author: Jones, J.

text:
    Valentine St. Ceran v. J. A. Sherman et als.
    The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of gun, foot, horse and chariot racing. And as to such games, the Judgo may reject the demand, when the sum appears to him excessive.

      Held .- — That the Court a quo can not, ex officio, declare a bet on a horse race excessive on its face, without any proof indicating the pecuniary standing of the parties to the bet.
    APPEAL from the Fifth District Court of New Orleans,

      Beaumont, J. Geo. L. Bright, for appellants. Durant db Hornor, for appellee.
   Jones, J.

Valentine St. Ceran being a jirdgment creditor of J. A. Sherman for' upwards of two thousand dollars, caused an execution to be issued, upon which he based a garnishment against a third person, named L. Bernard, under the Act of 1839. The garnishee, in his answers to interrogatories, negatived them all, except the first, to which he answered no, except such rights as might result from a certain agreement in writing, made between W. B. Bogers and J. A. Sherman, a correct copy of which is hereto annexed and made part of these answers.

In compliance with said agreement, W. B. Bogers deposited with me $2,000 in currency; J. A. Sherman deposited with me eight half Spanish doubloons, representing $100, and sixty pieces of five-dollar Spanish gold coin, representing $600, and in currency $500, making $1,200 in all. The document referred to, is as follows, to wit :

“ Condition of a match race between W. B. Bogers and J. A. Sherman, to be run on the 15th day of June. Rogers is to run Beuby Rynders against any horse that I name, on the 20th of this month. He bets $5,000 against $2,000, one-fifth to be put up to-night, one-fifth on the 20th ; the horse to be named and the balance put up on the day of the race ; the race to be mile heats, and the horse that I name to carry the weight of a six-year-old horse, or upwards, if he is older ; the race otherwise to he to rule.

Rogers & Shebman.”

By consent of parties, the two first instalments on the above, say $2,000 on Sherman’s part, and $2,000 on the part of Bogers, were put up as forfeit ; the race to be run on the Fair Ground Course, the money to bo deposited in the hands of L. Bernard. Bogers and Sherman.

“In compliance with this agreement, I name Forget-me-not as the horse for the above named race.

J. A. Sherman.”

Upon these anwers of the garnishee, the plaintiff took a rule against him to show cause why judgment should not be rendered against him thereon. The garnishee denied the right of plaintiff to have judgment against him on these answers; and, moreover, pleaded that the money in his hands belonged to Bogers, and not to Sherman, and asked that Bogers be made a' party hereto.

Rogers, being notified, intervened, and claimed the money in the hands of the garnishee as belonging to him, having been won by him on the bet set forth in garnishee’s answer from said Sherman.

To this intervention plaintiff and Sherman were made parties defendant. St. Ceran pleaded that tho bet on the said horse race was immoral, illegal and excessive, and in fraud of the creditors of Sherman.

Sherman pleaded that said bet was made by him improvidently; that ho was insolvent, and prayed that the bet be annulled, and that the money deposited thereon by him as a forfeit be decreed to the benefit of his creditors. Upon the trial of the cause, full proof was adduced to show that the bet was made and won on the horse race, as alleged by garnishee in his answers, and as maintained by Rogers in his petition of intervention.

No proof was given under tjhese issues, by either party, to show the pecuniary circumstanses of Sherman, at tho time he made said bet. Nevertheless, the Court below felt it to be its duty, under Article 2952 C. C., to reject the claim of the intervenor and give judgment in favor of the attaching creditor and against the garnishee. As betting on a horse race is permitted by the Article above referred to, tho presumption is that a bet on the same is valid, until the contrary be shown. The lower Court conceived that it had a right, ex officio, to declare a bet excessive on its face without any proof indicating the pecuniary standing of tho parties to the bet. In this view of the case we cannot concur.

We thirds that the intervenor has made out a full claim to the money in the hands of the garnishee, and judgment must be rendered accordingly.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the rule of St. Ceran be dismissed, and that there be judgment in favor of R. N. Rogers, on hi’ etibou of intervention,' against L. Bernard, for the sum of twelve hundred dollars, deposited in his hands by J. A Sherman, St. Ceran paying costs of this proceeding in both Courts.


source: Caselaw Access Project

author: InsiiEV, J.

license: Public Domain

text:
    Succession of Thomas Hughes.
    APPEAL from the Second District Court of New Orleans,
    Bermudez, J. Emerson <& Ilunlinglon, for appellant. J. Q. Bradford, for appellee.
   InsiiEV, J.

On the 15th March, 1851, Henry Williams, junior, who had been the tutor of the minor children of Thomas Hughes, deceased, filed in the Seoond District Court of New Orleans, his final account of tutorship, which was opposed by Henry Williams, senior, the new tutor ; and from a judgment rendered by the Court on this opposition, Henry Williams, senior, has appealed.

Each of the items opposed was carefully examined by the Judge á quo, who has given, as we think, satisfactory and legal reasons, for maintaining or rejecting the particular items objected to.

The appellant has not pointed out any error in the judgment; nor has the appellee, who has prayed for an amendment of the judgment, been able, in his written points, to satisfy us that the Court below erred.

It is, therefore, ordered, adjudged and decreed that the judgment of the Court below be affirmed, thé costs of appeal to be paid by the appellant.


author: Howell, J.

text:
    C. J. Behrend v. Mrs. C. Riviere, Wife of R. A. Maurel.
    APPEAL from the Second District Court of New Orleans,

      Bermudez, J. M. M. Gohen, for appellee. G. LeGardeur, for appellant.
   Howell, J.

The defendant has appealed from an order of seizure and sale, issued upon a note and act of mortgage, in due form; the latter containing the pact de non alienando, and a recital of the endorsement by the payer, which is an authentic acknowledgment of the transfer.

The appellant has filed no brief, nor suggested any error in the proceedings.

The appeal seems to have been taken for delay.

Judgment affirmed, with costs.


text:
    Frank O. Taylor v. Samuel McConnell & Co,
    APPEAL from the Sixth District Court of New Orleans,

      JDuplantier, J. G. BoseKus, for appelloo. J. N. Lea, for appellant.
   Howell, J.

This is an action against the acceptors of a draft, to which there is a special defence set up, but no evidenee introduced in support thereof, although the case was twice tried in the lower Court.

No error iu the judgment is suggested in this Court, and we can discover no grounds of complaint on the part of the appellants. The judgment is fully sustained by the proof.

It is therefore ordered, that the judgment appealed from be affirmed, with costs.


author: Labauve, J.

text:
    State of Louisiana, ex rel. D. G. Duncan, et al. v. The Judge of the Twelfth Judicial District.
    Articles 398 and 387 of the Civil Codo must bo construed in connection.
    Article 387 O. C. oonfers on the Court full discretionary power in the appointment of administrators pro tempore.
    Article 398 C. O. loaves the Court no iurthor discretion aftor appoint ment of administrator pro tom* poro and lio bas ontored upon bis duties.
    The Court cannot rescind the appointment without good legal causo.
    APPLICATION for a Mandamus.

      T. S. Crawford, in propria persona.
   Labauve, J.

This is an application for a mandamus upon the Judge of the Twelfth Judicial District Court, in and for the Parish of Ouachita, to compel the said Judge to grant an appeal to this Court, from an order or judgment setting aside the appointment of a provisional administrator to Mrs. Ann M. Taylor, defendant, in a case of interdiction.

The petition states, in substance, that the relators, on the 13th January, 1866, filed a petition in said Court of Ouachita, alleging various facts going to show incapacityin said Mrs. Taylor to administer her estate, and consequently, praying for her interdiction according to law, and for tho appointment, in the meantime, of an administrator pro tempore. That, thereupon, on the 19th January, 1866, the said Judge appointed the relator, D. G. Duncan, as administrator, who gave security as required by the order. That, pursuant to said order, the relator assumed possession of the movable and immovable property.

That the application, for interdiction of said Mrs. Taylor came on for trial during the last term of said Court, and was partially tried, but for want of time was continued until next term. That, on the eve of the adjournment of said Court, the said Judge, without being moved thereto by any party, and of his own motion, rescinded his said order appointing a temporary administrator. That relator applied to said Judge for an appeal, suspensive and devolutive, to this Court, from said judgment. That the said Judge refused the said appeal.

The relators pray for a rule nisi, requiring the said Judge to show cause why a joeremptory writ of mandamus should not issue.

The Judge, iu answer to the rule, states, in substance, that at April term of Court; the case came on for trial on the 17th, and was continued until the evening of the 20th, which was the last day of the term, the plaintiffs having consumed four days of Court in introducing their evidence; and, the plaintiffs having closed their evidence, late in the evening of the last day of the term, he (the Judge) was fully satisfied from the evidence introduced, that the order granted in chambers, on the ex parte showing of plaintiffs, had been granted iu error, and that there was no sufficient cause for malting the appointment or continuing the office of administrator pro tempore.

That, by law, the making and revoking of said order was entirely within his discretion; and that he refused the appeal, believing that it was not such a judgment as authorized an appeal.

Wo are of the opinion that the Judge erred in refusing this appeal. It is true that the Article 389 of the Civil Code gave him, at first, the exercise of a sound discretion, and having thought proper to make the appointment, and put the property in possession of an administrator, pro tempore, ho could not rescind the appointment without good and legal cause, which might be the caso, as the Judge says that it is, after hearing the evidence, that he became fully satisfied that the appointment was made in error.

It seems that Article 398 of the Civil Code leaves no further discretion to the Judge, after having made the provisional appointment. Under Article 387 Civil Code, both Articles must be taken in connection.

Lot a writ of peremptory mandamus issue, directed to the Judge of the 12th Judicial District, and commanding him to grant the suspensive appeal prayed for.


author: Hyman, O. J.

text:
    Homer College v. Tillinghart Vaughn.
    On Motion to. Dismiss.
    A. slight misstatement of the name of a Corporation, in talcing an appeal from a judgment in its favor, if tlie alteration or misstatomeno is not of such a character as to mislead, is not a sufficient cause to dismiss on appeal.
    A PPEAL from the District Court, Parish of Claiborne, Watldns, J.
   Hyman, O. J.

Plaintiff has moved to dismiss the appeal taken by defendant, because the appeal bond given by defendant was given in favor of “Homer College,” and not in favor of “ The President and Board of Trustees of Homer College.”

Homer College is the name given to plaintiff by the Legislature, in the caption of the act of its incorporation. See act entitled “An act to incorporate Homer College, in the Parish of Claiborne,” approved March 9th, 1855.

An appeal bond given in favor of appellee, and in conformity, in other respects, with Article 579 of the Code of Practice, is sufficient.

A slight alteration in the name of a corporation, in taking an appeal from a judgment in its favor — such an alteration as could not mislead' — would not be a cause for dismissing the appeal. C. C. 423. 12 La. R.

444. 19 La. E. 365. 2 An. 359.

Let the motion to dismiss be overruled.


text:
    Homer College v. Wm. C. Copes.
    A PPEAL from the District Court of the Parish of Claiborne, Watldns, J.
   Hyman, O. J.

A like motion was made to dismiss the appeal taken in this case as was made in the case of Homer College v. Tillinghart Vaughn.

For the reasons given by the Coart in that case, lot the motion to dismiss the appeal be overruled.


text:
    William Sanded v. Emmet George.—The Same v. The Same.
    A judgment from which there is a suspensive appeal to the Supreme Court cannot be pleaded in compensation ; but it is otherwise if the appeal is devolutive.
    In all cases, where the defendant resides out of the State, the plaintiff is entitled to an attachment; the law makes no distinction.
    APPEAL from the District Court, Parish of Morehouse,

      Crawford, J. Todd <® Brigham, for appellant. B. C. Morgan, for appellee.
    The facts are stated in the opinion of the Court.
   Labauve, J.

These two cases were consolidated, and tried together below.

The plaintiff’s claim is founded on two mortgage notes, dated 20th February, 1860, given for the purchase of a tract of land, in favor of Archibald McD. Reiley. The defendant being a non-resident, the plaintiff obtained an attachment. The defendant moved to dissolve the attachment, on the ground that the plaintiff had a special mortgage on the land to secure the notes, and that the attachment was unnecessary. In all cases, where the defendant resides out of the State, the plaintiff is entitled to an attachment; the law makes no distinction. C. P. Art. 210. The writ properly issued.

On the merits, the defendant answered by a general denial, but admitted his signature to the notes. Afterwards, in a supplemental answer, he pleaded in compensation a judgment rendered in the case of J. B. Melson v. Wm. Sandel, decreeing the said ¥m. Sandel to pay the said J. B. Melson the sum of $1,921 50, with five per cent, interest from 16th June, 1866 ; all 3ging that he was the owner of said judgment by purchase from said J. B. Melson, the judgment creditor, under a transfer made June 18th, 1866.'

The District Court, after having heard the evidence, allowed plaintiff’s demand, also defendant’s plea in compensation, and gave jxrdgment for plaintiff against the defendant, for the balance of $1,126 82.

The plaintiff appealed.

The transfer and indorsement of the notes by Archibald McD. Reiley to the plaintiff, are contested.

The note first due was endorsed by an agent of the payee, who, it is shown, afterwards approved and ratified this endorsement. The note subsequently due, is held by plaintiff under a letter signed by said payee, of the following tenor :

“Parish of East Feliciana, La., January, 1865.

“ Samuel W. Reiley :

“Dear Sir : You will please deliver to Dr. Wm. Sandel the note which I sent you for collection, against Emmet George.

“ The note is for-dollars, besides interest, and is secured by mort-

gage on the land which I sold to George. This note and the one which Dr. Sandel holds, are the only two notes remaining unpaid. I have sold Dr. Sandel my note, and it is now his property, and you will deliver the same to him, and if said note is not legally endorsed, I hereby bind my•self to legally endorse. the same.

(Signed) Aeoh. McD. Reilev.”

We are of the opinion that this is a sufficient proof of the transfer, vesting in the plaintiff the ownership to the note.

On the trial of the case below, the plaintiff objected to the introduction of the transfer of the judgment to defendant, as pleaded in compensation, on the grounds :

1. That the judgment mentioned hr said instrument, offered in evidence, was on appeal to the Supreme Court, and was a litigious right which could not be pleaded in compensation to the notes sued on.

2. That the defendant must be the owner of the judgment; and it was denied that he was the owner of the judgment.

3. That the instrument offered was the mere declaration of Me' son, who was not a party to these suits, and not made under oath, and u as therefore inadmissible as testimony in the cases.

The Oourt overruled the objections, and admitted the document. We are of the opinion that the Court decided correctly.

This document, on its face, purports to be a full transfer of said judgment by the judgment creditor, J. B. Melson, and for value received, to Emmet George, by his agent and attorney in fact, A. Y. Gardner. As regards the judgment debtor, this transfer is certainly binding on the transferrer, and is a sufficient authority in the transferree to demand of the plaintiff the payment of that judgment and to plead compensation.

But the bill of exceptions does not inform us whether the appeal taken from that judgment is suspensive or devolutive. In the first contingency, it could not be pleaded in compensation, it being considered as a debt not yet due and demandable. In the second contingency, it could be pleaded in compensation — the judgment being executory and demandable. Kinion v. Hill, 12 R. 376. Benton v. Roberts, 2 An. 243.

We are of the opinion that justice requires the remanding of the case. Article 906, C. P.

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


author: Taíiaeerbo, J.

text:
    State v. Joseph C. Gordon et al.
    ■When the indictments in these cases were presented, the Oourfc made tho following order :
    “ In this case it is ordered that the accused, when arrested, be allowed to give bond and security in the sum of one thousand dollars, and that the Sheriff be authorized to talce and approvo said bond.”
    Held:-That this ordor conferred on the Clerk authority to issue a bench warrant for the arrest of the accused, and also empowered tho Sheriff to take and approvo the bail bonds.
    After an order for an arrest, in a criminal proceeding, has been made, no additional order, specially directing the Clerk to issue a bench warrant, is necessary.
    The issuing of a bench warrant is a mere ministerial act, for the performance of which it is not necessary that the Clerk should possess judicial powers, conferred on him by law or delegated to him by the Court.
    Where on© party relies on and offers a portion of a record as ovidonce, the adverso party has the right to produce the whole of the record in evidenco.
    On a motion to enter up judgment against the principals and sureties on a bail bond, it is sufficient to assign as a reason for judgment that the bond was called, and tho accused failed to appear in compliance therewith.
    APPEAL from the District Court, Parish of Morehouse,

      Oraw/ord, J. Todd & Bingham, and Robert J. Caldwell, for appellants. R. W, Jemison, District Attorney, Twelfth Judicial District, for State.
    The facts are stated in the opinion of the Court.
   Taíiaeerbo, J.

At the October Term, 1865, of the Twelfth District Court, sitting in and for the Parish of Morehouse, an indictment for larceny was found against the defendant.

The points presented in this case being identical with those in the cases of the State v. J. R. Johnson, and the State v. John E. Barker and John Herron, also on appeal at this term of tho Court, from the Parish of More-house, tho three cases were consolidated and tried together.

The defendants in these three cases, with the exception of Barker, were arrested, and gave bonds with sureties for their appearance at the ensuing term of the Morehouse Court, to answer the charges preferred against them. Failing to appear at the following term of the Court, a decree of forfeiture of the bonds was entered upon the minutes of the Court, and a judgment in solido was rendered in each case against the principals and their sureties, for the amounts expressed in the bonds.

After the entries upon the minutes, reciting the call at the Court-house door, of the principals for their appearance, and of the sureties to produce the persons of their principals; and after the orders were made and entered, declaring the forfeiture of the bonds ; but, as it seems, before final judgments were rendered, a rule was taken upon the District Attorney pro tern., by counsel for the sureties, to show cause why the decree of forfeiture of the bonds should not be set aside. In support of the rule, the counsel state the following grounds :

1. That there was no judicial order of the Court, authorizing bench warrants to issue by the clerk, for the arrest of the accused parties ; and, in issuing the bench warrants, the clerk exercised a judicial power not vested in him by law, and that no order, delegating such power to the clerk, appears on the minutes of the Oourt; and therefore the bonds are void, and the sureties are not bound.

2. That the District Attorney offered no proof that the accused failed to appear; neither did he offer evidence that the sureties failed to produce the bodies of their.principals ; and, if the warrants were properly and legally issued, the District Attorney did not prove by them that the accused had ever been arrested and released on bond. That the warrants did not command the sheriff to take the bonds ; that they did not fix the amounts of the bonds, nor direct that the accused should furnish security.

The rules taken in these eases were discharged, and final judgments rendered against the parties.

The defendants appealed.

It will be more in order to consider, in the first place, the objections set up under the second head of defendants’ rule to show cause.

That all the necessary acts preliminary to the rendition of the order declaring the forfeiture of the bonds, were‘performed, we are justified in concluding, under the rule omnia praesumuntur rite esse acta. This presumption the defendants aimed to rebut by evidence. On the trial of the rule they introduced the clerk of the Oourt as a witness. He testifies “ that there is no other order on the minutes of this Oourt previous to the arrest of the accused, except the order made at the presenting of the indiotmment, on the 21st of October, 1865, and on page 277 of minute book D.” It appears from the note of evidence taken on the trial of the rule, that defendants introduced in evidence the minutes of the Court, found on page 277 of minute book D. We find nothing in the transcript indicated as copies of minutes found on the book and page named. We do find, however, an order, which, from its proximity in the record to the indictment, we infer is the one pointed to by the clerk in his testimony. To this order we shall presently refer. The clerk testified that he had no recollection whether or not, at the time the accused parties were called out on their bonds, the District Attorney offered any evidence. He stated that no note of evidence was taken down. He said that he did not know whether or not the bail bonds were offered in evidence. He said they were not filed as evide e at the time the forfeiture was declared. He makes the same statement in regard to the warrant and sheriff’s return. This is all the testimony of the clerk bearing upon the point, as to whether sufficient evidence had been adduced to authorize the decree of forfeiture, and we think it insufficient to rebut the presumption that, prior to and at the time the parties were called on their bonds, the proper proceedings were had. It might well be, for all that the clerk testifies, that all the papers he was interrogated about passed under the eye of the judge, if they were not filed as evidence and no note made of their presentation. It is a fair inference, from the clerk’s evidence, that bonds were on. file in the Court, although he says they were not filed as' evidence at the time the order was rendered, decreeing the bonds forfeited.

This Court held, in the case of the State v. Gossin, 13 L. 97, that, “ on a motion to enter up judgment against the principal and sureties, it is sufficient to assign as reasons for judgment that the bond was called, and the accused failed to appear in compliance therewith.

Coming now to the order, we find it in these words :

“In this case it is ordered that the accused, when arrested, be'allowed to give bond and security in the sum of one thousand dollars, and that the sheriff be authorized to take and approve said bond.”

We recognize it as a sound rule that, if by a fair interpretation of a written instrument, we can give it effect, we should do so rather than render it nugatory. Magis res valeat quampereat. Construing that part of the order in question which is not full and explicit, in connection with and in reference to the other parts of the same act that are clear, definite, and in regard to the meaning of which we cannot be mistaken, we think that we come rightly to the conclusion that the order confers authority for the issuing of the warrant, for its execution and for the taking the recognizances of the accused parties.

But, in connection with the defendants’ objection, under their first head, that no judicial order of the Court was rendered, authorizing a bench warrant to issue by the clerk for the arrest of the accused parties, they urge that there was no authorization to the clerk to issue the warrant. That, in issuing the bench warrant, the clerk exercised judicial power not vested in him by law, and that no order delegating such power to the clerk appears on the minutes of the Court.

We regard the issuing of the bench warrant as a mere ministerial act, for the performance of which it is not necessary that the clerk should possess judicial powers, conferred upon him by law or delegated to him by the Judge. He is an officer of the Court, the register of its proceedings, the custodian of its reoords, and his functions necessarily render him cognizant of all the judicial acts of the Court. The issuing of a bench warrant to arrest an accused party is not his act per se, but rather the act of the Court, performed by his ministry and agency. See C. P. Article 773, i 12.

An order for an arrest in a criminal proceeding being rendered, no additional order, specially directing the clerk to issue the warrant, seems necessary.

On the trial of the rule, the District Attorney offered in evidence the indictment, warrant, bond and sheriff’s return. This was objected to by the plaintiffs in the rule, for the reason that one of the points set forth in the rule was that the judgment complained of was rendered without any evidence, and that the evidence offered on the trial of the rule and objected to, was an attempt to supply an omission to offer evidence before the judgment was rendered.

This objection was overruled and a bill of exceptions taken.

We find it noted by the Judge, in the bill of exceptions, that the evidence was admitted on the ground that the plaintiffs in the rule had introduced the bond in evidence, and regarding it as part of the record, it was allowed to be read on the trial of the rule. We think the objection was properly overruled. 11 An. 23. 8 An. 490. 12 An. 688. 13 An. 298. 14 An. 783.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, the appellants to pay the costs of this appeal.


author: Taliaferro, J.

text:
    The State v. John E. Barker and John Herron.
   Taliaferro, J.

In this case, for the reasons assigned in the opinion of the Court, in the case of the State v. Joseph C. Gordon, it is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, the appellant paying the costs of this appeal.


text:
    The State v. James R. Johnson.
   Taliaferro, J.

In this ease, for the reasons assigned in the opinion of the Court, in the case of the State v. Joseph C. Gordon, it is ordered,- 'adjudged and decreed, that the judgment of the District Court be affirmed, the appellant paying the costs of this appeal.


author: Labadve, J.

text:
    James B. Melson v. William Sandel.
    On Motion to Dismiss.
    A motion to dismiss an appeal, which is prematurely died, will be overruled.
    A PPEAL-from the District Court, Parish of Morehouse, Crawford, J.
   Labadve, J.

The plaintiff and appellee has filed a motion to -dismiss this appeal, on the grounds:

1. There was no testimony taken down by the clerk on trial of this case below, he not having been requested to do so by either party.

2. Neither the appellant nor his advocate, either before or after the appeal was taken, required the adverse party or his advocate to draw a statement of facts, and no such statement of facts was drawn.

3. No statement of facts, at the request of either party, was made out by the Court.

This motion was filed on the 17th July, and the appeal was made returnable on the second Monday, and filed the 11th of the same month. But the appellant filed in time, on the 18th July, 1866, an assignment of errors of law appearing on the face of thq record. Code of Practice, Article 897.

The motion, being prematurely filed, must be overruled.

The motion to dismiss is overruled.


author: Labauvb, J.

text:
    Thomas W. Williams, Administrator, v. Boozeman et al.
    To entibié the defendant, in an action on a promissory note, to a trial by jury, the affidavit must comply strictly with tho requirements of the statute.
    It is no defence to an action on a promissory note, that the amount named in the note was made larger than the real cash amount due on account of expected payment in Confederate money or depreciated currency.
    APPEAL from the District Court, Parish of Morehouse,

      Oravford, J. J. G. Morgan, for appellant. Newton <& Hall, for appellee.
    The facts are stated in the opinion of the Court.
   Labauvb, J.

The plaintiff claims of the defendants in solido $645, with eight per cent, interest from 26th of October, 1863, upon a note of hand, dated 26th October, 1863.

Tho defence is that the note was given' in error, to be paid in Confederate States notes, for a four-horse wagon, sold at tho sale of the succession property of P. F. Epps, and to be paid in twelve months, in the currency of the country, which was that of' Confederate money. That, when the note became due, defendant offered to pay it in Confederate money, or by giving its value in cotton, which was refused. That, when said note was given, Confederate money was not worth more than ten cents to the dollar, in gold or Federal currency. That the wagon was worth (when new) one hundred dollars, and at the time of the sale was worth a great deal less. That said wagon was worth fifty dollars at the time of the sale. He prays that plaintiff’s demand be reduced, and that, said sum of fifty dollars be the judgment of the Court, and for a trial by jury.

The Court, after having heard the evidence, gave judgment for plaintiff, and the defendants appealed.

The defendant made an affidavit that the facts set forth inthe answer .were true, to the best of his knowledge and belief, .and that he believed it essential that the case should be tried by a jury, in order to secure his rights.

The Court refused the trial by jury, and the defendants excepted.

We are of the opinion that the Court did not err. The affidavit is not as required by law. The party did not swear that Tie expected to prove that the note had been obtained through error. Revised Statutes, p. 98, Art. 43.-The bill of exceptions also informs us that the jury was prayed for “by the amended answer, after the jury had been discharged, and that the original answer was filed before their discharge.

The defendants offered, on-trial, to prove that Confederate-money was the general currency of the country at the time of making said note ; that it formed the basis or consideration of contracts, and that, compared with gold or Federal currency, Confederate money was greatly depreciated, and that, in consequence of its being the general currency, property of every description was sold at extravagant prices, etc.

Plaintiff objected, on the grounds :

1. That parties are presumed to contract with reference to the law, and not to the general currency of the country.

2. That it is an attempt to prove by parol a contract existing between the parties in writing, and in evidence in' the case.

3. That proof of the general currency of the country was incompetent to establish in what kind of money the note was to be paid.

The Court sustained the objections and rejected the testimony. It is clear that the Court decided correctly. It is presumed that the parties contemplated that the note, when due, should be paid in legal currency.

The defendants, in their brief, have raised many objections to the probate sale of the wagon, on account of incompeteney and incapacity on the part of the officers of the Court, and consequent illegalities in the proceedings, resulting from the fact that those officers acted and the proceedings took place during the existence of the so-called Confederate States Government.

We have passed these questions unnoticed, as they were not raised by the pleadings. We are satisfied that our learned brother below decided the ease^eorrectly.

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


text:
    Thomas W. Blanks & Co. v. The Corporation of Bastrop.—The Same v. The Same.
    The provision in the Charter of the Corporation of Bastrop, which limits the power of the Corporation to assess taxes on property, only restricts the power to levy taxes on assessable property, and does not restrict or interfere with the right to impose a tax on trades or occupations, and licenses, and thereby increase the revenues of the Corporation above the amount limited in its Charter.
    APPEAL from the District Court, Parish of Morehouse,

      Crawford, J. B. C. Morgan, for appellant. 8. G. Parsons, for appellees.
    The facts are stated in the opinion of the Court.
   Labauve, J.

These two cases were consolidated and tried together below.

The plaintiffs claim of the defendant, in these two cases, the aggregate amount of $825, as paid by them in error, to the said town, for licenses for keeping a retail drinking-house and billiard table, for the years 1859 and 1860.

The cause of action alleged is, that the said corporation had no legal, authority to impose such a tax upon keepers of drinking-houses and billiard tables, in granting licenses for that occupation, and that said corporation was prohibited by law from assessing and collecting by taxation a greater revenue than $1,000, annually, and that said amount has be.en greatly exceeded for the year commencing 7th June, 1860; and finally, that the money having been paid without any obligation on the part of plaintiffs, should be reimbursed and paid back to them by said corporation.

The District Court, after hearing the evidence, gave judgment for plaintiff, and the defendant appealed.

By the original charter of incorporation, the said corporation had, among other powers, the right to raise money by taxation to an amount not exceeding five hundred dollars per annum, for the use of said,corporation. Acts of 1852, No. 74.

In a supplemental act to said charter, we find the following section :

“ Sec. 2. That the Mayor and Trustees of the town of Bastrop shall have the power of assessing and collecting a tax, for the use of said town, upon the various objects of taxation upon which the State levies a tax ; provided the amount so assessed and collected does not exceed $1,000 for each year.” Acts of 1853, No. 216.

By another amendment, passed in 1860, No. 150, the said town was empowered to assess such an amount Of taxes as they may deem proper, not to exceed, the sum of $1,500 per annum, and to be collected in the usual manner.

By the first section of the act concerning the licensing of drinking-houses and the sale of intoxicating liquors in this State, towns and cities have the exclusive power to make such laws and such regulations, for the sale, or prohibition of the sale, of intoxicating liquors, as they may deem advisable, and to grant or withholdlicenses from drinking-houses and shops within the limits of any city or town,' as a majority of the legal voters of any city or town may determine by ballot; and the said ballot shall be taken annually. Acts of 185á, No. 221,

The plaintiffs admit that a majority of the legal voters of said town authorized the issuing of the license to them, but they allege and contend that the tax for the same exceeded the amount that the town was authorized to levy by taxation.

We are of the opinion that the limiting of the amount which the said town is authorized to levy by taxation, refers to property, and not to avocations, occupations and trades, for which a tax might be imposed and licenses granted.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered and decreed, that there be a judgment' in favor of the defendants, and that plaintiffs pay costs in both Courts.


author: Labattve, J.

text:
    Emmet George v. William Sandel.
    A principal is bound by tbe acts of his agent, made with third persons, after the revocation of tho agent’s power, unless it appear that the parties with whom the agent deals had notice of tho revocation of the agent’s authority and were not acting in good faith.
    APPEAL from the District Court, Parish of Morehouse,
    Crawford, J. Todd & Brigham, for appellant. B. C. Morgan, for appellee.
    This case was tried by jury in the District Court.
    The facts are stated in the opinion of the Court.
   Labattve, J.

The plaintiff claims of the defendant the plantation and premises described in the petition, and the sum of $1,000 as damages, and the further sum of $1,200 for the rent of the land.

The defendant first appeared by an exception, which was partly overruled, and the other part referred to the merits.

On the merits, the defendant answered by a general denial, and further' pleaded that, at the time of the filing- of this suit, and prior thereto, he was in possession of the premises described in the petition, by virtue of a contract of lease entered into by defendant with the said George, through his duly authorized agent, Daniel S. Beauchamp, under which lease he was still in possession of the property for the present year, 1866, etc.

Upon these issues, the parties went to trial before a jury; who gave a verdict that William Sandel retain possession until 1st January, 1867, and reap the benefit of the growing crop, and will be indebted, at that time, to plaintiff in the sum of one thousand dollars, as rent and damages.

The Court having rendered judgment in accordance with said verdict, both parties appealed.

The principal question involved in this case is, whether Daniel Beau-champ had power and authority, as agent of plaintiff, to rent the land to defendant.

On the 5th of October, 1865, the plaintiff wrote to D. Beauchamp, requesting him to attend to several matters for him, and, in the letter, he says : Please rent my place for the year 1866 as well as you can; I will ratify anything you do.

On the 22d of December, 1865, Daniel Beauchamp, acting as agent for plaintiff, rented the place in question to the defendant, for the year 1866, the lessee agreeing to pay four dollars per acre; the agreement was in writing, and in duplicate.

Beauchamp, the alleged agent, testified that the date shown on the face of it, was the date of the contract, and that the defendant took possession of said place about the first of January of the present year, 1866.

Plaintiff, on the first of January, 1866, by a regular act passed before a competent officer, in Texas (where the plaintiff was at the time), made and constituted A. V. Gardner, of Dallas County, Alabama, his lawful agent to act for him in the State of Louisiana.

It is contended by plaintiff that the said Beauchamp had declined and refused the mandate, and had, for that purpose, written to the plaintiff, .requesting him to appoint some one else ; but, the very fact that he acted under said mandate, in renting the land to defendant, was a tacit acceptance. C.-C. Art. 2958. .

It is also contended that the plaintiff had revoked his power of attorney to Beauchamp, by appointing as such, Gardner, on the 1st of January, 1866, and that Beauchamp had no authority to act any more.

To affect the defendant, it was necessary that he should have had knowledge or notice that Beauchamp had refused the agency, or that the plaintiff had revoked his power conferred unto his said agent, Beauchamp; there is no such knowledge or notice proved in the record; the power of attorney being in the possession of the agent, it is presumed that the defendant acted in good faith until the contrary be proven; besides, the pretended revoking power was granted on 1st of January, 1866, and the lease entered into on the 22d December, 1865. C. C., Articles 2997, 2998.

A mass of testimony has been introduced, tending to show that Beau-champ had not acted faithfully, but this imputation cannot affect the defendant, in the absence of proof that there was fraud or collusion on his part, in the transaction; plaintiff must blame himself if he has selected an unfaithful agent; his recourse is against him. Civil Code, Art. 2972.

We are of the opinion that plaintiff is bound by the lease entered into by his agent, Beauchamp, and has no right of action at this time.

It is therefore ordered and decreed, that the verdict of the jury and the judgment of the District Court thereupon be set aside, annulled and avoided. It is further ordered and decreed; that judgment be rendered against the plaintiff and in favor of the defendant, and that plaintiff pay costs in both Courts.


author: TaiíIAeerbo, J.

text:
    George W. Branner et al. v. M. C. Hardy, Sheriff, et al.
    A mortgage is in its nature indivisible, and prevails over every part of the immovable subjected to it; and the mortgaged premises must be sold to satisfy tho whole debt and not a part thereof.
    Where a seizing creditor only sues for such installments of a debt, secured by mortgage, as are duo, the property mortgaged must be sold for the whole debt, on such terms of credit as are granted by the original mortgage.
    The purchaser of mortgaged property at Sheriff’s sale is personally boundfor the surplus of tho adjudication, and holds the surplus subject to the claim of inferior mortgage creditors, who have for their security a special mortgage of the property sold.'
    Where the immovable property of a Railroad Corporation is sold, at the instance and suit of the owner of a mortgage bond of the corporation, the interest coupons of which are due, the purchaser at Sheriff’s sale must apply the surplus to the payment pro rata of all the matured interest coupons of other bonds of the same grade as the one upon which the seizuve and sale was made, which are presented and demanded ; if he refuses, it is the duty of tho Sheriff to re-offer the property for sale tho same day.
    APPEAL from the District Court, Parish of Ouachita,

      Orawford, J. C. M. Conrad & Sons, and R. W. <& B. Richardson, for appellant. X. & B. Bay, Xno. T. Ludling, S. L. Slack, and W. X. Q. Baker, F. P. Stubbs, for appellees.
    The facts are stated in the opinion of the Court.
   TaiíIAeerbo, J.

By an act of the Legislature of the State of Louisiana, approved on the 11th day of March, A. D. 1852, the Vicksburg, Shreveport and Texas Bailroad Company was incorporated, and by the act of incorporation invested with the power “to borrow from time to time such sums of money as may be required for the construction of the road, over and above the amount received from subscriptions to its capital stock ; provided, that the amounts borrowed do not exceed four millions of dollars; and said president and directors be, and are hereby authorized to secure said loans by mortgaging the property of the company, in whole or in part, as they shall deem expedient,” etc.

Under the authority conferred upon him by a resolution of the board of directors of the company, passed on the 31st of August, 1857, Charles G. Young, then president of the board, was authorized and instructed to issue two thousand bonds of the company, redeemable in twenty years from the 1st day of September, A. D. 1857, for one thousand dollars, or two hundred and twenty-five pounds sterling, each bearing interest at eight per cent, per annum, payable semi-annually in coupons of forty dollars, or nine pounds sterling each; the principal and interest of said bonds made payable in New Orleans, New York or London, as the president by his endorsement may determine. And he was further authorized, by the resolutions aforesaid, “to secure the payment of said bonds and of the interest thereon, by a first mortgage on the railroad of the company, its lands, property, franchises,” etc.

By a notarial act before the Recorder of the Parish of Ouachita, on the 1st of September, A. D. 1857, the president aforesaid declared that he had that day issued two thousand bonds of the said company, in conformity with the power and instructions granted to him, under and by virtue of the resolutions above stated. And he further declared in said act, that “ in consideration of the premises, and in order to secure the full, faithful, and punctual payment and redemption of each and all of the said bonds issued as aforesaid, to any and all future holder or holders thereof, and to each and every one of them, when the same shall become due and payable, together with the interest accruing thereon, in the manner and at the periods of time herein above stipulated, and as evidenced by the coupons attached to the said bonds respectively, the said Vicksburg, Shreveport and Texas Railroad Company does, by its president, the said Charles G. Young, grant in favor of John Ray, ,of the town of Monroe, Parish of Ouachita and State of Louisiana, as well as in favor of all and every other person or persons whosoever, who may become the holders of said bonds or coupons, or any of them, a first mortgage, lien and privilege upon its entire railroad,” etc.

In the month of December, A. D. 1865, William R. Gordon, alleging himself to be the owner and holder of four of the bonds of said company, with the interest coupons or warrants attached to the said bonds, and that eighteen of the coupons held by him were due and unpaid, applied for and obtained, on the 23d day of December, 1865, an order of seizure and sale against the entire railroad and all its appurtenances; and, in pursuance of the order, the entire property of the company mortgaged to secure the payment of the bonds and coupons, or interest warrants, was seized, and after the legal preliminary proceedings, sold by the sheriff of the Parish of Ouachita, at public auction, in the town of Monroe, on the 3d day of February, A.- D. 1866.

The plaintiffs in the case now before us, George M. Branner & Co., aver that, at the judicial sale of the Yicksburg, Shreveport and Texas Railroad, with its appendages, etc., made at Monroe, Parish of Ouachita, Louisiana, on the 3d of February, 1866, under an order of seizure and sale rendered in favor ofVm. R. Gordon,'the entire property was adjudicated to them, as the last and highest bidders, at the price and sum of $550,000. They further aver that they were ready, at the time of the adjudication, to comply with the terms of sale; that they tendered the cash part of the price to the sheriff, in law'ful money of the United States; but that M. O. Hardy, the sheriff, at the instance and request of John T. Ludling and his associates, parties defendants in this case, refused to receive the amount so tendered ; and that said Hardy, sheriff, against the plaintiff’s public protest, proceeded again' to offer the said property at public sale, and at this second offering adjudicated the property to the said Ludling and his associates, the sole bidders at the second exposure. The plaintiffs bring this action against M. O. Hardy, sheriff, making Ludling & Oo. parties, and pray that the adjudication made to Ludling and others, on the 3d of February, 1866, and the proceedings connected with the same, and the deed of sale subsequently made to Ludling and others by the sheriff, be declared null aud void; that they be decreed the legal owners of the property; that the sheriff be directed to make a deed of sale of the property to plaintiffs, upon their complying with the terms of the adjudication made to them at the first offering of the property. They claimed damages against the defendants in solido, in the sum of one hundred thousand dollars.

The claim for damages, as well as the reconventional demand of damages set up against the plaintiffs by the defendants in their amended answer, was, subsequently, discontinued.

The defendants severed in their defence. Their answers contain general denials. Ludling & Co. admitted that they became purchasers of the property, and aver that they acquired a legal, title to it by virtue of the adjudication and deed to them by the sheriff. Both branches of the ease were argued together, and by consent of parties, all the evidence taken on the trial of the case, as to Ludling and his^associates, except such portions as were specified, was taken and received on the trial of the case, as to Hardy, sheriff, the other defendant.

It will be proper here to consider an exception, presented at an early stage of the proceedings, in the Court below, by the defendants, Ludling & Co., and by the Court referred to the merits. This exception, in its nature peremptory, embraces four points. We shall notice, however, the pnly one of. these upon which, in argument before this Court, the defendants’ counsel seemed to place much stress. It is, that this suit is a petitory action, and the plaintiffs, being without title, can not maintain it. The plaintiffs complain of an alleged injury done them by the sheriff and the other defendants, in preventing them from obtaining a complete title to the property in dispute. The gravamen of their case is that a, title was illegally withheld from them. The gist of their action is to obtain that which the defendants contend they are incapable of suing for, because they have no title. The defendant Hardy, sheriff, also excepts to the right of plaintiffs to sue him, on the ground that, having returned the writ under which he sold the property, he is, as to these proceedings, functus officio, and has no further interest in the matter.

We regard the action as one brought against the sheriff, to compel him to make a title to plaintiffs, and to have the adjudication and deed by the sheriff, to Ludling & Co., annulled. We see nothing irregular in the plaintiffs making Ludling & Co. parties, as their rights, under the deed soiight to' be annulled, are necessarily brought in question, The exception, we think, was not well taken. 12 Rob. 79.

The prominent inquiry in this case is, did Branner & Co., the plaintiffs, comply with the terms of the sale, or did they offer to comply ? In order to a proper solution of this inquiry, it is necessary to ascertain clearly what were the terms on which the property was sold. For it appears that, from a disagreement upon this fundamental point, a large amount of the litigation in this case has arisen.

Going back to the commencement of the proceedings, we find that, in his petition for an order of seizure and sale against the railroad company, Gordon, the suing creditor, prays that the entire railroad, etc. “be seized and sold according to law, and in order to pay the interest coupons or warrants now due and unpaid, and the accruing interests and bonds, at their maturity respectively, and that the proceeds of the sale be distributed according to law.”

The order of seizure and sale is responsive to the prayer of the petition, but more explicit, It is in these words :

“It is further ordered, adjudged and decreed, that the property mortgaged, and described above and in the mortgage, be seized, and advertised and sold, according to law, to wit: for cash, to pay the interest coupons now due, and on terms of credit to meet the falling due or maturity of the interest coupons and the bonds to mature.”

The writ of seizure and sale, and the advertisement, repeat the terms, as expressed in the order of seizure and sale; the advertisement adding that the property would be sold under benefit of appraisement. The sheriff’s return upon the writ, made 10th February, 1866, recites the terms as expressed in the various acts, and adds to them the words: “purchaser to give bond and good personal security for the credit portions of the price bid, conditioned according to law.”

Afterwards, hoWY6?? 031 motion before the Ristrict pourt, on the 9th of April following, and on leave obtained of tbe Court, tbe sheriff amended bis return by striking out tbe -words above, under quotation marks, so that,' as tbe return now stands, tbe conditions upon wbicb tbe sale was made are, in every essential particular, expressed in identical language in tbe original petition of Gordon, tbe seizing creditor, the order of seizure and sale, tbe writ, tbe advertisement, and tbe sheriff’s return. But none of these acts are explicit as to ulterior and important questions that arise after tbe adjudication to tbe plaintiffs, on tbe first offering of tbe property, and these are : Was tbe purchaser to retain in bis own bands any surplus of tbe cash portion of tbe price that might remain, over and above tbe arnount be bad to pay to tbe sheriff for tbe seizing creditor and for costs ; and also to retain tbe credit portion to apply to tbe various coupons and bonds as they severally fall due ; tbe mortgage subsisting as security for all tbe unpaid parts of tbe debt, whether due or running to maturity? Or did tbe mortgage become extinct by tbe act of sale, and tbe purchaser to be required to pay over to tbe sheriff tbe whole amount required in cash, and to give bonds with personal security and special mortgage on tbe property purchased, to secure tbe payment of tbe bonds and coupons yet to mature ?

Tbe character of tbe mortgage given to secure tbe bonds and coupons, or interest warrants, became tbe subjeot of a long and elaborate argument by tbe able counsel on each side of this case, both orally and by brief. They agree that all tbe proceedings in tbe case of Gordon v. The Railroad Company, up to tbe time of the adjudication of tbe property, on tbe first offering to Branner & Co.,, tbe plaintiffs, are regular. They agree that tbe property seized should be disposed of according to tbe provisions of tbe Article 686 of tbe Code of Practice, but they draw widely different conclusions as to tbe requirements of that article, when applied to tbe mortgage given to tbe bond-holders by the railroad company, to secure tbe payment of tbe bonds and tbe interest warrants attached to them.

After a careful examination of the subject, we arrive at tbe conclusion, that tbe mortgage in question assimilates itself to an act of hypothecation made to secure a debt payable in installments; and that proceedings to enforce it should be conducted according to tbe rules laid down in tbe case of Pepper v. Dunlap, 16 L. R. 163. We see no other course, wbicb, in. our view, carries out more fully tbe intentions of tbe contracting parties, wbicb better secures their rights, and wbicb deals more equitably with all tbe parties in interest. We are aware that this course, wbicb accords an hypothecary action to enforce tbe payment of any portion of tbe debt, however minute, is not free from objections. But arguments ab inconvenienti are not always tbe most forcible; and we apprehend that, practically, tbe apparent difficulties in tbe way are not at all likely, to be of frequent occurrence.

This being tbe course, in our judgment, implied by tbe general expression “ agcording to law,” we find the conditions of. the gale to.-bq,;. to cover all those portions of the entire debt already due, to include as well the interest coupons due and held by parties other than the seizing-creditor, as the coupons held by him, and on which he obtained his order of seizure and sale. The purchaser to pay in cash, to the sheriff, the amonnt due the seizing creditor and costs of proceedings. To retain in his own hands any surplus amount of cash that might remain over and above his payment to the sheriff for the seizing creditor and for costs. And to retain also those portions of the price to be applied to the several parts of the debt not yet due, as they respectively mature. The mortgage subsisting to secure each and every unpaid part of the debt.

We recur now to the inquiry, did Branner & Co. comply with the terms of the sale, or offer to comply with them ?

After the property was “knocked off” to Branner & Co. at the sale, it is in evidence that J. T. Ludling presented to the sheriff one hundred and fifty-four of the railroad company’s bonds, upon which the interest coupons due amounted to thirty-six thousand three hundred and sixty dollars; and that F. B. Stubbs presented to the sheriff, at the same time, seventy-two interest coupons of the bonds of the company, amounting to twenty-eight hundred and eighty dollars. That the sheriff, at the instance of Ludling and Stubbs, presented the bonds and coupons to Branner & Co., and demanded payment of the coupons then due, amounting, in the whole, to the sum of thirty-nine thousand one hundred and forty dollars. This demand made, as it appears, in the presence and at the instance of the holders of the bonds and coupons, was objected to by Branner & Co., who refused to pay the amounts so demanded, on the ground that they had to pay only the coupons which had been protested for non-payment.

Although the president of the company was authorized to issue two thousand bonds, it appears that, in fact, only seven hundred and sixty-one were issued. At the day of sale, the amount of interest coupons due was one hundred and sixty-eight thousand one hundred and sixty dollars., As the entire debt, then, on the day of sale, largely exceeded the amount bid for the property, the creditors could only receive their pro rata shares. The amount due Gordon, the seizing creditor, and which was exigible in cash on the day of sale, reduced to its pro rata share, exceeded four hundred dollars; the costs of proceedings amounting to $3,469 75, making, together, a sum larger by two hundred dollars than the amount it is in proof, Swan, the agent of Branner & Co., tendered in cash, as all the money he had to pay, to wit: thirty-six hundred dollars. The amount of costs is run up by the sheriff’s commissions being cast upon the amount of the bid, which we think he would have been entitled to had Branner & Co. complied with their bid.

The 'grounds' upon which the plaintiffs declined paying the interest coupons due and presented’by Ludling and Stubbs, we think, is not tenable. It was not necessary that they should have been protested before payment was demanded. 5 An. 724. 13 An. 136. 5 An. 61. The purchaser was clearly bound to pay any bona Me holder the portion of the .debt due him, upon the proper evidence of the claim beig presented.

It is in proof that Swan, the agent of Branner & Co., and one of the parties purchasing, admitted the bonds presented were genuine; that he made no question of the ownership or agency o.f those who presented them and demanded payment of the coupons due and held by them. It admits of no doubt, we conclude, that the plaintiffs faded to comply with the conditions of the sale, and that it was the duty of the sheriff to proceed as he did, to re-offer the property for sale on the same day.

We find several bills of exception in the record, which we do not deem it important, in the decision of this case, to revert to.

It is therefore ordered, adjudged and decreed, that the judgment.of the District Court be affirmed, the plaintiffs and appellants to pay costs in both Courts.


author: Hvmak, C. J.

text:
    A. H. Scriber, Administrator, v. Geo. W. Miller.
    This case involves only a question of fact.
    APPEAL from the District Court, Parish of Morehouse,

      Crawford, J. Newton <& Hall, for appellants. 8. G. Parsons, for appellee.
    The facts are-stated in the opinion of the Court.
   Hvmak, C. J.

Plaintiff, as the administrator of Peter S. Miller, deceased, sued to recover of defendant twenty-six bales of cotton, or their value. Defendant answered by a general denial.

There was judgment rendered against defendant, and he has appealed.

The deceased, Peter S. Miller, raised on his two plantations one hundred and sixty bales of cotton, in the year 1862. After his death, in 1862, no more cotton was raised on the places.

In the year 1863, one of the administrators of his estate sold one hundred and ten bales of the same, and gave the estate credit for the proceeds from the sale thereof, in an account rendered by him. In February, 1865, the defendant took from one of the two plantations twentyrsix bales of the cotton. These twenty-six bales were the only remaining cotton on the two plantations, and to recover which, or their value, this suit is brought.

Defendant produced no evidence that he had bought the cotton. There is no presumption that the twenty-six bales of cotton taken by him was ia . part of the one hundred and ten bales sold by the administrator, as more 'than one hundred and ten bales had been removed from the plantations before he toot therefrom the twenty-six bales.

Judgment of the District Court affirmed ; defendant to pay costs of ■appeal.


author: Hyman, C. J.

text:
    Robson & Allen v. John McKoin et al.
    Where a note is given in part payment oí an account, and the credit given the maker on account of the note, is an amount less than the amount of the note, the maker and the endorser of the note are only liable for the amount credited on the account.
    A debtor has control of his means of payment, and he can impute them to the payment of any debt he chooses, and sureties have no right to control him in the imputation.
    APPEAL from the District Court, Parish of Morehouse,

      Orawford, J. Todd & Brigham, for appellants. J. & B. Bay, for appellees.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

John McKoin and James Monette made, on the 4th March, 1857, their note in solido for $906 23, payable to the order of plaintiffs, twelve months after its date, with eight per cent, interest from its maturity.

In April, 1859, plaintiffs sued McKoin & Monette on the note.

Defendants pleaded that part of the note‘was without consideration and usurious ; that the defendant McKoin (who, it appears, is the principal debtor, Monette being his security) shipped seventeen bales of cotton to plaintiffs, who were commission merchants in New Orleans; that the same had been sold by plaintiffs, and that the proceeds thereof, which were retained by them, should be imputed to the payment of such part of the note as was owing by defendants.

Judgment was rendered against the defendants, condemning them in solido to pay to plaintiffs the amount of the note, with interest, subject to a credit of $204 44, on 26th April, 1858.

It appears from the account of plaintiffs, adduced in evidence, that plaintiffs made advances to McKoin, and that, on the day the note was given, he owed them about $2,100, and that plaintiffs, on receiving the note, credited him on their account against him, $800 only, for the note.

The note was not discounted, but was given in part payment of the account. McKoin was entitled to a credit for the amount of the note, and he is bound in the note for the amount only of credit given him on the' account. The account was further reduced by other payments.

In the early part of the year 1858, McKoin shipped plaintiffs seventeen bales of cotton; plaintiffs sold the same, and on the 26th April, 1858, they transmitted to him an account of what they claimed against him; included therein the amount of the note, with interest, and also imputed therein the proceeds of the sale of the cotton to the payment of the note and other items owing by him to them. The imputations of payment was made pro rata, on the various claims owing by McKoin to plaintiffs, and the sum of $433 70 was thus imputed to the payment of the note.

The defendant McKoin-contends that he did not consent to this imputation of payment, and that he has the right to require that all the proceeds of the sale of the cotton should be imputed to the payment of the amount owing on the note.

This defendant received notice that payment had been imputed by plaintiffs, of the proceeds, a year before the institution of this suit, .to which he made no complaint.

This long silence on the part of this defendant implies his assent to the imputation of payment made by plaintiffs, and he cannot now require that the imputation should be changed. See Civil Code, 1811, 2161.

The defendant Monette contends that, as he is security, he has a right to have the imputation of payment changed, and the whole proceeds imputed to the payment of the note, although' McKoin may have given his consent to the contrary.

The answer is patent to such a claim on the part of the security.

The proceeds were McKoins, and he had the right to control his own means, and to impute them to any debt he owed plaintiffs.

Defendants urged, by exception, that plaintiffs could not bring suit on the note, separate from the other items in the account, because they had stated in their account, on which the imputation of payment was made, that the note was one of the items of indebtedness of McKoin to-them.

The note was not extinguished by such act of plaintiffs, which, plaintiff^, in answer to interrogatories on fact's and articles, state was done to show McKoin the exact amount of balance due on the note. Only for the amount of payment imputed to it was it extinguished, and no valid reason has been given why the plaintiffs, by thus doing, lost their right of separate action on the note.

The sum owing on the note, on the 26th day of April, 1858, was $809 06, from which should be deducted the amount imputed as payment.

It is ordered, adjudged and decreed, that the judgment of the District Court be reversed. -It-is further decreed that plaintiffs recover of the defendants in solido the sum of three hundred and seventy-five dollars and thirty-six cents, with interest thereon, -at jhe rate of eight per centum per annum, from the 26th day of April, 1858, and the costs of suit in the District Court; the costs of this appeal to be paid by plaintiffs.


text:
    Littleberry Overby v. Hezekiah Overby, Administrator, et al.
    A ratification by the principal, of a oontraot made by bis agent, not authorized to make suoii contract, binds the principal as fully as if ^the agent bad been empowered to make tbe contract.
    APPEAL from the District Court, Parish of Morehouse,

      Crawford, J. J. & R. Ray, for appellant. Newton & Hall, Todd & Brigham, for appellees.
    This case was tried by jury in the District Cdurt.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

In the year 1863, one of plaintiff’s brothers brought a lot of plaintiff’s cotton and stored it at Mr. Billings’ plantation, in the Parish of Morehouse.

Plaintiff, who resided in Kentucky, came to this State, and, when about to return to that State, he left the cotton in charge of his brother, E. P. Overby, to do with it as if it was his own.

In the year 1864, the cotton-burners of the Confederate States visited the said Parish, and commenced their work of destruction.

E. P. Overby, desirous of saving his brother’s cotton from being burned, applied to several persons to get them to remove and conceal the same from the ¡burners, offering a half of the cotton that might be saved by removal and concealment, to any person who would undertake to remove and conceal it. This proposition, refused by several, was accepted by-William R. Ward, who removed, concealed and saved one hundred and seventeen bales of the cotton, and E. P. Overby gave him (Ward) 58)¿ bales of same.

Plaintiff in -this case sued Ward to recover of him the 58)^ bales of cotton, or their value.

One-o-f the defences set up by Ward in his answer is, that the agent, E. P. Overby,-had authority to make the contract, and that plaintiff had ratified the acts of the agent.

The'-- trial of the case resulted in a verdict and judgment for defendant.

Plaintiff has appealed.

On plaintiff’s coming again into-this State, he was informed,-on inquiry, that his-bother, E. P. Overby, had saved some of his (plaintiff’s)-' cotton, by giving one-half for removing the other. He replied, o'n’receiving this information, that whatever his brother had-done would be satisfactory to him.

His not dissenting, but rather assenting, to what had been done by his agent, ratified the contract that his agent .had made with Ward.

A ratification by the principal, of a contract made by his agent, not authorized to make such contract, binds the principal, as fully as if the agent had been empowered to make the contract. Civil Code, No. 2990.

Judgment affirmed, plaintiff to pay costs.


author: Labatjve, J.

text:
    W. R. Bond, Revived in the name of Maxey A. Bond, v. C. Bishop.
    "Where the answers to interrogatories on faots and articles, all taken together, present a complete answer to all the interrogatories, taken together, the Court will not order one of the interrogatories tobe takon as confessed, for the reason that the answer to that particular interrogatory appears evasive, it appearing that it has been fully answered in the answer to another interrogatory.
    APPEAL from the District Court, Parish of Ouachita,

      Orawford, J. J. & B. Bay, for appellants. B. Bichardson, for appellees.
    The facts are stated in the opinion of the Court.
   Labatjve, J.

Plaintiff alleges, in substance, that on the 25th of March, 1858, Wm. H. Rogers, W. F. Bond and C. Bishop, executed two notes in solido in favor of W. A. Richardson, each for the'sum of $559 95; one due on 1st February, 1859, and the other due the 1st July,- 1859; that W. W. Bond paid both those notes, paying $250 23d March, 1859, $300 5th October, 1859, and $816 7th January, 1860 — in all, $1,366; that the defendant owes petitioner one-half of said sum, with eight per cent, interest per annum, from the date of each payment. > 3

The answer contains a general denial; a special denial that Wm. PI. Rogers is insolvent, and states that Wm. H. Rogers placed in the hands of W. F. Bond, either moneys, accounts, notes, bonds or credits, or all of them, with which to pay the obligations 'sued on, and that it was with such, said Bond paid said notes.

The Court below, after hearing the evidence, gave judgment in favor of defendant, and the plaintiff appealed.

The following interrogatories were propounded to and answered by plaintiff: ■

Int. 1. Did not W. H. Rogers place in your hands, either money, 'notes, bonds, accounts or credits, with which to pay these notes ? And was it not with the money, notes, accounts, bonds or other credits that you paid those two notes ?

Answer to this interrogatory.

W. H. Rogers gave C. Bishop and myself an obligation in writing to place notes or accounts in our hands, sufficient to pay the two notes now in suit, in favor of W. A. Richardson; but the said W. H. Rogers has not advanced to me any funds to pay them. I paid the two notes with my own funds.

Int. 2. State what amount of money, notes, accounts, bonds, or other credits W. H. Rogers placed in your hands to secure you in the payment of the notes in favor, of W. A. Richardson, upon which you have introduced suit against this defendant ?

Answer to this interrogatory.

Not one cent has the said W. H. Rogers placed in my hands to pay the noteB now in suit ?

Int. 3. If the whole of these two notes were not paid with the money, notes, accounts, bonds or other credits, state what part and how much was paid ?

Answer to this interrogatory.

No funds of any sort have been received by me from W. 'H.’Rogers, to pay any part of said notes.

Int. 4. If W. H. Rogers placed notes, accounts, bonds or other credits in your hands, state how much of the same you have collected, and what part and how much remains uncollected ? Attach to your answer to this interrogatory a list of the notes, accounts, bonds or other credits placed in your hands^y W. H. Rogers, with respective amounts, and against what persons the. same were. Also state, whether or not you ever paid over to W. H. Rogers any money thus collected; and, if not collected, whether you returned to him the notes, accounts, bonds or other credits?

Answer to. this interrogatory.

W. H. Rogers has placed nothing in my hands to meet the notes now in suit; neither with notes, bonds, money or mortgages. I paid them from my own funds.

The defendant moved the Court to cause to be taken for confessed, the said interrogatories, for the reason that the answers to the same were not categorical, and were evasive.

The Court ordered the fourth interrogatory to be taken for confessed, and upon that ruling gave judgment in favor of defendant.

We are of the opinion that the answers to the interrogatories are not manifestly evasive; taken together, they all have one point in view, and are directed to show that W. H. Rogers had placed in the hands of the plaintiff, effects with which to -pay the notes or secure the plaintiff; the answers thereto, together, go to show and do show, to our satisfaction, that said W. H. Rogers never placed in the hands of the plaintiff, neither effects nor money to pay said notes, and that plaintiff paid the notes with his own funds, and not with those of Rogers.. The last answer-to the fourth interrogatory covers the whole subject contemplated by the four interrogatories, and shows conclusively that Rogers never put in the hands of the plaintiff anything to pay said notes — W JET. Rogers has placed nothing in my hands to meet the notes now in suit, neither with notes, bonds, money or mortgages; I paid them from my own funds.

In other respects, the evidence clearly establishes plaintiff’s demand.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and avoided. It is further ordered and adjudged, that the defendant, Caldwell Bishop, pay to Maxey A; Bond, administratrix of the estate of the plaintiff,- the sum of six hundred and eighty-three dollars, with interest at eight per cent, per annum, -on '$125, from *23d March, 1859; on $150, from 5th October, 1859; and on $408,- from 7th January, I860,-till paid, with eosts in-both Courts.


text:
    W. F. Bond Revived in the name of Maxey A. Bond, v. C. Bishop.
    Motion for Rehearing.
    The proper time to demand proof of the death of a party to an appeal, and the appointment and qualification of an administrator, in whose name the suit is revived, is at the time the suggestion of death and motion to revive is made; it is too late for the opposite party to demand it after a trial on the merits — the proof is waived.
   Labauve, J.

On an application for rehearing in this case, the defendant takes, as grounds :

1. That the instruments sued -upon are, by their form, obligations in solido, and that the judgment is erroneous in decreeing him to pay one-half of the debt, when he is only bound for one-third thereof, it beingihis virile share.

2. If the plaintiff and -defendant are co-sureties, of Rogers, then the judgment is erroneous, because plaintiff paid .these notes . without suit.

3. That the-evasive answers of-plaintiff to the interrogatories clearly indicate’ that, if he had • not in his hands assets.of Rogers, at the time which he alleges to have paid these noteá, he subsequently became possessed of such, sufficient to satisfy these notes,

■4. That, since this appeal was taken; the plaintiff has died, and- that this suit was revived in this Court in the name of Maxey A. Bond, as administratrix of the estate, and judgment rendered in her favor, without any evidence of her appointment; and that, until such evidence is produced in this Court, she is not a proper party.

On passing on these grounds, we take the first two together :

1 and 2. The two notes sued upon are in solido, and signed by Rogers, Bond and Bishop; but the defendant clearly admits, by his counsel’s brief, filed in this Court, as well as by the defence and interrogatories in the case, that the parties to this suit were sureties for said Rogers. These notes being in solido, as regarded Richardson, the payee, none of the parties stood in the relation of sureties. The plaintiff could have opposed to the creditor neither pleas of discussion or division, and was not required to suffer suit before discharging the debt, in order to avail himself of his remedy against his co-surety. Civil Code, Arts. 2086, 2089, 3027. 2 An. 334.

3. We are satisfied that the interrogatories propounded by defendant have been substantially answered, negatively, by the plaintiff.

4. The death of the plaintiff having been suggested, upon motion of his counsel, filed on 11th July, 1866, the suit was revived in the name of Maxey A. Bond, his widow, administratrix. The case was regularly fixed for trial, and both parties filed briefs, the plaintiff on the 12th, and the defendant on the 18th July, 1866; the case being called up for trial, was submitted to the Court. The proper time to have required proof of the death of plaintiff, as well as of the qualification of the administratrix, was when the suggestion of death and the motion to revive were made. The trial upon the merits was a waiver of these objections.

Rehearing refused.


author: Taliaeebbo, J.

text:
    Wm. R. Gordon et al. v. The Vicksburg, Shreveport and Texas R. R. Co.—Opposition of Branner et al.
    — Monition.
    I*he doctrine in Branner ct al. v. H. C. Hardy, Sheriff, et al. (ante, p. 537), re*affirmed.
    APPEAL from the District Court, Parish of Ouachita,

      Crawford,, J. B, W. & B. Bidhardson, for appellants. J. é B. Bay, for appellees.
    This was an application on the part of Gordon etal., for a monition to quiet their title to the Vicksburg, Shreveport & Texas Railroad. The facts are fully set forth in the opinion of the Court, in the case of Branner et al. v. M. C. Hardy, Sheriff, et al. (ante, p. 537.)
    . The Vicksburg, Shreveport and Texas Railroad, with its rolling stock, franchises, et.c,, were offered by sale, by the Sheriff of the Parish of Ouachita, by virtue of an order of seizure and sale, granted on the aplication of Wm. H. Gordon et al., on the 30th day of December, A. D. 1866; after due advertisement and notice, the sheriff offered the road for sale, distinctly announcing the terms of sale before offering the property; and, among other things, expressly stating that the purchaser must assume the payment of all interest coupons belonging to the mortgage bonds of the road which were due, to the extent of the surplus bid over the amount necessary to satisfy the judgment on which the road was then sold; that the excess must be applied to the payment of the outstanding interest coupons, pro rata. At the sale, Branner and others, the opponents in the case, bid the sum of $550,000, which was the highest bid; immediately after the railroad was knocked - down to them, Ludling and some other holders of interest coupons presented them to Branner & Co. and demanded payment. Branner & Co. refused to pay any coupons which had not been protested, whereupon the sheriff, deeming the refusal to pay the coupons presented a refusal to comply with the terms of the sale, immediately, on the same ' day, and without further advertisement, offered the railroad again for sale, and it was sold against the protest of Branner & Co., to Gordon et al., the applicants for the monition in this case. Branner & Co. instituted a suit against the sheriff and the purchasers at the second sale, and prayed to have the sale to them affirmed, and the adjudication to Gordon et al. declared null and void.
    Gordon et al., in order to quiet their title, made the application for the monition in this case.
   Taliaeebbo, J.

In this case, by reason of the law and the evidence, and for the reasons and judgment rendered by this Court in the case of Geo. M. Branner et al. v. M. C. Hardy, Sheriff et al., it is ordered, adjudged and decreed, that the judgment of the District Court be affirmed. It is further ordered that the opponents, Branner et al., pay the costs of this appeal.


author: Taliapebeo, J.

text:
    The Same v. The Same.
    — Application for Rehearing.
   Taliapebeo, J.

In this case the application for a rehearing is refused.


text:
    Pierre M. Backen, Administrator, etc. v. A. W. Hamilton, et al.
    Purchasers at Sheriff’s aale aro bound, as to tho torms of payment, by the tol'ma announced by thd Sheriff at the time of sale.
    APPEAL from the District Court, Parish of Natchitoches,

      Lewis, J. O. H. Parson, for appellant. )&t!0. W. Kearney, and A. W. Hamilton, appellee, in propria persona.
    The facts are stated in the opinion of the Court.
   Labauve, J.

This suit is brought on a note, dated 16th November, 1864, for $351 50, payable one year after its date, to the plaintiff, in his capacity, and signed in solido by the defendants. This note was given for the aggregate price of divers articles of movables, sold at the judicial sale of the succession of Pierre Iieesca.

The defence admits the execution of the note, but denies that there was a valid or legal consideration for the same, and alleges that by the advertisement and terms and conditions of the sale, the effects of the said succession were understood to be payable in Confederate or State papers, which wore of no value, and auy contract based on such papers was opposed to public order, etc.

■ Tho District Court gave judgment for the defendants, and the plaintiff appealed.

The evidence shows that the terms of sale were: for all sums up to fifty dollars, inclusive, cash, payable in Confederate or State papers; for all sums above fifty dollars, on a credit of one year from the day of sale ; the purchasers, on credit terms, giving their promissory notes satisfactorily secured, in solido, and hearing eight per cent, interest per annum, from date till paid. The proces-verbal of sale, introduced in evidence by defendants, shows that, after reading in an audible voice, the advertisement, in the French and English languages, the terms and conditions of sale, the sheriff proceeded to offer the property, and that it was then that A. W. Hamilton bought divers articles, and executed his note, sued on, with his co-defendant in solido. The conditions of sale are very clear : any purchaser above fifty dollars knew that he had to give his note, secured in solido, payable in a year; and nothing is said as to what currency with which such note was to be paid; and the presumption is that the parties contemplated that payment should be made in the legal currency of the country when such note should become due.

The defendants have attempted to prove that the impression was, that purchasers would be allowed to pay in Confederate money. They had no right to believe any such thing; their guide was the'terms announced to them by the sheriff. It is not alleged or pretended that they have been deceived by fraud or ill practice. We are of opinion that the judgment appealed from is erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the defendants, A. W. Hamilton and George W. Kearney, pay in solido to the plaintiff, Pierre M. Backen, administrator, the sum of three hundred and fifty-one dollars and fifty cents, with eight per cent interest per annum, from the 16th November, 1864, till paid, and costs of suit in both Courts.


text:
    Charles Q. Butler v. Wm. B. Stewart.
    Whoro it appears by the petition that tho defendant is indebted to the plaintiff by reason of a negotiable promissory note, endorsod in blank ; Held .- — That tho potition is sufficient and discloses a cause of action ; and the averment that the plaintiff is tiie holder and owner of tho note sued on, is not absolutely necessary, as it is a necessary inference from the allegation that the indebtedness of tho defendant is on account of tho note sued on.
    Courts will not order the plaintiff in an action to answer interrogatories on faots and articles, when, if confessed or answered in tho affirmative, they would establish no defence to the action; or whon they look to the establishment of a defence not set up in tho pleadings.
    ■When a defendant, sued on his promissory note, alleges that a third person has, for a valuable consideration, contracted to pay tho note and save tho defendant harmless; Held: — That the Court properly refused to allow the defendant to call such third person in warranty, there being no privity between tho plaintiff and the party sought to be called iu warranty.
    APPEAL from the District Court of the Parish of Natchitoches,

      Lewis, J. Henry Gray, for appellant. Pierson <& Levy, for appellee.
    The facts are stated in the opinion of the Court.
   Labauve, J.

The petition represents that the defendant is indebted to tho plaintiff in the sum of $682, with eight per cent interest per annum, from the 13th day of February, 1862, till paid, on a promissory note signed by the said William B. Stewart, dated 3d June, 1861, for said capital sum, with said rate of interest, payable on the 13th February, 1862, for value received, to W. M. D. Cauthorn or bearer.

The defendant excepted that the plaintiff does not set out any cause of action in his petition in this, that he alleges that defendant is indebted unto him on a promissory note given to W. M. D. Cauthorn; but plaintiff does not aver that the note was delivered to him, or that he is the holder or owner of the same. Plaintiff avers that defendant is indebted unto him, but does not state how that indebtedness or liability accrued to plaintiff from defendant.

These exceptions were overruled by the Court. We are of opinion that the Court decided correctly.

The petition clearly states that the indebtedness of defendant, in favor of the plaintiff, is upon this note, which is sufficiently described to advise the defendant of the cause of action. The statement that the defendant is indebted to the plaintiff on the note, virtually and substantially carries with it the idea that plaintiff is the holder and owner of the note ; for if the plaintiff did not hold the note, the defendant would not and could not be indebted to him on that note.

In his answer on the merits, the defendant admitted the execution of the note sued on, and denied that the same belonged to the plaintiff, or that he had any beneficial interest therein; and he propounded to the plaintiff the following interrogatories :

1. Are you the bona fide owner or holder of the note sued on in this case ?

2. If recovery be had against the defendant, will you be entitled to the proceeds ? Is the note not the property of the original payee ? Has any person besides yourself an interest in said note ; and, if so, state the name of such person ?

The Court refused to order plaintiff to answer said interrogatories. We are of opinion that the Court did not err.

The defendant made no defence against the note, no plea in compensation or reconvention. Whatever might have been the answers to the interrogatories, they would not have prevented a recovery, and it would have been a vain thing to order the plaintiff to answer. The defendant had no interest to know whether the plaintiff was really owner of the note or acted as agent of the payee, so long as he had no defence to make against the latter, either for want of consideration, or had no plea in compensation or reconvention.

The defendant also prayed to call in warranty one H. Rabrun, upon the following instrument of writing :

“I hereby agree to pay a note given by W. B. Stewart to W. M. Cauthorn, for six hundred and eighty-two dollars, dated January 3d, 1861, dije 15tb February, 1862, for value received.

(Signed)

H. Rabbtot,

Tlio Court refused this call in warranty. We are of opinion that the Court decided corfectly. There is no privity between plaintiff and this H. Rabrun. Anselm v. Wilson, 8 La. R. 37.

We are satisfied that the judgment rendered in favor of plaintiff for the amount of the note, is just and according to law.

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


author: Labaüve, J.

text:
    Paul G. Callehan v. Geo. W. Stafford, Executor.
    A. was omploycd as ovorscor on a plantation, at the rate of one thousand dollars per year, and while engaged in* his duties was conscripted by tho Confederate military authorities. The owner of tho I>lantation, by his influence, and by the payment of money and provisions, secured the release of tho conscriptfroui active duty, and had him detailed as overseer on the plantation; Held .- — That tho treatios and arrangements entered into by the Confederate authorities to rotain the ovorsoer in his omploy, were notbinding on tho overseer; and the owner of the plantation acquired no right of aotion and no subrogation against the overseer, which ho oould set up in dofence of an action by tho ovorsoer to recovor the full amount of wagos due him under tho contract.
    Where a porsonhas hired his services for a fixed period, and he leaves his employer before tho expiration of that period, he cannot recover wagos for tho period which ho has served, without showing that he had a just cause of complaint against his omployer.
    APPEAL from the District Court, Parish of Rapides,

      Lewis, J. O. G. Manning, for appellant. E. North Gullum and Wm. A. Seay, for appellee.'
    The fadts are stated in the opinion of the Court.
   Labaüve, J.

Tho plaintiff claims of the estate of Levy Stafford, $1,428 66, with legal interest, for services rendered by him as overseer, from the 1st of January, 1864, to the 5th June, 1865, at the rate of $1,000 per year, under a contract.

' Tho answer is a general denial, and that plaintiff, being a conscript soldier, and liable to duty as such, in the Army of tho Confederate States, was relieved of the onerous service by being detailed as overseer on the plantation of the deceased, until the first day of September, 1864; that, for this detail, the sum of five hundred dollars was paid, and a quantity of sugar and bacon was also furnished, in December, 1864, for the same purpose, the detail being renewed to 1st September, 1865. That the exemption from the privation and dangers of a soldier’s life, and the money and provisions paid to secure that exemption, are a full discharge of any claim of plaintiff for, services rendered. That the deceased, by procuring the detail of plaintiff, became entitled to his time and services during the period of the detail; and he further jAeads in reconvention the payment of money, and the value of the sugar and bacon.

The District Court, after hearing the testimony, gave judgment for the whole demand in favor of plaintiff, and the defendant appealed.

The defendant has substantially proved the facts in support of his ejefence; but we are of opinion that these arrangements and treaties, entered into by the deceased with the Confederate Government to retain the plaintiff in his employ, are not binding on the plaintiff, who was not legally bound to the so-called Confederate States, and, consequently, the deceased acquired no right of action and no subrogation against plaintiff in consequence of. such payment.

But we are of opinion that the judgment is erroneous in allowing the plaintiff $428 66 for that part of the year 1865. The plaintiff was employed by the year, at $1,000, commencing on 1st of January, and ho left the plantation on 5th June, 1865; the plaintiff having left before the year had expired, it was incumbent on him to show that he had a just cause of complaint against his employer. He has entirely failed to prove any such thing. But it is contended that Mrs. Stafford consented to his leaving, and that this is evidenced by a letter she wrote to plaintiff. We cannot infer that meaning from the letter. Civil Code, Articles 2719, 2720, 2721.

In other respects, we are satisfied that the judgment is correct.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended, so as to strike out the second part of the judgment allowing $428 66| and interest; and that, as amended, it be affirmed, and that the appellee pay costs of this appeal.


text:
    J. S. Tarver v. W. O. Winn.
    The agreement to pay a greater interest than that allowed by law to be contracted for, makes that part of the contract null and void, and produces no legal effect botweon the partios contracting, and is the same as if no agreement had been entered into relative to interest.
    When there is no stipulation to pay interest on a debt, it bears intero&t at the rate of five per cent, from the time it becomes due.
    APPEAL from the District Court, Parish of Bapides,

      Lewis, J. O. C. Manning, for appellant. Ryan t& White, for appellees.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

In this ease plaintiff sued to obtain a judgment against Mary E. Winn, as the universal heir of the deceased, Walter O. Winn, and of the executrix of his estate, on a note, as follows :

“Winn Fobest Plantation, La., February 13, 1861.

“ On the 1st of March, next, 1861, I promise to pay to Jno. S. Tarver, or order, the sum of twenty-six hundred and sixty-nine dollars and forty-pig-ht cents, for his services j*s overseer on my lyini} Forest plantation, In case I should fail to comply with the above, on the 1st of March, I hereby bind myself to pay to said Jno. S. Tarver or order, on the 1st of November, 1861, the sum of twenty-nine hundred and thirty-six dollars and forty-two cents, for his services rendered on my Winn Forest plantation. W. O. Winn.”

No citation was legally made on defendant, Mrs. Winn, and she filed an exception in the District Court, asking the dismissal of this suit on that ground.

The Court overruled the exception, and rendered judgment against her as heir and executrix, for $2,669 48 (the amount of the note), and costs of suit.

Plaintiff has appealed from this judgment, and the defendant, Mrs. Winn, in her answer to the appeal, submits the case to this Court, and asks that the judgment of the lower Court be reversed by us.

By this answer she claims her right to claim a reversal of the judgment of the lower Court; on the ground that she was not cited.

It is apparent that, in the note sued on, greater damages or interest are stipulated for delay of its payment than interest at a rate of eight per centum per annum ; and the law has declared that such a stipulation causes the forfeiture of the entire interest contracted for, unless it be capitalized and placed in the amount for which the note was given. See Acts relative to interest, passed in the years 1855 and .1860.

The agreement to pay a greater interest than that allowed by law to be contracted for, makes that part of the contract null and void, and produces no legal effect between the parties contracting, and is the same as if no agreement had been entered into relative to interest.

When there is no stipulation to pay interest on a debt, it bears interest at the rate of five per cent, from the time it becomes due. See Acts of 1855, already referred to.

It is therefore decreed, that the judgment of the District Court be so amended as to allow plaintiff to recover of defendant, interest at the rate of five per cent, per annum, from the 1st of March, 1861, on the amount of the judgment rendered by the lower Court. It is further decreed that, in all other respects, the judgment of the lower Court be affirmed.

It is further decreed, that defendant pay the costs of this appeal.


author: Hvman, C. J.

text:
    John P. Hailey v. Owen Franks et al.
    Whore a pretended owner of a steamboat has repairs made and materials furnished tlio steamboat, oil the credit of his ownership and for his apparent Advantage as owner, he cannot escape responsibility by setting up that he was not the owner of the steamboat at the time the repairs were done and materials furnished.
    APPEAL from the District Court, Parish of Caddo,
    Weems, J. J. G. Beale, for appellant. Nutt & Leonard, for appellee.
    The facts are stated in the opinion of the Court.
   Hvman, C. J.

Plaintiff sued to obtain judgment against Owen Franks, as owner of the steamboat H. Howell, for amount due for certain services on the boat, and also for advances made to the boat.

Plaintiff also sued out a writ of attachment, made Wm. Thatcher a party garnishee to the suit, and propounded to him interrogatories.

Defendant, Franks, denied all the allegations of plaintiff’s petition, and averred that he was not the owner of the boat, and therefore not bound for debts incurred for the boat.

The District Judge rendered judgment, and decreed that plaintiff recover of Franks the amount claimed, less 138 13. He further decreed that plaintiff have judgment against garnishee, Wm. Thatcher, in his individual capacity and as agent of John Thatcher, for the amount-of the judgment against Franks.

From this judgment Franks appealed.

Defendant, in this Court, relies on the evidence proving that he was not the owner of the boat,, at the time the services were rendered and the money was advanced, to induce a reversal of the judgment. This certainly would have been a valid defence, had he not have claimed, when plaintiff’s claim originated, to be the owner of the boat, and had not acted as owner.

As owner of the boat he would have been liable, and he cannot, after he permits services to be rendered and advances to be made on the boat, on his apparent responsibility and for his apparent advantage as owner, escape, by contradictory proof, the responsibility of owner. 1 An. 11.

The judgment against Wm. Thatcher, as the agent of John Thatcher, is erroneous. John Thatcher is not a party by garnishment or otherwise, and no judgment can be rendered in this suit against him, so as to affect the control by defendant of the claim that defendant has against him.

It is decreed that the judgment of the District Court be reversed, so far as it decreed that plaintiff have judgment agaiust Wm. Thatcher, as the agent of John Thatcher, for the amount of the judgment against Owen Franks.

It is further decreed that, in every other respect, the judgment of the District Court be affirmed; the plaintiff to pay the costs of this appeal.