof as they are classified on the tableau.


text:
    George R. Beard v. Simon and Renaud.
    Reasons upon which judgments are founded, should, whenever it is practicable, be in writing.
    Fraud must be alleged and strictly proved, as also partnership.
    APPEAL from the Sixth District Court of New Orleans,

      Leaumoni, J„ L. Costera, for defendant.

      John Henderson, Jr., for plaintiff and appellant.

    — This is an appeal by-Beard from a final judgment in favor of Renaud, in a revocatory action, to set aside a transfer of a bakery from one Simon, the debtor of Beard to Renaud, for fraud and simulation. Pursuant to C. C., Article 1970, Simon, as debtor, was made a party to the revocatory action of Beard, against Renaud, in the original Court, but before this Court only Renaud is a party appellee to this appeal. In this action the onus probandi is on Beard to establish fraud and simulation. 17 L. B. 353; 9 Rob. 272; 10 An. 691.
    But as soon as Beard proved that Simon remained in possession of the bakery, after the date of the pretended sale from Simon to Renaud, the law raised the legal presumption of fraud and simulation in the transfer, and threw the burden on Renaud and Simon to prove the verity of the sale and good faith of both Simon and Renaud. C. C. Articles 2156,1915, 1917.
    That the transfer was simulated, vide 8 N. S. 267; 7 An. 91, 125; 11 Rob. 196; 9 Rob. 273; 6 An. 815; 10 An. 100, 691; 11 An. 758; 13 An. 597; 12 Rob. 98.
    Declarations of vendor and vendee before, at and since alleged sale,, admissible to prove fraud and simulation in transfer. 8 N. S. 267; 13 An. 597, and cases cited above.
    Simulation as well as fraud may be shown by presumptive evidence, and so of all the circumstances which have a tendency to show that the sale was not bona fide, and that no real consideration passed to and was retained by tbe vendor, such as the relative condition and circumstances of the parties, their means and revenues, their subsequent conduct, 'ho influence of one over the other, the fact that the price was nominal, rail generally such matters of fact as conduce to establish the plaintiff’s allegation of simulation and indirect advantage. 13 An. 208.
    It is a recognized principle, that the onus probandi is upon the pf.Ay who has to free himself from liability by the proof of a fact, the knowledge of which must be supposed to be more within his .power than that of his adversary.' 13 An. 397, 398.
    We prefer to examine the evidence on the point of fraud and simulation, on the argument of the case, orally, and .then appfy the law to the facts and the facts to the law, as the exigency of the ease may require.
    The judgment is unconstitutional, as no reasons therefor are assigned as required by the Constitution; therefore the judgment must bo reversed, and this Court must pronounce such judgment as the original Court should have rendered upon the law and the evidence. 11 An. 94, (P. Gallot v. J. McGluskey, el at., decided by this Court Monday, 19th March, 1864.)
    Appellant prays reversal of judgment, and one in his favor, setting aside the notarial act of transfer from Simon to Benaud, and ordering Benaud to deliver up the property therein enumerated to the Sheriff to satisfy appellant’s demand against Simon. C. C. Article 1972.
   InsiiEY, J.

. The plaintiff in this case seeks to recover from both the defendants, as commercial partners, in solido, the sum of eleven hundred and seventy-six dollars and fifty-eight cents, being the amount of a promissory note drawn by Simon for $636 -18, and a debt contracted to> him in the name of Simon, for the balance; or, in the alternative, if he failed to prove a partnership, then he asks for a judgment against Simon for the whole amount, and that the sale of a certain bakery establishment made by Simon to Benaud be set aside on account of fraud and simulation, and that the said establishment be held liable to seizure and sale to satisfy his said claim.

The defendant, Simon, made no defence; but, Benaud, in his answer, pleaded a general denial, and specially denied the existence of any partnership between him and Simon, or that he did ever assume the payment of the debt of the latter, averring that he had purchased the bakery in good faith for a valuable consideration, he having resources of his own to make such purchase, and, finally, he denied the charge of fraud brought against him.

There was a judgment in the lower Court in favor of the plaintiff, and against the defendant, Simon, for the whole amount claimed; and also a judgment in favor of the defendant, Benaud, and from this last judgment the plaintiff has appealed.

it is contended by the appellant, that the judgment of the lower Court should be reversed, because no reasons are assigned in support of it; and we are referred to the cases of The Police Jury of West Baton Rouge v. Bowman, 11 A. 164, and Gallott v. McCluskey, lately decided; in neither of which vero any reasons at all adduced for the judgment therein rendered. Whilst in this one, reasons were given orally in open Court, in support of the judgment.

Boasona upon which judgments are founded should, whenever it is practicable, bo in writing; but we are not prepared to say that the mode resorted to in ibis instance, does not suffice to conform to the Constitutional requirement.

On. the merits; It is conceded by the plaintiff that no partnership between the defendants was proved; and it is not alleged nor proved, that the defendant, Simon, when he executed the act of sale to Benaud was, (to the knowledge of Benaud) in insolvent circumstances. Baudue v. His Creditors, 4 La. 247; 4 Rob. 408, 438.

Nor does the evidence, properly weighed, prove the contract attacked to have been simulated or fraudulent.

The onus to prove the vices alleged was on the plaintiff, and he has not established the charge.

The judgment of the lower Court must be affirmed; and it is therefore ■ordered, adjudged and decreed that the judgment of the lower Court be affirmed, at the costs of the appellant.


author: Idsdey, J.

text:
    Interdiction of Rosette Rochon.
    ■yYliere accounts are duly presented before the homologation of a tableau, and are not contested, they will be presumed to be correct.
    APPEALfrom the Second District Court of New Orleans,

      Thomas, J. T. 'JDrouett and R. Qrandmoni, for defendants.
   Idsdey, J.

This is an appeal taken by the curator of the interdicted Rosette Rochon from a judgment of the lower Court, sustaining in part, the opposition of E. H. Sanvago, administrator of the succession of the said Rosette, deceased, and of Frederick Buisson, the attorney appointed to represent her absent heirs, to the last account of administration rendered by the said curator.

By their answer in this Court filed by the opponents, they pray for an amendment of the judgment, so as to maintain the other grounds of their •opposition; but in their brief they ask that the judgment be affirmed.

The appellant has not pointed out to this Court any error in the judgment, nor in what manner he is aggrieved by it, nor have we been able to discover from the record, which we have examined, any cause for its reversal.

It was incumbent on the curator to sustain his account, particularly, those items of it which were opposed, by satisfactory proof, and which, so far as related to those items, he failed to do.

The reduction of the item, No. 31, from $1,449 95 to $459 was properly made, if indeed the evidence in support of the latter amount, which is rather vague, justifies its allowance even for that amount.

We will assume that it is correct, as the opponents do not contest it. (See Miller v. Whittier, 4 La. 72).

The curator, on the trial of the opposition, took a bill of exceptions to the refusal of the Judge, to receive in evidence the preceding accounts filed by him, but he does not state for what purpose they were offered; in any event, they are in the record, and we have examined them without being able to perceive in what manner they could aid the curator in sustaining the items disallowed, in his accounts.

The judgment of the lower Court must be affirmed.

It is therefore ordered, adjudged and decreed that the judgment of th® 'Court below be affirmed, at the costs of the appellant.

Howblii, J., recused.


author: JjKBAxm, J.

text:
    Richard M. Johnson v. John H. Gennison.
    When an instrument or obligation is annexed to a petition and made part thereof, it is an ample notice of the cause of action.
    APPEAL from the Sixth District Cotut of New Orleans,

      Sowell, J, WMlaker, Fellows & Mills, for defendant.

      Field & Shackleford and J. S. Wallace, for plaintiff

    — {Brief on motion to dismiss). — The amount of the judgment, including interest, is the criterion by which the amount of the appeal bond is to be fixed. 2 La. 86; 9 A. 310.
    It must exceed that amount by one-half. C. P. Article 575.
    The judgment in this case, including interest up to the day of its rendition, amounted to §2,269 62, to which add one-half more, and w© have a .sum total of §3,404 43, Which should have been the amount of the appeal bond; but the bond is, in fact, for only §3,000, and is, therefore, insufficient and no bond at all, and this Court cannot entertain the appeal.
    The transcript filed does, not contain all the evidence offered on the trial.
    There is no text in either Code, nor is there any statute fixing or limiting the time within which a motion to dismiss an appeal must be made. In some cases, the Supreme Court have required such motions to be made within three days after the fixing of the record, but there is no law for such a ruling, and the Court has consequently- not uniformly adhered to it.
    The only law from which any rule can be drawn, are Articles 590, 591, 886, 88,7, 888, 889, 890, 891, of the Code of Praotiee, which refer to the filing of the answer; and, by Article 890, the appellee has until the day qf argument to file his answer, if he only pray for confirmation of the judgment.'
    Now, a motion .to dismiss in this case by appellee is, in effect, a prayer for confirmation; and, if any rule upon the subject of motion to dismiss is to be established from analogy, it must be drawn from the 890th Article of the Code of Practice.

      Second Brief for Appellee. — This is a suit upon two notes drawn by defendant to his own order, and secured by mortgage on real estate.
    The defendant excepted to the petition, on the ground that the n’otes .and mortgage were not snffieiehtly described, but as both the notes and mortgage were filed with and made part of the petition, the exception was properly overruled. S’MorlliersY. Second Municipality el als., 5 R. 123.
    Defendant then answered, in which he admitted the execution of the notes, but pleaded payment at maturity through one Lunesehlass, his. agent and banker, with, money or funds furnished by him, defendant, and denied plaintiffs title to the notes.
    In this state of pleading the parties went to trial, the onus probandi being on defendant; but he failed to administer any proof upon the issue-thus sharply and distinctly made in his answer.
    Tho plaintiff, on the contrary, not content with the prima facie evidence of title, growing out of the possession of the notes, which was all that was necessary, and upon which he might have rested safely, has in addition, -proved his purchase, the consideration paid, possession of the notes, both before and after maturity, and defendant’s knowledge of, and acquiescence in plaintiff’s title and possession, more than twelve months, after the maturity of the last of said notes, and more than eighteen months after he pretends to have paid them. See testimony of Robert Johnson, page 39, of T. A. James, page 41. Extract from Bank Book, page 42, and testimony of Hiram Smedley, pages 34, 35.
    The counsel for defendant objected to the reception of the notes in evidence, on the ground that the curator of a succession cannot dispose of the notes of the succession without an order of the Court.
    That question might arise between the curator and the creditors, or heirs of a succession, but not in a case like the present. See McKinney v. Beeson’s Estate, 14 L. 254; BeGoer et al. v. Kellar, 2 A. 496.
    The defendant then attempted to prove a settlement of the debts, for which the notes were given, in a manner and at a time entirely different from that which he had set forth in his answer, and entirely inconsistent with and contradictory to his answer, and to that end offered certain records, to the reception of which plaintiff objected, and now calls the attention of the Court to his bill of exceptions on page 43 of the-transcript. In support of his objection, he urges the familiar maxim that the proof must conform to and correspond with the allegation, and cites the cause of Victoire el al. v. Monton, 8 M. 400; 2 L. 304; Belognyr. Smith, 3 L. 420; Bonchee v. Michel, Administrator, et al, 10 R. 92; Beily v. Wilcox, 12 R. 648.
    But if these documents were admissible under the pleadings, they only serve to show the bad faith, or fraud of defendant. On 14th March, 1859, he obtained a judgment against the succession of Gardner Johnson for $2,000, with interest and costs. On the 16th August, 1860, he purchased property at said Johnson’s succession sale to the amount of $2,525. See proces-verbal of said sale offered by defendant, page. Now, a calculation of the debt, interest and costs of the judgment in favor of Gennison v. Johnson’s Succession, up to the 16th of August; I860, the.day he purchased the property, shows that Johnson’s succession owed him on that day $2,401 43, to which add $125 42, the amount he pretends to have paid in cash, and we have $2,526 85, a little more than necessary to pay the amount of his bid. Then why did defendant, several months after-wards, execute these notes sued on, and have them paraphed by a notary public, unless it was for the purpose of putting them on the market, .and raising money by inducing some innocent third party to purchase them. He must have known that he did not owe Johnson’s succession the amount of these notes, if the amount of his bid had beep settled by compensation and the payment of $125 cash.
    Taking, then, the records as evidence, and placing the most charitable and rational construction on the conduct of defendant, he put these notes on the market and received the proceeds. When the first one was placed in bank, in February, 1861, and he notified, he went to plaintiff’s agent and asked him to withdraw the note from bank and not have it protested.
    After the city of New Orleans was occupied by the United States forces* in 1862, Hiram Smedly, another agent of plaintiff, called on defendant for the payment of these notes. Defendant replied: “Ask Johnson how he expects me to pay money on notes at such times as these.” Sec Smedley’s testimony. And the idea of pleading payment being altogether an after-thought, accounts for the vague and contradictory manner i» which he sets it forth and attempts to prove it. We submit, therefore* that, in any view of the case, he cannot be permitted to avail himself of his own wrong and avoid the payment of these notes.
   JjKBAxm, J.

The plaintiff alleges that he is the holder and owner of two mortgage notes, hereto annexed, and hereof made a part, due by JohnH. Gennison, amounting to $1,683 33, with six per cent, interest* from 16th August, 1860, until maturity, and eight per cent, therefrom until paid. That the payment of said notes is secured by the vendor’s; lien and special mortgage on the property described in the notarial act of sale hereto annexed and hereof made á part.

The defendant excepted to the petition,, on the grounds that it sets; forth no cause of action, nor are the allegations set forth with that degree of certainty which is necessary for the basis of a judgment, nor such that this defendant can, with safety, answer thereto.

The Court overruled the exception; we believe this decision is correct. The notes sued on and the act of mortgage being annexed to and made a. part of the petition, the defendant had ample notice of the cause of action. 5 Rob. 123.

The defendant, answering on the merits, filed a general denial; admitted the execution of the notes sued upon; denied that plaintiff had any right or title in the same; alleged that the notes had been taken up with funds furnished' by respondent,, by one Luneschloss, who acted as a banker for respondent, and had all his papers, and with whom he left his money as on deposit; that these notes thus taken up at their maturity were in said Luneschloss’ clerk’s possession when he left suddenly this city without returning to this respondent said notes, etc.

Judgment being rendered below in favor of plaintiff, tlie defendant took this appeal.

On trial of the ease below, plaintiff offered in evidence the two notes and act of mortgage annexed to the petition. The defendant objected to the admission of said documents, on the ground that neither of the notes, nor the act of mortgage, were at all described in the petition; and that, being mortgage notes given to the curator of the vacant estate, the plaintiff must show a transfer by judicial sale or by act of partition to him. The Court overruled the objection and admitted the evidence. We are of opinion that the Court did not err.

The signature of the defendant to the notes sued on is admitted; the notes are payable to his own order, and by himself endorsed in blank. This endorsement is proven by the act of mortgage, and the plaintiff has shown clearly that he is the holder of said notes, which are payable to bearer under the blank endorsement,

We have carefully examined the evidence, and we are of the opinion that the defendant has failed to establish his defence.

Judgment affirmed, with costs.

Hyman, C. J., and Howell, J., recused.


author: Ilsley, J.

text:
    David N. Barrow v. Isaac Bloom.
    ‘Iicigeneral rule, as gathered from the text of our law is that a penal obligation being secondary to a primary one, the performance erf which it is intended to assure, the creditor cannot, except in two contingencies, avail himself of the double remedy, in the event of the debtor’s failure to fulfil the primary obligation; to enforce the performance of that, and to exact the penalty at one and the same time.
    APPEAL from the Fifth District Court of New Orleans,

      Eggleston, J. Race & Foster, for plaintiff. Hart, for defendant.
   Ilsley, J.

The plaintiff séeks in this suit to recover from the defendant, the sum of one thousand dollars, the amount of a penal obligation, stipulated by the defendant, vendor, in an act of sale, in favor of the plaintiff, the vendee, therein.

The action was instituted on the 17th November, 1859, and before the trial of and the rendition of judgment in the lower Court, the principal obligation was performed; and proof of that fact was adduced on the trial of the case without any objection on the part of the plaintiff, who tacitly assented to the performance of this principal obligation.

The general rule, as gathered from the text of out law is, that a penal obligation being secondary to a primary one, the performance of which it is intended to assure, the creditor cannot, except in two contingencies, avail himself of the double remedy, in the event of the debtor’s failure tó fulfil the primary obligation, to enforce the performance of that and to exact the penalty at one and the same time.

The two exceptions to this general prohibitory rule, recognized by the civil law, are, first: when the penalty is expressly stipulated for the mere delay; and, second, when by a special stipulation, the penalty may be exacted, if the principal obligation is not executed.

In the agreement between the contracting parties, there are no express stipulations, exceptional stipulations, to justify a resort to both .the remedies; and this is the construction put upon the contract by the plaintiff, himself, who does not pretend that he can exact the performance of both, but only sues for that of the penal obligation.

It was well observed by Larombifere, in his Théorie et Pratique des obligations, page 19, that if a creditor claims the penalty, he cannot claim any thing else; for, it is in the nature of this accessory obligation that it merges and absorbs, within itself, by a species of novation, the principal obligation; transperat in se et quasi novatio prioris fiat L 44, £ 6^ f..f.*de Oblig et act. f*'' ■■

If he exacts the performance of the principal obligation (and in' this suit, he tacitly accedes to and profits by that performance), what merger could there be of the principal into the secondary obligation ?

The object of a penal obligation is to indemnify the creditor for the inexecntion of the primary undertaking; but if in the same suit (no matter in what form the fact is made patent) it appears that the primary obligation, has, with the assent, express or tacit, of the creditor, been performed, how can he in the same proceeding, too, exact the penalty for its inexecution, without trenching on the prohibitory rule of the law ?

The plaintiff might have maintained his election to recover the penalty by repudiating the performance of the principal obligation on the trial of his case in the lower Court; but he pursued a different course, and he cannot thus enjoy the benefit resulting from the execution of the principle obligation, and at the same time and in the same suit, reoover the penalty for its inexecution.

If he is entitled to damages at all, they must be merely nominal damages, or the amount of damage actually sustained by him.

And the allowance of one hundred dollars, for that purpose, by the Judge of the District Court, is a sufficient indemnity.

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


text:
    Succession of Daniel Sheean.
    This Court cannot examine a case on appeal without all the evidence which was adduced below.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Geo. S. Lacey, Geo. L. Bright, and Durant & Hornor.

   Hyman, C. J.

Under this title we find an account filed December, 1862, by A. D. Grieff, and also an order of the Court, stated to be granted on motion of attorney of A. D. Grieff, requiring Widow Sheean to show cause why the account should not be homologated, approved, and made the judgment of the Court, and also requiring Widow George H. Grieff to be made a party to the proceedings.

The District Judge, in giving his reasons for his judgment, declared that the pleadings would not authorize a judgment against any person, yet he did render judgment against A. D. Grieff.

It appears that Daniel Sheean died 1st September, 1860. While living, he was a partner of the commercial firm of A. D. Grieff & Co. After his death, and the dissolution, of the partnership, the surviving partners, A. D. Grieff and George H. Grieff, undertook, without the authority of the Court to settle and manage the affairs of the partnership, and after they had thus acted, they, or rather the survivor of them, A. D. Grieff, filed the account.

The District Judge rendered judgment, decreeing the interest of Sheean’s estate in the partnership to be $9,360 63, including in the amount the uncollected debts, to be paid to Mrs. Annie Sheean, widow and tutrix by A. D. Grieff, as liquidating partner, out of the assets of the firm as realized by him, reserving to her the right of selling any of the assets of the firm in liquidation of the judgment. Annie Sheean appealed from this judgment.

We do not perceive how we can affirm the judgment in her favor against A. D. Grieff, or increase or diminish it, as she in her pleading has not asked for judgment against him.

This case presents another difficulty; it is in relation to the evidence.

A book numbered three, which was introduced in evidence, is not copied in the transcript, nor have we the original, which, by agreement of counsel, was to be placed before us for examination. Without this book, which seems, from other evidence introduced, to be a statement of the property of the partnership in 1859, we cannot know whether we are deciding correctly on the rights of the parties.

It is decreed that the judgment of the District Court be reversed, and that the cause be remanded with permission of the parties to amend their pleadings in this proceeding, and produce further evidence. Appellees, A. D. Grieff and Widow George H. Grieff, pay the costs of appeal.


author: Howeed, J.

text:
    M. Frank v. Adams Express Company.
    -Common Carriers are not liable for uncontrollable events — such, as tbe destruction ontbeirboatsby ibe power of beat, etc.
    APPEAL from the Sixth District Court of New Orleans,

      Leaumont, J. Geo. B.-Lacey, for plaintiff. J. H. Vandalson and Billings, for defendant and appellant.
   Howeed, J.

This is a suit to recover the sum of eight hundred dollars, "being the amount of a draft collected in Vicksburg, Mississippi, for plaintiff, by defendant, in the regular course of its business, and which it undertook, for a fixed compensation, to transmit to plaintiff in New Orleans.

According to the receipt, taken and -filed by plaintiff, the proceeds of ■ collection were to be returned by express, in funds current when the col- . lection was made. When collected, they were sealed up in a package, ■addressed to plaintiff’s agent here, and, with other valuables, put (as usual) in a safe belonging to the company, which was placed in the charge of its messenger, and deposited in his state-room,'on board the steamboat J. H. Bussell. .

On the way to New Orleans the boat took fire, and was rapidly consumed, very little (if any) of the passengers’ baggage being saved. On the morning after the fire (which occurred about dark), the defendants’ safe was moved from the sunken wreck, brought to this city, and, on being opened, the contents were found to be in ashes.

It is not pretended that the defendant had any control of the boat, or was in any manner responsible for the cause of its destruction; and, it being -shown that it was, by the terms of its contract, relieved from the liability -of an insurer, the only question is, did the company use due diligence and proper foresight to provide against such a casuálity ?

There is evidence that the usual mode of transmitting such packages was adopted in this instance; and we have nothing before us from which ■ to conclude that there are safes, used for such purposes, which could re.sist the action or power of the heat of a burning steamboat, to which this -one was subjected; and we do not think that, under the contract and circumstances in this case, the defendant should be held to have provided .such a safe, if it were possible.

It is therefore ordered, that the judgment of the lower Court be reversed, and that there.be judgment in favor of defendant, with costs in •both Courts.


author: Hyman, O. J.

text:
    Laurent Millaudon v. Mrs. A. B. Gordon, et al.

      Per Curia} We do not think that it is against good conscience to maintain a judgment rendered against a party who will neither give his personal attention to a suit wherein the judgment was rendered, nor employ another to represent him.
    APPEAL from the Sixth District Cotirt of New Orleans, Duplantier, J. Miles Taylor, G. JDufour.

   Hyman, O. J.

Plaintiff, MiHaudon, sued to anuul a judgment rendered in said District Court against him, and in favor of Mrs. A. B. Gordon, testamentary executrix of the estate of Alexander Gordon, deceased, for* $2,237 93, with legal interest from 25th June, 1855, till paid, and costs of suit, and obtained an injunction against the enforcement of an execution issued thereon.

Defendant, Mrs. A. B. Gordon, executrix, answered by general denial, and prayed for damages.

The District Judge rendered a judgment annulling said judgment, and defendant has appealed.

The judgment sought to be annulled was rendered on 31st January, 1862, and signed on 10th February, 1862, in the suit styled A. B. Gordon's testamentary executrix v. L. Millaudon, and the cause alleged for demanding its nullity is, that, in the trial docket the name of “Janin” was united as attorney for MiUaudon in the suit, although Janin was not employed by him, was absent, and did not at any time represent him therein.

MiUaudon employed H. Griffin, an attorney at law, to represent him in defence of the suit, who filed an answer therein for him, March, 1858. A judgment was thereafter rendered against him (MiUaudon), and from which judgment he appealed to this Court, when it was reversed, 10th June, 1861, and the suit remanded to the District Court for a new trial. MiUaudon, after he had taken the appeal, gave no further attention to' the suit; and, although Ms attorney died, May, 1861, while the suit was on appeal, he employed no other attorney, and knew not of the reversal of' the first named judgment, until after execution had issued on the judgment which he sued to annul.

It is not proved that defendant caused the name of Janin to be placed on the trial docket as representing MiUaudon. There was no fraud or iU practice on the part of the defendant, nor was the judgment obtained by such means. She had the right, after the answer was filed, to have the suit caUed, aud a day fixed for its trial, whether MiUaudon had an attorney or not. See C. P. 463. This right she exercised, and the suit was tried on the day fixed by the Court;'and, as MiUaudon neglected to give Ms personal attention to the suit, or to employ an attorney to represent-him therein, we do not perceive how an improper advantage was taken of Mm. If the proceedings were ex parte, and he was unheard, Ms own conduct was the cause.

The placing the name of Janin, as representing him, did not nor could not mislead him, for he made no enquiries about the suit.

We do not think that it is against good conscience to maintain a judgment rendered against a party who will neither give his personal attention to a suit wherein the judgment was rendered, nor employ another to represent him.

It is ordered, adjudged and decreed, that the judgment appealed from be reversed; that the prayer of the plaintiff’s petition be rejected; that defendant, Mrs. A. B. Gordon, testamentary executrix of the estate of Alexander Gordon, deceased, recover from plaintiff and his security on his injunction bond, Casimir Gardanne, in solido, three per cent, per annum additional interest on the amount of the judgment, from the date of the order of injunction, to wit: 28th February, 1862, until the day of its dissolution, together with two hundred and fifty dollars, special damages, and the costs of suit in both Courts.


author: InsiiEy, J.

text:
    Succession of Thomas Penniston.
    This Court has repeatedly held that the notification of the filing of a tableau operates as a citation to all persons concerned therein, creditors, legatees and others.
    It is a legal requirement, that all parties interested that judgments should remain undisturbed must be made parties to appeals, or 1 hey will be dismissed.
    And this Court will notice ex officio, and even without a motion to dismiss, the want of proper parties for a final decree.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J.. Roselius <& Philips, for plaintiff. C. Puf our, for defendant. Chas. E. Schmidt, for Widow Penniston.
   InsiiEy, J.

The widow of the late Thomas Penniston, and the executor of the last will and testament, move to dismiss the appeal taken by Joseph A. Penniston from the judgment rendered on the opposition to the first provisional account, by which the claims of the widow for the sums of $750 and $2,000 were recognized and maintained, because the appellant has failed to make proper parties to the appeal, the executor alone having been cited to answer the appeal in accordance with the prayer of the appellant, who furnished an appeal bond only in favor of the said executor. *

The motion is resisted by the appellant, on the ground that the widow was no party to the record, and that the executor represents her as well as all other parties, creditors, legatees and heirs.

This Court has repeatedly held that the notification of the filing of a. tableau, operates as a citation to all persons concerned therein, creditors, legatees and others. Succession of Peytavin, 10 Rob. 118; Smith v. Delalande, 1 Rob. 385; Cowen v. Millaudon, 3 An. 364; Succession of Egana, not yet reported. And therefore the widow was a party to the tableau, and so far as her claims were acted upon, solely interested therein.

It is a legal requirement, that all parties interested that judgments should remain undisturbed must be made parties to appeals, or they will be dismissed. 11 An. 674; 14 An. 315; 8 An. 367; 9 Rob. 365; 12 Rob. 180, 203. And this Court will notice ex officio, and even without amotion to dismiss the want of proper parties for a final decree.

We think that the widow of the deceased,' Thomas Penniston, should have been cited as appellee in this case.

It is therefore ordered, adjudged and decreed that the appeal in this case be dismissed, at the costs of the appellant.


author: Labauve, J.

text:
    John Henry Keller v. M. Judson.
    The Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below.
    If, therefore, the copy of the record brought up be not duly certified by the Olerk of the lower Court, as containing all the testimony adduced, the Supreme Court can only judge of such cause on a statement of facts, prepared and signed in the manner directed in the second section of the sixth chapter of the Code of Prac., or on a written exception to the opinion of the Judge, or on a special verdict, and in the absence of all these it shall reject the appeal with costs; but this is to be under* stood with such modifications as are contained in the following Article : O. P. 896.
    The appellant, who does not rely wholly or in part on a statement of facts, an exception to the Judge’s opinion, or special verdict, to sustain his appeal, but on an error of law appearing on the face of the record, shall be allowed to allege such error, if, within ten days after the record is brought up, he files in the Supreme Courta written paper, stating specially such errors as he alleges; otherwise hi3 appeal shall be rejected.
    When the property is indivisible by its nature, or when it cannot be conveniently divided, the Judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.
    It is said that a thing cannot be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. Geo. L. Bright, for plaintiff. Hewes & Eusiis, for defendant and appellant.
   Labauve, J.

This is a suit in partition of six squares of ground, owned in common by plaintiff, for one undivided half, and the defendants, four in number, for the other undivided half.

The Court below rendered a judgment, decreeing the partition and the .sale for cash of the property described in the petition. The syndic, Mills ■Judson, took this appeal.

The plaintiff and appellee contends in this Court that the appeal should be dismissed, because the appellant has not brought up the evidence nor a statement of facts, to enable this Court to say whether or not the evidence showed that the property can be divided in hind; that the appellant has not filed an assignment of error as prescribed by Art. 897, C. P. The position taken by the said appellee to dismiss this appeal, is untenable. There is no motion to dismiss the appeal; if made now, it could not be sustained. This appeal wasmadereturnable on thefirst Monday in November, 1865, and was filed here before that day; the certificate of the clerk is in due form, and shows that the record contains all that transpired below, and gives us a full knowledge of the matters argued or contested in the lower Court. Articles 895 and 896 C. P. It is only in the absence of the certificate prescribed by Article 896, above quoted, that the appellant must comply with Article 897, C. P. We have carefully examined the record, and we have been unable to find any evidence showing that the property in question is indivisible by its nature, dr that it cannot be conveniently divided without a diminution of its value, or loss or inconvenience to one of the owners, in consequence of dividing it. C. C. Arts. 1261, 1262. It seems to be only on proof of indivisibility by its nature or inconvenience in dividing it, that the Judge is authorized to order the sale of the common property. We are therefore of the opinion that the judgment of our learned brother below is erroneous; the case must be remanded to be proceeded in according to law.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that the case be remanded to be proceeded in according to law, and that the plaintiff and appellee pay the costs of this appeal.


author: Lesley, J.

text:
    Martial Crottes v. Louis J. Frigerio.
    It has been repeatedly held by this Court that a partner cannot sue his co-partner for sums paid or advanced for the partnership, or funds placed in it, or goods furnished, or profits made, or losses incurred during its continuance until a final settlement, and then only for the balance which may be due. And even in a special partnership, a partner cannot sue his co-partner for a special item; it must be for a general settlement.
    APPEAL from the District Court of Parish of St. Tammany,
    Martin, J. H. G. Penn, for plaintiff. A. Hennen, for defendant and appellant.
   Lesley, J.

The plaintiff claims from the defendant the value of seventeen bales of cotton, received by him in 1864 or 1865, of the value of three hundred dollars per bale; and also the sum of two thousand one hundred and eighty-five dollars, for cash advanced by him to the defendant, in the same year.

An exception was filed to the vagueness of the plaintiff’s petition, inasmuch as it does not state how, or for what cause, he claims title to the seventeen bales of cotton, whether by partnership, or otherwise. The exception was overruled, and a general denial pleaded, accompanied by a demand in reconvention. This reconventional demand was properly dismissed,

On the disclosure of the facts of the case on the trial, it is shown that the plaintiff and defendant were in copartnership in the purchase of cotton on speculation, to be sold in New Orleans; see the testimony of John Strenna, and the written statements of the plaintiff on file in the Suit.

It has been repeatedly held by this Court that a partner cannot sue his co-partner for sums paid or advanced for the partnership, or funds placed in it, or goods furnished, or profits made, or losses incurred during its continuance until a final settlement, and then only for the balance which may be due. Cambrory v. Tapery, 2 An. 10; 8 N. S. 280; Story on Partnership, 221, 348, and notes; 3 An. 590; 4 A. 534; 11 A. 509. And even in a special partnership, a partner cannot sue his co-partner for a special item; it must be for a general settlement. Wood v. Fort Adams, 6 N. S. 83.

In Bennigen v. Wilcoxen, 13 A. 576, this Court said: “Where in an action by one partner for aspeeific partnership debt against his copartner, who pleads in compensation specific partnership claims, a judgment will not finally liquidate the partnership, both parties will be non-suited. Austin v. Vaughan, 14 An. 576.

The defendant did not except specially to the form of the present action, but merely to the vagueness of the petition, in not setting forth his title to the cotton claimed by him, whether by partnership or otherwise; but in Noble v. Martin, 7 N. S. 280, this Court observed, that “even on the general issue a partner sued by another may show that the plaintiff cannot recover, because he could only sue for a general settlement, not a particular item.”

It is very evident that all the matters in controversy between the parties to this suit are partnership affairs, and it is therefore necessary that the whole partnership should be liquidated.

The judgment of the lower Court, which was in favor of the plaintiff, must be reversed.

It is therefore ordered, adjudged and decreed that the judgment of the lower Court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that judgment be and it is hereby rendered against the plaintiff as in the case of non-suit, and in favor of the defendant, with costs in both Courts; and it is further ordered that the reconventional demand filed by the defendant be dismissed, at his costs.


author: Labarve, J.

text:
    H. W. Westholz, Administrator, v. Guillaume Retaud.
    A witness can be allowed to testify, where he was not a party to the original act.
    Succession is the transmission of the rights and obligations of the deceased to the heirs.
    "When, at the decease of the testator, there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.
    The legatees under an universal title are bound to demand the delivery of the heirs, to whom a proportion of the effects is reserved by law; in default of heirs, of the universal legatees, and in default of those, of the next heirs in the order established in the title of .successions.
    The usufructuary must give security that he will use, as a prudent administrator would do, the movables and immovables subject to the usufruct, and that he will faithfully fulfil all the obligations imposed on him by law, and by the title under which his usufruct is established.
    APPEALfrom the Sixth District Court of New Orleans,

      Howell, J. Roselius & Philips and G. E. Sehinidt. G. Redmond and Durant ■S Hornor..

   Labarve, J.

The petition alleges in substance that the defendant is indebted to the succession of Elizabeth Retaud, in the sum of $9,842, exclusive of interest for this, to wit:

That said Elizabeth Retaud, during her lifetime, loaned money on mortgage, and that the defendant, her second husband, acted as her agent, and usually had Üie act of mortgage drawn in his favor for convenience. That said. Retaud, after the death of his said wife, illegally obtained possession of large number of said notes secured by mortgage, and tjiat among other notes withheld by said Retaud, are :

1.A note signed by G- T. Erommer, for $1,000, dated October 17,1857, payable one year after date; to the order of, and endorsed by said Erommer.

2.A note signed by EvMiiandi to his order and by him endorsed, dated March 12th, 1858, for $600, payable one year after date. .

3.A note signed by P. Mooney to his own order and by him endorsed, dated June 20th, 1860, for $1,200, payable one year after date.

4.A promissory note signed by G. T. Erommer for $200. That the three first promissory notes described, are secured by mortgage on said property in favor of said G. Retaud.

That after the death- of. said Elizabeth Retaud, the said Guillaume Retaud, having free access to her armoir, etc., iEegaEy abstracted from the same, $2,000 in Confederate notes; one gold chain, worth $jl50, and one canvas-bag, flEed with bank billp' and gold, containingj¡$4,134 in bank biEs, and $4,006 in gold, aE the" property of the deceased. That since the death of his said wife, the said Retaud has collected from her tenants $92, and also from Miranda $60, interest on his note aforesaid, making in aE $9,842. That said GuiEaume Retaud, pretending to be the holder of said notes of P. Mooney for $1,200, has obtained an order of seizure and sale upon the same. He prayed accordingly, 'and also obtained an injunetion, staying all further proceedings in said seizure and sale on the note of P. Mooney.

The defendant, reserving this defence on the merits, excepted in substance :

1. That any claims which plaintiff had to the money note, should have been preferred in the suit on said note against Mooney.

2. That by the marriage contract, between defendant and his deceased wife, Retaud is instituted usufructuary of the whole estate of the deceased, and vested with full possession. That the present action is brought in violation of the terms, conditions and stipulations of said marriage contract; and prayed that the suit be dismissed.

The Court dismissed his exception, without prejudice to defendant’s rights to set up the matters therein contained as defence on the merits. Judge R. K. Howell then presided.

The defendant then pleaded the general issue, the right of usufruct of his wife’s succession, under the marriage contract; that the notes and valuables claimed by plaintiff never belonged to the deceased, but were the exclusive property of defendant, and in his possession under authentic titles, etc.

Upon these pleadings, the parties went to trial, and the Court, then presided by Judge Leaumont, after hearing a mass of testimony on both sides, dismissed the suit, on the ground, he thought, that the matters here in dispute, exclusively belonged to the Second District Court of New Orleans, having exclusive jurisdiction of all probate matters.

The plaintiff took this appeal.

The defendant and his deceased wife, Elizabeth Frederick, then widow Carl Westholz, entered into a marriage contract in New Orleans on the 1st February, 1818, wherein it is stipulated that there was to be an absolute separation of property between the parties, and a total exclusion of all community; property acquired during marriage was to belong exclusively to the party in whose name it was acquired.

Mrs. Retaud died on the 5th February, 1863, leaving five children of her first marriage and one of her second marriage with defendant.

On the trial of the case below, plaintiff offered witnesses to prove that the mortgage notes claimed by him were the property of defendant’s wife, and not of defendant, and that he, defendant, quoad said notes, only acted in the capacity of agent; to which testimony defendant objected, that his claims to said notes were established by authentic deeds; that the allegations in plaintiff’s petition that said acts of mortgage and notes made in favor of defendant for convenience, did not authorize the introduction of parol proof to contradict the same. That the testimony of said witnesses was excluded by the express terms of the first article of the marriage contract. That the notes and acts of mortgage constituted complete title, which could not be controverted under the allegations by oral prpof, and that the testimony of Frommer and wife, and Mooney, was not admissible, on the ground they were interested as parties litigant for the amount of their costs. The Court overruled the objections, and defendant excepted. We are of opinion that the Court did not err; the deceased wife was not a party appearing in the act, and it was legal for the plaintiff to show by parol evidence, or otherwise, that the money was loaned by the deceased; that her husband acted for her, and that the notes belonged to her. BEnoit v. Broussard, 19 L. 387.

The defendant’s counsel also objected to testimony, going to show the pecuniary circumstances of Betand and wife, the Court overruled the objections, and admitted the testimony; we believe the Court did not err.

We are satisfied by the testimony of Patrick Mooney that the note due by him, and in dispute, for $1,200, was for borrowed money from the deceased, and that the same belongs to her succession. The plaintiff has failed to show title to the F. Mirandi note for $600. The testimony of G-. T. Frommer and wife, satisfies us that the two notes of said Frommer, and herein claimed, one for $200, and the other for $1,000, were executed and given for money borrowed of the deceased, 'wife of the defendant.

After the death of his wife, the defendant got Louis Ackerman, a locksmith, to open the drawer of an armoir in the room up stairs. Ackerman testified that when he opened that drawer he saw1 a bag full of money in it; did not touch the bag; -that the bag was full; he knew it was full; he saw it; it was full in so far there was a handle to it; did not know whether it was silver or gold. Mr. Betaud saw what was in the bag at the time; he said it was money. This witness judged that, if the money was silver in the bag, it contained about $250 to $300. He further says : When I saw it the second time, there was some money in it; there could he about $50 in it.

We are satisfied from the evidence that this money, seen in the drawer by this witness, belonged to the deceased; and that there was in the drawer in silver $275, of this sum $50 were produced by the defendant at the inventory, as belonging to his deceased wife, leaving a balance of $225 due by him.

We are of opinion that the Court properly overruled the exception specially pleaded in limine litis. We believe that the Judge erred on the final trial of the case on the merits, in dismissing the suit on the ground of want of jurisdiction; we are of the opinion that the Court had jurisdiction, and should have given a judgment on the merits; and we will proceed to give such a judgment as the Court below ought to have rendered according to the evidence.

The defendant contends that he is entitled to retain possession of the property, as usufructuary, under this clause of the marriage contract:

Les futurs époux, voulant se donner un témoignage reciproque de leur affection, se font par les présentes, donation entre-vifs, pure, simple et irrevocable, pour cause de noces, et á titre de survie, le prémourant au survivant, de l’usufruit viager, de tous biens, mobiliers et immobiliers, que laissera le prémourant au jour de son déces.”

There was an absolute separation of property and a total exclusion of AH community, by the marriage contract, between these parties; consequently, the property of the deceased was in her exclusive and distinct possession at the time of her death, and so she transmitted the same to her children with her succession. C. C. Arts. 867, 1600. The defendant was bound to demand delivery of the heirs, and give security as usufructuary. C. C. Arts. 1600, 1605, 551.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and, proceeding to render such a judgment as the Court below should have given, it is further ordered and decreed, that the note of Patrick Mooney, dated 20th June, 1860, for $1,200, payable one year from its date, and bearing 8 per cent, interest per annum from maturity until paid, be recognized to belong to the succession of the deceased, and that the defendant be decreed to deHver and return the same to the plaintiff, with its value, within ten days from the filing of this decision in the lower Court; and on his faüure to do so, it is ordered and decreed that he shaH then pay to the plaintiff the amount thereof, to wit: the- sum of $1,200, with 8 per cent, interest per annum, from the 23d of June, 1861, tiU paid; and further, that the injunction in the case of Retaud v. Mooney, No. 10,833, be perpetuated, and that the proceeds of the note of said Mooney, whenever realized, be paid over to the plaintiff.

It is further ordered and decreed, that the note of said G. 3?. Frommer, dated New Orleans, August 18th, 1860, for $1,000-, payable one year from its date, and bearing 8 per cent, interest per annum, from maturity, be recognized the property Of the deceased, and that the same, or the pro-needs thereof, now deposited, under agreement of counsel, in the hands of the Clerk of the District Court, be delivered to the plaintiff.

It is further ordered and decreed, that the note of said George.F. Frommer, for two hundred doHars,. be recognized to belong to the succession of the deceased, and that tffe defendant be ordered to deliver the same to the plaintiff within ten days from the filing of this decision in the Court below; and on his fading to do so, it is ordered that he shall pay to the plaintiff the proceeds thereof, that is, two hundred doHars, and the interest.

It is further ordered and decreed, that the defendant pay to the plaintiff the sum of two hundred and twenty-five dollars, with legal interest from the 5th January, 1864, till paid, it being the amount cash proven to have been used by defendant. It is further ordered and decreed, that that part of plaintiffs demand not herein aUowed be dismissed, as in case of nonsuit, and reserved, and that the said defendant,' Rétaud, pay costs in both Courts.

Howeeu, J., recused.


author: Ieseey, J.

text:
    Joseph Lallande, Executor, v. Wentz & Pochelu.
    Servitudes are either visible and apparent or non-apparenfc.
    Apparent servitudes are such as are to be perceivable by exterior works, such as a door, a window, an aqueduct.
    JNon-apparent servitudes are such as have no exterior sign oí their existence, such, for instance, as the prohibition of building on an estate, or of building above a particular height.
    If the inheritance sold be encumbered with servitudes not apparent, without any declaration having been made thereof, if the servitudes he of such importance that there is cause to presume that the buyer would not have contracted, if he had been aware of the encumbrance, ho may claim the cancelling of the contract, should he not prefer to have an indemnification.
    Joint purchasers cannot he condemned in solido for the payment of the price of real estate.
    APPEAL from the District Court of the Parish of Jefferson,

      Gazábat, J. G. Dufour, for plaintiff. J. Magne, for defendants and appellants.
   Ieseey, J.

At the public sale of the property belonging to the succession of Thomas Penniston, certain lots of ground, situate in Jefferson City, which were described as follows in the advertisement: “Sixteen lots of ground, lying in the Square No. 2, between Water, General Taylor, Levee and Penniston streets, the said forming the entire square, and being designated by the numbers one to sixteen, inclusively, all in accordance with the plan to be exhibited on the day of sale, were adjudicated, each lot separately, for a distinct total price, to the defendants in this suit,' who refuse to comply with the. terms of the adjudication, and to pay the price thereof, for which they are now sued as debtors in solido ; because, as they aver, there is a great deficiency in the measurement; that, on Water street particularly, "there is a levee covering about forty per centum of each lot, and that such deficiency renders the lots useless for the purpose the defendants had in view, when they purchased.

There was judgment in the Court below against the defendants in solido, from which they have appealed.

On the trial of the case in the Court below, the defendants took two bills of exception: one to the evidence of witnesses received by the Court to prove that the auctioneer had called the attention of the bystanders to a mark on the plan purporting to show the levee crossing the front of the lots on Water street, on the ground stated in the bill; and the other to the refusal of the Judge to receive the evidence of a witness of the defendants to show whether, on the inspection of the plan (exhibited on the day of sale), he, the witness, could have discovered or believed that a levee was running on the lots on Water street, which evidence was objected to by the plaintiff, for the reason stated in the bill.

It is needless to examine the first bill, as the evidence objected to not being material to a decision of the case will not be noticed.

As to the evidence of the defendants’ witness, rejected by the Court, whatever consideration it is entitled to will be accorded to it, as if it had been received by the Court below, as this Court having the plans, which; accompanies the record, before it, can determine for itself whether the levee complained of is or not clearly represented as lying behind the front line of the lots.

There is no deficiency in the measurement of the lots, which contain the area found within the prescribed boundaries, viz: the four streets, before mentioned.

The objection or cause of complaint is, that the lots adjudicated to the defendants are affected with a service imposed bylaw, to wit: a public levee which traverses the whole front thereof; but this is an apparent-servitude. Article 724, C. C.; and against such servitudes a vendor does-not warrant.

Article 2491, C. C., relieves purchasers only “if the inheritance sold be-incumbered with servitudes not apparent, without any declaration made thereof,” etc.

Marcadé, commenting on the corresponding Article of the Napoleon' Code (1638), says: “L’article ne parle, au surplus, que de servitudes non apparentes; car, si les servitudes étaient visibles, l’acheteur no pourraits’en prendre qu’a lui d’avoir acheté sans examiner l’immeuble. See also Pothier, Contrat de Yente, Partie 2, chap. 1, section 3, (S 200.

This last named writer also says: “L’acheteur est présumé en avoir eu connaissance, et avoir bien voulu acheter la chose avec ce vice, et par eonséquent n’avoir souffert aucun tort, nam volenti non fit injuria; et quand méme il ne l’aurait pas connu, il ne serait pas encore recevable a se plaindre du tort qu’il souffre de ce contrat; car, c’est par sa faute qu’il le souffre, il ne tenait qu’a lui d’examiner la chose avant que de l’acheter, ou de faire examiner par quelqu’un, s’il ne s’y connaissait pas lui-mSme; or, un tort qu’une personne souffre par sa faute n’est pas un tort auquel les lois doivent subvenir, les lois n’étant pas faites pour entretenir la. négligence.

This Court has said that it cannot recognize the folly of buying without-seeing the premises, because they are sold at auction or afford indemnity for the loss which results from such imprudence. Porée v. Bonneval, 6 An. 388.

The levee, as it is represented on the plan which was exhibited at the public sale in accordance with the advertisement (which binds the vendor and the vendees, Layton v. Hennen, 3 An. 1), and which plan is regarded as a part of the description of the land (Canal v. Copeland, 6 La. 551), is-plainly designated thereon.

The word “levee,” on the space between the two lines representing it,, is written on the plan; and the course of this space, which is shaded differently from the remaining portions of the lots, is distinctly marked along the whole front thereof. Durel v. Boisblanc, 1 An. 407.

Besides this, Water street formed the front boundary of the lots sold* and it was obvious, on simple inspection, that the levee was on the lots, behind the inner side of Water street.

On the score of the levee, which was an apparent servitude (not necessarily a permanent one), the defendants have no cairse of complaint.

By the decree of the lower Court; the defendants, who are joint purchasers, are condemned in solido to pay the whole price of the lots separately adjudicated to them. The present case is analagous to that of Oxnard v. Locke et al., 13 La. p. 447, wherein it was decided that joint purchasers cannot be condemned in solido for the payment of the price of real estate. See Articles 2075, 2088, C. C. Toullier Ed. Duvergier, p. 439, No. 710; Weldy. Peters, 1 An. 432; Thomas v. Scott, 3 Rob. 256.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so as to condemn the defendants to pay the plaintiff the sum of five thousand six hundred dollars, with interest, at the rate of five per cent, per annum, from the 17th October, 1864, jointly, instead of in solido, and otherwise affirmed.

It is further ordered, that the defendants pay the costs of the District Court, those of the appeal to be paid by the appellee.


author: Howhdii, J.

text:
    J. Kohn v. R. H. Short.
    A continuance cannot be granted on account of the absence of the defendant or the inability of the counsel to attend in Court. -
    APPEAL from the Second District Court of New Orleans,

      Morgan, J. Ciarle, Bayne <& Finney, for plaintiff. Wooldridge, -for defendant and appellant.
   Howhdii, J.

This is a suit on a mortgage note given in part payment of certain lots of ground in this city, by defendant, to which he pleaded the general denial and a failure of consideration.

The evidence shows that plaintiff obtained the note before maturity, and fully establishes his right to recover. Defendant’s counsel, however, objected to going to trial and reserved a bill of exceptions to the refusal of the Court to grant a continuance.

It appears that the cause was regularly fixed for trial for the-third time, on the 18th June, 1860, and plaintiff’s counsel not being present, although in the Court House, the Judge, upon the suggestion of defendant’s counsel, continued it; but before the order was entered in the minutes, and after notice was given to said counsel to remain for the purpose, the order was modified and the ease continued to the next Monday, 25th June, upon a showing made by plaintiff’s counsel, according to which, and the evidence in connection therewith, we think the Court did not err is reassigning the case to a particular day, and giving notice thereof to the defendant, as there was no fault on the part of the plaintiff or his counsel.

The thirty days’ delay for the return of the commission taken out by defendant had, at the time, expired, and a week later, when the case was tried, no cause was shown why it had not been returned nor a statement made of the facts sought to be proven under it. The absence of the defendant from the city, under the circumstances, and the inability of his counsel, at that stage of the case, to state the facts intended to be established, were not a legal cause for a continuance. The counsel must certainly have known the character and object of the interrogatories porpounded to the witness to be examined under the commission.

We think there is no error of which the defendant can justly complain.

Judgment affirmed, with costs.


author: Howekd, J.

text:
    A. Laforest v. His Creditors et al.
    Section 8 of the Act of 1C55, p. 432, declares that, after the cession, and acceptance, all the property surrendered by an insolvent shall be fully vested in his creditors; and the syndic shall take possession of and be entitled to claim and recover all the property, and to administer and sell the same according to law; but the repealing clause of the Act retains what is in the Civil Code and Code of Practice not contrary to its provisions; and, according to the terms of the Civil Code as well as the «fatuto of 1855, it scorns clear that this ti’&nsfer is for specific purposes, to be sold according to law, and the proceeds distributed in concurso among the creditors. They cannot hold it in common, nor partition, it in kind. The debtor or insolvent has a residuary interest, which may become fixed and avail'ng in a certain contingency.
    In matters of insolvency the law does not contemplate that a majority of the creditors shall deprive the minority of the right of having their claims paid within a reasonable delay. If they have the right to hold and enjoy the property for any fixed period, they have, at its expiration, the right to fix another and thus compel all the creditors to remain joint owners indefinitely.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. G. Schmidt, for appellant. Durant & Hornor, contra.
   Howekd, J.

At the meeting of the creditors of the insolvent, in March, 1865, they ordered the movable effects surrendered to he sold for cash, and a house and lot in New Orleans on certain terms; but directed the syndic (who is the insolvent) to take charge of and cultivate the plantation, situated in the Parish of Lafourche, for the best interest of the creditors, and with their means, until the 1st of January, 1867'. On the 31st March, 1865, a rule was taken by Dumas, one of the creditors, on the fsyndic to show cause why the property surrendered should not be sold for cash to pay the debts of the insolvent, which was made absolute, and the syndic appealed.

The only ground of defence, ■which we deem it necessary to examine in, this proceeding, is: “That the property surrendered having vested in the-creditors, they have the right to suspend the sale for a fixed period,, andi no Court has the right to reverse that opinion.”

Section 8 of the Act of 1855, id. 432, declares that, after the cession anií acceptance, all the property surrendered by an insolvent shall be fully vested in his creditors; and the syndic shall take possession of and be entitled to claim and recover all the property, and to administer and sell the same according to law; but the repealing clause of the Act retains what is in the Civil Code and Code of Practice not contrary to its provisions; and, according to the terms of the Civil Code as well as the statute of 1855, it seems clear that this transfer is for specific purposes, to be sold according to law, and the proceeds distributed in concurso among the creditors. They cannot hold it in common, nor partition it in kind. The debtor or insolvent has a residuary interest, which may become fixed and availing in a certain contingency. O. C. 2175; 2 R. 194. And, if this principle should not be deemed conclusive, there is another, well established, that no one is compelled to remain a joint owner with another, which authorizes such an one to provoke a partition by sale or in kind.

In matters of insolvency the law does not contemplate that a majority of the creditors shall deprive the minority of the right o'f having their claims paid within a reasonable delay. If they have the right to hold and'onjoy the property for any fixed period, they have, at its expiration, the right to fix another and thus compel all the creditors to remain joint owners indefinitely. This cannot be effected in insolvent proceedings.

In this case, the sale teas not suspended for a fixed period, but the plantation was ordered to be cultivated for two years, because, in the opinion of a majority of the creditors, a sale at that time, on any terms, would involve a ruinous sacrifice. That reason might not have existed at a later date, and may not now exist.

We think, however, under the provisions of the law, especially the 29th section of the Act of 1855, we are authorized, under the circumstances and the discretion vested in Courts, to allow the creditors an opportunity to fix the terms on which so large an estate should be sold, and we have concluded to send the case back for that purpose.

It is therefore ordered that the judgment appealed from bo reversed and the case be remanded, with instructions to the District Judge to authorize a meeting of the creditors for the purpose of determining the time, place, terms and conditions of the sale of'the property surrendered. The appellee to pay costs of appeal, and those of the lower Court to be paid by the insolvent estate.


text:
    Samuel M. Laski v. Pauline Goldman and Her Husband, M. Goldman.
    Contracts reprobated by law cannot be enforced in a Court of Justice, and a party plaintiff must abide by bis own declarations in that respect.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. Chas. E. Reynes and J. Ad. Rozier, for plaintiff. Fellows <& Mills, for defendants and appellants.
   Hyman, O. J.

Plaintiff, Laski, owned a note for $550 80, made by-Pauline Goldman, payable to the order of her husband, Meyer Goldman, and by him endorsed in blank.

On the day of its maturity, 15th May, 1863, defendant, M. Goldman, sent to plaintiff to know of him what he would do with the note. Plaintiff stated that he had nothing to do with it; that Bernard Dreyfus had it, and that he, Dreyfus, could do what he liked with it. Dreyfus, as holder, had it that day protested for non-payment. At another time plaintiff said that he had sold the note to Dreyfus. On the 30th May, 1863, Dreyfus brought suit, as the owner of the note, against defendant, M. Goldman, to receive from him its amount, with interest and costs. To this suit of Dreyfus, defendant, M. Goldman, in his answer, filed 11th June, 1863, pleaded compensation.

The claims set up in compensation, are these notes of Dreyfus for $75 each, dated October, 1858, payable to Goldsmith, Haber & Co., bearing-eight per cent, interest from their date (one of-the notes was to be credited for $25 on 16th August, 1861), and a judgment against Dreyfus at the suit of S. Kaizer, the amount owing on the judgment being $61 30. These claims, which were due, were for valuable considerations transferred by the owners of them to defendant, M. Goldman, about the 2d June, 1863.

He pleaded, in compensation, another small claim, but he failed to prove it.

In October, 1863, plaintiff, Laski, brought suit in his own name against defendant, to reverse judgment for amount of the note, interest and costs.

Defendant, M. Goldman, in this suit of Laski, pleaded by exception lis pendens, and this plea having been overruled by the Court, he filed an answer, averring therein that he had the right to compensate against plaintiff the claims set up in compensation in the suit of Dreyfus against him, and asked for judgment to that effect.

The District Oourt rendered judgment, dismissing the suit against Pauline Goldman, dismissing the plea in compensation, and condemning defendant, M. Goldman, to pay plaintiff the amount of the note with interest, costs of protest, and costs of suit.

M. Goldman has appealed from this judgment.

On the trial it was proved, besides what is stated above, that Dreyfus was not the owner of the note, but that plaintiff had placed it in his hands for collection, and had authorized him, Dreyfus, to bring suit 'therein in his own name.

The suit of Dreyfus was discontinued by him, and the costs paid at the time that the exception of lis pendens was tried, and the District Judge properly overruled it. See 10 An. 27.

We think that compensation should have been allowed.

Plaintiff has, by his declarations, deceived defendant, M. Goldman, and caused him to expend money to extinguish the note, as a debt owing to Dreyfus, and he must take the consequences resulting from his own declarations. 8 La. 545; 13 La. 132; 4 N. S. 91.

He cannot now deny them so as to make the condition of defendant, M. Goldman, more than it would have been had he spoken the truth..

The interest and costs. of protest, added to the amount for which the note was given, made the claim of plaintiff, on the 2d June, 1863, amount to the sum of $555 60. From this sum must be deducted $333 48. This last named sum being the amount due by .Dreyfus to M. Goldman, 2d June, 1863, on the several claims pleaded in compensation.

It is decreed that that part of the judgment of the District Court, which dismissed the plea in compensation, and condemned defendant, M. Goldman, to pay plaintiff the amount of the note, (say $550 80), with interest, cost of protest, and costs of suit be reversed. It is further decreed, that defendant, M. Goldman, be condemned to pay plaintiff the .sum of two hundred and twenty-two dollars and twelve cents, with interest thereon at the rate of five per cent, per annum, from the 2d day of June, 1863, till paid, and the costs of suit in the District Court; that, in all other respect the judgment of the District Court be affirmed. The costs of '.this appeal to be paid by plaintiff.