author: Merrick, C. J.

text:
    Latimer McKie & Co. v. The N. O. Jackson & Great Northern Rail Road Company.
    Courts aro bound to give legal effect to all contracts, according to tlio true intent of all tlic parties. C. C. 1940.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Kennedy <& Miles, for plaintiffs and appellants. J. J. Michel, for defendant.
   Merrick, C. J.

The suit is brought to recover of the defendant $8,267, for embankment made from excavation and banking over 500 feet on the line of the road.

The controversy in this suit is confined to the question of liability of the defendant to pay for 48,452 yards of embankment made from excavation within 500 feet of the same, at fifteen cents per cubic yard.

By the contract, the defendant, among other things, promised to pay the plaintiffs on the final completion of the work, twenty-five cents per cubic yard for excavation; for embankment per cubic yard from side ditches twenty-five cents; for hauling over and above the first five hundred feet, one cent per cubic yard; for each one hundred feet and embankments, made from excavation, fifteen cents per cubic yard. The contract, however, is modified at its conclusion by the addition of this clause which ,we italicise, viz :

“ It is understood in this contract, that the fifteen cents for embankment made from excavation in line of road over five hundred feet, covers the hauling- for an average haul of fifteen hundred feet beyond the five hundred feet, and that the price of one cent per yard per hundred feet is only to be paid for excavation from burrowing pits for embankment or for ballasting the road-bed with sand or gravel when hauled over five hundred feet.”

The contract provided that the work should be done under the direction of the chief engineer and his assistants, who were to make estimates '&c.; and it was further added that, “the said engineer shall have full power to reject or condemn “ all work or materials which in his opinion do not fully conform to the spirit of “ this agreement, and shall decide every question which can or may arise between the parties relative to the execution thereof, and his decision shall be final and “ binding upon both parties.”

The plaintiffs performed the work, and among other things, according to the testimony of one of themselves, in making the excavations, during its progress, they deposited the 48,452 yards of excavation sued for, on the line of the road within the five hundred feet. The engineer refused to include this in his monthly or final estimates for more than twenty-five cents per cubic yard, but estimated all deposited on the line of the road over that distance at forty cents per cubic yard. The plaintiffs received the monthly estimates, but did not acquiesce in the same. Notwithstanding the representations of the plaintiffs, the chief engineer concluded that the plaintiffs were not entitled to payment of more than twenty-five cents per cubic yard for excavation deposited on the line of the road under five hundred feet, and he made his estimate accordingly. The whole amounted to $187,985 37£ subject to the previous payments.

The plaintiffs gave their receipt to the defendant purporting to be in full settlement of all demands against the Company growing out of the contract, and fixing the actual cash balance thus settled at $8,902 19. The receipt, however, contained this reservation, viz, “ The subject of the ‘haul’ in the above contract (which is referred to in the receipt) is to be settled by agreement hereafter between the board and the undersigned, and we hereby agree to abide by the decision of the Board of said Rail Road Company.”

The plaintiffs claimed in their petition $1000 for hauling, at the rate of one cent per cubic yard for each 100 feet above the 1500 feet beyond the first 500 feet. The testimony however tends to show, that it was for hauling over five hundred and under sevep hundred feet. The' witness (one of the plaintiffs) says as near as he could make out, they hauled about 8100 cubic yards of earth over five hundred feet, for which they would be entitled to one cent additional per cubic yard, and about 8000 cubic yards six hundred feet, for which they would be entitled to two cents per cubic yard.

The District Judge gave judgment in favor of the plaintiffs for $1000, and they appeal. The defendant, in answer to the appeal, prays that the judgment may be amended.

The case rests almost exclusively upon the testimony of one of the plaintiffs. There is no other witness to prove the quantity or value of the work done which plaintiffs suppose has not been fully paid for; it having for convenience of parties been agreed that the case should be tried in this city under the rules of evidence established by the statutes of Mississippi. Were it not for the construction given by this witness to the word haul ” used in the receipt, the case would, we think, be free from difficulty.

The defendant contends that the word means nothing more than the act of hauling, and that the receipt is itself a bar to everything else. The plaintiff in his testimony swears it embraces embankment under five hundred feet.

The receipt itself confines the reservation to the “ haul ” mentioned in the contract. Now when we look into the contract, we find the word in the explanatory clause added to the contract, and there it means the act of hauling the earth without reference to the place from whence hauled.' And in this sense the plaintiff himself uses ’the word in two places in his own testimony.

W e are not aware that the word “-haul ” or hauling can with any propriety be applied to earth thrown with the spade or carried a short distance on a wheelbarrow. Nevertheless, it will appear on reflection, that a portion at least of the embankment made from excavation within five hundred feet must be made in this manner.

If plaintiffs be restricted in the definition of “ haul” to the act of transporting by carts or wagons, their recovery would be limited to $241:.

Hence in this court they claim only for 48,452 cubic yards of embankment at fifteen cents made from excavation, as they say, hauled less than five hundred feet.

Let us now consider this claim, which depends upon the testimony of a single witness, who puts a construction upon his own receipt, and testifies in his own favor.

When he voluntarily entered into the contract, with a full knowledge of what he was doing, he made the chief engineer the arbiter not only of the performance of the work, but also of the meaning of the instrument he signed. This umpire month after month during the whole continuance of the work put the construction upon' the instrument which is complained of, and as often the plaintiffs received their pay under such estimates as he made. No fraud or negligence has been charged upon the engineer, nor has it been pretended that improper influences were used to affect his decisions.

When we look at the contract ourselves, we find it impossible to say that he has not truly interpreted the same and arrived at the common intent of the parties. C. C. 1940.

It is true that in one clause of the contract the price for embankment made from excavation is fixed at fifteen cents, per cubic yard, yet from another part it appears by implication that the fifteen cents were expected to be paid only for that portion of embankment which was made from excavation more than five hundred feet.

The words “ over five hundred feet,’’which are contained in the first clause we have quoted, have no other meaning, and would not have been inserted in the contract had not that been the understanding of the parties. Again, the Company only agreed to pay twenty-five cents per cubic yard for earth taken any where under five hundred feet from side ditches to make embankments. The labor was no mo' e to take it any where within that distance from excavations on the line of the road, and the engineer allowed them the same in his estimates for each.

On the whole, in view of the contract, the action of the engineer as an expert chosen by the parties, the receipt of the monthly estimates, the final receipt signed by the party, and lastly, of the fact that the case rests mainly upon the testimony of a single witness testifying under the bias of interest, we conclude that the plaintiffs are not entitled to judgment for the item of excavation and embankment for any sum more than they have already received.

Inasmuch as the plaintiffs do not claim compensation in this Court for the act of hauling, there is no basis for any judgment in their favor, and the judgment must be amended as prayed for.

The view we have taken of the case does not make it necessary to consider the effect of the estimates of the chief engineer as in contravention of the contract, nor of considering the authorities cited on this branch of the case.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be so amended as to make it final, in favor of the defendant, against plaintiffs’ entire demand; and it is further ordered, that plaintiffs pay the costs of both courts.


source: Caselaw Access Project

author: Duffel, J.

license: Public Domain

text:
    Francisco Mercadal, Jr., v. His Creditors.
    Where a creditor placed upon tlio schedule of an insolvent certifies on oath, either in person or by-proxy, his claim to be true and legitimate in the manner required by the Act of 1855, p. 434, sec. 13, it will entitle him to vote for a syndic : and it is incumbent, in all cases, on the complainant to rebut by proper evidence the presumption of indebtedness arising from the sworn declaration of the creditor.
    Appeal from the Third District Court of New Orleans, Buvigneaud, J.

      C, Roselius and A. 0. Semmes, for plaintiff and appellant. L. Caslera and P. S. Biron, for defendants.
   Duffel, J.

This is an opposition to the appointment oí Francisco Mercadal Sr., as Syndic of the creditors of the insolvent, on the grounds that Mercadal Sr. and others who voted for said Mercadal Sr. were not the creditors df the insolvent, and that by deducting said illegal votes, André Dubuch, the opponent, is entitled to the trust, which he now claims'.

The District Judge recognized Dubuch as the duly elected Syndic of the creditors of Francisco Mercadal Jr.

It appears that the creditors, whose claims are contested, were placed as such in the schedule, and that they certified on oath, either in person or by proxy, their respective claim to be true and legitimate, in the manner required by law, Acts of 1855, p. 431, sec. 13.

The statute requires no other evidence to entitle a party to a vote; and it is therefore incumbent, in all cases, on the complainant to destroy, by proper evi-deuce, the presumption of indebtedness arising from the sworn declaration of the creditor. The fact that the opponent opposed the votes before the Notary, doe3 not change the relative position of the parties. The burden of proof would necessarily rest on the creditor, on an opposition to a tableau of distribution ; and the reason of the difference is obvious. In the first place, the interest of the mass of creditors requires that the property of their common debtor should be applied to the payment of their claims without unnecessary delay; and in the next place, a judgment liquidating a debt, in a litigation of this kind, would not be binding on the creditors who were strangers to the proceedings. Pandellij v. His Creditors, 9 L. R. 387.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is now further ordered, adjudged and decreed, that the opposition herein filed be rejected, and that the appellant, Francisco Mercadal Sr., be declared to be the duly elected definitive Syndic of the creditors of Francisco Mercadal Jr., and that he be qualified as such by giving the bond and taking the oath required by law. It is further ordered, that the costs of opposition, in both courts, be paid by the opponent, André Dubuch.


text:
    P. P. J. Martin et al. v. P. C. Blanchin and Antoine Giraud. Stanislas Plassan, Receiver.
    "Where the defendants were charged with the management of the partnership affairs, an ex parte order of the Court which takes the business out of their hands and places it under the control of a Receiver may cause them irreparable injury, and is an interlocutory order from which an appeal will lie. C. P 566.
    Where a record contains a bill of exception, the appeal can be maintained although tho Clerk does not certify that the Record contains all the evidence adduced on the trial. C. P. 896.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Bonford, Singleton & Clack, for plaintiffs. C. Roselius and L. Costera, for defendants and appellants. J. L. Tissot, for Receiver.
   Merrick, C. J.

The action is one for the dissolution of a partnership existing between the parties to the suit.

The plaintiffs, after having caused the defendants to be cited, obtained the appointment of a Receiver on their ex parte application.

The defendants took a rule upon the plaintiffs to show cause why said order should not be set aside on several grounds. Being unsuccessful at the hearing on the rule, they have appealed from the order appointing a Receiver.

Plaintiffs have moved the Court to dismiss the appeal, on the grounds that the order does not work an irreparable injury to defendants — because it is a matter within the discretion of the Court below, and because the certificate of the Clerk to the record of appeal is imperfect.

It is alleged inthe petition, that the defendants were charged with the management of the partnership affairs. It seems to us that an order of the Court which shall take the business of the concern out of their hands, and place it under the control of a Receiver, may cause them irreparable injury, and is an interlocutory order from which an appeal will lie, C. P. 566.

The record contains a bill of exception. The appeal can therefore be maintained although the Clerk does not certify that the record contains all the evidence adduced on the trial of the rule. O. P. 896.

It is therefore ordered, that the rule to dismiss the appeal be discharged.


text:
    Widow R. Barnabé, f. w c., v. Mrs. S. Snaër and Husband.
    Whore defendants were sued jointly and answered jointly, and an appeal was granted to both r on tí motion in open court, made in the name of both, by their- counsel of record, and the counsel signed the bond of appeal, as principal, in the name of his client — Reid; That such an appeal and such a bond is sufficient-
    The Clerk’s certificate to a record of appeal is good if stated as follows: í£ I do hereby certify that the foregoing fifty-six pages do contain a true and correct transcript of all the documents filed, testimony and evidence adduced and all the proceedings had upon the trial of the suit.”
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Edward Bermudez, for plaintiff. E. Filleul, for defendants and appellants. On a motion to dismiss.
   Duffel, J.

The appellee asks the dismissal of the appeal on two grounds. “ lo. Because the appellant, being a married woman, should have been authorized by her husband to appeal, and there is no evidence of record showing such authorization; the bond of appeal has been signed neither by the wife nor her husband, but by the counsel of the wife in the name of both, which is insufficient ; 2o. Because the certificate of the Olerk as to the fullness of the transcript is not such as it should be under the law, &c.”

On the first point. The defendants were sued jointly and answered jointlv ; the appeal was granted to both, on a motion in open court, made in the name of both, by their counsel of record. The same counsel signed the bond of appeal, as principal, in the name of his clients.

Such an appeal and such a bond were held sufficient by this court. Hill & Co. v. Tippett and wife, 10 An. 654, William’s Executor v. Hood, 11 An. 113.

On the second point. The objectionable part of the Clerk’s certificate is in the following words : “ I do hereby certify that the foregoing fifty-six pages do contain a true and correct transcript of all the documents filed, testimony and evidence adduced, and all the proceedings had upon the trial of the suit.”

This language certainly conveys clearly to the mind the idea of a full and complete transcript of all the documents filed in the suit, and of all the evidence adduced by the parties on the trial, which is all that the law requires. C. P. 585, 586, 896; Gordon v. Gordon, 12 L. R. 671, Whittmore v. Watts, Sheriff, 7 R. R. 10.

Motion overruled.

Land, J„ absent, concurred in this opinion.


text:
    E. Cannon v. R. White.
    %e Act of Congress, approved July 6tb 1842, entitled “ An Act confirming certain, land claims in Louisiana,” embraces — “that the confirmation made by virtue of the 7th and 9th sections thereof shall only operate as a relinquishment of the right of the United States, and shall not affect the right of third persons, nor preclude a judicial decision between private claimants for the same land.
    In cases of fraud and simulation it is a cardinal principle that great latitude in the introduction of evidence is allowed, leaving to the Court and jury to determine* from all the surrounding circumstances, the weight jind effect of such evidence. Thus, thd conversations and admissions of the parties, even when not made in the presence of each other j their acts and actions, are, under the above restrictions, admissible in evidence. Even in matters of conflicting settlements upon public lands, the acts and conversations of the parties are admissible ; the objection going to the effect.
    "Where the title to public land bas passed from Congress, and forms no longer part of the public domain, tbe pretensions of the litigants must be determined by our State laws and jurisdiction.
    In a petitory action the plaintiff must succeed on the strength of bis own title, and not on the weakness of the adverse title. But where a party obtained a quit claim by falsely and fraudulently attributing to himself certain rights, this Court will interfere and correct the error. It has been repeatedly decided in tbe Supreme Court of the U. S., as well as by this Court* that persons who-obtain patents by a suppression of a part of the facts of the case will not be permitted to derive any benefit thereby, but that such patente Will inuro to the parties entitled to recover the lands thus patented. Per cui'icm^ we can see no good reason why the' principle should not be extended to the case of a person obtaining a title in his own name, by fraudulently baáing his demand on the habitation and cultivation of another, when the equitable right of the latter would otherwise be without remedy.
    A purchaser in bad faith owes indemnity, and is entitled in law to no other claim for his improvements than those stated in the three first sentences of the C. C., Art. 500. 12 An. 545.
    Where the defendant does not urge in this Court any of the bills of exception taken by him to the rulings of the Court below, it is considered a waiver of those exceptions.
    Clerks of District Courts throughout the Slate have co-equal powers with the Judges thereof to issue commissions to take testimony. Act of 1846, p. 63 •, Act of 1850, p. 99 • 9 An. 69. '
    In respect to depositions, complete mutuality, or identity of all the parties is not required. It is generally sufficient if the matters in issue were the same in both cases, and the party against whom the deposition is offered has full power to cross-examine the witness.
    "Where a sale was made without any warranty or recourse whatever, the purchaser bought at his own risk and peril, and could not claim restitution. — Ergo, the vendor was a good witness and not interested in proceedings atiende. C. C. 2481 ; 3 An. 326.
    Appeal from the District Court of the Parish of Caddo, Criswell, 3.

      Weems & Heath, for plaintiff and appellant. B. S. Hodge aud Landrum <& Williamson, for defendant.
   Duffel, J.

The plaintiff is appellant from a judgment of the District Court rendered, on a verdict of a jury, adversely to his claim.

This is an action for the recovery of six hundred and forty acres of land, situated on Red River, which the plaintiff, as assignee of Edward McLaughlin, by a regular chain of title, claims by right of occupation, habitation, and cultivation, prior to, and on, the twenty-second February eighteen hundred and nineteen, under the provisions oí the Act - of Congress approved March third eighteen hundred and twenty-three, entitled “ An Act providing for the examination of the titles of land in that part of the State of Louisiana situated between the Rio Hondo and the Sabine river,” and an Act supplementary thereto, approved May 26, 1824. See United States Statutes at Large, vol. 3, p. 166, chap. 30, and vol. 4, p. 65, chap. 182,

In support of his claim, the plaintiff produced in evidence a report made on the 1st November 1824, to the Secretary-of the Treasury, by the Register and Receiver of the South-Western Land District, wherein they declare that “ on this testimony we are of opinion the claim ought to be confirmed, and have consequently in the abstract classed it with the third class of claims.”

This claim is -described in the report as “ a tract of land lying within the late neutral Territory situated on the waters of Red River, on the south-east side of the cut-off which forms Norris’ Island, bounded on all sides by vacant lands, and containing 640 acres,” and is described in the abstract as follows:

The plaintiff contends that the above claim was confirmed by an Act of Congress approved May 24,1828, entitled “ An Act to confirm claims to lands in the district between the Rio Hondo and Sabine rivers, fouuded on habitation and cultivation.” See U. S. Statutes at Large, vol. 6, p. 382, ch. 92.

The first section of said act provides “ that the claims to lands founded on habitation and cultivation reported for confirmation, by the Register and Receiver of the South-Western District of Louisiana, in their report dated November first eighteen hundred and twynty-four, in conformity to the provisions of the Acts of Congress of the third of March eighteen hundred and twenty-three, and twenty-sixth of May eighteen hundred and twenty-four, contained in the third class of the report of said Register and Receiver, be, and the same are hereby confirmed, except claim No. forty-two near Cantonment Jesup, and the claims of Leonard Dyson, Nos. fourteen and eighteen. .which claims are suspended until it is ascertained whether they are situated within the limits of the lands claimed by the Caddo Indians.”

The second section provides “ that the confirmations made by this Act shall not be construed to extend further than to a relinquishment of title on the part of the United States, and the claims hereby confirmed shall be located under the direction of the Register and Receiver of the proper Land Office, in conformity with the legal subdivisions of the public surveys, so far as practicable, and shall include the improvements of the claimants respectively.”

The plaintiff also claims title by prescription, based upon a continued, peaceable, and uninterrupted possession, as owner, for more than thirty years; and charges that said land was confirmed in the name of one John McLaughlin on false and fraudulent representations and affidavits, and that the defendant, Reuben White, well knowing the spurious, evidence upon which the claim of John McLaughlin rested, did nevertheless purchase said land from John McLaughlin, and holds illegal possession of the same under his above title; and the plaintiff concludes by demanding to be recognised as the lawful owner of said land, and also that the defendant be condemned to pay to him, for the illegal detention of said property, three thousand dollars, and the further sum of twenty-five hundred dollars per anuum, for the rents and profits of said lands, from the 1st of January 1853 until the final decision of this suit.

The defendant, in his answer, after setting up a title in himself, denies the right of action of the plaintiff, under the allegations of his own petition; and in support of his title, he produced in evidence : — lo., the separate reports made on the 30th May and 6th of June 1840, by the Register,and Receiver of the Land Office at Opelousas, under the provisions of the Act of Congress approved 6th February 1835, and entitled : “An Act for the final adjustment of claims to lands in the State of Louisiana, (see U. S Stat. at Large, yol. 4, p. 749, ch. 17,) which report states under No. 162, that John McLaughlin claims 640 acres of land situated on the neutral Territory between the Rio Hondo and Sabine rivers, and lying on the right bank of Red River, descending, below and contiguous to Pascagoula bayou, and about 60 miles, by land, from the town of Natchitoches, founded on habitation and cultivation by the claimant, on, and prior to, the 22d, of February 1819.” Proof of said habitation and cultivation, as aforesaid, is made by the affidavit of the claimant, and the testimony of two witnesses. — 2dly, an abstract and alphabetical list of Spanish and Rio Hondo claims, reported by the Register and Receiver at Opelousas, State of Louisiana, May 15th 1840, as follows :

—3dly, an order to survey and locate the claim of John McLaughlin No. 162, bearing date October 12th 1842, and a certificate of the report and confirmation of the claim by the Act of Congress approved July 6th 1842, entitled : “An Act confirming certain land claims in Louisiana.” See U. S. Stat. at large, vol. 5, p. 491, ch. 50). The seventh section of said Act provides “ that the claims to lands within the district, south of Red River, being numbers thirty-three. one hundred and sixty-two.of the reports of the Register and Receiver of the Land Office at Opelousas, dated thirtieth May and 6th June eighteen hundred and forty, made under the provisions of the Act of eighteen hundred and thirty-five, aforesaid, be, and the same are hereby confirmed, etc,” and the ninth section of said Act provides that the confirmations made by virtue of the two preceding sections shall only operate as a relinquishment of the right of the United States, and shall not affect the right of third persons, nor preclude a judicial decision between private claimants for the same land; and on the presentation, to the Commissioner of the General Land Office, of the plat of survey, duly proved by the Surveyor General of Louisiana, the claimant shall be entitled to a patent.”

4th. A survey and location of claim No. 162, made November 15th 1842, and approved March 3d 1843 by the Surveyor General of Louisiana.

5th. A patent, dated September 20th 1844, in favor of John McLaughlin, for claim No. 162, surveyed and designated as section 34, containing 621 23-100 acres, in T. 16, north of Range 12 W., in the North Western Land District, in the State of Louisiana; containing the following reservations : but in no manner to'affect the rights of third persons, nor to preclude a judicial decision between private claimants, for the same land.”

6th. The transfer of said land from John McLaughlin to the’defendant by Act dated June 22d 1848, and an Act explanatory thereof, dated September 13th 1848.

The record contains seventeen bills of exception, ten having been taken by the plaintiff and seven by the defendant. The defendant did not, however, urge in this Court any of the bills taken by him to the rulings of the Court below, which fact, according' to the practice of this Court, is a waiver. Williams v. Bridge et al. 14 An. 721. We will not undertake the onerous task of reviewing, seriatim, the bills of exception of the plaintiff to the rulings of the District Court rejecting and excluding a portion of his evidence, but we will dispose of them in globo.

It is a cardinal principle that in cases of fraud and simulation, great latitude in the introduction of evidence is allowed, leaving to the Court and jury to determine, from all the surrounding circumstances, the weight and effect of such evidence : thus, the conversations and admissions of the parties, even when not made in the presence of each other, their acts and actions, are, under the above restrictions, admissible in evidence. Guidry v. Grivot 2 N. S. 13. Davis v. Stern, 15 An. 177. Meyers et als. v. Chaney et al. 13 Ann. 207. And even in matters of conflicting settlements upon public lands, the acts and conversations of the parties are admissible in evidence; the objection going to their effect. Franklin v. Woodland 14 An. 188.

The District Court ruled that a previous order for the issuing of commissions to take testimony was indispensable. The commissions alluded to were issued by the clerk under the first section of the Act of 1846, p. 63, which authorizes specially the clerks of the several District Courts to issue “ commissions to take testimony, in and out of the State, to fix the return day thereof, and to appoint commissioners to execute the same.” It was held, in the case of Bradford v. Cooper, 1 An. 325, that a commission officially signed by the Judge himself, was a sufficient approval of the commission and a sufficient order, in the intendment of the various articles of the Code of Practice on the subject. The Legislature had, under the Constitution of 1845, as it now has under the present Constitution, “ the power to vest in Clerks of Courts, authority to grant such orders, and do such acts as may be deemed necessary for the furtherance of justice ” ; and, therefore, if the issuing of a commission be a judicial act, the ruling in the case of Bradford v. Cooper would apply with equal force to commissions issued by clerks. Such in fact was the decision rendered in the case of Ferriber v. Latting, 9 An. 169, under the statute of 1850 p. 99, which is, as far as this point is concerned, a re-enactment of the act of 1846.

The District Judge ruled out the testimony of the witnesses taken on the above mentioned commissions, for the further reason that, the commissions having issued in several cases, wherein the present defendant was plaintiff, at the instance of. the defendants in said causes, to wit: the lessees of the present plaintiff, before the latter had made his appearance on the call of his lessees to defend the suits, (these suits were-for the recovery of the land now in dispute) the defendant could have successfully excluded the testimony, and it would therefore be unfair to permit him to use it against White in the present action.

We will here remark that the witnesses who testified in the above cases are either dead or absent from the jurisdiction of the Court.

In the ease of Clossman v. Barbancy, 7 Rob. 438, we find the following language : “ The rule applicable to cases of this sort, is thus laid down in Green-leaf’s Treatise on Evidence p. 589 : “ with respect to depositions, complete mutuality or identity of all the parties is not required. It is generally sufficient, if the matters in issue were the same in both cases, and the party against whom the deposition is offered had full power to cross examine the witness. “ The deposition in question comes, we think, within the above rule, which appears to us a reasonable one, and it should have been admitted.” In the case at bar the object of the suit is the same; fraud, here as in the other suits, is charged against White and his author, and the title of White was assailed and the one of Cannon opposed to it, and White had a full opportunity to cross-question the witnesses.

The testimony of John W. Mahle was improperly rejected on the score of interest, for the sale of the undivided third of the land in dispute made by his father, now deceased, was a sale of all his right, title, interest, claim and pre-tentions without any warranty or recourse whatever ; the purchaser, therefore, bought at his own risk and peril, and could not claim restitution. C. C, 2481. Hall et al. v. Nevill, 3 An. 326.

We will, therefore, consider the rejected testimony, which came up with the record, discarding matters of pure opinion, and all hearsay evidence which does not fall within the purview of public notoriety, and giving to the rest such weight and effect as the nature of the case will justify.

As we have above stated, the plaintiff contends that his claim was confirmed by the above recited act of May 24th 1828. We have no doubt that, had it been ascertained at the time of the passage of the Act, that the claim No. 14, of Leonard Dyson, as assignee of Edward McLaughlin, did not lie within the Caddo Indians, it would have been confirmed. And it is now fully demonstrated that the lands of the Caddo Indians did not cover the claim No. 14. (See treaty between the United States and the Caddo nation, dated July lst-1835, and promulgated February 2d 1836. U. S. Statutes at Large vol. 7, p. 470.)

We cannot, however, give to the Act of May 24th 1828, the construction which the plaintiff places on it, for we do not understand the words of the Act to say, or mean, that the claim is confirmed subject to a certain contingency, to wit: that it did not fall within the Caddo Indian Territory. ■ It was not the effect of the confirmation which was suspended, for the Act did not confirm the claim, but the action of Congress on the claim itself was suspended and reserved for its subsequent consideration, after the ascertainment of a particular fact; thus requiring the further action of Congress to complete the title of the plaintiff. Nor indeed can it be said that the act reserved the land for sale, or precluded'the United States from disposing of the same, by sale,-donation, or otherwise, for the land was not surveyed, located, or described in such a manner as to designate it with sufficient certainty. Menard’s Heirs v. Massey, 8 Howard 293. Cousin v. Blanc's Executor & al., 19 Howard 80.

We are also clearly of opinion that the title to the laud in controversy has passed from Congress and forms no longer part of the public domain ; and also, that the apparent title is in the defendant; hence that the pretensions of the litigants must be determined by our State laws and judicature. Wilcox v. Jackson, 13 Peters, Curtis Vol, 13, p. 276. The Act of Congress confirming the claim of John McLaughlin, and the patent issued under said Act, both reserved to third persons their right of action.

Were this case to be viewed simply as a petitory action, when the plaintiff must succeed on the strength of his own title and not on the weaknesss of the adverse title, the case would be against him ; for his title unaided would have no standing in a court of justice. Ezra Hiestand v. Gideon C. Forsyth, 12 Rob. 371, Bookout v. Anderson, 2 An. 246, W. Penn v. Holme, 21 How. 481. But if it be true that John McLaughlin obtained from Congress a quit-claim to the land in dispute, by falsely and fraudulently attributing to himself the occupation, habitation and cultivation of his father, Edward McLaughlin, and that the defendant was cognizant of the fraud practiced on the Register and Receiver, then this Court will, under the prayer of the plaintiff, for all legal, equitable, general and special order in the premises,” decree the patent, and the land covered under it, to the plaintiff. The nature of the case is such, that any other ruling, or order, in the event of the required proof being made, would perpetuate the fraud, for this court is powerless to nullify an Act of Congress on account of fraud practiced on its officers ; but is, we deem, perfectly competent to carry out the intention of the sovereign power, which was to give the land to the party who had cultivated and made a habitation thereon.

The Supreme Court of the United States, and this Court, have on moré than one occasion, decided that persons who obtain patents by a suppression of a part of the facts of the case, will not be permitted to derive any benefit thereby, but that such patents will inure to the parties entitled to recover the lands thus patented. Kittridge v. Braud, 4 R. 79. Knox v. Pulliam, 14 An, 123. Lytle et al. v. Slate of Arkansas et al., 22 How. 202, and the cases therein cited.

We can see no good reason why the principle should not be extended to the case of a person obtaining a title in his own name, by fraudulently basing his demand on the habitation and cultivation of another, when the equitable right of the latter would otherwise be without any remedy.

Thus we are called upon to examine the question of fraud, both in the grantee, John McLaughlin and his vendee, the defendant.

The evidence is conclusive, that John McLaughlin never cultivated any portion of the land patented to him, nor lived on it otherwise than under the roof of his father, and that the Register and Receiver were grossly imposed upon by false reirresentations and affidavits; and this evidence, which is otherwise abundant, is fully and completely corroborated by a written admission, in the form of an affidavit, of John McLaughlin, made in 1843, The evidence is equally certain that Edward1 McLaughlin inhabited and cultivated the land in controversy on, and prior to the 22d of February 1819, and that he .had no neighbor for a distance of several miles around. The fact that Edward McLaughlin had two small clearings, or fields, and that the survey and location of the claim No. 162 embraces but one, is immaterial: and the mis-description of the land, as to boundaries, in all the transfers from Leonard Dyson to the plaintiff is of no consequence, because it is proven that Dyson never owned any other land in the neighborhood, and besides the locality is well -defined by witnesses who speak of the same, some of whom occupied different portions as lessees of the plaintiff’s vendor, Wright.

The defendant does not legally stand in a more favorable light before us. He had full and ample means of knowledge : he knew, two years before buying, that the occupants, or at least some of the occupants, of the land, held the same as the lessees of the plaintiff’s immediate vendor ; after the sale, he bought out some of the tenants ; sued others, and dismissed the actions, after he had obtained by that means possession, and we have no doubt, for the purpose of avoiding the issues of fraud made in the case in which the present plaintiff had intervened. The price purported to have been given was not serious; in fact all the surrounding circumstances, the acts, actions and declarations of the parties, the rumors which were then rife in the community, all tend to the conclusion that the defendant well knew the fraudulent character of John MeLaughlin’s title. But if we give faith to the testimony of Henry Strider, and we have no reason to discredit him, then we have proof direct of his knowledge of the fraud, and of the motive which induced him to buy.

It is perhaps not amiss to remark that John McLaughlin in his affidavit of the 12th May 1843, not only disclaimed title to himself, but admitted the validity of the claim of Leonard Dyson as. assignee of his father, Edward McLaughlin, This transpired five years before the sale made to the defendant, and we have reason to suppose that he was made acquainted with all the facts therein stated, as the affidavit had been deposited in the Register’s office at Opelousas, where the defendant obtained informations in relation to the claim before making the purchase. Thus we have the declarations, in writing, of John McLaughlin, which amount to a quit-claim in favor of Dyson, and we see the land in the possession and occupancy of those holding under Dyson at the very time of the date of the sale to the defendant.

The defendant being thus, in legal parlance, a purchaser in bad faith, owes indemnity, and is entitled, in law, to no other claim for his improvements than those stated in the three first sentences of the C. C. Art. 500, Gibson v. Vaughan. 12 An. 545.

The evidence on the head of damages is very meagre, and the remark applies to the improvements made by the defendant. The defendant has, we can safely say, been in possession of the whole land since 1853. The land cleared at that period was about 250 acres, and the lowest estimate for rent is $3 00 per annum per acre. The improvements made by the defendant are valued at $5,250. The quantity of land cleared at the trial of the suit below was about 480 acres.

The plaintiff is therefore entitled for rent, at the rate of $3 per acre per annum on 250 acres from January 1st 1854 to the date of the judgment below, April 30th 1859, $3,833 33, and from that date until possession be delivered to him at the same rate on 480 acres, and it shall be optional with the plaintiff to keep all the improvements on the place by paying therefor $5,250. The free use of the excess of the clearing, from January 1st 1854 to April 1859, and the cord wood consumed, will more than compensate for the expense of the clearing made.

It is, for the reasons assigned, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed. It is further ordered, adjudged and decreed, that the plaintiff be, and he is hereby, recognized as the lawful owner of section thirty-four, containing six hundred and twenty-one 23-100 acres of land, in Township sixteenth (north) of Range Twelve "West, in the north western land District of the State of Louisiana, and that a writ of possession issue. It is further ordered, adjudged and decreed, that the plaintiff have judgment against the defendant in the sum of three thousand eight hundred and thirty-three dollars and thirty-three cents, with costs in both courts. It is further ordered, adjudged and decreed, that the plaintiff have judgment, and the defendant pay unto him, at the rate of three dollars per annum per acre, on four hundred and eighty acres, from April 30th 1859, until possession of the land be delivered as above stated. And it is further ordered, adjudged and decreed, that the plaintiff shall elect, within thirty days after this judgment shall become final, whether he will keep the improvements erected on the above described land, on paying for the same five thousand two hundred and fifty dollars to the defendant; and on his so electing, or making default, execution may issue on this part of the judgment against the plaintiff ^but on his refusal to retain the said improvements, the defendant is hereby permitted to remove the same within a reasonable time.

It is finally ordered, that the clerk of this court be, as per agreement on file, directed to issue notices of this judgment to the Sheriff of the parish of Caddo for service on the counsels of both parties.

Mr. Justice Land recused himself, having been of counsel in the case.


text:
    John Walpole v. Josiah Renfroe.
    The mere fact that one of the partners acts as the cashier of the firm, would not, as a general rule, charge him with the* funds he might receive and disburse in the course of business ; otherwise when fraud is charged.
    "Where irrelevant testimony is admitted, and does not justify the verdict of the jury, it will be set aside and the case remanded for a new trial.
    Appeal from the District Court of the Parish of Caddo, Creswell, J.

      Landrum & Williamson, for plaintiffs. Hodge <& Martin, for defendant and appellant.
   Merrick, C. J.

“ The plaintiff alleges that the defendant and himself formed a partnership about the 26th September, 1855, and continued until about the 15th May 1857 — that the object of the partnership was to sell meats in the Shreveport market, and to buy cattle, stock, &c., and ship them to New Orleans for sale. He alleges that he is the half owner of two slaves and certain other property mentioned in his petition, as having been purchased with funds of the said partnership. He also alleges that about the 31st May 1856, he paid certain individual debts of defendant, due to Rosson, agent, &o., and to other parties.”

“ He asked for judgment for one-half interest in the two slaves and other property, and for ten thousand dollars, his part of the profit of the partnership. He concludes by asking for a final settlement of partnership affairs.”

“ The defendant denies the existence of any partnership whatsoever between the plaintiff and himself, but admits ‘ That some time in September or October 185'5, the plaintiff proposed or suggested to him to buy a lot of beef cattle which one —;—• AVard was offering for sale, and that he (plaintiff) would join him in the purchase.’ He admits the purchase as proposed, but avers that the plaintiff failed to furnish his part of the purchase price, and for that reason he does not consider him interested in the purchase. He admits that he was engaged in the business mentioned in the petition, during the time alleged, and had been so engaged for some time previous and subsequent; but avers that it was on his individual account, and denies that plaintiff ever paid or expended any money for him, or for any business in which he was interested. He admits that plaintiff paid Rosson and others for him, as alleged, hut avers that it was with funds of his which plaintiff had received between the 21st of May and 5th of June 1856, during his absence.”

“ He denies that plaintiff has any interest in the slaves and other property mentioned in the petition. He avers that he realised no profits from the business referred to, but that in consequence of using his farm as a pasture for his stock during the year 1854, he lost his entire crop, which would have been worth a thousand dollars, and that he had several slaves employed about the business. He alleges that about the 6th of March 1856, he left home and was absent until the 16th of April, during which time the plaintiff, “ acting as his friend and agent,” received the proceeds of the sales in the market, which were deposited by his (defendant’s) employee in the hands of one William Solleder, and which amounted to $2,740 65, for which he claims the plaintiff is liable to account.”

“ In conclusion he expresses his willingness to render an account of disbursements and receipts in the business in which he was engaged during the time referred to in the petition, if the Court should be of opinion that he was bound to do so.”

“ Upon these pleadings the case was tried before a jury, who retnrned a verdict in favor of the plaintiff for 2,000 00, and from the judgment rendered thereon, the defendant appeals.”

“ The first question upon -which the opinion of the court is asked, is presented by two bills of exception.” ‘ The plaintiff offered L. R. Grigsby, as a witness, and asked him how much he had made as profits in the butchering business,” to which defendant objected, because the answer would be irrelevant, and was calculated to mislead the jury.’ The court overruled the objection and admitted the testimony, for the following reasons : ” •' because it was admissible and competent.’

‘‘The witness, R. B. Patterson, was asked the same question ; the same objection was urged, but was overruled by the court, and the answer received for the same reasons.”

The testimony of Grigsby and Palters on ought to have been excluded. It was in its nature irrelevant to the issue. ■ The business of Grigsby may have been very profitable, and that of another man possessing equal means and ability may have been on the contrary, a losing affair.

Testimony of this kind instead of elucidating the point in controversy, tends to embarrass the consideration of the question by confounding it with an analogous subject, (viz:) the profit of another man. Such evidence is not confined to the issue.

On the merits, the testimony by no means justifies the verdict of the jury. The partnership is perhaps satisfactorily proven as tó the business of supplying the market at Shreveport’ and steamboats with beef, &c. It is also shown that the market cart was paid for by the firm, and that some debts of Renfroe were paid in the same way. It is also shown that the defendant was in the habit, when present, of receiving the funds of the firm. It is not pretended by plaintiff in his petition that he ever advanced any of his own means for the business of the firm, and it is shown that he received the funds during defendant’s absence, and also that on one occasion the partners had a settlement and adjusted their accounts. It is reasonable to presume that the beeves, sheep, hogs, game, &c., were bought by the partnership funds, and that they were advanced as needed by the partner acting as the cashier of the firm, for the time being. The mere fact, therefore, that the one or the other of the partners acted as the cashier of the firm, would not, as a general rule, charge him with the funds he might receive and disburse in the due course of business. If no fraud be charged, what he receives while engaged in the business of the firm is presumed to be on account of and deposited in the common treasury; what he disburses in like manner is supposed to be taken from the same. It is the exception when he pays out of his own funds.

There is no proof that any other property, except the cart, was bought with partnership funds, or on account of the partnership. The jury have found a round sum in fav.or of the plaintiff. It is evident that it is based on the specu • lative opinions of witnesses upon the profits or losses of other butchers, and the number of steamboats supplied, &c., and the profit which might be made per pound on beef, mutton, pork, &c. This kind of testimony is insufficient. It is not the office of a jury or a court to guess at results. The question here is, does Renfroe owe Walpole on a settlement of the partnership affairs. If so, let it appear, by showing the cost of the purchases, the expenses of the business, and the receipts or the surplus on hand. Let each partner bo credited with what he has advanced, and charged with what he has withdrawn from the partnership, and what he has turned to his individual advantage. If proof he administered of these particulars, the Court will have facts and not speculations for the basis of a judgment.

The testimony as it now stands would perhaps entitle the plaintiff to a small judgment, but we .think justice requires that the case should be remanded in order to enable the plaintiff to call for the books kept by defendant, or advance further and more satisfactory proof, if it be in his power. See Parker v. Jonte, 15, An. 290.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court he avoided and reversed, and that this case be remanded to the lower Court for a new trial, the plaintiff paying the costs of the. appeal; and by reason of the agreement on file, it is further ordered that a copy of this decree be forwarded by the Clerk to the Sheriff or Coroner of the Parish of Caddo, for service on the plaintiff.

Mr. Justice Land recuses himself, having been of counsel in this case for defendant.


author: Buchanan, J.

text:
    Luther Homes v. H. B. Carrier.
    The charge of adultery, preferred by the wife against the husband, to serve as a basis for a judgment of divorce, does not of itself amount to a defamation upon the failure of tho former to sustain the allegation by proof. If the accusation be not wanton, or malicious, although unfounded in point of fact, it cannot with propriety be said that there was a public defamation.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      J. McConnell, for plaintiff and appellant. Mott c6 Fraser, for defendant.
   Buchanan, J.

Defendant sued plaintiff, her husband, for divorce, on the ground of adultery.

This suit, after lasting a considerable time, was dismissed, plaintiff in the action (defendant herein) failing to appear on trial to prosecute the same. Thereupon the present plaintiff brought this suit against his wife, for separation of bed and board, on the ground of public defamation ; the defamation alleged, consisting in the allegations of defendant’s petition in the first suit.

Defendant answers by reiterating her charges of adultery; although she does not now claim a judgment of divorce, but only that plaintiff’s action be dismissed.

The plaintiff has not made out a case of public defamation, as contemplated by article 139 of the Civil Code,

The charge of adultery, preferred by the wife against the husband, to serve as a basis for a judgment of divorce, does not, of itself, amount to a defamation, upon the failure of the former to sustain the allegation by proof. If the accusation be not wanton or malicious, although unfounded in point of fact, it cannot, with propriety, he said that there was a public defamation.

We add, that we agree with the Judge of the District Court, that defendant has failed to prove the charge of adultery against her husband.

, Judgment affirmed, with costs.

Land, J., absent.


text:
    T. R. Price et al. v. Charles M. Emerson.
    A judgment of nonsuit rendered on motion of defendant’s counsel, when the- counsel for plaintiff declines to go into the case, is not such an abandonment of the demand as is contemplated hy Article 3485 of the Civil Code, and prescription is considered as interrupted during the pendency of the action.
    The absence of the commissioner’s signature to depositions taken under commission is a fatal defect.
    Where the defence against a promissory note was, that plaintiff was not the bona fide holder of the note, that it belonged to the endorser, and had been transferred to plaintiff for the purpose of depriving the defendant of a good defence which he had against the endorser, namely, that the note had been given without consideration, and merely for the accomodation of the endorser, who was also payee — Held: That if this plea be true, the endorser would bo liable to defendant for the reimbursement of whatever defendant was obliged to pay on the note ; that this eventual obligation towards defendant created on the part of the endorser a direct interest in the event of the suit, and that, at least until defendant released the endorser from liability over to himself, he could not bo allowed to testify in the cause.
    Defendant’s cause of action in such a case against the endorser would only date from the day of his condemnation to pay the noto.
    Appeal from the Second District Oourt of New Orleans, Morgan, J.

      Benjamin, Bradford & Finney, for plaintiff. Durant & Hornor and E. W. Huntington, for defendant and appellant.
   Buchanan, J.

This case was remanded last year upon a bill of exceptions to the rejection of evidence of plaintiffs. See 14 An. 141.

On the new trial, plaintiffs had judgment for two of the three notes sued upon. Defendant appeals.

The first question for consideration is, the plea of prescription.

The two notes in question were due, respectively, the 1st January 1847, and the 1st January 1848.

Citation was served in the present action on the 20th June 1855, — eight years, five months and twenty days after the maturity of the first, and seven years, five months and twenty days after the maturity of the second note.

But another suit had been previously brought against defendant upon these notes, by which, it is argued, prescription was interrupted. Citation was served in that suit the 15th November, 1851, and judgment of nonsuit was rendered therein on the 16th of April, 1855. The entry in the minutes, in relation to this judgment, is as follows : “ This cause came on this day for trial — M. Taylor, for plaintiff, T. J. Durant, for defendant and McHenry — -when counsel for plaintiff having appeared and declined to go into the case, and on motion of T. J. Durant, of counsel for defendant and McHenry, it is ordered, adjudged and decreed, that there be judgment as in case of nonsuit.”

On the authority of Wilson v. Marshall, 10 An. 327, and the cases therein cited, we agree with the District Judge that this was not such an abandonment of the plaintiff’s action as is contemplated by Article 3485 of the Civil Code. Prescription was therefore interrupted pending the said action; and the present suit was brought about two months after it ceased. The plea of prescription cannot avail defendant as to the two notes in question.

Defendant relies upon two bills of exception taken by him to the rejection of the depositions of John McHenry and Jesse McHenry, taken under commission.

The evidence of these witnesses was properly ruled out. As to the latter, {Jesse McHenry,) the signature of the commissioner is wanting to the return. This was a fatal defect of form.

John McHenry, the other witness, was the payee and endorser of the notes of defendant now sued on. He was objected to on the ground that the endorser is incompetent, by reason of interest, to invalidate the notes sued on.

The answer avers, that plaintiff is not the bona fide holder of these notes; that said notes belong to John McHenry and were transferred to plaintiffs for the purpose of depriving the defendant of a good defense which he has against said McHenry ; that said transfer was simulated. And the answer proceeds to aver, that this defense, which he would have against McHenry, consists in this : that the notes in question were given without consideration, and merely for the accommodation of said John McHenry.

If this plea be taken for true, it is very clear that McHenry would be liable to reimburse anything that defendant may be obliged to pay in consequence of making the notes which are now in suit. This eventual obligation towards defendant necessarily creates, on the part of the witness, a direct interest in the event of this suit, — an interest to secure the maker of the notes, the defendant, from the pursuit of the plaintiff. The plaintiff should, at least, have released the witness from liability over to himself, before he testified in the cause. It is argued by counsel for defendant, that John McHenry is without interest, because plaintiff’s action against him on these notes would be barred by prescription. This is a point which it would be unsafe to assume; for we cannot know from this record what interruptions of prescription as against McHenry may have intervened, to bar such a plea, if offered. At all events, it is certain that the action of defendant against McHenry, to be reimbursed what he may be condemned to pay upon these notes, (if made for the accommodation of McHenry,) is not barred; for defendant’s cause of action would date from the day of such condemnation.

For the reasons given, the judgment of the District Court is affirmed, with costs.


author: Voorhies, J.

text:
    J. C. Zunts v. Mrs. Courcelle et al.
    The title acquirod. by the vendor of property subsequent to tho time of the divestiture of bis interest inures to the beuefit of his vondoc.
    A salejrf property without registry is binding upon thoso claiming as doneos under a subsquent act of donation by tlie vendor.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Collins & Wooldridge, for plaintiff and appellant. H. D. Ogden, for defendants.
   Voorhies, J.

The object of this suit is to ascertain if the defendants have any title to a portion of the property purchased by the plaintiff at Sheriff sale,on execution against Mrs. Sidonia Moussier, and Miss Emma Cornen; and if they have such titles, to procure a partition.

I. It is conceded that, at one time Mrs. Coolidge and Mrs. Courcelle we're part owners as heirs of Jean Marie Cornen deceased, and of his deceased wife Marie G. Garel. And by purchase from Theodore Cornen, on the 6th J une, 1844, they ■acquired an additional interest in this property.

The question presented is, whether this additional interest was divested by the sale of the 12th February, 1846, by which these parties conveyed their rights as follows, to wit: “ all the hereditary portions, rights, title and interest, claim and demand of each of them the said Marie E. G. C. Cornen and Marie A. C. L. Cornen, wife of Geo. E. Coolidge, and unto them devolving as heirs of the said Jean M. Cornen and Marie G. Garel, their father and mother ; and further all the right, title and interest, which they have acquired jointly with the above named Pierre P. Cornen, Anne M. E. Cornen and Marie J. P. S. Cornen, wife of Gus-tave Moussier, from Mistress Marie E. V. Cornen, wife of Achille Sigur, of the Parish of Iberville, Mistress Marie Gracieuse Cornen, wife of Edward Sigur, of the Parish of St. Mary, and Frangois Theodore Cornen, of the Parish of Plaque-mine,’’ etc.

Mrs. Courcelle, and Mrs. Coolidge, therefore, sold the shares, which they owned as heirs of their deceased father and mother, and also the portion which they had purchased from Frangois Theodore Cornen. These parties, it is true, perfected their titles from the latter, only two years after the sale or project of the sale from which we have made the above quotation. But, having parted with their interests, the title, which they subsequently procured, inured to the benefit of their vendee.

II. The children of Mrs. Moussier claim by virtue of donations from Mrs. Achille Sigur, and of Mrs. Edward Sigur. On the 28th March, 1846, Mrs. Achille Sigur sold her interest to Pierre Paul Cornen, Miss Emma Cornen and Mrs. Moussier. The assignment purports to have been made for and in consideration of the sum of $350, which she acknowledged to have received in a promissory note subscribed by the said purchasers. This act was not signed by one of the vendees, Miss Emma Cornen; nor did she sign the note, which, it appears, remained some indefinite time in the hands of the notary.

This act was not recorded; whilst the subsequent donation of Mrs. Sigur to the minors, was admitted to registry.

It does not appear that the note of $350 was ever delivered to Mrs. Sigur, nor that she ever received from either of the parties its amount. But, as regards two of the vendees, the sale was complete, and, with or without registry, is as binding upon the donees as upon the donor. Aliter as to bona fide purchasers and creditors. O. 0. 2242, 2417, 2431.

Miss Emma Cornen never made herself a party to this sale or transfer, either by paying, or offering to pay, the price, or by any written stipulation aliunde. True she subsequently joined in mortgaging the property; but she did not, however, encumber specifically the share or interest in question. But this is not a question of confirmation or ratification ; for Miss Emma Cornen having been no party to the contract of sale, there was, as to her, no contract at all to ratify or confirm. C. 0. 2252.

The one third of the share of Mrs. Achille Sigur was never divested, and that portion passed to the donees by the act of donation.

Nor has the interest acquired by donation from Mrs. Edward Sigur ever b,ee$ divested.

It is contended for by the plaintiff, that the owners have, by their qcts and silence been instrumental in deceiving Mm as to the non existence of any title in them. An answer to this is that minors cannot be so estopped.

It is, therefore, ordered and decreed, that the judgment of the District Court, as regards 'Mrs. Coolidge and Mrs. Courcelk, be affirmed with costs.

It is further decreed, that the said judgment be reversed as regards the heirs and children of Gustave Moussier and Marie P. Sidonia Moussier, who are hereby recognized to be the owners of the property in question, in the following proportions, to wit: one third of one forty-eighth part thereof, being- the share of Mrs. Achille Sigur, — and also one forty-eighth portion, being the share of Mrs. Edward Sigur.

And it is further decreed, that this case be remanded for a partition, the plaintiff and appellee paying the costs of appeal.

Land, J. absent.


text:
    James M. Watson v. Robert R. Jones.
    Upon a motion to dismiss an appeal from a judgment rendered after answer filed,upon the ground of imperfection in the attestation of the record by the Clerk — Reid.: That in this form of appeal, the Clerk should certify unqualifiedly that the- transcript contains all the testimony adduced. If the Clerk cannot so certify, and there has been no statement of facts prepared, no bill of exceptions or special verdict taken, and no assignment of errors filed, the appeal must be dismissed,
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      C. A. BeFrance, for plaintiff. R. G. Harper, for defendant and appellant.
   Merrick, C. J.

Thére is a motion to dismiss the appeal in this case on two grounds.

It will be sufficient to notice only one of the grounds. The Clerk, in his attestation of the record, certifies, “ that the foregoing pages contain a full transcript of all the evidence adduced on the trial of said cause, as appears to me (him) of record.”

The answer contained a general denial, and the judgment purports to have been rendered upon proof; yet the transcript does not contain any evidence.

The case cannot be distinguished in principle from the case of Baham v. Livingston, II An. 604, where it was held in substance, in this form of appeal, that the Clerk should certify unqualifiedly, in conformity to Art. 896 C. P., that the transcript contains all the testimony adduced. If the Clerk cannot so certify, and there has been no statement of facts prepared, no bill of exception or special verdict taken, and no assignment of errors filed, the appeal must be dismissed. See also cases of Pargoud v. Pace, 11 An. 644, and Carpenter v. Reynolds, 3 An. 592.

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


text:
    Frank Pelham v. Steamboat Messenger, Captain and Owners.
    Under the Act of 1840, the mere fact of a slave being found on board of a boat without a written permission creates a presumption against the owners of the boat, that such slave was received with the intention of depriving his master of him or of transporting him out of the State, or from one part of the State to another ; and this presumption cannot be destroyed but on testimony of at least two witnesses not employed on board such vessel, and on corroborating circumstances.
    The requirement in this statute of 1840, that the witnesses called to rebut the presumption must bo such as are not employed on tho vessel, refers to the time when they are called to testify. The fact that they have at a period past been employed on the vessel, will be no objection to their testimony if it be shown that at the time they wore summoned to give their testimony they were bona fide engaged in some other employment.
    The exclusion of the citizen from giving evidence is somewhat opposed lo natural right, and ought not to be extended beyond the letter of the law.
    Appeal from the Fourth District Court of New Orleans, Price, 3.

      B. Eagan, for plaintiff and appellant. Lea & Marr, for defendant.
   Merrick, C. J.

This suit is brought to recover $1300, the value, and $500, the penalty, under the Act of 1840, for the loss of a slave named Baptiste.

Plaintiff alleges that defendants received and permitted to come on board said steamboat at this port, on or about the 11th of August, 1858, without the consent or permission of your petitioner, his slave boy, Baptiste, aged about 25 years”; that said steamboat was bound on a voyage to Memphis (Tenn.), and left New Orleans with the slave on board ; that said slave was found on board, and was lost or drowned from said steamboat while in the performance of said voyage.”

The defence to the action is, that the slave was hired to the boat, and was drowned, without any fault.of the officers of the boat.

Judgment was rendered for defendants, and plaintiff appeals.

The proof in the record is ample, that the slave with another was hired by the plaintiff himself to the steamboat.

But two of the witnesses who prove the hiring were employed on the boat when the slave was hired, but left the same before he was lost overboard, and were engaged in business elsewhere when their depositions were taken.

The Act of 1840 makes the mere fact of the slave being found on board without a written permission, a presumption against the owners of the boat, that such slave was received with the intention of depriving his master of him or of transporting him out of the State, or from one part of the State to another. It then declares, “And this presumption of law shall.not be destroyed but on testimony of at least two witnesses not employed on board said vessel, and on corroborating circumstances.”

■ Under this clause, the plaintiff, who reserved his bill of exception in the lower court, makes the point, that the witnesses were incompetent, because they were employed on the boat when the slave was received on board, and that their incompetency is absolute.

The absence of the witnesses from the city was sufficiently proved.

It will be observed, that the statute is speaking of the competency of witnesses, and we think it has reference to the time when they are called, or their testimony is taken as such. The exclusion of the citizen from giving evidence is somewhat against natural right, and ought not to be extended beyond the letter of the law.

If the witnesses be engaged bona fide in other employments when they are summoned or give testimony, as is proved in this case, we think they ought not to be deemed incompetent.

It is not important to consider the bill of exception taken to Edward J. Baker’s testimony. His evidence can be disregarded without prejudice to plaintiff’s case.

Judgment affirmed.


text:
    Alexina Morrison v. James White.
    Where a commission to take testimony in another State is directed to a particular commissioner, there is no necessity for proof of his official character in order to authenticate his return.
    Where the introduction in evidence of answers to interrogatories taken under commission out of the State is objected to, upon the ground that the certificate is illegal, the party objecting must set forth distinctly the illegalities complained of, otherwise the objection will not be noticed.
    Where a special commissioner is designated by the court to take testimony under a commission out of the State, the seal of office is not required to the authentication of his return.
    Where a commission to take testimony in another State is executed by an individual named in an agreement of the parties annexed to the commission, the individual thus designated is a special officer of tho court, and no proof of his official capacity is necessary.
    Where the interrogatories and cross interrogatories have been severally answered by each of the witnesses, it is not necessary that the return should show that they have been read to the witnesses.
    It is not necessary that the return should show by whom the answers of the witnesses were reduced to writing.
    Where, by an agreement entered into by the counsel on both sides, which, appears in the margin of a commission, a party has been named to take testimony, although he has not been named in the commission, his authority to execute the commission cannot he questioned.
    Where tho acknowledgment of an act of sale from another State was objected to as evidence, upon the ground that it did not appear from the act that it was executed and signed within the jurisdiction of the officer attesting it — Held : That the capacity of the officer to receive acknowledgments being admitted, it is not material that the act should show where it was executed and signed.
    The presumption of freedom arising from color must yield to proof of a servile origin.
    The law does not contemplate that any number of crosses between the negro and the white shall emancipate the offspring of the slave.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.
    F. H. Clack and W, T. Scott, for plaintiff. C. Roselius, and A. Ehillvp, for defendant and appellant. N. Commandeur, for Warrantor.
   Buchanan, J.

Plaintiff alleges in her petition, that she was born free, and of white parents; that she was kidnapped, and by stealth and gross fraud brought away from her home to the city of New Orleans, where she is held and claimed by defendant as a slave. She prayed for a decree recognizing her status as that of a free white person.

Defendant denies the truth of the allegations of petition, pleads that plaintiff is a slave, and that he purchased her, with full warranty of title, from one J. G. Haliburton, whom he calls in warranty.

The case was tried before a jury, who found a verdict for plaintiff. Defendant appeals.

Plaintiff offered no proof of her origin, but relies altogether upon speculative opinions of physicians and others, as to indications of a Caucasian extraction presented by her skin, hair, features, &c.

Defendant gave in evidence his title to plaintiff, being a private act of sale from J. G. Haliburton., of Pulaski County, State of Arkansas.

He also offered Haliburton’s title, and depositions of witnesses as to the origin of plaintiff; which were rejected, and are the subject of bills of exception, which we now proceed to consider.

Defendant offered the testimony of Benjamin F. Danley, Josiah M. Giles, and Benjamin F. Giles, taken under commission; whereupon, plaintiff by counsel objected :

1st. That there is no proof of the official character of the officer executing the commission.

2d. That the certificate is not such as is required by law.

3d. That the certificate or return contains no seal of the officer who executed the commissson.

-I. The commission is directed to “John E. Knight, Esq., Louisiana Commissioner in Little Rock, Arkansas.” It is executed in the city of Little Rock, county of Pulaski, State of Arkansas, by “ John E. Knight, the commissioner named in the annexed commission.” The proof of the official qualifications of the commissioner, thus specially designated by name in the commission, was unnecessary. Ilennen’s Digest, p. 584, and cases therein cited.

II. This objection is too indefinite to be noticed. ' It was the duty of the party objecting to have set forth distinctly the illegalities complained of.

III. The seal of office was not required to the authentication of the return of this officer, he being the special commissioner designated and appointed, by name, by the court, to take these depositions.

Defendant offered in evidence the depositions of Thomas Decrow and Elijah Decrow, taken under commission; to the admission of which the plaintiff made the following objections, which were sustained by the court:

1st. That there is no proof of the official capacity of the person purporting to execute the commission. .

2d. That there is nothing in the caption or elsewhere showing that the interrogatories and cross-interrogatories had been read to the witness.

3d. That there is nothing in the return or certificate showing by whom the answers of the witnesses were reduced to writing.

4th. There is no evidence showing that the witnesses signed the depositions in the presence of the officer who executed it.

5th. That there is no proper and legal certificate.

6th. That the commission was executed by a person not designated in the commission.

I; The commission was executed by an individual named in an agreement of parties annexed to the commission — who was, therefore, a special officer of the court.

II. The interrogatories and cross-interrogatories were severally answered by each witness.

ill. It is not required that the return should show this.

IY. This is substantially stated.

YI. This objection is frivolous. The commission is directed to “ any Judge, Justice of the Peace, or Louisiana Commissioner in the State of Texas; ” but in the margin of the commission is written “ Agreed that this commission be executed by Thomas H. Forrester, Notary Public of Calhoun County, Texas,” which agreement is signed by the counsel of both parties. And 'the commission was executed by Thomas H. Forrester, Notary Public of Calhoun County, Texas.

Defendant offered in evidence an act under private signature, purporting to be an act of sale of a slave named Jane Morrison, (whose identity with plaintiff is proved by other testimony in the record) from James C. Anthony to John G. Haliburton, acknowledged before a Justice of the Peace of the city of Little Rock, Pulaski County, Arkansas; authenticated by the Governor and Secretary of State of Arkansas, under the seal of that State. This evidence was ruled out upon the objection made by plaintiff, that it does not appear from the said act of sale that the same was executed and signed within the jurisdiction of the officer attesting the same.” We do not understand this objection to raise any question of the authority of the Justice of the Peace to receive acknowledgments of deeds; and this certificate purports simply, that the officer received such an acknowledgment. It states that James C. Anthony “ personally appeared ” before the magistrate at Little Rock, county of Pulaski, State of Arkansas, and acknowledged, &e. The place where the act of sale was executed and signed does not appear, nor is it material for the validity of the paper. The capacity of the officer who received the acknowledgment is proved and admitted, and the evidence should not have been rejected upon the objection made.

Defendant offered in evidence the deposition of Moses Morrison, taken under a commission directed to D. E. E. Braman, Clerk of the District Court of Mata-gorda, State of Texas, and executed by D. E. E. Braman, Clerk of the District Court of the county of Matagorda, State of Texas. This evidence was ruled out upon the following objections : j

1st. There is no legal proof of the official character of the commissioner.

2d. I-t does not appear by whom the answers were reduced to writing.

3d. The certificate does not contain the legal requisites.

These objections are identical with those already disposed of.

The same remarks apply to a bill of exceptions, taken by defendant, to the rejection of the deposition of A. J. Hutt, a witness examined under commission directed to James A. Hutchins, a Justice of the Peace in Littie Rock; Arkansas.

We are of opinion, that all the evidence specified in the above detailed bills of exception was improperly rejected. The said evidence has come up in the transcript, as attached to the bills of exception. We have examined it, and find full proof therein that the plaintiff was born a slave, the offspring of a mulatto woman slave, and that she passed, by a regular chain of conveyances,'from the possession of her original owner, the owner of her mother, to the defendant. The plaintiff is proved to be of fair complexion, blue eyes, and flaxen hair. But the presumption of freedom, arising from her color, is not a presumption juris et de jure. It must yield to proof of a servile origin. The Legislature has not seen fit to declare, that any number of crosses between the negro and the white shall emancipate the offspring of the slave; and it does not fall within the province of the judiciary to establish any such rule of property.

Plaintiff’s petition alleges that she was bom of white parents, and that she was kidnapped and stolen from her home, shortly previous to the institution of this suit, by the defendant. It is remarkable that she has not made the faintest approach toward establishing these allegations of her petition by proof. But as it is possible she may have evidence which her counsel deemed it unnecessary to introduce, all the evidence of origin on the other side having b’een ruled out, we ■will remand the cause, in order to give plaintiff an opportunity to rehut that evidence; which, unless rebutted, is regarded by us as conclusive against her.

It is, therefore, adjudged and decreed, that the judgment of the District Court, upon the verdict of the jury, be reversed; and that this cause be remanded, with instructions to the said court to receive the evidence offered by defendant, which is the subject of the several bills of exception above considered; and in other respects, to proceed according to law; the plaintiff and appellee to pay costs of appeal.


text:
    E. C. Lacour and Husband v. H. D. Lacour.
    A husband cannot compensate the debt duo by him to his wifo’s succession for tho return of property settled on the wife in dowry by the physician’s bill which he has paid for attendance during her last illness, although the husband, at the time of her death, was insolvent.
    Where, by the marriage contract, the wearing apparel of the wife is settled in dowry at an estimated value, the husband will owe the amount, on the dissolution of the marriage, at which it was estimated.
    The husband is entitled to compensate the claim of the wife’s heirs for her dowry, with the amount paid by him for her funeral expenses.
    Appeal from the District Court of the Parish of Pointe Coupée, McVea, J., presiding.

      T. J. <ft W. H. for and A. Provost;/, for defendant.
   Merrick, C. J.

This suit was brought to recover of the defendant a sum settled in dower by the marriage contract duly executed between the defendant and the deceased mother of the plaintiff. Since the institution of the suit, the plaintiff has departed this life, and her minor heir, through Auguste Lacour, her natural tutor, has been made a party by amendment to the petition.

Judgment was rendered in favor of the plaintiff for a portion of her demand only, and she appeals.

The tutor complains of the allowance to the defendant of a credit of $300, the half of the sum of six hundred dollars paid by the defendant to the physician who attended upon the deceased during her last illness. This sum of $300 appears to have been allowed by the lower court, on the ground that the defendant was at that time insolvent, and that the succession of the deceased was bound to sustain one-half of the charge.

The defendant, in Ms answer to the appeal, contends that he should be allowed the whole six hundred dollars.

We are of the opinion, on this point, that no part of the sum of $600 can be charged to the wife’s succession. The very object of settling property in dower is to secure its ultimate return to the wife at the dissolution of the marriage. The law gives her a mortgage and a privilege upon the property of the husband, to secure its return. C. C. 2355, 3158, 3221.

As this obligation on the part of the husband, to return the dotal property of the wife, is in general superior to other debts, how can it be postponed to any debt of the community paid by the husband, or how can it be compensated by such debt ?

It is correctly argued by plaintiffs’ counsel, that if the husband had died first, however, insolvent, the wife would have been relieved from the payment of the debts of the community, by renouncing the same. C. C. 2379. It must then follow, that her estate cannot be made responsible for these debts simply because she happens to die first, and thus occasions the dissolution of the community.

The appellant also contends, that the District Judge erred in not allowing interest on the dotal funds in defendant’s hands from the death of the wife, the original plaintiff’s mother, until the marriage of the said plaintiff. The testimony upon which the Judge based his conclusion, that the cost of the maintenance and education of the minor exceeded the interest at five per cent, upon her estate of $2,524, though not very positive, is sufficient to sustain the same. The services of the slave were, it seems, of the most trifling value.

The defendant prays to amend the judgment of the lower court in his favor, on the ground that the wearing apparel, &c., of the deceased, which was estimated in the marriage contract at $100, ought not to have been allowed the plaintiff, because it was used and worn out by the deceased.

It is true that the wearing apparel settled in dower must be supposed to be under the expectation that it will be worn out, still, the object is to oblige the husband to furnish the wife with the means to obtain the like apparel at the dissolution of the marriage. This very case is mentioned in Lex 10, Tit. 3, Lib. 23 Dig., where it is said, that it is commonly the interest of the intended husband, that there shall be no estimation made of the thing received in dower, in order not to incur the risk; particularly, where he receives animals or garments for the use of the wife; for, in the case where the wearing apparel has been estimated, it will happen that, after it is worn out by the- wife, the husband will still owe the amount at which it was estimated. See 0. 0. 2334.

The Judge of the lower court, therefore, did not err in refusing to allow the defendant a credit for this amount, among other things assumed by him in his marriage contract.

Defendant also contends, that one hundred and fifty dollars ought to be allowed as funeral expenses. We think, under the authority of the case^of the Succession of Dr. Ira Smith,,0 An. 112, this amount must be allowed defendant.

As we give the plaintiff the benefit of the objection to the item of three hundred dollars, and as we allow the defendant the additional credit of one hundred and fifty dollars, it is seen that the judgment must be increased to $2,524.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be so amended as to allow the plaintiff $2,524 as principal, instead of the sum of $2,374, as specified in the decree of the lower court, and that the said judgment so amended be affirmed, the defendant paying the costs of the appeal.

Land, J., absent.


author: Land, J.

text:
    Abraham. F. Rightor et al. v. A. S. Phelps.—Wm. P. Sunderland and J. Phelps, Garnishees.
    Proceedings in garnishment under the Act of the 20th March 1839, p. 166, are commenced by petition and interrogatories; and the property and effects in the possession of the garnishee belonging to the defendant in execution, can only be decreed to be levied or seized by the Sheriff from the date of the service of the interrogatories on such garnishee; and if the plaintiff in execution relies upon a seizure under his writ, prior to the commencement of his suit in garnishment he must show an actual seizure of the property in the manner prescribed by law ; otherwise such seizure will be of no avail to him. C. P. Arts. 651-654
    Appeal from the Sixth District Oourt of New Orleans, Howell, J.

      Whittaker <ft Fellows, for plaintiffs and appellants. Hayes & Adams, for defendants.
   Land, J.

A writ of fieri facias, issued in the suit entitled John Conway et als. v. A. S. Phelps, being in the hands of the sheriff, he served a notice of seizure under the writ, on the 13th of February, 1860, on William P. Sunderland and John Phelps; in which notice of seizure the sheriff declared that he seized in their hands, all the goods, chattels, lands, tenements, rights and credits belonging to the defendant, A. S. Phelps ; but no actual seizure of any property under the writ was made by him.

On the 15th of February, 1860, the plaintiffs in this suit, who were also plaintiffs in execution in the case of John Conway et als. v. A. S. Phelps, instituted proceedings in garnishment under the writ, by petition and interrogatories to W. P. Sunderland and John Phelps, as garnishees; and on the same day caused the petition and interrogatories to be served on them.

On the 14th of February, 1860, the day after the service of the notice of seizure, W. P. Sunderland and John Phelps parted with the possession and control of certain property and effects which they held for A. S, Phelps, the defendant in execution.

The garnishees answered the interrogatories propounded to them, and explicitly denied that any notice of seizure was served on them in the present suit in garnishment, on the 13th of February, 1860 ; and they further denied that they were either indebted to the defendant, or had in their hands, or under their control, any property, money or effects-belonging to him, at the time of the service of the interrogatories in this suit, with the exception of an article of small value in the possession of Sunderland.

The answers of the garnishees having been filed in court, the plaintiffs took a rule on W. P. Sunderland, to show cause why judgment should not be entered" against him for the sum of twenty-six thousand six hundred dollars, the amount of judgment against the defendant, remaining unpaid, and interest from the 13th of February, 1860, the date of the service of notice of seizure by the sheriff on him. The plaintiffs also took a rule on John Phelps, to show cause why judgment should not be rendered against him for the sum of three thousand four hundred and four dollars and twenty-five cents, with interest from the 13th of February, 1860, the date of the service of the notice of seizure on him by the sheriff.

The grounds on which the rules were taken against the garnishees, were substantially the same, and are as follows :

First, because tbeir answers to the interrogatories propounded, are evasive, and not responsive. Secondly, because it is not true that the garnishees had no service of notice of seizure in this case, except the service of interrogatories; they havmg received notice of seizure on the 13th of February, 1860, by personal service. And thirdly, because the garnishees, in their answers, acknowledge that they had in their hands, property and effects belonging to A. S. Phelps, the defendant in execution, on and before the 14th of February, 1860, at the time, and subsequent to the service of notice of seizure on them by the sheriff.

The answers of the garnishees to the interrogatories, are direct and positive, and the only question which arises upon the rules taken by the plaintiffs, is whether the notice of seizure served by the sheriff under the writ of execution, on the 13th of February, 1860, on W. P. Sunderland and John Phelps, operated a seizure of the property in their hands belonging to the defendant. If the notice itself did not in law operate a seizure of the property, the service of the notice was then a vain and useless thing, without any legal effect whatever.

The law requires the sheriff having in his hands a writ of fieri facias, to seize the property of the debtor to a sufficient amount to discharge the judgment, as well as interest and costs; and so soon as he shall have executed the writ, to give notice thereof in writing to the debtor, and to annex thereto a list of the property seized, which he shall deliver to him in person, or leave at his place of ordinary residence. C. P., Arts. 651-654. It is clear from these provisions of the law, that a seizure by the sheriff is an act which must precede his notice of seizure to the debtor; and that in point of fact, if there be no actual seizure by the sheriff, his notice of seizure is untrue in itself, and cannot have, under a writ of fieri facias, the effect of an actual seizure, but is, per se, a vain and useless thing.

From this view of the law of the case it follows, that the property and effects in the hands of W. P. Sunderland and John Phelps, belonging to the defendant in execution, were not seized by the sheriff under the writ on the 13th of February, 1860 ; and that the seizure in garnishment was not made until the 15th of the same month, on which day the petition and interrogatories were served on the garnishees.

A Proceedings in garnishment under the Act of the 20th of March, 1839, p. 166, commenced by petition and interrogatories, and the property and effects in thei.posses^jon of the garnishee belonging to the defendant in execution, can only decreed fo be levied or seized by the sheriff from the date of the service of the "..interrogatories on such garnishee ; and if the plaintiff in execution relies upon a seizure under his writ, prior to the commencement of his suit in garnishment he must shoyr an actual seizure of the property in the manner prescribed by law, otherwise such seizure will be of no avail to him.

Whether the garnishees could be made liable to the plaintiffs, for parting with the possession and control of the property belonging to the defendant in execution, between the dates of the service of notice of seizure, and of the interrogatories, is a question which cannot be considered under the pleadings in this case, and is one on which we express no opinion.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.


text:
    Dougherty Gause v. R. W. Bullard.—Thomas Foster, Intervenor.
    The presumption -which arises, under Article 2508 C. 0., from the appearance of a malady in a slave, within three days immediately subsequent to the sale, will give way to direct evidence or to opposite presumptions of a controlling character ; hut the vendor must make out more than a speculative and possible case — the opinion of a physician who never saw. the slave, as to the sudden appearance of the malady m most cases, and as to the probable e/Fecfc of the atmosphere, coupled with the apparent good health of the slavo on the day of the sale, is not sufficient to destroy the legal presumption created by this Article.
    Privileges are slricli juris, and can only exist by an express law creating them.
    Persons who have advanced money towards the purchase of slaves, or consignees or commission agents who have furnished funds for a like object, acquire no privilege thereby under Article 3214 of the Civil Code as amended. Nor do such advances per se create any privilege on slaves under our existing laws.
    The provisions of our own laws are to be alone consulted for the existence and enforcement of privileges.
    The effect of an Act passed in another State, to take effect in this, must be governed by our own

      Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Olenn & Chambers, for plaintiff. G. M. Morgan, for defendant Bullard, and T. J. <& A. G. Semmes, for intervenor, appellants.
   Duffel, J.

This is a redhibitory action; and the defendant, Bullard, and the intervenor, Foster, are appellants from the judgment of the District Court.

The evidence shows conclusively that the disease which caused the death of the slave nine days after the date of the sale, pneumonia, had manifested itself two days after the sale; thus creating the legal presumption that the germ of the malady was in the system before the transfer. C. C. 2508.

This presumption would necessarily give way to direct evidence, or to opposite presumptions of a controlling character; but the defence has failed to make out anything more than a speculative and possible case. The speculative opinion of the witness, a physician, who never saw the slave, as to the sudden appearance of the disease in most cases, and as to the probable effect of the atmosphere, coupled with the apparent good health of the slave on the day of the sale, were insuffi-. cient to destroy the legal presumption created by the above .Article of.ihe Code. Landry v. Peterson, 4 An. 96; Kock & McCall v. Slatter, 5 An. 739; Dohan v. Wilson, 14 An. 353; State v. Bailey, 4 An. 376; Dupré v. Desmaret, 5 An. 591 Roca v. Slawson, 5 An. 708.

The issue raised by the intervenor, who was in possession of the three slaves attached in this suit, is, that those slaves'were purchased in the State of Georgia, by and in the name of the defendant, Bullard, a citizen of Georgia, with funds' raised in Georgia, on the faith of a letter of credit executed by the intervenor, with the understanding that the slaves should, when brought, be consigned to him for sale on commission in New Orleans, and the net proceeds applied to the payment of the bills of exchange drawn on said letter of- credit; that he held those slaves under said agreement which had been entered into in the State of Georgia, and that slaves being chattels under the laws of that State, he had a lien on them which attaches in this State. .

Privileges are stricti juris, and can only exist by ah express law creating them. C. C. 3152. Shaw & Co. v. Grant et al., 13 An. 52.

Persons who have advanced money towards the purchase of slaves, or consignees and commission agents who have furnished funds for a like object, acquire no privilege thereby under the Article 3214 of the Oivil Code as amended; nor do such advances, per se, create any privilege on slaves under our existing laws. Cochran & Co. v. Walker et al., 10 An. 431.

It is perfectly immaterial whether, under the facts of this case, the intervenor could claim a privilege in the State of Georgia; for this court has, on more than one occasion, said that we are to look to the provisions of our own laws for the existence and enforcement of privileges. Lee v. His Creditors, 2 An. 600; Wickham v. Livingston et al., 11 An. 702; Swasey & Co. v. Steamer Montgomery, 12 An. 800.

Besides, the defendant and intervenor had themselves agreed that the slaves should be imported and sold in Louisiana, whence it follows that the law of the forum must rule. O. 0.10.

Judgment affirmed, with costs.